ORDER (ORAL) Ashok Agarwal, J. - By the ORDER and order dated the 6th of November, 1986, passed by the learned Additional Sessions Judge for Greater Bombay in Sessions Case No. 508 of 1985, the appellant original accused is acquitted of the charge under Section 376 of the Indian Penal Code but is convicted under Section 66I.P.C. and is sentenced to suffer rigorous imprisonment for nine months. The aforesaid order of conviction and sentence is impugned in the present appeal. Initially, four accused were prosecuted. However, accused Nos. 2, 3 and 4 were discharged as no material was found against them to justify the framing of a charge. 2. The prosecutrix in the case is P.W. 2 Mangala. At the relevant time she was studying for S.S.C. at Bhandup Peoples Education Society High School. The accused is a resident of the locality where Mangala was residing. She knew him since her childhood. She was in fact his pupil in school. The accused used to give her tuitions. Mangala used to go to his house for taking tuitions. She used to remain with him late till 11.00 p.m. In school, she used to take leading part in extra-curricular activities. She was proficient in sports and singing. According to her Principal P.W. 5 Smt. Indira Kartha, she was a bold student and not a shy-type of a girl nor was she timid. Theirs was a co-education school. One third strength of the students consisted of girls. Mangala had finished her S.S.C. examination by the 30th of March, 1985. She, however, continued to go to the accused for tuitions. Her father, P.W. 1 Vinayak Naik, used to reside in Saudi Arabia for doing a job of an electrician. In March, 1985 he lost the job and he came to India. In her deposition, Mangala has stated that even though she used to be exhausted the accused used to force her to take tuitions till late. She has further stated that while taking tuitions accused used to tell her that he loves her and he would marry her. Mangala used to keep quiet. Even, after her examinations were over the accused used to call her at his house for tuitions. 3. According to the prosecution, on the 5th of April, 1985 accused sent one Rajendra to the house of Mangala to call her at his house. Mangala used to keep quiet. Even, after her examinations were over the accused used to call her at his house for tuitions. 3. According to the prosecution, on the 5th of April, 1985 accused sent one Rajendra to the house of Mangala to call her at his house. Mangala set him back stating that she would not go. The accused again sent Rajendra in order to call her. Mangala was, thus, forced to go the accused. Accused told her that they were going out for some work and asked her to accompany him. He asked her to go and wait for him at Konkan Nagar Rickshaw Stand. She accordingly proceeded there and waited for the accused. The accused followed her and asked her to sit in a rickshaw. The accused was then carrying a leather bag. The accused brought her to Mulund Check Naka in the rickshaw. He changed the rickshaw there and brought her to Thane S.T. Stand. They boarded one S.T. Bus and reached Kalyan and thereafter proceeded to Panvel another S.T. Bus. From there, they went to Pune by train. Thereafter by another train they went to Kurduwadi and by yet another train to Latur. At Latur, the accused booked a room in one lodge near the S.T. Stand. Mangala asked the accused as to where he was taking her. He asked her to quietly accompany him lest he would slur her name and honour. In the room of the lodge, they had food and thereafter, went to the market where the accused brought her a frock and an underwear. They returned to the lodge at about 8.45 p.m. In the room, it is the case of tile prosecution, the accused forcibly removed her clothes and committed an act of sexual intercourse with her under a threat that if she made noise he would leave her there and go away. They got up at about 6.00 a.m. in the morning and proceeded to Sapatane, the village of the accused. There, the accused introduced Mangala to his grandmother as his wife. They stayed there for a day with her. There also the accused committed sexual intercourse during night time. Next day they went to village Nazare where accused's uncle resides. There they stayed for one week. There also the accused introduced her as his wife. During their stay, the accused committed sexual intercourse every day. They stayed there for a day with her. There also the accused committed sexual intercourse during night time. Next day they went to village Nazare where accused's uncle resides. There they stayed for one week. There also the accused introduced her as his wife. During their stay, the accused committed sexual intercourse every day. From there, they came to village Bhose near Pandharpur and stayed with the sister of the accused for one week. There also the accused continued to have sexual intercourse every day. He told his sister that they had married each other. From there, they went to village Khupsungi and stayed with the eldest sister of the accused. There also he introduced her as his wife and stayed there for a week and had sexual intercourse every day. Then they came back to village Bhose. On 15th of May, 1985 her father and police came and they were apprehended and brought to Pandharpur police station. Mangala showed the police the places where they had moved in the company of each other. According to the prosecution, Mangala was born on the 5th of March, 1965. She was, therefore, a minor on the date of the incident. On the aforesaid facts, the accused was charged under sections 363, 366 and 376 of the Indian Penal Code. 4. The accused pleaded not guilty. According to him, Mangala had fallen in love with him and it was she who had taken a leading part in eloping with him. According to him, Mangala had come to him while he was taking tuitions. She asked him to break the tuition classes. She took him aside and told him that she has personal work and asked him to leave the students. The accused asked all the students to leave and only Mangala and accused remained in the class-room. She told the accused that this was an opportune time as her father was not at home. Both of them should leave that place. She expressed love for him and told him that she would see to it that accused does not marry any other girl. She threatened him that if the accused did not accompany her she would commit suicide by electrocution. According to the accused, Mangala had extended a threat that unless he took her away she would raise cries to defame him. She threatened him that if the accused did not accompany her she would commit suicide by electrocution. According to the accused, Mangala had extended a threat that unless he took her away she would raise cries to defame him. He tried to persuade her but on being told by her he followed her to Konkan Nagar Richshaw Stand. The accused contended that a false case had been concocted against him. 5. At the trial, several witnesses were examined, the material amongst them are, P.W. 2 Mangala, the prosecutrix and P.W. 1 Vinayak Naik, her father. In respect of age of Mangala, the prosecution examined P.W. 5 Indira Kartha, the Principal of the school, who proved the school leaving certificate (Exhibit 12) which shows that her date of birth is 5th of March, 1969. In addition, the prosecution examined P.W. 13 Shalini Gokhale, a Clerk in the Bombay Municipal Corporation who produced a birth entry (Exhibit 30) which shows that the date of birth of Mangala is the 5th of March, 1969. The witness has also produced hospital entry (Ext. 31) and an extract of the B.M.C. Birth Register (Exhibit 32). All the three documents indicate that the date of birth of Mangala is the 5th of March, 1969. It may be noticed, at this stage, that the name of Mangala is registered in the birth register during the pendency of the trial i.e., on the 9th of October, 1986. In addition, the prosecution has examined P.W. 14 Dr. Ashok Shinde, who examined Mangala and issued a certificate (Exhibit 35). According to the doctor, the hymen of Mangala was intact. The Labia mojora/Minora was normal and Clitoris was also normal. Placing reliance on a passage appearing at page 315 of Mody's Medical Jurisprudence, the doctor has sought 10 suggest that despite the above observations it is still possible that Mangala may have been subjected to sexual intercourse. In cross-examination, however, he admitted that he is not certain if the prosecutrix was subjected to sexual intercourse or not. He further admitted that Labia Major and Labia Minor being normal is consistent with virginity. In addition to the above evidence, the prosecution examined two police officers being P.W. 15 Prakash Lawand and P.W. 16 Tulshiram Dalvi, both P.S.Is. attached 10 the Bhandup police station. 6. He further admitted that Labia Major and Labia Minor being normal is consistent with virginity. In addition to the above evidence, the prosecution examined two police officers being P.W. 15 Prakash Lawand and P.W. 16 Tulshiram Dalvi, both P.S.Is. attached 10 the Bhandup police station. 6. On perusal of the above evidence, the learned Judge of the trial court has found that the prosecution has failed to prove that the accused had committed forcible sexual intercourse upon Mangala. Consistent with the said finding he proceeded to pass an order of acquittal under section 376 of the Indian Penal Code. The learned Judge further found that the prosecution had proved that the accused had enticed Mangala from out of the lawful guardianship of her parents with a view that she may be seduced to illicit sexual intercourse. Consequent upon the said finding the learned judge of the trial court recorded an order of conviction and sentence under section 366 of the Indian Penal Code, as stated above. The said order of conviction and sentence is impugned in the present appeal. 7. As is the case in most of such cases, the prosecution case substantially rests on the evidence of the prosecutrix. It will, therefore be advisable to proceed to examine the evidence of Mangala in order to find out whether the case of Mangala that she was forced or enticed away and was, thereafter, forced to submit to sexual intercourse, can be believed. 8. It would first be advisable to see what type of girl Mangala is. We have it in the evidence of her Principal P.W. 5 Smt. Indira Kartha that Mangala was an average student. She was taking leading part in extra-curricular activities. She was proficient in sports and singing. She was a bold student and not a shy-type of a girl nor was she timid. She was studying in co-education school where one third of the students are girls. We have it in the evidence of Mangala that in the results which were declared after the incident in question she secured 46 per cent marks in the S.S.C. examination. She used to participate in singing competition in the school. She was awarded two prizes in such competitions, one for a film song "Tu Muzhe Jaan se bhi Pyara hai" and "Mera Balam hai Chhail Chhabila Main to Nachungi". She used to participate in singing competition in the school. She was awarded two prizes in such competitions, one for a film song "Tu Muzhe Jaan se bhi Pyara hai" and "Mera Balam hai Chhail Chhabila Main to Nachungi". It would, thus, appear that Mangala was far from being timid but was a socialite and was bold in nature. 9. We next have, in the evidence of Mangala, that her house is about five minute's walk from the house of the accused. Accused used to give tuitions to several students numbering about 15. The tuitions of those students used to be over by 9.00 p.m. However, Mangala used to continue to remain in the house of the accused, who was a bachelor, till about 11.00 p.m. Mangala, in her evidence, claims that the accused used to force her to take tuitions till 11.00 p.m. though she was exhausted. According to her, while taking tuitions accused used to tell her that he loves her and he would marry her. Even after her examination was over he used to call her to his house for tuitions. If regard is had to certain letters which are produced on record at Exhibits A to D, it would appear that the case was quite the contrary and it was Mangala who had fallen in love, she was desperately in love with the accused. One letter contains the diagram of a heart with an arrow cutting across with an inscription "Sob sob, you have broken my heart". Another letter addresses the accused as "Darling Yunus" and states, "I am writing you the love letter first time. You are my Sweet Heart and also my life. I think you can live without me. But I can't”. Another letter contains the following message: "1. Count your life by smile and not tears Count your age by friends and not years This is My only for you. My dear.... "May God Bless you. Remember dear friend of Mine. A faithful friend is hard to find. If you find one good and true. Do not exchange old for new. For ever though new is Silver. Remember old is Gold. This is My Simple wish to you But true May God Bless you in Every thing you do. My Heart is a Cabbage Divided into two The leaves I give to others The heart I give to you. Do not exchange old for new. For ever though new is Silver. Remember old is Gold. This is My Simple wish to you But true May God Bless you in Every thing you do. My Heart is a Cabbage Divided into two The leaves I give to others The heart I give to you. Not for Fame Not for beauty But for remember I write My name Nilopher." Net another letter Exhibit N5 reads as under: "Darling Yunus. From Friday I am seeing that you are up set because of Me. I love you very much Yunus. Today also I have not talked with him then also you are telling that you have talked. Why you are getting such doubt that I am knowing after My going to school with whom you are talking how I can understand and I am not asking also for you so you thinks that how she is not asking me weather I have talked with anyone or not. She might have been talking with the boys so that I must ask her. Now 1 am ending this letter you Sweet Heart. Yours loving wife, Maina, Mangal, Pappu; Nelofar," Another letter Exhibit 'C' reads as under: "I love you Darling Very Very much. Jab Tak Sooraj Chand Rahega Yunus Tera Mera Pyar Rahega. Aajkal Aapko Kotiyan Ki Bhaut Yad Aati Hai. Majra Kya Hai? Kuchha Gadbad hai kya." Another letter Exhibit A2, reads as under: "Main Apne Aapko Dhoke mein Daloon. Aapke Yahan Sirf, Student Banker Aayi. Agar Aapko Koyi Aeteraz Hoto Mujhe Kah Dena. Aapki Panwati God Bless You." In the above love letters addressed by Mangala, she has styled herself as the 'wife' of the accused. She has changed her Hindu name into 'Nilofar'. a name popular amongst Muslims which is the caste of the accused. She has also styled herself as 'Mangala Y. Shaikh’. i.e. being the wife of the accused. In my view, the above letters give a strong indication that far from the accused being in love it was Mangala who was on the aggressive and in love with the accused. 10. We next have in evidence that the marriage of the accused was settled to be performed on the 26th of April, 1985 to a Muslim girl in Bombay. 10. We next have in evidence that the marriage of the accused was settled to be performed on the 26th of April, 1985 to a Muslim girl in Bombay. We, thus, have a situation where Mangala was madly in love with the accused and the accused was about to get married within a short period. We further have, in evidence, that a co-student of Mangala named Elda had committed suicide. It is the case of the defence that she had committed suicide because she was jilted in love. Though Mangala admits that Elda had committed suicide she feigns ignorance about the cause of the suicide. It is in this background that one has to view the case of the defence it was Mangala who had taken the initiatives and had pursued the accused to elope with her under the threat that in case the accused did not accompany her she would commit suicide. The prosecution has sought to make good the case of enticement on the part of the accused by making out a case that the accused had sent one Rajendra to Mangala for asking her to go to him. The reason for making out this case was obvious, accused was residing at a five minute's walk from the house of Mangala, Mangala used to go every day late till night to the house of the accused even after her examination. Hence, if the accused wanted to take her she was available at his house every night. The prosecution, therefore, had to bring in an agency of Rajendra in order to make good its case of taking of Mangala from out of the custody of her guardians. If one examines the case in some detail, one would find that the case is artificial and difficult to place reliance. According to Mangala the accused had sent Rajendra for calling her on an earlier occasion also i.e., on the 3 1st of March, 1985. According to her even on that day she did not respond. Even on the date of the incident i.e. on the 5th of April, 1985 Rajendra went and told her that the accused had called her to his house. She denied and sent Rajendra back. The accused again sent Rajendra in order to call her. Being forced she went to the house of the accused. Even on the date of the incident i.e. on the 5th of April, 1985 Rajendra went and told her that the accused had called her to his house. She denied and sent Rajendra back. The accused again sent Rajendra in order to call her. Being forced she went to the house of the accused. According to Mangala, her father was not in the house at that time. We have it in the evidence of her father P.W. 1 Vinayak Naik, that when he returned home he did into find Mangala at home. When he asked his wife she told him that she had gone to her teacher Yunus, the accused in the case. It is pertinent to note that it is not the case of Vinayak that his wife informed him that Rajendra had come to call Mangala. Furthermore, if Mangala's mother was the only person present in the house when Mangala left the house she was an important witness in order to depose -in respect of the details of the circumstances which led to her leaving the house. It was open to the prosecution to have examined her mother for proving that Rajendra had come and asked Mangala to go to the house of the accused. The omission on the part of the prosecution to examine the mother of Mangala casts a doubt on this part of the case of the prosecution. Moreover, Mangala has admitted that she had omitted to state before the police that Rajendra had come to call her on the earlier occasion i.e. on the 31st of March, 1985. The case regarding Rajendra coming and calling her on the 31st of March, 1985 was relevant as that was the reason she knew Rajendra on the 5th of April, 1985 when he come to call her again. The omission to make a reference to the earlier visit of Rajendra, therefore, assumes some significance. 11. Mangala has next sought to assert in her evidence that she moved in the company of the accused for a good 41 days. She stated that she stayed in the houses of the relations of the accused. There the accused introduced her as his wife. At one place the inmates of the house slept outside and accused and Mangala slept inside the house. She stated that she stayed in the houses of the relations of the accused. There the accused introduced her as his wife. At one place the inmates of the house slept outside and accused and Mangala slept inside the house. On each of these 41 days accused committed sexual intercourse and it is her claim that she was an unwilling party and she was subjected to forcible sexual intercourse. If one has a regard to the medical evidence on record, her claim is found to be totally false. I have already reproduced the medical evidence to his regard. Though it is true that in certain very rare cases hymen may be intact even though a girl may be subjected to sexual course. But in such cases where the labia majora are separated and flabby tand the labia minora cutaneous in appearance and separated, the fourchette turn, the vagina roomy and enlarged. These are not the conditions which are found in the medical examination of Mangala. As far she is concerned, the labia majora and labia minora have been found to be normal and the clitoris is also found to be normal. In the circumstances, the passage reproduced by the learned Judge of the trial court as found at page No. 315 of Mody's Medical Jurisprudence is wholly inapplicable to the present case. Even the doctor Ashok Sinde has conceded that the labia majora and labia minora being normal is consistent with virginity. He has further conceded that he is not certain that the prosecutrix is subjected to the sexual intercourse or not. In view of the above evidence it is impossible to believe the evidence of Mangala that she was subjected to forcible sexual intercourse during the 41 days sojourn she had with the accused and that too against her wishes. If all this had taken place or was taking place against her wishes, she had ample opportunity to report the matter. They were freely moving about from place to place. They had even met an Advocate. Far from complaining, she had stated to him that she had come voluntarily with the accused. 12. Another piece of evidence which is relied upon by the prosecution is regarding the carrying of a leather bag by the accused at the time of leaving in the company of Mangala. They had even met an Advocate. Far from complaining, she had stated to him that she had come voluntarily with the accused. 12. Another piece of evidence which is relied upon by the prosecution is regarding the carrying of a leather bag by the accused at the time of leaving in the company of Mangala. This piece of evidence has been introduced in order to show prior preparation on the part of the accused. It is further sought to be suggested that as far as Mangala was concerned she had left with only the clothes on her person. In this regard it is pertinent to note that the said bag has not been seized by the police. Once the case of the prosecution that Rajendra had come to call Mangala and this was at the instance of the accused fails, what follows is that movement of Mangala with the accused cannot be attributed to the accused. If Rajendra had not come to call her then Mangala had found herself in the house of the accused. If Rajendra had not called her and it is nobody's case that the accused had called her, the only inference that can be legitimately drawn is that Mangala had voluntarily gone to the house of the accused. We further have the fact that Mangala had proceeded to Konkan Nagar Rickshaw stand. It was the accused who had followed thereafter. It would, thus, appear that Mangala had taken the leading part. In the circumstances, whether the accused had carried a bag or not and similarly whether Mangala had carried additional clothes or not looses its significance. 1t is difficult, therefore, in the circumstances to subscribe to the finding arrived at by the trial Court that the accused had enticed Mangala from the lawful guardianship of her parents. The entire evidence on record indicates to the contrary. The evidence indicates that it was Mangala who was in love. She expressed her feelings in the letters, she addressed to the accused. She has taken the initiative, that too on the eve when the marriage of the accused was to be performed with an another girl. The entire evidence on record indicates to the contrary. The evidence indicates that it was Mangala who was in love. She expressed her feelings in the letters, she addressed to the accused. She has taken the initiative, that too on the eve when the marriage of the accused was to be performed with an another girl. It was Mangala who has taken the initiatives and persuaded the accused to accompany her and to take her to various relations of the accused where she was introduced as his wife and where she willingly resided in the company of the accused without any protest till they were apprehended by the police. In the circumstances, the impugned order of conviction and sentence is liable to be quashed and the accused is entitle to an order of acquittal. 13. In the result, the ORDER and order of conviction dated the 6th of November, 1986, passed by the learned Additional Sessions Judge for Greater Bombay, in Sessions case No. 508 of 1985, is set aside and the appellant/original accused is acquired. His bail bonds shall stand cancelled. Appeal allowed. Order of acquittal.