JUDGMENT Dhirendra Mishra, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 24th April, 2004 passed in S.T. No. 68/04 whereby learned 1 Additional Sessions Judge, Raipur has convicted the appellant under Sections 376, 506 -11 of the Indian Penal Code and sentenced him to undergo R1 for seven years, pay a fine of Rs. 3,000/- and to undergo RI for two years, pay a fine of Rs. 1,000/-, respectively and in default of payment of fine to undergo additional RI for one year and six months, respectively. Both the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 13-12-2003 the appellant, who is resident of village Morwa, Distt. Raipur, the village of maternal uncle of the prosecutrix, went to village Dadicoat where prosecutrix resides with her parents, by his motorcycle. He visited house of the prosecutrix, sat there for a while and thereafter, came out. The parents of the prosecutrix also came out with the prosecutrix to see him off and after her parents entered in the house and the prosecutrix was to enter, the appellant asked her to show the house of one Dev Singh Satnami and took her on his motorcycle. After some time he took the prosecutrix on his motorcycle to village Chhura, purchased a shawl and thereafter, while taking the prosecutrix to her home he turned towards Pendripani forest and forcibly raped her there. When the prosecutrix tried to raise alarm, he gagged her mouth and threatened with life and thereafter, brought her back to her house on his motorcycle. The prosecutrix narrated the incident to her mother, however, the accused fled from there leaving his motorcycle. Thereafter. First Information Report of Ex. P/1 was lodged by the prosecutrix on 13-12-2003 at about 22.00 hours in the Police Station--Chhura. 3. During investigation the prosecutrix was sent for medical examination to Community Health Center, Chhura where Dr. Saroj Gandharva examined her and gave her report of Ex. P/8. The underwear of prosecutrix was taken into possession vide Ex. P/3. School admission register of the prosecutrix was taken into possession vide Ex. P/9 and copy of relevant page of the school admission register is Ex. P/10-C. Vaginal slides of the prosecutrix were taken into possession vide Ex. P/11. Saroj Gandharva examined her and gave her report of Ex. P/8. The underwear of prosecutrix was taken into possession vide Ex. P/3. School admission register of the prosecutrix was taken into possession vide Ex. P/9 and copy of relevant page of the school admission register is Ex. P/10-C. Vaginal slides of the prosecutrix were taken into possession vide Ex. P/11. The seized articles i.e. vaginal slides and underwear of the prosecutrix were sent for chemical examination to Forensic Science Laboratory, Raipur vide Ex. P/12. The appellant was also medically examined by Dr. A.K. Mishra (PW-12) and his medical report is Ex. P/14. 4. Alter completing investigation charge-sheet was filed in the Court of Judicial Magistrate First Class, Gariyaband and the same was received by learned Additional Sessions Judge for trial. 5. During trial, the prosecution examined 12 witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of Cr. P.C. wherein he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. He took a defence that the prosecutrix herself asked her for a ride on motorcycle. She also asked him for a shawl, whereupon he purchased a shawl for her and after that he took her to forest and on her request they had sexual intercourse with her consent. She had herself laid the shawl on the ground. However, on return to her house, they found that villagers had gathered before her house. She asked the villagers to let him (the appellant) go as the villagers had become suspicious. They left him only on the persuasion of the prosecutrix and her family members. 6. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused/appellant as mentioned in paragraph 1 of this judgment. 7. Conviction of the appellant is based on the statement of prosecutrix and on the basis of the statement of Dr. Saroj Gandharva (PW-6) who examined her after the incident. 8. 6. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused/appellant as mentioned in paragraph 1 of this judgment. 7. Conviction of the appellant is based on the statement of prosecutrix and on the basis of the statement of Dr. Saroj Gandharva (PW-6) who examined her after the incident. 8. Learned Counsel for the appellant submitted that so far as age of the prosecutrix is concerned, the learned trial Court in paragraph 16 of its judgment has held that on the basis of date of birth recorded in the school register, age of the prosecutrix on the date of incident was 15 years, however, since father of the prosecutrix has not given clear evidence about the entry of date of birth in the school register and the prosecutrix has not proved her age by seizing Kotwari register, for the purpose of assessing her age no conclusive inference regarding her age can be drawn on the basis of school register. 9. Learned Counsel further argued that for the purposes of rape as defined under Section 375 of the I.P.C., the prosecution is duty bound to prove that the intercourse was committed by the appellant against will of the prosecutrix and without her consent. The trial Court has relied upon the version given by the prosecutrix in the Court without scrutinizing the evidence available on record. Referring to conduct of the prosecutrix it was argued that she herself accompanied the appellant on his motorcycle up to the house of Dev Singh at odd hours between 7.30 to 8.00 p.m. where they stayed for 5-7 minutes and when Dev Singh offered to leave them, she replied that they (appellant and herself) will go together. Thereafter, the prosecutrix accompanied the appellant up to Chhura, which is at distance of 5 km. where they purchased a shawl. She has also stated in paragraph 7 of her deposition that while returning from the house of Dev Singh they did not pass through her house but followed through another lane, which suggests that she intentionally did so to avoid being spotted by her family members. Further, absence of injuries, external or internal, over person of the prosecutrix is also indicative of the fact that she was a consenting party. Further, absence of injuries, external or internal, over person of the prosecutrix is also indicative of the fact that she was a consenting party. Moreover, she did not raise alarm on the way or at the place of incident and on the contrary, after the alleged offence, she accompanied the appellant on his motorcycle up to her house. The above conduct of the prosecutrix goes to show that the act was consensual otherwise it is highly improbable that after having sexual intercourse with the prosecutrix against her will after tying her hands and legs on the threat of life, the appellant would have dared to go to her house for leaving her. It is not the case of the prosecution that the appellant threatened her with any weapon. The prosecutrix had ample opportunity to flee from the place of incident while the appellant was undressing himself. The prosecutrix has made material improvement in her deposition before the Court with regard to tying of her hands and legs by dupatta and going toward colony on the pretext of meting someone. 10. Learned Counsel for the appellant referring to the statements of PW-2 Meenabai Manikpuri, mother of the prosecutrix, PW-3 Chamanlal Manikpuri, father of the prosecutrix and PW-4 Mohan Singh argued that even before the prosecutrix returned to her house, villagers had gathered in front of her house as they had become suspicious of their relationship and were pressurizing parents of the prosecutrix for lodging the report as according to them because of the act of their daughter the village was being defamed and only thereafter, a false report was lodged against the appellant under pressure. 11. Reliance is placed on the judgments in the matters of Kuldeep K. Mahato v. State of Bihar , Deelip Singh alias Dilip Kumar v. State of Bihar 2005 SAR (Criminal) 18. 12. On the other hand, learned Counsel for the State/respondent supported impugned judgment of the trial Court. 13. I have heard learned Counsel for both the parties and perused the impugned judgment as also the evidence available on record. 14. The fact of sexual intercourse between the appellant and the prosecutrix is not in dispute. 12. On the other hand, learned Counsel for the State/respondent supported impugned judgment of the trial Court. 13. I have heard learned Counsel for both the parties and perused the impugned judgment as also the evidence available on record. 14. The fact of sexual intercourse between the appellant and the prosecutrix is not in dispute. The trial Court has also held in paragraph 16 of its judgment that the prosecution has not been able to prove conclusively that age of the prosecutrix was below 16 years on the date of incident as the school certificate relied upon by the prosecution has not been believed by the trial Court for the purposes of her date of birth. 15. The only question to be considered in this appeal is--"whether from the evidence available on record the learned trial Court was justified in relying upon the statement of the prosecutrix that the appellant committed sexual intercourse against her will and without her consent on the threat of her life?" 16. PW-1 the prosecutrix has stated that the accused came to her house, sat there for a while and thereafter she accompanied him on his motorcycle to show him the house of Dev Singh where they stayed for 5-7 minutes. Dev Singh asked her that he shall leave her, on which the appellant said that he shall leave her niece to her house. Thereafter, she went with the appellant on his motorcycle and accompanied him up to Chhura on the promise that he (the appellant) shall leave her after purchasing shawl. He took her towards colony on the pretext that he has to meet someone and thereafter, turned his motorcycle towards Pandripani and stopped it in the forest. On being asked, he threatened her to keep quiet or else he shall kill her and forcibly undressed her and he also started undressing himself and thereafter, committed rape with her after making her lie on the ground. When she tried to shout, he gagged her mouth. After committing the offence he brought her back to her house on his motorcycle. She narrated the incident to her parents and thereafter, report of Ex. P/1 was lodged by her in the police station. In her cross-examination, she has admitted that the house of Dev Singh is far away from their house. After committing the offence he brought her back to her house on his motorcycle. She narrated the incident to her parents and thereafter, report of Ex. P/1 was lodged by her in the police station. In her cross-examination, she has admitted that the house of Dev Singh is far away from their house. However, she has denied that when Dev Singh offered to leave her, she had declined and said that she will go. She has stated that while returning from the house of Dev Singh they did not pass through front of her house but followed another lane. However, she has denied the suggestion that she had asked the appellant for a motorcycle ride and also asked that he should get her a shawl from the shop. However, she has admitted that the accused is a resident of another village and she is acquainted with the vicinity of the village. She has denied that in fact she had made proposal for having sex. She has admitted that from the place where she was lying a kachcha way goes to her village. On the date of incident she was putting on salwar-kurta whereas the appellant was wearing fullpant, shirt and underwear. In paragraph 10 she, has stated that the accused had tied her hands and legs with her dupatta, however, she had forgotten to mention this fact to the police out of fear. She has denied that the villagers came to her house and pressurized them for lodging report as the village was being defamed, therefore, she went to lodge report. 17. PW-2 Meenabai, mother of the prosecutrix has stated that accused had come to their house and sat for some time. The accused brought her daughter back to the house at about 9.00 p.m. When she reprimanded the prosecutrix for coming late, she disclosed that the accused has committed rape with her at Pandripani. They were not inclined to lodge any report, however, her daughter said that she will report the matter and she lodged the report. In paragraph 5 she has stated that the prosecutrix went with the accused Suresh without informing her. She was reprimanded by her husband and before the return of her daughter and accused Suresh, the villagers had gathered in front of her house and they were saying that because of this incident the whole village is being defamed. In paragraph 5 she has stated that the prosecutrix went with the accused Suresh without informing her. She was reprimanded by her husband and before the return of her daughter and accused Suresh, the villagers had gathered in front of her house and they were saying that because of this incident the whole village is being defamed. She has also admitted that after the return, her daughter entered into the hduse. The villagers were compelling to lodge the report, however, they were not inclined. When the villagers pressurized them to lodge report otherwise they will be excommunicated, they along with the prosecutrix went to police station and report was lodged by her daughter. Similar is the statement of PW-3 Chamanlal, lather of the prosecutrix and PW-4 Mohan Singh. 18. Thus, from the close scrutiny of the statements of above witnesses the following picture emerges: (i) that the prosecutrix accompanied the appellant up to the house of Dev Singh, which is at a distance, on his motorcycle; (ii) that after sitting for about 5-7 minutes, she again accompanied the appellant on his motorcycle refusing the offer of Dev Singh (PW-5) and said that they shall go together; (iii) that while returning from the house of Dev Singh they did not follow the way which goes from the front of her house but followed another lane; (iv) that they went to another village Chhura and purchased a shawl from the shop; (v) that after purchasing shawl he took her towards colony saying that he has to meet someone (omission in the FIR of Ex. P/1 and diary statement of Ex. D/1); (vi) that he diverted the motorcycle towards Pandripani, where he committed sexual intercourse with her on the ground; (vii) that after the alleged act the appellant brought her back to her house on his motorcycle; (viii) that even before their arrival the villagers had gathered in front of her house and they were alleging that because of the conduct of the prosecutrix, the whole village was being defamed and they were pressurizing to lodge a report and warned them that if they did not lodge report, they will be excommunicated from the village and ultimately, the report was lodged by the prosecutrix at the behest of villagers. (ix) that PW-4 Mohan Singh has stated that they had asked to take the boy and girl to police station, at that time the accused was there. However, parents of the prosecutrix were not inclined to report the matter and the girl did not say anything and entered in the house. Thereafter, the accused also left the place of incident. However, after about 10 minutes the girl said that she will lodge the report as she has been raped. (x) that Dr. Saroj Gandharva (PW-6) who examined the prosecutrix, did not find any external or internal injuries on her persons. She also did not notice any injury on her private part nor any blood, sperm discharge over vagina was noticed. Hymen was found ruptured, margins were red and congested and on touching blood secretion was there, she was complaining pain and the vagina was admitting 1 finger. The doctor has opined that the lady was raped. She has admitted that she did not mention the duration of hymen rupture in her report. 19. In Kuldeep K. Mahato 1998 Cri LJ 4033 (supra) the Hon'ble Supreme Court has held when the medical evidence indicated that there was no injuries on the person of the prosecutrix including her private part, conduct of the prosecutrix showed that she was a consenting party to the sexual intercourse and she was not put in physical restraint. Her entire conduct shows that she was a consenting party to the sexual intercourse and with these findings, conviction under Section 376 of the IPC was set aside. 20. In the matter of Deelip Singh (supra) the Hon'ble Supreme Court in paragraphs 18, 19, 20 has dealt with the concept and dimensions of the consent in the context of Section 375 of I.P.C. and held that where the consent is given firstly under the fear of injury and secondly under the misconception of fact, is not a consent at all. 21. In the above matter while dealing with Clause secondly of Section 375 of Indian Penal Code it has been discussed that there is no definition of "consent" under Indian Penal Code in the positive term. 21. In the above matter while dealing with Clause secondly of Section 375 of Indian Penal Code it has been discussed that there is no definition of "consent" under Indian Penal Code in the positive term. Section 90 of I.P.C. deals with what cannot be regarded as "consent" under the I.P.C. Whether the consent is given by the person under the fear of injury or under a misconception of fact or if the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or influence, in that case it is not a "consent" under the I.P.C. 22. Elaborately discussing exhaustive definition of "consent" for the purposes of Indian Penal Code Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases-Permanent Edition has been referred. Referring Stroud's definition of consent it is mentioned thus "an act of reason, accompanied with, deliberation, the mind weighing, as in a balance, the good and evil on each side". Jowitt, while employing the same language added the following: ...Consent supposes three things-a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. Referring to the Words and Phrases--Permanent Edition, Volume 8A, it has been quoted thus: ...adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and more quality and there must be a choice between resistance and assent.... The above tests for consent have been, by and large, adopted in India to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent. 23. In the judgment rendered in the matter of Uday v. State of Karnataka the judgment of Kerala High Court in the case of Vijayan Pilai v. State of Kerala (1989) 2 Ker LJ 234 also finds reference in the following words: Consent supposes three things-a physical power, a mental power and a free and serious use of them. 23. In the judgment rendered in the matter of Uday v. State of Karnataka the judgment of Kerala High Court in the case of Vijayan Pilai v. State of Kerala (1989) 2 Ker LJ 234 also finds reference in the following words: Consent supposes three things-a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. Every consent to act involves submission, but it by no means follows that a mere submission involves consent. In Jowitt's Dictionary of English Law, IInd Edn. Vol. 1 explains consent as follows: An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things-a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. In the above judgment paragraph 21 of the judgment in the matter of In re, Anthony alias Bakthavatsalu AIR 1960 Mad 308: 1960 Cri LJ 927 has been quoted with approval wherein it is held that: A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. In the matter of Rao Harnarain Singh Sheoji Singh v. State it has been observed thus: There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. In the matter of Rao Harnarain Singh Sheoji Singh v. State it has been observed thus: There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. 24. In the recent judgment in the matter of Yedla Srinivasa Rao v. State of A.P. , a distinction has been made between consent given by a girl of tender age on the basis of continuous persuasion of three months for sexual intercourse and the consent given by a fully grown-up girl. 25. Learned Counsel for the appellant referring to the facts detailed in paragraph 18 of this judgment has vehemently argued that the prosecutrix accompanied the appellant on her own free will on his motorcycle, she did not sustain any injury over her person, which she would have otherwise sustained had she offered any resistance at the time of commission of offence and initially, the family members of the prosecutrix were not inclined to lodge the report, however, on being coerced by the villagers on the threat that if they did not lodge report, they would be excommunicated the report could be lodged and all these facts demonstrate that the prosecutrix was a consenting party. 26. In the light of above principles of law laid down, I propose to examine conduct of the prosecutrix in reaching to the conclusion whether from the evidence available on record, it could be inferred that the prosecutrix was a consenting party. 27. The prosecutrix is a girl of tender age of 16. There is evidence on record to show that she was below 16 years, however, learned trial Court was not satisfied from the evidence adduced by the prosecution to establish her age to be below 16. Nevertheless, the fact remains that the prosecutrix was around 16 years old at the time of incident. There is evidence on record to show that she was below 16 years, however, learned trial Court was not satisfied from the evidence adduced by the prosecution to establish her age to be below 16. Nevertheless, the fact remains that the prosecutrix was around 16 years old at the time of incident. It is a well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The prosecutrix is more reliable than that of an injured witness as she is not an accomplice but victim of the crime. 28. From the evidence available on record it is evident that the prosecutrix belongs to lower strata of the society, she is the eldest of her five sisters in her family whereas the appellant hails from her maternal uncle's village and therefore, she addresses him as Mama. From the material available on record and the surrounding circumstances, it can safely be inferred that the prosecutrix was influenced by the mannerism of the appellant and under the influence of which, she ventured to go out with the appellant in the odd hours of night to village Chhura, the place at a distance of about 5 km. from her house. Both of them purchased a shawl and thereafter while returning to the village the prosecutrix is taken by the appellant to a secluded place and sexual assault was made there on the prosecutrix. From the medical report it is clear that the prosecutrix was not a girl of lax moral and she was not habituated to sexual intercourse and most probably, that was her first experience as the doctor has observed reddishness on her vagina and blood secretion and pain on touching the vagina. It is not in dispute that on the date of incident the appellant was aged about 30 years whereas the prosecutrix was only 16 years old. In the surrounding circumstances under which sexual assault was made, element of surprise and undue influence of the appellant over the prosecutrix is writ large, therefore, submission of the prosecutrix to the lust of the appellant may be treated as a delusion and not as a deliberate and free act of her mind. In the surrounding circumstances under which sexual assault was made, element of surprise and undue influence of the appellant over the prosecutrix is writ large, therefore, submission of the prosecutrix to the lust of the appellant may be treated as a delusion and not as a deliberate and free act of her mind. From perusal of the evidence on record regarding subsequent conduct of the prosecutrix also, it appears that after the incident when she returned to her home she saw that there was a hostile crowd of villagers, however, firstly she entered the house without talking to anyone, probably due to anguish, and when her parents expressed their disinclination to lodge report despite being pressurized by the villagers, she came out of the house and expressed her determination to lodge report and accordingly report was lodged. Had she been a consenting party as claimed by the accused in his statement under Section 313 of Cr. P.C., there was no occasion for her to tell about the consensual sexual intercourse to her parents and she could have simply given some excuse for being late. 29. On the basis of aforesaid discussion, the arguments advanced by learned Counsel for the appellant that conduct of the prosecutrix and absence of injuries on her person, is suggestive of her being a consenting party, cannot be accepted. In the result, the appeal being devoid of substance is liable to be dismissed and is accordingly, dismissed.