Judgment (M.N. Gilani, J.) This appeal arises out of the judgment and order dated 22.1.2004, passed by Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No.22/2009 whereby the appellant was convicted for an offence under section 376(1) of the Indian Penal Code and sentenced to suffer R.I. for seven years & to pay fine of RS.2,000/-, in default to suffer R.I. for six months. 2] The prosecution case as unfolded in the first information report is thus: the accused was a teacher in a School at village Muska, tahsil Dhanora, district: Gadchiroli. Victim and her parents reside in the same village. They were acquainted with the accused. At the relevant time the age of the victim was 16 ½ years. She had patches of leucoderma (white patches) on her forehead and hand. The accused suggested to her parents that he was acquainted with some doctor at Nagpur who would be able to provide treatment to the girl. Accused carried girl to Nagpur and for meeting the expenses of the treatment obtained Rs.2,000/-from her father. On the way to Nagpur they stayed in a lodge at Gadchiroli. It is alleged that in the night the accused had sexual intercourse with the girl. Thereafter she was carried to Nagpur and the doctor was consulted. After 15-20 days of this incident again the girl accompanied the accused for going to Nagpur. Since they could not meet the doctor they were required to make halt in the lodge in the night. Again the accused had sexual intercourse with the girl. She conceived form him. Ultimately, on 28.8.1997 the first information report came to be lodged and on that basis the offence under section 376 of Indian Penal Code came to be registered. 3] Victim was examined by the Medical Officer. She was found carrying fetus of 22 weeks. Her radiological examination revealed that she was in between 16-18 years of age. After investigation the charge sheet was submitted. The Additional Sessions Judge framed & explained the charge to the accused. He pleaded not guilty and claimed to be tried. The prosecution examined 7 witnesses. After considering the evidence, learned Additional Sessions Judge held that sexual intercourse committed by the accused with victim was against her will. He therefore, proceeded to convict and sentence him as stated above. The Additional Sessions Judge framed & explained the charge to the accused. He pleaded not guilty and claimed to be tried. The prosecution examined 7 witnesses. After considering the evidence, learned Additional Sessions Judge held that sexual intercourse committed by the accused with victim was against her will. He therefore, proceeded to convict and sentence him as stated above. 4] The learned counsel for the appellant assails the judgment impugned mainly on the ground that it is based upon conjunctures and surmises. The inference drawn by the learned Additional Sessions Judge that the sexual intercourse was without consent of the victim is inconsistent with the material placed on record. According to him, the victim being above 16 years of age her consent was material. Her conduct in accompanying the accused, staying with him in the lodge not once, but twice and not lodging any protest till she noticed that she was pregnant, only point out that she had consented for the sexual intercourse. According to the learned counsel this material aspect involved in the case has been ignored by the learned Additional Sessions Judge and thus committed an error in convicting the accused. 5] Learned A.P.P. supported the judgment & order of conviction and sentence. According to him accused taking advantage of the position, carried the girl with him for providing her treatment. He took undue advantage of her helplessness and committed sexual intercourse with her. On the second occasion also against the will of the victim he had sexual intercourse with her. When she conceived, he disowned paternity and fled away from the village. He therefore, contended that the learned Additional Sessions Judge was right in convicting the accused for the offence punishable under section 376 of the Indian Penal Code. 6] The victim narrated the first incident of the accused committing sexual intercourse with her as under: “The accused came on my cot. Due to this I woke up. Accused caught me. Accused stated me as nobody is here, and stated me to allow him for committing sexual intercourse. I refused for the sexual act. I stated him as to why he is not feeling shame for asking me about the evil act. Accused committed sexual intercourse with me. The accused committed sexual intercourse with me. The accused committed sexual intercourse with me forcibly. Accused committed sexual intercourse with me forcibly. I refused for the sexual act. I stated him as to why he is not feeling shame for asking me about the evil act. Accused committed sexual intercourse with me. The accused committed sexual intercourse with me. The accused committed sexual intercourse with me forcibly. Accused committed sexual intercourse with me forcibly. Accused stated me that he will see if any wrong happened with me. The accused committed sexual intercourse with me forcibly. Accused stated me that he will see if any wrong happened with me. I was weeping when accused was committing sexual intercourse with me. Due to threatening of accused, I had not stated anybody about this incident.” About the second incident, she narrated as under: “After one month, again accused came to my house for taking me at Nagpur. Alongwith accused I had gone to Nagpur. I was not intending to go with him. On the say of my parents, I had gone with him at Nagpur. At about 2.30 p.m. along with accused I reached at Nagpur. We had gone to the hospital, but the doctor was not present in the hospital. Accused taken me in a lodge at Nagpur. Accused made his signature in the register of lodge. There were two cots in the room of lodge. At about 9 p.m. I was lying on my cot. On the next morning, we had gone to hospital and thereafter came back to our village. The accused had not committed sexual intercourse with me at that night.” 7] It is only when the learned A.P.P. was allowed to put leading question to this witness she had stated that on the second occasion also the accused had committed sexual intercourse with her. The relevant part of her testimony is reproduced below: “I stated about adopting pregnancy to accused. he stated that he will cause terminate the same. Thereafter the accused was absconded. There was meeting in the village about adopting (conceiving) pregnancy by me. At that time I stated the name of accused as he caused pregnancy to me. Prior to lodging the report, accused brought me at Armori. He had taken me for terminating my pregnancy. he stated that he will cause terminate the same. Thereafter the accused was absconded. There was meeting in the village about adopting (conceiving) pregnancy by me. At that time I stated the name of accused as he caused pregnancy to me. Prior to lodging the report, accused brought me at Armori. He had taken me for terminating my pregnancy. As the accused had not came to meeting and absconded after causing pregnancy to me, therefore, I have gone to police station.” 8] In the first information report, it is mentioned that: “HINDI” 9] What emerged from the above is that the victim who was aged more than 16 years voluntarily accompanied accused without any protest. She agreed to spend night with him in room, not once, but twice. When they returned back, she kept mum. After one month she again agreed to accompany him without any protest. During her examination in chief she categorically stated that on the second occasion the accused did not have sexual intercourse with her. For that reason leading questions were put to her. After returning the house she kept mum. Only because she conceived and accused did not help her in getting the pregnancy terminated, she lodged report. In that view of the matter, the findings recorded by the learned Additional Sessions Judge in paragraph 24 of the judgment that there was no valid consent on the part of the victim, are misconceived and inconsistent with the evidence placed on record. 10] P.W.2 the father of the victim admitted in cross-examination that: “My daughter stated about the pregnancy and, therefore, there was meeting of panchas. I had not gone to the meeting.” 11] In case of Jintudas..vs.. State of Asam reported in 2003 Cri.L.J. 1411 the Learned Single Judge of the Gauhati High Court while dealing with the case involving similar facts and after considering evidence relating to the conduct of the victim observed that: “If a full grown woman consents to act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. In such facts and circumstances, the irresistible conclusion is that the accused had sexual intercourse with her consent. In such facts and circumstances, the irresistible conclusion is that the accused had sexual intercourse with her consent. More so, when this act has been corroborated by circumstances that she did not tell anybody about the sexual intercourse with the accused appellant till she became pregnant. In such a case conviction of accused for offence of rape is not proper.” 12] In case of VettikuzhiyilJaison alias Jose ..vs.. The State, reported in 2003 Cri.L.J. 2482 the learned Single Judge of the Kerla High Court held that : “Evidence on record shows that prosecutrix was above 16 years of age on date of commission of alleged offence -According to prosecutrix accused had sexual intercourse with her on three occasions -Prosecutrix, however, not divulging incident to anybody till she was found pregnant by doctor -Prosecutrix not even offered resistance when accused attempted to have sexual intercourse with her in her own house – Nor raised alarm to draw attention of neighbours or escaped from house – No marks of injury found on private parts – Held, entire conduct of prosecutrix shows that she was a consenting party.” 13] In case of Uday..vs..State of Karnataka reported in (2003)4 SCC 46 , their lordship explained the term 'consent' occurring under section 90 and held that “burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them”. 14] In order to prove that victim conceived from the accused the prosecution adduced no evidence. Even the elimination test based on the blood groups was not carried out much less D.N.A. test. Considering the evidence brought on record it is difficult to subscribe to the findings of the learned Additional Sessions Judge that there was no valid consent for the sexual intercourse. In that view of the matter the appeal succeeds. 15] The appeal is allowed. The judgment and order of conviction of the accused for the offence punishable under section 376 of I.P.C. is set aside. The appellant stands acquitted. Bail bonds executed by the appellant stand cancelled.