JUDGMENT & ORDER : Heard Mr. B. Deb, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. PP appearing for the State. 2. This is an appeal under Section 374(2) of the Cr.P.C. from the judgment dated 26.08.2015 delivered in Case No.S.T.04(ST/U)/2014 by the Sessions Judge, Gomati District, Udaipur. By the said judgment, the appellant has been convicted under Section 417 of the IPC and sentenced to suffer one year rigorous imprisonment with a fine of Rs.35,000/- in default to suffer simple imprisonment for six months for commission of the said offence. 3. The genesis of the prosecution is rooted in the written complain [Exbt.P/1] filed by one Smt. Khusi Rani Das, the mother of the victim [whose name is withheld for protecting her identity and henceforth she has been referred as the victim] by disclosing that when the victim was working in the residence of one Benu Chowdhury, on 14.11.2012 was called by the Benu’s wife namely Mousumi Chowdhury over telephone and she immediately went in that house. Mrs. Choudhury at that time informed her that her daughter was pregnant. She had also disclosed that one Rajesh Das (Bhula), the appellant herein made physical conduct with her daughter by giving assurance of marriage and her daughter was pregnant of two months. The appellant has been alleged of raping the victim for three or four occasions on promise of marriage and as a result of which, the un-married daughter of the informant became pregnant. On 15.11.2012, the appellant went to the house of Mrs. Chowdhury and rebuked her daughter in abusive language and warned her daughter stating that he would kill her if they approached the police. 4. In terms of the said written ejahar [Exbt.P/1] filed on 16.11.2012, Udaipur Women’s P/S Case No.40/12 under Section 417/376 of the IPC was registered and taken up for investigation. On completion of the investigation, the final report under Section 173(2) of the Cr.P.C. was filed. Later on, having taken the cognizance, the charge was framed. The police papers were committed to the court of the Sessions Judge, South Tripura, Udaipur for the said purpose earlier. The charge was framed under Section 376(1) of the IPC and Section 417 of the IPC. Later on, having taken the cognizance, the charge was framed. The police papers were committed to the court of the Sessions Judge, South Tripura, Udaipur for the said purpose earlier. The charge was framed under Section 376(1) of the IPC and Section 417 of the IPC. It is to be noted that as it does not happen ordinarily that the charge was framed simultaneously under section 417 and 376(1) of the IPC. Section 417 of the IPC was not the alternative charge. However, the appellant denied the charge and pleaded innocence and further claimed to be tried in accordance with law. 5. In order to substantiate the charge, the prosecution adduced as many as 13 witnesses [PW-1 to PW-13] including the documentary evidence. The prosecution introduced the documentary evidence as well viz. the medical examination report of the victim [Exbt.P/4] and the statement of the victim girl as recorded under Section 164(5) of the Cr.P.C. [Exbt.P/6] etc. After recording of the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. when he repeated his plea of innocence and stated that incriminating evidence are falsified to entangle him maliciously. 6. Having appreciated the evidence as led by the prosecution, as the defence did not introduce any evidence whatsoever, the trial court by the impugned judgment has acquitted the appellant from the charge framed under section 376(1) of the IPC, but convicted him under Section 417 of the IPC on observing as under : “In order to constitute an offence punishable under Section 417 of the IPC, prosecution is to establish that accused voluntarily or dishonestly induced the complainant for delivery of some property and he intentionally induced the complainant to do a thing which he would not do or omit to do and such act caused was likely to cause some damage or harm to her body, mind and reputation.” 7. Thereafter, the trial court has observed that the consent was a misconception of fact and as such in true sense it was not a consent and it was taken on a false promise. As consequence thereof, by way of intercourse the chastity of the victim was gravely harmed and according to the trial court, the offence punishable under Section 417 has been well proved by the prosecution. The conviction brought the sentence as stated. 8. Mr. As consequence thereof, by way of intercourse the chastity of the victim was gravely harmed and according to the trial court, the offence punishable under Section 417 has been well proved by the prosecution. The conviction brought the sentence as stated. 8. Mr. B. Deb, learned counsel appearing for the appellant has submitted that there is no evidence that on promise of marriage the alleged sexual intercourse had taken place and further that there is no evidence of breach of such promise, if assumed but denied. He has emphatically submitted that no ingredients on the evidence which are required to be established for proving the commission offence under Section 417 of the IPC. 9. Mr. Deb, learned counsel having referred to the cross examination of the victim [PW-5] has submitted that the victim did not state to the investigating officer that on promise she was made to sexual intercourse. The said statement was confirmed by the investigating officer by stating that never the victim girl stated to her, the investigating officer [PW-10] that on promise of marriage she was made to sexual intercourse. Even Mr. Deb, learned counsel has referred to the statement as recorded under Section 164(5) of the Cr.P.C. to draw the attention of this court that there is too no such direct statement. At least, there is no statement that on promise of marriage the sexual intercourse had taken place. Thus, he has urged this court to acquit the petitioner from the charge under section 417 of the IPC. 10. Appearing for the state, Mr. A. Roy Barman, learned Addl. PP has submitted that the social status of the victim girl has to be considered as the element of the circumstance as relevant for purpose of appreciation of evidence. The victim girl is an illiterate and simpleton. Her passion was exploited on promise of marriage and it can be read in the circumstances, even if there may not be any direct evidence in this regard. Mr. Barman, learned Addl. PP has emphatically stated before this court that on reading of the examination-in-chief this court would be impressed that the victim girl was stating the truth and she had testified in the trial that on promise of marriage, she was made to intercourse and she became pregnant. 11. Mr. Roy Barman, learned Addl. Mr. Barman, learned Addl. PP has emphatically stated before this court that on reading of the examination-in-chief this court would be impressed that the victim girl was stating the truth and she had testified in the trial that on promise of marriage, she was made to intercourse and she became pregnant. 11. Mr. Roy Barman, learned Addl. PP has further stated that every offence is an offence against the society and as such the state has a role in this matter and the court while taking a call on such matter cannot decide without judging the social context. He has further submitted that from reading of the medical report [Exbt.P/5] it would be apparent that at the time of examination of the victim girl, she was carrying pregnancy and the medical opinion is very clear. Therefore, Mr. Roy Barman, learned Addl. PP has urged before this court that the court should not disbelieve the victim girl [PW-5] who had immediately when the pregnancy was noticed told her mother about the occurrence. No girl in our society would tell lie in such matter, at least to her mother. Her mother [PW-4] has corroborated such statement. Mr. Roy Barman, learned Addl. PP has also stated while rapping up his submission that there is no infirmity in the judgment of conviction under section 417 of the IPC and as such no interference is called for. 12. For purpose of determining the appeal what emerges as the essential before this court is that this court would take a serious glance at the evidence to find out two elements which are paramount ingredients to establish the charge under Section 417 of the IPC viz., (i) the element of inducement meaning by promise of marriage whether the sexual intercourse had taken place and (ii) whether the promise was denied by word or conduct ? 13. PW-1, Sri Amalesh Chowdhury has stated that the victim girl was working in their house as the maid servant and she had developed “the love affair and physical relation” with Rajesh Das and when they could identify from the medical report that the victim girl was carrying pregnancy, they called the mother of the victim girl. He even tried to talk to the appellant, but he has denied the allegation that he was very annoyed. PW-1, did not tell anything of promise of marriage followed by the sexual intercourse. He even tried to talk to the appellant, but he has denied the allegation that he was very annoyed. PW-1, did not tell anything of promise of marriage followed by the sexual intercourse. PW-1 in his further cross- examination even did not state anything of material importance. 14. PW-2, Sri Subhajit Roy who is a scribe and he has testified confining to how he had written the complaint at the dictation of PW-4. 15. PW-3, Smti. Madhabi Debbarma is one of the S.I. who was working on the relevant time at R.K. Pur Women P.S. She received the complaint and endorsed the case to the PW-10 to investigate. She has stated nothing more. 16. PW-4, Smt. Khusi Rani Das [the mother of the victim girl] has stated that when the victim was working as maid servant in the house of Abinash Chowdhury @ Benu she was called by his wife, Mousami to tell about the pregnancy of her daughter. She has testified in the trial and stated, inter alia as under: “On my asking the victim told that one Rajesh Das promised to marry her and on that promise she had sexual intercourse with him and thus she became pregnant for the physical relation. She told that she had physical relation for 4/5 times in the fencing cottage in that house of Abhinash. Then Rajesh refused to marry her. Having no other alternative I filed the case.” Further in the cross examination PW-4 has stated that : “When I asked the ….. [the name withheld] at the beginning she denied the occurrence. I have told darogababu that the ….. told me that accused entered into sexual relationship with her on the promise of marriage. Attention drawn to 161 statement subject to confirmation by the I.O. for specification. It is not a fact that I have not stated to darogababu that the ….. told me that accused had sexual relation with her on the promise of marriage. I told darogababu that due to physical relation ….. became pregnant. Attention drawn to omission subject to confirmation by the I.O. it is not a fact that the …… was not pregnant because of physical relation and I did not tell it to darogababu.” 17. PW-5 is the victim girl. She has stated in the trial thus : “I had love affairs with him and Rajesh promised to marry me. Attention drawn to omission subject to confirmation by the I.O. it is not a fact that the …… was not pregnant because of physical relation and I did not tell it to darogababu.” 17. PW-5 is the victim girl. She has stated in the trial thus : “I had love affairs with him and Rajesh promised to marry me. On the promise of marriage he had physical relation with me for two days.” Then she became pregnant and it was detected by Mrs. Chowdhury. She has further stated that after physical relation “I told him to marry me but he refused.” Then my mother filed the case and she was taken to the doctor for examination. In her further cross-examination by the defence she claimed that the appellant entered in the physical relationship with her on promise of marriage. To that statement, the attention was drawn to the previous statement as recorded by the I.O. under Section 161 of the Cr.P.C., but no such statement was found. It was kept reserved for confirmation by the I.O. As already stated, the I.O. has categorically stated that no such statement was made by the victim girl when she recorded the statement during the investigation. For purpose of reference, it would be apposite to refer that part so that the said statement of the said I.O. is not torn out of the context : “……..did not tell me that accused promised to marry her before physical relation on the date of physical relation. Moushumi did not tell me that she became pregnant due to physical relation by Rajesh. She did not tell that Mami asked her about the cause of pregnancy. She did not tell that she had told her Mami that accused entered into physical relation after promising to marry. She did not tell that she had told her mother that she had physical relation on the promise of marriage. She did not tell me that accused forcefully committed sexual intercourse with her. She did not tell that Rajesh refused when she asked her to marry.” Resultantly, the statement as made on the examination-in-chief over the aspect of promise to marry, has turned to be improvement and this improvement cannot be designated as insignificant improvement. 18. PW-6, Arunima Acharjee is one of the Habildars working in the Women P.S., Udaipur and in her presence the investigating officer [PW-10] seized the vaginal swab. 18. PW-6, Arunima Acharjee is one of the Habildars working in the Women P.S., Udaipur and in her presence the investigating officer [PW-10] seized the vaginal swab. 19. PW-7, Dilip Das is a witness to the seizure of one panchayat register where the victim girl’s name has been differently recorded. 20. PW-8, Dr. Tani Bhattacharjee who carried out the medical examination of the victim of the sexual assault, has stated in the trial that on examination she found no external injury, urine test was positive, USG was done, age of pregnancy was seven weeks six days on the day of examination. Finally, it was opined that the victim girl had experience of sexual intercourse and she conceived as consequence. The medical report [Exbt.P/4] was identified by her. 21. PW-9, Dr. Ranjit Kr. Das carried out the ossification test of the foetus and determined that the foetus was of seven weeks and six days. His report has been identified as Exb.P/5. 22. PW-10, Mina Debbarma is the investigating officer. In the examination-in-chief she has narrated briefly how she carried out the investigation and finally submitted the charge-sheet against the appellant. As her cross-examination part has already been substantially dwelled upon by this court, this court would not repeat it. 23. PW-11, Sri Jhantu Bikas Das was the Judicial Magistrate who recorded the statement of the victim under Section 164(5) of the Cr.P.C. [Exbt.P/6] and he identified that statement. 24. PW-12, Dr. Debasish Pal, another doctor who carried out the potency test of the appellant and the report is positive. The report [Exbt.P/7] was identified by the said doctor. 25. PW-13, Smt. Mousumi Chowdhury, wife of PW-1 has stated that she had suspected that the victim girl might be pregnant and she had informed her mother. The victim girl told her that “she had relation with Rajesh Das for one year and after coming to our house she had physical relation with Rajesh Das @ Bhola. She told that Rajesh promised to marry her so she agreed for physical relation.” But when her husband asked Rajesh he denied the allegation and expressed serious annoyance. In the cross-examination PW-13 has stated that she never seen the appellant in their house. She has affirmed that she had stated to the investigating officer that one person working as labour in Nagar Panchayat had love affairs with the victim girl. In the cross-examination PW-13 has stated that she never seen the appellant in their house. She has affirmed that she had stated to the investigating officer that one person working as labour in Nagar Panchayat had love affairs with the victim girl. The reference has been made to the victims girl’s statement as recorded under Section 164(5) of the Cr.P.C., the verbatim translation of which is available with the paper book as prepared by this court. From reading of the said statement, it appears that the victim girl had stated to the Magistrate at the time of recording her statement under Section 164(5) of the Cr.P.C. in the following manner : “For the last three years I had a love relationship with Rajesh Das of that locality. He said that he would marry me. Two months before he did wrong act with me. Thereafter I became pregnant.” These are the evidentiary materials before this court a decision from which whether the finding of conviction is sustainable in law or not, has to be drawn. 26. For purpose of convicting someone under Section 417 of the IPC, the requirement has been correctly noted by the trial court. There is no issue for disagreement. The prime question that has surfaced is that whether such requirement has been met by the prosecution or not. A conjoint reading of the statement of the victim particularly in the further cross-examination and the statement as recorded under Section 164(5) of the Cr.P.C., which has been proved, this court finds that the victim girl did not state to the investigating officer that on promise of marriage she was made to intercourse. In the examination-in-chief, she has stated that she was made to sexual intercourse on promise of marriage but in the cross-examination when she claimed that he made such statement to the investigating officer, the defence had confronted and when it was found that there was no such statement recorded under Section 161 of the Cr.P.C. they put that part for confirmation by the investigating officer [PW-10]. The investigating officer, PW-10 has confirmed that no such statement was ever made to her. Even no such statement was made that on asking of the victim girl the appellant refused to marry her. 27. The investigating officer, PW-10 has confirmed that no such statement was ever made to her. Even no such statement was made that on asking of the victim girl the appellant refused to marry her. 27. In the statement as recorded under Section 164(5) of the Cr.P.C. [Exbt.P/6] which is now admitted in the evidence, there the victim girl has stated clearly that the appellant made promise to marry her but she did not state that on promise of marriage the sexual intercourse had taken place. This court cannot read these two parts together for obvious reason. If the statements are read together taking away the time dimension of it, it would produce a different meaning. But if those statements as recorded are read separately and in the same manner that will produce different meaning which would show that there was promise but the promise was never for the sexual intercourse. It is well settled principle that when a situation emerges and two opinions are possible, the opinion that favours the accused that be accepted inasmuch as that conforms to the standard of beyond reasonable doubt. 28. Having evaluated the evidence, this court finds that there is no evidence beyond reasonable doubt that on promise of marriage the sexual intercourse had taken place. When admittedly there was a love affair which is as old as three years, the physical intimacy, if taken place cannot always be stated to have happened on promise of marriage. Further, refusal to marriage was in the exclusive knowledge of the victim girl, but she did not tell this to the investigating officer. Even if, there was such denial and if the denial is not a product for the pre-mediated inducement for the sexual intercourse on the promise of marriage, the charge under Section 417 of the IPC cannot be held as proved. 29. Having observed thus, this appeal is allowed. The appellant is acquitted from the charge under Section 417 on benefit of doubt. Since it has been stated by Mr. Deb, learned counsel appearing for the appellant that the appellant is on bail, the liability of the surities if any are discharged,. Send down the LCRs forthwith.