JUDGMENT V.K. BIST, J. 1. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short Cr. P.C.), is directed against the judgment and order dated 08.11.2011 passed by the District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 21 of 2003, whereby accused/appellant Sudhir Kumar has been convicted under Section 376, I.P.C. and sentenced to seven years rigorous imprisonment and directed to pay fine of Rs. 5,000/-. In default of payment of fine, further imprisonment for one month has been awarded. 2. As per the prosecution version, on 29.04.2002 at about 5:00 - Ram Singh lodged a written report (Ext. A-1) with the Patwari, Patti Kandarsyun, Tehsil Thailisain with the averment that Reethu Singh, who is employed in Delhi, took his wife to Delhi for her treatment, but she died in the month of March, 2002. Km. Guddi-victim and two little children were residing in the house at village. On 26.04.2002, it was revealed out that Km. Guddi was missing w.e.f. 23.04.2002. Beena Devi, elder sister of Km. Guddi, had come to her matrimonial house, from whom it came to know that Shanti Devi W/o Jagdish Prasad, resident of Mathigaon had taken Guddi to Buwakhal for treatment. When Guddi returned back during daytime on 26.04.2002, then it was known that she was pregnant. On making inquiry, Guddi told that about one and half year before, when she had gone to jungle to fetch fodder, the accused Sudhir, s/o Jagdish Prasad, by threatening her to kill and without her consent, committed rape on her. The accused threatened her that in case she discloses the fact to anyone, he will kill her. Thereafter, the accused, time and again by threatening her, committed rape on her and when she informed the accused about her pregnancy, the accused told her to run away silently to unknown destination and in case of any disclosure, he will kill her siblings. It is also averred in the FIR that brother of the victim made public the incident. Thereafter, a meeting was convened in the village in which the victim narrated the incident of rape committed by the accused. She further narrated that she was pregnant due to the rape committed by the accused. The accused also confessed his guilt in the meeting. Father of the victim Reethu Singh was also informed through telephone. Thereafter, a meeting was convened in the village in which the victim narrated the incident of rape committed by the accused. She further narrated that she was pregnant due to the rape committed by the accused. The accused also confessed his guilt in the meeting. Father of the victim Reethu Singh was also informed through telephone. The victim was sent to the house of the accused, but his family members did not accept the victim. The victim, while going to the jungle, delivered a female child in the way. Thereafter, when the victim, along with newborn baby was taken to the house of the accused, the accused hurling abuses and threatening to kill, refused to accept them. Leaving the victim, aged 16 years with the girl child, at the house of the accused, Ram Singh went to lodge the FIR. 3. The case was investigated upon by PW-4 Patti Patwari Mahanand Bhatt-Investigating Officer, who during investigation recorded statement of the victim, apprehended the accused, prepared site-plan and after the medical examination of the prosecutrix got done, the I.O. filed charge-sheet against the accused appellant under section 376/504/506 of I.P.C. Learned Chief Judicial Magistrate, Pauri, on receipt of the charge sheet, after giving necessary copy to the accused, as required under section 207 of Cr. P.C. committed the case to the Court of session for trial. Learned Sessions Judge, Pauri Garhwal framed charge of offence punishable under Section 376, I.P.C. to which accused Sudhir Kumar pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Reethu Singh-father of the victim, PW-2 Guddi Devi-prosecutrix, PW-3 Dr. Neeta Jain, who conducted medical examination and PW-4 Mahanand Bhatt-Investigating Officer. Oral and documentary evidence was put to the accused under Section 313, Cr. P.C. in reply to which he alleged that the evidence adduced against him is false. He stated that victim was married to him before the incident, but thereafter he took divorce and the victim got married to someone else. After hearing the parties, the trial Court found accused Sudhir Kumar guilty of offence punishable under Section 376, I.P.C. and convicted him accordingly. Aggrieved by the judgment and order dated 08.11.2011 passed by the District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 21 of 2003, this appeal has been preferred by the convict. 4. PW-3 Dr. After hearing the parties, the trial Court found accused Sudhir Kumar guilty of offence punishable under Section 376, I.P.C. and convicted him accordingly. Aggrieved by the judgment and order dated 08.11.2011 passed by the District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 21 of 2003, this appeal has been preferred by the convict. 4. PW-3 Dr. Neeta Jain medically examined the prosecutrix (brought by Patwari Mahanand) on 30.04.2002 at 1:30 p.m. She conducted the internal and external examination of the prosecutrix. In the medical examination, the doctor found that both breasts were fully enlarged, filled with milk, areola were dark; signs of recent delivery present. The girly was advised X-ray of wrist & elbow joint for ascertaining her age and sent to Radiologist. In the supplementary medical report, the doctor opined that signs of recent delivery were present. The doctor reported that no definite opinion about rape could be given. Medical examination report Ext. A-2 and supplementary medical report Ext.A-3 are on record. 5. PW-1 Reethu Singh-father of the prosecutrix has stated that Ram Singh (complainant) has already died. He stated that due to the death of his wife, he left his son Harendra at his home. On 27.04.2002 at Delhi, he received information telephonically from Ram Singh that his daughter Guddi has given birth to an illegitimate child. Embarrassed with the news, he reached his home on 29.04.2002 and it came to know that Guddi was sent to the house of the accused Sudhir, but mother of the accused did not accept her, due to which Guddi went towards jungle, where she gave birth to a female child and thereafter both Guddi and newborn child were brought back to the house of the accused. He stated that on making inquiry, it was revealed that on 23.07.2002 Guddi had gone with Shanti Devi for her treatment and returned back on 26.07.2002 and on being inquired by her elder sister-Beena, Guddi narrated the entire story. Guddi told that one and half year before, when she was in jungle, the accused Sudhir, by threatening her, committed rape on her and thereafter often committed rape on her by giving threats. When Guddi became pregnant and the accused came to know about the pregnancy, he continued to extend threats to Guddi to remain silent. Guddi told that one and half year before, when she was in jungle, the accused Sudhir, by threatening her, committed rape on her and thereafter often committed rape on her by giving threats. When Guddi became pregnant and the accused came to know about the pregnancy, he continued to extend threats to Guddi to remain silent. When Guddi delivered baby, Harendra-brother of the victim, told the Panchas of the village and the Panchas convened Panchayat, in which Guddi narrated the entire story. The accused was called by the Panchayat, where he confessed his guilt, accused kept the baby with him. On the persuasion of the villagers, the accused took and kept Guddi and baby with him but he was not ready to keep Guddi under his patronage and cut off the relation with his daughter. 6. PW-2 Guddi Devi-prosecutrix, in her examination-in-chief stated that at the time of incident, her father was employed in Delhi. Her mother was in ailment due to which, in the year 2000, she was taken to Delhi for her treatment. Her mother died in March, 2002. She was looking after the home affairs. Her younger sister and brother were with her in the home. She knew the accused, who was residing in the same village. One and half years ago she had gone to jungle to fetch fodder. Chasing her, the accused came there. She was all alone at that time. The accused caught hold of her and pushed her on earth, removed her clothes and committed rape on her. She made shrieks, but the accused pressing her throat threatened her not to disclose otherwise he will kill her. She stated that rape was committed without her consent. The accused threatened that if she discloses anything to anyone, he will kill her and her siblings. Thereafter, the accused fled from the scene and she returned to her home. Due to fear, she did not disclose about the incident to anyone. One day, when her ailing mother had gone to Delhi (she did not remember the date) and her siblings were present in another room of the house, the accused himself came to her home and committed rape on her without her consent. At this time also the accused threatened her, due to which she kept mum. One day, when her ailing mother had gone to Delhi (she did not remember the date) and her siblings were present in another room of the house, the accused himself came to her home and committed rape on her without her consent. At this time also the accused threatened her, due to which she kept mum. Due to rape, she became pregnant and she told the accused about the pregnancy, but the accused responded to keep quite and run silently to somewhere else. She further stated that she is Thakur by caste and the accused is Brahmin by caste. The accused has refused to accept her and she returned her home. This witness has further stated that her elder sister is Beena Devi, had come to her matrimonial home. She told her elder sister that she is ill and for the sake of treatment she is going with the mother of the accused-Shanti Devi. In the month of April, she along with Shanti Devi, went to Buwakhal, where a nurse detected her pregnancy. This witness has stated that she told Shanti Devi about the incident of rape committed by the accused. She remained with Shanti Devi for about three days and on her return, she explained everything to her siblings. Thereafter, her uncle and brother convened a Panchayat, where she disclosed the incident of rape committed by the accused Sudhir. In the Panchayat, the accused also confessed his guilt. At the time when she was feeling pre-natal pain, she was taken to the house of the accused, but the accused and his mother refused to keep her with them. Thereafter, she proceeded to jungle, where she gave birth to a female child. Thereafter, Shanti Devi, along with village women went to jungle from where she was taken to village and was kept in a cowshed. She stated that at the time when she was firstly raped by the accused, she was 16 years old. Thereafter, Patwari came, interrogated her and took her to hospital. For three days, she remained in hospital; thereafter she was taken to orphanage home, Kotdwar. After one month, her marriage was solemnized with the accused at Laxmi-Narayan Temple, Pauri and the accused took her in the village and she lived with the accused for 11 months but she was denied food and was beaten up by the accused and ultimately she was ousted from the house. After one month, her marriage was solemnized with the accused at Laxmi-Narayan Temple, Pauri and the accused took her in the village and she lived with the accused for 11 months but she was denied food and was beaten up by the accused and ultimately she was ousted from the house. The girl born due to rape, died after five months in the house of the accused. She also stated that one day after fetching fodder when she returned home, she observed that her baby had been died-the baby was bleeding also. She stated that when she left the cowshed leaving behind her baby, the accused was present at home. Accused turned her out of his home and she is residing with someone in Paidul. 7. Dr. Neeta Jain (PW-3) is the medical officer, who conducted medical examination of the girl on 30.04.2002 at 1:30 p.m. and prepared medical and supplementary report. PW-4 Patwari Mahanand Bhatt is the Investigating Officer. 8. I have heard Mr. Pankaj Purohit, learned counsel for the accused/appellant and Mr. Pramod Tewari, Brief Holder for the State. 9. Mr. Pankaj Purohit, learned counsel for the accused/ appellant argued that as per the evidence discussed above, the guilt of the accused is not proved and the trial Court has wrongly convicted the accused/appellant. Submission of the learned counsel for the appellant is that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused. Learned counsel for the accused/appellant submitted that the F.I.R. is nothing but a concocted story and has been lodged after thought. The appellant has come with the case that at the first instance, it was a case of false implication of the appellant at the hand of the prosecutrix, and in any stretch of imagination, it is a case of consensual sex. It is contended that in order to prove the guilt of the accused, evidence of Medical Officer is vital. Counsel for the appellant submits that evidence of PW-3 Dr. Neeta Jain is very important, particularly regarding the age of the prosecutrix, wherein, in cross-examination, the doctor has admitted the prosecutrix of 19 years of age and once the age of the prosecutrix is proved beyond 16 years, her consent becomes very-very material and the same could be culled out from the evidence available on record. Thus, at the time of alleged incident, the victim was not minor. Thus, at the time of alleged incident, the victim was not minor. Learned counsel for the accused submitted that in the facts and circumstances of the case, the age of the victim should be treated more than 18 years. Learned counsel for the appellant contended that the victim was exclusively consenting party and she cohabited with the accused on her own volition, therefore the prosecution story utterly fails. Learned counsel for the appellant drew attention of the Court towards the cross-examination of the prosecutrix in which she has categorically stated that she did not disclose to anyone about the incident happened with her, incase she would not have been pregnant, then it would have been all well, but cause of dispute arose, when she became pregnant and on the behest of villagers, her uncle lodged the report against the accused. He submitted that apart from this, the prosecutrix disclosed the incident after one and half year and in this way, there is an extreme and inordinate delay in lodging the FIR. He then submitted that the prosecutrix in her evidence admitted that she had not disclosed the incident with her friends, her father and even her uncle-informant Ram Singh, which goes to prove that whatever happened with the prosecutrix was with her consent and as such, she being a young lady of above 16 years of age, no offence is made out against the appellant. 10. Learned Brief Holder for the State, on the other hand, contended that medical report is merely supplementary evidence and it cannot gloss over the testimony of the victim. He contended that in absence of definite opinion about rape, the oral testimony of the victim could not be disbelieved and cogent and solitary testimony of a rape victim is sufficient for conviction. According to learned Brief Holder, the statement of the victim is sufficient for conviction. He contended that at the time of said incident, the victim was less than 18 years and consent of the victim is not vitally important. He submitted that the delay in lodging the F.I.R. has been explained. 11. Now, in order to arrive at a just conclusion, this Court has to examine that whether the prosecution succeeded in proving the guilt of the accused that one and half years before 26.04.2002 in various places, several times, the accused committed rape on Km. Guddi? 12. He submitted that the delay in lodging the F.I.R. has been explained. 11. Now, in order to arrive at a just conclusion, this Court has to examine that whether the prosecution succeeded in proving the guilt of the accused that one and half years before 26.04.2002 in various places, several times, the accused committed rape on Km. Guddi? 12. Having gone through the entire evidence adduced by the prosecution, the arguments advanced by the counsel for the parties, it illustrates that the prosecution has utterly failed in proving the guilt of the accused for the reasons enumerating firstly, according to the evidence of the doctor, at the time of alleged incident, the prosecutrix was above than 18 years of age, thus she is treated major. Secondly, the prosecutrix kept mum for a considerable period of one and half year and when her pregnancy became public then on the behest of the villagers, her uncle lodged the F.I.R. Thirdly, which is significant and most salient that in her examination-in-chief, the prosecutrix has admitted that incase she would not have been pregnant, then it would have been all well, but cause of dispute arose, when she became pregnant and on the behest of villagers, her uncle lodged the report. Suffice it to say that the prosecutrix was a consenting party, otherwise she would have protested. Considering all the facets of the case, it is found that victim was quite mature and she cohabited with the accused on her own volition. Fourthly, the doctor did not find any sign of injury on any part of the body of the victim, which is not possible in the case of forceful commission of rape. Thus, suffice it to say that the prosecutrix was a consenting party. Therefore, this Court is of the view that the trial Court has erred in law in convicting the accused/appellant under Section 376 I.P.C. 13. For the reasons as discussed above, I am of the view that it cannot be said that charge of offence punishable under Section 376 IPC against the accused/appellant Sudhir Kumar is proved beyond reasonable doubt. Therefore, this appeal deserves to be allowed. 14. Accordingly, the appeal is allowed. For the reasons as discussed above, I am of the view that it cannot be said that charge of offence punishable under Section 376 IPC against the accused/appellant Sudhir Kumar is proved beyond reasonable doubt. Therefore, this appeal deserves to be allowed. 14. Accordingly, the appeal is allowed. Impugned judgment and order dated 08.11.2011 passed by the District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 21 of 2003 State vs. Sudhir Kumar so far as it relates to the conviction and sentence under Section 376 IPC awarded to the accused/appellant is concerned, is hereby set-aside. The accused is on bail. He needs not to surrender. His sureties are discharged. Let the Lower Courts Record be sent back. Appeal allowed.