Judgment 1. Heard learned counsel for the parties. 2. Criminal law was set into motion when on 13.9.2016 Gajendra PW-3, brother of the prosecutrix went to Police Station Beawar City and made a statement that his sister(the prosecutrix) was missing since 10.00 AM on 11.9.2016. FIR Exhibit P-8 was registered. 3. The prosecutrix was recovered from Kochi in the State of Kerala on 20.9.2016. Produced before the Judicial First Class Magistrate Kalamassery her statement Exhibit P-1 was recorded under Section 164 Cr.P.C. in which she disclosed her age as 18 years. The statement reads:- “I live in Bellad Road Beawar City. I came to Kerala by bus from Beawar City. I came with Sahabuddin. It is 8 days since we came here we stayed at the factory called Toms Pipes at Kalamassery Industrial Area. I don’t have any complaint against Saddik or Sahabuddin.” 4. The prosecutrix was medically examined and the MLC Exhibit P-2 dated 22.9.2016 records the opinion that there are no signs of recent forceful sexual assault and that the prosecutrix was habitual of sexual intercourse. 5. Custody of the prosecutrix being handed over to her father, her statement under Section 161 Cr.P.C. was recorded in which she alleged rape committed upon her by the appellant and one Saddik. Offence punishable under Section 366, 376(2)(n) and 376-D IPC were added in the FIR. Saddik being a juvenile was sent to the Juvenile Court for trial where he has been acquitted. 6. Vide impugned judgment dated 8.9.2017 the appellant has been acquitted for the offence of gang rape but has been convicted for the offence punishable under Section 366 IPC and 376(2) (n). For the former he has been sentenced to undergo R.I. for 7 years and the latter for 10 years. 7. The impugned judgment of conviction is influenced by the fact that in her testimony, appearing as PW-1, deposing on 19.5.2017 the prosecutrix stated that the appellant had forceful sex against her without her consent, notwithstanding that during cross-examination on 26.5.2017 the prosecutrix admitted that she had sex with the appellant with consent. The reason given by the learned trial Judge is the possibility of the prosecutrix being intimidated and suborned between the dates when she deposed by way of examination-in-chief and when she was cross-examined. The reason given by the learned trial Judge is the possibility of the prosecutrix being intimidated and suborned between the dates when she deposed by way of examination-in-chief and when she was cross-examined. The learned trial Judge has also been influenced by the fact that the Additional Public Prosecutor had filed an application in the Court bringing to the notice of the Court that the prosecutrix told the APP that the appellant was threatening her by his stern looks directed towards her. 8. The entire incriminating evidence flows from the testimony of the prosecutrix. In her testimony the prosecutrix stated on oath that she knew the appellant from before. On 11.9.2016 the appellant contacted her over the phone and requested her to accompany him to Jodhpur where they would marry. She left the house. Outside her house the appellant picked her up on a motorcycle and drove till bus stand Beawar. Saddik and Mumtaj met them and all four boarded a bus for Jodhpur. When they sat in the bus the appellant gave her a bottle of Limca; upon drinking which she became unconscious. From Jodhpur they took her to Candy Kalamassery (In Kerala). They stayed there for three days. For three days the appellant and Saddik had sex with her against her consent. The appellant made her wear a burka and said that she should tell her name to the people as Mamuna. When she was recovered her statement Exhibit P-1 was recorded before the Magistrate. She was medically examined and the report is Exhibit P-2. 9. On being cross-examined on 26.5.2017 she stated that sexual intercourse between the appellant and her was with consent. 10. Notwithstanding admission made by her during cross examination, reason given by the learned trial Judge to hold against the appellant which has already been noted by me hereinabove, the conviction has been returned. 11. The question which arises for consideration is: whether the learned trial Judge has overlooked certain critical features of the evidence. 12. What strikes on the face of the evidence is the learned trial Judge overlooking the statement Exhibit P-1 made by the prosecutrix at the first instance under Section 164 Cr.P.C. Its contents have been noted by me hereinabove. In the statement she does not say that from Beawar she was taken to Jodhpur and therefrom to the State of Kerala. What strikes on the face of the evidence is the learned trial Judge overlooking the statement Exhibit P-1 made by the prosecutrix at the first instance under Section 164 Cr.P.C. Its contents have been noted by me hereinabove. In the statement she does not say that from Beawar she was taken to Jodhpur and therefrom to the State of Kerala. She has stated before the Magistrate that from Beawar she accompanied the appellant willingly to the State of Kerala and that she had no grievance against the appellant. Not a word has she spoken of any form of forceful or illegal confinement, much less sex against her consent. 13. The learned trial Judge has also overlooked the critical feature of the deposition of the prosecutrix. She starts off her version by admitting knowing the appellant since long. She stated that she voluntarily accompanied the appellant to Jodhpur to get married. It is apparently a case where the prosecutrix knew the appellant and left in the company of the appellant willingly to get married. No doubt, in her examination-in-chief she did say on oath that the appellant and Saddik had sex with her against her consent. But that statement has to be seen in light of her previous statements, her subsequent admissions made and in particular what she said before the Magistrate at the first instance when examined under Section 164 Cr.P.C. The MLC of the prosecutrix also shows that she was habituated to sex and surely this could not be the result if she was subjected to sex only on three nights which she claims in her examination-in-chief. 14. In view of the aforesaid facts it cannot be said that the appellant is guilty of having committed an offence punishable under Section 366 IPC or Section 376(2)(n) IPC. If not more, the appellant would certainly be entitled to the benefit of doubt in view of the fact that at the first instance the prosecutrix in her statement under Section 164 Cr.P.C. absolved the appellant of any rape. She stated that she voluntarily left her house in the company of the appellant. 15. The appeal is allowed. Impugned judgment dated 08.09.2017 convicting the appellant is set aside. The appellant is acquitted of the charges framed against him. The sentences imposed upon the appellant are quashed. 16. She stated that she voluntarily left her house in the company of the appellant. 15. The appeal is allowed. Impugned judgment dated 08.09.2017 convicting the appellant is set aside. The appellant is acquitted of the charges framed against him. The sentences imposed upon the appellant are quashed. 16. In view of above, I order that the appellant be released forthwith, if in custody and not required in any other case. 17. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs.10,000/-, and surety bond of the like amount before the trial Court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Supreme Court.