JUDGMENT M.G. Giratkar, J. - By way of present appeal, the appellant/State has challenged the judgment of acquittal, dated 29th December, 2008 in Sessions Trial No. 121 of 2008, by which, the respondent/accused came to be acquitted for the offence punishable under Sections 452, 376 of the Indian Penal Code. 2. The case of the prosecution is as under :The victim was residing with her paternal aunt at Lashkaribagh, Nagpur. She was studying in the school meant for students having mental disability. On 08.02.2008 at about 04:30 p.m., Vithabai (PW4) was sitting in the courtyard and victim was watching TV inside the house. She saw accused on the road. She asked him to insert thread in the needle. Thereafter, she was sewing the clothes in the courtyard. After five minutes, she saw the door was closed, therefore, she went there to get it verified who closed the door. The door was closed from inside. 3. Vithabai (PW4) looked from the gap of the door and saw the victim and accused inside the room. She called Hrishi and he knocked the door. Accused ran away through another door. The victim was in naked condition. She made enquiry with the victim. She told that accused removed her clothes, pressed her breast and did sexual intercourse with her. She informed the mother of victim. She came to the house of Vithabai (PW4). She also enquired with the victim. Thereafter, she lodged the report (Exh.35). 4. Crime was registered vide FIR (Exh.36). The Investigating Officer completed investigation and filed chargesheet before the JMFC, who, in turn, committed it to the Court of Session. 5. Charge was framed at Exh.6 and the same was read over and explained to the accused to which accused pleaded not guilty and claimed to be tried. The prosecution examined in all 12 witnesses. At the conclusion of trial, learned trial Court acquitted the accused. 6. Vithabai (PW4) has stated that the victim was mentally retarded. To prove this contention, the prosecution has examined Dr. Warhadkar (PW2), who has stated that the victim was mentally retarded. But, in the crossexamination, he has stated that he did not examine the patient personally. Dr. Prashant Barve (PW3) has stated that the age of victim was in between 15 and 17 years. PW4 has stated in her evidence that she saw victim in the room in a naked condition. But, in the crossexamination, he has stated that he did not examine the patient personally. Dr. Prashant Barve (PW3) has stated that the age of victim was in between 15 and 17 years. PW4 has stated in her evidence that she saw victim in the room in a naked condition. She called Hrishi, who knocked the door and accused ran away from back side. 7. Hrishi (PW5) has stated in his evidence that the mental condition of victim is proper. He was called by PW4 saying that accused was committing intercourse with victim. But, Vithabai (PW4) has not stated so. 8. Hrishi (PW5) has stated in his evidence that he knocked the door but the door was not opened. Therefore, he went to back side, that door was also closed. He peeped from the gap. He saw accused committing intercourse with the victim. Accused ran away. His evidence is not reliable because material omissions are brought on record. He has stated in his crossexamination as under : "I told police while giving statement that Vithabai and Hirabai were present at home on the day of incident. I told to police while giving statement that Vithabai gave me call and asked me to come in. I had told to police while giving statement that in kitchen I saw accused committing intercourse with Heena. I had told to police while giving statement that when I went to the door, I found the front and back side door closed. I had told to police while giving statement that when I saw through the gap of the door, accused was committing intercourse with Heena. I had told to police while giving statement that when I gave call to Heena, the accused pressed her mouth and ran away. I cannot assign any reason why the above facts are not mentioned in my statement before police." 9. Pramila Meshram (PW6) has stated that she was informed by Vithabai (PW4). She came to the house of Vithabai and enquired with the victim. Then, she told that the accused committed intercourse with her. Therefore, she lodged report (Exh.35). Material omission is brought on record in her crossexamination. 10. As per the evidence of Dr. Prashant Barve (PW3), the age of victim was between 15 to 17 years. The victim was more than 16 years. Then, she told that the accused committed intercourse with her. Therefore, she lodged report (Exh.35). Material omission is brought on record in her crossexamination. 10. As per the evidence of Dr. Prashant Barve (PW3), the age of victim was between 15 to 17 years. The victim was more than 16 years. It is tried by the prosecution to bring on record that the victim was mentally retarded. But, the evidence of Hrishi (PW5), who was her cousin, clearly shows that the mental condition of victim was proper. 11. From the perusal of evidence of PW Nos.4 and 5, there are material omissions in their evidence. The victim was examined by the prosecution. Victim (PW7) has stated in her evidence that she was sleeping in the house. Accused entered the house and taken her in kitchen. He kissed her, removed her clothes and committed sexual intercourse. Vithabai (PW4) gave call and accused ran away. She has admitted in her crossexamination that entry to the house is from front side of the house. Vithabai could see if anybody enteres the house. Hrishi was present in the house at the time of incident. Hrishi and Vithabai did not see the accused while entering the house. The door and window of the said room were open. Vithabai did not come inside the room in spite of her raising alarm. Accused entered the house from the front door where Vithabai was sitting. 12. Admission of victim in crossexamination clearly falsifies the evidence of PW Nos.4 and 5. The victim was aged about 17 years at the time of incident. Even the prosecution case in respect of sexual intercourse is taken as it is then also it is clear that the victim had consented for sexual intercourse. Medical Certificate (Exh.55) shows that the victim was habituated to sexual intercourse. There was no evidence of forcible sexual intercourse. No injury over private part. No other injury marks over body. Old tear over hymen. 13. Medical Certificate (Exh.55) shows that the victim was habituated to sexual intercourse. She was more than 16 years at the time of incident. She was mentally fit as per the evidence of Hrishi (PW5). Mental condition of victim was proper. Victim was examined by the Court. No any abnormality was found. Her evidence shows that she did not make any hue and cry. She was more than 16 years at the time of incident. She was mentally fit as per the evidence of Hrishi (PW5). Mental condition of victim was proper. Victim was examined by the Court. No any abnormality was found. Her evidence shows that she did not make any hue and cry. Even the evidence of victim if taken as it is, then also it appears that she was consenting party. The age of victim stated by Dr. Prashant Barve (PW3) was in between 15 to 17 years. 14. In view of the aforesaid facts, the prosecution failed to establish the offence charged against the accused. The learned trial Court rightly recorded its findings. The judgment is well reasoned. Hence, we proceed to pass the following order. "The appeal is dismissed. R and P be sent back."