JUDGMENT 1. - At the time of hearing of application for suspension of sentence, a request was made by the learned counsel for the accused appellants that the appeal itself may be heard finally as the record has already been received. Hence, the appeal itself was heard finally. 2. This appeal has been filed by the accused appellants against the judgment and order dated 10.1.2001 passed by the learned Addl. Sessions Judge, Banswara in Sessions Case No. 74/98 by which he acquitted both the accused appellants for the offence under section 368 IPC, but convicted both the accused appellants for the offence under sections 376, 366 and 450 IPC and sentenced in the following manner : Name of accused appellants convicted under section sentence awarded 1. Kawla ) 2. Kalu   ) 376 IPC Seven years RI and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo three months SI. 366 IPC Five years RI and a fine of Rs. 500/-, in default of payment of fine, to further undergo two months SI. 450 IPC Three years RI and a fine of Rs. 200/-, in default of payment of fine to further undergo one month SI. All the above substantive sentences were ordered to run concurrently. 3. It arises in the following circumstances : On 13.4.1998, a written report Ex. P 1 was lodged by P.W. 1 Madi prosecutrix before P.W. 5 Tej Singh, SHO, Police Station Anandpuri, District Banswara stating that on 7.3.1998 in the night when P.W. 1 Madi was sleeping alongwith her younger children and her husband PW. 2 Rooplal was out of station near about 8-9 PM both accused appellants came to her house and woke up her asking her to go with them and, thereafter, accused appellant Kawla pressed her mouth and another accused appellant Kalu caught hold her hands and they dragged her and took her to the village Khuti Bijiya and kept in the house of Mala, where both accused appellants committed rape on her and kept her there for ten days. It was further stated in the report that she was threatened by the accused appellants that in case she tried to come back to her house, they would kill her. It was further stated in the report that she was threatened by the accused appellants that in case she tried to come back to her house, they would kill her. Thereafter, after the festival of Holi, both accused appellants took her village Ghamadiya and they kept her in the house of Hadiya for 8-10 days, where both accused appellants committed rape on her against her will. It was further stated in the report that before 5 days of lodging the report, she came back to her house and she told the whole story to her father P.W. 4 Dalla and then her husband P.W. 2 Rooplal was informed about the alleged incident. On this report, police registered the case and chalked out FIR Ex. P 2 and started investigation. During investigation, the prosecutrix P.W. 1 Madi was got medically examined by P.W. 6 Dr. Ramakant Mali and her medical examination report is Ex. P 7. After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Session. On 15.7.1999, the learned Additional Sessions Judge, Banswara framed charge against the accused appellants for the offence under sections 450, 376, 366 and 368 IPC. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as seven witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under section 313 Cr.P.C. were recorded. No evidence in defence was led by the accused appellants. After conclusion of trial, the learned Additional Sessions Judge, Banswara vide his judgment and order dated 10.1.2001 acquitted the accused appellants of the charge under section 368 IPC, but 20 convicted both the accused appellants for the offence under sections 376, 366 and 450 IPC and sentenced in the manner as indicated above holding interalia : 1. That so far as the delay in lodging the report is concerned, explanation has been given by the prosecution and, therefore, delay in this case is not fatal. 2. That statement of the prosecutrix P.W. 1 Madi is reliable as there is no contradiction in her statement. Aggrieved from the said judgment and order dated 10.1.2001 passed by he learned Additional Sessions Judge, Banswara this appeal has been filed by the accused appellants. 4. 2. That statement of the prosecutrix P.W. 1 Madi is reliable as there is no contradiction in her statement. Aggrieved from the said judgment and order dated 10.1.2001 passed by he learned Additional Sessions Judge, Banswara this appeal has been filed by the accused appellants. 4. In this appeal, the following submissions have been made by the earned counsel for the accused appellants : 1. That in the present case, there is a delay in lodging the report and this delay has not been explained by the prosecution and the same is fatal to the prosecution case and thus, the whole case of the prosecution should be thrown on this ground alone. 2. That medical evidence in this case is nil. 3. That whole story is a false one and at the most, this case is of a consent one and hence, the findings of the learned Addl. Sessions Judge convicting the accused appellants for the offence under sections 376, 366 and 450 IPC cannot be sustained and the accused appellants are entitled to be acquitted of the charges framed against them. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Banswara. 6. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. 7. Before proceeding further, it may be stated here that so far as the medical evidence in the present case, is concerned. the same is nil as Dr. Ramakant Mall, P.W. 6 has stated in his statement that the alleged incident of rape took place before 15 days back and, therefore, nothing can be said about the rape. 8. The alleged incident took place on 7.3.1998 and the report Ex. P 1 was lodged by the prosecutrix P.W. 1 Madi on 13.4.1998. 9. Ramakant Mall, P.W. 6 has stated in his statement that the alleged incident of rape took place before 15 days back and, therefore, nothing can be said about the rape. 8. The alleged incident took place on 7.3.1998 and the report Ex. P 1 was lodged by the prosecutrix P.W. 1 Madi on 13.4.1998. 9. The prosecutrix P.W. 1 Madi in her examination-in-chief has stated that during the intervening night she went with the accused appellants and she lived in the village Khuti for ten days, where both accused appellants used to commit rape on her and thereafter, from village Khuti, was taken to the village Ghamadiya and she was kept there for about 6-7 days and both to accused appellants used to commit rape on her there also and, thereafter, she came back to the house of her father and told the whole story to her father P.W. 4 Dalla. In cross-examination, she has admitted the following facts : 1. That from village Rohaniya to Khuti, she went on foot. 2. That when she was living in the village Khuti, she used to go for toilet. 3. That it is correct to say that both accused appellants used to commit rape on her and at that time, she used to keep her both hands on the back of the accused and they used to have sexual intercourse with her for 15 minutes. 10. The next prosecution witness is P.W. 2 Roop Lal, who is husband of the prosecutrix P.W. 1 Madi. He has admitted in his statement that after 22 days of alleged incident, he met with P.W. 1 Madi and he came to know about the whole story on 29.3.1998 though the report in this case was lodged on 13.4.1998. 11. P.W. 4 Dalla is the father of the prosecutrix. 12. In my considered opinion, looking to the entire facts the circumstances of the case, the statement of the prosecutrix P.W. 1 Madi on the point that she was forcibly abducted and thereafter, she was raped forcibly by accused appellants during 20 days cannot be accepted for the following reasons : 1. That in the present case, medical evidence is nil. 2. That in the present case, there is a delay in lodging the report. The incident took place on 7.3.1998, but the report was lodged on 13.4.1998 by the prosecutrix PW. That in the present case, medical evidence is nil. 2. That in the present case, there is a delay in lodging the report. The incident took place on 7.3.1998, but the report was lodged on 13.4.1998 by the prosecutrix PW. 1 Madi, though her husband P.W. 2 Roop Lal was informed on 29.3.1998. There is no satisfactory explanation for such delay. Hence, this delay is fatal to the prosecution case. 3. That the prosecutrix was married woman and she has remained in the company of both the accused appellants for ten days in the village Khuti and further ten days in another village Ghamadiya and during these period, she did not inform anybody that she has been forcibly abducted by the accused appellants. In these circumstances, it cannot be said that she was abducted by the accused appellants with an intention that she may be compelled to illicit intercourse against her will nor it can be inferred that accused appellants have committed rape on her forcibly. rather it appears that she used to enjoy sex during these days after keeping her hands on the back of the accused appellants. Thus, it can easily be said that she was a consenting party in all the activities and whatever has been done that had taken place so with her consent. 13. For the reasons stated above, the findings of the learned Addl. Sessions Judge, Banswara convicting the accused appellants for the offence under section 376, 366 & 450 IPC cannot be sustained and the accused appellants are entitled to be acquitted of the said charges.Accordingly, this appeal filed by the accused appellants Kawla and Kalu is allowed and the judgment and order dated 10.1.2001 passed by the learned Addl. Sessions Judge, Banswara are set aside and the accused appellants are acquitted of the charges framed against them. Since the accused appellants are in jail, they be released"forthwith, if not required in any other case.Appeal allowed - Conviction set aside. *******