JUDGMENT : S.B. Shukre, J. 1. This is an appeal preferred against the judgment and order dated 12th December, 2001 passed in Sessions Trial No. 72/1998 by the Ad-hoc Additional Sessions Judge, Gondia thereby convicting the appellant of the offence punishable under Section 376 of the Indian Penal Code. Briefly stated, facts of the case are as under: (i) The prosecutrix in this case was aged about 17 years when the act of alleged rape was committed by the appellant. According to her, the appellant was running a grocery shop at village Ghattemani, Tahsil Amgaon, District Bhandara, when she came in contact with the appellant. The appellant promised the prosecutrix that he would marry her and believing in that promise, the prosecutrix entered into sexual relationship with the appellant. The prosecutrix got pregnant on account of these sexual relations and, when she entered in the seventh month of pregnancy, the appellant along with other co-accused, forcibly took the prosecutrix away from the custody of her father to Gondia with a view to cause forcible miscarriage of her foetus. This incident took place on 19th August, 1998. She was kept in the house of accused No. 4 at Gondia and about 3 days later, i.e. on 22nd August, 1998, one lady doctor arrived at the house who forcibly administered some medicine to the prosecutrix which resulted in abortion of her foetus against her will. About 5 days later, the appellant reached the prosecutrix to a place situated at Ambedkar Square, Amgaon by motorcycle and dropping her there, he left that place. The prosecutrix was then brought to Police Station Amgaon and on the next day, she was taken to her father's house and once again was brought to Police Station Amgaon and kept there for 2-3 days. Again on 31st August, 1998, the father of the prosecutrix came to the Police Station and took her away. (ii) About two days later on i.e. 2nd September, 1998, the prosecutrix filed a complaint against the appellant and four other co-accused on the basis of which offences punishable under Sections376, 363, 313 and 506 of the Indian Penal Code read with Section 34of the Indian Penal Code were registered against the applicant and others. After completion of investigation charge sheet was filed while the accused No. 1. After completion of investigation charge sheet was filed while the accused No. 1. who is present appellant, was tried for offences punishable under Sections 376, 363, 313 and 508 of the Indian Penal Code, remaining were tried for an offence punishable under Section313 of the Indian Penal Code by first Ad-hoc Additional Sessions Judge, Gondia, who by his judgment and order passed on 12.12.2001 acquitted the appellant of offences punishable under Sections 363, 313 and 506 of the Indian Penal Code and also acquitted remaining accused persons of the offence punishable under Section 313 of the Indian Penal Code, but convicted the present appellant of the offence punishable under Section 376 of the Indian Penal Code, sentencing him to suffer rigorous imprisonment for a period of seven years together with fine amount of Rs. 5,000/- and in default of payment of fine, to a sentence of further rigorous imprisonment for two years. 2. Being not satisfied with the same, the appellant is before this Court in this appeal. 3. I have heard Mr. Amol Mardikar, learned counsel for the appellant and Mr. M.M. Ekre, learned Additional Public Prosecutor for the respondent/State. I have perused the impugned judgment and order and also the record of the case. 4. It is submitted by the learned counsel for the appellant that this is a case of consent of the prosecutrix and the prosecution has failed to establish beyond reasonable doubt that the consent given by the prosecutrix in engaging herself in sexual relationship with the appellant was either under misconception of fact as contemplated under Section 90 of the Indian Penal Code or under coercion, so as to term the consent as no consent in the eye of law. 5. Mr. Ekre. learned Additional Public Prosecutor for the respondent/State disagrees and submits that there is sufficient evidence available on record which shows that at the time when the incident took place, the prosecutrix was of tender age and was not of such a age as to understood the consequences of her physical engagement with the appellant and therefore, she innocently believed in the promise of performance of marriage given to her by the appellant, which was false to the knowledge of the appellant. He, therefore, submits that there are no sufficient grounds shown by the appellant to make any interference with the impugned judgment and order. 6. He, therefore, submits that there are no sufficient grounds shown by the appellant to make any interference with the impugned judgment and order. 6. Upon consideration of the evidence available on record and the impugned judgment and order, I am of the view that there is great substance in the argument of learned counsel for the appellant and no merit in the argument of learned Additional Public Prosecutor for the respondent/State. 7. In this case, it is an admitted fact that when the alleged sexual relations between the appellant and the prosecutrix began, the prosecutrix was of the age of 17 years, with her admitted date of birth being 1.8.1980. In the first information report vide Exhibit-45, which has been lodged on 2nd September. 1998, the prosecutrix has alleged that since about last one year of filing of the F.I.R., the appellant, on giving allurement of marriage to her, was having sexual intercourse with her many times over which resulted in her getting pregnant. She has also alleged that by August 1998, it had become clear that she had entered in the seventh month of her pregnancy. In the F.I.R., the prosecutrix has nowhere stated that even though she had got pregnant from the appellant, she had disclosed about the sexual relation existing between her and the appellant to any of her near relatives including her father. Such version of the prosecutrix as appearing in the F.I.R. would make it necessary for the prosecution to show that the consent obtained by the appellant from her about having sexual intercourse with her many times over was vitiated by misconception of fact making the prosecutrix fall prey to the false promise of marriage. In order to ascertain this fact, now it would be appropriate to consider evidence of PW 6 prosecutrix. 8. It is seen from the evidence of PW 6 prosecutrix that she does not state anywhere in her deposition before the Court that she had engaged herself in sexual relationship with the appellant being given in by his false promise of performing marriage with her. She only states in her testimony that one day at 12.00 noon, the appellant gave her a cup of tea and then catching hold of her hands he pulled her inside the house where he removed her underwear and committed rape upon her. She only states in her testimony that one day at 12.00 noon, the appellant gave her a cup of tea and then catching hold of her hands he pulled her inside the house where he removed her underwear and committed rape upon her. She also states that thereafter she remained pregnant because of the sexual intercourse with her by the appellant. This evidence only shows that before entering into sexual relationship, there was no giving of promise of performance of marriage with her by the appellant. PW 6 then has stated that after her getting pregnant, the appellant told her that he would marry with her and would keep her as his wife. Thus, there is a variance between what has been the story of the prosecutrix in the F.I.R. and what she has deposed before the Court in her substantive evidence. In her testimony before the Court, it is the version of the prosecutrix that first sexual intercourse took place and later on promise of marriage followed and whereas in the F.I.R., her story is that first promise of marriage came and it then resulted in her engaging in sexual relationship with the appellant. Difference in these two versions, having regard to the basis of prosecution case, consent given under misconception of fact, assumes great significance in this case and have to be regarded as contradictory to each other thereby throwing the testimony of PW 6 prosecutrix into a shadow of doubt. 9. Now therefore, some corroboration would be required in order to ascertain as to which of the afore-said two versions is true and upon consideration of the entire prosecution evidence, I find that no such corroboration is coming forth in this case leaving the doubt so created stand as it is. 10. The doubt so created in the prosecution story makes me find that the prosecution has failed to establish beyond reasonable doubt, the fact that the prosecutrix had given her consent for having sexual intercourse with the appellant only under a misconception of fact resulting from the prosecutrix believing the promise of marriage as true. 11. If the theory of the consent given under misconception of fact has been found to he doubtful, what remains to be examined is as to whether or not the prosecutrix had had sexual intercourse with the appellant voluntarily. 11. If the theory of the consent given under misconception of fact has been found to he doubtful, what remains to be examined is as to whether or not the prosecutrix had had sexual intercourse with the appellant voluntarily. In other words, the prosecution would have to show that it was under coercion as the prosecutrix was admittedly above the age of 16 years in whose case as per the law then applicable, absence of consent was material to prove the offence of rape. 12. I have already found that the consent given under misconception of fact has not been proved beyond reasonable doubt by the prosecution. Even on the aspect of consent given under coercion, the evidence of the prosecution is completely wanting. The prosecutrix has nowhere stated that when the first act of sexual intercourse with her took place, she was threatened or forced into having sexual intercourse with the appellant. She only states that after giving her a cup of tea, the appellant caught hold of her hands and then pulling her inside the house, he removed her underwear and then committed rape upon her. Which were the particular acts, which in her opinion constituted rape have also not been elaborated by her such elaboration is absolutely essential to enable the Court to form its opinion as to whether or not the act of sexual intercourse was committed in the first place and if so was committed forcibly or by putting the prosecutrix under fear of death or some injury, in the second place. But she has neither clarified nor explained anything in this regard. She has only stated that she got pregnant due to the sexual intercourse committed by the appellant. This explanation only helps the prosecution case partially and not fully. It indicates that there was sexual intercourse between the two. It does not suggest anything about use of force or threat. Rather, it is indicative of presence of consent and willingness of the prosecutrix. 13. The inference so drawn is further strengthened by the fact that even though, the prosecutrix had got pregnant as a result of the said sexual intercourse the prosecutrix did not disclose anything about it to anybody including her father. It is understandable that the prosecutrix was not having mother and, therefore, might have experienced some difficulty in disclosing this fact to a male member of her house. It is understandable that the prosecutrix was not having mother and, therefore, might have experienced some difficulty in disclosing this fact to a male member of her house. But, ultimately, she was being taken care of by her father and, therefore, she could have disclosed it to him. If she had felt some hesitation in doing so, she could have chosen some female member from the neighboring household. But, that was not done by her. When her father noticed some physical changes in her and enquired with her as to what was the matter, then only the prosecutrix first disclosed it to one lady member of the neighboring household and then to her father also. Such conduct of the appellant only shows that she had voluntarily entered into sexual relations with the appellant and that was the reason why she did not consider it necessary to disclose to anybody including the lady members of the neighboring household. 14. Besides, as per the version of the prosecutrix in the F.I.R., the appellant had indulged in sexual intercourse with her many times over. If the prosecutrix chose not to disclose about the first act for some reason, one does not understand as to why thereafter did she not disclose anything about further repeated acts of sexual intercourse with her without valid consent to the neighboring ladies or her father and why did she wait till her father questioned her about occurring of physical changes in her body. No explanation in this regard has been given by her. This only fortifies the inference that in the entire episode, the prosecutrix had conducted herself willingly and voluntarily with full maturity to understand the consequences of her such behavior. 15. For the afore-stated reasons, I am of the opinion that the finding recorded by the learned Ad-hoc Additional Sessions that the prosecutrix reeled under innocent impression that the promise to perform marriage with her was real, although it was false to the knowledge of the appellant, is not completely based upon the evidence available on record nor does it logically arise therefrom and as such the consequent conviction as well as sentence imposed upon the appellant for the offence punishable under Section 376 of the Indian Penal Code deserve to be quashed and set aside. 16. 16. In the result, I am of the view that this appeal deserves to be allowed and it is allowed accordingly. 17. The impugned judgment and order dated 12th December, 2001 passed by Ad-hoc Additional Sessions Judge. Gondia are hereby quashed and set aside. 18. The appellant is acquitted of the offence punishable under Section 376 of the Indian Penal Code. 19. Fine amount be refunded to him. 20. His bail bonds stands discharged. Appeal is disposed of in these terms.