JUDGMENT 1. - This criminal appeal under Section 374 Cr.P.C. is directed against the judgment dated 26-3-1984 passed by the Additional Sessions Judge, Bharatpur, in sessions case No. 66/1983, whereby he convicted and sentenced the accused appellant as under:- Appellant Dinesh @ Guddu u/S 366 IPC 3 year's rigorous imprisonment and a fine of Rs. 500/- (in default, further to undergo six months R.I.). “ u/S 368 IPC 3 year's R.I. & a fine of Rs. 500/-(in default, further 6 months RI). “ u/S 376 IPC 3 year's RI & a fine of Rs. 500/- (in default, 6 months RI.). " u/S 450 IPC 3 year's RI & a fine of Rs. 500/- (in default, further 6 month's RI.). All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on the basis of a statement recorded by P.W. 13, Virendra Singh (S.H.O.) on 4-9-1983, a case was registered against the accused appellant (Dinesh @ Guddu) for the offences for which he has been found guilty. In that statement, it has been alleged that on 2-9-1983, the prosecutrix alongwith her sister Krishna Kumari and sister-in-law Vimlesh were slipping on her roof, then at about 12.30 p.m. in the night the accused appellant came at the roof of the prosecutrix and abducted her by force and, thereafter, he took the prosecutrix to his roof, which was adjecent to the roof the prosecutrix, after crossing a wall of 9ft. in hight. 3. Learned counsel for the appellant submits that this is a case of consent because of the reason this that there is no evidence to corroborate the statement of Ku. Ravi Sharma (PW-2) and that the testimony of P.W. 2 is not believable because as per her statement, when she was taken by force from her roof then on that point of time she could have made a hue and cry and could have shown resistance but Ku. Ravi Sharma (PW-2) herself, nowhere, stated that she either shown any resistance or made any hue and cry. Moreover, the record shows that she was taken to the roof of the accused appellant after crossing the wall which was 9ft. in hight. 4. In these circumstances, it was quite impossible that P.W. 2 could have been taken by the accused appellant with force after crossing a wall of 9ft. in hight. 5. Moreover, the record shows that she was taken to the roof of the accused appellant after crossing the wall which was 9ft. in hight. 4. In these circumstances, it was quite impossible that P.W. 2 could have been taken by the accused appellant with force after crossing a wall of 9ft. in hight. 5. Moreover, as per the statement of Ku. Ravi Sharma (Pw-2) the appellant committed rape on his roof and at that time, the prosecutrix was totally nacked and the learned trial Court found the accused appellant guilty on the basis of some spots of semens found on the underwear and Salwar of the prosecutrix. 6. A look at the judgment of the learned trial Court shows that the learned trial Court itself observed that the prosecutrix was a girl of easy virtue but on surmises and conjectures the learned trial Court further observed that this was not case of consent. In this case the sister and sister-in-law of P.W. 2 have not been examined by the prosecution. 7. The case of the prosecution further is that the father, mother and grand-father of Ku. Ravi Sharma (PW-2) were also slipping in the court-yard of the house and they have been examined by the prosecution but they did not speak even a single work so as to infer that any force was used by the accused appellant abducting Ku. Ravi Sharma (PW-2). 8. Further that the accused appellant after taking Ku. Ravi Sharma PW-2) confined her in a latrine which was on the third floor and after confinement the accused appellant went on the ground floor and at that time also an opportunity was there for Ku. Ravi Sharma (PW-2) to have got her free from the custody the accused appellant but no such attempt was made by the prosecutrix and at that time she could have made hue and cry so as to draw the attention of the members of her family but no such attempt was made by the prosecutrix which shows that Ku. Ravi Sharma (PW-2) was a consenting party. P.W. 2, in her statement, admitted that the accused appellant committed sexual inter-course with her 20 to 25 times when she was necked, in such a situation it was quite natural that she could have sustained some injuries. 9. Dr. Bhopal Singh (PW-7) has been examined by the prosecution, who has examined Ku. Ravi Sharma (PW-2). P.W. 2, in her statement, admitted that the accused appellant committed sexual inter-course with her 20 to 25 times when she was necked, in such a situation it was quite natural that she could have sustained some injuries. 9. Dr. Bhopal Singh (PW-7) has been examined by the prosecution, who has examined Ku. Ravi Sharma (PW-2). Neither in the report nor in his statement, Shri Bhopal Singh (PW-7) mentioned or stated any injury on the person of the prosecutrix. He has specifically stated and mentioned that he did not found any sign of injury on the body of the prosecutrix, further supports the defence plea of the accused that she was a consenting party. This plea is further supported the statement of Ram Bharosey (PW-5) & Manohar Lal (PW-6), from whose house Ku. Ravi Sharma (PW-2) alleged to have been recommended. As per the statement of Ku. Ravi Sharma, she was kept in the house by the accused appellant where P.W. 5 and P.W. 6 used to reside as a tenant. Neither P.W. 5 nor P.W. 6, in their statement, alleged that Ku. Ravi Sharma (PW-2) was kept in the custody of the accused appellant with force or that he make any complainant either to P.W. 5 or P.W.6. So, when P.W. 5 and P.W. 6 did not alleged any overt act against the accused appellant, in that situation the only inference which can be drawn is that Ku. Ravi Sharma (PW-2) left her house and accompanied the accused appellant voluntarily. 10. In view of the foregoing circumstances, the learned trial Court, therefore, erred in finding the accused appellant guilty when after consideration the entire facts and circumstances of the case it is abundantly clear that Ku. Ravi Sharma (PW-2) accompanied the appellant warranty and sexual intercourse, if exercised by the appellant, the same was exercised with her free consent. 11. Consequently, this appeal is therefore, allowed. The accused appellant is, therefore, acquitted from all the charges levelled against him. The judgment of the trial Court dated 26-3-1984 is, therefore, set aside. The accused appellant is on bail and his bail bonds stand cancelled. He need not surrender. *******