JUDGMENT - S.G. MAHAJAN, J.:---The order of conviction and sentence passed by the learned IInd Additional Sessions Judge and Special Judge, Amravati in Sessions Trial No. 553/97 (old No. 189/95) is impugned in this appeal. The appellant Mohan s/o. Lalji Tekam, who was the accused in the aforesaid sessions case was convicted of the offence under section 376 of I.P.C. and was sentenced to suffer R.I. for 8 years and to pay a fine of Rs. 2,000/- or in default to suffer R.I. for 6 months more. 2. The prosecution story as it is revealed from the evidence of the prosecutrix is as follows: (A) Prosecutrix Shobha who was at the relevant time aged 20 years, was residing at Pala. One pancham is the uncle of prosecutrix. Vimal is the daughter of Pancham, thus, cousin of the prosecutrix. At the time of incident, Vimal and her husband Mohan, who is the present appellant, were residing at the house of Pancham at Pala. The house of the father of the prosecutrix and his brother Pancham were adjacent to each other. (B) The incident took place somewhere in the year 1995. On the day of incident, the parents of the prosecutrix and other family members had been for agricultural work. So, she alone was present at the house. At about 12.00 O'clock noon, the accused appellant came to her house. He felled the prosecutrix on the ground, pressed her mouth and committed rape upon her. The accused asked the prosecutrix not to disclose the incident to anybody saying that he would marry her. The prosecutrix did not, therefore, disclose the incident to anybody. Then again, on the next day around 9.00 p.m. the accused committed rape on the prosecutrix in the cattle-shed. The prosecutrix conceived. Subsequently, the accused refused to marry her and absconded from the village. Then on 14-7-1995, the prosecutrix approached Police Station Morshi and lodged the report. As per the prosecutrix, she was carrying the 4th month of her pregnancy at that time. 3. On the report being lodged by prosecutrix Shobha as above, P.S.I. Pawar who was attached to Police Station Morshi, registered the crime under section 376 of I.P.C. He carried out further investigation. The prosecutrix was referred to Rural Hospital, Morshi for medical examination. However, it appears that she was examined by C.M.O. Dufferine Hospital, Amravati. 3. On the report being lodged by prosecutrix Shobha as above, P.S.I. Pawar who was attached to Police Station Morshi, registered the crime under section 376 of I.P.C. He carried out further investigation. The prosecutrix was referred to Rural Hospital, Morshi for medical examination. However, it appears that she was examined by C.M.O. Dufferine Hospital, Amravati. As per the medical report, the prosecutrix was carrying the pregnancy of about 7 months. The accused was later on arrested. He was also medically examined. As per the medical report, the accused was able to perform the sexual intercourse. 4. Heard both the sides. As stated above the medical report discloses that the prosecutrix was carrying 7th month of pregnancy at the time when she was medically examined. The report was lodged only one day before her medical examination. However, her evidence shows that she was carrying 4th month. Any how, till then, the prosecutrix did not disclose to anybody about the sexual intercourse performed by the accused with her. She asserted that the accused had promised her to marry. The question is whether the accused gave the promise of marriage to her first, and because of such promise, she allowed the accused to perform the sexual intercourse. The evidence of the prosecutrix does not show that the accused first promised her to marry and obtained her consent for the sexual intercourse. The evidence of the prosecutrix is that the accused first committed forcible sexual intercourse with her and then asked her not to disclose the incident to anybody giving her the promise of marriage. Thus, as per the evidence of the prosecutrix, it is not that she allowed the sexual intercourse to be performed under the promise of marriage. Subsequent promise of marriage would not be relevant to show the misconception of fact and it cannot be said that the consent was procured under the promise of marriage. 5. Though, in the report lodged by prosecutrix, which is at Exhibit 17, she stated that subsequent to the incident, the accused used to give assurances of marriage to her repeatedly, this averment is absent in the evidence of prosecutrix. The F.I.R. is not a substantive piece of evidence. It can be used for corroboration or contradiction. So, the abovesaid contention in the F.I.R. that subsequently also, the accused went on giving assurances of marriage repeatedly, cannot be considered. The F.I.R. is not a substantive piece of evidence. It can be used for corroboration or contradiction. So, the abovesaid contention in the F.I.R. that subsequently also, the accused went on giving assurances of marriage repeatedly, cannot be considered. Had that fact been deposed by the prosecutrix in her evidence, the abovesaid contents of the F.I.R. could have been read for the purpose of corroboration. But since the said fact is not deposed by the prosecutrix, the contents of the F.I.R. to that effect cannot serve as a piece of evidence. 6. In the evidence, prosecutrix Shobha said that on the next day also, the accused committed rape upon her in the cattle shed in the night at about 9.00 p.m. But this is an omission in the first information report lodged by her in the Police Station. So, the narration as regards the next day incident in the evidence is a clear improvement and the same also cannot be considered. Then, what remains, is only one incident of sexual intercourse which is alleged to be performed by the accused with the prosecutrix in the noon at her house when she was present alone. 7. The learned Additional Sessions Judge that the sexual intercourse performed by the accused with the prosecutrix was a forcible one and then because of the promise of marriage given by the accused, the prosecutrix did not disclose the incident to anybody. The learned Judge found that the delay in lodging the F.I.R. was committed because of the assurances of marriage given by the accused. In this connection, it may be seen that the accused is the near relative of the prosecutrix. He is the husband of the cousin of prosecutrix. The marriage of the accused with the cousin of prosecutrix took place about 10 to 12 years before the incident. The cousin of the prosecutrix was having 4 children. The accused and the cousin of the prosecutrix were residing in the house just adjacent to the house of the prosecutrix. Obviously, the prosecutrix knew that the accused was married. In such circumstances, the accused could not give any promise of marriage to the prosecutrix and she also was not expected to believe in any such promise. The accused and the cousin of the prosecutrix were residing in the house just adjacent to the house of the prosecutrix. Obviously, the prosecutrix knew that the accused was married. In such circumstances, the accused could not give any promise of marriage to the prosecutrix and she also was not expected to believe in any such promise. So, the version of the prosecutrix that she did not disclose the incident to anybody because of the assurance given by the accused to marry her, does not inspire confidence. Though the prosecutrix deposed that she was felled down on the ground by the accused and then the rape was committed upon her, meaning thereby, it was a forcible sexual intercourse, in view of the silence of the prosecutrix for about 4 months, one will hardly believe that it must be a forcible sexual intercourse. A reasonable doubt arises in the mind that the sexual intercourse that was performed by the accused with the prosecutrix, was with her consent. As already discussed above, the consent was not procured by a misconception of fact, that is to say, by giving a false promise of marriage because the prosecutrix was already knowing that the accused was married long back and was having 4 children. 8. The prosecutrix is disabled by both she has also delivered a male issue, as it seems from her evidence. One will really have a sympathy for her. But, on this count, the accused cannot be convicted. 9. For the above reasons, the order conviction and sentence passed by the learned Additional Sessions Judge is liable to be set aside. 10. The appeal is allowed. The order of conviction and sentence passed against the accused/appellant by the IInd Additional Sessions Judge, Special Judge, Amravati, in Sessions Trial No. 553/97 is quashed and set aside. The accused is acquitted of the offence under section 376 of I.P.C. He be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. Appeal allowed. -----