Judgment S.S.Saron, J. 1. This appeal has been filed by Shamsher Singh-appellant against the judgment and orders dated 13.7.1993 and 14.7.1993 passed by the learned Additional Sessions Judge, Jind, whereby the appellant has been held guilty for the offences under Sections 457 and 376 Indian Penal Code (IPC - for short). He has been sentenced to undergo RI for 7 years and to pay fine of Rs. 200/- and in default of payment of fine, to undergo further RI for 6 months, for the offence under Section 376 IPC, besides to undergo RI for one year and to pay fine of Rs. 100/- and in default of payment of fine, to undergo further RI for 3 months, for the offence under Section 457 IPC. Both the sentences were ordered to run concurrently. 2. Case FIR 175 dated 2.12.1991 (Ex. PH/2) was registered on the statement, Ex. 100/- and in default of payment of fine, to undergo further RI for 3 months, for the offence under Section 457 IPC. Both the sentences were ordered to run concurrently. 2. Case FIR 175 dated 2.12.1991 (Ex. PH/2) was registered on the statement, Ex. PH, of the prosecutrix (name withheld) wherein she stated that she was resident of village Pegan and her husband does agricultural work whose five fingers of the left hand are cut; about 5-6 days before the occurrence, she was having stomach ache, which was being treated by the doctor; the doctor had advised her to sleep separate from her husband; the brother of the prosecutrix had come at about 1.00 p.m. during the day on 1.12.1991 to know about her well-being; on the intervening night of 12.12.1991, the prosecutrix was sleeping in the Kotha of her residential house, the door of which was bolted but the latch of which was not fastened from inside; the husband and the brother (namely Satta) of the prosecutrix were sleeping in the cattle shed where cattle were tied; they had closed the door towards the Kotha of the residence from inside; at late night hours, one person through the stairs entered the Kotha of the residential house and started fondling with her breast and the prosecutrix got perplexed and screamed and that person immediately put his right hand on her mouth and made her speechless; he grappled with the prosecutrix on account of which the bangles on her hand broke and then the intruder with his left hand tore the string of the salwar; he took off the salwar and underwear of the prosecutrix and then committed rape on her; he held both her hands with his left hand; she kept screaming and crying, that person forcible did a bad act with her; on hearing the noise of the prosecutrix, her husband, Pala Ram, and brother, Satta, came towards the Kotha of the residential house and after switching on the light, the husband of the prosecutrix identified that person to be Shamsher Singh (appellant); the appellant at once pushed the husband of the prosecutrix and her brother and after freeing himself from them, fled away through the cattle shed; in the morning of 2.12.1991 at 7.00 a.m., the prosecutrix, her husband and brother went to the house of the parents of the prosecutrix, who advised them to lodge a report against the appellant and accordingly they had come to lodge the report and they met the Police at Nagura chowk. After registration of the FIR, the Police investigated the case. The appellant and the prosecutrix were subjected to medical examination and their respective reports are Exhibits PA and PE. After completing the investigation, the challan in the case was filed before the JMIC, Jind on 10.2.1992. The learned Magistrate, vide his order dated 26.2.1992, committed the case to the Court of Session. The learned Additional Sessions Judge, to whom the case was assigned, on 18.3.1992 charged the appellant for the offence of criminal house trespass in terms of Section 457 IPC and of committing rape in terms of Section 376 IPC. The appellant pleaded not guilty to the charge and claimed trial. The prosecution, in order to prove its case, examined 7 witnesses; besides tendering documents and closed its evidence. The statement of the appellant was recorded in terms of Section 313 Cr.P.C. in which he stated that he was innocent and the case was false. It was further stated that on 1.12.1991, Pala Ram-PW6, husband of the prosecutrix, had a drunken brawl with him and so he harboured ill-will against him. The prosecutrix, it was stated, belongs to village Ugalan where the brother of SI Mange Ram was married and on the recommendations of the brother-in-law of SI Mange Ram, this false case had been foisted upon him. It is also stated that after lodging of the FIR, a Panchayat of the village was convened wherein the prosecutrix and her husband tendered apology and admitted having lodged a false report against him. In his defence, he examined one Ajmer Singh (DW-1) son of Fateh Singh of village Pegan. On the basis of the evidence and material on the record, the learned Additional Sessions Judge, Jind found the appellant guilty of both the offences for which he had been charged and accordingly convicted and sentenced him as indicated above. The said judgment of the learned Additional Sessions Judge is assailed by the appellant in this appeal. 3. Shri Bhoop Singh, learned counsel for the appellant has submitted that the case set up by the prosecution against the appellant is absolutely false and the trial Court gravely erred in law in convicting and sentencing him for the offence attributed to him. It is contended that the facts and circumstances, as brought out on record, do not establish the guilt of the appellant in any manner. It is contended that the facts and circumstances, as brought out on record, do not establish the guilt of the appellant in any manner. The learned counsel contends that the occurrence in the case is said to have taken place in the intervening night of 1/2.12.1991 and the prosecutrix (PW-5) has stated that she met the Thanedar at Noon time and yet the FIR is registered at 7.00 p.m. and this delay shows that there was prior consultations and deliberations before lodging of the FIR; besides it is contended that the story set up by the prosecution that the doctor had asked the prosecutrix and her husband to sleep separately, is not plausible and, therefore, it cannot be said that the prosecutrix was sleeping by herself when the appellant allegedly came and committed rape. The outer walls of the house, it is stated, are 12 ft. high and the appellant could not have scaled the same. Even the Forensic Science Laboratory report (Ex. PF) and the statement of Dr. Mrs. Manjula (PW-3), it is contended, do not support the case of rape, set up by the prosecution. 4. In response, Mr. Sudhir Nehra, AAG, Haryana, submits that the prosecution has proved its case in all respects. It is contended that the prosecutrix (PW-5) has submitted that the rape was committed on her; besides the bangles were recovered from the place of occurrence. Moreover, the motive, set up by the appellant, is not strong enough to show that it is a case of his false implication. As such, it is contended that the judgment and order of the trial Court is sound and the same is liable to be maintained and upheld. 5. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 6. The prosecutrix deposed before the learned trial Court as PW-5 in which she reiterated her version as given in the FIR. In her examination-in-chief, it is stated by the prosecutrix that about 9 or 10 months ago, she was having pregnancy 3 months and she had pain in her stomach. The doctor had advised her and her husband to sleep separately. Satta, the brother of the prosecutrix, had come to her house to inquire about her welfare. He was staying at her house on the day of occurrence. The rest of the examination-in-chief is as per her statement Ex. The doctor had advised her and her husband to sleep separately. Satta, the brother of the prosecutrix, had come to her house to inquire about her welfare. He was staying at her house on the day of occurrence. The rest of the examination-in-chief is as per her statement Ex. PH, on the basis of which FIR Ex. PH/2 had been registered. In her cross-examination, she stated that she knew the appellant casually only being a co-villager. In their house, besides the prosecutrix herself, her aged mother-in-law is also there. She stated in her cross-examination that she met the Thanedar at noon time and lodged the report. SI Mange Ram, the Investigating Officer (PW7) states that he was present at Naguran chowk and it was 7.00 p.m. when the prosecutrix along with her husband, Pala, met him where she made her statement Ex. PH, which was thumb-marked by her. Therefore, there is a discrepancy of the time of meeting between the prosecutrix and the Investigating Officer at Naguran chowk. The special report was received by the Judicial Magistrate at 10.15 p.m. on 2.12.1991. This delay, it is contended by the learned counsel for the appellant, is fatal as it not only goes to show the falsity of the prosecution case but also gave time to the prosecution to falsely implicate the appellant by carrying out due deliberations and consultations. It is well known that prompt lodging of a FIR is not an unmistakable guarantee of the prosecution version and neither is delay fatal. In cases of rape, however, there is always some delay in the lodging of FIR as there is reluctance on the part of the complainant to lodge the report so that the occurrence is not brought to light. However, in the case in hand, the delay is to be examined keeping in view the other over-all circumstances in which the prosecution case has been set up. 7. It may appropriately be noticed that the story set up by the prosecutrix was that the doctor had asked her and her husband to sleep separately. In the cross-examination of the prosecutrix, it is stated by her that she did not know the name of the doctor and again said she took medicines from some Baba whose name was not known to her and who has since expired. In the cross-examination of the prosecutrix, it is stated by her that she did not know the name of the doctor and again said she took medicines from some Baba whose name was not known to her and who has since expired. It is further stated that the Baba was residing in one house and she took medicines from him once only. She further stated that she had pain in her stomach for which she took medicines. Pala Ram (PW-6), the husband of the prosecutrix, in his deposition, states that 4-5 days prior to the occurrence, a doctor had advised him and his wife to sleep separately because she was on the family way and was having some pain in her stomach. In his cross-examination, he accepts that he had not stated before the Police that his wife was on the family way, so the doctor had advised him to sleep separately from her. The story of the doctor asking the prosecutrix and her husband to sleep separately, therefore, is not established inasmuch as the prosecutrix (PW-5) has not been able to give the name of the doctor who had given this advise and in fact she states that she was getting treatment from some Baba and that she also took medicines from him once only and she did not know the name of the Baba. Her husband-Pala Ram (PW-6), however, states that the doctor had advised them to sleep separately. Thus, there is an apparent discrepancy in regard to any advise given by a doctor that the husband and the wife should sleep separately. It has also come in the deposition of the prosecutrix (PW-5) that the walls of their house were 12 ft. in height and there are houses on two sides of her house. The prosecution has explained the circumstances of the appellant entering the Kotha of the residential house where the prosecutrix was sleeping but has not explained as to how he entered the main house. The occurrence in the case took place during the winter month of December and the main entrances of the houses in the villages are generally secured and bolted from inside. Neither the prosecutrix (PW-5) nor her husband-Pala Ram (PW-6) have explained as to how the appellant entered the main house which had 12 ft. high walls. This also casts reasonable doubt in the case set up by the prosecution. 8. Neither the prosecutrix (PW-5) nor her husband-Pala Ram (PW-6) have explained as to how the appellant entered the main house which had 12 ft. high walls. This also casts reasonable doubt in the case set up by the prosecution. 8. The medical evidence on record is comprised of the statements of Dr. Vijay Kumar Satija (PW-1) who examined the appellant and Dr. Mrs. Manjula (PW-3) who medically examined the prosecutrix; besides the report of the FSL (Ex. PF). Dr. Vijay Kumar Satija (PW-1) has deposed that he examined the appellant on 7.12.1991 and he found his secondary sex characters well developed. The axillary hair and pubic hair were well developed. The pubic hair were found neither spoiled nor matted due to semen. The male organ was well developed and no mark of injury was found anywhere on the person of the appellant. He opined that the appellant was capable of doing sexual intercourse in due course of life. Dr. Mrs. Manjula (PW-3) who examined the prosecutrix (PW-5) found that her secondary sexual character were well developed and axillary hair were present. Besides, it was observed that there was no external mark of any violence over any part of the body. On local examination, it was observed that there was no external mark of injury seen over the perineum, thighs, lower abdomen and hips. The external genitalia was normal, hymen was ruptured - old heal type. Vagina was loose admitting two fingers easily. Vaginal swabs were taken and preserved. Cervix were backward and uterus ante-verted and 12 weeks size and soft. It was further observed that the patient was pregnant, pubic hair were shaved and hence not preserved. The clothes were changed so could not be preserved. The opinion, it was mentioned, could be given after the report of the chemical examination. The carbon copy of the MLR which bears the signatures of the doctor, was exhibited as Ex. PE. The doctor further stated that she had seen the report of FSL, Madhuban dated 8.5.1992 (Ex. PF) but she could not say if sexual intercourse was performed or not. Dr. Mrs. Manjula (PW-3) in her cross-examination stated that the prosecutrix was married and pregnant lady, so she was habitual to intercourse. Besides, there was no mark of violence on the person of the prosecutrix and neither was any injury found on her private part. The FLS report (Ex. Dr. Mrs. Manjula (PW-3) in her cross-examination stated that the prosecutrix was married and pregnant lady, so she was habitual to intercourse. Besides, there was no mark of violence on the person of the prosecutrix and neither was any injury found on her private part. The FLS report (Ex. PF) dated 8.5.1992 is as follows :- "I. 4-MR It contained Ex 1a Ex. 1-a One dirty violet coloured terrycot salwar. Ex 1-b One dirty violet coloured ladys terrycot shirt. Ex. 1-c One faint brown coloured nylon underwear along with broken glass bangles. II. 1-Dr It contained ex/2 Ex 2 Two cotton wool swabs on small sticks along with green fungus like material. III. 3-MR It contained Ex-3a and 3b Ex 3A One faint grey coloured terrycot pyjama. Ex. 3b One pink coloured terrene Kachha. Laboratory Examination Laboratory examinations were carried out to detect the presence of semen on the exhibits. Based upon these examinations, the results obtained have been analysed as given below :- 1. Semen could not be detected on ex-1a (salwar), ed-1b (ladys suit), ex-1c (underwear), ex-2 (vaginal swab), ex-3a (Pyjama) and exhibit-3b (Kachha). Note. - After examinations, the exhibits along with their original wrappers have been sealed with the seals of A-D Biol FSL H. Sd/- (Dr. MK Goyal) Senior Scientific Officer (Biology) cum-ex-officio Asstt. Chemical Examiner to Govt. of Haryana, Forensic Science Laboratory, Madhuban." 9 A perusal of the above Laboratory Examination of the exhibits as indicated above, shows that no semen was detected on the clothes of the prosecutrix which were recovered and neither was any detected from the vaginal swabs. The circumstances of the case are that the prosecutrix was a married lady and was habitual to sexual intercourse and in fact was pregnant. However, it is the case of the prosecutrix that the appellant grappled with her and her bangles were also broken in the scuffle which were recovered from the place of the occurrence. Despite this, it has been observed by Dr. Mrs. Manjula (PW-3) that there was no mark of injury on any part of the body of the prosecutrix and none even on her local examination or on her private parts. Besides, the doctor has stated that she could not say if the sexual intercourse was performed or not. 10. Despite this, it has been observed by Dr. Mrs. Manjula (PW-3) that there was no mark of injury on any part of the body of the prosecutrix and none even on her local examination or on her private parts. Besides, the doctor has stated that she could not say if the sexual intercourse was performed or not. 10. The case set up by the defence is that on 1.12.1991, Pala Ram (PW-6)-the husband of the prosecutrix (PW-5) while he was in an inebriated state had a brawl with the appellant and so he harboured an ill-will against him. In respect of this, writing Ex. DA was recorded in the Panchayat which is proved from the deposition of Ajmer Singh-DW1. He has stated that in the evening previous to the occurrence, an altercation (drunken brawl) took place between Pala Ram-husband of the prosecutrix and the appellant. After 4-5 days of the occurrence, it is stated, that a Panchayat was convened by Pala Ram at his house where there were 30 persons in the said Panchayat. In that Panchayat, Pala Ram-PW6, it is stated, admitted that he had an altercation with the appellant and that the alleged occurrence of rape never took place. In this regard, a writing-Ex. DA was recorded. The portion `A to A in Ex. DA, it is stated, is in the handwriting of one Dheera and the rest of the writing is in his (Ajmer Singhs-DW1) handwriting. The persons who put their signatures did so after understanding the contents. In his cross-examination, it is stated that mid-way while recording the writing, Dheer Singh said that he could not record the same, so he (Ajmer Singh-DW1) took the job of writing the same. It is also stated that the writing-Ex. DA was produced before the SHO and at that time, Pala Ram (PW-6) was with them. The SHO, however, stated that the writing be produced before the Court. 11. The writing (Ex. DA) is addressed to the Sarpanch of the Gram Panchayat, Pegan. It is recorded as being addressed by Pala Ram (PW-6) in which he states that the allegation of rape, levelled against the appellant, was false as a dispute had occurred between Pala Ram and the appellant. In this respect, Pala Ram had lodged a report with the Police. Regarding this, they were entering into a Panchayat decision (compromise) and that this decision (compromise) be accepted. In this respect, Pala Ram had lodged a report with the Police. Regarding this, they were entering into a Panchayat decision (compromise) and that this decision (compromise) be accepted. The said writing is thumb-marked by Pala Ram (PW-6) and bears the stamp of the Panchayat and signatures and thumb-impressions of others of the village. Ajmer Singh (DW-1) has stated that the portion `A to A of the said writing, is written by Dheera and rest of the portion was written by him. Pala Ram (PW-6) in his deposition with respect to this writing, stated that no Panchayat was held and then he again said that the Panchayat was held and his thumb-impressions were obtained on some paper under duress. It is stated that the thumb-impressions of his wife were also obtained by coercion and that the document was written by Dheera. It is further stated that he had filed a complaint through his Advocate after 10 days of the alleged Panchayat in which his thumb-impression was obtained by force. However, copy of the complaint was not given to him by the counsel. The said writing-Ex. DA also contains the thumb-impression of the prosecutrix. 12. It is in these over-all facts and circumstances of the case from which the delay in lodging the FIR assumes some significance inasmuch as in respect of the occurrence on the intervening night of 1/2.12.1991, the prosecutrix met the Investigating Officer SI Mange Ram at 7 p.m., according to SI Mange Ram (PW-7). However, the prosecutrix states that they met the Police party in the afternoon. In any case, the special report reached the JMIC at 10.15 p.m. Therefore, the circumstances in the case are such that: (a) There has been some delay in the registration of the FIR and the prosecutrix states that she met the Police in the noon time whereas SI Mange Ram-IO (PW-7) says that she met him at 7 p.m. and the special report was received by the JMIC at 10.15 p.m. on 2.12.1991. (b) The story of the doctor asking the prosecutrix and her husband Pala Ram (PW-6) to sleep separately, is not convincing enough. The prosecutrix in her examination-in-chief, as also Pala Ram (PW-6), her husband, stated that the doctor had advised him to sleep separately. (b) The story of the doctor asking the prosecutrix and her husband Pala Ram (PW-6) to sleep separately, is not convincing enough. The prosecutrix in her examination-in-chief, as also Pala Ram (PW-6), her husband, stated that the doctor had advised him to sleep separately. However, the prosecutrix, in her cross-examination states that she does not know the name of the doctor from whom she took medicine and that she took them from some Baba whose name was not known to her and that he has since expired; besides it is stated that she took the medicines once only. Pala Ram (PW-6) accepts that he did not state before the Police that the doctor had advised him and his wife (prosecutrix) to sleep separately. (c) There is no explanation as to how the appellant entered the house when the walls of the house are accepted by the prosecutrix to be 12 ft. high. The story is only given as regards entering the Kotha of the residential house where the prosecutrix was sleeping. Even after the occurrence, it is not shown that when the appellant ran away after pushing the husband of the appellant and her brother, any hue and cry or noise was raised in the village. Nothing has come on the record that people from the neighbourhood were called. In fact, the prosecutrix states that after the occurrence, she did not call any respectable persons of the village to apprise them of the occurrence. Therefore, the manner in which he (appellant) escaped after the occurrence, also creates doubt as regards the veracity of the prosecution version. (d) The medical evidence on record rules out the fact of even sexual intercourse having been committed. Dr. Mrs. Manjula (PW-3) has categorically stated that there was no external mark of any violence over any part of the body besides even local examination and examination of the private parts did not show any injury on the person of the prosecutrix. It is also stated by her (Dr. Mrs. Manjula) that she could not say if the sexual intercourse was performed or not. The FSL report (Ex. PF) detected no semen on the contents of the exhibits that were examined. The prosecutrix in her evidence had stated that the semen discharged by the appellant stained the rug (Dari) covering the cot. It is also stated by her (Dr. Mrs. Manjula) that she could not say if the sexual intercourse was performed or not. The FSL report (Ex. PF) detected no semen on the contents of the exhibits that were examined. The prosecutrix in her evidence had stated that the semen discharged by the appellant stained the rug (Dari) covering the cot. However, the rug (Dari) is not even been shown to have been sent for FSL examination. Therefore, the medical examination rules out any sexual intercourse having been committed. (e) The writing (Ex. DA) is signed by the prosecutrix as also her husband, Pala Ram (PW-6) in which it is accepted that a false case has been got registered against the appellant and that they have entered into a Panchayati settlement which was acceptable to them. This writing is proved by Ajmer Singh (DW-1), who is scribe of some part of the said writing and the remaining part of it, it is stated, was recorded by one Dheera Singh. 13. It may also be noticed that the prosecutrix is a grown up lady and it cannot be said that she did not make any attempt to resist to the advances made by the appellant to commit rape upon her. In Partap Misra v. State of Orissa, AIR 1977 SC 1307, it was held by the Honble Supreme Court that the medical evidence which indicates that there was no injury on the person of the prosecutrix in a case of this type militates against the theory or allegation of rape. Their Lordships further expressed that opinions of medical experts show that it is very difficult for any person to rape single-handed a grown-up and an experienced woman without meeting stiffest possible resistance from her. For expressing this opinion, their Lordships relied on the following observations made by Taylor in "Principles and Practice of Medical Jurisprudence Volume II" in which the Author dealt with the cases of rape on grown-up women, which is as under :- "Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of bruises, is, as was indicated in Volume I, a matter of some uncertainly in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused, for similar marks of bruises or scratches about the arms or face, and possibly evidence about his penis, though this is less likely. Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contract traces of the woman - hairs, vaginal secretion or blood, and, though of less significance, seminal stains." 14. The above observations and the evidence on the record, rule out the possibility of any sexual or rape having been committed upon the prosecutrix. 15. For the aforesaid reasons, there is merit in this appeal, filed by the appellant and consequently the same is accepted and the judgment and orders dated 13.7.1993 and 14.7.1993 - convicting the sentencing the appellant respectively, passed by the leaned Additional Sessions Judge, Jind, are set aside. The appellant is accordingly acquitted of the charges.