JUDGMENT Mr. Mehinder Singh Sullar, J.:- The challenge in this appeal, preferred by appellant-convict Ramesh Kumar son of Hoshiar Singh (for brevity “the appellant”), is to the impugned judgment of conviction 10.9.1998 and order of sentence dated 11.9.1998, by virtue of which, he was convicted and sentenced to undergo rigorous imprisonment (for short “RI”) for a period of seven years, on accusation of having committed an offence punishable under section 376 IPC by the trial Court of Additional Sessions Judge. 2. The contour of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, is that the appellant was working as driver on the truck of, whereas the prosecutrix (PW6) (name withheld) was working as labourer along with her family members on the same, brick kiln of Ram Phool. Having solemnized her marriage with Ashok Kumar 7/8 years prior to the present occurrence, she gave birth to one son and one daughter. 3. The case of the prosecution further proceeds that on 7.6.1997 at about 8.30 P.M., as soon as, the prosecutrix had gone to answer the call of nature in the fields, situated towards the western side of brick-kiln near Pipal tree, in the meantime, the appellant reached there. He made her to lie on the ground, took off his & her clothes and forcibly raped her. On hearing alarm, Vijay Pal, her brother-in-law (Jeth) (PW7) also reached there. On seeing him, the appellant picked up his clothes and ran away towards the field. She narrated the entire story to her husband as well. On 9.6.1997, the prosecutrix made her statement (Ex.PH) before SI/SHO Suresh Kumar (PW9) and thumb marked the same in token of its correctness. He made endorsement (Ex.PH/2) and sent it to the police station for registration of the case. Thereafter, she was taken to Civil Hospital, Sonepat for her medical examination. The police moved an application/request (Ex.PA), on the basis of which, she was medico legally examined by Dr.Poornima Ahuja (PW1), vide MLR (Ex.PK). 4. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecutrix claimed that on 7.6.1997 at about 8.30 P.M., the appellant has removed his & her clothes and committed forcible rape without her consent. 4. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecutrix claimed that on 7.6.1997 at about 8.30 P.M., the appellant has removed his & her clothes and committed forcible rape without her consent. In the background of these allegations and in the wake of statement (Ex.PH) of prosecutrix, the instant case was registered against the appellant, by means of FIR No.220 Dated 9.6.1997 (Ex.PH/1), for the commission of an offence punishable u/s 376 IPC by the police of Police Station Kharkhoda, Distt. Sonepat in the manner depicted here-in-above. 5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant to face the trial for the indicated offence. 6. Having completed all the codal formalities, the appellant was charged for having committed the pointed offence, by way of charge sheet dated 4.9.1997 by the trial Judge. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 7. The prosecution, in order to substantiate the charge framed against the appellant, examined PW1 Dr.Poornima Ahuja on police request (Ex.PA), by means of MLR (Ex.PK). PW2 Dr.Puran Singh Gautam, on police request (Ex.PC), medico legally examined the appellant, by virtue of MLR (Ex.PE). PW3 C. Suraj Bhan is a witness of recovery memo (Ex.PF), vide which, PW2 handed over a sealed parcel containing the underwear of appellant and one envelope containing a letter. PW4 C.Jagdish Chander is also a witness of recovery memo (Ex.PG), by way of which, Dr. Poornima Ahuja handed over a parcel containing the clothes of prosecutrix, one parcel of swabs, one envelope and sample seal, which he handed over to SI/SHO Suresh Kumar, Investigating Officer. PW5 HC Ramesh Kumar only recorded the formal FIR (Ex.PH/1) on receipt of writing (ruqqa) (Ex.PH). He has also testified about handing over the above mentioned sealed parcels, which were sent to FSL Madhuban through C.Naresh Kumar on 23.6.1997. 8. Sequelly, the next to note is the testimony of PW6 prosecutrix, who has deposed that the appellant was working as driver on the truck of brick-kiln owner Ram Phool. On the fateful day, she had gone to answer the call of nature in the fields near Pipal tree. In the meantime, appellant reached there and took her under the pipal tree. On the fateful day, she had gone to answer the call of nature in the fields near Pipal tree. In the meantime, appellant reached there and took her under the pipal tree. There, he removed his & her clothes and forcibly committed rape against her consent. Meanwhile, PW7 Vijay Pal, her brother-in-law (Jeth) reached the spot as she raised alarm. On seeing him, the appellant picked up his clothes and decamped from the spot. On reaching home, she narrated the aforesaid incident to her husband. They lodged report after two days of the occurrence, vide statement (Ex.PH). Thereafter, she was medico legally examined in the hospital. 9. Likewise, PW7 Vijay Pal, brother-in-law (Jeth) of prosecutrix, has stated that on 7.6.1997, he was working at the brick-kiln of Ram Phool at Barona. At about 8/8.30 PM, he heard the cries of prosecutrix. He reached the spot and noticed that the appellant was raping her. On seeing him, he picked up his clothes and ran away. 10. Similarly, PW8 Balwan Singh, Patwari has prepared the scaled site plan (Ex.PM) with its correct marginal notes. PW9 Suresh Kumar SI has testified that on 9.6.1997, the prosecutrix appeared before him and gave her statement (Ex.PH). After recording the statement, he read over the same to prosecutrix, who thumb marked on it as a token of its correctness. He made endorsement (Ex.PH/2) on it and sent the same to police station for registration of formal FIR (Ex.PH/1) through constable Dharambir Singh. Thereafter, he took prosecutrix to Civil Hospital, Sonepat for her medical examination. He moved an application (Ex.PA) to doctor, whereupon her medical examination was conducted. He recorded the statements of all the witnesses u/s 161 Cr.PC. 11. The prosecution has also placed reliance on endorsement (Ex.PB) made on police request (Ex.PA), affidavit (Ex.PJ) of C. Naresh Kumar and report (Ex.PL) of FSL Madhuban. This is the entire evidence brought on record by the prosecution. 12. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, the appellant has denied the prosecution evidence in its entirety and pleaded false implication. 13. Taking into consideration the entire evidence on record, the appellant was convicted & sentenced by the trial Court u/s 376 IPC in the manner described here-in-above. However, the appellant has denied the prosecution evidence in its entirety and pleaded false implication. 13. Taking into consideration the entire evidence on record, the appellant was convicted & sentenced by the trial Court u/s 376 IPC in the manner described here-in-above. 14. The appellant still did not feel satisfied and preferred the present appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter. 15. Assailing the impugned judgment of conviction, the learned counsel for appellant has contended with some amount of vehemence that there is an unexplained delay of two days in reporting the matter to the police, the story of the prosecution is highly improbable and it is a case of consent. Therefore, he prayed for acceptance of the appeal and acquittal of the appellant in this relevant connection. 16. Hailing the impugned judgment of conviction, on the contrary, the learned State counsel has urged that since there is sufficient evidence on record against the appellant, so, no interference is warranted in this appeal. 17. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be accepted in this context. 18. At the very outset, it cannot possibly be disputed here is that the legal proposition with regard to burden of proof in criminal (rape) cases was considered by the Hon’ble Apex Court in case Narender Kumar v. State (NCT of Delhi), [2012(4) Law Herald (SC) 2726] : 2012 (3) RCR (Criminal) 66. Having considered the provisions of Section 376 IPC, Sections 53 & 54 of the Indian Evidence Act and a line of previous judgments, it was observed that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on her solitary evidence and no corroboration would be required unless there are compelling reasons in this respect. At the same time, it was ruled as under (para 23):- “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. At the same time, it was ruled as under (para 23):- “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185 ; and Uday v. State of Karnataka, 2003(2) R.C.R. (Criminal) 99 : 2004(1) Apex Criminal 13 : AIR 2003 Supreme Court 1639).” 19. Such thus being the legal position and evidence on record, now the short and significant question, though important that, arises for determination in this appeal is, as to whether the prosecution was able to prove the charge of rape as defined under sections 375 & 376 IPC against the appellant or not? 20. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed in this regard. 21. As is evident from the evidence on record that the appellant and the prosecutrix were young persons of 25 years of age at the relevant time of occurrence. After solemnization of her marriage, the prosecutrix gave birth to one son & one daughter. Dr. Poornima Ahuja (PW1) on 9.6.1997 examined the prosecutrix, aged 25 years, wife of Ashok Kumar, by means of MLR (Ex.PK). She did not find any injury either on her private parts or there was no mark of injury on any part of her body. After solemnization of her marriage, the prosecutrix gave birth to one son & one daughter. Dr. Poornima Ahuja (PW1) on 9.6.1997 examined the prosecutrix, aged 25 years, wife of Ashok Kumar, by means of MLR (Ex.PK). She did not find any injury either on her private parts or there was no mark of injury on any part of her body. Sequelly, Dr.Puran Singh Gautam (PW2) did not notice any injury on the person of the appellant, aged 25 years, as per MLR (Ex.PE). The appellant was working as driver on the truck of, whereas the prosecutrix was working as labourer in the same, brick-kiln of Ram Phool. She had gone to answer the call of nature in the open field near the thatched hut (Jhuggi). Appellant reached there and brought her under the pipal tree. The prosecutrix has specifically claimed that at the first instance, he has removed his clothes. Thereafter, he removed her clothes and started committing inter-course with her. There was ample time/opportunity for her to run away to the nearby brick-kiln when the appellant was in a process of removing his clothes. Thereafter, Vijay Pal (PW7) reached the spot. He has clearly stated that when he reached there, he noticed the appellant was lying on and raping the prosecutrix. When he tried to catch hold of him, he picked up his clothes and ran away from the place of occurrence. 22. What cannot possibly be disputed here is that the prosecutrix did not raise any resistance when the appellant removed her clothes. She did not avail the opportunity of running to the brick kiln when he (appellant) was in the process of removing his clothes. If the appellant had committed forcible rape, then she would have suffered injuries on her body. No explanation whatsoever, muchless cogent, is forthcoming on the record even to suggest remotely that she offered any kind of resistance. It is highly improbable to believe that a grown up lady of 25 years would submit to a forcible intercourse without struggle. Had she struggled, there would have been some scratches on the face, the hands and the arms of the appellant as well as on her own body. It is highly improbable to believe that a grown up lady of 25 years would submit to a forcible intercourse without struggle. Had she struggled, there would have been some scratches on the face, the hands and the arms of the appellant as well as on her own body. The complete absence of any injury or scratch on the persons of the appellant and the prosecutrix in a very clear term would suggest that the intercourse was not forcible, rather she consented to it, particularly when it is not the case of the prosecution that the appellant was having any sort of weapon to scare her. Therefore, I cannot help observing in the obtaining circumstances of the case that the prosecutrix herself consented to the indicated intercourse. 23. There is yet another aspect of the matter, which can be viewed entirely from a different angle. It is a matter of common knowledge that under ordinary circumstances, it is not possible for a single man to have sexual intercourse with a healthy woman in full possession of her senses against her will after removing her and his clothes as in the present case. It is not conceivable that appellant would pick the prosecutrix from the place where she was answering the call of nature and took her under the Pipal tree (place of occurrence), removed his & her clothes and will commit rape without her consent. In this manner, the prosecutrix has concealed the genesis of the crime. Her evidence does not inspire any confidence. Moreover, there are inherent contradictions in her statement as well as in the statement of Vijay Pal (PW7). The prosecutrix has stated in her statement that she had been living at the brick kiln of Ram Phool, but a little further, she deposed that she had been living at Kharkhoda and she used to visit the brick-kiln from there. Thereafter, again she stated that she was living at the brickkiln itself when this occurrence had taken place. Not only that, even she has admitted that she took half an hour in reaching the place where she had gone to answer the call of nature, whereas PW7 deposed that it took five minutes to reach there. Thereafter, again she stated that she was living at the brickkiln itself when this occurrence had taken place. Not only that, even she has admitted that she took half an hour in reaching the place where she had gone to answer the call of nature, whereas PW7 deposed that it took five minutes to reach there. Likewise, the prosecutrix did not mention in the FIR about the pressing of her mouth with hands by the appellant at the time of commission of offence, but she has so stated while appearing as PW6 in the Court. 24. As regards the question of delay is concerned, the incident is stated to have taken place in this case on 7.6.1997 at 8.30 PM, whereas the FIR was registered at 11.40 AM on 9.6.1997. That means, there is a delay of two days in reporting the matter to the police. The explanation of delay put forth on behalf of prosecution that earlier efforts for amicable settlement were made for two days and thereafter, the FIR was registered after two days, does not inspire any confidence. Not even an iota of evidence is forth coming on record even to suggest remotely that any biradari panchayat was convened or the appellant was ever summoned in the alleged panchayat. Hence the story/explanation put forth by the prosecution is not convincing and pales into insignificance in the absence of any cogent evidence on record in this direction. 25. Therefore, if the fact of highly improbable version of the prosecution, unexplained, inordinate delay in reporting the matter to the police, insufficient, contradictory evidence of PW6 & PW7 and aboveall, the pointed consent of the parties are put together, then, to my mind, the conclusion is inescapable and irresistible that it is a case of consent and the evidence brought on record by the prosecution falls short as is required to prove the charge of rape as envisaged u/ss 375 & 376 IPC, which entails the benefit of doubt and acquittal to the appellant as well. The ratio of law laid down by Hon’ble Supreme Court in Narender Kumar’s case (supra) is fully applicable to the facts of this case and is the complete answer to the problem in hand. 26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 27. The ratio of law laid down by Hon’ble Supreme Court in Narender Kumar’s case (supra) is fully applicable to the facts of this case and is the complete answer to the problem in hand. 26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 27. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the appellant is acquitted of the charge framed against him. Needless to mention that the necessary compliance and procedural consequences would follow. ---------0.B.S.0------------