ORAL A.D. Mane, J. -- The question arises whether the finding of the learned IV Additional Sessions Judge, Ahmednagar convicting the accused-appellant under Section 376 of the Indian Penal Code is justifiable on the evidence adduced by the prosecution. 2. The prosecutrix Shantabai is a grown up lady. She is married having two children. She is the second wife of one Kashinath, whose first wife is Kadubai. She resides with her husband and co-wife. The- appellant-accused is well acquinted with her and possesses a land nearby the land of her husband. 3. The prosecution case was that on February 27, 1987 at about 1 P.M. prosecutrix was proceeding to her field to supply water to sugar-cane from the well. When she was proceeding along the bandh, according to the prosecution, the accused had caught hold her and dragged her in his field where there was sugarcane crop. It has been alleged that Shahtabai resisted not only to the act of the accused in dragging her to the field, but she also shouted when she was actually caught hold on the bandh. She was, however, helpless, because, according to her, the accused by taking her in the field made her to lie down and after taking out his under-wear committed forcible sexual intercourse on her. 4. It was further the prosecution case that shouts of Shantabai were heard by her co-elder wife Kadubai, who ran out of her house in that direction, but she could not see Shantabai there near about the bandh. Later on when she heard "Gappa-Gappa" (that is keep quiet), Kadubai went in that direction and saw that the accused was lying on Shantabai in the necked condition. Therefore, she gave him kick and the accused then collected his cloth and rah away. 5. The medical evidence clearly shows that Shantabai had abrasions on her breast. There is, however, no other injuries on her other parts of the body, particularly on her back or legs or hands. The evidence further shows that the place there the incident is said to have taken place is within the hearing distance i.e. within the range of 100-125 feet from the common well, as well as from the residence of Shantabai. The evidence also point out that there were many women who were washing their clothes near the well. The evidence further shows that the place there the incident is said to have taken place is within the hearing distance i.e. within the range of 100-125 feet from the common well, as well as from the residence of Shantabai. The evidence also point out that there were many women who were washing their clothes near the well. The prosecution has, however, not examined any of the persons who can be said to have heard the shouts of prosecutrix like Kadubai. 6. Therefore, the question arises, whether testimony of Shantabai, whose version is corroborated by Kadubai can be believed to come to a definite conclusion that act of sexual intercourse which has been committed by the accused was with her consent or without her consent. This is the only question which required consideration because it is fairly conceded by Shri Dhorde Patil, the learned Counsel appearing for the appellant that, evidence no doubt proves beyond doubt that the accused has had sexual intercourse with Shantabai. 7. In deciding the question as to whether there was a 'consent' or 'no consent' one of the important circumstance which cannot escape notice is that the testimony of the prosecutrix suffers from the basic infirmity on probabilities when she suggested no consent on her part to the act of sexual intercourse. Nowhere in her first information report she has stated that her bangles were broken or that her blouse was tom, but at trial she has come forward to say that her bangles were broken and the blouse was torn. Indeed that part of her evidence suffers from exaggeration and improvement In course of the cross-examination, she has admitted that Kadubai is having influence over her and when she saw kadubai coming near to her, she started shouting. That conduct of Shantabai tends to show that she did not shout until she saw Kadubai coming to the place of incident, meaning thereby that her version is inconsistent with a theory of 'no consent' on her part. 8. The medical evidence does not support the testimony of Shantabai of any resistance. In other words, it is undisputed that no marks of violence were noticed on other parts of her body except some abrasions on her breasts. The prosecutrix is a grown up lady. 8. The medical evidence does not support the testimony of Shantabai of any resistance. In other words, it is undisputed that no marks of violence were noticed on other parts of her body except some abrasions on her breasts. The prosecutrix is a grown up lady. Had there been resistance on her part, obviously she would have received various injuries on her back legs, or face especially when she was forcibly laid down in the sugarcane field. Surprisingly enough, her version as regards resistance on her part has not been supported by other attending circumstances. As seen above, except testimony of Kadubai, there is no evidence to lend support to the infirmed testimony of the prosecutrix. It is, therefore, unsafe to rely upon uncorroborated testimony of the prosecutrix who is a grown up lady. In this context, it is important to account a total silence on the part of the prosecutrix in answering a pointed question, if she was unhappy about sex with her husband when he is older by 15 years than her. Silence on her part to answer that question suggests 'consent' on her part to the act of sexual intercourse. 9. It may be pointed out that the learned Trial Judge has infact expressed his doubt about the truthful version of the prosecution version, when he observed that notwithstanding aforesaid circumstances, the accused can be said to have committed sexual intercourse with a married woman which is an offence under Section 497 of the Indian Penal Code. Be that as it may, the evidence of the prosecutrix becomes unsafe to rely upon when an probability test the possibility of she being a consenting party cannot be ruled out. 10. The result is that the appeal is allowed. The conviction and sentence passed, against the accused is set aside. The accused is acquitted. His bail bond stands cancelled. Fine if paid, be refunded. Appeal allowed.