TEJ SHANKAR, J. ( 1 ) THIS appeal has been preferred by Mujia alias Maujilal and Badam against the order of conviction and sentence recorded against them by Shri R. C. Sharma, Second Additional Sessions Judge. Shivpuri on 7-6-1991 whereby they have been convicted and sentenced u/s 376 I. P. C. for a term of 7 years R. I. ( 2 ) SHORTLY narrated the facts are that the prosecutrix PW 13 resided in village Bachronalong with her family. At about 12 in the night of 29-4-1989 when she was sleeping on the roof of her house and her husband Natthu had gone to Athai, she heard the noise of foot steps and woke up. She saw Bhujia and Badam had come, who happened to be her Jeth of Bakhar. She asked them why they had come to her roof, Badam pressed her mouth and Bhujia upturned her dhoti and committed rape up - on her. After he committed the act Bhujia pressed her mouth arid Badam committed rape. She remained crying as her mouth had been pressed she could not cry. When they left the cried as a result of which her husband Natthu reached there. The accused persons escaped. Her husband and Ban tried to catch hold of the accused but they did not succeed. Her father-in-law and mother-in-law were living at well. She disclosed the appending to them in the morning. She lodged report Ex. P-12 which was prepared by PW 16 S. S. Bhadoria, who registered a case u/ s 376 I. P. C. He also conducted the investigation. He took into custody a blouse of the prosecutrix Kamta and prepared memo Ex. P-9. He recorded her statement and sent her for medical examination to Primary Health Centre Pichor where she was exchanged by Dr. Shashi Sharma. PW 3,who prepared her report Ex. P-7. The 1. 0. Shri Bhadoria went to village Bachron on the same day and prepared site-plan Ex. P-li. He recovered broken bangles and prepared memo Ex. P-12. He recorded statements of Hanram and Natthu on the same day. He took into custody unbroken bangles of Kamta and prepared memo Ex. P-13. The accused persons were arrested by him on 19-5-1989 and prepared memo. Ex; P-I 7. The accused persons were sent for medical examination and they were medically examined by PW 1 Dr. O. K. Sharma who gave his report, Ex. He took into custody unbroken bangles of Kamta and prepared memo Ex. P-13. The accused persons were arrested by him on 19-5-1989 and prepared memo. Ex; P-I 7. The accused persons were sent for medical examination and they were medically examined by PW 1 Dr. O. K. Sharma who gave his report, Ex. P-2 and 3. After completing investigation he submitted charge - sheet. ( 3 ) THE accused persons denied the charge and contended that they were falsely implicated on account of election rivalry and on account of the fact that there had been persistent quarrel between the Bhabhi and mother-in-law of the prosecutrix on one hand and members of the accused family on the other. ( 4 ) THE prosecution examined PW 1 Dr, O. K. Sharma who had medically examined the accused persons. PW 3 Dr. Shashi Sharma who had examined the prosecutrix, PW 12 Ramsingh, PW4 Shriram Verma, PW5 Madanlal, PW 6 Chatursingh and PW 10 Shri Ram as formal witnesses. PW7 Mst. Deshrani had been examined to prove that the prosecutrix disposed about the occurrence to her; PW 8 Mst. Maharani and PW 9 Arjun are mother-in-law and father-in-law of the prosecutrix. PW 11 Noneju, PW 12 Ramsingh, PW 14 Natthu, husband of the prosecutrix, PW 15 Hariram and PW13 prosecutrix were also examined, PW 15 5. S. Bhadoria is the investigating officer. Besides this the prosecution has, also relied upon documents, Ex. P. 1 to P-TB. The accused persons have not entered upon their defence. The learned trial court after considering the entire material on record and hearing the parties accepted the prosecution story and held the accused persons guilty, of the offence punishable u/s 376 IPC. They were accordingly sentenced to 7 years RI. Hence this appeal. ( 5 ) THE learned counsel for the appellants contended that no injury was found on the person of the prosecutrix and the evidence on record clearly - goes - to show that she was a consenting party. She was a grown up married lady and had the occurrence been taken place against the wishes of the lady she must have resisted and there must pave been signs of resistance. The evidence, however, does not show that there was any sign of resistance which goes to show that she must be a consenting party. She was a grown up married lady and had the occurrence been taken place against the wishes of the lady she must have resisted and there must pave been signs of resistance. The evidence, however, does not show that there was any sign of resistance which goes to show that she must be a consenting party. The learned counsel also pointed out that the father in-law and mother-in-law of the prosecutrix have been examined by the prosecution but the evidence on record shows that they were not examined u/s 161 Cr. P. C. by the 1. 0. as stated by the 1. 0. Their statements have no value. Learned counsel for the State, on the other hand argued that the prosecutrix has fully proved her case arid there is also evidence to show that she disclosed the happening to her husband and prompt report was lodged. Learned trial court was justified in accepting the prosecution story. ( 6 ) THE arguments advanced by the learned counsel for the appellants clearly goes to suggest that he has not challenged the occurrence. The contention is that the prosecutrix was a consenting party. It has therefore, to be seen as to whether the material on record goes to establish that the prosecutrix was a consenting party or not. I may mention at the very beginning as the prosecutrix PW 13 Kamta is a grown up married lady. PW 3 Dr. Shashi Sharma, who had medically examined the prosecutrix mentioned in her report that she was a gown up lady inasmuch as she had 8+8 and 8+7 teeth. Axillary hairs were well grown up. Breast was well developed and she was married lady and was accustomed to intercourse. Hence no opinion about the rape could be given. She did not find any external injury on her body. PW 13 Kamta in her statement gave her age 20 years. Thus it is clear that she is a grown up lady and is used to intercourse. The learned counsel for the appellants drew my attention to her own statement and contended that her own statement is suggestive of the fact that she was a consenting party. In her statement she deposed that at about 12 in the night when she was sleeping on the roof of her house accused Mhujia and Badam Came. She had enquired from them as to why they had gone there. In her statement she deposed that at about 12 in the night when she was sleeping on the roof of her house accused Mhujia and Badam Came. She had enquired from them as to why they had gone there. She further stated that Badam caught hold of her mouth and Bhujia committed rape by up-turning her dhoti and when he satisfied his lust Bhujia caught hold of her mouth and Badam committed rape. There is nothing in her statement to show that she ever made any resistance. She was a grown up lady and if the occurrence had taken place against her wishes the natural course of conduct on her part would have been to have made resistance. She clearly stated in para 7 of her statement that the accused persons had caught hold of her mouth. She neither bit them nor scratched them. To quote her own words main Abhiyuktgan dwara mera muh dabanepar unhe nocha ya kata nahin. dhakka bhi nahin diya. T Had the occurrence been taken place against her wishes she must scratched bitten and tried to keep the accused persons away by the use of her legs and hands. There is nothing in her statement to show that the accused persons had caught hold-of per hands and legs. I may also mention here that when a specific question was put in her cross-examination in this regard to the effect that had she pushed the accused persons they would have fallen down from the roof. She replied in negative and sarcastically stated. Yadi Chhiriya (bakri) badihogi to wah kutta ko nahin kha sakti. By saying this she avoided the answer. It is therefore clear that she did riot make any resistance. Not only this I may also mention that she did make an attempt in her statement to show that she received injuries on account of this act on her put the back and pands when she stated that she had received these ilijuries and had also shown to the doctor but the injury report Ex. P-7 does not show any injury. Thus, it is crystal clear that she must have been a consenting party. The prosecution has tried to bring on recordthat broken bangles of the lady were recovered from the spot and in this regard statement has peen made by the 1. 0. as well as by other witnesses. P-7 does not show any injury. Thus, it is crystal clear that she must have been a consenting party. The prosecution has tried to bring on recordthat broken bangles of the lady were recovered from the spot and in this regard statement has peen made by the 1. 0. as well as by other witnesses. This evidence cannot be relied upon for two reasons firstly because she herself has not stated that she had used her hands and legs and made any resistance as a result of which bangles were broken. The second reason is that according to the lady Kamta when the occurrence had taken place she was sleeping on the roof of the house. PW 16 1. 0. Shri Bhadoria stated that he had recovered the broken bangles from inside the Dugal. He also explained that Dugal is when he said that Dugai is a room on second floor. Thus, if occurrence had taken place on the roof the broken pieces of bangles cannot go to show that pieces were broken at the time when, occurrence had taken place at the roof It is again suggestive. of the fact that there was no resistance at the time of the occurrence. I may also add that it is admitted to the prosecutrix herself that inside Bakhar where she resided there were 10 or 12 house in which families resided. She also specified that inside the Bakhar Siyaram. Bhaggirach. Harnam. Roshan, Ramilal and Gange and others reside along with their children. It was correct that neither she nor her husband disclosed the occurrence to the inhabitants of the Bakhar. This is again unnatural because had such occurrence been taken place it ought to have been disclosed to the persons who resided therein and had there been any resistance they might have been attracted. I am conscious of the fact that this is an offence the disclosure of which generally is not thought to be proper for the sake of prestige. But the prosecution in the present case has tried to bring on record the fact that the occurrence was disclosed though this fact that any disclosure was made has been denied by the prosecutrix. PW 7. Mst. Deshrani has been examined in this connection she stated that Kamta was the wife of her Naati Natthu. But the prosecution in the present case has tried to bring on record the fact that the occurrence was disclosed though this fact that any disclosure was made has been denied by the prosecutrix. PW 7. Mst. Deshrani has been examined in this connection she stated that Kamta was the wife of her Naati Natthu. She further stated that when Mujia and Badam entered Kamta had cried and she woke tip. She enquired from Kamta as to what happened and she disclosed that Mujia and Badam had entered the house and had committed bura Kaam with her. It is significant to mention that according to her own statement made in para 5 the police did not make any enquiry from her. Her statement is clearly unbelievable because the prosecutrix has stated that neither she nor her husband disclosed the occurrence to any member of the Bakhar. Mst, Maharani, PW 8 and PW 9 Arjun are mother-in-law arid father-in-law of the prosecutrix. According to the evidence on record they were sleeping on the well. Mst. Maharani has stated that Kamta had gone to the well and. had disclosed the occurrence to her but Arjun deposed that when he returned to the house from the well his Bahu Kamta disposed the occurrence. Now if we see the statement of the prosecutrix, we find that her father-in-law and mother-in-law when they came to know they came to house. She has not stated that she had disclosed the occurrence to them. In this way the evidence adduced by the prosecution to the effect that the prosecutrix had disclosed the occurrence to the witnesses is not worth belief. It appears to me as contended by the learned counsel for the appellants that the prosecutrix was a consenting, party and when her husband came to know of it the accused persons had been falsely implicated on account of enmity. It has been specifically admitted by the prosecutrix that there had been enmity from before. She specifically stated that it was correct that prior to the occurrence there had been quarrel between her mother-in-law and mother of the accused persons. PW 14. Natthu husband of the prosecutrix had also said that there had beenpanchayat election prior to the occurrence in which Han was a contestant and against him Julia had contested. Had lost. The accused persons and their family members had supported Julia. PW 14. Natthu husband of the prosecutrix had also said that there had beenpanchayat election prior to the occurrence in which Han was a contestant and against him Julia had contested. Had lost. The accused persons and their family members had supported Julia. Han is closely related to him. Thus it may be a reason for false implication. I am, therefore, of the view that the contention of the learned counsel for the appellants that the lady was a consenting party is not without force and is supported from the material on record. It cannot therefore, be said that the accused persons committed the offence of rape. The learned trial court did not take into consideration the element of consent brought out from the circumstances on record, and hence he has fallen into error, consequently the appellants could not be convicted. ( 7 ) IN the result the appeal succeeds. The order of conviction an sentence passed against the appellants is set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .