JUDGMENT 1. - Being aggrieved by his conviction under section 376 IPC and the sentence of seven years rigorous imprisonment and a fine of Rs. 500/-, in default whereof the appellant was required to undergo six months further rigorous imprisonment vide the judgment and order dated 07.05.1987 passed by the learned Additional Sessions Judge, Jhalawar in Sessions Case No.72/85, this appeal has been preferred. 2. I have heard Mr.Rinesh Gupta, learned counsel for the appellant and Mr.J.R.Bijamia, learned Public Prosecutor for the State. 3. The prosecution case is traceable to a written information that was lodged on 23.01.1985 with the officer in-charge, Aklera Police Station by Bali bhai, the prosecutrix, alleging that on 21.01.1985 at about 12 noon, while she had herding her cattle in her field, the appellant, who was her cousin brother, also working in the field, finding her alone, committed forcible intercourse with her. It was stated further that she having raised alarm, her brother Ballabh (PW3), who was also in a nearby field, rushed to the place of occurrence and saw the actual act of coitus. She alleged that due to the force applied on her, her wearing apparel got torn and further wet by the semen of the appellant. It was stated that she having informed her parents about the incident later in the day, the father of the appellant was confronted with the accusation and eventually, it was decided to lodge the information. 4. The police started investigation on this report and eventually submitted a charge-sheet under section 376 IPC. He having denied the charge, was made to stand trial. The prosecution examined the prosecutrix, her father, her brother Ballabh and Dr.Arvind Kumar Bohra, who had medically examined the victim. The appellant, in course of the examination under section 313 Cr.P.C., denied the charge. He further stated that there was a subsisting enmity between the two families, for which he had been falsely implicated. He also alleged that he had been brutally assaulted by the father of the prosecutrix and his relatives and the FIR was lodged, thereafter as a preemptive step against possible police action at his instance. The learned trial court, however, convicted and sentenced the appellant as above. 5. Mr. Gupta has, at the first instance, questioned the trustworthiness of the case of the prosecution on the ground of delay in lodging of the written report. The learned trial court, however, convicted and sentenced the appellant as above. 5. Mr. Gupta has, at the first instance, questioned the trustworthiness of the case of the prosecution on the ground of delay in lodging of the written report. He contended as well that the versions of the prosecutrix in the FIR and in her evidence, at the trial, were contradictory rendering her unreliable. He urged as well that the testimony of PW3 Ballabh, the brother of the prosecutrix, claimed to be an eye-witness, did demolish the case of the prosecution as a whole. Underling the factum of subsisting animosity between the families of the appellant and the prosecutrix, learned counsel has argued with reference, in particular, of the written report, Exhibit-Dl lodged by him (appellant) on 22.01.1985 with the officer in-charge, Aklera Police Station alleging assaults on him by Moti Lai (PW2), father of the prosecutrix, and others inflicting serious injuries on him to contend that he (appellant) has been falsely implicated. 6. Mr.Bijarnia, per contra, has argued that the evidence of the prosecutrix read as a whole being reliable, it would constitute a valid foundation for conviction of the appellant. As the testimony of the prosecutrix and her brother is cohesive and acceptable on all material particulars the prosecution could prove the charge against the appellant beyond all reasonable doubt and thus, no interference with the impugned judgment and order is called for, he urged. Apart from contending that the marginal delay in filing of the FIR had been adequately explained, the learned Public Prosecutor pleaded against interference with the impugned decision insisting that it is a well considered and a reasoned verdict. 7. I have duly considered the materials on record and have analyzed the arguments advanced. 8. Abare perusal of the written report, Exhibit-Pl lodged by the prosecutrix discloses in clear terms that on hearing her screams, while the appellant allegedly was performing the act of intercourse, her brother Ballabh (PW3) had rushed to the place of occurrence and was an eye-witness thereto. The prosecutrix, in her statement on oath, however, stated that Ballabh (PW3) had reached the place of occurrence after the offending act was over. She also did not disclose to him the incident. In cross-examination, the prosecutrix elaborated that the appellant did commit the act for about 15 months, during which she continuously screamed and raised alarm. 9. The prosecutrix, in her statement on oath, however, stated that Ballabh (PW3) had reached the place of occurrence after the offending act was over. She also did not disclose to him the incident. In cross-examination, the prosecutrix elaborated that the appellant did commit the act for about 15 months, during which she continuously screamed and raised alarm. 9. PW2 Moti Lai is a reported witness. In cross-examination, he admitted that on the date of occurrence, there was a confrontation between him, the appellant and his father, in course whereof he (appellant) received injuries being hit by lathi. 10. PW3 Ballabh stated that on the date of occurrence at the time specified, he was also in a nearby field and on returning therefrom, he saw the appellant and the prosecutrix, the latter was weeping and he having enquired of her, she stated that he (appellant) had caught her. This witness was not declared hostile. 11. PW6 Dr.Arvind Kumar Bohra stated on oath that he had medically examined the victim on 23.01.1985 at about 2.00 P.M. and considered that no final opinion about commission of rape on her was possible to be rendered. He proved the medical report, Exhibit-5 based on his findings which did not disclose any external injury on the body of the victim. In cross-examination, he deposed that though the prosecutrix was a married woman, it was likely that if force would have been applied on her while committing rape on her, injuries could have been sustained on her private parts and other parts of her body. 12. Though, it is no longer res integra in a case of sexual assault on a woman that the evidence of the prosecutrix, if reliable, can form the basis of conviction, in the facts and circumstance of the present case, on a cumulative reading of the testimony of victim and her brother PW3, it is considered to be highly unsafe to return a finding of culpability of the appellant vis-a-vis the charge levelled against him. Not only her recital in the FIR that her brother (PW3) was an eye-witness to the incident was clearly departed from by her in her testimony at the trial, she omitted to mention about the incident to him. PW3 as well did not support the prosecutrix either on the commission of any forcible intercourse with her or the involvement of the appellant in such an act. PW3 as well did not support the prosecutrix either on the commission of any forcible intercourse with her or the involvement of the appellant in such an act. Though, the prosecutrix in her cross-examination claimed that she had been forcibly raped and that the act continued for 15 minutes, during which she kept on screaming but none had come, though the place of occurrence was near a public road, absence of injury either on her private parts or any other part of her body indeed weighs against the veracity of her accusations. 13. A plain reading of the written report, Exhibit-Dl lodged by the appellant on 22.01.1985 that is before the written report was laid by the prosecutrix in clear terms mentions about assaults on him by her (prosecutrixs) father and others resulting in multiple injuries on his body including his head. 14. Noticeably, PW2, father of the prosecutrix, did admit of an injury on the appellant caused by lathi in course of a confrontation with him (PW2). In this factual backdrop, the appellants assertion of having been falsely implicated cannot be lightly brushed aside. Furthermore, having regard to the state of evidence on record, it cannot be concluded that the prosecution has been able to prove the charge beyond all reasonable doubt against him. 15. In the overall premise, the impugned judgment and order cannot be sustained. It is thus, set aside. The appellant is acquitted and exonerated of the charge. He is thus, set at liberty. The bail bonds stand discharged. The appeal is allowed. The office would remit the records. *******