JUDGMENT : 1. Heard, learned counsels for the appellant, Mr. Kalyan Roy assisted by Mr. Gaurang Jajedia, Advocates, and Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor, appearing for the State. 2. The present criminal appeal is directed against the judgment of conviction dated 02.09.2004 and order of sentence dated 04.09.2004, passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 257 of 1999 / 99 of 2001, whereby sole appellant, Mukesh Mondal has been convicted for the offence committed and punishable under Sections 313 and 493 of the Indian Penal Code and awarded rigorous imprisonment for six years and fine of Rs.1000/-each and in case of default in payment of fine, the appellant is directed to undergo further simple imprisonment for three months. The learned trial Court has acquitted the accused/appellant of the charge under Section 376 of the Indian Penal Code. Both the sentences are directed to run concurrently. The period already undergone by the appellant during trial shall be set off under Section 428 Cr.P.C. 3. The prosecution case, is based upon fardbeyan of P. W. 1, Hiria Kumari, recorded by Umesh Ram, Sub-Inspector of police at Karmatar Police Camp on 01.08.1998, at 10.00 A.M., wherein the informant has alleged that, her father and brother have gone to paddy field, while the informant was alone at her home, five to six months ago, at around 12.00 noon in the month of Chaitra. The accused, Mukesh Mondal, son of Basudev Mondal @ Basudeo Mondal entered into her house, caught hold her hand and when the informant tried to raise brawl, her mouth was pressed and thereafter, the accused said that if anything will happen because of their physical relationship, “I will solemnizing marriage with you”. The informant and accused established physical relationship, which continue for about 5 ½ months, resulting into pregnancy of the informant. The informant has further stated, that when she disclosed the pregnancy to appellant/accused, Mukesh Mondal, he along with his mother, Sahodari Devi took her to the father of the accused namely, Basudev Mondal @ Basudeo Mondal, who has a meat shop at Alnadih (West Bengal). Basudev Mondal @ Basudeo Mondal met a doctor, whom the informant is not knowing and the said doctor gave a medicine, which was taken by informant herself, under faith. But after taking the medicine the informant became unconscious. Basudev Mondal @ Basudeo Mondal met a doctor, whom the informant is not knowing and the said doctor gave a medicine, which was taken by informant herself, under faith. But after taking the medicine the informant became unconscious. The informant has further alleged that, when she became conscious, she felt some problem. Thereafter, the informant realised that her pregnancy has been terminated and at that time mother of Mukesh Mondal was sitting besides the informant. After two days, appellant/accused Mukesh Mondal took the informant before Dr. Madhubala at Jamtara, for treatment, paper of which is available with her. The informant has further alleged that, thereafter again the informant asked appellant, Mukesh Mondal to solemnize the marriage, then he (appellant/accused) told that, we will solemnize marriage after recovery of her health. After few days, when the informant again asked the accused to solemnize the marriage, appellant/accused refused to marry by saying that, “he will not marry her, what ever she wants to do, she can do”. Thereafter, the informant disclosed, the matter to her father, who brought her to the police camp, Karmatar, and informed the police. On the basis of the aforesaid fardbeyan, the case was registered. 4. On the basis of written report of the informant, Police instituted First Informant Report bearing Jamtara P. S. Case No. 141 of 1998, dated 01.08.1998, under Sections 376 and 313/34 of the Indian Penal Code, against three accused persons including appellant namely Mukesh Mondal, Basudev Mondal @ Basudeo Mondal and Sahodari Devi. 5. After investigation, the police submitted charge sheet vide charge sheet no. 10 of 1999, dated 15.02.1999, under Sections 376, 313 and 494/34 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 26.02.1999 and the case has been committed to the court of Sessions vide order dated 18.11.1999. The learned trial Court has framed charge against all three accused persons including appellant, namely Mukesh Mondal, Basudev Mondal @ Basudeo Mondal and Sahodari Devi on 24.06.1998, under Sections 313/34, 376 and 493 of the Indian Penal Code, to which the appellant and other accused persons have denied charge and thus, they were put under trial. 7. The prosecution has examined, altogether five witnesses and also exhibited, a number of documentary evidence to prove its case beyond all reasonable doubt. 7. The prosecution has examined, altogether five witnesses and also exhibited, a number of documentary evidence to prove its case beyond all reasonable doubt. Hiria Kumari, (informant and victim of the case) has been examined as P. W. 1, Dr. Pushpalata Tudu, (medical officer) has been examined as P. W. 2, Bhikhan Mandal and Ganpat Mandal have been examined as P. W. 3 and P. W.4 respectively, but declared hostile by the prosecution, Tahir Hussain (formal witness being Advocate clerk) has been examined as P. W. 5. who has proved the hand writing and signature of the officer in-charge on fardbeyan which has been marked as exhibit 3. The signature of the informant, Hiria Kumari, on the fardbeyan, has been proved and marked as exhibit 1. Injury report of the informant has been proved and marked as exhibit 2. Signature of officer in-charge, Umesh Ram, on the fardbeyan has been proved and marked as exhibit 3. 8. After closure of the prosecution evidence, the statement of the appellant and other accused persons have been recorded under Section 313 Cr. P. C. on 05.01.2004, wherein the appellant and other accused persons have denied the evidence against them by saying that they have falsely been implicated in this case and they will adduced defence material to show their innocence. After closure of the prosecution evidence, the statement of the appellant and other accused persons have been recorded under Section 313 Cr. P. C. on 05.01.2004, wherein the appellant and other accused persons have denied the evidence against them by saying that they have falsely been implicated in this case and they will adduced defence material to show their innocence. The defence has proved certified copy of the order dated 31.07.1996 passed in G. R. No. 7 of 1996, which has been marked as exhibit 'A', certified copy of F.I.R. of R. G. R. No.7 of 1996 has been proved and marked as exhibit 'B', certified copy of F.I.R. of G. R. No. 272 of 1998 has been proved and marked as exhibit 'C', certified copy of order dated 7.08.1998 passed in G. R. No. 272 of 1998 has been proved and marked as exhibit ‘D’, certified copy of order dated 11.02.1995 in R. G. R. No. 4 of 1995 has been proved and marked as exhibit ‘E’, certified copy of F.I.R. of R. G. R. No.4 of 1995 has been proved and marked as exhibit ‘F’, certified copy of order dated 31.07.1998 and 06.08.1998 in P.C.R. No.264 of 1998 has been proved and marked as exhibit ‘G’, certified copy of fardbeyan of G. R. P.S. Madhupur case no.14 of 1996 has been proved and marked as exhibit ‘B/1’, Certified copy of fardbeyan of Jamtara P. S. case No.126 of 1998 has been proved and marked as exhibit ‘C/1’. 9. After hearing the learned counsel for the parties and on the basis of material available on record, learned trial Court has convicted the appellant and acquitted co-accused Basudev Mondal @ Basudeo Mondal and Sahodari Devi vide the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has preferred the present criminal appeal before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsels for the appellant, Mr. Kalyan Roy, assisted by Mr. Gaurang Jajedia. 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. 10. Heard, learned counsels for the appellant, Mr. Kalyan Roy, assisted by Mr. Gaurang Jajedia. 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 as per the prosecution case, the First Information Report has been lodged on 01.08.1998, whereas the occurrence took place about 5 ½ months ago from lodging of the First Information Report. The informant has stated, in the First Information Report that while she was alone in her house about 5 ½ months ago at around 12.00 noon, the appellant entered into her house, caught hold her hand and when informant tried to raise brawl, her mouth was pressed and the informant has been assured by the appellant that, he will take risk for establishing the physical relationship by solemnizing marriage. The informant became ready and thus, sexual relationship has been established with the informant and appellant. Learned counsel has thus submitted that, such relationship was with the consent of informant, as the age of informant was more than 17 years and in the year 1998, the age of lady must be more than 16 years for consent and as such, appellant has been rightly acquitted by the learned trial Court under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the charge has not been framed under Section 420 of the Indian Penal Code, rather the charge has been framed under Sections 313/34, 376 and 493 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the medical report of Dr. Madhubala, which was never produced by the informant in court to establish that, informant was pregnant because of sexual relationship between the informant with the appellant, as such, in absence of any positive material on record the evidence of Dr. Pushpalata Tudu (P.W.2), who has proved the injury report of informant as exhibit-2, would only suggest that the termination of the pregnancy of the lady has been done. The Dr. Pushpalata Tudu has not stated, how many months ago, the pregnancy was terminated. Nor there is any materiel to suggest that, said pregnancy of the informant was due to physical relationship with appellant. Doctor has further assessed the age of lady is of 17 years. The Dr. Pushpalata Tudu has not stated, how many months ago, the pregnancy was terminated. Nor there is any materiel to suggest that, said pregnancy of the informant was due to physical relationship with appellant. Doctor has further assessed the age of lady is of 17 years. Learned counsel for the appellant has further submitted, that in absence of any medical evidence, it is impossible to say that, the pregnancy of the lady was established and proved because of sexual relationship between the informant and appellant. Learned counsel for the appellant has further submitted, that in absence of any ingredient to establish that, there was some relationship between the appellant with the informant and only on the basis of oral testimony of the victim P. W.1 (Hiria Kumari), the appellant cannot be convicted in absence of any such material against appellant. From perusal of First Information Report and the evidence of P. W.1 (Hiria Kumari), there is vital contradiction and the ingredients to constitute an offence under Sections 313 and 493 of the Indian Penal Code, are missing. The informant has never alleged that, she was deceitfully induced to believe of lawfully married with appellant for constituting offence under Section 493 of the Indian Penal Code. From perusal of the First Information Report at best, it can be alleged that, appellant committed sexual intercourse with the informant only on assurance that he will take risk of any consequence of physical relationship by solemnize marriage with informant and that may be a case under Section 420 of the Indian Penal Code, but definitely not under Section 493 of the Indian Penal Code. The informant has neither stated in the First Information Report, which is based on fardbeyan of the informant nor in her deposition as P.W. 1 that, she was deceitfully induced to believe that, informant is legally wedded wife of the appellant and as such, the basic ingredient, which is essential to prove offence under Section 493 of the Indian Penal Code is completely missing in the present case and no charge under Section 420 of the Indian Penal Code has been framed by the learned trial Court against the appellant. Learned counsel for the appellant has further submitted, that the appellant has not been medically examined as contemplated under Section 53 A Cr. Learned counsel for the appellant has further submitted, that the appellant has not been medically examined as contemplated under Section 53 A Cr. P.C. nor any medical report would suggest that informant was pregnant because of the sexual intercourse with the appellant and as such, the appellant cannot be convicted either under Section 493 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that appellant has been acquitted from the charge under Section 376 of the Indian Penal Code and his mother Sahodari Devi and father Basudev Mondal @ Basudeo Mondal have been acquitted by the learned trial Court from all the charges vide the impugned judgment. Neither the state nor the informant has preferred any appeal against those acquittal. Learned counsel for the appellant has further submitted, that Dr. Madhubala has not been examined in this case nor the investigating officer or the police officer, who has recorded the fardbeyan of the informant, Umesh Ram, has been examined in this case. Learned counsel for the appellant has further submitted, that the fardbeyan has never been exhibited and only the signature of the informant Hiria Kumari has been proved and marked as exhibit 1 and the hand writing and signature of Sub-Inspector, Umesh Ram has been proved and marked as exhibit 3, but contents of the First Information Report has never been exhibited in this case and as such, there is no legal material against the appellant to convict him under Sections 313 and 493 of the Indian Penal Code. 11. Heard, learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor. Learned State counsel has submitted, that the impugned judgment of conviction and order of sentence is well founded and based on material brought on record. Learned counsel for the State has further submitted, that victim is a rustic lady and it is the appellant who has established physical relationship with her, which continued for about 5 ½ months, resulting into pregnancy of the lady and when the lady disclosed this fact, to accused/appellant, Mukesh Mondal, then he took her to his mother and subsequently, the appellant along with his mother took the informant before his father, Basudev Mondal @ Basudeo Mondal and ultimately a medicine was administered by the doctor resulting into termination of pregnancy of the lady(informant). This fact has been corroborated by exhibit 2, proved by the doctor, Dr. This fact has been corroborated by exhibit 2, proved by the doctor, Dr. Pushpalata Tudu (P.W.2), as such, impugned judgment of conviction and order of sentence is well founded. 12. Heard, learned counsels for the appellant, Mr. Kalyan Roy, assisted by Mr. Gaurang Jajedia and Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor appearing for the State and from perusal of the records, i.e. First Information Report, framing of the charge, evidence of five prosecution witnesses and exhibits and the statement of the appellant recorded under Section 313 Cr.P.C. and the defence exhibits. On perusal of the evidence brought on record, it appears that, informant Haria Kumari, who has been examined as P. W. 1, has categorically stated, in F.I.R. that, appellant caught hold her hand and when she tried to raise brawl, her mouth has been pressed and appellant assured her that, he is ready to undertake the risk of anything resulting of sexual relationship between them, by solemnizing marriage. Thereafter, the informant did not raise any protest, meaning thereby, the informant being a major lady aged about 17 years. At that time, rape as defined under Section 375 of the Indian Penal Code, as consent or no consent of a lady of less than 16 years, but in the present case, the lady is more than 17 years, and she has not made any protest while establishing physical relationship with appellant which continued further for 5 ½ months and as such, the learned trial Court has righly acquitted the appellant of the charge under Section 376 of the Indian Penal Code. This Court has perused the First Information Report, where the informant has claimed that, after termination of the pregnancy, she was taken by this appellant before Dr. Madhubala, a lady doctor, at Jamtara and the prescription and documents are with her, but those documents have not been produced or adduced on behalf of the prosecution to establish that, informant was taken by appellant before Dr. Madhubala. The said Dr. Madhubala has also not been examined in this case. When Mukesh Mondal refused to solemnize marriage, the informant disclosed the entire fact, to her father who brought her to the police Station to lodge First Information Report. Madhubala. The said Dr. Madhubala has also not been examined in this case. When Mukesh Mondal refused to solemnize marriage, the informant disclosed the entire fact, to her father who brought her to the police Station to lodge First Information Report. From perusal of the evidence, it appears that, father of the victim, Mohar Mondal has also not been examined in this case and from perusal of the evidence of informant, it appears that informant has only come forward to support her case, but there are vital contradictions, which is apparent from perusal of the First Information Report and the evidence of the informant as P. W. 1. In the First Information Report, it has been alleged by the informant that, while her father and younger brother went to the paddy field at 12.00 noon, the appellant entered into her house but while examining as P. W.1, she says that her younger brother went to school and her father went to paddy field. From perusal of evidence, it appears that, informant has not stated anything to constitute an offence under Sections 313 and 493 of the Indian Penal Code except the oral testimony of P. W. 1 (Hiria Kumari) wherein, she has stated that, pregnancy was due to physical relationship with the appellant, Mukesh Mondal, which was terminated by medicine provided by doctor, whom she did not identify and thus, her pregnancy was terminated. Unless or until the prosecution proves the fact of pregnancy of the informant because of physical relationship with appellant, in a case under Sections 376, 313 and 493 of Indian Penal Code, which requires strict proof of the same, as the punishment is stringent, accused/appellant cannot be convicted under Sections 376, 313 and 493 of Indian Penal Code. As such, this Court is of the opinion that, there is absolutely no evidence against the appellant except the oral testimony of the victim(P.W.1) regarding physical relationship and because of the lacunae in the prosecution case, coupled with the fact that, Dr. Madhubala has not been examined in this case nor her prescription or document has been brought on record and Dr. Madhubala has not been examined in this case nor her prescription or document has been brought on record and Dr. Pushpalata Tudu(P.W.2) has categorically stated that, her pregnancy was terminated without proving such pregnancy was as a result of physical relationship of the informant with appellant as such, the appellant cannot be convicted under Sections 313 and 493 of the Indian Penal Code, in absence of examination of the investigating officer. 13. Under the aforesaid circumstances, as discussed above, this Court is of the opinion that, appellant deserves to be acquitted of the charge and conviction under Sections 313 and 493 of the Indian Penal Code by extending benefit of doubt. 14. From the aforesaid reasons, this Court is of the considered view that, the impugned judgment of conviction dated 02.09.2004 and order of sentence dated 04.09.2004, passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 257 of 1999 / 99 of 2001, is not sustainable in the eyes of law and accordingly, the same is hereby set aside. 15. The appellant, who is on bail, is discharged from the liability of his bail bonds. 16. Accordingly, the present Criminal Appeal stands allowed. 17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.