Judgment A.N.Jindal, J. 1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Ludhiana dated 14-10-2000 by which accused-appellant was convicted under Sections 376, 452 and 506 of the Indian Penal Code and was sentenced as under: 1. Under Section 452 of the IPC; rigorous imprisonment for two years and a fine of Rs. 1000.00 . In default of payment of fine, further rigorous imprisonment for six months. 2. Under Section 506 of the IPC; rigorous imprisonment for two years and a fine of Rs. 1000.00 In default of payment of fine, further rigorous imprisonment for six months. 3. Under Section 376 of the IPC; rigorous imprisonment for seven years and a fine of Rs. 10,000.00 . In default of payment of fine, further rigorous imprisonment for two years. 2. Brief facts, which are necessary for the disposal of the appeal, are recapitulated below: The prosecutrix is a married woman and w/o Balbir Singh, was having five months old male child in her lap. At the time of occurrence i.e. on 8-5-1999, her husband who was employed as a driver on a car at Ahmadgarh Mandi had gone to his duty. His duty periods were 8.00 a.m. to 8.00 p.m. Her father-in-law and mother-in-law are not alive whereas brothers of her husband are living separately. On 8-5-1999 at about 3.00 p.m. when the prosecutrix was making her son sleep on a bed in her room, accused by scaling over 7 feet high wall entered the room; caught hold of her by her neck; threw her forcibly on the bed; removed her clothes without her consent and committed sexual intercourse with her. After satisfying his lust, he threatened the prosecutrix that in case she divulged the incident to any body, then she along with her son will be killed. Thereafter he left the place. After the accused loosened his grip over the neck, she raised hue and cry which attracted PW2 Nirmal Singh, who was removing the manure nearby. On seeing him, the accused fled away, Prosecutrix kept waiting for her husband who returned from duty on 9-5-1999. When she, in the company of her husband, lodged the FIR Exhibit PD/2 on 9-5-1999 at 12.30 p.m. The Investigating Officer, after recording the FIR-PD/2, inspected the place of occurrence; prepared the rough site plan of the place of occurrence; Exhibit PL. When she, in the company of her husband, lodged the FIR Exhibit PD/2 on 9-5-1999 at 12.30 p.m. The Investigating Officer, after recording the FIR-PD/2, inspected the place of occurrence; prepared the rough site plan of the place of occurrence; Exhibit PL. The prosecutrix produced before him her salwar which was taken into possession vide memo exhibit PE; recorded the statement of PW2 Nirmal Singh and he also received the medicolegal examination report conducted by PW3 Dr. J. K. Sidhu at 10.15 p.m. on 9-5-1999. On completion of investigation, challan against the accused was presented in Court. The accused was charged under Sections 376, 452 and 506 IPC to which appellant-accused pleaded not guilty and claimed trial. 3. In support of the charges, the prosecution examined 9 witnesses. PW 4 is the prosecutrix and PW 2 is the eye-witness who had seen the accused running away out of the house of the prosecutrix. PW 1 had conducted the medicolegal examination on the accused person and he had opined vide his report Exhibit PA/1 that there was nothing to suggest that the accused was incapable of performing sexual intercourse. PW 3 Doctor J. K. Sidhu who had conducted the medicolegal examination on the person of prosecutrix, has stated that vagina admitted two fingers. Her secondary sexual characters were well developed. Her external genitalia was normal. There was no mark of violence on her private parts. PW 5 Satish Kumar, architect has prepared the rough site plan Exhibit PF of the place of occurrence. PW 5 Constable Gurmail Singh and PW 7 HC Tarsem Lal are the formal witnesses. On the closure of the prosecution evidence, accused has been examined under Section 313 Cr. P.C. in which all the incriminating circumstances appearing against him were put to him to which he replied as incorrect and further pleaded that he has been falsely implicated in the case by the prosecutrix. He also explains that there was a dispute regarding village property in front of the house of the prosecutrix. The husband of the prosecutrix wanted to encroach upon that land to which his father had objected. Bhag Singh is the elder brother of the father of the husband of the prosecutrix who sold his land measuring 6 biswas to the father of the accused whereas husband of the prosecutrix wanted to purchase that land. The husband of the prosecutrix wanted to encroach upon that land to which his father had objected. Bhag Singh is the elder brother of the father of the husband of the prosecutrix who sold his land measuring 6 biswas to the father of the accused whereas husband of the prosecutrix wanted to purchase that land. The husband of the prosecutrix had a quarrel with him on that account, therefore, he was involved in this case. 4. In defence, the accused examined DW1 Gulzara Singh of his village who has proved a copy of the agreement Exhibit DA, which was executed by Bhag Singh, fathers brother of the husband of the prosecutrix for sale of land measuring 6 biswas for a consideration of Rs. 5000.00 per biswa in favour of the father of the accused. 5. Learned Additional Sessions Judge, Ludhiana vide his judgment dated 14-10-2000, while disbelieving the story set up in defence by the accused, placed reliance on the testimony of the prosecutrix and Nirmal Singh PW 2. Consequently, he convicted him of the charges for the commission of the offence under Sections 376, 452 and 506 IPC and sentenced him accordingly. Hence, this appeal. 6. I have heard learned Counsel for the appellant, who assailed the prosecution version by advancing number of contentions which are discussed as under: 7. It has been strenuously contended by the learned Counsel for the appellant that the story with regard to scaling of the wall while entering into the house of the prosecutrix, is totally false. 8. Having divulged over the matter. I find the argument to be plausible one. According to the prosecution, the accused entered into the house of the prosecutrix in the broad day light i.e. at about 3.00 p.m. on 8-5-1998 by scaling over the wall. It has come in evidence that the wall was about 7 feet high. The testimony of PW 2 Nirmal Singh transpires that the outer gate of the house of the prosecutrix was not latched from inside. The house of the prosecutrix is surrounded by other houses and its door opens in the street. If it was so, then the accused would have preferred to go through the door and not to scale over the wall so as to avoid creation of doubt in the minds of the neighbours. The house of the prosecutrix is surrounded by other houses and its door opens in the street. If it was so, then the accused would have preferred to go through the door and not to scale over the wall so as to avoid creation of doubt in the minds of the neighbours. It was not night time that none was there to see the accused while scaling over the wall, but it was 3.00 p.m. and the accused would have been the last person to put his life at stake while tress passing into the house in the manner as described by the prosecution. At the same time, accused had no source to know that the prosecutrix was alone in the house which also creates doubt over the prosecution version quo this aspect of the case. Even if the version set up by the prosecution is accepted that the door was latched then again the version regarding the manner in which Nirmal Singh PW 2 saw the accused inside the room of the house also creates doubt. As such it is very difficult to believe the story qua this aspect of the case. 9. It has been next contended that the solitary statement of the prosecutrix could form basis of conviction in a rape case if it Inspires confidence and is corroborated by some evidence. But in this case, the testimony of the prosecutrix if tested on the touchstone of reliability and trustworthiness, does not meet the aforesaid standards and deserves to be brushed aside. Having examined the testimony of the prosecutrix, I find myself persuaded by the aforesaid arguments. The prosecutrix made deprivation from the original version as given by her in her statement Exhibit PD on the basis of which FIR was recorded. In exhibit PD, she did not disclose that if the accused had threatened to kill her if she raised alarm. She stated in her statement in Court that the accused had removed her salwar to the extent of half. But she did not disclose the same to the police in her statement Exhibit PD. She also stated in the examination-in-chief that after satisfying his lust, the accused left her neck and then she raised alarm, but this fact also does not find mention in the statement Exhibit PD. But she did not disclose the same to the police in her statement Exhibit PD. She also stated in the examination-in-chief that after satisfying his lust, the accused left her neck and then she raised alarm, but this fact also does not find mention in the statement Exhibit PD. She also stated that her husband had come on the following day at 11.00 p.m. but this fact is contradictory to her statement Exhibit PD, It has been urged that the prosecutrix made mention of the aforesaid facts in her supplementary statement but the improvements made by the prosecutrix over her original version which was got recorded by her, 21 hours after the occurrence go to hit the veracity of the prosecutrix at the root, As such no reliance can be placed on the testimony of the prosecutrix. 10. Not only this, the prosecution has sought the support of Nirmal Singh PW2 to corroborate the statement of the prosecutrix. No reliance can be placed on the testimony of Nirmal Singh PW 2 as he cannot be said to be an eye-witness. His statement is contradictory to the testimony of the prosecutrix on material points. He has stated that he had gone to the house of the prosecutrix when he heard hue and cry "save save". He saw the accused coming out of the house of the prosecutrix. Admittedly, he did not see the accused committing rape. The only thing he saw is that prosecutrix was wearing salwar. Again there is a contradiction between the two on this point. Nirmal Singh says that prosecutrix was wearing the Salwar whereas prosecutrix states that salwar was removed by the accused up to the knees. While clarifying, Nirmal Singh says that the prosecutrix was wearing only shirt and was in the process of wearing salwar. Prosecutrix says that she had latched the door from inside whereas Nirmal Singh says that door was not latched from inside. Further more, he has stated that he did not try to inform the police, to the village Lamberdar or Sarpanch of the Panchayat about the occurrence. It could be beyond belief that, if such incident takes places with a married lady then both the prosecutrix and the witness will not inform any one and would keep waiting for a day or so. It could be beyond belief that, if such incident takes places with a married lady then both the prosecutrix and the witness will not inform any one and would keep waiting for a day or so. Had he been present on the spot then he at least would have called the husband of prosecutrix and the neighbors to inform about the high handedness of the accused. This witness states that none except him reached the spot. If the prosecutrix raised hue and cry. then obviously it must have attracted at least neighbours. Therefore, the story regarding raising of hue and cry also dashes to the ground and makes me to disbelieve the presence on Nlrmal Singh at the spot. Rather, it indicates that the prosecutrix was a consenting party. When the accused was spotted coming out of the house of the prosecutrix, then she in order to save her weakness, converted the consent in to rape and blamed the appellant of forcibly committing sexual intercourse. 11. The medical evidence also does not support the prosecution version as PW 3 Dr. J. K. Sidhu has admitted in his cross-examination that prosecutrix did not resist while committing sexual intercourse as there was no injury mark or scratch on any part of the prosecutrix including private parts. He has further admitted that, had the prosecutrix been actually subjected to sexual intercourse, then she must have suffered injuries much less on the neck or on other parts of the body particularly on her private parts. The clothes would have torn much less the string of the salwar must have been broken. Prosecutrix has no where stated that the string of the salwar was broken by the accused, which also indicates a consent made by the prosecutrix. 12. There is also inordinate delay in lodging the FIR. The occurrence, according to the prosecutrix took place on 8-9-1999 at about 3.15 p.m. Whereas, FIR was lodged in the police station on the next day at 1.50 p.m. Nirnial Singh PW 2 has stated that the police arrived in the village at 11.00 p.m. If it was so then the story of the prosecutrix that the prosecutrix went to the police station to lodge the report becomes false. Rather the arrival of the police in the village suggests the manufacturing of the prosecution version. Rather the arrival of the police in the village suggests the manufacturing of the prosecution version. Rather it appears that the police came to the village, took the prosecutrix and thereafter implicated the accused after inordinate delay of 21 hours. It is not a case of a unmarried girl that prosecutrix was hesitant in recording the FIR in the interest of saving honour of the family. The prosecutrix could call her husband from duty immediately and then lodge FIR or at least should have informed some respectables about the occurrence. The approach of the trial Court that the FIR was lodged as ordinarily lady would not put her character at stake and she must have taken some time to think over before lodging the FIR, is not correct in the Instant case. It is not the case of the prosecution that the prosecutrix did not go to the police station as she kept thinking over the honour of the family but the only plea of her not lodging the FIR is that the prosecutrix kept waiting for her husband which seems to be without merit. 13. The arguments raised by the Deputy Advocate General is that no lady would record the false FIR as she would not put her character at stake. Therefore, on this analogy, the story as set up by the prosecutrix should be believed. Mere this ground has no universal truth but each case has to be examined on the touch stone of the factual matrix thereof. A similar view has been taken by the Apex Court in a case Pandurang Sitaram Bhagwat V/s. State of Maharashtra . In this case, the story of house tress pass has been disbelieved and it was observed that the version of the prosecutrix was replete with serious contradictions and improbabilities. No injuries were found on the person of the prosecutrix. The aforesaid judgment is applicable to the facts of the present case on all fours. Had she ever made some resistance, Injuries on her private parts were bound to occur. The presence of Siemens was obvious, as within time given by the Doctor, she admittedly had committed intercourse with her husband; FIR has been lodged after an inordinate delay. It is also improbable that the accused continued catching her neck till he completed the intercourse, also does not appeal to the reason of prudent man. The presence of Siemens was obvious, as within time given by the Doctor, she admittedly had committed intercourse with her husband; FIR has been lodged after an inordinate delay. It is also improbable that the accused continued catching her neck till he completed the intercourse, also does not appeal to the reason of prudent man. The statement of prosecutrix is replete with serious contradictions and improvements. The testimony of the prosecutrix and PW 2 Nlrmal Singh lacks credibility as such no reliance can be placed upon them. 14. On consideration of the aforesaid facts and circumstances, it is clear that the prosecution has failed to prove his case beyond shadow of doubt. 15. Accordingly, the appeal is allowed. The Judgment passed by the learned Additional Sessions Judge, Ludhiana dated 14-12-2000, is set aside and the accused is acquitted of the charges framed against him. The bail bond and surety bond furnished by him are cancelled.