S. S. BYAS, J. - (1.) THE State has come up in appeal against the judgment of acquittal recorded in sessions case No. 108/75 by the learned Sessions Judge, Pratapgarh, dated 31. 1. 1976.
(2.) THE facts of the case briefly stated arc that P. W. 2 Goga is the wife of PW-4 Narain PW-6 Devilal is her father-in-law whereas P. W. 3 Davu is her mother-in-law. THEy belong to village Soodri. It is alleged that in the afternoon of 29. 9. 75 she was all alone in her house and was ready to go out tor fetching water having an empty water pitch on her head. At the time of the occurrence she was in the inner apartment of her house. It is alleged that accused Hemraj came inside the house and enquired about her father-in-law and about the other members of the family. When she told him that her father-in-law has gone to Chittorgarh in order to obtain a permit for cultivating opium and the others have gone to the field the accused, caught hold of her hand, embraced her, felled her down on the ground and committed rape on her and after commission of rape, the accused went out. THEreafter she started crying which attracted the attention of PW-7 Lahroo and P. W. 8 Chhoga. THEy went inside the house and found the lady weeping and enquired from her as to what has happened but on account of a feeling of shame she did not tell anything to them and kept on weeping. She also did not go to filed to inform her mother-in-law and husband about the occurrence but waited at the residence for their arrival in the evening. When they came back in the evening she narrated the entire incident to them but no report was lodged as her father-in-law was not there. THE report of the incident was lodged at police station Gangror on 3. 10. 1975 by Smt. Goga herself. THE F. I. R. has been marked Ex. P. 2. THE medical examination of her injuries were also got conducted. That report has been mar-ked Ex. P. 1. THE site was inspected and the site inspection memo and the site plan have been marked Ex. P. 6 and Ex. P/7 respectively. THE police also seized her 'ghaghara' and 'kanchli' vide seizure memo Ex. P. 3. THE 'dhoti' of the accused was also seized. THEy were sent for chemical and serological examination. THE 'ghaghara' was found positive for blood and semen, and where as the dhoti was found negative for semen and blood THE Serologist report shows that the 'ghaghara' was stained with human blood but no spermatozoa was detected in the 'ghaghara'. THEse two articles were seized on 4. 10. 75. After usual investigation, the case against the accused was challaned in the court of learned Munsif and Judicial Magistrate, Chittorgarh from where it was committed for trial to the court of Sessions Judge. THE learned Sessions Judge charged the accused with the offence u/s 376 I. P. C. THE accused did not plead guilty to the charge and claimed trial whereupon the prosecution examined in all 11 witnesses in support of its case, THE statement of the accused was recorded u/s 313 Cr. P. C. but he has completely denied the happening of this occurrence and has examined D W. 1 Lahru in his defence. After hearing the parties, the learned trial court has acquitted the accused by giving him benefit of doubt. Aggrieved against this judgment, the State has come up in appeal. The most striking feature of the case is that although the occurrence took place on 29. 9. 75 its report at the police station which is situated at a distance of three miles from the village Soodri, was lodged on 3. 10. 75 at 7 p. m. i. e. almost five days after the occurrence. The late lodging of the F. I R. has been explained on the ground that P. W. 6 Devilal who is the father-in-law of Smt. Goga had gone to Chittorgarh to obtain a permit for cultivating opium. He has admitted that he came back after 2-3 days after the occurrence. The Investigating Officer stated that according to his information Deva returned to his village on 'gyaras' whereas the report of the incident has been lodged on 'theras' at 7 p. m. i. e. two days after his arrival. It is strange that inspite of the fact that Mst. Goga's husband was present in his village alongwith his mother, no attempt was made to lodge the report. It has been admitted by Mst. Goga that the accused has filed a complaint against her, her husband and her sister-in-law and after two days of filing of that complaint this report has been lodged in the police. This delay of five days therefore, has not at all been explained. Rather, it appears that the report has been lodged with an object to foist a counter case on the accused who has lodged a report against them on 1. 10. 1975. We have critically examined the evidence on record. Mst. Goga has admitted that she started crying only when the act of cohabitation was over and the accused went away from her house. If actually she has been forcibly raped, she should have raised hue and cry even during the time when she was being forcibly raped by the accused. Later she has stated that she did try to shout when she was forcibly raped by the accused but the accused put his hand on her mouth and thereby he muffled her voice. That explanation does not appear to be credible. Moreover, it appears that she has enjoyed the cohabitation because she too discharged with accused. In her statement she has admitted that she has received injuries on her shoulders, wrist, elbows, buttocks and breasts etc. whereas P. W. 1 Dr. Gordhanlal has stated that he only found one linear abrasion on the upper angle of right scapula with a scab thereupon and a bruise measuring 2 x 1 on the right upper Part of gluteal region. According to the doctor, she was habituated to saxual intercourse. She, being a married lady, she has been accustomed to sexual intercourse and the presence of blood was on account of the bleeding due to menstruation. He has further slated that on examination of her genital organs, he did not find any evidence of rape. Her 'ghaghara' is negative for the presence of spermatozoa According to him the injuries could be more than 3 days old and they could also be of 7-8 days old. He is not definite whether these injuries have been received during the course of incident. Looking to these glaring facts and circumstances, we are persuaded to hold that the learned lower court was perfectly justified in acquitting the accused giving him benefit of doubt. The judgment of acquittal rendered by the learned Sessions Judge deserves no interference. In the result, we find no force in this appeal and it is hereby dismissed The accused is on bail and he need not be surrendered. .;