JUDGMENT : Heard, learned counsel for the appellant, Mr. Rakesh Kumar Sinha and Mr. Tapash Roy, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 09.08.2004 passed by the learned Additional Sessions Judge, Fast Track Court-II, Dhanbad, in Sessions Trial No. 208 of 1999, whereby the sole appellant, Nareshwar Hembram has been convicted by the learned trial court for the offence committed and punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years, and a fine of Rs.5,000/- and in case of default of payment of fine to further undergo Rigorous imprisonment for six months. The period of custody already undergone shall be set off under Section 428 Cr.P.C. 3. The prosecution case is based upon written report of one Kumari Bibhishan Marandi before Officer In-Charge, Baliapur Police Station (Dhanbad), wherein informant has alleged that, three years ago, accused Nareshwar Hembram met the informant and who used to visit her house. In course of such visits, a friendship developed between them. The accused after giving inducement of marriage, started physical relation with her. Accused usually used to do sexual intercourse with her, which has resulted in her pregnancy. Thereafter, when the informant asked for marriage, the accused denied the same and accused is arranging his marriage at any other place with the assistance of his father. 4. On the basis of the written report of informant, the Police instituted First Information Report bearing Baliapur P.S. Case No. 37 of 1998 dated 23.03.1998 under Section 376 of the Indian Penal Code. 5. After investigation, the police submitted charge sheet vide charge sheet no. 71 of 1998, dated 30.06.1998, under Section 376 of the Indian Penal Code against the accused person. 6. The cognizance of the offence has been taken vide order dated 06.11.1998 and the case has been committed to the Court of Sessions vide order dated 21.07.1999. The learned trial Court has framed charge against the accused person on 25.10.2002 under Section 376 of the Indian Penal Code, to which the accused person has pleaded his innocence, and thus, he was put under trial. 7. The prosecution, in order to prove its case, has examined altogether three witnesses and also exhibited documentary evidence. The learned trial Court has framed charge against the accused person on 25.10.2002 under Section 376 of the Indian Penal Code, to which the accused person has pleaded his innocence, and thus, he was put under trial. 7. The prosecution, in order to prove its case, has examined altogether three witnesses and also exhibited documentary evidence. Haldhar Marandi (father of the victim) has been examined as P.W.1, Bibhisan Marandi (victim) has been examined as P.W.2 and Niren Chandra Dan (Mukhiya of the village) has been examined as P.W.3. Written report has been proved and marked as Exhibit 1 8. After closure of the prosecution evidence, statement of the appellant has been recorded under section 313 Cr. P. C. on 20.02.2004 to which the appellant has stated that he has been falsely implicated in this case. But appellant has not adduced any evidence either oral or documentary in this case. 9. After hearing the parties and after perusal of record, learned trial Court passed the impugned judgment of conviction and order of sentence, both dated 09.08.2004 passed by the learned Additional Sessions Judge, Fast Track Court-II, Dhanbad, in Sessions Trial No. 208 of 1999 against appellant convicting under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years, and a fine of Rs.5,000/- and in case of default of payment of fine to further undergo Rigorous imprisonment for six months. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred, by the appellant before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellant, Mr. Rakesh Kumar Sinha. Learned counsel for the appellant has submitted that, the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that, there was a consensual sexual intercourse between the informant and the appellant, as the informant is a major girl. Further, for three years the informant has not whispered any word. It is only after becoming pregnant of five months, she disclosed about pregnancy and alleged the present appellant for having sexual intercourse with her. Further, for three years the informant has not whispered any word. It is only after becoming pregnant of five months, she disclosed about pregnancy and alleged the present appellant for having sexual intercourse with her. Learned counsel for the appellant has further submitted that, there is no medical evidence adduced on behalf of the prosecution to prove that informant was having sexual intercourse with the appellant nor the pregnancy of the appellant has been proved before learned trial Court. Learned counsel for the appellant has further submitted that, Haldhar Marandi (P.W.1, who is father of the victim) has stated in para-7 of his cross-examination that, after marriage of Nareshwar Hembram was finalised and fixed, his daughter has filed this case. Learned counsel for the appellant has drawn attention of this court towards para 12 of his cross-examination, where this witness (P.W.1) has stated that, on being disclosed by his daughter, that she is pregnant, she has been treated at Sadar Hospital Dhanbad, after four months of the lodging of this case, but no medical document has been shown to the police nor same has been produced before the trial Court. Learned counsel for the appellant has further drawn attention of this court towards para 15 of his cross-examination, where the father of victim has stated that after twelve months of lodging of the case, the victim has delivered a child, who died after fifteen days. Learned counsel for the appellant has further submitted that, pregnancy was not because of sexual intercourse with the appellant, as the case has been lodged on 28.03.1998 and the victim has delivered child after twelve months from lodging of the case. Normally, human reproductive system, requires nine months for the birth of a child, but in this case, victim delivered child after twelve months from lodging of F.I.R, appellant cannot be made responsible for such pregnancy of the victim, as such cannot be convicted under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted that, under such background the appellant is entitled for acquittal from the charge and conviction under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted that, Bibhisan Marandi (P.W.2, victim of the case) has stated in para-17 of her cross examination that, Nareshwar Hembram used to come to her house for three years and then she become pregnant. Learned counsel for the appellant has further submitted that, Bibhisan Marandi (P.W.2, victim of the case) has stated in para-17 of her cross examination that, Nareshwar Hembram used to come to her house for three years and then she become pregnant. She has further stated in para 23 of her cross-examination that all the family members including the father, mother and elder brother, who are residing in the same house, have knowledge about physical relationship between informant and accused/appellant. In reply to the court question, whether the relatives have any objection, the witness has not given any reply. This court is taking adverse view of the same. It seems that, this witness (P.W.2), who is victim of this case, has given consent of sexual intercourse. Such consent was given by major girl and when the appellant's marriage was finalised and fixed with some other girl, F.I.R. has been lodged to pressurize him to solemnize marriage. Further, P.W.1 has demolished the prosecution case, while deposing in para 15 of her cross examination, father of the victim (P.W.1) has stated that victim gave birth of a child after twelve months of institution of the present case. As per the statement of victim, as made out in the First Information Report, where she has alleged that, owing to pregnancy of five months and when the appellant refused to solemnize marriage, she has filed a case. But from joint reading of P. W.1, in para 15 of his cross examination and First Information Report, it is apparent that such pregnancy resulting into birth of a child, by the informant, after 12 Months of lodging First Information Report, cannot be alleged to have been committed by this appellant. Learned counsel for the appellant has further submitted that P.W.3 (Niren Chandra Dan, who is Mukhiya of the village) has proved First Information Report, written by him on the dictation of the informant, has been marked as exhibit-1. This witness has categorically stated in his cross-examination at para 5 that, he has no personal knowledge about the incident. Learned counsel for the appellant has further submitted that, because of non-examination of investigating officer the appellant has been seriously prejudiced. This witness has categorically stated in his cross-examination at para 5 that, he has no personal knowledge about the incident. Learned counsel for the appellant has further submitted that, because of non-examination of investigating officer the appellant has been seriously prejudiced. Learned Counsel for the appellant has further submitted that there is no medical evidence to substantiate allegation as made out in the First Information Report and non-examination of investigating officer has not provided opportunity to the appellant to elucidate the fact by cross-examining him, in order to prove his innocence and about false implication at the hand of the informant, who has tried to pressurize the appellant to solemnize marriage, which is not acceptable to the appellant. 11. Heard, learned counsel for the State, Mr. Tapash Roy, Additional Public Prosecutor. Learned counsel for the State, has submitted that, the impugned judgment of conviction and order of sentence is sustainable in the eyes of law, as the same has been passed by the learned trial Court, on the basis of materials available on record. Learned counsel for the State has further submitted that, victim, P.W.2, has categorically stated that, because of physical relation with the appellant, victim became pregnant and such physical relationship was established, on false promise of marriage and as such the appellant has been rightly convicted by the learned trial Court. Learned counsel for the State, has further submitted that, though the medical evidence has not been brought on record, but the First Informant Report has been exhibited, which has been proved and marked as exhibit 1 and as such impugned judgment of conviction and order sentence is based on material available on record. 12. Heard, learned counsel for the appellant, Mr. Rakesh Kumar Sinha and learned counsel for the State, Mr. 12. Heard, learned counsel for the appellant, Mr. Rakesh Kumar Sinha and learned counsel for the State, Mr. Tapash Roy, Additional Public Prosecutor and perused the records, i.e. First Information Report, framing of the charge, evidence of three witnesses, exhibits of the prosecution side and the statement of the appellant recorded under Section 313 of Cr.P.C. This Court has scrutinized the evidence of P.W.1 (Haldhar Marandi) and P.W.2 Bibhisan Marandi (victim) from perusal of evidence, this court has found that the F.I.R. has been instituted by the informant on 20.03.1998 alleging therein that, this appellant used to have consensual sexual relationship with her for last three years, on false promise of marriage, but when the victim become pregnant of five months, the appellant refused to marry with her. From the perusal of the evidence, it appears that, father of the victim, P.W.1, (Haldhar Marandi) has categorically stated that victim gave birth to a child after twelve months of institution of F.I.R. and said child had died after fifteen days only. Meaning thereby, when the case was instituted on 20.03.1998 against the appellant, either the victim was not pregnant or subsequent pregnancy of the victim, which led her to delivery after twelve months, cannot be the out come of the physical relationship of the victim with appellant, as alleged by the prosecution. This court has also perused the evidence of P.W. 2 (Bibhisan Marandi, who is victim of the case) who has categorically stated that Nareshwar Hembram has established physical relationship with her for three years ago and then she became pregnant, but this witness has admitted that this was within the knowledge of the entire family members including father, mother and brother, who were residing with her. In reply to the question of the Court, whether the relatives have any objection, she has not replied and as such, this court is of the opinion that appellant cannot be convicted, under the aforesaid background, under Section 376 of the Indian Penal Code as physical relation between two major persons was consensual. Further, as the P. W. 3, is a hearsay witness and has admitted that he has no personal knowledge about the incidence. Further, as the P. W. 3, is a hearsay witness and has admitted that he has no personal knowledge about the incidence. Under the above circumstances and on the perusal of the First Information Report, (exhibit 1), evidence of P.W.1 (Haldhar Marandi) and P.W.2 (Bibhisan Marandi), this court is of the opinion that, no case under Section 376 of the Indian Penal Code is made out against the appellant, nor any circumstance shows that this appellant has any physical relationship with the victim lady, as the delivery of child was only after 12 months of the institution of the case. In absence of any medical evidence coupled with the fact that Investigating Officer has not been examined, this Court is of the opinion that, appellant cannot be convicted under Section 376 of the Indian Penal Code, as discussed above. 13. For the aforesaid reasons, the impugned judgment of conviction and order of sentence, both dated 09.08.2004, passed by the learned Additional Sessions Judge, Fast Track Court-II, Dhanbad, in Sessions Trial No. 208 of 1999, is hereby set aside, and as such, the appellant is acquitted of the charge and conviction under Section 376 of the Indian Penal Code by extending benefit of doubt. 14. In the result, the aforesaid Criminal Appeal stands allowed. 15. The appellant, who is already on bail, is discharged from the liability of his bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.