HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. Cr.A. No. 736/2009 Arvind Versus The State of Madhya Pradesh ___________________________________________________________ For the appellant: Shri P.S. Tomar, Advocate For the respondent/: Shri Akhilesh Shukla, Dy. G.A. State ___________________________________________________________ Present: Hon'ble Mr. Justice S.C. Sinho ___________________________________________________________ J U D G M E N T (05.04.2011) This criminal appeal under Section 374(2) of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 24.03.2009 passed by Sessions Judge, Sagar (M.P.) in Sessions Trial No.416/2008, whereby the appellant has been convicted under Section 376(1) and 450 of I.P.C. and sentenced to R.I. for 7 years with fine of Rs.1000/- in default R.I. for 3 months and R.I. for 7 years with fine of Rs.1000/- in default R.I. for 3 months, respectively. 2. As per prosecution case, on 18.08.2008 prosecutrix PW-6 who is a lady of aged about 25 years lodged a report at police station Vinayka to the effect that in the intervening night of 17/18.08.2008 when her husband had gone out of the village applicant entered in her house and committed intercourse with her and thereafter ran away. On the next date when her husband returned the report was lodged. After due investigation the charge sheet was filed. 3. At the outset, Shri P.S. Tomar, learned counsel for the appellant has taken me though para 9 of the statement of the prosecutrix and submitted that prosecutrix was a consenting party and court below has committed mistake while convicting and sentencing the appellant. 4. Learned Sessions Judge has relied on various authorities of the Hon'ble Apex Court and held in para 18 of the impugned judgment that prosecutrix is an uneducated rustic villager and without understanding the suggestions made by learned counsel for the defence she has admitted whole defence case in para 9 of her examination-in-chief. 5. When statement of any witnesses is recorded before any court it is the duty of the Court to see that witness is properly understanding the questions asked to such witness and if Presiding Officer has filed to do aforesaid duty then court cannot ignore the cross examination of that witness. 6. A plane reading of statement of prosecutrix specifically para 9 would indicate that prosecutrix was willing and consenting party to the alleged sexual act of the appellant. Appellant was very well known to her as he was her neighbour. She admitted in her cross examination that appellant used to tell her Bhabhi. She also admits in her cross examination that her husband went to watch television nearby to her house. Meanwhile, appellant came to her, unbuttoned and removed her blouse and kissed her. Thereafter he removed her saree and kissed her body from top to bottom and thereafter undressed himself and committed sexual intercourse. No injuries were found on the body of prosecutrix. No resistance by the prosecutrix has been shown as per medical report. She also admits that when her husband came the accused ran away. She also admits in her cross examination that some altercation took place between appellant and her husband on this matter. Thus it is clear that prosecutrix was a consenting party. Prosecutrix being above the age of consent, was subjected to sexual intercourse with her consent, as such the court below erred in recording conviction of appellant under Sections 376(1) and 450 of I.P.C. 7. Consequently, this criminal appeal is allowed. The impugned judgment dated 24.03.2009 passed in S.T. No.416/2008 by Sessions Judge, Sagar is set aside. The appellant is acquitted from the offence under Sections 376(1) and 450 of I.P.C. He is on bail. His bail bonds are discharged. (S.C. Sinho) Judge psm