B.K. Behera, J.
1. This appeal has been directed against the judgment and order of acquittal recorded by the Assistant Sessions Judge, Mayurbhanj, holding the respondent to be not guilty of the charge of rape under Section 376 of the Indian Penal Code (for short, 'the Code') and acquitting him of the charge. Briefly stated, the case of the prosecution presented at the trial was that after nightfall on July29, 1979, the respondent, having left his wife at a friend's house came back home and after fending away his daughter Basanti for purchase of sugar, suggested to the victim girl (P.W.5) who had been called to and kept in the house to give company to Basanti, to have sexual intercourse. As P. W. 5 esisted, she was then lifted to an enclosed verandah of the house of the respondent. Her mouth was gagged and her hands and feet were tied and the respondent forcibly committed rape on her and there after was had the private part and the semen-stained clothes of the victim girl with hot water where after the victim girl left the place. No report was made by her to any one and not even to her parents. On the day following, when the wife of the respondent charged that P. W. 5 had sexual intercourse with her husband, P. W. 5 gave out the story and lodged the first information report (Ext-2). Investigation followed and on its completion, a charge-sheet was placed and the respondent was prosecuted. The plea of the respondent was one of denial and false implication owing to previous enmity with the father of P. W. 5.
2. To bring home the charge, the prosecution had examined twelve witnesses. The respondent had not examined any witness in his defence. On a consideration of the evidence, the learned trial Judge did not accept the case of the prosecution that P. W. 5 was aged abort thirteen years at the time of the alleged occurrence, held that she was above sixteen years and consequently was legally competent to be a consenting party and from the evidence of the victim girl coupled with the other circumstances appearing in the evidence, found that the sexual intercourse of the respondent with the victim girl was with her consent. It was thus concluded that the prosecution had failed to establish the charge.
3. I have heard the learned counsel for both the sides. Mr. Sahoo, the learned standing counsel, has taken me through the relevant evidence. An attempt had been made by the prosecution to establish that P. W. 5 was aged about thirteen years at the time of the occurrence, mainly basing on Ext. 1, the relevant entry in the Admission Register of an Upper Primary School where P. W. 5 had taken admission, but on a consideration of the evidence of P. W. 2, the mother of P. W. 5 and that of the Medical Officer (P. W. 10) who had testified that the age of P.W. 5 at the relevant time was fourteen to seventeen years, the trail Court concluded that the victim girl was above the age of consent within the meaning of Section 375 of the Code.
4. Coming to the question as to whether the sexual intercourse was with or without the consent of the victim girl, the leaned trail Judge took note of the evidence of P.W. 5 along with other circumstances including the absence of injuries on her person and on the person of the respondent besides the silence of V W. 5 after the occurrence and found for the reasons recorded by him in the judgment, which need not again be catalogued, that the sexual intercourse of the respondent with the victim girl was with her consent and not against her will. Absence of injuries on the aggressor or the aggressed may not, by itself, clinch the issue as to whether it was a case ,of consent or no consent and this circumstance is to be judged in the light of the other evidence in coming to a conclusion. The consent given by the victim must also be voluntary and a mere act of helpless resignation in the face of inevitable compulsion when the volitional faculty is crowded by fear cannot be deemed to be consent within the meaning of Section 375 of the Code. Consent on the part of a woman as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent. :In the instant case, however, it would appear from the evidence of the victim herself and the other attendant circumstances that if the respondent had sexual intercourse with her, it was highly likely that it was with her consent.
5. Regard being had to the evidence on record and the reasons for which an order of acquittal has been recorded, the learned standing counsel has very fairly submitted at the hearing that the respondent was entitled to the benefit of doubt. It cannot be said that the view taken by the trial Court is wrong or illegal calling for interference by the Court in an appeal against acquittal. Even assuming that another view can be taken on the evidence, that cannot be a ground to set at naught an order of acquittal.
6. The appeal fails and is dismissed. The respondent, if in custody, be set at liberty forthwith.