JUDGMENT : Kanwaljit Singh Ahluwalia, J. The present appeal has been filed to assail the impugned judgment dated 8.10.1990 rendered by the court of Additional Sessions Judge No. 1, Alwar in Sessions Case No. 66 of 1989. The said court vide impugned judgment convicted the appellant Yuvraj Singh for the offence under Section 376 IPC and vide a separate order of even date sentenced him to undergo seven years RI and to pay a fine of Rs. 50,000/-, in default thereof to undergo additional three years RI. Fine of Rs. 50,000/- was ordered to be paid to the prosecutrix (name withheld to protect her identity). 2. Aggrieved against his conviction and sentence, the appellant has filed the present appeal in the year 1990. The said appeal was admitted. Thereafter, appeal was listed for final hearing and disposal but none appeared on behalf of the appellant on 29.5.2014, 17.6.2016, 27.6.2016. On 7.12.2017, Dr. P.C. Jain caused appearance for the appellant and pleaded no instructions. Thus, this Court had issued non-bailable warrants. The appellant in pursuance of non-bailable warrants was taken into custody. Since the appellant is in custody, appeal was ordered to be listed today. 3. Today, the learned counsel for the parties have addressed the arguments. Before arguments are dealt with, it will be necessary to notice brief facts of the case. 4. On 27.5.1989, prosecutrix submitted written report (Exhibit-P/1), on the basis of which, a formal FIR (Exhibit-P/2) bearing No. 306/1989 was registered. The written report (Exhibit- P/1) when translated into English, reads as under:- "To Shriman Kotwal Saheb, Kotwali, Alwar. Sir, It is submitted that I (name withheld to protect her identity) is resident of Gwalior. In 1984, I had come from Gwalior to attend marriage at Alwar. Then Yuvraj Singh son of Prabhu Singh, by caste Rajput, resident of Kala Kuwa, Housing Board, 1 Ch 4, Alwar, had kept me in his house as wife. He told me to stay with him and he will marry me. I am carrying a pregnancy of three months from the loins of Yuvraj Singh. On 15.5.1989, Yuvraj Singh had performed another marriage and now after giving beating, he has turned me out of the house. He has kept me as wife for 5-6 years. He has performed bad act with me due to which I am carrying his child. I am carrying a pregnancy of three months from the loins of Yuvraj Singh. On 15.5.1989, Yuvraj Singh had performed another marriage and now after giving beating, he has turned me out of the house. He has kept me as wife for 5-6 years. He has performed bad act with me due to which I am carrying his child. He has performed another marriage and has turned me out of the house. I have been left with no option, hence, it is prayed that legal action be taken against him. I have been turned out of the house by giving beating by Yuvraj Singh and his father Prabhu Singh. They have told me to return to Gwalior. Therefore, strict legal action be taken against them. Applicant Prosecutrix." 5. After the FIR (Exhibit-P/2) was registered, appellant was charged for the offence under Section 376 IPC. The charge stated that in the year 1984, appellant had kept the prosecutrix as his wife and was having continuous sexual relationship with her, due to which prosecutrix became pregnant. It was further stated in the charge that the prosecutrix was minor. 6. The prosecution in all examined thirteen witnesses. 7. The prosecutrix appeared in the court as P.W.1 and reiterated as to what was stated by her in written report (Exhibit-P/1). In examination-in-chief she stated that abortion was carried by one Dr. Devyani. Yuvraj Singh accused was employed at Bhilwara and she had accompanied him there. She further stated that from Bhilwara, they came to Alwar, where they stayed for six to seven months and later Yuvraj Singh got service at Kherthal and she went along with him. In the court, prosecutrix stated that on 15.5.1989, Yuvraj Singh had performed another marriage and his elder sister had turned her out of the house. She further stated that when Yuvraj Singh performed second marriage, she was having pregnancy of three months and at the time of deposition in the court, she was having full grown pregnancy of nine months. She further stated that she and accused Yuvraj Singh stayed as husband and wife. 8. Mahendra Singh (P.W.2) in the court deposed that the prosecutrix was known to him and she was staying with the accused. However, this witness stated that he is aware in which capacity accused had kept the prosecutrix. 9. Heera Lal (P.W.3) had supported the prosecution. He was declared hostile to the prosecution. 8. Mahendra Singh (P.W.2) in the court deposed that the prosecutrix was known to him and she was staying with the accused. However, this witness stated that he is aware in which capacity accused had kept the prosecutrix. 9. Heera Lal (P.W.3) had supported the prosecution. He was declared hostile to the prosecution. 10. Dr. Raj Kumar Mishra (P.W.4) had medico-legally examined the prosecutrix and had found seven simple injuries on her person. This Court need notice the injuries on the person of prosecutrix, as no charge regarding beating was framed against the appellant. In examination-in-chief, this witness stated that he had carried ossification test of the prosecutrix and as per report, she was aged 22 years and thus, in the year 1984, she was about 17 years of age. In cross-examination, this witness stated that the age of the prosecutrix can be 23 years also. 11. Dr. Harish Manocha (P.W.5) in the court stated that as per Radiological examination, the prosecutrix was aged 19 years and in the year 1984, she may be about 14 years of age. 12. Lekhraj Singh (P.W.6) had partly investigated the case. 13. Vikram Singh (P.W.7) had prepared the site plan (Exhibit-P/4) of the house where the accused was residing. 14. Smt. Sushila Devi (P.W.8) in the court stated that she was married with the accused from last one year and she had seen the prosecutrix staying with the accused. 15. Ashok Yadav (P.W.9) in the court stated that accused had taken room on rent and he had disclosed that the prosecutrix was his wife. 16. Rohitash (P.W.10) stated that the accused was working in Annapurna Textile Mill. He was staying at the house of Ashok Yadav (P.W.9) and Yuvraj Singh accused was a tenant in Room No. 2 and with him, the prosecutrix was residing, as wife. 17. Harprasad (P.W.11) stated that the accused was staying in a rented room along with the prosecutrix. 18. Madan Sharma (P.W.12) stated that he was employed in Annapurna Textile Mill as a Supervisor and accused Yuvraj Singh @ Yogesh was working in the said Mill. 19. Munshi Singh (P.W.13) being SHO, Police Station Kotwali, Alwar, has proved documents on the basis of which investigation commenced. 20. 18. Madan Sharma (P.W.12) stated that he was employed in Annapurna Textile Mill as a Supervisor and accused Yuvraj Singh @ Yogesh was working in the said Mill. 19. Munshi Singh (P.W.13) being SHO, Police Station Kotwali, Alwar, has proved documents on the basis of which investigation commenced. 20. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C., 1973 The accused in his statement further stated that the prosecutrix had come to his house to stay as a domestic maid. 21. Dr. P.C. Jain, the learned counsel for the appellant has submitted that the doctor who had carried abortion has been examined. Furthermore, no DNA Test was conducted to prove the allegation that the prosecutrix became pregnant from the loins of the appellant. The learned counsel for the appellant has submitted that even if it is assumed that the prosecutrix was first wife of the appellant, and later the accused performed another marriage, it will constitute offence of Bigamy under Section 494 IPC. It is contended that the said offence is non-cognizable. The learned counsel for the appellant contended that in no case, offence under Section 376 IPC is made out. 22. The learned counsel for the appellant relied upon the case of Uday v. State of Karnataka, AIR 2003 Supreme Court 1639, wherein it is stated as under:- "It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 23. Mr. N.S. Dhakd, the learned Public Prosecutor has submitted that it has come in evidence that the prosecutrix was staying with the accused as wife. 24. To appreciate the arguments raised by the learned counsel for the parties, first this Court has to determine the age of the prosecutrix. 25. Dr. Raj Kumar Mishra (P.W.4) in examination-in-chief has stated that as per Exhibit-P/7, the prosecutrix was aged 22 years and in the year 1984, she was aged about 17 years. It has been rightly contended by the learned counsel for the appellant that the margin of two years on either side is to be granted to the report of ossification test to determine the age of the prosecutrix. It is contended that the prosecutrix was thus, more than 18 years of age, in the year 1984. 26. The prosecution was also examined by Dr. Harish Manocha (P.W.5) Radiologist. He has stated that as per Radiological examination (Exhibit-P/10), prosecutrix was aged 19 years and thus, in the year 1984, she was aged about 14 years. 27. In case, margin of two years on either side is granted to the prosecutrix for determining the age of prosecutrix, then in the year 1984, the prosecutrix was above 16 years of age. Under the unamended Indian Penal Code, age of consent was 16 years. Therefore, it is case of consensual sex. 28. 27. In case, margin of two years on either side is granted to the prosecutrix for determining the age of prosecutrix, then in the year 1984, the prosecutrix was above 16 years of age. Under the unamended Indian Penal Code, age of consent was 16 years. Therefore, it is case of consensual sex. 28. The accused and the prosecutrix were having continuous sexual relationship for a period of five years. From the year 1984 to 1989, consensual sexual relationship remained between the accused and the prosecutrix. It has come in evidence that the prosecutrix had became pregnant and abortion was carried, later she again became pregnant. Though the conduct of the accused appellant may be morally bad, but same will not fall within the ambit of Section 375 IPC which defines rape, as the prosecutrix was herself a consenting party to the sexual relationship. Therefore, taking totality of circumstances, this court shall extend benefit of doubt to the appellant, as no offence of rape is made out. 29. Consequently, the appeal is accepted. The conviction pronounced and sentence awarded upon the appellant by the trial court is set aside. He is acquitted of the charge. 30. The appellant who is in custody shall be released by the trial court if he is not involved in any other case, after complying with section 437A Cr.P.C., 1973.