JUDGMENT - B.U. WAHANE, J.:---This appeal is directed against the judgment and order passed by Shri Velati, Additional Sessions Judge, Chandrapur, on 19-2-1987 in Sessions Case No. 107 of 1985, convicting the appellant/accused for the offence punishable under section 376 of the Indian Penal Code and sentencing him to suffer R.I. for 3½ years and to pay a fine of Rs. 200/-, in default, further R.I. for 3 months. 2. The facts giving rise to the prosecution are in nutshell as under. The appellant/accused Suryakant Yadao Gaikwad and the prosecutrix Ku. Rekha were living in the same village Yellapur within the jurisdiction of Gadchandur Police Station, Tahsil Rajura, District Chandrapur. On 29-10-1985 Ku. Rekha was living in the field house near village Yellapur with her parents, brothers, etc. On the day of incident i.e. on 29-10-1985, after sun set, Rekha's mother had sent Rekha to purchase kerosine oil at Village Yellapur. According to her, she had gone in the village and purchased kerosine oil from the shop of one Mahendra Malkuji Kamble. After purchasing kerosine oil and salt, Rekha was returning to her field house through a road leading from village Yellapur to Meriguda, which is known as Meriguda road. When the prosecutrix travelled half of the distance, accused came from behind, caught hold her hands and asked her to allow him to have a sexual intercourse. She got afraid and tried to release her hand. She screamed "Dhava". The accused pressed her mouth and forcibly fell her down. The bottle of the kerosine oil and the packet of salt fell from her hands. Accused made her to lie down flat on the ground and raped her. She shouted. On hearing her screams, her brother Baliram (P.W. 9) came running. On seeing Baliram coming, the accused left her and started running. The semen of the accused had fallen on her petticoat. Baliram the brother of the prosecutrix, chased the accused and caught him. There was a scuffle between the two. Ultimately, Baliram and others took the accused to the house of Police Patil. Police Patil, Rekha's father and other then went to Police Station and lodged the report about the incident. On the report of Rekha, an offence was registered against the appellant/accused under section 376 of the Indian Penal Code. There was a scuffle between the two. Ultimately, Baliram and others took the accused to the house of Police Patil. Police Patil, Rekha's father and other then went to Police Station and lodged the report about the incident. On the report of Rekha, an offence was registered against the appellant/accused under section 376 of the Indian Penal Code. After the investigation, the charge-sheet was filed in the Court J.M.F.C., Rajura, who committed the same to the Court of Sessions Judge, for trial. 3. Accused pleaded not guilty to the charges framed against him. The defence of the accused as per his statement recorded under section 313 of the Cri.P.C., is that the dispute in respect of the field, is going in the Court, of S.D.O., Rajura, between the father of Rekha on one hand and his father on the other. According to him, on the date of incident, while accused was going to his field, Balu, Ramesh, Bali, Mahadeo, Nimbaji Sable beat him due to old enimity. It is submitted by the accused that there is a dispute between him and Nimbaji in respect of Dhura. Therefore, according to him, he falsely implicated in this case. 4. The prosecution alleged that on the date of incident, the prosecutrix was below 16 years of age. The evidence on which the prosecution relied, is that of father of Rekha, who deposed that on the date of incident, the age of Rekha was 15 years. However, in cross-examination, he admitted that he does not know the ate of birth of Rekha. He was not in a position even to tell the year in which the prosecutrix born. Shri Nimbaji Sable, the father of the prosecutrix, also deposed that Rekha is illiterate. She did not attend any school. According to him, Rekha was born in village Talani Mohogaon in District Osmanabad in Maharashtra State. The birth of Rekha has not been registered in the death and birth register and as such the prosecution has not produced any certificate to show that on the date of incident, Rekha was below 16 years of age. Therefore, the prosecution relied on the ossification report Exh. 35 issued by Dr. Miss K.N. Shette. According to doctor, Rekha appears to be 15 to 17 years old. That is, not less than 15 years and not more than 17 years. Therefore, the prosecution relied on the ossification report Exh. 35 issued by Dr. Miss K.N. Shette. According to doctor, Rekha appears to be 15 to 17 years old. That is, not less than 15 years and not more than 17 years. Therefore, the prosecution has not proved that on the date of incident, Rekha was below 16 years of age and this has been rightly observed as such by the learned trial Judge. 5. Shri Gandhi, the learned Counsel for the appellant/accused, argued that from the facts and circumstances, it reveals that there must be some illicit relations between the appellant/accused and the prosecutrix and, therefore, sexual intercourse, if any, committed by the appellant/accused, was with the consent of the prosecutrix. Admittedly, as the prosecution failed to prove that the prosecutrix was below 16 years of age, if the consent can be inferred from the facts and circumstances of the case, the appellant/accused deserves to be acquitted of the charges. Shri Paranjape, the learned P.P., on the contrary, submitted that the appellant/accused did not suggest that he committed sexual intercourse with the prosecutrix with her consent as he was in toe with her since before the date of incident. As he has not taken the defence of consent, he is not entitled to pursue the matter. 6. In a case of (Asharam v. State of M.P.)1, 1974 Jabalpur Law Journal, Note 15, the Lordship in a case under sections 376 and 451 of the Indian Penal Code, observed that :--- "Though the appellant had not specifically pleaded that Shanti Bai was a willing and consenting party to the act attributed to him yet these commissions cannot be a ground to reject the defence available to him under the law. In the opinion of the trial Judge, the circumstances indicating consent and willingness could not help the appellant on the ground that a plea which was not raised could not be relied in support of the defence available to the accused. This view, in the opinion of this Court, is not correct. In the opinion of the trial Judge, the circumstances indicating consent and willingness could not help the appellant on the ground that a plea which was not raised could not be relied in support of the defence available to the accused. This view, in the opinion of this Court, is not correct. What the law requires is that the accused may establish any ground of defence either by cross-examining the prosecution witnesses or by leading in dependent evidence and if the defence is probablised then its benefit goes to the accused and not to the prosecution." In a case of (Tukaram and another v. State of Maharashtra)2, 1978 CAR 413 (S.C.), in para 14, it is observed that "The main contention which has been raised before us on behalf of the appellants is that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances, it could be deduced that the girl had been subjected to or was under any fear or compulsion, such as would justify an inference of any 'passive submission', and this contention appears to us to be well based." Similar issue was before Their Lordships in a case of (Pratap Misra and others v. State of Orissa)3, A.I.R. 1977 S.C. 1307. In the case before Their Lordships, three accused committed sexual intercourse with a grown-up married woman, P.W. 1, Pramila Raut, who was carrying child and her pregnancy was running in the 5th months at the time of incident. The prosecutrix was also a midwife and had served in that capacity with a doctor. The defence of the accused was one of complete denial of the prosecution allegations. The appellants denied to have committed any rape on the prosecutrix and averred inter alia that there was some altercation between the appellants and P.Ws. 3 and 4 as a result of which P.W. 4 was injured and as the forest employees felt humiliated, they, in collusion with the local police and P.Ws. 1 and 2, bolstered up a false case of rape against the appellants to teach them a lesson. 3 and 4 as a result of which P.W. 4 was injured and as the forest employees felt humiliated, they, in collusion with the local police and P.Ws. 1 and 2, bolstered up a false case of rape against the appellants to teach them a lesson. In para 5, Their Lordships observed that "Even if we may not be in a position to accept the defence in toto, the circumstances appearing in the evidence clearly disprove the case or rape but suggest a clear possibility that either one of the appellants or two of them may have had sexual intercourse with P.W. 1 with her consent and with the connivance of her husband."' Considering facts and circumstances, particularly considering the resistance, her abortion, force used by three accused, Their Lordships observed in para 7 as follows : "....Thus it is clear that if the prosecutrix would have been subjected to rape by the three appellants in the manner alleged to have been described by her, the inescapable conclusion would be that she would have abortion immediately and not a few days later. .......But we find that there are a number of other circumstances which clearly show that the prosecutrix was not raped by the three appellants, although there can be no doubt that the appellants may have had sexual intercourse with her consent." Further Their Lordships considered the medical evidence in para 8, as follows : "The opinions of medical experts show that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting stiffest possible resistance from her ......... The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged on slaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter." Lastly in para 23, Their Lordships observed as under. "We have already found that in view of the inherent improbabilities and the circumstances militating against the case put up by P.W. 1 it is not possible for us to believe her evidence which is not only untrue but inherently improbable. "We have already found that in view of the inherent improbabilities and the circumstances militating against the case put up by P.W. 1 it is not possible for us to believe her evidence which is not only untrue but inherently improbable. We have given our anxious consideration to all the aspects of the case and we feel that the story with which P.S.I. has come forward is not true and she has deliberately suppressed the truth. In these circumstances it is not possible for us to accept the evidence of P.W. 1 even though her demeanour may have impressed the Sessions Judge who appears to have been too presumptuous. Furthermore when the evidence of the prosecutrix is totally inconsistent with the medical evidence consisting of P.Ws. 8 and 10, when it is found to be false in material particulars regarding the preparation of the seizure lists, when it is wholly discrepant with respect to a most vital point, namely the manner in which the appellant No. 1 committed rape on her and finally when she has been guilty of deliberately suppressing the truth by denying the towel recovered to be the one which was used in the offence, which she herself had pointed out to the A.S.I. at the time of the seizure in April 19, 1972, it is difficult for us to place any implicit reliance on the testimony of such a witness. 7. The only point, thus, for determination is 'whether the prosecution proved that on 29-10-1985 at about 6 P.M. near village Lohara on Meriguda road, the accused raped on Rekha daughter of Nimbaji Sable, or the prosecutrix was a consenting party to the sexual intercourse. The following circumstances will throw light on the issue. (1) The offence alleged to have been taken place on the cart-track leading from Lohara to Kothapalli (Andhra-Pradesh). The said track is 10' in width. The place of the said spot of occurrence is hard. At two places oil-like stains were found. No other mark whatsoever was found on the spot of occurrence, as per spot panchanama Exh. 17 dated 31-10-1985. P.W. 1 Ku. Rekha deposed that the accused fell her down flat by holding her neck. When he inserted his penis in her vagina and started giving jerks, she tried to get her self released by shaking hands and legs. No other mark whatsoever was found on the spot of occurrence, as per spot panchanama Exh. 17 dated 31-10-1985. P.W. 1 Ku. Rekha deposed that the accused fell her down flat by holding her neck. When he inserted his penis in her vagina and started giving jerks, she tried to get her self released by shaking hands and legs. She further deposed in the cross-examination that while he was inserting his penis in her vagina, she had prevented him by legs. She was moving her legs. It means she exercised resistance, but though the place where the incident took place, is rough and hard, no injury is seen by the doctor on her person. (2) The prosecutrix deposed that "The accused after catching my hand did not push me and fell me. (witness volunteers. He slowly fell me down). After falling me down, I was made to lie. I was made to lie, for about half an hour. After I was made to lie, the accused removed his pant. It is correct that after falling me down accused had also fallen on me. He then got up and removed his pant. He then lied on me. He first lifted my saree, then the petticoat. He had lifted it slowly. He had lifted the saree and petticoat with both his hands. .......He removed my nicker form my person by bringing it slowly through my buttocks and legs. It took little time to lift my saree and petticoat and to removing my nicker. ....... When accused was lifting my saree and petticoat and removing my nicker my both the hands were free. It did not happen that I placed my both hands on my private part. When the accused was attempting to insert his private part into my private part at that time, both my hands were free. I obstructed the accused from inserting his private part in my private part. I obstructed only by words. I did not prevent him by my hands." The prosecutrix further deposed that "The accused inserted his private part in my private part slowly. He gave me about 10 to 12 jerks. It took about one hour after the accused inserted his private part in my private part and he discharged. ......Due to jerks I had not received any injury on the backside of my head or on the back or but tooks. He gave me about 10 to 12 jerks. It took about one hour after the accused inserted his private part in my private part and he discharged. ......Due to jerks I had not received any injury on the backside of my head or on the back or but tooks. Blood was not oozing from my private part." The witness in para 12 deposed that "When the accused had discharged at that time my brother Bali had come. Bali lifted accused from my person and he then beat him and I was standing by the side." (3) Dr. Smt. Sarla Jaikisan Murke (P.W. 14), who was Medical Officer in General Hospital, Chandrapur, examined the prosecutrix on 30-10-1985 and found that her hymen was intact. No bleeding per vagina. Clinically no signs of rape were present. According to doctor, generally in cases of rape the hymen is damaged but there are cases found in which hymen are found intact inspite of rape. (4) According to the prosecutrix, the spot of incident was surrounded by the fields of one Waghmare, Gahnaji Waghmare, Sukhakar, Satwaji Waghmare. At the relevant time the crops were standing. Satwaji Waghmare was present in his field. If there is a hybrid Jawari in the field, the agriculturist watch their fields during the day and night. According to her, though she shouted for help, inspite of the spot being surrounded by the fields where in hybrid Jawari was standing, none arrived on the spot. (5) The prosecutrix also specifically deposed that she should when the accused was inserting his penis in her vagina P.W. Baliram the brother of the prosecutrix, did not state that because he heard the shouts of his sister, he had gone to the spot. On the contrary his evidence is that his mother had sent him to see Rekha why she did not return from shop. Therefore, he proceeded to the village Yellapur. When he reached near the field of Satwa Waghmare, he found that Rekha was lying on the ground flat and accused was on her person. He was committing sexual intercourse with Rekha and, therefore, he caught him and pulled him from the person of Rekha. (6) The prosecutrix deposed in para 2 that before going to the house of Police Patil, she, her father and brother waited at the house of one Gahnaji Waghmare to whom she narrated the incident. He was committing sexual intercourse with Rekha and, therefore, he caught him and pulled him from the person of Rekha. (6) The prosecutrix deposed in para 2 that before going to the house of Police Patil, she, her father and brother waited at the house of one Gahnaji Waghmare to whom she narrated the incident. He has not been examined by the prosecution. The reasons are best known to the prosecution. (7) It is the prosecution story that the bottle containing the kerosine oil fell on the ground and thereby some kerosine oil was seen and smelled at the place. However, vide Exhs. 44 and 45, the report of the Regional Forensic Science Laboratory, State of Maharashtra, Nagpur, is inconclusive in respect of earth and grass collected and sent for the examination in polythene bags. (8) The Prosecutrix in para 11 specifically deposed that "Blood was not oozing from my private part." However, according to Exh. 44, i.e. the report of the chemical analyser, the blood stains were found on the torn petticoat. It is, therefore, difficult to understand how her clothes had blood stains. This circumstance is contrary to the positive evidence of the prosecutrix. (9) It is the case of the prosecutrix that when the appellant/accused caught hold her hand and fell her down and while she was trying to release herself from the hands of the accused, one Balu and Ramesh came there, to whom the accused threatened and asked them to go away. Therefore, they went away. The witness Balu Sonkamble (P.W. 7), a young boy of 20 years, who was grazing cattles along with one Ramesh Gaikwad in the field of Satwa Waghmare, deposed that he had seen the appellant/accused holding the hand of Rekha. Hearing her shouts, both rushed to the spot and saw the accused holding her hand. He asked the accused to release her hand. However, it is not the case of the prosecutrix that witness Balu had said anything to the accused. According to him, as they were threatened by the accused, they went away and started grazing their cattles. Had this witness seen the appellant/accused holding hands of prosecutrix, he would have naturally gone to her father, brother or other field owners, or agricultural labourers, to collect them and thereby to prevent the illegal activities of the appellant/accused. Therefore, the evidence of this witness appears to be unnatural one. Had this witness seen the appellant/accused holding hands of prosecutrix, he would have naturally gone to her father, brother or other field owners, or agricultural labourers, to collect them and thereby to prevent the illegal activities of the appellant/accused. Therefore, the evidence of this witness appears to be unnatural one. (10) Lastly, though the appellant/accused was assaulted by the brother of the prosecutrix and others, and he had received bleeding injuries the prosecution witnesses suppressed the same. Dr. Niranjan Yerkewar (P.W. 3), who examined the accused on 30-10-1985, deposed in para 4 that "Accused had sustained injury on his forehead. I had put stitches. He had also injury on shoulder. It was a contusion. There was abrassion on the stomach. The injury on the head was 1½ inch in length. It was only superficial and no deep." The prosecutrix in para 13 of her deposition, admitted that "When the accused was taken to the house of Police Patil, blood was oozing from his head and his clothes were stained with blood. ....At that time accused had not fainted, though he was in dozy condition. It is correct that accused was put in the bullock cart, then my brothers, father, Police Patil, myself went to police station." In para 12, she deposed that "When the accused had discharged at that time my bother Bali had come. Bali lifted accused from my person and he then beat him and I was standing by the side." P.W. 9 Baliram, the bother of prosecutrix, however, denied the fact of beating. In para 7, he deposed that "It is not correct that my father, my brother Mahadeo, Balu Ramesh and myself beat the accused immensely, due to alleged old enmity and caused him injuries on head, shoulder and stomach." 8. Considering the prosecution case and the circumstances which have been brought in the cross-examination as discussed above, it gives rise to the conclusion that there must be some relations between the prosecutrix and the accused, and, therefore, taking advantage of the darkness, the appellant/accused committed sexual intercourse with her consent. However, while Baliram, the brother of prosecutrix, saw both of them in compromising position, naturally, he being the brother, became enraged and assaulted the accused. However, while Baliram, the brother of prosecutrix, saw both of them in compromising position, naturally, he being the brother, became enraged and assaulted the accused. Considering the facts described by the prosecutrix there being no injury on any part of her body, though the alleged incident of sexual intercourse took place on hard ground and particularly when, according to her, she exercised resistance, I am inclined to come to the conclusion that though the appellant/accused has not in specific words admitted that he committed sexual intercourse, the facts themselves speak that the appellant/accused committed sexual intercourse with the prosecutrix and she was a willing and consenting party. 9. In the result, the appeal is allowed. The conviction and sentence imposed by the lower Court for the offence punishable under section 376 of Indian Penal Code, vide judgment and order dated 19-2-1987, is set aside and the appellant/accused is acquitted of the charge. His bail bond stands cancelled. If fine paid, be refunded to accused. Appeal allowed. -----