JUDGMENT : Sadhana S. Jadhav, J. 1. The appellant herein is convicted for offence punishable under section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years by Ad-hoc Additional Sessions Judge-II Nashik in Sessions Case No. 48 of 2011 vide Judgment and order dated 28/12/2011. Hence, this appeal. Such of the facts necessary for the decision of this appeal are as follows. The prosecutrix herein was married in 2004 and was residing with her husband at Kasabepada. Her in-laws were residing on the agricultural farm Bhanasmet. On 26/09/2010, at about 7.00 am, she had gone to the agricultural farm for carrying out agricultural operations. At about 5.00 pm, she had taken leave from her mother in law and had informed her that she was going home. That Walu Badade was also going in the same direction and therefore, her mother-in-law asked her to go with him. On the way they met Pintu i.e. present appellant who invited Walu to have some cucumbers. Both of them had stopped, however, the prosecutrix proceeded further. While she was passing from front of the farm of Balwant Bendkule, the accused followed her, approached her, pulled the basket from her head and forcibly took her to a spot near a tree at about 5.30 pm. He ravished her and threatened her of dire consequences in the eventuality she disclosed about it to anybody. The prosecutrix returned to the house of her in-laws at Bhanasmeth and narrated the incident to them. Her in-laws then went to the Police Patil Somnath Bhadade along with her and then they went to Harsul Police Station and lodged a report on the basis of which, crime No. 34 of 2010 was registered against the accused on 27/09/2010 at about 4.15 pm. The prosecutrix was referred for medical examination to civil hospital Nashik. Investigation was set in motion. The accused was arrested on 15/10/2010. He was in custody till 23/06/2011. He was then taken into custody after conviction on 28/12/2011. The investigation was completed and charge-sheet was filed. Prosecution has examined 4 witnesses to bring home the guilt of the accused. 2. P.W. 1 is the prosecutrix. She has deposed before the Court that she had got married about an year before the incident. That the incident had occurred during Pitrupaksh. The incident had occurred in the land of one Walu Balwant. Prosecution has examined 4 witnesses to bring home the guilt of the accused. 2. P.W. 1 is the prosecutrix. She has deposed before the Court that she had got married about an year before the incident. That the incident had occurred during Pitrupaksh. The incident had occurred in the land of one Walu Balwant. In her examination-in-chief she has deposed in consonance with her first information report. That she has proved the contents of the F.I.R. which is at exhibit 31. She has specifically stated that accused had shut her mouth and therefore, she could not raise any cry. That her red and green coloured bangles were broken. In the cross-examination, she has admitted that the police patil of the village is her close relative and also the co-brother of her father-in-law. Her maternal aunt Laxmibai is the wife of police patil. The first wife of police patil had contested elections for Sarpanch against the maternal cousin of accused and that the accused was campaigning for rival party. That her allegation that Walu had gone with the accused to have cucumbers and that the accused had come running from behind and shut her mouth, that she was dragged near a tree are all in the nature of an omission. The prelude to the incident is a material omission. In fact, P.W. 3 Walu was in close proximity and could have rescued her. 3. P.W. 2 Kashinath Khode is the father-in-law of the prosecutrix. On the date of incident he had gone to Harsul. He returned at 6.00 pm and at that time, except his daughter Malabai, nobody was at home. His daughter had informed him that prosecutrix had gone to Waghere and therefore, he went to Harsul Police Station at 10.00 pm. That they waited there till the officer came on the next day at about noon. In the cross-examination, he has categorically stated that he does not remember as to whether the statement was read over to him by the police. 4. P.W. 3 Walu Badade is material witness who was in the company of the prosecutrix. According to him, the mother-in-law of prosecutrix had told him to accompany the complainant to her house. On the way, they met the accused. While, the accused was fooling him and teasing him the bullocks went astray and therefore, he followed the bullock. In the meanwhile, prosecutrix went ahead. According to him, the mother-in-law of prosecutrix had told him to accompany the complainant to her house. On the way, they met the accused. While, the accused was fooling him and teasing him the bullocks went astray and therefore, he followed the bullock. In the meanwhile, prosecutrix went ahead. That the accused followed her and thereafter, he learnt about the incident. In the cross-examination he has deposed that the police had not recorded his statement and that he is illiterate. No doubt, his name finds place in list of witnesses annexed to the charge-sheet. 5. P.W. 4 Vasant Pathave is investigating officer. He has deposed before the court that he was posted as A.P.I. At Harsul police station. On 26/09/2010, it was a Sunday. He had taken weekly off. On 27/09/2010, he went to the police station at about 12.00 noon. The complainant was present there. P.S.O. More recorded her complaint as per her narration on the basis of which crime No. 34 of 2010 was registered. In the cross-examination, he has admitted that in fact the P.S.O. Is empowered to record the complaint. That there is no standing instructions that no crime would be registered without the permission of P.W. 4. It is further admitted that the complainant had not stated in the report that Walu and accused had gone to eat cucumber. The complainant had not stated the actual act of rape. 6. Learned counsel for the appellant has drawn the attention of this court to the C.A. Report which is at exhibit 34 in respect of the blood test of the accused. The blood group of accused is 'A'. The exhibit 5 is the semen of the accused which is of group 'A'. That neither blood nor any tissue nor semen nor vaginal fluid is detected in the nail clippings of the accused or the pubic hair of the accused. Exhibit 35 is the blood report of the prosecutrix which shows that her blood group is 'AB'. No semen is detected on the vaginal smear, or blood in the test tube. Exhibit 36 is the C.A. Report of wearing apparel of the accused and the prosecutrix. Neither blood nor semen is detected on their clothes except exhibit 10 of which the blood group is inconclusive. 7. Learned counsel for the appellant submits that in fact, P.W. 3 Walu was in close proximity. Exhibit 36 is the C.A. Report of wearing apparel of the accused and the prosecutrix. Neither blood nor semen is detected on their clothes except exhibit 10 of which the blood group is inconclusive. 7. Learned counsel for the appellant submits that in fact, P.W. 3 Walu was in close proximity. According to the complainant, after the incident, the accused had fled away. That she had returned to the house of her in-laws, however, she had not requested Walu to accompany her, nor had informed him about the incident. Learned counsel rightly submits that the conduct of the complainant, soon after the incident, would not inspire confidence. It is further submitted that the act appears to be consensual and only because some villager or Walu had witnessed the incident, the prosecutrix has implicated the appellant in a false case. 8. It is further pertinent to note that according to the prosecutrix, she had gone to the house of her in-laws and they had proceeded to the police station immediately, however, the statement of the prosecutrix is recorded on the next day. The witnesses have attempted to give an explanation for delay in lodging the report saying that the officer was not present in the police station, however, P.W.4 has specifically stated that he had taken weekly off. P.S.O. More was in the police station. That P.S.O. More has not been examined by the prosecution for the reasons best known to the prosecution. In fact, delay in lodging F.I.R. for an offence punishable under section 376 of Indian Penal Code cannot be considered fatal to the prosecution as there are several factors which may weigh with the victim/survivor/prosecutrix before approaching police station and therefore, there was no reason to concoct an explanation. P.W. 2 has also narrated that he had gone to police station at about 10.00 pm on the same day. There is nothing on record to infer that the witnesses had stayed in the police station over night. This aspect would go to the root of the matter and hence, the allegations of the complainant do not inspire confidence. 9. Learned counsel for the appellant has rightly submitted that prosecutrix happens to be a married woman and the possibility that she had sexual intercourse with her husband on 26/09 cannot be ruled out. This aspect would go to the root of the matter and hence, the allegations of the complainant do not inspire confidence. 9. Learned counsel for the appellant has rightly submitted that prosecutrix happens to be a married woman and the possibility that she had sexual intercourse with her husband on 26/09 cannot be ruled out. The C.A. Reports do not corroborate, even remotely the allegations levelled against the accused by the prosecutrix. The appellant happens to be the resident of same village. He was arrested on 15/10/2010. That P.W. 4 investigating officer has not deposed before the court that he had searched for the accused and that the accused was not found in the village. All this has to be read and appreciated in view of the answer of the accused to question No. 14 in his statement under section 313 of Code of Criminal Procedure, 1973 which is as follows. "I had gone with Walu to have cucumbers. When we returned, we found something happened between complainant and Soma and Chabu. I do not know why complainant has falsely implicated me in the complaint." 10. Taking into consideration the nature of the substantive evidence adduced by the prosecution, this Court is of the opinion that the evidence of the prosecutrix would not inspire the confidence of the Court and hence, appellant is entitled to acquittal. Prosecution has failed to prove the guilt of the ac used beyond reasonable doubt. He was in custody for more than 4 years. Before parting with the Judgment, this Court record appreciation for the efforts taken by Mr. Arfan Sait, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellant. The legal fees to be paid to him by the High Court Legal Services Committee are quantified at Rs. 3000/-. The said fees be paid to Advocate Mr. Arfan Sait within three months from today. ORDER "(i) Appeal is allowed. (ii) Conviction of the appellant recorded by Ad-hoc Additional Sessions Judge-II, Nashik in Sessions Case No. 48 of 2011 vide Judgment and Order dated 28/12/2011 is hereby quashed and set aside. (iii) Appellant is acquitted of offence punishable under section 376 of Indian Penal Code. (iv) Appellant be released forthwith, if, not required in any other offence. (v) Appellant be informed about the order by the Registry, forthwith. (vi) Writ be expedited." Appeal stands disposed of.