JUDGMENT G.D. Kamat, J. - Camilo Fernandes appeals against his conviction under section 354 of I.P.C. and sentence of six months of Rigorous Imprisonment and Ii fine of Rs. 2000/- and in default to undergo further six months of R.T. in Sessions Case No. 3/87. The appellant was charge-sheeted by the Police under Section 376 of I.P.C. and accordingly a charge framed against him was for having committed the offence of rape on Smt. Rosalina Gomes (P. W. 1) for short Prosecutrix on 11th April, 1986 at 17.30 hours in an open property belonging to one Shri K.B. Naik in the ward called Sonarbag, Usgao, Goa. Though charged for rape however the learned Sessions Judge held him Julty for outraging the modesty of the Prosecutrix: on that eventful day. 2. The prosecution examined as many as 10 witnesses in this case but having regard to the controversy raised vis-a-vis the conviction and sentence and regard being had to the arguments it is sufficient to notice the evidence of the Prosecutrix Rosalina Gomes (P. W. 1), Frank Rodrigues (P. W. 2) and Antonio Rosario Dias (P. W. 3), alleged to be the eye witnesses and the medical evidence tendered by Dr. M.S. Ugaoncar (P.W. 7). 3. In the first instance I may set out what the prosecution unfolds against the appellant. On 11th April, 1986 at about 5 pm. the prosecutrix came to her Uncle's house in order to get a boat, must be a canoe to carry dried coconuts from the property belonging to K.S. Naik situated at Sonarbag. Usgao. Her brother P.W- 3 Antonio Rosario Dias "accompanied him for this operation of getting the coconuts from other side of the river. After gathering coconuts they were sacked and being transported to the other side of the river. At some stage appellant appeared there, talked about some tender coconuts and suddenly caught hold of the Prosecutrix first by her face then held her by the neck, threw her down on the ground, held her tightly on the ground by catching her shoulders, undressed himself and after removing the knicker of the Prosecutrix tried for a sexual go with her. But as a result of her resistance the penetration was not possible and that is how the appellant ejaculated on her thighs. But as a result of her resistance the penetration was not possible and that is how the appellant ejaculated on her thighs. It is almost at this time that the Prosecutrix was able to throwaway the appellant off her on the ground from which he got up dressed himself, but however obtained a promise from the prosecutrix that such incident would not be passed over to any person and thereafter all of them crossed over to the other side of the river. Next her case is that she reported this matter to some persons and finally lended in the Police Station who arranged her to be medically examined by a Doctor attached to the Goa Medical College hospital and that is how the charge under section 376 I.P.C. was made against the appellant. 4. Four contentions have been raised by the learned counsel for the appellant and I will have them set out here at once with a view to immediately scan the relevant evidence and findings to examine how far the defence has perforated the prosecution case as presently argued in this appeal. (i) The first of the contentions is that the prosecution case cannot be believed as the evidence is unreliable that the charge is trumped up against the appellant cannot be ruled out. (ii) The second is even if the incident is admitted there is abundant material to show that there was consent of the Prosecutrix. (iii) Thirdly, having regard to the suppression of material witnesses to unfold the full story it is just not possible to sustain the conviction. (iv) Lastly it is unsafe to rely on the evidence of the Prosecutrix because there is no corroboration and the only so called corroborative evidence is that of partisan witness namely P.W. 3 Antonio Rosario Dias who is her brother. 5. Mr. Bhobe, learned Public Prosecutor in his foremost submission urged that the theory of consent by the prosecution cannot be made available to the defence because that had never been the case of the appellant before the trial court. According to him if the appellant wanted to avail of the plea of consent of the prosecutrix it is clearly incumbent upon him to have laid a foundation for it during the course of the trial. 6. According to him if the appellant wanted to avail of the plea of consent of the prosecutrix it is clearly incumbent upon him to have laid a foundation for it during the course of the trial. 6. I am however unable to accept this contention of the learned Public Prosecutor and I say so based on the observations of the Supreme Court in the decision of Pratap Misra and others v. State of Orissa.1 Without wasting any further time I may quote the relevant portion of that observation. It reads: "The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals." In view of the observations of the Supreme Court extracted above it is clear that if such a plea can be carved but based on the prosecution evidence itself it is permissible for the appellant to urge that defence. 7. The contentions taken in this appeal on behalf of the appellant which I have adumbrated above may be clubbed together for the purposes of its appreciation except the contention relating to implied consent may require a little different treatment. I may therefore now take up all contentions together. 8. In the first place it must be seen that the Supreme Court laid down in the decision of Sheikh Zakir v. State of Bihar2, that the evidence of the victim of a rape is to be treated as evidence of an accomplice. It is therefore required in the judgment to be shown that a Judge had this rule in mind and cogent reason should be given as to why conviction is based on the evidence of the rape victim and for dispensing with independent corroboration, It is equally made clear in this very authority that in case of grown-up and married woman it is always safe to insist on such corroboration. But however such corroboration can be sought either from direct evidence or from circumstantial evidence or from both. In the light of this authority let of now examine the prosecution called and the defence version. Before however doing this I will advantageously refer to home of the finding of the learned trial Judge reflected in the impugned order. In paragraph 12 of the judgment be clearly says that the appellant admitted this physical presence in the property at the place where the offence is alleged to have occurred. In paragraph 13 the learned Judge holds that the very case of the appellant is that he had intimate relationship with the prosecutrix in the under mentioned words. "The said evidence also clearly discloses that the accused himself admits that he was quite intimately familiar with the complainant and I say so because during the cross-examination of the complain out and I say so because from the suggestions put up by his learned counsel during the cross-examination of the complainant to the effect that she used to visit him at Pale mines and thereafter both had been together in Margao and other places it flows that some sort of affair between the complainant and the accused which he sought to establish in the present case was already being maintained by them although strongly denied by the Complainant". In paragraph 14 he says that the prosecution has not been able to substantiate that there was forcible sexual intercourse but however there was strong case of physical assault. Para 15 of the judgment while ruling out the case of the rape mentions that it is a fact that this testimony of the complainant regarding sexual intercourse allegedly maintained by the accused with her by use of force does not find cogent support on any other relevant evidence namely the medical evidence produced by the prosecution. Therefore and in the absence of any other testimony who could have safely deposed on the matter which otherwise would be difficult for the prosecution to arrange for this specific purpose the medical evidence relied by the prosecution namely the testimony of P. W. 7 Dr. M.S. Usgaokar is not at all helpful in order to establish that a sexual intercourse had necessarily occurred between her and the accused on the relevant date. M.S. Usgaokar is not at all helpful in order to establish that a sexual intercourse had necessarily occurred between her and the accused on the relevant date. 1 n this connection was a grown up lady who had borne 4 children and was having a roomy vagina in such a case even though sexual intercourse was committed no signs were likely to be available and in the absence of any such signs no positive opinion regarding the fact of the recent sexual intercourse was possible. 9. From what is extracted above and from the evidence read before me by the learned counsel for the appellant it clearly transpires that the appellant used to frequently visit the house of the prosecutrix that some time before the offence the appellant was found fondling the five month old baby of the prosecutrix. This suggests how familiar he was in the house of the prosecutrix. Thirdly the appellant/accused had the photograph of the prosecutrix and that was brought to light by his mother when it was discovered in his passport. The expression of the prosecutrix regarding possession of her photo in the hands of the Appellant is far from acceptable. Fourthly the husband of the prosecutrix was away being out of India for a substantial long time of seven years. Fifthly there was even a letter written by the appellant to the prosecutrix when he was out of Goa. 10. Now the Case of the appellant is that he had intimate illicit relationship with the prosecutrix and such relationship developed in the absence of her husband who was away from India. He was taking the prosecutrix very often out of the town of Usgao to several places like Panaji, Mapulia Margao and Vascoda-Goma. It is equally not disputed that appellant was working for a Mining Company at Pale and it was suggested on behalf of the appellant to the prosecutrix that she used to go to the Pale moms very often to meet the appellant and that as a result his Manager suspected the relationship for which reason he even lost his job. 11. On reading the evidence of Prosecutrix I must confers that one is left high and dry and the defence version of his illicit relationship with the prosecutrix cannot be ruled out. 11. On reading the evidence of Prosecutrix I must confers that one is left high and dry and the defence version of his illicit relationship with the prosecutrix cannot be ruled out. There is another aspect of the matter and that is if the appellant had used force against her the prosecutrix must have had injuries either when she was thrown on the ground by the appellant where she was alleged to have been raped or when her modesty was outraged Having regard to the medical evidence it is clear that there was no injury whitener on the body of the prosecutrix worth the name except 1½ " X 1" oblique linear abrasion below left angle of medical and on abrasion situated 2" above medical 3rd of left clavicle. It is Dot understood all to how the appellant when applied for by first nothing her by the face, then holding her tightly by the neck, putting her down on the open ground and holding her tightly by the shoulders on the ground and attempted rape and despite the purported resistance allied by the prosecutrix in ordinary course several injuries including nail injuries must have been there on her on both sides. It is not disputed that there were no injuries at all except referred to and what is more is no blood was detected on the nail clippings of the appellant. It is next pointed, out that minor injuries of abrasion which are referred to might have been caused while collecting the coconuts IInd transporting them by canoe or even when there was an attempt of illicit sexual intercourse by consent on the open ground. There is still greater aspect of the matter which cannot be brushed aside. P.W. 7 Dr. M.S Usgaoncar also examined the appellant found no injury whatsoever on the body of the appellant If the version, of the prosecutrix is accepted it is needless to say that her hands were free at an times. She could not have spared the appellant while resisting the sexual assault. The absence of injuries on the appellant in my view speaks volumes in his favour any his defence is certainly noteworthy. It is never the case of the prosecutrix that she was passive because she was put to fear. I may at this stage refer to the decision of Sitaram v. State of Maharashtra3. The absence of injuries on the appellant in my view speaks volumes in his favour any his defence is certainly noteworthy. It is never the case of the prosecutrix that she was passive because she was put to fear. I may at this stage refer to the decision of Sitaram v. State of Maharashtra3. which was a case relating to rape and the story of the struggle during intercourse by force. The learned Single Judge in this authority has rightly observed that the matter of struggle during intercourse by force should depend on several factors such as the conduct of the prosecutrix immediately after the incident, in. juries, the medical and chemical analyser's report etc. 12. Coming to the evidence of P. W. 2 Frank Rodrigues it clear that he is not an eye - witness He saw the prosecutrix and the appellant in the property after he had crossed by a canoe from the other side of the river on hearing shouts. Although the prosecutrix herself said she shouted, she contradicted her own statement earlier made to the police under section 164 Cr. P.C. where there is total omission that she ever shouted when offence was committed against her by the appellant It is just not possible to hold that P. W. 2 is an eye witness for any incident except he saw them in the property. But again his name was never disclosed by the prosecutrix or by the other eye witness P.W. 3 Antonio Rosano Dias who is the brother of the prosecutrix Coming to the evidence of this brother I must again mention that he does not inspire confidence at all. In the first instance there is a great variation in the sequence given by the prosecutrix and this witness P.W. 3 Antonio. Apart from the variation in the sequence at once point of time he says the appellant was rising from the body of the prosecutrix and that is the time he saw him for the first time, whereas in the next breath he says that he saw the accused for the first time near a tree. But what is still more puzzling is that his behaviour was otherwise abnormal. When prosecutrix told him about the offence committed against her there was no reaction on his part whatsoever as if nothing had happened. But what is still more puzzling is that his behaviour was otherwise abnormal. When prosecutrix told him about the offence committed against her there was no reaction on his part whatsoever as if nothing had happened. If this witness was nearly in the property it is just not possible to accept that the appellant would dare the sexual assault. In all probability as he was not there at the relevant time. Having regard to his evidence over which there can be no dispute I am inclined to hold that there is no corroboration whatsoever to the prosecutrix. I therefore hold that it is highly unsafe to uphold the conviction on any count. 13. This much in my view is enough to record acquittal but I will however not rest content and further hold that the prosecution must suffer even on the count of the suppression of material evidence. Admittedly the alleged offence has taken place in an open place below the sky. Undisputably it has come on record that there is a watchman called Naru living with his wife in the same property. The alleged offence of rape has taken place at a distance of 15 metres from the house of this Naru. According to the evidence of both prosecutrix and her brother P.W.3, Neru and his wife were both in the hut. Despite this Naru was living at the time the investigation started his statement was never recorded by the Police. Naru's wife is still living and despite the reference to the family of Naru it is not understood as to how persons staying close by could be by-passed. The prosecutrix herself says that no sooner she was able to get herself released from the clutches of the appellant she first came ac rose a person called Xabito and narrated to him the whole incident. It is not understood as to how the prosecution could to tally ignore this xabito. The last in the line is a reference exists to One Franciseo Xavier Fernandes who is alleged to be an eye - witness as disclosed by the I.O. but however he has also not been examined. It is not understood as to how the prosecution could to tally ignore this xabito. The last in the line is a reference exists to One Franciseo Xavier Fernandes who is alleged to be an eye - witness as disclosed by the I.O. but however he has also not been examined. It is the that it is not necessary that the prosecution must examine all witnesses and none can dispute this proposition, but when it is required to unfold the prosecution case it is well settled law that material witnesses cannot be suppressed and when they suppressed or not examined a clear inference would arise that if they were to be brought into the court and examined they would speak in favour of the defence and not in favour of the prosecution. 14. I have already made a reference that the defence version is liable to be accepted regarding the implied consent. I have already made abundant reference on the subject. On totality of the circumstances it is just not possible to say that merely because the prosecution has failed on the charge of the offence under section I.P.C. the prosecution has to succeed on a charge u/ section 354 I.P.C. It must be held that what is available by way of defence to a charge under section 376 is also available to an offence under section 354. As observed earlier the defence of illicit relationship cannot be ruled out and in the absence of so many relevant factors and from the very findings of the learned Sessions Judge himself it is highly unsafe to convict the appellant. It is possible as claimed by Shri Diniz that this case would not have been the light of the day if the prosecutrix had not been caught red handed either by Xabito or by her brother P.W. 3 Antonio Rosario Dies or Naru and to save herself and her honour she thought it best to lay the blame on the appellant. I however leave the matter at this. 15. The impugned judgment dated 4 4.88/ 12.4.88 convicting the appellant under section 354 I.P.C. is hereby quashed and set aside. The appellant is acquitted. Appeal accordingly succeeds and the bail bond stands discharged. Appeal allowed. 1. AIR 1977 SC 1307 . 2. AIR 1983 Be 911. 3. 1973 March. I.J 512.