S. C. MOHAPATRA, J. ( 1 ) OFFENCE of kidnapping and rape in relation to unmarried girl in her teens alleged to have been committed by a man in his forties taking advantage of the exclusive company is subject-matter of this appeal against acquittal. ( 2 ) ACCUSED and parents of P. W. 2 mother of prosecutrix (P. W. 1) belong to village Bramhanigaon in Binjharpur police station of Cuttack district. P. W. 2 is married in village Kantia under the same police station. Accused established good relationship with P. W. 2 as her brother. On account of such relationship he was visiting house of P. W. 2 at times. With assistance from accused eldest daughter of P. W. 2 was given in marriage. After the second child, a son P. W. 1 was born as the third child and second daughter of P. W. 2. Wife of accused has deserted her (him ). This is the background brought in evidence by prosecution. ( 3 ) UNDISPUTEDLY, accused went from his village to house of P. W. 2 on 14-2-1983 and stayed there in the night. Next morning he took P. W. 1 with him on a cycle to village Aredi in Balasore district to have prayer to Hindu deity Akhandalamani. They, could not return back that day and took rest in the Dharmasala (resting place of pilgrims) at Aredi. ( 4 ) PROSECUTION case in short is that while accused and P. W. 1 were sleeping in a room of Dharmasala at night, accused committed rape on P. W. 1 twice after midnight. Accused denied the occurrence and stated that they took rest on the verandah of the Dharmasala and he has been falsely implicated. ( 5 ) ACCUSED was charged under Sections 366 and 376, I. P. C. Prosecution examined eight witnesses, proved the F. I. R. (Ext. 5) medical requisition and report of examination of accused (Ext. 3) such requisition and report of examination of P. W. 1 (Ext. 2) X-Ray plates (Exts. 2/ 1 to 2/ 4), report of the chemical examiner (Ext. 4), seizure list of Saya and Chadi (under garments) of P. W. 1 (Ext. 1), seizure list of cycle (Ext. 7 ). Prosecution produced the saya of P. W. 1 (M. O. I.) and underwear of accused (M. O. 11 ). Out of the eight witnesses, P. W. 1 is the victim girl. 4), seizure list of Saya and Chadi (under garments) of P. W. 1 (Ext. 1), seizure list of cycle (Ext. 7 ). Prosecution produced the saya of P. W. 1 (M. O. I.) and underwear of accused (M. O. 11 ). Out of the eight witnesses, P. W. 1 is the victim girl. P. W. 2 is her mother, P. W. 4 is the priest who assisted accused and P. W. 1 in offering Bhog and arranging a room in Dharmasala for them to spend the night. P. W. 5 is another Panda who reached the Dharmasala in the night after the alleged incident. P. W. 3 is the Doctor of Chandbali hospital who examined the accused, P. W. 6 is the lady Doctor of Bhadrak who examined P. W. 1 and determined her age, P. W. 7 is scribe of the F. I. R. (Ext. 8) and P. W. 8 is the Investigating Officer. No witnesses has been examined in defence. ( 6 ) LEARNED Sessions Judge on appraisal of materials on record held that some sort of ugly scene might have taken place in the room for which P. W. 1 cried and police-constable took advantage of the same and might have created such a story which finds no corroborative evidence. Learned Sessions Judge disbelieved the prosecution case of sexual intercourse and acquitted the accused. ( 7 ) MR. D. Das, learned Additional Standing Counsel ightly submitted that the judgment of acquittal is valuable since learned Sessions Judge has not considered the offence under Section 366, I. P. C. and has not taken into consideration the totality of circumstances against the accused. Learned Sessions Judge has not given any acceptable reason why P. W. 1 would be disbelieved whose evidence is corroborated by circumstances which have been accepted by the learned Sessions Judge to some extent. ( 8 ) ACCUSED has been charged in this case for having kidnapped P. W. 1 with intent that she may be forced to illicit intercourse. Kidnapping is of two kinds as provided in section 359, I. P. C. It may be kidnapping out of India or kidnapping from lawful guardianship. There is no case of kidnapping out of India in this case. Kidnapping from lawful guardianship is provided under Section 361, I. P. C. Material portion relevant to this case reads as follows:--"361. Kidnapping is of two kinds as provided in section 359, I. P. C. It may be kidnapping out of India or kidnapping from lawful guardianship. There is no case of kidnapping out of India in this case. Kidnapping from lawful guardianship is provided under Section 361, I. P. C. Material portion relevant to this case reads as follows:--"361. Kidnapping from lawful guardianship:-- whoever takes or entices any minor. . . . . . under eighteen years of age if female. . . . . . out of the keeping of the lawful guardian of such minor. . . . . . without consent of such guardian, is said to kidnap such minor. . . . . from lawful guardianship. . . . . . . "kidnapping a woman with intent that she might be forced to illicit intercourse is punishable under Section 366, I. P. C. relevant portion of which reads as follows :-"366. Kidnapping, abducting or inducing woman to compel her marriage etc. Whoever kidnaps. . . . . , any woman. . . . . . in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished. . . . . . . " ( 9 ) IN relation to this charge, even if I assume that P. W. 1 is below 18 years of age, the same would not be sufficient. Prosecution is also required to prove that she was kidnapped from lawful guardianship. If this is proved, the next ingredient to be proved is that she was kidnapped with intent or knowledge that she may be forced or seduced to illicit sexual intercourse. According to evidence of P. W. 2, as also of P. W. 1, accused took P. W. 1 to Aredi with consent of her mother (P. W 2 ). When father of P. W. 1 was absent from house, P. W. 2 is lawful guardian of P. W. 1. Taking P. W. 1 with consent of P. W. 2 cannot constitute kidnapping. Accused was closely connected with family of P. Ws. 1 and 2. Since with consent of P. W. 2, P. W. 1 went of her own accord with the accused, first requirement indicated above is not proved. Taking P. W. 1 with consent of P. W. 2 cannot constitute kidnapping. Accused was closely connected with family of P. Ws. 1 and 2. Since with consent of P. W. 2, P. W. 1 went of her own accord with the accused, first requirement indicated above is not proved. There is also no material to draw an inference that accused had the intention or knowledge that she would be forced or seduced to illicit sexual intercourse when she was taken out of the lawful custody. Accordingly, prosecution has failed to establish charge under Section 366, I. P. C. against the accused. In this respect the decision of Supreme Court reported in AIR 1979 SC 1276 : (1979 Cri LJ 867) (Lalta Prasad v. State of Madhya Pradesh) gives guidance although facts in each case would be the basis for the conclusion to be arrived at. ( 10 ) COMING to the next charge against the accused under Section 376, I. P. C. , it is to be kept in mind that a male human-being can only commit such offence. In all circumstances sexual intercourse with a woman is not offence. Six circumstances which constitute offence of rape have been indicated in Section 375, I. P. C. where it has been explained that penetration is sufficient to constitute sexual intercourse for the offence of rape. ( 11 ) WHILE examining the circumstances, it is to be kept in mind that sexual urge or passion for sexual intercourse is a natural human instinct of both the sexes after a certain variable age which continues for a long period in human life. Restraint and control of passion is a part of civilisation. Where restraint falls short and passion becomes uncontrollable beastly quality in man or woman is revealed. Sexual acts and ancillaries thereto arising passion are not made public in our society and as far as practicable are kept secret confined to the male and female involved in it. Even permissible sexual acts on account of marital relationship between husband and wife are not public and in some circumstances restraint is put by social customs. Where two persons of opposite sexes capable of sexual urge remain in exclusion, such urge becomes more natural and passion uncontrollable unless there is self-restraint. Even permissible sexual acts on account of marital relationship between husband and wife are not public and in some circumstances restraint is put by social customs. Where two persons of opposite sexes capable of sexual urge remain in exclusion, such urge becomes more natural and passion uncontrollable unless there is self-restraint. This restraint may be on account of learning, training, difference in age, in economic position or social status or the like or existence of relationship which is a social prohibition for any sexual relationship. Persons otherwise having scope of satisfaction of their urge on account of marital life restrain themselves to have extra marital relationship to avoid being shunned in the society in which they are members. ( 12 ) KEEPING in mind the aforesaid social position, Court is to consider whether there was sexual intercourse in a given case and where positive conclusion becomes irresistible further consideration is to be made, whether the man has committed an offence of rape coming within any of the categories described in Section 375, I. P. C. ( 13 ) IT is not in dispute that accused took P. W. 1 to Aredi in a cycle. They started in the morning and travelling a long distance and crossing huddle of a river reached Aredi at 3 p. m. They could not return back that day and stayed at Aredi Dharmasala. Since accused took the plea that they took rest on the verandah of the Dharmasala while P. W. 1 stated that they remained in a room of the Dharmasala, it is necessary to find out the place where they stayed. P. W. 1 stated that P. W. 4 arranged a room in the Dharmasala for them where they slept. P. W. 4 corroborates statement of P. W. 1. Trial Court held that there might have been some ugly scene in the room of the Dharmasala. That the accused and P. W. 1 remained in a room is thus, clear from evidence of P. W. 1 corroborated by P. W. 4 the priest who arranged the room for them. ( 14 ) ACCUSED is capable of having urge of sex being in his forties. He found P. W. 1 in exclusion. His difference in age and position of maternal uncle by good relationship ought to have been factors for restraint and control of passion. ( 14 ) ACCUSED is capable of having urge of sex being in his forties. He found P. W. 1 in exclusion. His difference in age and position of maternal uncle by good relationship ought to have been factors for restraint and control of passion. As suggested by the accused to P. W. 2 mother of the Prosecutrix (P. W. 1) which was denied by her, P. W. 2 tried to give P. W. 1 in marriage with accused with help of P. W. 4. Thus, at least to the mind of the accused, there was no social restraint for sexual relationship with P. W. 1 being established by marriage which is a destructive factor for restraint and control of passion of accused. Added to it, accused having deserted his wife as stated by P. W. 2 can be classified as a person suffering from sex starvation. This starvation is another factor for the likelihood of the passion not being controlled by the accused. ( 15 ) HAVING come to conclusion that there was probability of sexual intercourse as alleged, it is to be examined if assertion of P. W. 1 that accused had such intercourse with her is to be accepted. Learned Sessions Judge came to conclusion that there was an ugly scene in the room in the night which is short of sexual intercourse. P. W. 1, however, asserted that accused had sexual intercourse with her. Learned Sessions Judge disbelieved the same on account of the fact that P. W. 6 the Lady Doctor who examined her at Bhadrak did not find any sign of recent sexual intercourse. Absence of semen on the saya as opined by the chemical examiner led the learned Sessions Judge to conclusion that there was no sexual intercourse by the accused. ( 16 ) LEARNED Sessions Judge has not taken into consideration human conduct and totality of circumstance into consideration. Evidence of P. W. 6 that there was no sign of recent sexual intercourse has been explained by her. She was examining P. W. 1, 48 hours after and has clearly stated that after such distance in time signs of recent sexual intercourse would not be available. Thus, absence of any medical sign of recent sexual intercourse with P. W. 1 cannot be a ground in such circumstances to rule out the possibility of sexual intercourse. She was examining P. W. 1, 48 hours after and has clearly stated that after such distance in time signs of recent sexual intercourse would not be available. Thus, absence of any medical sign of recent sexual intercourse with P. W. 1 cannot be a ground in such circumstances to rule out the possibility of sexual intercourse. Absence of stains of semen on the saya contrary, to assertion by P. W. 1 is another circumstance which weighed with learned Sessions Judge. This would have normally, prevailed if no other circumstance weighty enough would have been available. In this case accused was examined by P. W. 3 the Doctor in the next morning who found smell of semen coming from the pubic area and the male organ. He also found the pubic hair in sticky cluster. In absence of any explanation from accused for existence of the same, since it can only be within special knowledge of accused, is a circumstance to destroy the absence of stains on saya. Accused expressed ignorance of the same although chance was given to him to explain under Section 313, Cr. P. C. I am inclined to accept evidence of P. W. 3 the Doctor as a corroboration to assertion of P. W. 1 that accused had sexual intercourse with her. ( 17 ) MR. Routrai, learned counsel for the accused-respondent submitted that there is no other evidence except the assertion of P. W. 1 which ought not to be the basis for conviction of the accused when on medical examination no injury whatsoever was found on her and when her statement with regard to stains of semen was not found to be correct. According to Mr. Routrai, there being no corroboration to the evidence of P. W. 1, acquittal ought not to be interfered with. ( 18 ) AS has been observed in the decision reported in AIR 1981 SC 86 : (1980 Cri LJ 1344) (Rafiq v. State of Uttar Pradesh) corroboration for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence. Facts and circumstances, human behaviour in the society to which parties belong are to be kept in mind. It is further to be given importance that no woman of honour would accuse another of rape since she sacrifices thereby what is dearest to her. Facts and circumstances, human behaviour in the society to which parties belong are to be kept in mind. It is further to be given importance that no woman of honour would accuse another of rape since she sacrifices thereby what is dearest to her. In such social condition, Court cannot cling to a fossil formula and insist on corroboration. Hardly a sensitical (sensible) Judge who sees the conspectus of circumstances in its totality, rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity. ( 19 ) IN this case, I have already discussed how the probabilities are in favour of sexual intercourse. No circumstance except that there are a few minor variations with regard to description of surrounding circumstances have been brought out. Statement of P. W. 1 that she did not raise a cry because accused threatened stating that police are nearby, is a natural situation for a girl in position of P. W. 1. Between two evils, she preferred non-resistance. It might be foolish. But fear of police whose conduct has been taken note by Parliament to make statement before it inadmissible, is natural for a rustic girl yet in her teens. Such non-resistance cannot, in this case be a circumstance to discard her version against a man who is a relation by acceptance and who had rendered help to the family in the past as stated by P. W. 2. Rather, this is a circumstance against the accused who used his position vis-a-vis the victim girl for satisfying his passion when she was in a helpless situation exclusively available to accused. A lady who is victim of the promiscuous pursuit of the accused, cannot be described as accomplice merely because she did not raise alarm in a situation where she had no other helping hand except the accused who betrayed the confidence reposed on him. In this respect decision of Supreme Court reported in AIR 1958 SC 143 : (1958 Cri LJ 273) (Sidheswar Ganguly v. State of West Bengal) gives guidance which has subsequently been developed by the Supreme Court and has been applied to the circumstances available. P. W. 1 immediately after sexual intercourse for second time came out and narrated the occurrence to others who were present as stated by P. Ws. 4 and 5. P. W. 1 immediately after sexual intercourse for second time came out and narrated the occurrence to others who were present as stated by P. Ws. 4 and 5. No sooner she reached home a few days after, she also narrated the incident to her mother (P. W. 2 ). I find no reason why a girl would consistently tell lies against the accused. Adherence to Truth has not yet been completely sacrificed in our society. Even if it is assumed that in a helpless condition at Aredi, she might have been compelled to give a version which was not true, there is no reason why she told lies to her mother when she met her. These are all circumstances which lead to an inference that accused had sexual intercourse with P. W. l in the room of the Dharmasala at Aredi in the night of 15/ 16-2-1983. ( 20 ) SEXUAL intercourse with woman who is not the wife of accused, howsoever immoral may be, is not an offence unless it comes within any of the circumstances stated in Section 375, I. P. C. Even if it is assumed that with consent of P. W. 1, accused had sexual intercourse with her, an offence of rape is committed if P. W. 1 would be below age of sixteen years. In this case, P. W. 6 on medical examination gave the opinion that victim girl was aged between 15 and 17 years. At the time of her evidence she stated her age to be 17 years on 18-2-1984. Trial Court also assessed her age to be the same. P. W. 2 mother of P. W. 1 also stated her age to be 17 on 14-2l984. From her narration and age of other children, Mr. Routrai submitted that P. W. 1 was more than 16 years old an the date of occurrence. There is no other evidence of age. In such circumstances, I am not inclined to accept prosecution case that she was under age of 16 on the date of occurrence. When evidence of age is in border line, accused should get the benefit of it. ( 21 ) ON the aforesaid finding, consent or willingness of P. W. 1 for sexual intercourse becomes material. P. W. 1 stated that when she was sleeping, accused came to her and lifted her clothing. When evidence of age is in border line, accused should get the benefit of it. ( 21 ) ON the aforesaid finding, consent or willingness of P. W. 1 for sexual intercourse becomes material. P. W. 1 stated that when she was sleeping, accused came to her and lifted her clothing. When she was about to cry, she was threatened that police was nearabout. Consent is always voluntary. The fact stated by P. W. 1 does not lead to an inference that she was a consenting party voluntarily. Her willingness cannot also be inferred in such circumstance. Taking into consideration the dominating position of accused, helpless situation in which P. W. 1 was situated and belief that police is nearabout, disclosure of the event immediately afterwards to those who were present as stated by P. Ws. 4 and 5 and disclosure of the event to her mother on his first meeting with her after the event, are circumstances to come to a conclusion that she had neither consented nor was she willing for sexual intercourse with accused and accused has sexual intercourse with her against her will as well as without her consent. Accordingly, accused is guilty of offence of rape and is liable to be punished under Section 376, I. P. C. ( 22 ) COMING to question of sentence, trial Court has not given an opportunity to accused to be heard on the question as required under Section 235 (2), Cr. P. C. Accused is in jail now since he could not furnish security for his liberty on bail after this appeal was admitted. He was in jail for sometime before his acquittal as under-trial prisoner. He is now in his fifties. In such circumstance, when he has already been given stigma to lead rest of his life as a person not trustworthy having betrayed confidence and is antisocial being immoral, I am not inclined after eight years of the event to find his abode in the jail any further It is true that such a man who has betrayed confidence, does not deserve any sympathy and in case this appeal would have been heard immediately, I would not have hesitated to sentence him to R. I. for at least seven years so that it would have been a lesson to other members of society for observing restraint in matters of sex. However, when I am reversing an acquittal and find that a man in to be in his fifties who has been confined to prison for about five years, I take a liberal view taking his age and present helplessness into consideration and direct that he shall undergo sentence for the period he was in jail. ( 23 ) IN the result, appeal is allowed. Accused is convicted under Section 376, I. P. C. and is sentenced to imprisonment for the period already undergone. Appeal allowed.