ORDER : (Umesh A. Trivedi, J.) : 1. This appeal under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), is filed challenging judgment and order of acquittal passed by 3rd Additional Sessions Judge, Dahod at Limkheda dated 25.01.2024, rendered in Sessions Case No. 34 of 2021, whereby, respondents – accused have come to be acquitted of the charges levelled against them. 2. Prosecution case, as unfolded in the judgment, is as under: On 23.06.2021 when first informant as also her son were present at 5:00 p.m. in their house, she received a call from accused No. 2 (A-2) – Kalpesh Bhabhor and he called her at Piplod market near three roads. Therefore, she, along with her son, went at Piplod market where, accused No. 2 (A-2) – Kalpesh Bhabhor was waiting with a Duster four wheel (car) bearing registration No. GJ-06-LS- 4980 and on the driver seat of the car, accused No. 1 (A-1) – Shailesh, who happens to be the brother-in-law of sister of the first informant, was there. After reaching, when she asked A-2 Kalpesh for what she is called for, to which he replied that they all three may spend some two hours in a car, which was refused by her. However, as per case of the first informant, they both forcefully, against her wish, made her sit in car with her son. Though, she requested to get her down of car, she was not permitted to do so. Both the accused threatened the victim of dire consequences if she makes any hue and cry. Thereafter, car proceeded towards Limkheda and from there, it went ahead upto helipad, where it stopped. They took rest for some time and from there, car was taken to Limdi, Zalod and Pratapgarh at Rajasthan. There, at Pratapgarh, car was stopped at one hotel and again the first informant requested both of them to drop her back at her home. At that point of time, A-1 Shailesh threatened her of dire consequences if she gets down from the car. Thereafter, they reached Banswara and there, near one hotel around Banswara, A-1 Shailesh stopped the vehicle. At that time, A-2 Kalpesh alighted from car with son of the first informant. At that point of time, A-1 Shailesh threatened her of dire consequences if she gets down from the car. Thereafter, they reached Banswara and there, near one hotel around Banswara, A-1 Shailesh stopped the vehicle. At that time, A-2 Kalpesh alighted from car with son of the first informant. As further revealed from the prosecution case, A-1 Shailesh then went to rear seat of the case and told her that if she does not obey him, she will not be permitted to be of someone else. It is further alleged that thereafter, she was made to sleep in the rear seat of the car and forcefully, A-1 Shailesh is said to have committed rape on her against her will. On Kalpesh (A-2) coming back with her son, A-1 Shailesh again started the car in the night hours around Banswara and on next day morning around 6 o’clock, they started for Piplod back. While they were coming back via Zalod, Limdi and reached near village: Singapur, under the pretext of having coffee, she asked to stop the car and she went inside near a Pan shop. There she requested one person to have mobile as she wanted to talk with her husband. That man permitted her to talk with her husband and there she informed her husband about the incident. However, as per the case of prosecution, her husband asked her to get down at Limkheda and therefore, she again sat in the car and at 6 o’clock in the evening, when they reached near Limkheda cross roads, she alighted from car along with her son. Thus, aforesaid, first information came to be registered by her with Devgadh Bariya Police Station for the alleged offences punishable under Sections 365, 376, 506(2) and 114 of the Indian Penal Code, 1860 (IPC). 3. After registration of offence, investigation was taken over by Investigating Officer (IO) and medical examination of the victim was undertaken; statement of witnesses came to be recorded as also panchnamas came to be drawn. A statement under Section 164 of “the Code” came to be recorded of the victim. Since, sufficient material to Charge-sheet the accused collected, the IO filed Charge- sheet against the accused in the competent Court. A statement under Section 164 of “the Code” came to be recorded of the victim. Since, sufficient material to Charge-sheet the accused collected, the IO filed Charge- sheet against the accused in the competent Court. 3.1 After ensuring compliance under Section 207 of “the Code”, furnishing papers of Charge-sheet to the accused, since case against them was exclusively triable by a Court of Sessions, it came to be committed to the Court of Sessions. 3.2 After recording evidence in the case and hearing the parties, aforesaid judgment and order of acquittal came to be passed which is under challenge before this Court. 4. On appeal being preferred at the instance of the victim, we also enquired from learned Additional Public Prosecutor Ms. Vrunda Shah about decision of the State whether to prefer any appeal or not. She is informed by a written communication that State has not considered the judgment and order of acquittal to be appealable and therefore, State has not preferred any appeal. 5. While hearing the appeal for admission, it was though fit to call for record and proceedings (R&P) from the trial Court so as to re-appreciate the evidence adduced and documents produced by the prosecution. Pursuant thereto, R&P is received by this Court on 13.08.2024. 6. We have heard Mr. Vijay Nangesh, learned advocate for the appellant, learned advocate Mr. Keval Dholakia for learned advocate Mr. P. P. Majmudar for respondent No. 2 and learned advocate Mr. Ajay L. Pandav for the respondent No. 3. 6.1 According to the submission of learned advocate for the appellant, the version of the first informant, since inspiring confidence, accused could not have been acquitted of the charge levelled against them. He has further submitted that no corroboration is required to the testimony of the victim of an offence of rape if her evidence appears to be trustworthy. 6.2 Since accused are known to her and near relatives of her real sister, she, under good-faith, accompanied them at their request. However, it cannot be construed, as submitted by the learned advocate for the appellant, to be a tacit consent to the act alleged against the accused. At any rate, according to submission of the learned advocate for the appellant, since accused administered threat of dire consequences and took her son in their custody, against her will and wish, A-1 (Shailesh) forced her to enter into physical relation. At any rate, according to submission of the learned advocate for the appellant, since accused administered threat of dire consequences and took her son in their custody, against her will and wish, A-1 (Shailesh) forced her to enter into physical relation. Therefore, it is clear, as submitted by the learned advocate for the appellant, that offences, as alleged, are made out. 6.3 He has further submitted that deposition of the first informant is corroborated by medical evidence. Referring to the Medical Certificate, Exh. 38 of the victim, more particularly, history therein, it is submitted that her version before the Court is corroborated by her FIR as also the Medical Certificate, Exh. 38, where she has clearly mentioned about the manner of committing offence punishable under Section 376 of IPC. 6.4 He has further submitted that immediately when she got an opportunity, she telephoned her husband who serves at Gandhinagar and as per his advice, she got down from car at Limkheda and when he reached home, she told about everything to her husband and thereafter, an FIR came to be filed. Therefore, he submitted that, as and when she got an opportunity, she has immediately informed about the incident to her husband and therefore, there is no delay in filing the case against the accused. 6.5 He has further submitted that her deposition is also corroborated by the statement recorded under Section 164 of “the Code”, which is produced and proved at Exh. 32. He has further submitted that unless and until any contradiction in between the FIR and in a statement under Section 164 of “the Code” is brought on record, learned Judge could not have compared contradictions in between the FIR and statement, Exh. 32, recorded under Section 164 of “the Code”. Therefore, according to his submission, an order of acquittal based on such contradictions, is required to be quashed and set aside. 6.6 Drawing attention of the Court to the history given by A-1 Shailesh to the doctor when he is examined, it is submitted that her version is also corroborated with regard to taking her away on 23.06.2021 as claimed by her. Though, according to submission of learned advocate for the appellant, it was a case of consent, which is contrary to evidence led before the Court. Though, according to submission of learned advocate for the appellant, it was a case of consent, which is contrary to evidence led before the Court. Therefore, it is submitted that even the version of prosecution is also supported from the history given by the accused before the doctor which is, in no case, is a confession. 6.7 He has further submitted that even if panch-witnesses have turned hostile, it may not be a ground to throw away the prosecution case and accused can be convicted solely based on the deposition of the victim if her evidence appears to be reliable and trustworthy. 7. As against that, learned advocate Mr. Keval Dholakia for learned advocate Mr. P. P. Majmudar for the respondent No. 2 and Mr. Ajay L. Pandav, learned advocate for the respondent No. 3, vehemently submitted that victim was, at the time of incident, aged about 32 years; mother of a child aged 07 years, could not have been forcibly taken away against her wish, that too, in a car from a thickly populated market area. It is further submitted that victim is an educated lady, doing her independent business in the very market, her version cannot be believed that she has been kidnapped from that market area against her wish along with her child. Drawing attention of the Court to the Medical Certificate of accused Shailesh (A-1), more particularly, from history given by him to the doctor, it is submitted that she had willingly accompanied them and even physical relation was also with her express permission and she was dropped back at a place as desired by her. 7.1 It is further submitted that claim made by the victim that she called her husband and told him everything about incident and when he came back to her place, as he is serving away from their usual place of abode, FIR is claimed to have been registered. However, drawing attention of the Court to the deposition of PW-8 Ambalal Bijalbhai Vasava, it is submitted that victim is not the wife of the witness PW-8 Ambalal as there was no valid marriage and they have only executed Live-In Relationship Agreement. Drawing attention to the admission by PW-8 Ambalal, it is submitted that victim had no legal and valid marriage in the eye of law with PW-8 Ambalal. Drawing attention to the admission by PW-8 Ambalal, it is submitted that victim had no legal and valid marriage in the eye of law with PW-8 Ambalal. It is further submitted that on one hand victim claims that A-1 Shailesh is brother-in-law of her sister and if PW-8 Ambalal has married with the victim, he must have known the relationship of the accused with the victim as marriage span between them, as claimed by the victim, is of about 12 years and they have a child aged about 07 years at the time of incident, born out of the relationship. Drawing attention of the Court to the assertion in the examination-in-chief of PW-8 Ambalal who is claimed to be husband of the victim, it is submitted that he did not know any of the accused. Therefore, it is submitted that if at all the accused was closely related to the victim, witness Ambalal (PW-8), is supposed to know, at least, one of the accused. Therefore, it is submitted that there is no ring of truth in the evidence of victim and there appears express consent and willingness of the victim to accompany the accused, at least, for a day a joyride in a car which was willingly boarded by her along with her son. 7.2 Drawing attention of the Court to the apparent contradictions in between the FIR and the statement recorded under Section 164 of “the Code”, it is submitted that victim is not stating truth before the Court and she used to change her versions conveniently so as to indict both the accused into the crime. It is further submitted that the learned Judge has rightly brought about seeming differences into the FIR/deposition and statement recorded under Section 164 of “the Code” and has rightly discarded her evidence as not inspiring truth in it. 7.3 It is further submitted that as brought out from the cross- examination of the victim, not only Piplod market, from where she said to have been kidnapped, is thickly populated but all the places where they moved, were also thickly populated with commercial set up all around. 7.3 It is further submitted that as brought out from the cross- examination of the victim, not only Piplod market, from where she said to have been kidnapped, is thickly populated but all the places where they moved, were also thickly populated with commercial set up all around. 7.4 It is further submitted that even as per the prosecution case, they stopped their car frequently near hotels, which is a thickly populated public place, however, she had not raised any shout for any help if at all she is forcibly kidnapped, that too, along with her minor son. The reason given by the victim, as submitted by the learned advocates for the respondents – accused, that she was threatened of dire consequences and her minor son was in custody of one of the accused, is nothing but merely an eyewash. 7.5 It is further submitted that even after calling her husband from a place by borrowing a mobile from some unknown person, she had all the more opportunity to give a slip to the accused but on the contrary she again boarded the car and desired to be dropped at Limkheda i.e. a different place from where she was kidnapped and ordinarily residing and doing business. Therefore, it is submitted that entire case pleaded by the prosecution appears to be not genuine. But, it appears to be a clear case of consent by the victim for the act alleged against A-1. Therefore, it is submitted that there is no evidence to hold accused guilty either of offence punishable under Section 365 or for offence punishable under Section 376 or even an offence punishable under Section 506(2), of the IPC. Therefore, it is submitted that impugned judgment and order of acquittal recorded by learned Judge requires no interference as innocence of the accused is further strengthened by the order of acquittal recorded in their favour. 7.6 It is further submitted that even if two views are possible on the same set of evidence led before the Court, the view which is favourable to the accused has to be adopted while exercising jurisdiction in dealing with an acquittal appeal. Whereas, in the present case, there is no view possible other than the view taken by the learned Judge and therefore, it is submitted that appeal is required to be dismissed. 8. Whereas, in the present case, there is no view possible other than the view taken by the learned Judge and therefore, it is submitted that appeal is required to be dismissed. 8. Having heard the learned advocate for the appellant as also the learned advocates for the respondents – accused and going through the entire evidence along with the documents from the R&P which was called for, it emerges that to prove the case against the accused, prosecution examined nearly 11 witnesses, produced and proved nearly 24 documents. 8.1 If the evidence led before the Court is re-appreciated, starting from PW-1 Dineshbhai Bhagabhai Mavi, who is examined at Exh,. 10, he is a panch-witness to the Panchnama of Seizer of four-wheel (car), which is said to be used in commission of an offence of kidnapping. The said witness has not supported the case of prosecution and he is declared hostile. 8.2 PW-2 Rajubhai Ramanbhai Bhabhor (Exh. 12), who is a panch-witness to the Panchnama of Seizer of Clothes worn by accused Shailesh at the time of incident, has also not supported the case of prosecution and he is also declared hostile. 8.3 PW-3 Mavsingbhai Mulabhai Patel (Exh. 14), who is also second panch-witness to both these earlier panchnamas, has also not supported the case of prosecution and he too, declared hostile. 8.4 PW-4 Majidbhai Musalbhai Piplodiya (Exh. 16) is examined to prove recovery of clothes worn by first informant at the time of incident. Though, he has identified his signature in a Panch Slip from all the muddamal article clothes seized under a Panchnama, nothing further stated or any material is found which may throw light on the guilt or otherwise of the accused. However, from the cross-examination of the said witness, it appears that when he reached police station, the clothes which were shown to him in the Court-room were already lying in the police station. He has further admitted that as he was asked to sign a panchnama typed in a computer, he signed the same. 8.5 PW-5 Bhopatbhai Dalsingbhai Patel (Exh. 22) is again a panch-witness of the place of offence from where alleged act of kidnapping took place. Except police called him at Piplod market cross-roads where the first informant was also present and the said place is nearby Piplod cross-roads, nothing further is revealing from the deposition of said witness. 8.5 PW-5 Bhopatbhai Dalsingbhai Patel (Exh. 22) is again a panch-witness of the place of offence from where alleged act of kidnapping took place. Except police called him at Piplod market cross-roads where the first informant was also present and the said place is nearby Piplod cross-roads, nothing further is revealing from the deposition of said witness. Though, he has admitted in his cross- examination that panchnama was not dictated by him and noted down by the police. 8.6 PW-6 Rajubhai Mangalabhai Bhil (Exh. 24) is again a panch-witness to the place of offence where alleged act of rape is committed. As per his deposition, panch-witnesses went with police near Krishna Hotel at Rajasthan where first informant was also present and the said place was shown by her. Therefore the police drew panchnama there. However, in a cross-examination, this witness has stated that victim called him as a panch-witness and he accompanied her. He has further admitted in his cross-examination that police got his signature on prepared papers. 8.7 PW-7 victim is examined at Exh. 26. As per her deposition, she is doing business at Piplod and deals in ready-made garments. She has stated in her evidence that on 23.06.2021, she received a call from A-2 Kalpesh and she was called at Piplod market three roads and she responded that she is coming there. She, along with her son, went to Piplod market on foot. There, she saw a Duster four-wheel (car) bearing registration No. GJ-06-LS-4980 and in front seat of the car, she found brother-in-law of her sister. She asked to accused Kalpesh that what work he had with her, to which, accused Kalpesh asked her to sit in a car as they wanted to go on a leisure trip for about two hours. As per her assertion in the evidence, despite her refusal, both the accused forcibly made them sit in the car and therefore, she, along with her son, sat in it. Despite her request to get her down, they did not permit her to do so and on the contrary, she was threatened of dire consequences if she raises shouts. As it has further come in the evidence that they stopped near Limkheda near Helipad, where they stopped for some time. Her phone was also taken away by the accused. At that point of time, she realized that something untoward may happen. As it has further come in the evidence that they stopped near Limkheda near Helipad, where they stopped for some time. Her phone was also taken away by the accused. At that point of time, she realized that something untoward may happen. From there she was moved in a car via Limdi, Zalod, Pratapgarh at Rajasthan and car stopped at one hotel. There also she again requested both of them to drop her at home, however, they threatened her not to get down from the car or else she would be killed. Thereafter, they moved further in an around Banswara and stopped at one hotel near by area of Banswara. At that place, A-2 Kalpesh got down from the car with her son and A-1 Shailesh came in rear seat. There, he again threatened her and forcibly made her sleep and committed an offence of rape against her wish. Thereafter, he went outside the car. By that time, accused Kalpesh came along with her son. From there, accused Shailesh, drove car in and around Banswara and at about 6:00 a.m. in the morning, they started return journey towards Piplod. However, after crossing Zalod, Limdi, when village: Singapur came, she, under a pretext of having coffee, asked the accused to stop the car and she got down from it. Thereafter, she has deposed to before the Court that she went inside a Pan shop and from one person, she took mobile phone and called her husband informing about the incident and thereafter, she sat in a car again. She has further stated that en route Piplod, she dropped down at Limkheda along with her son where her mother and brother came there to take her back. From there, she went with her mother at village: Bandibar. 8.8 Considering her deposition, it appears that there was no phone call made to her mother or brother by the victim. At the same time, if she had called and informed about incident to her husband, in turn, she has not informed him to convey this message to her brother or mother so as to reach Limkheda to take her where she is to get down from the car. Even her husband – PW-8 Ambalal Bijalbhai, who is examined at Exh. At the same time, if she had called and informed about incident to her husband, in turn, she has not informed him to convey this message to her brother or mother so as to reach Limkheda to take her where she is to get down from the car. Even her husband – PW-8 Ambalal Bijalbhai, who is examined at Exh. 33, has not so stated having informed to her mother and brother so that they may reach Limkheda to get her back to the village. 8.9 Whole case is full of mysteries. There is no evidence brought on record by the victim or the prosecution, how and in what manner she knows accused Kalpesh so as to respond to the call and reach in a thickly populated area of Piplod market where also she is doing business and dealing in ready-made garments. If accused Kalpesh is not known to her, she may not immediately respond and as per his say, she would not go to any place apart from Piplod market. Leaving it aside, she has never stated that she is knowing accused Kalpesh since long and/or she is having even mobile number of Kalpesh which is saved in her mobile. Therefore, it appears that she is knowing accused Kalpesh prior to the phone call received which she has never disclosed how she knew him in the complaint. 8.10 Not only that, she claims to have been kidnapped under the threat and dire consequences from a thickly populated Piplod market, that too, in a broad daylight; she has not even raised any shout for help. She appears to be educated and doing business in ready-made garments in that very market of the village. Therefore, it is expected that she must be knowing so many persons in the market itself, despite that, she has not raised any shout for help and she would not succumb to any threat of dire consequences of anyone and accompany them not for a few hours but entire day and night. As coming out from her evidence, co-accused Shailesh is also brother-in-law of her own sister and she knew him for about 6-7 years. If he is sitting inside the car when she responded the call of Kalpesh and reached Piplod market where car was parked, unless there is a willingness at her instance, she would not sit in a car, that too, with her son. If he is sitting inside the car when she responded the call of Kalpesh and reached Piplod market where car was parked, unless there is a willingness at her instance, she would not sit in a car, that too, with her son. 8.11 Apart from it, for the main incident of rape, what she deposes to is that, her son was with Kalpesh and he got down from the car and took her son with him near a hotel at Banswara. That hotel also a public place and as per the evidence brought on record, there were several persons in and around that area available at the time of incident. According to her version, after accused Kalpesh got down with her son from the car, accused Shailesh went to rear seat of the car and by the time he goes there if at all she is not a consenting party, would have immediately stepped down from the car or raised shouts for help. Her behaviour appears to be very unnatural. 8.12 If contradiction in respect of most material things in between the statement under Section 164 of “the Code” recorded of her as also the complaint, if not read in absence of having brought on record by way of cross-examination, story narrated by her in the deposition is not inspiring confidence. However, in a statement under Section 164 of “the Code” she had not talked about having called her husband and informed about the incident but he called one Alkesh. Who is that Alkesh is also not brought on record by the prosecution. Even the investigating authority has also not attempted to find out the truth after having before it the complaint wherein different story is told and having statement under Section 164 of “the Code” with them. Be that as it may, moving along with accused for rest of the day and night and next day evening when she reached Limkheda, it appears that she has not informed her brother or even mother who received her at Limkheda. Even if he is informed, they have not even attempted to file any complaint if such a serious offence is committed. However, her husband, who came on the next day, she informed about the same in person and next day thereafter, complaint appears to have been filed. Even if he is informed, they have not even attempted to file any complaint if such a serious offence is committed. However, her husband, who came on the next day, she informed about the same in person and next day thereafter, complaint appears to have been filed. 8.13 Further more, PW-8 Ambalal, who claims that victim is his wife and accused No. 1 who has committed the offence of rape, as deposed to by the victim, is brother-in-law of her sister, therefore, it is obvious that not only the victim but her husband must know other relatives of his own wife. As coming out from the evidence of PW-8 Ambalal, husband of the victim, in his examination-in-chief, he claims that he does not know the accused. His deposition is recorded much after the FIR, Charge-sheet and his statement is recorded. If victim informed about so-called incident and about the accused, at least he can depose to before the Court in his examination-in-chief that he knows accused No. 1 who committed an offence of rape by name and by relation as well. It would be pertinent to note that as admitted by PW-8 Ambalal in his cross-examination, victim is also not his legally wedded wife but, as claimed by him in cross-examination, he has entered into Live-In Relationship. 8.14 As admitted by victim herself in her cross-examination, the place from where she sat in a car, is situated in a thickly populated area of village: Piplod. She has further admitted in her cross- examination that in the said area, there are several shops and it remains very busy for commutation of vehicles as also the public. However, she has denied the suggestion that in between Piplod to Pratapgarh, there are several Toll Booths as also Check Posts. However, she has admitted in her cross-examination that when car stopped at Toll Booths she had not complained about the same to anyone there. She has attempted to explain that since car was locked, she had not informed anyone. Said explanation appears to be a lame excuse. 8.15 For the offence of kidnapping and alleged act of rape, a complaint has come to be filed after about three days of the incident for which, no reasonable probable explanation offered by her. She has attempted to explain that since car was locked, she had not informed anyone. Said explanation appears to be a lame excuse. 8.15 For the offence of kidnapping and alleged act of rape, a complaint has come to be filed after about three days of the incident for which, no reasonable probable explanation offered by her. At the same time, neither the mother nor brother of the victim who received her at Limkheda cross-roads when she got down there as claimed, are examined before the Court. She has further admitted in her cross-examination that when car was stopped at Pratapgarh and accused Shailesh went in the rear seat of the car, she had never raised any shout for help for which an explanation offered that her son was with accused Kalpesh and since she was threatened to be killed, she could not protest or shout for help. As such, she has admitted in her cross-examination that in a car, there were only four persons – two accused, herself and her son. 8.16 Interestingly, while she was kidnapped from village: Piplod market when they reached near helipad, as admitted by the victim in her cross-examination, that there they stopped and moved around for about 10-15 minutes. However, as admitted by her, from there also, she never attempted to run away from the place. 8.17 As coming out from the evidence of IO that from Piplod to Rajasthan, there are Toll Booths as also Check Posts, IO (PW-10, Exh. 42), in his deposition admitted that at Toll Booths, there are CCTV cameras installed. However, he had to admit that he has not collected any CCTV footage for the purpose of investigation in this case and no statements of any of employees of Toll Booths are recorded. He has further admitted in his cross-examination that no statements of owner of a hotel where car was stopped and alleged incident occurred recorded nor CCTV footage from the hotel is seized to substantiate her say. IO has to admit in his cross- examination that victim has not stated in her complaint about her mobile having taken away by the accused, whereas, she claimed that her mobile phone was taken away by them. Therefore, her deposition before the Court is not inspiring any confidence. IO has to admit in his cross- examination that victim has not stated in her complaint about her mobile having taken away by the accused, whereas, she claimed that her mobile phone was taken away by them. Therefore, her deposition before the Court is not inspiring any confidence. If she was having mobile phone with her, as soon as she feels danger, as claimed by her in her deposition, she would have immediately messaged to any of her relatives or to a police or to women helpline number. All these facts revealed that she had willingly gone with the accused and the act as alleged, can be reasonably presumed to be with her consent based on the aforesaid evidence, and therefore, it cannot be said that there is an offence committed under Section 376 of the IPC. 8.18 If deposition of PW-9 Dr. Kusum Babubhai Bilval, Exh. 35 is to be believed, in a history before her, victim said that she knows accused Shailesh since last 6-7 years as near relative as also the owner of her house. That very doctor examined accused Shailesh and in a history recorded by her given by the accused, he claimed that he knows victim since last about 10-12 years and frequently talking with each other and even meeting. However, he claimed that on 23.06.2021 i.e. the day on which the alleged incident took place of kidnapping, she had accompanied him willingly and with express consent, the alleged act was committed. He has further stated that there after she was dropped as per her desire and a place. If evidence of PW-9 (Dr. Kusum Babubhai Bilval) is to be believed for the history given by the victim, it should be believed for the history given by the accused as well. In a history claimed by the accused that the alleged act was with express consent, gets corroboration from the aforesaid circumstances which rules out the theory of prosecution that the victim was kidnapped along with her son and an act of rape was committed upon her. The prosecution has to prove the guilt of the accused beyond reasonable doubt. Whereas, in the present case, prosecution has failed to prove case against accused beyond reasonable doubt. On the contrary, defence raised by the accused through the doctor in the form of history, gets corroboration from the evidence led by the prosecution itself. The prosecution has to prove the guilt of the accused beyond reasonable doubt. Whereas, in the present case, prosecution has failed to prove case against accused beyond reasonable doubt. On the contrary, defence raised by the accused through the doctor in the form of history, gets corroboration from the evidence led by the prosecution itself. Based on preponderance of probability, the defence appears to be more probable than the prosecution case. 9. We have gone through the entire evidence with the assistance of learned advocate for the appellant as also, the learned advocates for the accused. We have also perused record and proceedings in detail, including the documents produced and proved. From the aforesaid analysis of evidence brought on record, we are unable to take a different view than the view taken by the learned Judge. The learned Judge has, in detail, assigned reasons for recording an order of acquittal. From re-appreciation of evidence brought on record, we are unable to say that the view taken by the learned Judge is not the possible view. Even if two views are possible, the view which is favourable to the accused and taken by the learned Judge has to be accepted. Whereas, in the present case, no view other than the view taken by the learned Judge is possible. 10. Considering in detail and on re-appreciation of the evidence led, we endorse the reasons assigned by the learned Judge for recording an order of acquittal and therefore, we are unable to take a different view than that taken by the learned Judge. In view thereof, this appeal deserves to be dismissed and it is hereby dismissed. 10.1 R&P be sent back to the trial Court forthwith.