JUDGMENT : PANKAJ BHANDARI, J. Admit. 2. Learned Public Prosecutor accepts notice on behalf of the State. Record has been received. 3. With consent of the parties matter is taken up for disposal at this stage. 4. Appellant has preferred this criminal appeal aggrieved by judgment & order dated 13.03.2018 passed by Additional Sessions Judge (Women Atrocities Cases) No. 2, Jaipur Metropolitan, Jaipur, whereby, Court has convicted the appellant for offence under Section 376 I.P.C. and has acquitted the appellant for offence under Section 386 of I.P.C. 5. In brief, the factual matrix of the case are that a complaint (Ex.P-9) was lodged on 31.05.2016, by the prosecutrix, wherein it was alleged that appellant is her neighbour, around one and a half years back, appellant came to her house when she was alone and gave her Kheer, after consuming Kheer she became unconscious and when she woke up, she found herself in a naked position with the appellant. It is also mentioned in the complaint that the appellant raped her and recorded the same in his mobile phone. 6. It is further mentioned in the complaint that there after appellant on the garb of posting the video clippings on internet continuously raped her. Appellant also took her to hotel under threat and there also committed rape upon her. It is also mentioned that complainant went to the Police to lodge the F.I.R. but the Police did not register the same, as a result of which, complainant was not left with any alternative but to file a complaint. 7. The Court on receipt of complaint, referred the same to the Police for investigation, on receipt of same Police registered the F.I.R. (Ex.P-23). After due investigation Police submitted chargesheet against the appellant for offence under Section 376 and 386 of I.P.C. 8. After hearing charge arguments, trial Court framed charges against the appellant for offence under Section 376 and 386 I.P.C. Appellant denied the charges and sought trial, whereupon, as many as 19 witnesses were examined and Ex.P-1 to Ex.P-30 were exhibited on behalf of the prosecution. Accused- appellant was examined under Section 313 of Cr.P.C. In defence one witness was examined and Ex.D-1 to Ex.D-5 were exhibited. Trial Court after hearing arguments has convicted the appellant for offence under Section 376 I.P.C. and has sentenced him to undergo rigorous imprisonment for 10 years and has also imposed a fine of Rs. Accused- appellant was examined under Section 313 of Cr.P.C. In defence one witness was examined and Ex.D-1 to Ex.D-5 were exhibited. Trial Court after hearing arguments has convicted the appellant for offence under Section 376 I.P.C. and has sentenced him to undergo rigorous imprisonment for 10 years and has also imposed a fine of Rs. 25,000/-, on non-payment of fine appellant is required to further undergo one year rigorous imprisonment, aggrieved by which the present appeal has been preferred. 9. It is contended by counsel for the appellant that prosecutrix in this case is aged 36 years and appellant is aged 21 years. Prosecutrix went with the appellant on her own free will on 30.04.2016 & 31.04.2016 to two different hotels. 10. It is contended that there is inordinate delay in lodging of the complaint. It is also contended that the prosecutrix filed an F.I.R. against her brother-in-law on 28.01.2016, wherein she has mentioned that her brother-in-law has threatened to make her vulgar video clippings viral and she mentioned that he is annoyed with the fact that she was talking to the appellant she never complained about the offence of rape being committed by the appellant. 11. It is contended by counsel for the appellant that the allegation that act was recorded on the mobile phone was not established by the Police and no video clippings were recovered from the appellant. 12. Counsel for the appellant has placed reliance on “Hemraj v. State of Haryana,” (2014) Volume 2, Supreme Court Cases, Page 395, wherein, the Apex Court has held that since evidence of prosecutrix has been kept on such a high pedestal, it is the duty of the Court to scrutinize it carefully, because in a given case on a lone evidence a man can be sentenced to life imprisonment. The Apex Court has directed the Courts to evaluate the evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness of the evidence, rely upon it. 13. Reliance has also been placed on “Rajesh Patel v. State Of Jharkhand,” (2013) Volume 3, Supreme Court Cases, Page 792; 2013 (2) RLW 1371 (SC), wherein, there was delay of eleven days in lodging of F.I.R. The Apex Court considered the same as inordinate delay. The Apex Court held that the case was more of consent than rape. 14. 13. Reliance has also been placed on “Rajesh Patel v. State Of Jharkhand,” (2013) Volume 3, Supreme Court Cases, Page 792; 2013 (2) RLW 1371 (SC), wherein, there was delay of eleven days in lodging of F.I.R. The Apex Court considered the same as inordinate delay. The Apex Court held that the case was more of consent than rape. 14. It is also contended by counsel for the appellant that general allegation was levelled in the complaint about the first offence being committed about one and a half years back, when prosecutrix left with the appellant a missing report was filed by her husband. In pursuance of the missing report, prosecutrix had appeared before the Police, at that stage also she did not level any allegations with regard to offence of rape against the appellant. 15. It is also contended that appellant was beaten by husband and brother-in-law of the prosecutrix on which F.I.R. was lodged by the appellant on 28.01.2016, in that case also prosecutrix was examined by the Police but at that time also, she did not level any allegations of rape against the appellant, whereas, she made allegations against her brother-in-law. 16. It is also contended that prosecutrix went to the hotels with the appellant and stayed there on her own free will and the witnesses of the hotel have stated that she stayed there without raising any alarm. She also handed her Identity Card at the hotel and her name was entered in the register of the hotels (Ex.P-6A). 17. Learned Public Prosecutor and counsel for the complainant have vehemently opposed the criminal appeal. Counsel for the complainant has contended that Court below has passed a detail order dealing with all the contentions raised by counsel for the appellant. It is also contended by counsel for the complainant that prosecurix was continuously under threat as appellant was having her vulgar video clippings being a married lady and having children she was left with no alternative but to succumb to the pressure of the appellant. 18. It is also contended that the prosecutrix in clear terms has stated before the Court that she was given Kheer to eat and after she became unconscious because of consuming Kheer, appellant committed rape upon her. 18. It is also contended that the prosecutrix in clear terms has stated before the Court that she was given Kheer to eat and after she became unconscious because of consuming Kheer, appellant committed rape upon her. She has also mentioned in her statement that appellant threatened to kill her children and send the video to her husband, under this threat he took her to the hotels where also he committed rape upon her. 19. It is also contended that non production of the video clippings, may be because of the poor investigation by the Police Authorities but that could not make the statement of the prosecutrix unreliable. Counsel for the complainant has placed reliance on “Deepak v. State of Haryana” 2015 (2) SCC (Criminal), Page 744, wherein the Apex Court held that whether the sexual intercourse was done with or without consent, being a question of fact, has to be proved by the evidence in every case. It was also held that if prosecutrix states in her evidence that she did not consent to act of sexual intercourse done by the accused on her, which, as per her statement, was committed by the accused against her will and if the accused fails to give any satisfactory evidence in his defence evidence on this issue, the Court will be entitled to draw the presumption under Section 114-A of the Evidence Act. 20. I have considered the contentions and have perused the impugned order as well as relevant record. 21. As far as the contentions of counsel for the complainant with regard to Section 114-A of the Evidence Act, suffice to say that Section 114-A of the Evidence Act, deals with presumption for rape under Clause (a) to Clause (n) of Sub-Section (2) of Section 376 of the Indian Penal Code. The present case does not fall under the purview of Sub-Section (2) of Section 376 of the Indian Penal Code, hence the question of presumption as to absence of consent detailed out in 114-A of the Evidence Act, would not apply. In the case of “Deepak v. State of Haryana” (supra) cited by the complainant, a child was subjected to rape and in those circumstances presumption under Section 114- A of the Evidence Act was drawn by the Apex Court. 22. In the case of “Deepak v. State of Haryana” (supra) cited by the complainant, a child was subjected to rape and in those circumstances presumption under Section 114- A of the Evidence Act was drawn by the Apex Court. 22. Reverting back to the facts of the case, it is pertinent to note that prior to filing of the present complaint, one F.I.R. was lodged by the prosecutrix on 28.01.2016, against her brother-in-law alleging that he was objecting to her, meeting the appellant. Another F.I.R. was lodged by the appellant on the same day alleging that he has been subjected to beating by brother-in-law of the prosecutrix. Prosecutrix in both the F.I.R. was interrogated by the Police but she did not narrated any incident of rape being committed by the appellant, thereafter, on 30.04.2016 & 31.04.2016, she went with the appellant and stayed at two different hotels which is evident from Ex.P-5A & Ex.P-6A and the statement of PW-2 Jitendra Kumar, PW-3 Ratan Saini and PW-4 Kapil Sharma who have admitted that the appellant and the prosecutrix came to the hotel and that prosecutrix was carrying her luggage with her. 23. It is also pertinent to note that on 31.03.2016, prosecutrix had a talk with her husband as is revealed from the telephonic record seized by the Police. Missing report was filed by husband on 01.04.2016, on the same day prosecutrix reached her house. Her statement was recorded on 03.04.2016, in that statement also she did not make any allegations with regard to rape. It is only after a lapse of more than 53 days she gave the information about rape. 24. It is pertinent to note that first complaint was made by the prosecutrix on 24.05.2016, vide Ex.P-7. Complaint was lodged then send to the Deputy Police Commissioner (South) Ex.P-8 on 26.05.2018 and ultimately a complaint was filed in the Court on 31.05.2016. The complaint was thus filed after 53 days of the alleged incident. Further the allegations in the F.I.R. with regard to rape being committed one and a half years earlier goes to show that the complaint has been lodged after an inordinate delay of more than one and a half years. It is also pertinent to note that the prosecutrix informed her husband about the alleged rape on 04.04.2016 but still the same was not reported to the Police. 25. It is also pertinent to note that the prosecutrix informed her husband about the alleged rape on 04.04.2016 but still the same was not reported to the Police. 25. Prosecutrix had several occasions to report the matter to the Police but she had failed to report it to the Police. Prosecutrix was aged 36 years, whereas appellant was aged around 19 years at the time of alleged first incident, the chances that he threatened the prosecutrix are remote and no seizure of any vulgar material has been made from the appellant to establish the allegations levelled against him. 26. Considering the judgment of the Apex Court reported in “Rajesh Patel v. State Of Jharkhand” (supra) & “Hemraj v. State of Haryana” (supra), the only conclusion that can be arrived at is that this was not a matter of rape but was more of a consensual act. Court below has not taken note of the non recovery of video clippings and has not properly appreciated the factum of inordinate delay in reporting the matter to the Police. Court below further has not considered the factum of lodging of F.I.R. by the appellant against husband and brother-in-law of the prosecutrix and the complaint lodged by the prosecutrix against her brother-in-law in true spirit. If there would have been any video recording, the first thing prosecutrix would have done was to get the same deleted from the mobile, rather she has remained consistently i involved with the appellant and even stayed at two hotels and even after returning back she did not make any allegations against the appellant for a period of 53 days. 27. In view of the same, the present criminal appeal deserves to be allowed. 28. In the result, appeal tiled by appellant is allowed. The judgment and order dated 13.03.2018 passed by Additional Sessions Judge (Women Atrocity Cases) No. 2, Jaipur Metropolitan, Jaipur in Sessions Case No. 90/16 is set aside. The appellant Sarvesh Maloo S/o Shri Natwar Lal Maloo is acquitted for the charges levelled against him. He is in jail and be set at liberty forthwith, if not required in any other cases or for any ether purpose. 29. Appellant is directed to forthwith furnish personal bond in the sum of Rs. The appellant Sarvesh Maloo S/o Shri Natwar Lal Maloo is acquitted for the charges levelled against him. He is in jail and be set at liberty forthwith, if not required in any other cases or for any ether purpose. 29. Appellant is directed to forthwith furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 30. Record of the Court below be returned forth with.