JUDGMENT: 1. These two appeals by two accused can be conveniently disposed of together since they arise out of the same judgment in the common Sessions trial. 2. Criminal Appeal No.296 of 2006 is preferred by accused no.1 Arun while criminal Appeal No.518 of 2006 is preferred by accused no.2 Ashok. Both the accused have been convicted under Sections 376, 366, 341, 342 and 506 of the Indian Penal Code. They are sentenced to rigorous imprisonment for a period of ten years for having committed offence punishable under section 376 of Indian Penal Code, Rigorous imprisonment for a period of ten years for having committed offence punishable under Section 366 of the Indian Penal Code, rigorous imprisonment for a period of one month for having committed offence punishable under Section 341 of Indian Penal Code, rigorous imprisonment for four months for having committed offence punishable under Section 342 of the Indian Penal Code and rigorous imprisonment for six months for having committed offence punishable under Section 506 of the Indian Penal Code. The appellants shall hereinafter be referred to as accused no.1 and 2. 3. The complainant (prosecutrix) is married to one Moreshwar and is aged 25 years. On 10/7/2003 she had altercation with her husband. Around 8 O'clock in the night, she left the house angrily, and went to her uncle's house in the same village. She stayed there overnight. On the next day morning she left the house of her uncle around 7 a.m. and started going to her parent village on foot. While she was so going, accused no.1 and 2 came from behind on a motor cycle and asked her where she was going. She told that she was going to her parents house at Khairanji. Accused no.1 Arun asked her to sit on the motor cycle and said that he would reach her. She refused. Accused no.1 Arun caught hold of her hand, made her to sit on the motor cycle and took her to the house of one Amrut r/o Lakhapur village. Wife of Amrut was present at home. Accused no.1 Arun asked Amrut's wife to convince the complainant that accused Arun would reach her to parents house. The complainant refused. Then accused no.1 Arun asked Amrut's wife to reach the complainant up to the road. She reached her on the road from her own house. Accused came on the main road behind her. Accused no.1 Arun asked Amrut's wife to convince the complainant that accused Arun would reach her to parents house. The complainant refused. Then accused no.1 Arun asked Amrut's wife to reach the complainant up to the road. She reached her on the road from her own house. Accused came on the main road behind her. Arun stopped the motor cycle, once again caught hold of both her hands and forcibly made her to sit on the motor cycle by twisting her hand. They took her up to river near village Pindakapar. The river was in flood. They could not go ahead. The complainant offered to stay there until the water receded but the accused refused to leave her there. She was not allowed to get down from the motor cycle and they went on motor cycle to village Tangala. They gave a threat that if she shouts they would beat her. When they reached there, it was 8 or 9 O'clock in the night. One old man and a boy were in the house. Arun then went away leaving her there. Accused no.2 Ashok stayed in the said house. He took her inside the house, closed the door, made her to fall on the cot and committed sexual intercourse with her. It is alleged that he has had sexual intercourse with the complainant thrice in the night. Next day morning, accused no.1 Arun came there and Ashok went away. It is alleged that accused Arun once again forcibly caught hold of the hands of the complainant, made her to sit on the motor cycle and took her under a Mohwa tree which was 2 kms. away in the forest. This was at 9 O'clock in the morning. It is alleged that accused no.1 Arun had forcible intercourse with her four times. At 5 O'clock, Arun took her to one house at village Akola. He told inmates of the house that the complainant was the younger brother's wife. The complainant, however, told that she is not his relative and she belongs to Gond caste. Since the wife of the owner of that house was from village Khairanji, the complainant stayed there overnight. On the next day, i.e. on 13/7/2003 the owner of the house by name Gunderao reached her at husband's house at Fulzari at 11 O'clock in the morning. Since the wife of the owner of that house was from village Khairanji, the complainant stayed there overnight. On the next day, i.e. on 13/7/2003 the owner of the house by name Gunderao reached her at husband's house at Fulzari at 11 O'clock in the morning. The complainant thereafter lodged the report in the Police Station on 14/7/2003. 4. The Police carried out the investigation. They seized the motor cycle. They seized the clothes on the person of the complainant as well as accused persons. They also seized the bed sheet, recorded the statements of the witnesses and filed the charge-sheet. 5. The learned Magistrate committed the case to the court of Sessions. The court of Sessions, upon consideration of the evidence, found the accused guilty and sentenced them as stated earlier. 6. I have heard the learned counsel for the accused nos.1 and 2 and the learned Additional Public Prosecutor for the State. 7. The present case is not one of gang rape for two reasons. Firstly, there is no charge under Section 376(g) of the Indian Penal Code and secondly rape was allegedly committed by two different accused at two different places at two different times and in the absence of each other. Hence, the presumption under Section 114A of the Evidence Act is not available in this case. For this reason alone the decision cited by the learned Additional Public Prosecutor reported in (2003)8 SCC 551 (Bhupinder Sharma ..vs.. State of Himachal Pradsh) has no bearing on the case at all. The accused have been convicted under Section 366 of the Indian Penal Code. The Section speaks of abduction or kidnapping with a view to seduce a woman to have illicit intercourse. Firstly, the complainant is a married woman, aged 25 years. The report itself discloses that she had left the house of her husband due to the quarrel with him. Thus, she had left the house of her husband voluntarily. It is stated by PW 6 complainant (prosecutrix) that on Thursday night she stayed at the house of her uncle overnight in the same village and on the next day morning she left the house of her uncle. She states that on the next day, she started going to Khairanji village and accused met her near Lakhapur and they were riding the motor cycle. She states that on the next day, she started going to Khairanji village and accused met her near Lakhapur and they were riding the motor cycle. She stated that accused no.1 Arun asked her where she was going and she told him that she wanted to go to Kharanji at the house of her parents and accused offered to leave her there but she refused. She states further that accused followed her and then gave her threat to beat and forcibly made her to sit on the motor cycle. She states that she was taken to house of one Amrut in Lakhapur and accused requested Amrut's wife to let the complainant stay for some time and that they would reach her to Khairanji. She states that Amrut's wife refused to let complainant stay there and reached her up to the main road inspite of the refusal of the complainant. She states further that accused again followed her and again made her to sit on the motor cycle and then took her towards Kharanji but as the river was in flood, she asked them to leave her but they refused and by twisting her hand, she was made to sit on motor cycle once again. She further states that she was then taken to a jungle and kept in jungle from 12 noon to 6 p.m. Further she states that thereafter accused Arun went to village Tangla to find out a house and he came back and again took the complainant to the house at the corner of the village. She further states that nobodyelse was present in the house and accused confined her in the house. She further states that accused Arun left that house and accused no.2 Ashok took her inside the house, closed the door and had sexual intercourse with her twice or thrice in the night. She further states that accused Arun came next day morning and accused no.2 Ashok left the house. She further goes on to depose that accused no.1 Arun then took her under the tree in Mowha Jungle and had sexual intercourse with her twice in the jungle. She further states that she was kept in the jungle till 6 p.m. and in the evening accused Arun took her to village Akola. She further goes on to depose that accused no.1 Arun then took her under the tree in Mowha Jungle and had sexual intercourse with her twice in the jungle. She further states that she was kept in the jungle till 6 p.m. and in the evening accused Arun took her to village Akola. She further states that she was taken to the house of one person, but accused no.1 Arun went out, she left that house and came to the house of one Pramila, who is known to the complainant. She gave the information to Pramila. Then husband of Pramila next day morning reached the complainant to her husband's house. She further states that she narrated the incident to her husband and then she lodged the report with the police. This is her evidence. 8. The evidence as stated above is uninspiring. Had she been taken forcibly by the accused, the first opportunity she had was at village Lakhapur itself. She was at Lakhapur and if Amrut's wife was not ready to keep her at her house, she could have called any other villager and narrated her plight that she was being kidnapped. She does not tell any neighbour of Amrut, she does not shout for help. Amrut's wife is not examined to prove that the accused were taking her against her will. She also admits that there are 2-3 villages in between Fulzari and Pindkapar. She does not invite anybody's attention while passing through the village. She says that she was kept alone in the jungle from 12.00 to 6.00 p.m. and then at 6.00 p.m. she was taken by Arun to Tangala village. There is no explanation from her why she did not go away from that place during all six hours and continued to be there only. She tells a complete lie that she was taken at a house by accused no.1 Arun at Tangala village where nobody was present in the house. Her own report Exh.60 clearly goes to show that an old man and a boy were present in the house. This is a very material contradiction which totally affects her veracity. If those persons were present in the house, there was no reason why she did not tell them that she was kidnapped and she should be helped. She did not shout to collect the neighbours and help her. This is a very material contradiction which totally affects her veracity. If those persons were present in the house, there was no reason why she did not tell them that she was kidnapped and she should be helped. She did not shout to collect the neighbours and help her. The prosecution has examined a person in whose house they had allegedly stayed. It has come in the cross-examination of PW 1 Pandurang that he and his son were at home on that day in the night. It is further in his cross-examination that he, his son, Ashok – accused no.2 and the complainant slept in the varandah of the house in the night. It has also come in the evidence further that Varandah is open on all three sides. The evidence, therefore, shows that all were sleeping together. It is, therefore, quite improbable that accused no.2 Ashok would commit intercourse and that too forcibly in presence of PW 1 Pandurang and his son Maniram. Pandurang does not say that any forcible sexual intercourse was committed by accused no.2 Ashok with the complainant or she was taken inside the room by Ashok – accused no.2. The evidence does not go to show that she was confined. In order that story of rape should be found truthful, she tells in the court contrary to her own report that nobodyelse was present in the house. From the above evidence, it is clear that her statement that he was taken inside the house, the door was closed by accused no.2 Ashok and she was raped, can in no case be accepted. PW 6 – the complainant says that she was taken by accused no.1 Arun next day with him in the morning on motor cycle. Even PW 1 Pandurang says so. Even while leaving the house of Pandurang next day morning she does not protest and ask Pandurang and his son or even their neighbours to help her. This conduct of the complainant at the house at Tangala clearly goes to show that she had voluntarily come with the accused persons. She was not confined, she was not raped. Had she really been brought forcibly, confined and raped, at lest next day morning she would have sought help of Pandurang and Maniram and their neighbours. She does not do that. 9. She was not confined, she was not raped. Had she really been brought forcibly, confined and raped, at lest next day morning she would have sought help of Pandurang and Maniram and their neighbours. She does not do that. 9. It is her case that accused no.1 Arun took her to jungle next day morning and committed rape. She says that she was kept in the jungle for six hours. Even during these six hours the complainant did not try to run away. This conduct of the complainant also goes against her. The story of she being subjected to rape there under the Mowha tree also has to be ruled out as totally false. It is stated by PW 1 Pandurang that during night it was raining heavily. Even PW 6-the complainant -has stated that the river was in flood. Obviously, it had rained very heavily. Earth under the tree in the jungle, therefore, ought to be quite wet and muddy. The clothes of the complainant and the accused Arun were seized under the panchanamas Exh.62 and 72 respectively. They do not show any mud or earth stuck on any of the clothes on the persons of the prosecutrix or the accused. Further, in the seizure memo (Exh.62) of clothes of the complainant, it is mentioned that stains of semen were found on the Saree, petticoat and underwear. If the C.A.report (Exh.32) is seen, it shows that neither blood nor semen nor spermatozoa is found even on the underwear of the complainant. It is her case that she was subjected to intercourse on 5 to 6 occasions during one night and the next day. It is just incredible that not even one stain of semen or spermatozoa is found even on her underwear, vaginal swab, leave aside the petticoat and Saree. 10. Though it is stated by PW 6 complainant that accused had taken her to house of one person at Akola – a village and then she went to house of one Pramila, neighter Pramila nor her husband have been examined to prove whether the complainant had told that she was kidnapped and subjected to forcible intercourse. The only conclusion that can be drawn from this is that had they been examined, they would not have supported the case of the prosecution. The only conclusion that can be drawn from this is that had they been examined, they would not have supported the case of the prosecution. The next thing that carries much weight is that the complainant admittedly did not carry even a single pie when she left the house of her husband to go to her parents house which is more than 40 kms. away. The fact is that she did not have any money suggests that she voluntarily accepted to go with accused persons and they took her around, as the river was in flood. 11. The only conclusion that can be drawn from the above facts and the evidence is that the complainant had gone voluntarily with the accused, she was neither confined nor kidnapped nor raped. 12. If at all any intercourse had taken place, that ought to be said to be with her consent. The above circumstances definitely go to suggest that there was implicit consent of the complainant. She moved around with the accused persons and if she has had sexual intercourse, it was with consent. 3. Mr. Sonare, learned A.P.P., has referred to one decision of the Supreme Court reported in (1998)8 SCC 635 (Ranjit Hazarika ..vs.. State of Assam). This case has no bearing on the case at hand since the decision deals with the question as to whether full penetration is necessary for a proof of rape. In the instant case, I find that there was no intercourse at all and if there was any it was with consent. The last circumstance which adversely affects the veracity and truthfulness of the prosecution is that the report has been lodged quite late. The report (Exh.60) shows that complainant came back home on 13/7/2003 and the report is lodged on 14/3/2003 at 3.00 p.m. There is no explanation as to why the report was not lodged immediately. The delay has to be considered in the context of the facts established above and if those facts are taken into consideration, the delay in this case can be said to be fatal. In the circumstances, after taking a stock of the entire facts and evidence, I find that the prosecution has miserably failed to prove the case of kidnapping, confinement and rape. In the circumstances, both appeals must succeed. The appeals are allowed. Both the accused are acquitted of the offences for which they were convicted. In the circumstances, after taking a stock of the entire facts and evidence, I find that the prosecution has miserably failed to prove the case of kidnapping, confinement and rape. In the circumstances, both appeals must succeed. The appeals are allowed. Both the accused are acquitted of the offences for which they were convicted. The accused are reported to be in jail. They be set at liberty forthwith if not required in any other case. Appeals allowed.