JUDGMENT : BUDHIAL R.B., J. 1. The judgment and order of conviction passed by the III Additional Sessions Judge at Gulbarga dated 6th day of March, 2010 as against the appellant/accused No. 1 in S.C.No. 187/2009 is called in question in this appeal. Totally there were 07 accused persons for the alleged offences punishable under sections 143, 147, 148, 323, 324, 504, 109, 307, 376 Read With section 149 of IPC registered in Yedrami police station crime number 158/2008. By the judgment and order dated 6th day of March, 2010 the learned Sessions Judge acquitted accused Nos. 2 to 7 for the offences above-mentioned, except the offence under section 376 of IPC as the said offence only against appellant/accused No. 1. By the said judgment and order the learned Sessions Judge convicted appellant/accused No.1 holding that the prosecution proved its case against appellant/accused No. 1 for the offence under section 376 of IPC and sentenced him for the imprisonment for 08 years and also imposed fine of Rs. 1.00 lakh, in default of payment of fine, he shall undergo simple imprisonment for three years. Being aggrieved by the said judgment and order of conviction, the appellant/accused No.1 preferred the present appeal challenging the validity and legality of the said judgment and order of conviction on the grounds mentioned in the appeal memorandum. 2. The case of the prosecution in brief is that PW 10 victim lodged the complaint dated 12.12.2008 before the Yedrami police alleging that she is aged about 19 years. Her house is nearby the house of accused No. 1 Shivashara-nappa s/o Basawantaraya Heroor. Shivasharanappa often used to come to her house. As both belong to the same caste, thinking that both of them would going to marry, they started loving each other. Since one year earlier to filing of the complaint, in the process of loving each other of them, accused No. 1 Shivasharanappa had the sexual intercourse with her. It came to the knowledge of father of accused No.1 one Basawantaraya and also to complainant's brother Somalingappa and complainant's mother Smt. Siddamma and as the love affairs of both, the complainant as well as accused No. 1 came to be known by the parents of the complainant. The elders belonging to her community held Nyaya Panchayat and it was told to her that the marriage of her will be performed with Shivasharanappa i.e., accused No.1. The elders belonging to her community held Nyaya Panchayat and it was told to her that the marriage of her will be performed with Shivasharanappa i.e., accused No.1. Three months earlier to filing of this complaint when the parents of the complainant along with village elders enquired with Basawantaraya, the father of the accused No. 1 about their marriage, said Basawantaraya and also the women folk of his family refused to have the marriage of complainant with accused No. 1. It is also alleged in the complaint that on one day when the complainant met accused No. 1 she told him that as there was love affairs between them and he had the physical contact with her and requested him to have the marriage with her and not to listen the words of his father and also she questioned to accused No. 1 that if he did not marry her, with whom she is to marry. At that time accused No.1 abused her in filthy language and told her that he is not going to marry her and asked her to go somewhere. Further it is alleged in the complaint thereafter wards the parents of the complainant also told her that she can find out way for herself. They also told that she is already done bad thing, the honour and prestige of the family already ruined and asked her to go to the house of accused No.1 Shivasharanappa and they were quarrelling with her in that regard. But it is alleged in the complaint that the parents of the accused No. 1 were advising him not to have the marriage with the complainant as they wanted to find out suitable lady for him and they will perform the marriage. Like this the parents were instigating accused No.1. One month earlier to the incident they sent her out of their house and as the parents of the complainant also quarreled with her and asked her to go out of the house. 8-10 days earlier to the incident she went to the house of accused No.1 Shivasharanappa and she was doing small work in the house and she was taking meals in the house accused No.1 and staying in the said house itself. 8-10 days earlier to the incident she went to the house of accused No.1 Shivasharanappa and she was doing small work in the house and she was taking meals in the house accused No.1 and staying in the said house itself. It is further alleged that during the night Basawantaraya father of the accused No. 1, Somalingappa Hulikantaraya, Siddamma, they were all talking not to keep the complainant in their house, she has to be sent out of the house, otherwise they have to finish off of her and she overheard these words of the family members of the accused No.1. On 11.12.2008 during night at 11.00 p.m. when she slept in the house of accused No.1, said Basawantarya and his children Somalingappa, Hulikantaraya, wife Sidamma and Lalitabai w/o Somalingappa, Gurubai w/o Hulikantaraya came to the place where the complainant slept and Siddamma and Lalitabai made her to woke up and started using abusive words and picked up quarrel with her asking her to go out of the house and both of them assaulted with hands on the head and also on the back portion. Somalingappa took one wooden club from the kitchen and assaulted her on her forehead and caused bleeding injuries. Basawantaraya and Hulikantaraya were abusing her by using abusive words stating that because of her their family ruined and they were telling her that they are going to finish off her. Stating so, they pressed her neck and made an attempt to commit her murder. When she cried loudly, the neighbourers her senior uncle Shivaraya. G.Mallappa and Shivasharanappa s/o Yashwantaraya Kumalli and Shivaputra s/o Hanmantharaya Mulimani they also witnessed the incident and they pacified the quarrel. If they did not come and pacify, the accused could have committed her murder. It is further mentioned in the complaint that accused No.1 Shivasharanappa loving her since one year and he told that he is going to marry her, stating so, he used to have sexual intercourse with her, but because of the instigation of the parents, he cheated her and ran away and the parents of said Shivasharanappa and other family members assaulted her with hands and also with stick and made an attempt to commit her murder. On the basis of said complaint a case came to be registered in Yedrami police station crime number 158/2008 for the offences punishable under sections 143, 147, 148, 493, 420, 323, 324, 504, 109, 307 r/w section 149 of IPC. 3. The Investigating Officer after completing the investigation filed the charge-sheet against the accused persons for the said offences and also for the offence under section 376 of IPC. 4. In order to prove its case the prosecution in all examined 17 witnesses as PWs 1 to 17, produced 11 documents as Exs.P-1 to P-11 and also produced 01 material object as MO 1. 5. After evaluating the materials placed before the Trial Court, ultimately the Trial Court acquitted accused Nos. 2 to 7 for all the offences except the offence under section 376 of IPC as the said offence was only against accused No.1 and by the said judgment and order, the Trial Court convicted the present appellant/accused No. 1 for the offence under section 376 of IPC. Being aggrieved by the same, the appellant is before this Court. 6. I have heard the arguments of learned counsel appearing for the appellant/accused No. 1 and also the learned High Court Government Pleader for the Respondent/State who is assisted by the learned counsel appearing for the complainant. 7. Learned counsel appearing for the appellant during the course of arguments made submission that the Trial Court has not properly appreciated both oral and documentary evidence placed on record. He has submitted that as per the complaint averments absolutely there is no whisper about the forcible sexual intercourse and thereby the appellant-accused committed the offence under Section 376 of IPC. He has also submitted that so far as the alleged offence under Section 376 of IPC, it is only as per the further statement of the complainant, which was recorded nearly after 2 months. He has submitted that prosecution has not placed positive and acceptable material that at any time before committing such alleged sexual intercourse on P.W. 10, appellant made promise that he is going to marry her and because of such promise she submitted herself to the sexual act. He has further submitted that the delay of 3 months in giving the further statement is with a mala fide intention and it is an after thought though no such offence has been taken place. He has further submitted that the delay of 3 months in giving the further statement is with a mala fide intention and it is an after thought though no such offence has been taken place. Learned counsel has taken this Court to the entire materials, deposition of witnesses, as well as the relevant portion in the judgment of the Trial Court and submitted that the first incident, which is alleged as per the complaint averments is forming unlawful assembly and making an attempt to commit the murder of P.W. 10. He has submitted that even with regards to such offences on the side of the prosecution witnesses were examined. The Trial Court disbelieved the evidence of P.Ws.8, 9 and 12 and acquitted accused Nos.2 to 7. He has submitted that the Trial Court disbelieved their version mainly on the ground that they are the interested witnesses, but the same reasons were not adopted by the Trial Court while convicting the appellant under Section 376 of IPC. He has also taken this Court to the judgment portion at paragraph No.4 of the judgment and the evidence of P.W. 10 at page No.65, and submitted that looking to these materials placed on record absolutely there is no case made out against the appellant herein. He has further submitted that even the medical records also not supporting the case of the prosecution. He has also submitted that when victim herself mentioned her age as 19 years while lodging the complaint, in spite of that the trial Court has observed that she was below the age of 18 years and hence, consent is immaterial. Hence, he has submitted that prosecution utterly failed to prove its case beyond all reasonable doubt and the Trial Court has wrongly read the evidence and wrongly proceeded to convict the appellant-accused No.1. Therefore, submitted to allow the appeal and to set-aside the judgment and order of conviction and to acquit the appellant-accused No.1 of the alleged offences. 8. Per contra, learned HCGP during the course of his arguments has submitted that the victim girl was below the age of 18 years as on the date of alleged incident and there was a forcible sexual intercourse on her. He has also submitted that as the appellant made the promise to marry her, because of that reason, the victim girl agreed for the said sexual intercourse with him. He has also submitted that as the appellant made the promise to marry her, because of that reason, the victim girl agreed for the said sexual intercourse with him. Hence, the appellant cheated her and thereby had sexual intercourse with her and committed the offence punishable under Section 376 of IPC. He has also submitted that the Trial Court rightly appreciated the entire materials and rightly convicted the appellant for the said offences. He has supported the judgment and order of conviction passed by the Trial Court and submitted that no illegality has been committed by the Trial Court to interfere into the judgment and order of conviction. 9. Learned counsel appearing on behalf of respondent No.2-complainant is also given an opportunity to submit his say, during the course of his arguments, he has argued that as per the observations of the Trial Court so also the evidence placed on record shows that as on the date of the alleged incident the victim girl was minor and below the age of 18 years. Therefore, whether there is consent for the sexual act or it is without consent, is totally immaterial and hence, submitted that the judgment and order of conviction passed by the Trial Court is valid and it is in accordance with the material placed on record. Hence, he has submitted that there is no merit in this appeal and same is to be dismissed. 10. Having heard the learned counsel on both sides, I have perused the grounds urged in the appeal memorandum, oral evidence of the prosecution witnesses, documents produced in the case. Let me examine the materials i.e., both oral and documentary, to ascertain whether the prosecution was able to establish that there was a forcible sexual intercourse by the appellant-accused No. 1 on the victim girl to prove the offence punishable under Section 376 of IPC. 11. I have already made detailed reference to the complaint (Ex.P-9). Looking to the complaint averments so far as the forcible sexual intercourse by the appellant-accused No. 1 on the victim girl, absolutely there are no such allegations. It is mentioned by the victim in the said complaint that the appellant's house is nearby her house and he is also her relative, he also belongs to her caste, so, often he used to come to her house. It is mentioned by the victim in the said complaint that the appellant's house is nearby her house and he is also her relative, he also belongs to her caste, so, often he used to come to her house. It is further alleged in the complaint that, as they wanted to marry, they were having love affair and also had sexual intercourse between themselves, but this averment in the complaint is not admitted by the appellant that with consent of the lady or because of such love affair, he had sexual intercourse with her. During the course of cross-examination, the allegations of the prosecution have been completely denied by the appellant herein. It is no doubt true, it is brought to the notice of this Court by the learned HCGP as well as the learned counsel appearing on behalf of complainant referring to the cross-examination of P.W. 10 that a suggestion was made to the witness that accused No.1 never made such promise to marry her but it is because she was loving him and because of the love affair she had the sexual-intercourse with the accused person, which suggestion has been denied by the complainant. On the basis of this piece of evidence learned HCGP as well as learned counsel appearing for respondent No.2-complainant were arguing that this itself is sufficient to show that there was a sexual intercourse between the victim girl and the appellant herein. When such suggestion has been made to the witness by the counsel which has been denied by the witness, it cannot be the evidence under the provisions of the Evidence Act. So, only on the basis of the said suggestion made by the counsel and its denial by the witness, it cannot be construed that there is a sexual intercourse between the two, but it has to be established by the prosecution by placing cogent and acceptable material through the mouth of witnesses. 12. Now coming to the oral evidence of victim girl, who has been examined as P.W. 10, as per the case of the prosecution, the date of incident of assault is mentioned on the complainant as at about 11.00 p.m. on 11.12.2008, on the very next day, complaint was lodged i.e., 12.12.2008, victim girl is the complainant. 12. Now coming to the oral evidence of victim girl, who has been examined as P.W. 10, as per the case of the prosecution, the date of incident of assault is mentioned on the complainant as at about 11.00 p.m. on 11.12.2008, on the very next day, complaint was lodged i.e., 12.12.2008, victim girl is the complainant. The complaint was lodged at about 5.30 p.m. on 12.12.2008 as it is argued by the learned counsel for the appellant herein that in the original complaint (Ex.P-9), there is no allegation of forcible sexual intercourse on her or the appellant committed the offence punishable under Section 376 of IPC, but the alleged offence under Section 376 of IPC has been inserted in the case as per the further statement of victim girl (P.W. 10) given before the Investigating Officer on 29.03.2009. Accordingly, the Police have made requisition to the concerned Court on 29.03.2009 to insert the offence punishable under Section 376 of IPC. The said requisition is also marked as per Ex.P.11 so also as per the charge-sheet filed by investigating officer, even the offence under Section 376 IPC was included in this case. 13. For the alleged offence of assault in making an attempt by accused Nos.2 to 7 to commit murder of the complainant, it is the case of the complainant that she has been assaulted and the injuries were caused to her. As the accused pressed her neck, there was swelling around the neck and so for that purpose, she was taken to the doctor. In that connection, the doctor of Primary Health Centre, Ijeri, Taluk Jewargi, Gulbarga District issued the wound certificate as per Ex.P.1. I have perused Ex.P.1, wherein, the doctor has mentioned the name of the victim girl and her age as 19 years. Regarding the history, it is mentioned that on 11.12.2008, there was assault on the victim. The doctor has examined the said lady at 9.30 a.m. on 12.12.2008 and he noticed the following three injuries: 1. Abrasion over the right parietal part of the head. 2. Tenderness over surrounding the neck. 3. Tenderness over both side of the face. 14. When the further statement was given by the victim before the investigating officer on 29.3.2009, again she was referred to the doctor for her examination. The Casualty Medical Officer, District Hospital, Gulbarga, issued the medical certificate as per Ex.P.6 dated 28.2.2009. 2. Tenderness over surrounding the neck. 3. Tenderness over both side of the face. 14. When the further statement was given by the victim before the investigating officer on 29.3.2009, again she was referred to the doctor for her examination. The Casualty Medical Officer, District Hospital, Gulbarga, issued the medical certificate as per Ex.P.6 dated 28.2.2009. I have perused the said certificate wherein it is stated that no external injuries found over the body breast and Axillarly hair well developed, no external injuries no matting of hairs, P/S a Healthy (not clear) mucoid discharge, P/o (not clear) RU NS (not clear) vagina admits 2 finger loosely. According to the radiologist, skeletal age of the victim is 16 to 18 years. Dental surgeon estimated the age as 18 years. The doctor has stated that the victim is used to the act that is similar to the coitus. 15. The prosecution has also relied upon the material such as spot mahazar marked at Ex.P.8. The spot mahazar is said to have been conducted on 13.12.2008 in the presence of panch witnesses, namely Jagadevappa and Shivaraya Gowda. As per this mahazar, it is stated that the complainant was also present at that spot and she told that one year earlier to that, Shivasharanappa son of Basavanthraya Herura committed forcible sexual intercourse on her and he was also often committing the sexual intercourse on her. In Ex.P.8, the place of incident is stated as Sy. No.80 which was belonging to one Balavanthraya son of Mallappa. The said place was nearby the well and there was one small hut. 16. The prosecution wanted to rely upon all these materials to show that there was forcible sexual intercourse on the victim girl and thereby, the appellant accused committed the alleged offence of rape. As it is observed above that in the original complaint Ex.P.9, there is no whisper about the said sexual intercourse and committing the offence of rape. The prosecution has not explained as to why the said act had not been mentioned in Ex.P.9 original complaint and as to why it was stated in the statement only through complainant P.W. 10 during the course of investigation that too after 2 months. The conduct of the complainant victim girl is also an important material to appreciate the case of prosecution. The conduct of the complainant victim girl is also an important material to appreciate the case of prosecution. There is no material placed by the prosecution to show that on which particular date, the accused made promise to marry the victim complainant and because of that reason, she consented herself for the alleged sexual intercourse with the accused. But looking to the complaint averments, it goes to show that she herself has stated that there was love affair between herself and appellant accused and thinking that they will get married, they had sexual intercourse each other. But this was not admitted by the accused in his defence. 17. Even with regard to the age of the victim girl is concerned, she herself has mentioned in Ex.P.9 that her age was 19 years. When she had been examined by the doctor, in the medical certificate as per Ex.P.6, the age of the victim was mentioned as 18 years. It is no doubt true that as per the radiologist report and dental surgeon report, her age is mentioned in between 16-18 years. But this also becomes important only when the prosecution is able to establish the alleged sexual intercourse between the victim girl so also the appellant accused. The evidence of P.Ws.8, 9 and 12 before the Court below is that they know the complainant before them and since one year, the accused person by making promise used to have sexual intercourse with her and ultimately, he refused to marry her, panchayat was held and in the said panchayat, the elders told that they will perform the marriage of the complainant with the appellant accused. However, the Court below at para No. 14 of the judgment has observed that admittedly all the witnesses P.Ws.8, 9 and 12 are not immediate neighbours and they are close relatives of complainant, so they are naturally interested in the complainant, so their version is not at all trustworthy to be believed. The Court below has further observed that, in the cross-examination of these witnesses it is brought on record that, there are other persons houses are situated just abutting to the house of accused, but investigating officer has not at all examined any one of the independent witnesses to the said incident. The Court below has further observed that, in the cross-examination of these witnesses it is brought on record that, there are other persons houses are situated just abutting to the house of accused, but investigating officer has not at all examined any one of the independent witnesses to the said incident. According to the prosecution case the alleged incident has taken place in the house of accused in the night at 11 p.m. and possibilities of all these witnesses hearing the commotion from the house of accused and reaching there and witnessing the incident and separating the incident appears to be concocted story only. So that complainant sustained injuries in the hands of the accused on the alleged date, time and place is not satisfactorily proved by the prosecution. Observing as such, the Court below disbelieved the evidence of these three witnesses and ultimately, acquitted accused Nos.2 to 1 for the offence of assault on the complainant during the night and making an attempt to commit her murder. The Court below has also disbelieved the offence of forming unlawful assembly by the said accused persons. 18. So far as the alleged offence under Section 376 of IPC is concerned, the Court below has observed in its judgment that the evidence of the complainant and also the medical records goes to show that she was below the age of 18 years when admittedly there is material placed on record that she was aged 19 years at the time of the incident. Apart from that, as I have already observed above, absolutely, no material is placed to show that there was sexual intercourse by the appellant-accused on the complainant as alleged in the further statement dated 29.3.2009. The question of believing the story of the complainant does not arise at all. If really, such an incident is taken place as alleged by the complainant, when the police officers came to the house on the very next day of the incident to conduct panchanama and when she was taken to the hospital for examination, she could have narrated even against the offence under Section 376, IPC. P.W.6-Dr.Jyothi, who was serving as Gynaecologist Specialist in Gulbarga, examined the victim on 06.02.2009 brought by WPC 20 of Yedrami Police Station with history of sexual assault. She deposed that no external injuries were found on the body, breast and auxiliary hair well developed. P.W.6-Dr.Jyothi, who was serving as Gynaecologist Specialist in Gulbarga, examined the victim on 06.02.2009 brought by WPC 20 of Yedrami Police Station with history of sexual assault. She deposed that no external injuries were found on the body, breast and auxiliary hair well developed. No matting of hairs. Mucoid discharge, per veginal examination perspecular normal size both formic fret No tenderness vagina admits two fingers. According to radiologist, age of the victim girls. 16 to 18 years and according to Dentist, age of the victim is 18 years. She issued the certificate, which is marked as Ex.P-6. In the cross-examination, P.W.6 has deposed that she examined the victim girl with history of sexual assault on 12.12.2008. She does not know prior to 06.02.2009 victim girl was referred to any other doctors. She admitted as true that after two months of alleged sexual assault she has examined the victim girl. P.W. 10, who is the victim girl, has deposed in her evidence that accused No. 1 had sexual intercourse with her on the promise that he will marry her, accused used to have such sexual intercourse in the hut of the land of her father. He used to have the sexual intercourse 2-3 time in a month and totally he had sexual intercourse with her 15 times. In her cross-examination, she deposed that she has not stated before the Doctor of Yedrami Hospital about the sexual intercourse on her and the Doctor of Yedrami hospital has also not asked her about the rape on her. So looking to the evidence of Doctor (P.W.6) in the cross-examination, the version of the Doctor that she examined the victim girl with history of sexual assault on 12.12.2008. If that is so, nothing prevented the complainant (victim) to mention about the sexual intercourse also in her complaint. In the complaint, absolutely there are no such allegations regarding sexual intercourse, but it is only through her further statement on 29.03.2009 i.e., exactly after more than 2 months. As observed above, no cogent, satisfactory and acceptable materials have been placed by the prosecution to show that when exactly the accused made such promise of marrying the complainant and thereby he had sexual intercourse with the complainant. As observed above, no cogent, satisfactory and acceptable materials have been placed by the prosecution to show that when exactly the accused made such promise of marrying the complainant and thereby he had sexual intercourse with the complainant. Looking to these materials placed on record, I am of the opinion that the Court below has not considered all these materials, both oral and documentary and it has wrongly read the evidence. Only on the basis of the bald and vague allegation made as against the appellant-accused, the Court below has wrongly proceeded to hold that the prosecution has proved its case beyond reasonable doubt that the appellant accused has committed the forcible sexual intercourse on the victim and there is an offence under section 376 of IPC. The appellant accused has made out a case to allow the appeal and to set aside the judgment and order of conviction passed against him by the Court below. 19. Accordingly, the appeal is allowed. The judgment and order of conviction passed by the Court below as against the appellant for the offence under Section 376 of IPC is hereby set aside. The appellant accused No.1 is acquitted of the said offence and his bail bond stands cancelled.