JUDGMENT 1. - This appeal is filed against the judgment of Additional Sessions Judge (Fast Track), Gangapur City in Sessions Case No. 16/2001 dated 9.7.2001. The prosecution case is based on an FIR lodged at Police Station Gangapur City bearing FIR number 286/97 under sections 376, 323 and 342 Indian Penal Code. After investigation, police filed challan against the appellant under sections 376 and 511 Indian Penal Code. After conclusion at the trial, the trial Judge framed charges against the appellant under sections 376 and 342 Indian Penal Code. 2. Prosecution examined as many as twelve witnesses and exhibited twenty documents. In defence, the accused examined one witness Hema DW-1 and produced documents DW-1 to DW-9. After considering the case of the prosecution, the trial Court came to the conclusion that the accused is guilty of the offences charged and sentenced the accused for offence under section 376 Indian Penal Code for five years rigorous imprisonment and a fine of Rs. 2,000/- and under section 342 Indian Penal Code for six months rigorous imprisonment. 3. Assailing the conviction and sentence, the accused-appellant's counsel submitted that it is not a case where it can be said with certainty that the accused was guilty of the offences as alleged. The age of the prosecutrix is said to be between 15 to 17 years. Taking medical case to be true, it would be considered to be on higher side and looking to the age, it was the age of discretion and, therefore, she had capacity of giving consent. The prosecutrix in her statement while she was being examined, expressed that she had gone with her consent though under rage and subsequently withdrew the words spoken by her, may be under temper. She admitted to have consented. She also stated that at Gangapur the accused used to come to her house. This is also indicative of the situation that she was a consenting party. The medical evidence also deposes that there were no marks of violence or injuries on the person of the accused. Not only this, certain letters have been exhibited in defence and the defence witness Hema has been produced as DW-1, who in her statement stated that she used to write letters at the instance of the prosecutrix. When the prosecutrix used to write letters to the accused, then it cannot be said that this was a case of rape. 4. Not only this, certain letters have been exhibited in defence and the defence witness Hema has been produced as DW-1, who in her statement stated that she used to write letters at the instance of the prosecutrix. When the prosecutrix used to write letters to the accused, then it cannot be said that this was a case of rape. 4. Per contra, the learned Public Prosecutor suggested that the age of the prosecutrix is not such that she could give consent and, therefore, whatever has come on record, the prosecution has established its case against the accused and the accused has rightly been convicted by the trial Court. 5. I have considered the rival submissions and have given my thoughtful consideration to the submissions made at the Bar. According to the medical evidence, by medical examination and X-ray, the age has been concluded by doctor to be 16 years. If the prosecutrix was about 15 to 17 years of age, then it has to be taken that she was more than 16 years of age and if she was of 16 years of age, then she could give consent. She being a consenting party, it cannot be said that the offence as alleged was made out because in her own statement, she had admitted that she had gone by her own consent. A definite version also comes out that she used to write letters to the accused. Thus, it is clearly established that there were relations between the prosecutrix and the accused based on consent of the parties. From the evidence of the witnesses, it cannot be said that the accused ,is guilty of the offences charged against him. The offence of Section 376 Indian Penal Code, therefore, cannot be made out. The other offence alleged by the prosecution against the accused is of Section 342 Indian Penal Code. The prosecutrix being a consenting party, the offence of Section 342 Indian Penal Code is also not made out. Thus, the charges recorded by the trial Court are not sustainable. 6. In the result, the appeal is allowed. The judgment dated 9.7.2001 passed by learned Additional Sessions Judge (Fast Track), Gangapur City (Karauli) is set aside. The charges as alleged and framed by the trial Court are held to be not sustainable against the accused. Since both the charges have failed, the sentences as ordered on those charges are set aside. In the result, the appeal is allowed. The judgment dated 9.7.2001 passed by learned Additional Sessions Judge (Fast Track), Gangapur City (Karauli) is set aside. The charges as alleged and framed by the trial Court are held to be not sustainable against the accused. Since both the charges have failed, the sentences as ordered on those charges are set aside. The accused is behind the bars. He) a released forthwith, if not required in any other case.Appeal allowed. *******