JUDGMENT 1. - This is an appeal Under section 374(2) Cr.P.C. directed against the judgment and order dated 29.8.1996 whereby the learned Sessions Judge, Baran, in Sessions Case No. 59/96, held the appellant Parma @ Parmanand guilty of the offence Under section 376 IPC, convicted his as such and sentenced him to Rl for 8 years plus a fine of Rs. 4.000/- or in case of default of payment of fine to further undergo Rl for six months. 2. Briefly stated the prosecution case is that on March 5, 1996 at about 12 O' clock in the day the appellant took PW 1 Smt. Rukmani, aged about 15-16 years, with him to reap 'Sarso' crop at his field situated at about 2 km. away from village Borda under Police Station Mangrol, District Baran. It is further alleged that at his field the appellant committed rape upon Smt. Rukmani, first in the Sarso field and then in the adjoining field wherein wheat crop had been grown. It is further alleged that when the appellant was busy in the act of sexual intercourse with Smt. Rukmani, P.W. 5 Ganesh Ram, her father, reached there. On seeing the appellant outraging the modesty of his daughter, Ganesh Ram PW 5, scolded the appellant which led to a scuffle between the two. Any way the parties retired from the place of occurrence. Ganesh Ram PW 5 along with the prosecutrix PW 1 Rukmani and her mother PW 2 Shrawani reached police station Mangroi and lodged the FIR PW 9 Shiv Raj Singh, the then SHO P/s. Mangroi, registered a case Under section 376 IPC against the appellant. In the course of investigation Smt. Rukmani was got medically examined by PW 3 Dr. M.C. Jain who noticed some injuries on the back portion of Smt. Rukmani and also noted certain stains of her 'Ghaghra'. The cloths of the lady were seized and sent for chemical examination. No report of the Chemical Examiner was however, produced either before the trial court or before this court. 3. On local inspection of the place of occurrence a pair of 'chappals' and a 'Dantali' are stated to have been found by PW 9 Shiv Raj Singh, SHO. Those were also seized. 4. On the above facts the learned trial Judge tried the appellant for the offence Under section 376 IPC and convicted and sentenced him in the manner stated above. Those were also seized. 4. On the above facts the learned trial Judge tried the appellant for the offence Under section 376 IPC and convicted and sentenced him in the manner stated above. 5. It was urged on behalf of the appellant that the appellant did not commit any offence against Smt. Rukmani and that he was falsely implicated in the case out of enemity. In the alternative it was submitted that Smt. Rukmani was above 16 years of age at the time of the commission of the alleged offence against her and that she was a consenting party in the act of sexual intercourse with the appellants. 6. On the other hand the learned Public Prosecutor submitted that the injuries noticed on the body of Smt. Rukmani corroborate her version and, therefore, it stood proved beyond doubt that rape had been committed on her at the relevant time and place. It was further submitted that there is no definite evidence on record that at the time of commission of the offence against her, Smt. Rukmani was not below 16 years of age. 7. I have gone through the evidence available on the record of the trial court. In order to prove the charge Under section 376 IPC against the appellant the prosecution had examined as many as 11 witnesses. PW 1 Smt. Rukmani is the prosecutrix herself. She has stated that she had gone to the field of the appellant to reap the 'sarso' crop there for wages. She further stated that the appellant had taken her from her house on the pretext that two other ladies would also be reaping sarso crop at his field but on reaching the field she found no ladies present there. She added that after reaching the field the appellant caught hold of her, made her lie in a 'Khali' and committed rape on her. She further stated that after the sex act when she had put on her cloths the appellant took her with him to the adjoining field wherein wheat crop was standing and there also the appellant again committed rape upon her. She further stated that it was at the time of second act of sexual intercourse that her reached there and when her father scolded the appellant, he (the appellant) struck a stick blow on her father. She further stated that it was at the time of second act of sexual intercourse that her reached there and when her father scolded the appellant, he (the appellant) struck a stick blow on her father. She further stated that she did not tell the incident to her father but on her return to her house in the village she narrated the incident to her mother PW 2 Smt, Shrawani and her friend PW 4 Gayatri Bai. 8. PW 5 Smt. Shrawani stated that after the appellant had taken Smt. Rukmani with her to reap sarso crop at his field she felt suspicious and, therefore, asked her husband, PW 5 Ganesh Ram, to go to the field of the appellant. She further stated that Smt. Rukmani and PW 5 Ganesh Ram, on their return from the field, narrated the incident to her. 9. PW 5 Ganesh Ram is the father of the prosecutrix. He has stated that about 11.00 a.m. Smt. Rukmani had gone with the appellant to reap the sarso crop at his field, that after their departure from his house he and his wife felt suspicious about the intention of the appellant and, therefore, he reached the place of occurrence, that at the place of occurrence he noticed from some distance that the appellant was co-habiting with her daughter, that when after reaching the place of occurrence he scolded the appellant for his said act, the appellant beat his with a stick. 10. PW 4 Smt. Gayatri Bai is a friend of Smt. Rukmani. She has stated that Smt. Rukmani had not narrated any incident to her. 11. PW 3 Dr. M.C. Jain is the medical officer who had examined Smt. Rukmani on 6.3.1996. According to this witness Smt. Rukmani was aged about 15-16 years and that on her examination he had found abrasions on her back and bruises on her breasts, her 'Ghaghra' was stained with some whitish liquid substance. He further stated that he has found abruise on the chest of Ganesha Ram also. 12. That is all there is to the incriminating evidence against the appellant on the record of the trial court. 13. The above evidence positively establishes that Smt. Rukmani had been subjected to sexual intercourse on that day. He further stated that he has found abruise on the chest of Ganesha Ram also. 12. That is all there is to the incriminating evidence against the appellant on the record of the trial court. 13. The above evidence positively establishes that Smt. Rukmani had been subjected to sexual intercourse on that day. Not only that the statement of Smt. Rukmani and of her father proves that fact but also that the same is corroborated by the medical evidence too. Soon after the occurrence, the incident had been reported by the prosecutrix to PW 9 Shiv Raj Singh, SHO, and in the report lodged by the prosecution witnesses it had been clearly mentioned that the appellant had committed sexual intercourse with Smt. Rukmani. It is, therefore, held that at the relevant time and place the appellant had committed sexual intercourse with Smt. Rukmani Bai. 14. The pertinent question that however, arises in the present case is whether the sex act had been committed with Smt. Rukmani Bai by the appellant against her will and without her consent. In this behalf the most material evidence, affecting the decision of this court, is about the age of Smt. Rukmani herself. For, the circumstances attending upon the commission of the act of sexual intercourse by the appellant with her, clearly suggest that the prosecutrix herself might be a consenting party in the sex act. This conclusion is not difficult to be drawn in the light of the conduct and behaviour of Smt. Rukmani Bail herself, it does not appeal to my reason that a young girl of her age could have been so easily subjected to sexual intercourse against her will and without her consent. It is noteworthy that it was the month of March when Sarso and wheat crops are ordinarily reaped. The villagers may reasonably be expected to be busy in reaping the wheat and sarso crops in their fields. The place of occurrence lay just close to the 'pakka' road going from village Borda to village Hajipura. A canal was there on the eastern boundary of the sarso field wherein Smt. Rukmani Bai is stated to have been raped by the appellant. Adjoining to the sarso field there was another field wherein wheat crop was standing. The place of occurrence lay just close to the 'pakka' road going from village Borda to village Hajipura. A canal was there on the eastern boundary of the sarso field wherein Smt. Rukmani Bai is stated to have been raped by the appellant. Adjoining to the sarso field there was another field wherein wheat crop was standing. Looking to the place and time of the commission of the alleged offence it can reasonably be inferred that other villagers must have been present on their respective fields nearby. This conclusion is supported from the statement of not only Smt. Vimla (DW 1), the wife of the appellant, but also by the statement of Bhawani Shankar (DW 2), who was none else but a cousin of Smt. Rukmani Devi. Therefore, in the facts and circumstances of the case it can reasonably be concluded that had a sexual intercourse been committed upon Smt. Rukmani Bai by the appellant against her will and without her consent. Smt. Rukmani Bai would have not only resisted the advancement of the appellant, but also would have cried and her cries would have naturally attracted the other villagers, working on their respective fields in the vicinity of the place of occurrence. But according to Smt. Rukmani Bai herself the appellant had committed sex act with her first in the sarso field and after the first sex act when she had put on her cloths, the appellant had taken her to the other field nearby and again committed the sex act with her. After commission of the first sex act by the appellant, the prosecutrix, had she not been a consenting party, would not have gone with the appellant in that field. Thus, I am of the opinion that the sex act, whether it was committed once or twice by the appellant with Smt. Rukmani Bai, was committed with her willingness and consent. She was sufficiently old and had attained the age of discretion. Her own conduct proves that she was a consenting party in the sex acts. The appellant is thus not found to have committed sex acts with her against her will and without her consent. 15. For the commission of an offence punishable Under section 375 IPC the consent of a girl or women below 16 years of age is not a consent in the eye of law. The appellant is thus not found to have committed sex acts with her against her will and without her consent. 15. For the commission of an offence punishable Under section 375 IPC the consent of a girl or women below 16 years of age is not a consent in the eye of law. in other words if a girl or women gives her consent to the sex act but she is below 16 years of age at that point of time, her consent would not absolve her rapist of the crime committed by him. In the present case I find that Smt. Rukmani Bai has stated her age about 16-17 years as on 31.5.1996. Her mother has not stated her age in her statement. However, her father PW 5 Ganesh Ram has told that Smt. Rukmani was a married girl and that she was aged about 16-17 years. He pleaded ignorance that the age of the Ration Card. This is the direct evidence about the age of Smt. Rukmani Bai. The medical evidence on that point, as led by PW 3 Dr. M.C. Jain, also suggests that on the day of occurrence Smt. Rukmani Bai was not below 16 years of age. It is thus clear that at the time of commission of the sex act with her, Smt. Rukmani Bai is not proved to be a women or girl below 16 years of age. She had obtained the age of discretion by that time. Since the facts and circumstances of the case clearly suggest that Smt. Rukmani Bai was a willing and consenting party to the commission of sexual intercourse with her by the appellant and since she was not a giri or women below 16 years of age at that time, no offence punishable Under section 376 IPC can be said to have been proved in the present case. 16. In order to complete the discussion it is worthwhile to refer to the defence version also. DW 1 Smt. Vimla is the wife of the appellant. 16. In order to complete the discussion it is worthwhile to refer to the defence version also. DW 1 Smt. Vimla is the wife of the appellant. She has stated that on that day she and other men and women had gone to reap sarso crop in the fields of agriculturists, that DW 2 Bhawani Shankar was looking after his wheat field, that Smt. Rukmani Bai as also the appellant were also reaping sarso crop on the field and that at that time PW 5 Ganesh Ram had reached there and there had been some exchange of hot words between Ganesha Ram on the one hand and the appellant on the other. DW 2 Bhawani Shankar who is the real cousin of Smt. Rukmani Devi has fully supported the version of DW 1 Smt. Vimla. Dr. M.C. Jain had noticed a bruise on the person of PW 5-Ganesha Ram just after the occurrence. All these facts taken together clearly aggravate the existing infirmities and weaknesses in the prosecution case. The facts and circumstances of the case probabalise the presence of the defence witnesses on or around the place of occurrence. The injury found on the person of Ganesha Ram Corroborates their version. In the presence of these probable facts the incident relating to sex act by the appellant with Smt. Rukmani Devi could not have taken place in the manner, as suggested by the prosecution. 17. To sum up, I hold that the prosecution had failed to prove the charge Under section 376 IPC against the present appellant beyond reasonable doubt. The appellant is, therefore, entitled to an acquittal. 18. In the result, the impugned judgment and order are hereby set aside and the appellant acquitted of the offence Under section 376 IPC. The appellant is reported to be in Jai. He shall be released forthwith, if not wanted in any other case. The appeal is allowed. *******