JUDGMENT This appeal arises out of the judgment and order dated 27-10-2007 passed by Additional Sessions Judge, Sakti District Janjgir Champa in Sessions Trial No. 117/2007 convicting the accused/appellant under Section 376 (1), IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. In the present case, the prosecutrix (PW-6) was aged about 19 years on the date of incident. Case of the prosecution in brief is that on 14-3-2007, she lodged a written report Ex. P-5 alleging that one year prior to the date of incident, she was allured by the accused/appellant on the promise of marriage and since then she was being subjected to sexual intercourse by him on account of which she became pregnant. While carrying pregnancy of two months, her parents married her somewhere else but the moment her husband came to know about her pregnancy he dropped her at her parent’s house. Thereafter, the prosecutrix informed the accused/appellant about her pregnancy through him but even then giving the evasive reply of marriage he went on making physical relations with her. Finally, the accused/appellant is said to have refused for marriage and threatened to kill her. Based on this written report, FIR Ex. P-6 was registered on 16-3-2007 for the offences punishable under Sections 376 and 506, IPC. Prosecutrix was medically examined on 16-3-2007 itself vide Ex. P-4 and after investigation challan was filed by the police on 12-5-2007 for the said offences. 3. In support of its case, prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted the accused/appellant of the charge under Section 506, IPC but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that present is a case of false implication and if not it is a clear case of consent where the prosecutrix had permitted the appellant for sexual intercourse with her. 5. Counsel for the appellant submits that present is a case of false implication and if not it is a clear case of consent where the prosecutrix had permitted the appellant for sexual intercourse with her. He submits that from the statement of the prosecutrix it is clear that she has not made any attempt to come out from the clutches of the accused/appellant. While making his submission, counsel for the accused/appellant referred to paragraph 10 of the evidence of the prosecutrix and submits that she has nowhere stated that she ever resisted to the act of the accused/appellant which went on for more than a year even after her becoming pregnant and thus it can safely be said that she was a consenting party. He further submits that undisputedly the prosecutrix was major at the time of incident as her age in the evidence has come as about 19 years. Counsel for the accused /appellant further submits that even after delivering a child, the physical relations between the accused and the prosecutrix continued which also shows that she was a consenting party. He submits that though the prosecutrix was aware of her pregnancy through the accused/appellant, she got married to Budhwar Singh (PW-14) and even after being left by him, her physical relations with the accused/appellant did not stop and went on during her pregnancy as well. He submits that in paragraph No.2 of her evidence, the prosecutrix has admitted that even after delivering a child, the accused/appellant used to visit her house and have sexual intercourse with her. Counsel for the accused/appellant further submits that there is inordinate delay on the part of the prosecutrix in lodging the report and no satisfactory explanation for that has come on record. In support of his contention, counsel for the appellant placed his reliance on the decisions of the Supreme Court in the matter of Pradeep Kumar Verma v. State of Bihar and another, reported in 2007 AIR SCW 5532 : (2007 Cri LJ 4333), in the matter of Jamnalal alias Chimman Dhimar v. State of M. P., reported in 2002 (2) MPLJ 169 : (2002 Cri LJ (NOC) 199) as also the decisions of this Court in Criminal Appeal No. 36 of 2009 (Pradeep Mandavi v. State of Chhattisgarh) and Criminal Appeal No. 07 of 2007 (Anand Prakash Mishra v. State of Chhattisgarh : (2011 Cri LJ (NOC) 497). 6. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the consent has been obtained by the accused/appellant on account of misrepresentation making the promise of marriage and further that looking to the manner in which she was subjected to rape prior and during the pregnancy and subsequently even after she delivered a child, accused/appellant is not entitled for acquittal. He submits that delay of about a year in lodging the report is mainly because of the fact that the prosecutrix was a poor and rustic villager and might not be aware of the legal complications thereof. In support of his arguments, counsel for the respondent/State placed his reliance on the decision of Supreme Court in the matter of Yedla Srinivasa Rao v. State of A. P., reported in (2006) 11 SCC 615 . 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-6) has stated in the evidence that the incident had taken place one year prior to recording of her statement in the Court. According to her, she used to work as a labourer in the house of the accused/appellant and one day when she was alone in her house the accused/appellant came there, caught hold of her hand and saying that he would have sex with her, took her in a room and committed sexual intercourse with her after removing her as well as his own clothes, which subsequently went on 8-10 times also. According to this witness, the accused/appellant kept making promises of marriage with her and she too was in agreement for that. As the accused/appellant had thereatened her of beating, she did not disclose the incident to her family members and that as a result of sexual intercourse by the accused/appellant on 8-10 occasions, she was carrying three months pregnancy. Then after marriage she went to her matrimonial home and on return there-from she disclosed her family members about her three months pregnancy through the accused/appellant. She is also stated to have informed the accused/appellant about the same on which he had told her that if her husband did not keep her, she would be kept by him. According to the prosecutrix, even after she became pregnant, the accused/appellant continued to make physical relations with her. She is also stated to have informed the accused/appellant about the same on which he had told her that if her husband did not keep her, she would be kept by him. According to the prosecutrix, even after she became pregnant, the accused/appellant continued to make physical relations with her. Subsequently, this witness is stated to have delivered a female child but even thereafter the accused/appellant used to visit her house and have sex with her. Five six months after delivery of child, Panchayat meeting was convened in the village in which she was boycotted from the society and asked to go where she had conceived from. She then went to the house of the accused/appellant but he and his parents had subjected her to beating and driven out of their house. Thereafter, written report Ex. P-5 was made by her on the basis of which FIR Ex. P-6 came to be registered and she was medically examined with her consent which is Ex. P-7. In cross-examination, this witness has stated that she could not tell the date, day and year of the first incident of rape. According to her, after the first incident she was subjected to rape by the accused /appellant on 8-10 occasions but she could not tell the date, day and year thereof also. According to her, after she was subjected to rape by the accused/appellant for the first time, she did not disclose the same to anyone including her parents and that while being subjected to rape she had not raised any hue and cry because accused/appellant had pressed her mouth. She has admitted that statement regarding her mouth being pressed was made for the first time in the Court. She is also stated to have informed the police about her three month pregnancy at the time of making written report Ex. P-5 but if the same is not mentioned therein, she could not tell the reason for that. After marriage, this witness is said to have visited her parents house 2-3 times but she did not disclose her pregnancy to anyone nor did she lodge any report. According to her, even before becoming pregnant she did not report the matter to the police. In paragraph 13 of her deposition, this witness has stated that when she disclosed her pregnancy to her husband, he had left her. According to her, even before becoming pregnant she did not report the matter to the police. In paragraph 13 of her deposition, this witness has stated that when she disclosed her pregnancy to her husband, he had left her. She is also stated to have disclosed to her mother regarding her physical relations with the accused/appellant after delivery of the child. According to her, at the time of making written report, her child was six months old. Dr. R. L. Thakur (PW-1) is the witness who had medically examined the accused/appellant and given his report Ex. P-1 stating that he was capable of performing sexual intercourse. Bhuneshwar (PW-2) - the witness to Panchayat meeting has stated that in the Panchayat, it was admitted by the father of the prosecutrix that she was pregnant before marriage. According to this witness, even the prosecutrix had also told in the Panchayat meeting that she was pregnant through the present appellant. Chatur Singh Gond (PW-3), Kanwal Singh (PW-4) and Dukhuram Sidar (PW-10) are also the witnesses to Panchayat meeting who have stated that in the Panchayat the prosecutrix had made a disclosure that she was pregnant through the appellant. Dr. (Smt) C. K. Singh (PW-5) is the witness who had medically examined the prosecutrix and given her report Ex. P-4 stating that she was habitual to sexual intercourse and no definite opinion regarding rape could be given. Smt. Roop Kunwar (PW-7) - cousin of the prosecutrix has stated that after marriage, the prosecutrix informed her that she was subjected to sexual intercourse by the accused/appellant and that a female child was also born to her after marriage and then Panchayat meeting was called in the village. Brinda Bai (PW-8) - the mother of prosecutrix has stated that after marriage the prosecutrix informed her that she was pregnant through the accused/appellant. However, at this stage she has not supported the case of the prosecution and has been declared hostile. Revti Bai (PW-9) - neighbour of the prosecutrix has not stated anything specific. Constable Ben Pratap Singh (PW-11) is the witness who assisted in the investigation. Ajitesh Singh (PW-12) is the police inspector who received the written report and prepared challan. Lalji Shukla (PW-13) is the investigating officer who has duly supported the case of the prosecution. Revti Bai (PW-9) - neighbour of the prosecutrix has not stated anything specific. Constable Ben Pratap Singh (PW-11) is the witness who assisted in the investigation. Ajitesh Singh (PW-12) is the police inspector who received the written report and prepared challan. Lalji Shukla (PW-13) is the investigating officer who has duly supported the case of the prosecution. Budhwar Singh (PW-14) - the husband of the prosecutrix has stated that at the time of a marriage, he was not informed by the prosecutrix about her pregnancy and that after delivery of child he was asked to keep the prosecutrix and her daughter. He is also stated to have been threatened of his false implication in a case if he refused to keep the prosecutrix with him and then he lodged a report in the police station against the prosecutrix and her father. He is also stated to have filed a case under the Hindu Marriage Act for declaring the marriage as void. Phool Bai (PW-15) - another neighbour of the prosecutrix has not stated anything specific. 9. From perusal of the record the following facts remain undisputed: (i) That on the date of incident the prosecutrix (PW-6) was major aged about 19 years. (ii) That for the first time she was subjected to rape by the accused/appellant somewhere in March, 2006. (iii) That in the month of May, 2006 the prosecutrix came to know about her pregnancy and in that very month her marriage was solemnized with Budhwar Singh (PW-14). (iv) That after marriage the prosecutrix was left by her husband (PW-14) and then started living with her parents. (v) That during pregnancy and even after delivery of a female child, the prosecutrix continued to have physical relations with the accused/appellant. (vi) That the matter was ultimately reported to the police on 14-3-2007. 10. Thus from the statement given by the prosecutrix before the Court it gets crystallized that she was a consenting party to the act of the accused/appellant and no resistance was offered by her at the time of sexual intercourse. Secondly, the prosecutrix had enough opportunity to disclose the incident to her relatives or report the matter to the police. Even after coming to know about her pregnancy, she has not lodged report promptly and thought it proper to get married with Budhwar Singh (PW-14). Secondly, the prosecutrix had enough opportunity to disclose the incident to her relatives or report the matter to the police. Even after coming to know about her pregnancy, she has not lodged report promptly and thought it proper to get married with Budhwar Singh (PW-14). Record also reveals that even after she came back to her parents house, the prosecutrix continued to permit the accused/appellant to have sexual intercourse with her during her pregnancy and after delivering a child too. Looking to her overall conduct the only inference which can be drawn is that the physical relations between the appellant and the prosecutrix were consensual and not otherwise. The judgment cited by the State counsel in the matter of Yedla Srinivas Rao v. State of A. P. (supra) is distinct on facts and hence cannot be of any help to the prosecution because the factual position of that case happens to be that the accused had been visiting the prosecutrix regularly in day time and persistently asking her to permit him to have sex but the prosecutrix kept on refusing him for the same. Thereafter, one day he came to her sister house where the prosecutrix was residing while she was alone, closed the doors and committed sexual intercourse with her forcibly without her consent and against her will and thereafter the relations went on till she became pregnant. But, in this case there was no previous regular persistence or insistence on the part of the accused asking the prosecutrix to permit him to have sex with her and then the resultant refusal by her. On the contrary, after the first incident as per her own saying, the prosecutrix had physical relationship with the accused for 8-10 without offering any resistence or making its disclosure to anyone. In the matter of Yedla Srinivasa Rao v. State of A. P. (supra), it has been observed by the Apex Court that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and in such a case section 90 of the IPC cannot be invoked unless the Court is assured that from the inception the accused never intended to marry her. Thus it depends on case to case that what is the evidence led in a particular matter. It has been further observed that a fully grown up girl who gave the consent then it is a different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfill right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. It has further been observed in that case that what is a voluntary consent and what is not, depends upon facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but the prosecutrix was also equally keen, then in that case the offence is condoned. Present is not a case where the accused/appellant had promised the prosecutrix of marrying her before committing sexual intercourse and as a result of such assurance, she permitted him for the same. Rather in the case in hand, the prosecutrix herself allowed the accused /appellant for sex with her for 7-8 times and then he assured her of marriage. Most important aspect of the case is that if the appellant had promised the prosecutrix to marry her, she should not have married Bodhar Singh (PW-14) but insisted the accused/appellant for the said purpose. Record reveals that it is only when the prosecutrix was left by her husband she contacted the accused/appellant and disclosed her pregnancy through him. Even at that time, the accused/appellant did not make any promise of marriage but simply told her that if her husband did not keep her, she would be kept by him. Here also the prosecutrix had not asked the accused/appellant to marry her and without any promise being made by the accused/appellant, she continued to have physical relations with him during pregnancy and even after delivery of child. Prosecutrix has nowhere stated that after delivery of the child also, the accused/appellant had refused to marry her. Here also the prosecutrix had not asked the accused/appellant to marry her and without any promise being made by the accused/appellant, she continued to have physical relations with him during pregnancy and even after delivery of child. Prosecutrix has nowhere stated that after delivery of the child also, the accused/appellant had refused to marry her. She has merely stated that Panchayat meeting was called in the village where she was asked to go to the person through whom she became pregnant and when she went to the accused/appellant, he and his parents had beaten her and driven out of their house. Taking the entire statement of the prosecutrix as it is, this Court finds it difficult to hold that there was any promise on the part of the accused/appellant to marry the prosecutrix or that he had physical relations with her on the promise of marriage. 11. Thus looking to entire material made available before this Court, considering the unexplained inordinate delay in lodging the FIR and most importantly the overall conduct of the prosecutrix as has been discussed above in detail, conviction under Section 376, IPC cannot stand. Accordingly, the appeal is allowed. Impugned judgment dated 27-10-2007 convicting and sentencing the accused/appellant as mentioned above, is set aside. Accused /appellant is acquitted of the charges levelled against him. He be set free if not required in any other case. Appeal allowed.