ORDER (ORAL) Ashok Agarwal, J. - Conviction of accused No. 1, for an offence of rape, punishable under Section 376 of the Indian Penal Code, and a sentence of rigorous imprisonment for five years and a fine of Rs. 300/-, in default further rigorous imprisonment for one year, is impugned in the present appeal. 2. Initially three accused were charged for an incident which is alleged to have taken place at about 2.00 a.m. on the 8th of June, 1986 on an Ota opposite the house of one Jagannath Kanderao Chavan at Smner. At that time accused No. 1 is alleged to have taped P.W. 2 Sunita, who according to the prosecution was a minor below the age of 16. At the relevant time, accused Nos. 2 and 3 were with accused No. 1. They are alleged to have committed indecent assault on Sunita. Accused No. 1, thus, was charged under Section 376 and all the three accused were charged under Section 354 read with Section 34 of the Indian Penal Code. 3. By the impugned ORDER and order accused Nos. 2 and 3 are acquitted whereas accused No. 1 is convicted as mentioned above. 4. At the trial, prosecution has examined P.W. 2. Sunita who is the prosecutrix. Her first information report is at Exhibit-l3. Prosecution further examined P.W. 3 Narhari, the uncle of Sunita. Thereafter, it examined P.W. 4 Khandu Shinde and P.W. 5 Ambadas Wani, both are residents of the vicinity. Both have refused to support the case of the prosecution and they were declared hostile. P.W. 6 Dinkar Pawar, is the Panch Witness of Panchanama (Exhibit 18) for the seizure of the Clothes of accused No. 1 and Sunita. The Chemical Analyser's report in respect of the clothes is at Exhibit-31. Both Sunita and a9cused No. 1 were examined by P.W. 7 Dr. Ajit Patil. The medical certificate of Sunita is at Exhibit-20 and that of the accused No. 1 at Exhibit22. P.W. 8 Sushila Pagar, is the Head Mistress of Municipal Primary School No. 2 who has been examined to prove the age of Sunita. The application for admission is at Exhibit-24 and the school leaving certificate is at Exhibit-25. P.W. 10 Kashinath Chegadmal is a Circle Officer who has drawn a map (Exhibit 28) in respect of the scene of offence. The application for admission is at Exhibit-24 and the school leaving certificate is at Exhibit-25. P.W. 10 Kashinath Chegadmal is a Circle Officer who has drawn a map (Exhibit 28) in respect of the scene of offence. The prosecution finally examined P. W. 11 Ramesh Bangar who is the Investigating Officer. 5. Shri Joshi, the learned Advocate, appearing on behalf of accused No. 1, has taken me through the material evidence on record. In my view, it is not necessary to discuss the entire evidence as the evidence of Sunita, the Head Mistress Sushila Pagar and Dr. Ajit Patil is sufficient for the disposal of the present appeal. 6. P.W. 2 Sunita has inter alia stated that she has one brother and a sister. The parents of Sunita are no longer living. Since their demise, Sunita left school and started doing labour work of washing clothes and untensils. She used to stay with her uncle who is P.W. 3 Naru Laxman. The house of her uncle consists of two rooms and there is an Ota in front of it She used to sleep on the Ota. As far as her food is concerned, she used to eat wherever she was working as a maid servant If she was not provided with food she used to be paid some amounts by a neighbour Dattu Khatik for food. 7. On the date of the incident, so says Sunita, she was sleeping on the Ota in front of the house of Jagannath. At about 2.00 a.m. she was awakened as somebody touched her. She saw three persons, whom she identified as accused Nos. 1 to 3. Accused No. 1 touched her breasts, unbuttoned her blouse, removed her skirts downwards, re-moved her nicker and had sexual intercourse with her while accused Ns. 2 and 3 standing aside at some distance. Sunita shouted and then accused No. 1 went away. While going away, accused No. 1 forcibly put a 100 rupee currency note in her hand. Sunita wound up her bedding and came to an another house. She awakened one Wani and told him that boys were teasing her. Wani told her to go and sleep on Ota of her uncle's house. Accordingly she went' and slept on the Ota of her uncle Narhari. Narhari was also sleeping on his Ota. While she was-laying and had not fallen asleep accused Nos. She awakened one Wani and told him that boys were teasing her. Wani told her to go and sleep on Ota of her uncle's house. Accordingly she went' and slept on the Ota of her uncle Narhari. Narhari was also sleeping on his Ota. While she was-laying and had not fallen asleep accused Nos. 1 too 3 came there again. On seeing her uncle accused No. 1 and 3 went away. Accused No. 2, however, came near her and caught hold of her left hand and demanded back the amount of Rs. 100/- which accused No. 1 had given to her. She gave the amount of Rs. 1001- to accused No. 2. At that time she cried and the neighbours were awakened. This in substance. is her version in respect of the main incident in question. 8. In cross-examination, she has admitted that the place of the incident has roads on three sides. It has number of houses on either sides of the road. There is a double storied building to the west. The locality, therefore, is far from being a for alone locality. In regard to the main incident she has stated that when her body was first touched she did not shout. She was paid Rs. 1001 - at that time. After that, accused No. 1 had sexual intercourse with her. She has denied that she had sexual intercourse with many person's before the date of the incident. She has explained that as nobody was maintaining her she did not shout when accused No. 1 touched her. She did not cry when accused No. 1 unbuttoned her blouse and removed her skirt and nicker. Till accused No. 1 completed sexual intercourse with her none else came there. She did not tell Wani about the misbehaviour of accused No. 1 with her. Above evidence, in my view, makes it abundantly clear that Sunita was a consenting party to the act of sexual intercourse, which is alleged to have taken place on the night of the incident. Her evidence unmistakably shows that she paid an amount of Rs. 100/-. She has thereafter, permitted accused No. 1 to have sexual intercourse with her. She has not, in the least, opposed. She has not raised any hue and cry but has subjected herself to sexual intercourse on the quiet. Her evidence unmistakably shows that she paid an amount of Rs. 100/-. She has thereafter, permitted accused No. 1 to have sexual intercourse with her. She has not, in the least, opposed. She has not raised any hue and cry but has subjected herself to sexual intercourse on the quiet. Even after the sexual intercourse she has not reported the incident but has merely reported that boys were teasing her. This amply proves that she is a consenting party to the incident. At the conclusion of her cross-examination she was asked a question and she has given an answer, which is as under: Q. It is a fact that you are involving accused No. 1 to 3 at the instance of Naru and Dattu Khatik? An. It is true and no incident took place." 9. This takes me to the question as to what was the age of Sunita at the time of the incident. In her examination-in-chief Sunita has stated that she was born in 1972 but she does not remember the date and the month. She has further stated that she had attended Primary Municipal School No. 3 at Sinner. She was admitted in the School by her mother. 10. P.W. 8, Sushila Pagar is the Head Mistress of Primary Municipal Girls School No. 2 at Sinner. She has produced, at Exhibit 24, an admission form in respect of one Kum. Maya Kashinath Ghule. In the admission form, the date of birth of Kum. Maya is mentioned as 1st of June; 1972. Smt. Sushila Pagar has also produced, at Exhibit 25, a school leaving certificate of the said Kum. Maya Kashinath Ghule, which describes her date of birth at 1st of June, 1972. It is to be noted that the name of the prosecutrix is Sunita and not Maya. It is further to be remembered that Sunita has deposed that she has one sister. Though the prosecution has examined her uncle P.W. 3 Narhari, he has not deposed that Sunita is also known as Maya. Moreover, it is to be remembered that as far as Sunita is concerned, she has stated that she was studying in Primary School No. 3 and she was admitted by her mother whereas Smt. Pagar is the Head Mistress of School No. 2 and the Admission of Kum. Maya was at the instance of father of Maya. Moreover, it is to be remembered that as far as Sunita is concerned, she has stated that she was studying in Primary School No. 3 and she was admitted by her mother whereas Smt. Pagar is the Head Mistress of School No. 2 and the Admission of Kum. Maya was at the instance of father of Maya. In the circumstance, the aforesaid evidence cannot be said to be in respect of Sunita. The said evidence may as well be in respect of the sister of Sunita. 11. This takes me to the medical evidence on record. P.W. 7 Dr. Ajit Patil has examined both Sunita and accused No. 1. On the issue of rape following are the findings of Dr. Patil in respect of Sunita: "History of sexual contracts twice in the past No evidence of injury anywhere on the body. Breasts - adult pattern. Auxillary hair present (mature). Vulva and Vagina well developed. Pubic hair adult pattern P. V. Examination: - 2 fingers. P.V. easily possible Uterus RV-RF normal size. Fornices clear. P.S. examination:- No laceration on vaginal across cervix and vagina healthy." 12. On the question of age of Sunita, in his examination-in-chief Dr. Patil stated as under: "The X-ray of right side wrist joint and elbow joint were caused to be taken through a X-Ray technician. I studied the X-ray plate. I found that the need of redius was fused. Lower end of radius not' fused. This indicates the age of more than 14 years less than 17 years." As regards accused No. 1, following are the findings: "I found no smegma over the Penis. No injuries on the Penis, scrotum, thigh or knee joints or anywhere on the body. Pubic hair not matted. No blood stains over the body. No stains of semen anywhere." 13. The above findings do not support the prosecution case in respect of sexual intercourse, which is alleged by the prosecution. 14. It would thus appear that the above evidence does not establish that Sunita was below the age of 16 on the date of the incident. Once it is found that the persecution has failed to prove that Sunita was a minor below the age of 16, and when it is further found that the sexual intercourse, if any, was with the consent of Sunita no offence can be said to have been made out against accused No. 1. Once it is found that the persecution has failed to prove that Sunita was a minor below the age of 16, and when it is further found that the sexual intercourse, if any, was with the consent of Sunita no offence can be said to have been made out against accused No. 1. For the foregoing reasons the impugned order of conviction and sentence imposed upon the accused No. 1 is liable to be quashed. 15. In the result, the ORDER and order dated the 10th of February, 1987 of the Court of IInd Additional Sessions Judge, Nasik, in Sessions Case No. 173 of 1986, convicting accused No. 1, under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 300/-, in default to further suffer rigorous imprisonment for one year is set aside and accused No. 1 is acquitted. Fine, if paid, shall be refunded to him. Bail bonds of the accused shall stand cancelled,. Appeal allowed.