ORDER : Pankaj Bhandari, J. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 13.07.2012, vide which he has been convicted under Sections 450 and 376 IPC. Sentence of five years and fine of Rs. 2000/- and on nonpayment of fine, further three months imprisonment has been imposed upon him for offence under Section 450 IPC; sentence of ten years and fine of Rs. 5000/- and on nonpayment of fine, further six months imprisonment has been imposed upon him for offence under Section 376 I.P.C. 2. Briefly stated the facts of the case are that a typed FIR Ex.P-3 was lodged before the Superintendent of Police, Chittorgarh by the prosecutrix, wherein it was mentioned that on 19.04.2011, at around 11 p.m., when the husband of the prosecutrix had gone to the farm and she was with her daughter, she heard the sound of knocking at the door and hoping that it would be her husband, she opened the door, but she found the accused-appellant standing on the door. It is further stated in the FIR that the accused caught hold of her and placing his hand on her mouth, took her to the adjoining room and forcefully committed rape upon her. Immediately thereafter, her husband returned and the accused ran away. The prosecutrix has mentioned that she is very weak, because her valve is defective. 3. Upon lodging of the FIR, the police investigated the case, recorded the statements of witnesses, the statement of the prosecutrix were also got recorded under Section 164 Cr.P.C., and the police filed charge-sheet against the present appellant. The learned trial court framed charges under Sections 450 and 376 IPC against the present appellant, who denied the charges. 4. The prosecution examined PW-1 Rameshwar Jat, PW-2 Dr.Devesh Sharma, PW-3 Ramlal, PW-4 Manju, PW-5 Vijendra Singh, PW-6 Shyamlal, PW-7 Seems Sharma and PW-8 Darshan Singh. The statement of the accused were recorded under Section 313 Cr.P.C., and DW-1 Ramkanya and DW-2 Bhanwarlal Dangi were examined in defence by the accused-appellant. 5. The learned court below after hearing the parties, vide the impugned judgment, convicted the accused-appellant for the offences under Sections 450 and 376 IPC and passed the sentence, aggrieved by which, this appeal has been filed. 6. 5. The learned court below after hearing the parties, vide the impugned judgment, convicted the accused-appellant for the offences under Sections 450 and 376 IPC and passed the sentence, aggrieved by which, this appeal has been filed. 6. Counsel for the appellant has argued that this was a case of consensual sex, as no injury has been found on the person of the prosecutrix. The fact that the valve of the prosecutrix is defective, has also not been established by any medical report, and therefore, it cannot be inferred that she was not in a position to resist the act. It is also argued that the FIR has been filed with a delay of 20 hours and there is improvement in the statements of the witnesses. PW-7 Seema Sharma, the daughter of the prosecutrix was not named as witness in the FIR, but now she has been produced as an eye witness. It is also argued that the statement of the prosecutrix does not inspire confidence, and therefore, deserves to be discarded. 7. Counsel for the accused-appellant has placed reliance on Baibhishan v. State of Maharashtra, 2007 AIR SCW 7358, State of Rajasthan v. Bhagirath Singh, 2008(2) Cr.L.R. (Raj.) 1450, State of Rajasthan v. Hoshiyar Singh, 2008(2) Cr.L.R. (Raj.) 1713, State of Rajasthan v. Dharamvir Singh, 2008(2) Cr.L.R. (Raj.) 1262, State of Rajasthan v. Tej Karan @ Tej Pal & Ors., 2008(2) Cr.L.R. (Raj.) 1236, Ramdhan v. State of Rajasthan, 2010(1) Cr.L.R. (Raj.) 722, Malaram v. State of Rajasthan, 1991 Cr.L.R. (Raj.) 633 and Radhu v. State of M.P., 2007 (3) CCSC 1653. 8. Learned Public Prosecutor, on the other hand, has supported the impugned judgment and has argued that the prosecutrix has clearly stated that the accused committed rape upon her. He has also drawn my attention to the statement of PW-7 Seema Sharma, who has stated that the accused was forcing himself on her mother. The statement of PW-6 Shyamlal has also been read over to me, wherein this witness has stated that when he came to the house, on hearing his voice, the accused started running from his house and when he tried to grab him, he ran away, after tearing his clothes. 9. I have considered the rival contentions of both the parties and have perused the evidence on record. 10. 9. I have considered the rival contentions of both the parties and have perused the evidence on record. 10. The prosecutrix, PW-4, in her examination-in-chief, has stated that at 11:00 p.m., she heard the sound of knocking and opened the door hoping that it was her husband, but she found the accused standing on the door. The accused immediately shut her mouth and took her to the adjoining room and did the wrongful act with her, and she could not resist as her valve is defective. Thereafter, her daughter came and the accused threatened to kill her. She has also stated that her daughter was shouting and crying and when the husband of the prosecutrix returned, on hearing his voice, the accused ran away. In her cross-examination, this witness has admitted that the fact that accused threatened to kill her and her daughter, is not mentioned in Ex.P-1 and Ex.P-3. She has also admitted that fact of threatening has not been mentioned in Ex.D-2, statement recorded before the Magistrate. She has also admitted that the fact that accused forcefully opened her clothes and put his private parts into her private parts, has also not been mentioned in Ex.P-3. The witness has also admitted the fact, that her valve is defective, was not stated to the police in the statement recorded by the police Ex.D-1. This witness has admitted that she told the police that the accused was not able to complete the sexual intercourse, as her husband returned back. PW-6 Shyamlal, who happens to be husband of the prosecutrix has, in his examination-in-chief stated that when he returned at 11:00 p.m., his daughter was shouting and when the accused heard his voice, he ran away, after pushing him and tearing his clothes. In his cross-examination, this witness has stated that there is only one room in his house, in which both husband and wife reside and daughter studies. If that is the position of the house, the whole story fails since the daughter was studying when accused entered the house his forcefully taking the prosecutrix to adjoining room was thus not possible since as per PW-6 Shyamlal there is only one room in his house. Ex.P-1 Crime detail form which has the site plan also falsifies the version of the prosecutrix as only one room B is mentioned in the site plan. Ex.P-1 Crime detail form which has the site plan also falsifies the version of the prosecutrix as only one room B is mentioned in the site plan. The witness has stated that he cannot say whether the portion marked as C to D in Ex.P-3 is right or wrong. The portion C to D is reproduced hereunder:- ^^xksikynkl fiNys ,d lky ls eq>s o esjs ifr dks ijs'kku dj jgk gS vkSj ra= fo|k Hkh djrk gS eSa dkQh detksj gksdj vf/kdrj chekj jgrh gwWa** PW-7 Seema Sharma, daughter of the prosecutrix has stated that she was studying, a knocking was heard on the door, and when her mother went to open the door, she felt that someone has pulled her mother and when she came out, she found that Gopaldas has pulled her mother down and was forcing upon her. She has stated that the accused threatened to kill her and when she was crying, her father returned and on hearing his voice, Gopaldas ran away by pushing his father. The statement of Seema Sharma do not inspire confidence, firstly, because the fact that she was awake and witnessed the scene, is not mentioned in the FIR, which has been lodged after a delay of 20 hours. Secondly, if she was awake and studying, she would have certainly raised an alarm immediately on arrival of accused, because as per her statement, she was awake and studying when someone knocked at the door. 11. The fact that the prosecutrix did not resist is also evident from the statement of PW-2 Dr. Devesh Sharma, who has mentioned that there was no mark of injury on the person of the prosecutrix. In the injury report Ex.P-2 also, mark of struggle and violence have been shown as 'absent'. The prosecutrix herself, in her statement, has stated that she could not resist, as she has defective valve. The factum of valve being defective, has not been established by any medical evidence and even her husband has stated that he is not aware as to whether portion marked as C to D in Ex.P-3 that the prosecutrix is very weak is right or wrong, he cannot state. It is writ large that the prosecutrix did not resist the commission of sexual intercourse by the accused and she does not have any mark of violence upon her, which points towards her being a consenting party. It is writ large that the prosecutrix did not resist the commission of sexual intercourse by the accused and she does not have any mark of violence upon her, which points towards her being a consenting party. The FIR was also not lodged immediately and was lodged after delay of 20 hours. It is also important to note that the clothes of the prosecutrix as well as her husband were not recovered, so as to establish that the accused ran away by tearing the clothes of the husband of the prosecutrix or forced open the clothes of prosecutrix. 12. The learned court below was moved by the fact that the patient suffering from defective valve is not in a position to resist, as such person finds difficulty in breathing and this fact court held could be gathered from medical science. The learned Trial Court overlooked the fact that there was no evidence relating to defective valve, and therefore, the court below should not have presumed that the prosecutrix was infirm to that extent that she could not resist a forceful sexual act or even raise an alarm. The learned court below did not consider as to whether the case was one of forceful intercourse or was of consensual relationship. 13. It is evident that there was no resistance whatsoever, which finds support from the medical evidence and the statement of Dr. Devesh Sharma PW-2 and prosecutrix. 14. In the rulings cited before me, it has been held that in a case where there is allegation of forceful sexual intercourse and no injury was found on the person of the prosecutrix and even her clothes are not torn, the accused was held entitled to the benefit of doubt. 15. In the present case, the clothes of the prosecutrix were not recovered by the police to establish the use of force by the accused, clothes of husband were also not recovered to establish that husband's clothes were torn by accused. 16. In the judgments cited herein-above, it has been held that if no injury or mark of violence is found on person of the prosecutrix, the case should fall under consensual sex and the accused is entitled to be acquitted. 17. 16. In the judgments cited herein-above, it has been held that if no injury or mark of violence is found on person of the prosecutrix, the case should fall under consensual sex and the accused is entitled to be acquitted. 17. In the present case, at wee hours of the night, the accused came to the house of the prosecutrix, when her husband was not in the house, knocked on the door and entered the house and had sexual intercourse with the prosecutrix, the prosecutrix neither resisted nor raised an alarm, and when her husband came, the accused ran away. Thereafter, on the next day, after delay of 20 hours, FIR was lodged with the Superintendent of Police. 18. In totality, the incident points towards the consensual relationship between the accused and the prosecutrix, and therefore, this appeal deserves to be allowed and the impugned order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. 19. Consequently, the present appeal is allowed. The impugned judgment and sentence passed by the learned trial court is quashed and set aside. The present accused-appellant is acquitted of the charges levelled against him. The present accused-appellant be released forthwith, if he is not required in any other case. The bail bonds of the accused-appellant stand discharged.