Judgment S. P. PATHAK, J. ( 1 ) THIS jail appeal under Section 383, Cr. P. C. has been filed by accused-appellant Shankarlal against the judgment of conviction and order of sentence dated 09. 01. 2003 passed by Addl. District and Sessions Judge (Fast Track), chittorgarh in Sessions Case No. 39/01 state vs. Shankerlal and Anr. , whereby he has been convicted under Sections 366, 368 and 376 (1) IPC and sentenced to 7 years rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment of fine to further suffer six months simple imprisonment under Section 376 (1) IPC; 2 years simple imprisonment and a fine of rs. 1,000/-, in default two months further simple imprisonment under Section 368 ipc; and 2 years simple imprisonment and a fine of Rs. 1,000/-, in default thereof to further undergo two months simple imprisonment under Section 366 IPC. All the sentences have been ordered to run concurrently and benefit of set off under Section 428 Crpc for the period of police and judicial custody has been allowed. ( 2 ) BRIEFLY stated, the facts of the case are that on 01. 05. 1997 at 7:30 PM ex. P/9 Parcha Bayan of prosecutrix pw. 1 Deu Bai was recorded at Police Station, Phooliyakalan, wherein she inter-alia stated that she is resident of village ghosunda and has two sons and one daughter. Last Tuesday, at 8 PM in the night when she alongwith all her family members were in the house, one person alongwith ramchandra arid his wife came there. Ramchandra told that one daughter of that person has been engaged in village chandras and the another daughter is being engaged with his nephew and if she wished the other daughter can be engaged with her son Bhopraj. Ramchandra introduced that person as Suresh Payak alias shanker, resident of Kekri, serving in police. It was further stated in the Parcha bayan that the prosecutrix said that her son was still of tender age and, therefore, she refused for the engagement. It is said that those persons took dinner at her house and stayed that night there. The next morning they again asked for the engagement but she said that she may get engaged her brother Kishanlal with his daughter. In the early morning, she and suresh started for Lasdawan for the engagement of her brother Kishanlal with her daughter and reached there. The next morning they again asked for the engagement but she said that she may get engaged her brother Kishanlal with his daughter. In the early morning, she and suresh started for Lasdawan for the engagement of her brother Kishanlal with her daughter and reached there. After talks, engagement of Kishanlal was fixed with the daughter of Suresh and Suresh gave lagan (writings in respect of engagement)and that night they stayed at the house of her brother. Next morning, Suresh told that he had one more daughter and again asked for getting his daughter engaged with her son and on persuasions of her brothers she agreed to that and for that lagans were got written through one Brahmin and the date of marriage was fixed as 08. 05. 1997. After that, Suresh told her to go back but she denied. Suresh then asked her to meet her daughter and she agreeing with him started from Lasdawan in a bus for nimbaheda. The bus reached Nimbaheda at about 9 PM. They got down there and she was taken by Suresh to a room in the upper-storey of a hotel. When she refused, suresh said that they should take rest for a while. He, after taking her inside the room, closed the door and on her crying shut her mouth. After laying her forcibly on a cot, Suresh committed rape on her and kept her there the whole night. Next day, at 6 Oclock, the gate of the room was opened, Suresh brought her down stairs and got her seated in a jeep already there. She stated that at that time she did not make any hue and cry. The jeep was got stopped at Kapasan bus-stand cross road by accused Suresh and she was asked to get down there. From there she was boarded in the bus for Kekri. Accused Suresh alias shanker also accompanied her. At Kekri bus-stand, Suresh took her at a Dhaba (A place where snacks and meals are sold)and forced her to eat. Suresh told her that there was his medi (room in the first floor) and asked her to come there. At the medi, suresh told her to stay for a while and said that he would call his children there but he pushed her inside the "medi and shut the doors from outside. After about an hour, suresh came and opened the doors. At the medi, suresh told her to stay for a while and said that he would call his children there but he pushed her inside the "medi and shut the doors from outside. After about an hour, suresh came and opened the doors. He came inside the medi and shut the doors from inside and there also committed misdeed with her. In the morning, Suresh asked her to wash his clothes. The pant of suresh fell down and on the pretext of bringing the pant, she went down but Suresh alias Shanker came behind her and forcibly started pulling her. She told the persons sitting there that he was a criminal (Gunda) and had brought her by abducting. She prayed for getting boarded her in a bus for Phooliya. Suresh also boarded the bus but at her instance the persons there compelled him to get down from the bus. After getting down from the bus, she came running to the Police Station for reporting the matter. ( 3 ) ON the aforesaid Parcha Bayan, a report was jotted down at Police Outpost, Phooliya under Sections 366, 376, 342 and 420 IPC without number and was sent to the Police Station Chanderiya for taking action in the matter. On 03. 05. 1997 on the aforesaid without numbered report, a Criminal Case No. 144/1997 under the aforesaid sections of Indian Penal Code was registered and investigation commenced. ( 4 ) DURING investigation, statements of witnesses were recorded. Statement of complainant Smt. Deu Bai was taken under Section 161 Crpc and she was medically examined for rape. Accused shanker was arrested and he was also medically examined for his potency and co-accused Ramchandra was also arrested. ( 5 ) AFTER completion of investigation, challan was filed under Sections 366, 376 and 368 IPC against accused-appellant shankar and under Sections 366/120b ipc against accused Ramchandra in the court of Additional Chief Judicial Magistrate, First Class, Chittorgarh on 30. 7. 1997 from where the case was committed to the court of Sessions and ultimately came for trial and disposal before the Addl. District and Sessions Judge (Fast Track), chittorgarh, who after hearing the parties on charge, framed charge against accused shankar under Sections 366, 368, 376 (1)and against co-accused Ramchandra under Section 366/ 120b IPC. The charges were read over to the accused. The accused denied the charges and claimed trial. District and Sessions Judge (Fast Track), chittorgarh, who after hearing the parties on charge, framed charge against accused shankar under Sections 366, 368, 376 (1)and against co-accused Ramchandra under Section 366/ 120b IPC. The charges were read over to the accused. The accused denied the charges and claimed trial. ( 6 ) IN support of its case, the prosecution examined as many as 12 witnesses and produced several documents in evidence. The accused were examined under Section 313 of the Crpc. In defence no witness was examined, however Ex. D/ 1 and D/2 statements of Deu and Madanlal in police and Ex. D/3 and D/4 copies of guest house register were exhibited. ( 7 ) THE learned trial Judge, after hearing both sides, convicted and sentenced the accused-appellant as indicated hereinabove, however acquitted co-accused Ramchandra of the charges levelled against him. ( 8 ) HEARD learned counsel for accused-appellant as well as the learned public Prosecutor at length and carefully scrutinized the material available on record. Learned Amicus Curiae appearing for the accused-appellant contended that the present matter is clearly of consent and no injury whatsoever was found on the person of the prosecutrix who was habitual of sexual intercourse. ( 9 ) IT was next contended that the prosecutrix is fully grown up lady and she was more than 30 years of age having two sons and a daughter at the time when the incident is alleged to have taken place. There was no injury whatsoever on her private parts which could suggest forcible intercourse with her. In the last, learned Amicus Curiae submitted that the accused is in jail for last six years, and in case even if it is presumed that the prosecution has been able to prove its case, then a lenient view may be taken in the matter as he is the only bread earner of the family. ( 10 ) ON the other hand, learned Public Prosecutor submitted that the prosecution has proved its case on the basis of reliable evidence produced in the Court and the learned trial court has assigned cogent reasons for convicting the accused person. I have considered the rival submissions made before me. ( 11 ) TO appreciate the contention raised before me. It is to be seen as to whether the present case is one of consent or not. I have considered the rival submissions made before me. ( 11 ) TO appreciate the contention raised before me. It is to be seen as to whether the present case is one of consent or not. As has been contended by learned Amicus Curiae that in this case deu Bai (PW. 1) the prosecutrix, in her statement has stated that alongwith one ramchandra, Suresh alias Shanker had come to her house on the day of incident in the evening and they talked about the engagement of daughter of Shanker with her son. The prosecutrix denied that it was not possible to marry her son with the daughter of Suresh alias Shanker as her son was not fully grown-up. At the instance of Ramchandra and accused, she agreed to talk to her brother, who was living in village Lasdawan. She stated further that one night accused Shanker along with Ramchandra (co-accused in the present case, who has been acquitted) stayed in her house and on the next day she alongwith Suresh alias Shanker went to the village of her brother where marriage of the daughter of accused shanker was fixed with her brother and a lagan was got drafted by a Brahmin. She further stated that she alongwith shanker stayed in her brothers house. On the next day, she started for her house, the accused also followed her. Both of them boarded in a bus which was going to Nimbahedha. They got down at nimbahedha bus stand. Accused took her in a hotel. It was further stated that there was room in upper storey of the hotel. The accused insisted to stay in the hotel to which she declined but she was forced to stay in the hotel and accused also gave her some pills as she made complaint that she was suffering from fever. She further stated that the room was closed and accused committed intercourse with her. On the next day, at about 5 AM in the morning, accused took her with him and both of them boarded in a jeep and got down at Kapasan and thereafter they proceeded for village Kekfi. Accused thereafter took her to his medi and offered meals to which she declined. She further stated that she asked the accused to bring soap so that she could wash his pant. Accused thereafter took her to his medi and offered meals to which she declined. She further stated that she asked the accused to bring soap so that she could wash his pant. She further stated that she went to the roof and threw the pant down and thereafter she came down and inquired about the transportation available for village Pholiya. She stated that thereafter she boarded in a bus, accused also chased her there and wanted her to got down from the bus but she declined. She further stated that she requested the driver of the bus to take the bus to the Police Station. In the last, she stated that a report of the incident was lodged in the Police station Kekri. ( 12 ) IN the cross-examination at page No. 3 she has stated that during the entire journey she changed the bus three times. It has also come on record that she boarded in a jeep in which 5-6 persons were already sitting. She stated that she stayed with the accused in the guest house and hotel and for a couple of days she was in the company of the accused person. She has also stated that some pills were given to her and on account of that she remained sleepy for some time. She has admitted the fact that in the bus and the market there were other persons also but she did not make any complaint to them. ( 13 ) PW. 4 Doctor Dilip Sharma, who has medically examined the prosecutrix has stated that he was working as Medical Jurist in PHC, Chittorgarh on 05. 04. 1997 and on police requisition he medically examined Smt. Deu Bai, the prosecutrix. He stated that he did not find any injury on the private part of the prosecutrix and no external or any other mark of injury was there on her body. He found the prosecutrix of the age of 30 years. He has stated that he took vagina swab for sending the same to the FSL. He has prepared Ex. P/4 to P/7 which are respectively medical examination report for age and taking two slides of vagina swab, medical report regarding age of the prosecutrix, request for medical examination regarding potency of the accused and medical examination report of the accused Suresh alias Shanker. He has prepared Ex. P/4 to P/7 which are respectively medical examination report for age and taking two slides of vagina swab, medical report regarding age of the prosecutrix, request for medical examination regarding potency of the accused and medical examination report of the accused Suresh alias Shanker. He has also stated that he did not find any injury on the private part of the prosecutrix to suggest that she was subjected to intercourse. ( 14 ) MADANLAL PW. 2, husband of the prosecutrix in his statement has stated about the fact of accused-appellant shanker alongwith Ramchandra coming to his house and staying there for a night. Accused Ramchandra introduced Shanker to him. An offer was made on behalf of shanker for engagement of his daughter with his son but the same was denied as his son was not fully grown-up. He stated that his wife and Shanker had gone to his brother-in-laws house in village Lasdawan. He further stated that he also went there and from there he returned on motorcycle while the accused and his wife boarded in a bus. He waited for their arrival but as they did not come, a search was made and after 2-3 days, it was informed to him by his son when he was at his home that his wife was in police station Chandriya. He stated that his wife narrated him the entire episode. A long cross-examination has been done with this witness but the same is not of much significance for proving rape with the prosecutrix. ( 15 ) PW 3 Kailash Chandra is brother of the prosecutrix and has proved exs. P/2, P/3 and P/4 which are inspection note, memo prepared in relation to lagan seized by the police, and lagan respectively. ( 16 ) PW. 5 Shivlal, who is brother of the prosecutrix has stated that her sister Deu Bai, alongwith one unknown person came to his house. The unknown person accompanied his sister requested him to visit his house to see his daughter for engagement purpose. He has stated that he asked his sister to accompany him and she went with that person. This witness has been declared hostile. ( 17 ) PW. 7 B. L. Tripathi, is Malkhana incharge of police station, Chanderiya. He has stated that SHO, Pholiya had sent him a without numbered FIR Ex. P/9 FIR through constable Ramswaroop. He has stated that he asked his sister to accompany him and she went with that person. This witness has been declared hostile. ( 17 ) PW. 7 B. L. Tripathi, is Malkhana incharge of police station, Chanderiya. He has stated that SHO, Pholiya had sent him a without numbered FIR Ex. P/9 FIR through constable Ramswaroop. On the basis of Ex. P/9 a regular FIR Ex. P/10 was chalked. Investigation was handed over to one Sohanlal, ASI. PW-8 Shantilal is witness of Fard Ex. P/2 and P/3. PW-9 is H. R. Nagori, who has recorded the statement of the prosecutrix ex. P/3, under Section 164 Cr. P. C. ( 18 ) PW-10 Sohanlal has conducted investigation in the matter and has stated that during the course of investigation he got medically examined the prosecutrix and also recorded certain information given by the accused to him as also collected record from the hotel where the accused and the prosecutrix stayed. PW-11 Ratan Lal is the witness of fard Ex. P/13 in relation to recovery of the prosecutrix. This witness has turned hostile. PW-12 Ramswaroop, who was constable at Police Station Pholiyakalan, has stated that the prosecutrix was found at bus-stand from where she was brought to the Police Station and thereafter her parcha Bayan was recorded. On the basis of Parcha Bayan, a regular FIR was chalked. ( 19 ) AFTER careful examination of entire material and taking into consideration the facts and circumstances, the statement of the prosecutrix, who is a married woman, though she has stated that she was taken away by the accused without her wish and desire under a false pretext and was subjected to rape by the accused, does not appear to be reliable particularly when in her statement, it has clearly come that she accompanied the accused-appellant at various places such as hotel, guest house, market and remained with the accused for couple of days. Simply by making statement that she was forced to accompany the accused or intercourse was done with her without her consent does not inspire confidence in view of the circumstances available in her statement. As per her own statement, she was taken in bus and at three places buses were changed. She also travelled in a jeep, and went to the house of the accused where as per her version she washed the pant of the accused. As per her own statement, she was taken in bus and at three places buses were changed. She also travelled in a jeep, and went to the house of the accused where as per her version she washed the pant of the accused. In the Parcha Bayan, the story narrated is not one as stated in the statement recorded before the Court. In her statement recorded under Section 164 crpc by a Magistrate there is variance in relation to happening of the incident. The statement of the prosecutrix has not been corroborated by the medical testimony. Not even a single injury mark was found on her person or private part. The medical evidence does not confirm the oral testimony of the prosecutrix. The prosecutrix is a well-developed and grown up lady who remained with the accused, travelled with him and stayed with him at different places. These circumstances are suggestive of the fact that it is a case where sexual intercourse if took place between them, was with their consent. ( 20 ) THE Honble Apex Court in the case of Sudhansu Sekhar Sahoo v. State of orissa, wherein no sign of injury was found on the body of prosecutrix and the medical report showed the prosecutrix habitual to sex, gave benefit of doubt to the accused-appellant. ( 21 ) THIS Court has also in the case of Ram Chander v. State of Rajasthan, has held the accused-appellant entitled to acquittal especially in the circumstances that the accused had sex with prosecutrix twice, no injury on her body was found, she did not make any cry or complained to anybody, and was in the company of accused voluntarily. ( 22 ) THIS Court further in the case of Balu Singh and Ors. v. State of Rajasthan, has observed that absence of injuries on the body of the prosecutrix generally gives rise to an inference that she was consenting party to coitus. In that case also the prosecutrix roamed at several places in the company of accused but did not make any complaint which showed that she was a consenting party. ( 23 ) IN rape cases conviction can be based on the single testimoney of the prosecutrix provided the Court is satisfied that the same is reliable and inspires confidence. In that case also the prosecutrix roamed at several places in the company of accused but did not make any complaint which showed that she was a consenting party. ( 23 ) IN rape cases conviction can be based on the single testimoney of the prosecutrix provided the Court is satisfied that the same is reliable and inspires confidence. ( 24 ) IN the instant case, as discussed hereinabove, I find that there are circumstances which clearly speak about the consent of the prosecutrix as she had ample opportunities at various places to make hue and cry to save herself but she took no such step. She has even accompanied the accused to his house inspite of the fact that before accompanying with the accused to his house, he had committed rape with her many a times. In parcha Bayan she stated that in a single night accused had committed rape with her for at least six times and on the other day in hotel she was subjected to rape thrice but in the statement before the court she has only stated that she was raped a number of times. ( 25 ) IN view of above discussion, I am of the opinion that the statement of the prosecutrix is not trust-worthy for basing conviction against the accused-appellant. The learned trial court though has held that under a false pretext she was made to accompany the accused to her brothers house and thereafter she was taken to various places and found that the prosecution was able to prove its case. I do not find myself in agreement with the findings recorded by the trial court for the simple reason that she is a fully grown up lady, who accompanied the accused to various places, stayed in the hotel and also visited market and changed various buses at several times. She had not made any complaint to any one and even not made any hue and cry. Three versions of incident with the prosecutrix are available, one is parchabayan, second statement recorded under Section 164 Crpc and last the statement recorded in the Court. After carefully examining the entire evidence, I am of the view that the learned trial court has not properly appreciated the evidence of the prosecutrix in relation to consent and the evidence brought on the record is not satisfactory to prove the guilt of the accused. After carefully examining the entire evidence, I am of the view that the learned trial court has not properly appreciated the evidence of the prosecutrix in relation to consent and the evidence brought on the record is not satisfactory to prove the guilt of the accused. One of the co-accused has already been acquitted of the charges. ( 26 ) TAKING into consideration overall facts and circumstances of the case, I deem it proper to give benefit of doubt to the accused and set aside the judgment of conviction and order of sentence passed by the learned Sessions Judge in state v. Shankerlal and Anr and the accused is entitled to acquittal. ( 27 ) IN the result, the appeal of the appellant is allowed giving benefit of doubt, judgment of conviction and order of sentence dated 09. 01. 2003 passed by learned addl. and Sessions Judge (Fast Track), chittorgarh in Sessions Case No. 39/01 (State v. Shankerlal and Anr.) is hereby set aside and the accused is acquitted of the charges framed against him. He is in jail, he may be released forthwith if not required in any other cases. Appeal allowed.