G.L. Gupta, J.-These appeals have been directed against the Judgment dt. 28-9-1996 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh whereby he convicted appellant Suvraj alias Shoraj Under Section 376, IPC and sentenced him to undergo R.I. for seven years and pay a fine of Rs. 500/-, in default six months

S.I.

2. Theprosecution case, as disclosed in the FIR lodged by Smt. ‘U on 21-6-1995 at 4 p.m. is that on the previous day at about 4 p.m. when she was grazing cattle in the river bed the accused caught hold of her, flung, put her “Loogra” in her mouth and committed rape on her. After the accused went away she took out “Loogra” from her mouth and made cries for help, when Bhanwarlal Dhakar reached there to whom she told about the incident and he took her to her house where she narrated the incident to her mother-in-law Lali and uncle-in-law Hema. On this report a case Under Section 376, IPC was registered. After usual investigation, the police submitted a challan.

3. Toa charge framed Under Section 376, IPC, the accused pleaded not guilty. The prosecution examined P.W. 1 Smt. ‘L’ P.W. 2 Bhanwarlal, P.W. 3 Jeetu, P.W. 4 Prabhunath, P.W. 5 Dr. Rajendra Prasad, P.W. 6 Gajendra Prasad and P.W. 7 Ajij Mohd. 1.0. Accused in his statement Under Section 313, Cr. P.C. denied the accusation. He did not lead any evidence in defence. After hearing the Public Prosecutor and the counsel for the accused, trial Court held that the accused had committed rape on Smt. Ladu. He, therefore, convicted and sentenced him as above.

4. Mr. Pareekh and Mr. Charan, learned Counsel for the appellant pointed out that the FIR was lodged 24 hours after the alleged incident and the original FIR has been suppressed by the prosecution. It was contended that as Bhanwar Lal does not support Smt. ‘U and the prosecution has not examined other two witnesses named in the FIR to whom the victim reported the matter immediately after the occurrence, it should be inferred that Smt. ‘L’ did not tell anyone that she was ravished by the accused. Pointing out that the accused used to tremble, it was argued that sexual intercourse could not be performed by him without the consent of the victim, who was elder in age to the accused. It was also pointed out that the accused has not been charged for the occurrence of 20-6-1995, and on this ground also he is entitled to acquittal.

5. Mr. Mehta, on the other hand, supported the Judgment of the trial Court.

6. I have carefully considered the above arguments. The FIR Ex. P- 1 indicates that the occurrence had taken place on 20-6-95. In the charge, the date of occurrence has been mentioned as 21-6-95 which is obviously incorrect. It is due to slip of pen. Accused was aware of the allegations against him from the very beginning. It cannot be said that the error in charge has occasioned the failure of justice.

7. The FIR was lodged on 21-6-1995 at 4 p.m., obviously 24 hrs. after the’ occurrence. It has come on record that the police station was situate just 12 Kms. away from the place of occurrence. The delay in lodging the FIR if properly explained, is not fatal to the prosecution. The prosecution case is required to be scrutinised keeping all the facts and circumstances in mind.

8. The cause of delay in lodging the report disclosed in the FIR Ex. P-1, was that when the victim and her husband were proceeding towards Parsoli the headquarter of Police Station, some persons of Tap ariya village warned them that they should not report the matter to the police. In her statement Smt. ‘L’ giving the explanation of the delay deposes that 8 to 10 persons had come and they had taken away her husband, and throughout the night her husband did not return. The cause of delay thus is different in the statement than the one disclosed in the FIR. Then P.W. 3 Jeetu (husband of Smt. ‘U) does not say that he was taken by some persons in the night. Rather he says that he and his wife had left the village for Parsoli in the night itsel