V. K. AGARWAL. J. ( 1 ) ACCUSED/appellant stands convicted under Section 376 of IPC for having committed forcible sexual intercourse against the wishes of prosecutrix Ganga Bai and has been sentenced to undergo R. I. for seven years and to pay fine of Rs. 2,000/ (Rupees Two thousand only), in default to undergo further R. I. for three months, by judgment dated 16-10-1997 in Sessions Trial No. 275/1995 by lind Additional Sessions Judge, Durg. ( 2 ) THE prosecution case stated in brief is that about 8 months prior to 8-1-1994 the prosecutrix Ganga Bai came out of her house at night time to ease herself. The accused/appellant came there and by threat and force dragged her to the grain yard of Kisnath. He committed sexual intercourse with prosecutrix. Thereafter he assured the prosecutrix that he would be marrying her. The accused/appellant thereafter continued to have sexual relations with the prosecutrix. The prosecutrix Ganga Bai became pregnant. The accused/appellant wanted that the pregnancy should be, terminated. However, Ganga Bai did not agree to the above proposal. Therefore, a meeting (Baithka) in the village was held. In that meeting, appellant denied that Ganga Bai was pregnant by him and alleged that some Domar and Ganesh were responsible for her pregnancy. Prosecutrix Ganga Bai lodged report (Ex. P-I) of the incident at Police Station, Patan. Distt. Durg. on the basis of which offence was registered. Ossification test of prosecutrix was conducted. It was opined that she was more than 18 years of age. Ossification test report is Ex. P-7. After concluding investigation charge-sheet was filed against the accused/appellant. ( 3 ) LEARNED Trial Court framed charge under Section 376 of IPC against the accused/appellant. He abjured guilt. The learned Trial Court held that the accused/appellant had committed sexual intercourse without the consent of prosecutrix and accordingly accused/ appellant was convicted and sentenced. ( 4 ) LEARNED Counsel for appellant has submitted that the prosecutrix was held to be above the age of 1 8 years at the time of incident by the Trial Court. It has further been submitted that in the circumstances of the case the consent of the prosecutrix is apparent from her conduct, from the initial stage of incident till she lodged report. Therefore, the appellant could not have been convicted under Section 376 of IPC, Learned Counsel for respondent! It has further been submitted that in the circumstances of the case the consent of the prosecutrix is apparent from her conduct, from the initial stage of incident till she lodged report. Therefore, the appellant could not have been convicted under Section 376 of IPC, Learned Counsel for respondent! State has however, supported the conviction and sentence of the accused/ appellant. ( 5 ) THE question that arises for consideration is as to whether the prosecution evidence and especially the statement of prosecutrix Ganga Bai (PW1) that the accused/appellant committed forcible sexual intercourse with her about 8 months back, prior to her lodging report on 8-1-1994 deserves to be accepted. ( 6 ) IT may be noticed in this connection that Ganga Bai (PW I) narrating the incident of sexual intercourse with her by accused/appellant on the first occasion has stated that at mid-night while she had gone to ease herself the accused/appellant came there and dragged her to the badi of Kisnath Singh and thereafter forcibly committed sexual intercourse with her. When Ganga Bai, told the appellant that she would be informing about the incident to her parents, the accused/appellant promised to marry her. She had further stated that the accused/appellant continued to have sexual relation with her on assurance that he would be marrying her for about 5 months, during which, she became pregnant. Thereafter he made an attempt to get the pregnancy terminated to which she did not agree. ( 7 ) SO far as the initial incident of sexual intercourse is concerned, the prosecutrix Ganga Bai states that since accused/appellant had pressed her mouth she could not resist and shout. The above statement does not appear to be natural and probable. It may be noticed in this connection that prosecutrix Ganga Bai (PW 1) states that she was taken away from near her house. In that case she being a young girl could have shouted and sought for help. Her explanation for not doing so is not convincing. The incident has taken place in the midst of settlement of the village and it does not appear probable that had the prosecutrix Ganga Bai really wished to summon help and attract notice of her family members and others she could not have done so. Her explanation for not doing so is not convincing. The incident has taken place in the midst of settlement of the village and it does not appear probable that had the prosecutrix Ganga Bai really wished to summon help and attract notice of her family members and others she could not have done so. ( 8 ) THE conduct of prosecutrix in continuing to keep relationship with accused/appellant and in a clandestine manner are clearly indicative of her consent in the foregoing background. ( 9 ) MOREOVER it may be noticed in the above connection that the report of the incident was also lodged belatedly much after the holding of Bailhaka in which the accused/appellant denied that the prosecutrix was pregnant by him. It is further interesting to note that the prosecutrix in the trial has named the accused/appellant as her husband as would be clear from her statement. ( 10 ) IN view of the above the conduct of prosecutrix Ganga Bai negatives any inference of sexual intercourse with her against her wishes. Though it may be that the accused/appellant was continuing to promise to marry her and subsequently resiled to do so but such a conduct may though be socially condemnable and morally reapprehensible but the same cannot constitute an offence of rape as defined under Section 375 of IPC. In the above connection learned Counsel for appellant has relied upon Hart Majhi v. State in which the Culcutta High Court has ruled that even if the prosecutrix agreed to sexual intercourse, on account of promise of marriage the offence under Section 376 of IPC is not made out. ( 11 ) IN the instant case even if the prosecutrix is believed that she continued to have sexual relationship with the appellant due to his promise of marriage with her but on scrutiny of evidence it does not appear that the initial act of intercourse was without the consent of prosecutrix or had been done forcibly. Accordingly the finding of the learned Trial Court that the accused/appellant committed offence under Section 376 of IPC is not justified. ( 12 ) ACCORDINGLY the appeal is allowed. The conviction and sentence of accused/appellant for offence punishable under Section 376 of IPC is set aside. He is acquitted. He be released forthwith if not required to be detained in any other case. Appeal allowed. .