Judgment Navaniti Prasad Singh, J. The sole-appellant has been convicted for an offence under Section-376 of the Indian Penal Code and sentenced to imprisonment for life by the Sessions Judge, Katihar in Sessions Case No.268 of 1990 by judgment of conviction and order of sentence dated 26.03.1991. 2. The prosecution case is based upon the first information report, which was lodged on 05.04.1990, by Sarbo Kumari (P.W.1), the prosecutrix before the Balarampur Police Station, District Katihar, inter alia, alleging therein that in the past month of ‘Aghan’ (November), while she was harvesting for the appellant, she was called in his house where the prosecutrix was allegedly raped. When she protested, the appellant is supposed to have promised to marry her. In this manner for several months they were together and, ultimately, she became pregnant. He kept on promising for marriage but when he did not marry her there was a panchayati in which he accepted being responsible for the pregnancy but did not marry her. On this written statement given by the prosecutrix herself, the present case was instituted and Anil Kumar (P.W.6), Officer-in-Charge of Balrampur Police Station himself took up investigation after registering the F.I.R. In course of investigation, the Investigating Officer was changed, as a consequence of transfer, and when the new Investigating Officer took charge he referred the prosecutrix for medical examination in which she was found to be 17-18 years old and carrying a pregnancy about 8 months and habituated to sex. On completion of investigation, charge-sheet was filed and upon cognizance being taken the case was committed to the Court of Sessions. The appellant having not pleaded guilty was tried and convicted as aforesaid. Hence, this appeal. 3. In order to establish the charge, the prosecution has examined altogether seven witnesses. The defence has examined one witness. The first information report is Ext.1. The formal F.I.R. registered is Ext.2 and the doctor’s report, being report of Dr. Chandra Lekha Sharma (P.W.7), is Ext.3. 4. The first witness is Sarbo Kumari (P.W.1) who is the prosecutrix herself. In her examination-in-chief, she starts with changed story. As noticed earlier in the F.I.R., she had stated that while she was harvesting paddy, the appellant called her to his house and raped her. In chief, she starts that the appellant called her in the night in his house and when she entered into the house he locked the door. In her examination-in-chief, she starts with changed story. As noticed earlier in the F.I.R., she had stated that while she was harvesting paddy, the appellant called her to his house and raped her. In chief, she starts that the appellant called her in the night in his house and when she entered into the house he locked the door. When she tried to raise her voice, he promised her that he would marry. After that appellant raped her promising to marry her but did not marry her. While she became pregnant, when she asked him to marry her, he did not marry her. When the marriage did not take place a panchayati was done before the Mukhiya. In panchayati, the appellant agreed to marry but he kept delaying the matter and did not marry. Ultimately, after five months of pregnancy, when he did not agree to marry she herself gave the written report to the police station with her thumb impression. In the cross-examination, she admits that the appellant is married and he has his wife and children including daughter-in-law. She denies having made any statement to the police in course of investigation that she was in love with the appellant. She admits that she knows Shashidhar Singh who was a ‘Sarpanch’. She admits that she had not disclosed to any other about the sexual exploitation for last four months. She states that she had herself lodged the case. She denies the suggestion that the appellant has been falsely implicated at the instance of ‘Sarpanch’ and no such incident had taken place. 5. Learned counsel for the appellant points out the salient facts in regard to this deposition. He points out that in the first information report she states that while she was harvesting paddy, meaning thereby in the day, she was taken by the appellant and raped in his house. In the chief, she states that she was called in the night to the house and raped and then when she tried to protest the appellant promised to marry then had sexually intercourse with her. He then points out that she specifically stated that there was a panchayati at the behest of the ‘Mukhiya’. She further states that when he did not marry, she had lodged this first information report. 6. Now, we come to P.W.2-Mahendra Narain Singh, the Mukhiya. He then points out that she specifically stated that there was a panchayati at the behest of the ‘Mukhiya’. She further states that when he did not marry, she had lodged this first information report. 6. Now, we come to P.W.2-Mahendra Narain Singh, the Mukhiya. He states in his chief that it is the father of the girl who had brought her before him alleging that she is raped by the appellant. He further states that there was a panchayati wherein the appellant agreed to marry with the prosecutrix but kept delaying the matter. He then admits in his chief that when the appellant did not marry her then, he (Mukhiya) took her to the police station and lodged this case. In the cross-examination, he admits that he had been interrogated by the police. He admits that he had stated before the police that the prosecutrix and her father had come and complained before him about the appellant that he has raped. He denies having participated in any pachayati. He denies the suggestion that it was at the instance of Ex-Sarpanch that this case was being engineered and the appellant is being falsely implicated in this case. 7. Learned counsel for the appellant points out that the prosecutrix in her evidence stated that there was a panchayati before the Mukhiya where the Mukhiya had done everything in the panchayati. The prosecutrix stated that she had gone on her own to lodge the complaint to the police station but the Mukhiya has stated that he had taken them (prosecutrix and her father) to the police station to lodge the F.I.R. 8. Then, we come to P.W.3-Sukla Prasad Singh who is a labourer. He states that he had heard that the appellant had raped the prosecutrix. He states that the prosecutrix had disclosed this fact in panchayati. He states that the appellant had admitted that he was responsible for the pregnancy. The appellant had not kept his promise to marry her. The prosecutrix had then lodged this case. In the cross-examination, he states that he had participated in the panchayati but he did not remember in which year or month or date it was held. He states that he was interrogated by the police in course of investigation. He had also disclosed that he was a member of the panchayati where the appellant had confessed his guilt. In the cross-examination, he states that he had participated in the panchayati but he did not remember in which year or month or date it was held. He states that he was interrogated by the police in course of investigation. He had also disclosed that he was a member of the panchayati where the appellant had confessed his guilt. He denies the suggestion that this case has been engineered at the instance of Shashidhar Singh, who was a Sarpanch. 9. Learned counsel for the appellant points out that first the prosecutrix said that the panchayati was done by the Mukhiya (P.W.2). He refuses and refutes this fact. Now, P.W.3 the labourer gets up and says that he was a member of the panchayati, which is not possible. There is no record of any panchayati nor when it took place. 10. We then have P.W.4-Godadhar Goswami. He has been tendered. His cross-examination is of some importance. In his cross-examination, he clearly admits that he had disclosed to the police that on the night of the occurrence the entire family of the appellant was at home. He denies having given statement to the police that there were two groups in the village, one headed by Sarpanch, Shashidhar Singh, and other headed by the appellant. He denies having told the police that the appellant had been falsely implicated in the case. He also denies the suggestion that Shashidhar Singh floated rumours and got the meeting conducted. He denies the suggestion that he has given the evidence at the instance of Shashidhar Singh. 11. Learned counsel for the appellant points out that it is important to note that as admitted by the prosecutrix herself and so in the cross-examination of P.W.4-Godadhar Goswami that the appellant’s family resides in the house and on the date, in the night, the entire family was at home. This is important. 12. We then have P.W.5-Shobha Devi. She is tendered but in the cross-examination she states that Ramesh Singh, Sukhdeo Yadav and Parnath Singh were involved with the prosecutrix and they visit the house of the prosecutrix day and night. Interestingly the prosecution has not declared her hostile. Learned counsel for the appellant points out that this evidence would be of great importance inasmuch as this witness states that Ramesh Singh and others were involved with the prosecutrix and visiting her house day and night. 13. Interestingly the prosecution has not declared her hostile. Learned counsel for the appellant points out that this evidence would be of great importance inasmuch as this witness states that Ramesh Singh and others were involved with the prosecutrix and visiting her house day and night. 13. Then, we have P.W.6-Anil Kumar, the Investigating Officer. The Investigating Officer states that he was the Officer-in-Charge of Balrampur Police Station where the first information report was lodged on 05.04.1990. In his examination in chief itself he states that it was Mahendra Narain Singh (P.W.2, the Mukhiya) who had got a complaint prepared on behalf of Sarbo Devi (prosecutrix) and filed it in the police station. He identifies the said report. It is in the handwriting of P.W.2-Mahendra Narain Singh (Mukhiya) himself i.e. marked as Ext. 1. He states that having started investigation, after sometime, he was transferred and the investigation was taken up by Ranjit Singh (not examined). In the cross-examination, he admits that the prosecutrix used to go to the house of the appellant for thrashing paddy and she had affinity for him. He (appellant) was ready to marry her. He admits that P.W.4-Godadhar Goswami had disclosed to him that there were two groups in the village. One headed by Shashidhar Singh and the other headed by the appellant. 14. We then have P.W.7-Dr. Chandra Lekha Sharma who had given the medical report Ext.3. She opined that the prosecutrix was about 17-18 years old and was carrying the pregnancy of 7 months. She clearly states that the prosecutrix was used to sexually intercourse since long time. 15. Learned counsel for the appellant points out that the medical evidence is clear that the prosecutrix was habituated of sex and was carrying a pregnancy of about 7 months. She had been examined by the lady doctor more than a month after the institution of the F.I.R. 16. We then have the solitary defence witness D.W.1-Chotelal Mandal who is of the same village. He states that he knows both the parties as he resides in the same Mohalla where the two, i.e., the prosecutrix and the appellant reside. In his chief, he states that he is well aware of intimate relationship between prosecutrix and Ramesh Singh, Sukhdeo Yadav and Parnath Singh corroborating P.W.5. He states that Ramesh Singh is the son of Shashidhar Singh (Ex-Sarpanch). In his chief, he states that he is well aware of intimate relationship between prosecutrix and Ramesh Singh, Sukhdeo Yadav and Parnath Singh corroborating P.W.5. He states that Ramesh Singh is the son of Shashidhar Singh (Ex-Sarpanch). He denies having seen any intimacy between the appellant and the prosecutrix. He states that there is dispute between the appellant and Shashidhar Singh (Ex-Sarpanch). He states that there are 12 members in the family of the appellant. He states that the family of the appellant was in the house since ‘Aghan’ i.e. since November. They have all reside in the house. In the cross-examination, he admits that he does not follow the prosecutrix where she goes. He states that he has often seen the prosecutrix to go to market with Ramesh Singh, Sukhdeo Yadav and Parnath Singh and have seen them returned together late in the night. The day and the date he does not remember. To the Court, he discloses that his house is 20-25 yards from the house of the appellant and the prosecutrix. 17. Learned counsel for the appellant points out that the testimony of this defence witness is that the son of the previous Sarpanch Ramesh Singh, Sukhdeo Yadav and Parnath Singh have illicit relationship with the prosecutrix along with others. This fact is also indicated by P.W.5-Shobha Devi in her evidence. The defence suggestion has been all along that it is Shashidhar Singh who had got the appellant implicated in this case. 18. Learned counsel for the appellant submits that this is a case from Katihar district and that too in relation to Section-376 IPC. He submits that from the evidence of the prosecution, as corroborated by the defence, it is clear that the prosecutrix was a lady of easy virtue. She had intimate relationship with various people including Ramesh Singh, the son of former Sarpanch, Shashidhar Singh. This testimony has remained unchallenged. This testimony, on basis of which what was said by P.W.5-Shobha Devi, who was not declared hostile and not reexamined by the prosecution and evidence of D.W.1-Chotelal Mandal, is sufficient to corroborate the same. He submits that it is apparent that because of intimacy with Ramesh Singh, Sukhdeo Yadav and Parnath Singh, the prosecutrix became pregnant and, accordingly, taking advantage of the situation, this aspect has been thrown on the appellant to save his son and to take revenge from the appellant. 19. He submits that it is apparent that because of intimacy with Ramesh Singh, Sukhdeo Yadav and Parnath Singh, the prosecutrix became pregnant and, accordingly, taking advantage of the situation, this aspect has been thrown on the appellant to save his son and to take revenge from the appellant. 19. Having examined the matter, in our view, the case of the prosecution cannot be taken to be proved beyond reasonable doubt. Firstly, the prosecutrix had stated in the F.I.R. that while harvesting the paddy she was called to the house of the appellant and was raped. In the deposition before the Court, she changes this fact and states that she was taken to the house at night and when she wanted to protest she was promised to marry and then she was raped. This is a serious inconsistency. She does not explain what happened to the family of the appellant which included wife, children and a daughter-in-law being at the house. The prosecutrix then says that the appellant maintained sexual relationship with her for 3-4 months which is not believable because she does not state where and how. She then states that having been promised to marry her, the appellant did not fulfill his promise and she went to the police station and lodged this case. Firstly, she should have been aware that the appellant has his wife, children and daughter-in-law. How could he at all promise to marry her? That was impossible as everyone knows that second marriage does not take place during the life time of wife, which is not permissible in law. Both live in the same locality and surely she was aware of his family. Then, we have the evidence of P.W.2-Mahendra Narain Singh, the Mukhiya who states that she was brought by her father and then he took them to the police station, changing the story of the prosecutrix. Then, we have the Investigating Officer who states that the first information report was drawn up at the hands of the Mukhiya P.W.2 himself who had brought it and gave it in the police station. The lady was nowhere in the scene. This clearly establishes the defence suggestion that this case was being manoeuvred. We then have the prosecutrix saying that there was a panchayati by the Mukhiya. The Mukhiya disowns the whole thing about panchayati. The lady was nowhere in the scene. This clearly establishes the defence suggestion that this case was being manoeuvred. We then have the prosecutrix saying that there was a panchayati by the Mukhiya. The Mukhiya disowns the whole thing about panchayati. We then have P.W.3 a labourer turning up as one of the panches but does not even remember when it was held. There is no document to show that panchayati was ever held. 20. Mr. Ajay Mishra, learned A.P.P. relies on a recent judgment of the Apex Court in the case of Deepak Gulati Vs. State of Haryana since reported in (2013) 7 Supreme Court Cases 675 wherein the Apex Court has held that consent given under misconception of facts is not consent for the purposes of absolving a person from the charge of rape. On the other hand, learned counsel for the appellant relying on the same very judgment submits that the Apex Court has acquitted the person on the ground that the prosecutrix gave her consent in lieu of promise made by accused of marrying her and willingly submitted to sexual acts with accused despite being capable of fully understanding significance and morality associated with such acts and being conscious that marriage may not take place for various factors. This would not constitute a rape. 21. Having seen the facts, appreciated it as also the judgment aforesaid, we cannot persuade ourselves to rely upon the story as set up by the prosecutrix even though we are cognizant of the cases of the Apex Court that even on sole testimony of the prosecutrix conviction can be passed. The Apex Court has clearly held that it can only be so when the sole testimony of the prosecutrix is wholly reliable and is not open to doubt. Here, if we see the story set up by the prosecutrix it is full of doubts, ambiguity and uncertain. She opens by saying that she had been called in the house in the day and raped. Before the Court, she changes that she was called in the house in the night and raped. The prosecution does not deny that the appellant has his family including wife, children and daughter-in-law who reside in the house. The prosecutrix alleged sexual intercourse on the promise of marriage and alleges that only when she becomes pregnant and marriage does not take place she complains. The prosecution does not deny that the appellant has his family including wife, children and daughter-in-law who reside in the house. The prosecutrix alleged sexual intercourse on the promise of marriage and alleges that only when she becomes pregnant and marriage does not take place she complains. It is not explained by prosecution that how the marriage could at all be promised by the appellant when the appellant’s wife, children and daughter-in-law all are still there. P.W.5-Shobha Devi herself states in the cross-examination and is not challenged by the prosecution about involvement of others with the prosecutrix, which relationship is then corroborated by D.W.1-Chotelal Mandal and that comes to Ramesh Singh, who is the son of Ex-Sarpanch, Shashidhar Singh, with whom the appellant has serious differences. The other contradicting facts have been earlier noticed while dealing with evidence. 22. Thus, for the reasons aforesaid, we are unable to hold that the prosecution has established its case beyond reasonable doubt. More than reasonable doubt is pointed out by the defence verging upon the falsehood of the prosecution case and false implication. This appeal is allowed and the judgment of conviction and order of sentence passed by the learned Sessions Judge is set aside. The appellant is acquitted of the charge levelled against him. He is relieved from the liabilities of bail bond.