JUDGMENT Learned counsel for appellant has submitted that the prosecutrix was held to be above the age of 18 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/State has, however, supported the conviction and sentence of the accused/appellant. The question that arises for consideration is as to whether the prosecution evidence and especially the statement of prosecutrix Ganga Bai (PW 1) that the accused/appellant committed forcible sexual intercourse with her about 8 months back, prior to her lodging report on 8.1.94 deserves to be accepted. It may be noticed in this connection that Ganga Bai (PW 1) narrating the incident of sexual intercourse with her by accused/appellant on the first occasion has stated that at midnight 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. 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. 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. Moreover, it may be noticed in the above connection that the report of the incident was also lodged belatedly much after the holding of 'Baithaka' 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. 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 reprehensible, 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 Hari Majhi v. State (1990 Cr.LJ 650), in which the Calcutta 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. 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. Accordingly, the appeal is allowed.