Navin Sinha, Actg. C.J.

1. The appellant stands convicted under Section 307 IPC by the First Additional Sessions Judge, Raigarh in Sessions Trial No. 169 of 99 dated 15th January, 2001 and ordered to undergo 3 years rigorous imprisonment. PW 1, Krishna Kumar Behra lodged a First Information Report on 28.6.1999, Exhibit P/1, under Section 307 IPC naming the appellant alleging that his sister, PW 2, Bilasa Bai, had conceived from the appellant who was her neighbor, a year earlier. She was forced to abort by the appellant. A Panchayat was held, the appellant had agreed to keep her but started relenting soon after. His sister PW 2, then stopped coming home. On 26.6.1999 the appellant gave her milk laced with poison "Phoskill" saying the medicine would help her regain strength. The stink in the milk made it difficult to drink and she spat it out. The appellant wanted to kill her as he did not wish to keep her. His sister was not willing to report to the police saying that if she complained against the appellant where would she live. She was unable to eat for past two days and her voice had been choked since previous night. Her mother was taking her to the hospital for treatment. The witness met them on the way and took her to the police station to lodge a report.

2. Learned counsel for the appellant submitted that there was two days delay in lodging the report giving sufficient time for embellishments. There is no satisfactory explanation for the same. PW 2 herself stated that she was not interested in lodging a report. PW 1 in deposition stated PW 2 had been administered "Democrone" pesticide. The FSL report states the insecticide was "Phoskill". PW 2 had denied that she had any love or affection for the appellant. The alleged signatories to the Panchayat settlement had denied the same. It was lastly submitted that conviction for three years under 307 IPC was not justified. If any offence had been made out conviction ought to have been under 324 IPC for which the maximum punishment was three years. The appellant has already undergone approximately seven months of custody which is sufficient punishment in the facts and circumstances of the case.

3. Counsel for the State opposing the appeal submitted that PW 2 was not a stranger to the appellant but his own wife. Her evidence cannot be brushed away lightly. As the victim she is completely reliable for the purpose of conviction.

4. The Court has considered the submissions on behalf of the parties as also the material on record and evidence available. The appellant was married to one Shanti Bai about 12 years ago. He had an extra marital affair with PW 2 much to the dislike of her parents. She had to leave the parental home and moved in with the appellant. She conceived from him and the appellant had made her abort. The signatories to the Panchayat going hostile is irrelevant. The appellant under Section 313 Cr.P.C. acknowledged that PW 2 was his wife.

5. The delay in lodging of an F.I.R. cannot always be fatal by itself to the prosecution. Delay would be relative term. Much would depend on the facts of each case and the explanation for the same. PW 2 had an extra marital affair with the appellant. He does not deny the relationship. PW 2 had to leave her parental home because of the same. She had conceived from the appellant who made her abort. She was no more visiting her parental home. The witness had stated that she was reluctant to report to the police as in that event where would she live if the appellant also threw her out. She preferred to suffer the misery and had stayed without food for two days and her voice had started to choke. She obviously wanted to avoid further social stigma for herself considering her extra marital relations with a married man for which she had to pay a price by her own family distancing from her. That to the Court is sufficient a reasonable explanation for delay in the facts of the case.

6. PW 1 deposed that PW 2 had conceived from the appellant ea