JUDGMENT This appeal is directed against judgment dated 29-4-2002 passed by 3rd Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 366/2001. By the impugned judgment, accused/appellant Debara has been convicted for offence under Section 376(1) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years. 2. Case of the prosecution, in brief, is as under: On the date of incident, i.e., 5-6-2001, prosecutrix (PW-1) was a married woman of 40 years. On that date, she was in her house along with her son and her husband had gone to field for agricultural work. At about 4.00 p.m., the appellant came to the house of the prosecutrix (PW-1) with liquor and eggs. He asked the prosecutrix (PW-1) to cook eggs. The prosecutrix (PW-1) cooked the eggs. Thereafter, the appellant drank the liquor and ate the eggs. Having seen the wounds of the son of the prosecutrix (PW-1), the appellant told to the prosecutrix (PW-1) that he knew the medicinal plant which was found in the forest. The prosecutrix (PW-1) went to the forest along with the appellant. When she was digging the plant, the appellant caught the prosecutrix (PW-1), gagged her mouth, threw her on the ground and committed sexual intercourse with her against her will. The appellant threatened the prosecutrix (PW-1) of life. The prosecutrix (PW-1) raised alarm. Having heard her shout, Lal Singh (PW-3), Budharu (PW-5) and one Torka came there. They witnessed that the appellant was committing sexual intercourse with the prosecutrix (PW-1). Having seen them, the appellant fled from there. The appellant threatened the prosecutrix (PW-1) that if she will narrate the incident to anyone, he will kill her and her husband too. The prosecutrix (PW-1) narrated the incident to her husband. A panchayat was called in the village. In the village panchayat, the prosecutrix (PW-1) narrated the incident. The appellant was also called in the panchayat, but the appellant refused that he committed sexual intercourse with the prosecutrix (PW-1). The prosecutrix (PW-1) lodged First Information Report (Ex. P/1) in Police Station Bhanpuri. The prosecutrix (PW-1) was sent to Civil Hospital, Bhanpuri for medical examination vide Ex. P/10. Doctor A. Kachhap (PW-4) examined the prosecutrix (PW-1) and gave her report (Ex.P/5), in which she found (1) multiple abrasions O.3 x 0.1 cm. over left breast caused by hard projecting part of object, (2) abrasion 1 x ?½ cm. P/1) in Police Station Bhanpuri. The prosecutrix (PW-1) was sent to Civil Hospital, Bhanpuri for medical examination vide Ex. P/10. Doctor A. Kachhap (PW-4) examined the prosecutrix (PW-1) and gave her report (Ex.P/5), in which she found (1) multiple abrasions O.3 x 0.1 cm. over left breast caused by hard projecting part of object, (2) abrasion 1 x ?½ cm. on the left joint of shoulder caused by hard projecting part of object, (3) multiple linear abrasions each about 5 x 0.1 cm. caused by hard pointed object on right aspect of back of trunk, (4) multiple linear abrasions 0.3 x 0.2 cm. caused by hard projecting part of object on the left back of trunk and (5) abrasion 1 x ?½ cm. on joint of right shoulder caused by hard projecting part of object. Doctor A. Kachhap (PW-6) prepared two slides of vaginal swab of the prosecutrix (PW-1). The appellant was also sent for medical examination to Civil Hospital Bhanpuri vide Ex. P/12. Doctor K. S. Paikara (PW-8) examined the appellant and gave his report (Ex.-P/21), in which he found that the appellant could perform the act of sexual intercourse. In further investigation, saree and piece of lungi were seized from the prosecutrix (PW-1) vide Ex.-P/9. Slides were also seized vide Ex. P/14. Underwear of the appellant was seized from the appellant vide Ex. P/15. An axe was seized from the appellant vide Ex. P/16. Site map (Ex. P/17) was prepared. The appellant was arrested vide Ex. P/18. The seized articles were sent to Forensic Science Laboratory (FSL), Raipur for examination vide Ex. P/19. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Court of Session, Bastar at Jagdalpur, from where it was received on transfer by 3rd Additional Sessions Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Subhash Yadav, learned counsel for the appellant argued that First Information Report (Ex. P/1) was lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for the offence punishable under Section 376(1) IPC. He further argued that the prosecution case is highly improbable. 3. Shri Subhash Yadav, learned counsel for the appellant argued that First Information Report (Ex. P/1) was lodged belatedly. He further argued that the trial Court has grossly erred in holding the appellant guilty for the offence punishable under Section 376(1) IPC. He further argued that the prosecution case is highly improbable. On close scrutiny of the evidence available on record, possibility of the prosecutrix (PW-1) being a consenting party cannot be ruled out. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 4. On the other hand, Shri Ashok Dubey, learned Panel Lawyer appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 366/2001. 6. I shall first deal with the question of delay in lodging the First Information Report (Ex. P-1). 7. The prosecutrix (PW-1) deposed that on the date of incident she was in her house along with her son. Her husband had gone to the field for agricultural work. The appellant came to her house and having seen wounds of her son, the appellant told her that he knew the medicinal plant which was found in the forest. Having heard this, she went to the forest along with the appellant for digging the medicinal plant. She further deposed that when she was digging the plant, the appellant caught her, gagged her mouth, threw her on the ground and committed sexual intercourse with her against her will. She further deposed that she narrated the incident to her husband. A panchayat was called in the village. She was examined by the panchayat. The appellant was also called in the village panchayat. She narrated the incident before the panchayat. In the village panchayat, the appellant denied the incident and did not agree for settlement. She further deposed that she lodged the First Information Report (FIR) (Ex. P/1) in Police Station Bhanpuri. 8. Budaruram (PW-2, husband of the prosecutrix (PW-1)) narrated the incident to him. Lal Singh (PW-3) also narrated the incident to him. He further deposed that a panchayat was called in the village and the prosecutrix (PW-1) narrated the incident before the panchayat but the appellant denied the allegation. Thereafter, his wife (prosecutrix (PW-1)) lodged the FIR (Ex. P/1). 9. 8. Budaruram (PW-2, husband of the prosecutrix (PW-1)) narrated the incident to him. Lal Singh (PW-3) also narrated the incident to him. He further deposed that a panchayat was called in the village and the prosecutrix (PW-1) narrated the incident before the panchayat but the appellant denied the allegation. Thereafter, his wife (prosecutrix (PW-1)) lodged the FIR (Ex. P/1). 9. Sub-Inspector Sushil Malik (PW-9) deposed that the prosecutrix (PW-1) lodged the FIR (Ex. P/1) on 6-6-2001. The date and time of the incident was 5-6-2001, at about 4.00 p.m. The FIR (Ex. P/1) was lodged on 6-6-2001, at about 7.30 p.m. The distance between the place of occurrence and the police station is 16 kms. The reason for delay in lodging the FIR (Ex. P/1) is mentioned therein as holding of panchayat. Ex. P/3 and P/4 are letters which were sent by Sarpanch and other villagers of Gram Panchayat, Pipalawand to Police Station Bhanpuri. Looking to Ex. P/3 and P/4, it appears that a village panchayat was held on 6-6 2001 and thereafter, the prosecutrix (PW-1) lodged the FIR (Ex. P/1) in Police Station Bhanpuri. Therefore, the explanation offered by the prosecution for delay in lodging the FIR (Ex. P/1) is plausible and reliable and the delay in loding the FIR (Ex. P/1) is not fatal to the case of the prosecution. 10. Now, I shall examine whether the evidence of the prosecutrix (PW-1) is cogent, trustworthy and can be based for conviction. 11. The prosecutrix (PW-1) deposed that on the date of incident she was in her house along with her son. Her husband had gone to the field for agricultural work. The appellant came to her house and having seen the wounds of her son, the appellant told her that he knew the medicinal plant which was found in the forest. Having heard this, she went to the forest along with the appellant for digging the medicinal plant. She further deposed that when she was digging the plant, the appellant caught her, gagged her mouth, threw her on the ground and committed sexual intercourse with her against her will. She further deposed that when she tried to raise alarm, the appellant threatened her of life. Having heard her shout, Lal Singh (PW-3) and Budharu (PW-5) came there. Having seen them, the appellant fled from there. She further deposed that when she tried to raise alarm, the appellant threatened her of life. Having heard her shout, Lal Singh (PW-3) and Budharu (PW-5) came there. Having seen them, the appellant fled from there. She further deposed that she came to her house and narrated the incident to her husband. The appellant threatened her husband of his life. In the cross examination, she deposed that the appellant committed forcible sexual intercourse with her for about 1-1?½ hours. She further deposed that the appellant came to her house with liquor and eggs and it is also true that the appellant drank liquor and ate eggs in her house. In her cross-examination, in para 7, she deposed that at the time of committing sexual intercourse, the appellant was not having any arms. She further deposed that the appellant was not ready to compromise, therefore, she lodged the FIR (Ex. P/1) against the appellant. She deposed that on being asked by the appellant, she went to the forest along with him. It is also true that she followed the appellant. Lal Singh (PW-3) deposed that he had gone to the forest for cutting bushes of wood. He witnessed that the prosecutrix (PW-1) and the appellant were in compromising position. Budharu (PW-5) also deposed in similar fashion. Budharu (PW-5) deposed that it is true that he and Lal Singh (PW-3) witnessed the prosecutrix (PW-1) in compromising position. Therefore, a panchayat was called in the village. It is also true that Budaruram (PW-2) demanded money from the appellant but the appellant denied to give money, therefore, the prosecutrix (PW-1) lodged the FIR (Ex. P/1). Budaruram (PW-2, husband of the prosecutrix (PW-1)) deposed that in the village panchayat, the appellant denied the incident and he was not ready to give money, therefore, the FIR (Ex. P/1) was lodged. He further deposed that had the appellant been ready to give fine amount, he would have left the prosecutrix (PW-1) in the house of the appellant. Lal Singh (PW-3) and Budharu (PW-5) deposed that the prosecutrix (PW-1) did not disclose the incident to them. The prosecutrix (PW-1) deposed that the appellant embraced her for about ?½ hours. She did not sustain any injury on her back. 12. Lal Singh (PW-3) and Budharu (PW-5) deposed that the prosecutrix (PW-1) did not disclose the incident to them. The prosecutrix (PW-1) deposed that the appellant embraced her for about ?½ hours. She did not sustain any injury on her back. 12. Looking to the evidence of the prosecutrix (PW-1), Lal Singh (PW-3) and Budharu (PW-5), it is apparent that the prosecutrix (PW-1) was a consenting party in the commission of sexual intercourse, therefore, the conviction of the appellant cannot be based on the evidence of the prosecutrix (PW-1). 13. The evidence of the prosecutrix (PW-1) and her unnatural conduct would go to show that the prosecutrix (PW-1) was consenting party to the commission of sexual intercourse, therefore, the evidence of the prosecutrix (PW-1) cannot be based for conviction of the appellant. 14. On the basis of the aforesaid discussion, I am of the view that the learned trial Court has committed an error in convicting the appellant for the offence punishable under Section 376(1) IPC. Hence, the impugned judgment of conviction and sentence is not sustainable. 15. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 376 (1) IPC are set aside. He is acquitted of the charge framed against him. It is stated that the appellant is in jail. He be released forthwith, if not required in any other case. Appeal allowed.