JUDGMENT Hon’ble Aditya Nath Mittal, J.—This criminal appeal has been filed against the judgment and order dated 13.1.1994, passed by the IIIrd Additional Session Judge, Faizabad, by which the appellant Smt. Gayatri and Ramji Verma have been convicted for the offences punishable under Sections 363 and 366 IPC and appellant Santram Verma has been convicted for the offences punishable under Sections 363, 366 and 376 IPC. 2. As per prosecution case, in the night of 9/10.8.1988, Santram and the wife of Bhagwati Deen Verma has enticed away the sister of the complainant on the pretext of natural call and Santram had handed over the sister of the complainant to two other persons. The complainant searched out his sister, but she was not traceable, therefore, the report was lodged on 10.8.1988 at 16.20 hours, upon which a case at Crime No. 312/1988, under Sections 363, 366 IPC was registered. The victim was recovered alongwith Kalideen and Banshu. The statement of the victim was recorded in which she had stated that she was subjected to rape by the appellant Santram and had also narrated the story of kidnapping. The victim was medically examined at District Hospital, Faizabad on 13.8.1988 and X-ray was also conducted in which she was found to be seventeen years old. After investigation, the charge-sheet was filed against the present appellants, who had denied the charges and claimed their trial. 3. The prosecution had examined the following witnesses : PW-1 Shyam Bahadur, the cousin brother of Smt. Vedwati, had lodged the written First Information Report on the disappearance of the girl from the house. He proved the written First Information Report Exhbit-Ka-1 in his testimony stating that some two years three months ago in the morning at 3 or 4 O’clock Bhagauti’s wife Gayatri Devi had come to his house and had taken away Vedwati from the house on the pretext of going to ease themselves in the field. When she did not return he inquired about her sister from her, who told him that she did not know where she had gone. Ram Kirpal and Sita Ram had told him that they had seen her near the Government Nali alongwith Bhagauti’s wife. When she did not return he inquired about her sister from her, who told him that she did not know where she had gone. Ram Kirpal and Sita Ram had told him that they had seen her near the Government Nali alongwith Bhagauti’s wife. He doubted that Sant Ram had also a hand in the occurrence and had lodged the First Information Report against both of them and also against two unknown persons, who had come in the evening of the occurrence at the house of Sant Ram. 4. PW-2 Smt. Vedwati, the victim of the occurrence, gave out her age as 15 years at the time of the deposition and testified that some two years three months ago she had been taken away from her house by Bhagauti’s wife who used to come to her house and excited hopes that she would get her married in a well off family, who could provide her all the amenities and pleasures of life as she was leading a poor and miserable life. She enticed her away at about 3 O’clock in the morning on the pretext of going to field to discharge her routine business. Ramji and Sant Ram had been waiting there. Bhagauti’s wife handed her over to Sant Ram and Ramji, who carried her to Saraiya Jungle. Ramji disappered from there for a while. Sant Ram had a forcible sexual intercourse with her in the jungle. He penetrated his organ in her private part and thus committed rape. She was helpless. When she wanted to raise alarm, he threatened to kill her. Ramji returned with Kali Deen and Banshu after some time. All the four carried her to Village Daraganj at the house of Langarh. She was removed from Daraganj next day to village Chingi and was kept there at the house of Banshu. From the house of Banshu while she was being carried to the railway station Katehari, a police inspector met at the Bharthuwa culvert and apprehended her. Banshu and Kali Deen made off and could not be arrested. She deposed that she had been married to Ashok originally in a very tender age. Her parents could not satisfy the dowry demand of Ashok, who divorced her consequently. Her parents got her married to Gur Prasad, who was also not well off. Banshu and Kali Deen made off and could not be arrested. She deposed that she had been married to Ashok originally in a very tender age. Her parents could not satisfy the dowry demand of Ashok, who divorced her consequently. Her parents got her married to Gur Prasad, who was also not well off. Smt. Gayatri used to come to her house and excited hopes that she would get her relieved of her miseries by providing a suitable match of a well off family. Thus she had fallen pray to her allurements. 5. PW-3 R.N. Tiwari had proved the chick F.I.R. Exhibit-Ka-2 and the entry of the general diary and Exhibit-Ka-3. He was purely formal witness. 6. PW-4 Dr. A.K. Srivastava was a senior Radiologist in the District Hospital Faizabad. He had conducted xray of the right elbow joint, right knee joint and right wrist and had prepared the x-ray plate Exhibits-1 to 3. On the basis of the x-ray plate he had found that Smt. Vedwati was only 17 years old at the time of her medical examination at the hospital. The epiphyses of radius and ulna bones had not fused with their respective shafts. The epiphyses of the knee joint were in the process of union. He, however, found that epiphyses of the elbow joints were united with their respective shafts. He proved the xray report Exhibit-Ka-4 in his deposition. 7. PW-5 Dr. A. Bose had conducted the medical examination of the victim Smt. Vedwati on 13.8.1988 at 2.30 p.m. in District Women Hospital. She prepared the medical report Exhibit-Ka-6 wherein she had found on the external examination that Smt. Vedwati was of ordinary built. Her teeth were 14/13. Her breasts had not well developed. The vagina, however, admitted two fingers. She also found the old tag of hymen. On the internal examination she took vaginal smear and sent to Pathologist for evidence of any spermatozoa. She got the x-ray of right wrist joint, right knee joint and right elbow joint of Smt. Vedwati conducted for ascertainment of her age. She found that Smt. Vedwati was 17 years old. In the cross-examination she told that there could be a difference of six months only in the age. She refused to admit that she could be 19 years old. 8. PW-6 S.I. B.D. Arun had commenced investigation and recorded the statements of the witnesses. She found that Smt. Vedwati was 17 years old. In the cross-examination she told that there could be a difference of six months only in the age. She refused to admit that she could be 19 years old. 8. PW-6 S.I. B.D. Arun had commenced investigation and recorded the statements of the witnesses. He had also arrested Smt. Vedwati while she was being carried by two persons, who had taken to their heels, seeing the police. He was transferred in the course of investigation hence the investigation had been taken up by S.I. Asha Ram, who had arrested the accused and submitted the charge-sheet Exhibit-Ka-9 against them. He deposed that on 13.8.1988 he had arrested the prosecutrix Vedwati while she was being carried by two men, who had run away observing the police. He also proved the superdginama Exhibit-Ka-7 relating to the giving of Vedwati in the custody of her brother Krishna Lal. 9. In the statement under Section 313 CrPC, the appellants had denied the evidence. The appellant Santram Verma has further stated that the Panchayat was conducted regarding this victim and she did not want to go with her previous husband. He had pressurised that she should go with the previous husband, therefore, he has been falsely implicated. The appellant Ramji has stated that Ram Keval was having Tube-well and he had installed Tube-well, due to which his income had stopped, therefore, he has been falsely implicated at the instance of Ram Keval. Smt. Gayatri Devi has stated that she has participated in the Panchayat and she has pressurized to go with the previous husband, therefore, she has been falsely implicated. No evidence in defence was adduced. 10. After hearing both the parties, learned Court below came to the conclusion that the appellants Ramji Verma and Gayatri are guilty for the offences punishable under Sections 363 and 366 IPC whereas appellant Santram is guilty for the offences punishable under Sections 363, 366 and 376 IPC and sentenced them to undergo three years rigorous imprisonment for the offences punishable under Sections 363 and 366 IPC and sentenced Santram Verma for seven years for the offences punishable under Sections 363, 366 and 376 IPC. 11. 11. Learned counsel for the appellants has submitted that the victim was previously married to Ashok and then to Gur Prasad, but she was not living with her husbands regarding which a Panchayat was conducted by the appellants, therefore, they have been falsely implicated. It has also been submitted that the complainant Shyam Bahadur is not a witness of fact. Siyaram and Ram Keval, upon whose information, the First Information Report was lodged have not been examined in the Court. Kalideen and Banshu alongwith the victim was recovered, have also not been prosecuted. The victim was major on the date of the incident and she had gone with the appellants of her own freewill because she was not satisfied with the previous husbands. It has also been submitted that she has not been recovered from the possession of Ramji and Gayatri Devi, therefore, the offences punishable under Sections 363 and 366 IPC is not made out against them. The family of the victim is involved in dancing profession. There are major contradictions in the statements of the victim, which is not trustworthy. The victim has not raised any alarm at the time of alleged kidnapping or subsequently while she was having opportunity to raise alarm. It shows that she had gone on her own freewill and the appellants have been falsely implicated. In the last, it has been submitted that the victim is now married again and she is leading her life alongwith six issues. Both the victim and the appellants belong to the same Village and there is no dispute as now. It has also been submitted that the prosecution has failed to prove its case beyond reasonable doubt, therefore, the conviction is liable to set aside. 12. Learned AGA has defended the impugned judgment and has submitted that as per First Information Report, she was 15 years old while as per medical examination report, her age has been found to be 17 years, therefore, she was minor at the time of incident. It has also been submitted that the Court below has considered the evidence in right perspective which do not require any interference. 13. Learned counsel for the appellants has relied upon Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 , in which Hon’ble the Apex Court has held as under : “12. It has also been submitted that the Court below has considered the evidence in right perspective which do not require any interference. 13. Learned counsel for the appellants has relied upon Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 , in which Hon’ble the Apex Court has held as under : “12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State v. Mango Ram, (2000) 7 SCC 224 ] 13. We are, in this case, concerned with a situation where the incident alleged to have occurred at 8.30 a.m. in day light and at a place near the compound of one Karunakaran, not within the four walls of a house or a building. Accused was not a stranger. The The prosecutrix had previous acquaintance with the accused or else in all probability she would have resisted forcefully, attracting passers-by or people from the neighbourhood. She has stated that she was threatened and made to believe that the accused would marry her. Accused was not a stranger. The The prosecutrix had previous acquaintance with the accused or else in all probability she would have resisted forcefully, attracting passers-by or people from the neighbourhood. She has stated that she was threatened and made to believe that the accused would marry her. She later became pregnant and delivered a child, and the paternity of the child is disputed by the accused. FIR was lodged after a period of 10 months from the date of incident.” 14. Learned counsel for the appellants has relied upon Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 , in which Hon’ble the Apex Court has held that in rape cases, the evidence should be scanned carefully. Past contemporaneous and subsequent conduct are relevant. Hon’ble the Apex Court has also interpreted the word “consent”. 15. Reliance has also been placed Ramdas and others v. State of Maharashtra, (2007) 2 SCC 170 , in which Hon’ble the Apex Court has held as under : “23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality.” 16. In State of H.P. v. Mango Ram, (2000) 7 SCC 224 , in which Hon’ble the Apex Court has held as under : “In view of the foregoing conclusions, we reverse the findings of the learned Sessions Judge which were confirmed by learned Single Judge and find that the accused is guilty of the offence punishable under Section 376 IPC. As regards the sentence, we take a lenient view for the reason that the prosecutrix and accused are related. They were both teenagers with an age difference of about 2-3 years. Both were immature and young. Evidence indicates no marks of violence at all on any part of the body of the prosecutrix. The incident happened in 1993. As regards the sentence, we take a lenient view for the reason that the prosecutrix and accused are related. They were both teenagers with an age difference of about 2-3 years. Both were immature and young. Evidence indicates no marks of violence at all on any part of the body of the prosecutrix. The incident happened in 1993. After the acquittal by passage of time, the members of the two families must have buried their hatchet if any arisen on account of this incident. The learned Counsel for the respondent argued that a further order for custodial sentence at this distance of time may cause rapture to social harmony in the village life and may only help to rekindle the flames of anger which have been smouldering for so long between near relatives. Having regard to all these matters, we hold that sentence already undergone by the accused would be sufficient to meet the ends of justice, and we do accordingly.” 17. Apart from above, learned counsel for the appellants has also relied upon Mahavir and others v. State of U.P., 2005 (1) L.Cr.R. 183, Qamaruddin alias Qamru v. State of U.P., 2013 (3) JIC 65 (All), Anil Kumar v. State of U.P., 1994 JIC 243 , Daya Nand v. The State of U.P., 1996 JIC 1004 and other number of cases decided by the Hon’ble Single Judge of this Court. 18. Reliance has also been placed State of Rajasthan v. Babu Meena, 2013 (2) JIC 295 (SC), in which Hon’ble the Apex Court has held that in the matter of rape, conviction can be based on the testimony of prosecutrix provided the statement in cogent, reliable and requires no corroboration. 19. In Dilip and another v. State of M.P., 2001 (43) ACC 960 (SC), in which Hon’ble the Apex Court has held that story was not corroborated by medical evidence and the version of own maternal aunt do not tally with the version of prosecutrix, therefore, the version of the prosecutrix was not reliable. 20. Reliance has also been placed Alamelu and another v. State, (2011) 2 SCC 385 , in which Hon’ble the Apex Court has held that evidence on record do not support the findings of High Court and trial Court, therefore, the appellants were acquitted. 21. 20. Reliance has also been placed Alamelu and another v. State, (2011) 2 SCC 385 , in which Hon’ble the Apex Court has held that evidence on record do not support the findings of High Court and trial Court, therefore, the appellants were acquitted. 21. From the judicial decisions rendered by the Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarised thus : (i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge. (ii) There may be circumstances in a given case which might make it safe to dispense with such a corroboration. (iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated that: (a) circumstances showing on the part of prosecutrix an animus against the accused; (b) where the question of want of consent is material, circumstances tending to show consent e.g. absence of material showing an attempt at resistance, absence of any marks of struggle; (c) attempt at improvement or exaggeration in the version as attempted by the prosecutrix; (d) conduct on the part of the prosecutrix inconsistency with the credibility of the version e.g. omission to make a disclosure at the earliest opportunity; (e) element of artificiality or unnatural-ness in the story as attempted by the prosecutrix, and (f) absence of signs of rape in the findings of the medical examination or on chemical analysis. 22. In the present case, the complainant Shyam Bahadur has mentioned the age of his sister as 18 years in the First Information Report. Appellant Ramji is not named in the First Information Report. The role assigned to Gayatri Devi wife of Bhagauti is that she had called the prosecutrix for natural call. It has come in the statement of prosecutrix, who has been examined as PW-2, that she usually goes for natural call at 3.00 a.m.. Appellant Ramji is not named in the First Information Report. The role assigned to Gayatri Devi wife of Bhagauti is that she had called the prosecutrix for natural call. It has come in the statement of prosecutrix, who has been examined as PW-2, that she usually goes for natural call at 3.00 a.m.. It is also admitted to the complainant Shyam Bahadur that Gayatri Devi was present in the Village in the morning and she was not able to tell as to where the sister of the complainant has gone. In the First Information Report, the names of Ram Kripal and Siya Ram have been mentioned as witnesses, who had seen the sister of the complainant alongwith Gayatri Devi. It is also admitted fact that the victim was married to Ashok and then she was married to Gur Prasad in the year 1987. It appears from the statement of PW-1 Shyam Bahadur that he himself had not seen the alleged incident of kidnapping and the report was lodged on the basis of the information given by Siyaram and Ram Kripal. As per the statement of prosecutrix herself, her father and brother had gone to perform dance to another Village and they were not present at the time of incident. Both these witnesses, namely Siyaram and Ram Kripal have not been examined by the prosecution. Certainly a presumption under Section 114(g) of the Evidence Act has to be drawn against prosecution that if the said witnesses had been produced then, they would not have supported the prosecution version. The prosecutrix (PW-2) has stated in her statement that Gayatri Devi had induced her to get a good marriage and she induced her to go outside the house where she was handed over to Santram and Ramji. She has also stated that Ram Kripal and Siyaram had met her. She has also stated that Santram and Ramji had taken away her to a forest and after that Ramji had came back to his village. She has also stated that appellant Santram had committed rape after threatening her. When she tried to make noise, she was subjected to criminal intimidation. After that Kalideen and Banshu had also came and she was brought to Darapur and was kept in the house of Langarh. She has also stated that appellant Santram had committed rape after threatening her. When she tried to make noise, she was subjected to criminal intimidation. After that Kalideen and Banshu had also came and she was brought to Darapur and was kept in the house of Langarh. Next day she was carried to Chingi where she was kept at the home of Banshu and then she was brought to Katehari station where on the way, Sub-Inspector and the brother of the prosecutrix were standing. Banshu and Kalideen escaped away from there and she came to the police station alongwith Sub-Inspector and her brother. She had admitted in the cross-examination that on the date of incident her brother and father were not present at the house and they had gone to another Village for performing the dance two days ago. She has also admitted in the cross-examination that she used to go to the house of Santram, which is situated at about ten steps from her home. In the cross-examination, she has stated that she has no complaint with Ramji. It has also come in the cross-examination of the victim that she usually goes for natural call with Gayatri Devi and on the date of the incident also she had gone with Gayatri Devi for natural call. After natural call, she was kidnapped after 5-6 minutes. She has also admitted in the cross-examination that she was sitting on the bicycle of Banshu and Kalideen, Santram and Ramji were also driving their bicycles independently. In the cross-examination of the victim, nothing has come that the appellants or another co-accused Banshu and Kalideep were having any arms with them. She has also not told how she was threatened by these persons. She has also admitted that at the time of incident, her elder brother Krishna Lal was present and her father and brother Shyam Bahadur had gone for dancing. From the aforesaid evidence, it is crystal clear that Shyam Bahadur is not a witness of fact. He has lodged the First Information Report as per the information of Siya Ram and Ram Keval but both these witnesses have not been examined by the prosecution. Therefore, the prosecution has withheld the best evidence of Siyaram and Ram Kripal. 23. Accordingly, there is solitery statement of the victim regarding the incident of kidnapping as well as rape. He has lodged the First Information Report as per the information of Siya Ram and Ram Keval but both these witnesses have not been examined by the prosecution. Therefore, the prosecution has withheld the best evidence of Siyaram and Ram Kripal. 23. Accordingly, there is solitery statement of the victim regarding the incident of kidnapping as well as rape. As stated earlier, she has not stated in her statement that how she was threatened and whether any accused was having any arm with them. She has also admitted in her statement that she was sitting on the bicycle of Banshu and other co-accused were driving their own bicycles. As per her statement, she was firstly brought to forest of Saraiya and then she was brought to Darapur and kept in the house of Langarh. Next day, she was brought to Chingi where she was kept in the house of Banshu and then she was brought to Katehari Station. Admittedly, when she met the police Sub-Inspector and her brother near Katehari Station, present appellants Santram, Ramji and Gayatri Devi was not present there. She has also not explained that when Santram had left her company. The statement of the prosecutrix has to be scrutinized very carefully. The brother of the complainant has mentioned the age of 18 years of the prosecutrix while she has stated her age as 15 years in the statement which do not appear to be true because firstly she was married to Ashok where she had remained for about two and a half year and then she was married to Gur Prasad where she remained for 2-3 months. She has failed to state as to what was the age when she was married with Ashok. She has also admitted in the statement that as per her mother, she was 15 years at the time of statement but mother has also not been examined. The occurrence took place on 10.8.1988 and the statement has been concluded on 14.2.1991. It appears that she is telling a lie about her age. In the medical examination, she has been found to be about 17 years and she was also used for intercourse. From all the evidence on record, she appears to be major. 24. Admittedly, at the time of alleged recovery, Ramji, Gayatri Devi or Santram were not present. It appears that she is telling a lie about her age. In the medical examination, she has been found to be about 17 years and she was also used for intercourse. From all the evidence on record, she appears to be major. 24. Admittedly, at the time of alleged recovery, Ramji, Gayatri Devi or Santram were not present. As per statement of victim herself, Gayatri Devi had handed over her to Santram and Ramji and Ramji also came back from Saraiya forest. After the alleged kidnapping, she had remained at various places, but she has not raised any alarm regarding her alleged kidnapping. The victim has admitted in her statement that she was kidnapped in the winter season and at that time the winter was at peak. As per the prosecution story, she was enticed away on 10.8.1988 and was recovered on 13.8.1988 i.e. after three days. Certainly in the month of August, it cannot be said that season of winter is at its peak. She has stated that she had not attended any school but on her statement she has put her signature. She has also stated that she used to sleep in the outer “Dalhan” of the house while there is internal “Dalhan” and rooms in the house also. Admittedly, the prosecutrix has so many other family members and there appears to be no reason as to why she will sleep in the “Dalhan” which is outside the house. She has failed to tell that how many houses are there in Saraiya Village while Saraiya Village is about one furlong from her village. There are other material contradictions in her statement. She has also admitted that from her house it took about one hour to reach Darapur but no such alarm was raised during this journey also. She also also failed to tell the population of Barkuon Village where her elder sister has been married. She has also admitted in her statement that Gayatri Devi had never asked about the problem with the previous husbands. 25. The law is settled that no corroboration is essential regarding the testimony of prosecutrix but testimony of the prosecutrix must not suffer from infirmities. Certainly, there is absence of any material showing attempt at resistance. No remarks of struggle have also been found. She has also stated that she tried to escape away from the company of the appellants. 25. The law is settled that no corroboration is essential regarding the testimony of prosecutrix but testimony of the prosecutrix must not suffer from infirmities. Certainly, there is absence of any material showing attempt at resistance. No remarks of struggle have also been found. She has also stated that she tried to escape away from the company of the appellants. From the evidence on record, it appears that she had gone for natural call with Gayatri Devi in a routine way and after that she had gone with Santram of her own will. No specific role of Ramji has been assigned and it is not clear as to why Ramji had accompanied her. From the admission in the cross-examination that she was sitting on the bicycle of Banshu and three other persons were driving their own bicycles, it appears that she had gone of her own will with Santram. It is impossible that she had not met any person in the Village Darapur where she stayed in the house of Langarh. It is proved that she is a matured lady and was married with Ashok and Gur Prasad but both of them left her. 26. In Kaini Rajan v. State of Kerala (supra) Hon’ble the Apex Court has interpreted the word “consent” as under : “‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn if only based on evidence or probabilities of the case.” It has been further held that the consent is intended by Sections 375 and 376 IPC should not be under a misconception of fact. It is admitted fact that the prosecutrix used to visit the house of Santram, which is situated just ten steps from her house and she also used to have talks with him. It is admitted fact that the prosecutrix used to visit the house of Santram, which is situated just ten steps from her house and she also used to have talks with him. Behaviour and conduct of the prosecutrix shows that she had gone with Santram of her own will and has falsely named Ramji and Gayatri Devi in the said kidnapping. She was not forced by Ramji or Gayatri Devi while taking her away. No use or force has been ascertained. 27. In Deelip Singh alias Dilip Kumar v. State of Bihar (supra), Hon’ble the Apex Court has held that in the matter of consent, the Court has to see whether the person giving the consent had gone it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. alleged offender is concious of the fact or should have reason but think that but for the fear or misconception, the consent would not have been given. It is proved that the prosecutrix is a matured lady, who has been married twice. From the evidence on record and the facts which have came in the cross-examination, it does not appear that forcible sexual intercourse was committed with the prosecutrix. The prosecutrix has also not been seen in the company of Santram or in the company of Ramji and Gayatri by any other witness including the complainant himself. The prosecution has also not examined Siyaram and Ram Kripal upon whose information, the First Information Report of kidnapping was lodged. No resistance has shown by the prosecution while allegedly going with Gayatri, Ramji and Santram. She has also not explained that after committing the alleged rape, where Santram had gone. It is also proved from the evidence on record that she used to go to the house of Santram. From all these circumstances, it appears that she had not been kidnapped by Ramji, Gayatri and Santram. The alleged forcible rape by Santram is also not proved. Admittedly, after the alleged first day of rape, she had further gone to various villages, where various persons have met her but she has not stated that at other villages namely, Darapur and Chingi, she was again subjected to rape. The alleged forcible rape by Santram is also not proved. Admittedly, after the alleged first day of rape, she had further gone to various villages, where various persons have met her but she has not stated that at other villages namely, Darapur and Chingi, she was again subjected to rape. Admittedly, Banshu and Kalideen have also not been arrested by the police and it appears that a false and concocted story of alleged recovery has been made because the appellants had taken partisan in Panchayat held regarding the marriage of prosecutrix in which they were of the opinion that the prosecutrix should go to the house of her husband. For the facts and circumstances, mentioned above, the statement of the prosecutrix is not worth reliable. The statement of the prosecutrix is full of infirmities and full of contradictions, which cannot be believed at all. The prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. The findings of the learned trial Court are preserve and are not in accordance with the evidence on record. The appeal is liable to be allowed. The appeal is allowed. The judgment and order of conviction dated 13.1.1994, passed by IIIrd Additional Session Judge, Faizabad is set aside. The appellants are acquitted for the offences punishable under Sections 366, 376 IPC. They are on bail. They need not to surrender. Their sureties are discharged. Office is directed to send a certified copy of this order to the trial Court concerned alongwith lower Court record. ————