JUDGMENT : Prashant Kumar Agarwal, J. The accused-appellant has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 22.08.2012 passed by the Additional Sessions Judge, Bandikui Camp Mahua (District Dausa) in Sessions Case No.72/2011 whereby the learned trial Court after holding the appellant guilty for offence under Section 366 IPC sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further undergo rigorous imprisonment for three months and also holding the appellant guilty for offence under Section 376 IPC sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further undergo rigorous imprisonment for three months. It was also directed that both the substantive sentences would run concurrently. 2. Brief relevant facts for the disposal of this appeal are that complainant-Shri Umedilal, father of the prosecutrix, submitted written report Ex.P1 at Police Station Mahua on 25.6.2011 with the allegation that on 24.6.2011 when he was away from his home for his work his daughter prosecutrix aged about 16 years was at home alone, one Smt. Madina wife of Shri Gani took her away along with her at about 11-12 a.m. and accused-appellant, who at that time was residing in the house of Shri Gani as tenant, abducted her daughter. It was further alleged in the report that when he came back to his house on 25.6.2011, above incident came into his knowledge. On the basis of this written report, FIR No.306/2011 came to be registered for the offence under Section 366-A IPC and investigation commenced. During the course of investigation prosecutrix was recovered on 23.8.2011 in the company of appellant from Katni (Madhya Pradesh) where they were residing together. After investigation charge-sheet was filed against the appellant and charges for offences under Sections 366 and 376 IPC were framed against him. In order to prove the charges, prosecution produced oral as well as documentary evidence whereas appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and further stated that prosecutrix called him to Gangapur and took him with her initially to Bhopal and subsequently to several other places. In order to prove the charges, prosecution produced oral as well as documentary evidence whereas appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and further stated that prosecutrix called him to Gangapur and took him with her initially to Bhopal and subsequently to several other places. Although, in defence no oral evidence was produced but during the cross-examination of prosecution witnesses statements under Section 161 Cr.P.C. were exhibited as D1 to Ex.D4. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence available on record convicted and sentenced the appellant as already stated. 3. Assailing the findings of learned trial Court counsel for the appellant submitted that from the evidence available on record it is more than clear that at the time of the alleged incident prosecutrix was above the age of 16 years and if sexual intercourse took place between appellant and prosecutrix it was with her free will and consent and, therefore, no offence was committed by the appellant, but the learned trial Court did not consider this aspect of the case in a proper perspective. It was submitted that opportunity was available to the prosecutrix at several occasions to resist the act allegedly done by the appellant to raise hue and cry, to escape from the company of the appellant and to complain about the act of the appellant but she did not do so, which is clear indication of the fact that she with her own free will and consent went away with the appellant and physical relation between them took place with her consent. It was also submitted that during the period between 24.6.2011 and 23.8.2011 appellant and prosecutrix resided as husband and wife. 4. On the other hand, learned Public Prosecutor defending the findings of trial Court, submitted that prosecutrix in her statement in clear words has alleged that appellant took her away after threatening her with dire consequences and committed rape upon her several times against her will and without her consent. 5. 4. On the other hand, learned Public Prosecutor defending the findings of trial Court, submitted that prosecutrix in her statement in clear words has alleged that appellant took her away after threatening her with dire consequences and committed rape upon her several times against her will and without her consent. 5. After considering the submissions made on behalf of the respective parties and the evidence available on record it is clear that at the time of the incident prosecutrix was more than 16 years of age and she was a consenting party and she went away along with the appellant at her free will when her parents were not at home. It is not the case of the prosecutrix that appellant threatened her with dire consequences and in absence of the same her conduct not to raise hue and cry, not to resist the alleged act of the appellant, not to try to escape from the company of the appellant and not to complain to anybody despite several opportunities were available to her shows that she was a consenting party. To prove the age of the prosecutrix, prosecution has relied upon Ex.P17 age certificate issued by the Government Girls Upper Primary School, Hadiya and as per this certificate the date of birth of prosecutrix is 20.6.1994 and, therefore, at the time of alleged incident she was more than 17 years of age. It is further clear that the above date of birth was mentioned in the certificate on the basis of admission form and the entry made in this regard in the school register maintained by the school and, therefore, the date of birth as mentioned in the certificate cannot be discarded merely by the reason that it has not been clarified on what information this date of birth was entered in the register maintained by the school more particularly in view of the fact that prosecution has produced this document. From the admission form Ex.P19, it is further clear that the father of prosecutrix submitted this form in the aforesaid school for the admission of prosecutrix on 13.7.1999 and in the form also date of birth was mentioned as 20.6.1994. PW5-Dr. Anjana Bhardwaj in her statement has said that on the examination of prosecutrix on 25.7.2011 she found her age about 16 to 17 years. PW5-Dr. Anjana Bhardwaj in her statement has said that on the examination of prosecutrix on 25.7.2011 she found her age about 16 to 17 years. It is thus clear from the evidence produced by prosecution itself that at the time of alleged incident prosecutrix was above the age of 16 years and she was competent to give her consent for sexual intercourse with appellant. From the evident made available on record it is also clear that appellant was working at some road side Hotel situated near the village of the prosecutrix for several past years and he was a regular visitor to her house due to which friendship and intimacy developed between them. It is further clear from the evidence that both appellant and prosecutrix lived together at several places as husband and wife during the period between 24.6.2011 and 23.8.2011 when she was recovered from Katni (Madhya Pradesh). The conduct and behaviour of prosecutrix is clear indication of the fact that it is not a case of mere passive submission by her but she was a willing party. It has been admitted by prosecutrix that during the aforesaid period she was taken by the appellant to several places and the appellant committed rape upon her several times. In absence of active resistance on the part of the prosecutrix in my opinion intercourse repeated on several times is indication of consent on the part of the prosecutrix. It has been alleged by the prosecutrix that appellant took her to a field situated in the village on 24.6.2011 and committed rape upon her against her will and without her consent and after doing so took her away from there to several places including Mahua, Hindaun, Sawai Madhopur and then Bhopal. It cannot be believed that after having sexual intercourse against her will on 24.6.2011 in a field situated in the village of prosecutrix, it was possible for the appellant to take her with him without her consent by a tempo to Mahua, from Mahua to Hindaun by Bus, then to Sawai Madhopur by a train and then to Bhopal. As already said, not only during this period but also subsequently till 23.8.2011 when appellant and prosecutrix resisted together at several places, no active resistance was made by the prosecutrix, no alarm was raised, she did not try to escape and even did not complain to anybody. As already said, not only during this period but also subsequently till 23.8.2011 when appellant and prosecutrix resisted together at several places, no active resistance was made by the prosecutrix, no alarm was raised, she did not try to escape and even did not complain to anybody. In her cross-examination the prosecutrix has admitted that when appellant was out from the house to earn and doing job she alone remained at the house and when the police came to their house she was alone and was washing clothes. From the material available on record it is further clear that prosecutrix improved her version of incident regarding several material facts in comparison to her statement recorded under Section 161 Cr.P.C. From the overall facts and circumstances of the case, I agree with the learned counsel for the appellant that it is a clear case of consent on the part of the prosecutrix and she being above the age of 16 years at the time of incident no offence can be said to have been committed by the appellant, but learned trial Court failed to appreciate and consider this aspect of the matter in a right perspective and, therefore, appellant is entitled to be acquitted for the offences for which he has been convicted by the Court below. 6. Consequently, the appeal is allowed and the judgment and order dated 22.08.2012 passed by the Additional Sessions Judge, Bandikui Camp Mahua (District Dausa) in Sessions Case No.72/2011 is set aside and the appellant is acquitted for the offences for which he has been convicted by the trial Court. Presently the appellant is undergoing the sentence awarded by the trial Court and, therefore, he is ordered to be released forthwith, if not required in any other criminal case.