JUDGMENT Fakhruddin, J. 1. This is an appeal against the order of conviction recorded by Shri B. M. Kulmi, Additional Sessions Judge, Ashoknagar in Sessions Trial No. 74/85 convicting the appellant under Section 376 of Indian Penal Code and sentencing him to rigorous imprisonment for 3 years. 2. The prosecution story is that on 5-3-1985 in the evening Kasturibai (P.W.1), who is the complainant, was white-washing her house. At that time, her husband had gone to another village and nobody was with her. It is alleged that accused suddenly entered into her house, he caught hold of her, threw her on the ground and committed rape. On hearing cry, P.W. 2 Premshah, P.W. 3 Vishnu and P.W. 4 Nannu came there but the accused ran away and he was seen by these persons, i.e. Premshah (P.W.2), Vishnu (P.W.3) and Nannu (P.W.4). The prosecutrix narrated the incident to these persons. 3. An F.I.R. was lodged by the prosecutrix on the next day, i.e. 5-3-1985. The offence under Section 376, Indian Penal Code was registered at Crime No. 31/85. On 6-3-1985 at about 12 O'clock the prosecutrix was got medically examined by Dr. (Smt. ) C. P. Jain (P.W.10), who gave a medical report Ex. P/15-A. On 7-3-1985 the police reached at the spot and prepared the spot-map Ex. P/2. On 8-3-1985 the accused was arrested as per Ex.P/10 and he was also got medically examined Ex. P/l 1 -A. 4. That after usual investigation, the challan was filed before the Additional Chief Judicial Magistrate, Ashoknagar. The case was thereafter committed to the Sessions Court for trial. The accused abjured the guilt and pleaded false implication. 5. The prosecution examined Kasturibai (P.W.1), Premshah (P.W2), Vishnu (P.W.3) and Nannu (P.W4), Annandilal (P.W.5), Kalicharan (P.W.6), Chandra Prakash Chowdhri (P.W.7), Salim Khan (P.W8), Banshi Lal (P.W.9), Dr. (Smt.) C. P. Jain (P.W.10), Dr. N. K. Jain (P.W.11), Khuman (P.W.12) and Bhawarsingh (P.W.13) before the trial Court. 6. The learned trial Judge after considering the material on record held the appellant guilty of the offence under Section 376 and sentenced him to R. I. for 3 years. 7. Shri J. P. Gupta, learned counsel for the appellant submitted that the rape has been defined under Section 375, Indian Penal Code. 6. The learned trial Judge after considering the material on record held the appellant guilty of the offence under Section 376 and sentenced him to R. I. for 3 years. 7. Shri J. P. Gupta, learned counsel for the appellant submitted that the rape has been defined under Section 375, Indian Penal Code. Section 375, Indian Penal Code is quoted below :- "Rape 375 - A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description :- First - Against her will. Secondly - Without her consent. Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear or death or of hurt. Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception ... ... ... 8. The prosecutrix Kasturibai in this case is said to be of 25-30 years at the time of commission of offence and the accused Gyarsa is said to be of 35-40 years. The prosecution in the instant case has to prove that the sexual intercourse with Kasturibai (P.W1) was against her will or consent. The evidence of P.W 1 Kasturibai is therefore to be scrutinized and appreciated. 9. The incident is said to be of 7 O'clock in the evidence of the prosecutrix, in her evidence she has stated that while she was white-washing, accused came, caught hold of her, threw her, took out her clothes and committed intercourse. She had cried upon which Vishnu, Prem Shah and Nannu had come there. Two bangles were also broken. 9. The incident is said to be of 7 O'clock in the evidence of the prosecutrix, in her evidence she has stated that while she was white-washing, accused came, caught hold of her, threw her, took out her clothes and committed intercourse. She had cried upon which Vishnu, Prem Shah and Nannu had come there. Two bangles were also broken. But in cross-examination in answer to para 16 she has said that while the accused was committing the sexual intercourse she did not pull his clothes nor she beat him by her legs. In para 16 of her statement she states that she remained laying down comfortably ^^vkjke ls uhps esa iM+h jgh** . In para 20 she states that the accused committed intercourse for about 1/2 hour. In para 25 she has made the statement which demolishes the prosecution case as under :- ^^vfHk;qks viuh is'kkc dh txg [kM+h djus esa djhc ?k.Vk Hkj yxk- ?k.Vk Hkj esa vfHk;qqf'dy ls viuh is'kkc dh txg [kM+h dj ik;k Fkk- ;g xyr gS fd vfHk;qh is'kkc dh txg [kM+h ugha gks ikbZ gks-** In the abovesaid para 25 she has categorically stated that the accused took an hour to get his male organ erected and that too great difficulty and this statement of the prosecutrix Kasturibai goes to show that even if the sexual intercourse was committed it was not against her will nor without her consent. On this very question it would be useful to closely scrutinize the evidence of Dr. N. K. Jain (P.W.11). He has stated in his evidence that he had examined the accused medically as to whether the accused is competent to commit sexual intercourse. He was unable to give any definite opinion and it was only on general characteristic that he has given an opinion. In para 3 in cross-examination he states that he examined the male organ of the accused but the male organ had not erected. He found the male organ covered by the skin which was very old. This skin was from quite some time in the opinion of the doctor. 10. Apart from the evidence of Dr. N. K. Jain (P.W.11), Dr. (Smt.) C. P. Jain (P.W. 10) states that she examined the prosecutrix Kasturibai (P.W.I), as per Ex.P/15-A. Ex.P/15-A shows old hymen tears found, no mark of external injury found on the body of the prosecutrix. This skin was from quite some time in the opinion of the doctor. 10. Apart from the evidence of Dr. N. K. Jain (P.W.11), Dr. (Smt.) C. P. Jain (P.W. 10) states that she examined the prosecutrix Kasturibai (P.W.I), as per Ex.P/15-A. Ex.P/15-A shows old hymen tears found, no mark of external injury found on the body of the prosecutrix. No definite opinion can be given whether intercourse was committed with the prosecutrix. 11. Apart from this, Vishnu (P.W.3), Premshah (P.W.2), and Nannu (P.W.4) are the witnesses of the incident. Premshah (P.W.2) has been declared hostile. Vishnu (P.W3) states that he saw the accused running away. He further states that Kasturibai (P.W.1) told him that the accused had committed rape on her. P.W. 4 Nannu did not support the prosecution version. 12. In view of the statement of the prosecutrix which has come on record, it cannot be said that the intercourse was committed against her will or consent. She remained lying down calm and quiet ************* Her consent and willingness have been brought out on record by the defence in cross-examination, which is a good material for defence. 13. As a sequel of the above discussions, the appeal is allowed. The order of conviction and sentence is set aside. The appellant is acquitted of the charges mentioned above. His bail bonds and surety bonds are hereby discharged.