JUDGMENT 1. - This judgment will also dispose of S.B. Cr. Jail Appeal No. 198/93 "Prahlad Vs. State of Rajasthan ", filed by Prahlad- appellant No. 1 of this appeal, through jail against the impugned judgment dated 10.3.1993 passed by the learned Additional Sessions Judge No. 3, Kota in Sessions Case No. 197/92. 2. The appellants Prahlad and Mohan were tried in case FIR No. 21/89 of Police Station Sangod District Kota and were convicted under clause (g) of sub-section (2) of section 376 Indian Penal Code and each one of them has been sentenced by the learned Additional Sessions Judge No. 3 Kota to undergo rigorous imprisonment for a period 10 years and also to pay a fine of Rs. 1,000/- -or, in default of payment of fine to undergo further rigorous imprisonment for a further period of 6 months. The prosecution story was as under: 3. On 20.2.1989, PW-1 Sumitra and Chanda (not examined) had gone to work in the fields and when they were returning from their work at about 6.00 P.M. and had reached near the Government tubewell, the appellants met them and asked them to accompany them inside the fields. On their refusal to do so, Prahlad caught hold of Sumitra and Mohan caught hold of Chanda and after keeping handkerchiefs on their mouths they dragged them inside the fields where wheat crop was standing. In the fields Mohan committed rape on the person of Chanda and Prahlad committed rape on the person of Sumitra. After Mohan had committed rape on the person of Chanda, he came and committed rape on the person of Sumitra. After the incidence, while Sumitra and Chanda were coming to their houses through Nasiyaji Ki Gali, Sumitra's brother Mohan besides Mahendra, Prahlad Gurjar and Anandilal, who were coming towards that side with a view to search the girls, met them and they narrated the incidence to them and Mohan brought them to the Police Station, where a case was registered on the basis of the statement made by Sumitra and FIR (Ex. P. 1) was recorded. During the investigation the police arrested the appellants and after completion of the investigation filed challan against both the appellants. P. 1) was recorded. During the investigation the police arrested the appellants and after completion of the investigation filed challan against both the appellants. After the case was committed to the court of Session, a charge under section 376 Indian Penal Code was framed against Prahlad for having committed rape on the person of Sumitra and charge under section 376 was framed against Mohan for having committed rape on the person of Chanda as well as Sumitra. The appellants pleaded not guilty to the charges framed against them and claimed to be tried. After trial, the learned Additional Sessions Judge No. 3 Kota convicted and sentenced the appellants as noted above. This appeal was filed on behalf of both the appellants through counsel, whereas, the above said jail appeal was filed by Prahlad through the Superintendent of Jail. 4. I have heard the learned counsel for the parties and have also perused the record of the case. 5. The only question which has been urged and requires consideration is as to whether the prosecution has been able to prove that the appellants had performed the sexual intercourse with the girls concerned against their consent. 6. The only witnesses in this regard could be Sumitra and Chanda. Chanda was not examined during trial. The only witness in this regard is PW-1 Sumitra. While appearing as PW-1, Sumitra has given her age as 20 years. During the investigation the police had got her medically examined for determining of her bony age and according to skigram(Ex. P. 12) her age was between 18 to 19 years. Chanda was also got examined for the purpose of her bony age and the report of skigram shows her age between 15 to 16 years. 7. During the investigation the police had got her medically examined for determining of her bony age and according to skigram(Ex. P. 12) her age was between 18 to 19 years. Chanda was also got examined for the purpose of her bony age and the report of skigram shows her age between 15 to 16 years. 7. Although, in the FIR, which was recorded on the basis of the statement of Sumitra, it has been stated that Prahlad caught hold of her and Mohan caught hold of Chanda and Prahlad committed rape on her person and Mohan committed rape on the person of Chanda and thereafter Mohan came and committed rape on her person as well, during the course of her statement on oath, the version given by her was different, in as much as Mohan had caught hold of her hand and Prahlad had caught hold of Chanda and thereafter Prahlad had committed rape on the person of Chanda and Mohan had committed rape on her person and after Mohan had committed rape on her person and Prahlad had committed rape on the person of Chanda, Prahlad came and committed rape on her person as well. 8. Site plan (Ex. P.2) shows that the place of occurrence is not far away from public way and the time of occurrence is stated to be about 6.00 p.m. According to the statement of Sumitra, on their refusal to accompany the appellants inside the fields, they had caught hold of them and when they tried to raise alarm, handkerchiefs were put on their mouths and they were dragged inside the fields. Sumitra stated that she was wearing bangles but none of the bangles had got broken. Sumitra further deposed that she and Chanda remained at the spot alongwith the appellants about for five hours although stated that after the sexual intercourse she and Chanda were sitting with the respective accused who kept of holding them for all this period without doing anything further. She has also deposed that it was only when her brother and others were heard coming towards the fields that the two appellants ran away therefrom. Except an abrasion measuring 1/2 "x 1/4" on her right knee and 1/4" x 1/4" on her left knee there was no injury on the person of Sumitra as can be seen from medical report (Ex. P. 13) and medical report (Ex. Except an abrasion measuring 1/2 "x 1/4" on her right knee and 1/4" x 1/4" on her left knee there was no injury on the person of Sumitra as can be seen from medical report (Ex. P. 13) and medical report (Ex. P. 15) shows no injury on the person of Chanda. According to Sumitra distance between the spot where the appellants had met and the place of occurrence was about 50 yards and the appellants dragged them all the way. No dragging injuries have been found on the person of either Sumitra or Chanda. Medical Examination reports (Ex.P.17 & 18) show that Prahlad and Mohan were examined on 22.2.1989. No injuries have been shown to have been found on the person of either of them. According to Sumitra, she and Chanda could not raise alarm as the accused persons had kept handkerchiefs over their mouths and they had dragged them to the fields where sexual intercourse was performed by them against their wishes. This shows that according to her case one hand of each of the accused was on the mouth of the girl concerned and they were dragged with the aid of only one hand. If, in fact, the girls had resisted, there ought to have been dragging injuries as also some injuries on the hands of the girls and it is not understandable as to how even the bangles did not get broken. If the sexual intercourse had been committed against the wishes of the girls it was natural for them to have resisted even the act at the spot and in doing so not only the bangles would have got broken but some mark of injury would have been found on the person of the appellants. If the intercourse had been performed without the consent of the girls, ordinarily,' the accused would have run away soon after committing the rape and the fact that the accused and the girls remained at the spot for about five hours and it was only after Sumitra's brother Mohan and others came towards the fields to search Sumitra that the accused persons ran away also negatives the theory of want of consent. As noted above, the girls remained with the accused persons for about five hours and it was only when Sumitra's brother and others came towards the spot in search of Sumitra that the accused persons ran away and the version given to the police in the FIR being contrary to the version being given in court in regard to the role of each of the accused persons also indicates that after the accused ran away and Sumitra's brother Mohan and others found Sumitra and Chanda, Sumitra was taken to the Police Station where the FIR was recorded and her signatures were obtained thereon. considering the fact that there was not dragging injury either on the person of girls or on the person of either of the appellants and the fact that the girls remained with the appellants for such a long period even after sexual intercourse had been performed coupled with the fact that different versions have been given by Sumitra, in my view, the prosecution had filed to prove that the sexual intercourse performed with the girls was without their consent. Moreover, the charge framed against Prahlad was only in regard to committing of rape on the person of Sumitra whereas the charge framed against Mohan was for committing rape on the person of both the girls. The learned trial court failed to consider this aspect of the matter while passing the order of conviction. 9. For the abovesaid reasons, the appeals are accepted, convictions and sentences passed by the learned Additional Sessions Judge No. 3, Kota against the appellants are set aside and the appellants are acquitted. They are in jail and should be released forthwith unless wanted in other case.Appeals Accepted. *******