JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction dated 31.03.2004 and order of sentence dated 07.04.2004, passed by learned Additional Sessions Judge, Fast Track Court- II, Chaibasa, in S.T. No. 204 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code and has been awarded rigorous imprisonment for seven years with a fine of Rs. 5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. It has also been ordered that Rs. 3000/-, out of fine of Rs. 5000/- shall be payable to the victim. 2. The prosecution case is based upon the fardbeyan of the informant, Miss Janki Hembram, aged about 25 years, recorded by Sub-inspector of police, Rajiv Ranjan Prasad, Officer-in-charge, Muffasil P.S., Chaibasa on 20.03.2003 at 16.30 Hrs. at Muffasil Police Station, where the informant has stated, that yesterday on 19.03.2003 (Tuesday), the informant along with her sister-in-law, Rai Muni Hembram went to Kuju Gudri Market at 4.00 P.M. situated at a distance of 1- 1 ½ km from their house and thereafter she went along with one Sushil Kandeyang, known to her, who has promised her to marry with her, as he was unmarried. The informant along with Sushil Kandeyang (appellant) left Kuju Gudri Market for Tangrai, which is under the Muffasil police station, situated at a distance of 2 or 2 ½ km West. One Jitendra Banra was also accompanying them, who left them to attend the call of the nature and the informant along with Sushil Kandeyang (appellant) proceeded towards village Tangrai and when they reached near the banyan tree at around 9.00 P.M., Sushil Kandeyang established sexual intercourse with the informant assuring the informant that, he will take her to the house of his maternal uncle but Sushil Kandeyang, after establishing physical relationship, left her on the pretext of attending call of the nature. After waiting for some time, the informant being alone, went to village Tangrai herself, where one person brought her to the house of Munda Vijay Singh, where the informant disclosed about the incident but Munda Vijay Singh told her that Sushil Kandeyang is a married person. Informant stayed for whole night in the house of Munda Vijay Singh, as it was rainy night. In the morning Munda Vijay Singh, brought her to her house. Informant stayed for whole night in the house of Munda Vijay Singh, as it was rainy night. In the morning Munda Vijay Singh, brought her to her house. The informant has further stated that, she was familiar and known to Sushil Kandeyang for last one year, and they have met at Kuju Bazar, where Sushil Kandeyang has said that, he is working in Tata TISCO but today, the informant could know that, he is a married person. The informant has alleged that by giving false pretext of marriage physical relationship has been established by Sushil Kandeyang (appellant). 3. On the basis of the fardbeyan of the informant, police has registered Muffasil P.S. Case No. 84 of 2003, dated 20.03.2003, under Sections 493, 420 and 376 of the Indian Penal Code. 4. After investigation, the police has submitted charge sheet vide charge sheet no. 98 of 2003, dated 31.08.2003, under Sections 493/420/376 of the Indian Penal Code against the appellant. 5. The cognizance of the offence has been taken vide order dated 03.09.2003 and the case has been committed to the Court of Sessions vide order dated 30.09.2003. 6. The charge has been framed against the appellant on 08.12.2003, under Section 376 of the Indian Penal Code, to which the appellant has pleaded his innocence and thus, he was put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and also exhibited a number of documents. Tarun Hembrom, father of the victim, has been examined as P.W. 1, Kuju Mai Kui, mother of the victim has been examined as P.W. 2, Janki Hembrom, victim of the case has been examined as P.W. 3, Vijay Singh Kudada has been examined as P.W. 4, Awdhesh Kumar Pandey, Investigating Officer has been examined as P.W. 5 and Dr. Sujata Jha, medical officer, who conducted the medical examination of the victim has been examined as P.W. 6. Sujata Jha, medical officer, who conducted the medical examination of the victim has been examined as P.W. 6. The Signature of Janki Hembrom on the fardbeyan, has been proved and marked as Exhibit- 1, signature of Subran Manki on the fardbeyan has been proved and marked as Exhibit- 1/1, fardbeyan has been proved and marked as Exhibit- 2, signature of Rajeev Ranjan Prasad on fardbeyan has been proved and marked as Exhibit- 2/1, formal F.I.R has been proved and marked as Exhibit- 3, medical requisition issued by police has been proved and marked as Exhibit- 4 and the medical report of the victim has been proved and marked as Exhibit- 5. 8. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 24.03.2004, where the accused/appellant has denied the entire occurrence and has stated that he is innocent and has no relation with the lady but the defence has not examined any witness or adduced any documentary evidence. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence against the appellant. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the 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, Ms. Madhulika Das Gupta assisted by Mrs. J. S. Mazumdar, Advocates. Learned counsel for the appellant, Madhulika Das Gupta 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 from perusal of the First Information Report, no case under Section 376 of the Indian Penal Code is made out as it appears that victim Janki Hembrom is a major and matured girl, aged about 25 years, who is a consenting party as appears from the First Information Report. Learned counsel for the appellant has further submitted that sister-in-law of the informant, Rai Muni Hembrom and Jitendra Banra have not been examined in this case and as such, the prosecution has miserably failed to prove that informant was ever with the appellant while going to village Tangrai. Learned counsel for the appellant has further submitted that sister-in-law of the informant, Rai Muni Hembrom and Jitendra Banra have not been examined in this case and as such, the prosecution has miserably failed to prove that informant was ever with the appellant while going to village Tangrai. Learned counsel for the appellant has drawn the attention of this Court towards, the evidence of P.W. 1 Tarun Hembrom, who is father of the victim. He is a hearsay witness and has not identified the accused in the dock. Learned counsel for the appellant has further submitted that P.W. 1 has not alleged a single word against the appellant. Learned counsel for the appellant Ms. Madhulika Das Gupta has referred the evidence of P.W. 2 Kuju Mai Kui, mother of the victim, who is also a hearsay witness and has not identified the appellant in the dock, rather she has stated that, her daughter has disclosed about the occurrence to her. Learned counsel for the appellant has drawn attention of this Court towards evidence of victim P.W. 3 Janki Hembrom, who has proved her signature on the fardbeyan as Exhibit- 1 and has categorically stated in her fardbeyan that on the false pretext of marriage, Sushil Kandeyang (appellant), who is known to her for last one year has established sexual intercourse but during deposition in the Court, she has alleged that, Sushil Kandeyang has committed rape against her will and as such, there is vital contradictions in her statement with respect to the allegation made by her. Learned counsel for the appellant has further submitted that except the statement of the lady, there is nothing on record to suggest that appellant was along with lady and has committed rape, rather as per the fardbeyan of the lady, the relationship established between the informant and appellant was a consensual relationship. Learned counsel for the appellant has further drawn the attention of this Court towards the evidence of Dr. Sujata Jha, who has been examined as P.W. 6. The doctor has not found any injury or semen or foreign hair during the medical examination, rather the doctor has assessed the age of the victim as more than 20 years and the doctor has categorically stated, that in spite of a negative finding, there is possibility of rape on account of rupture of hymen. The doctor has not found any injury or semen or foreign hair during the medical examination, rather the doctor has assessed the age of the victim as more than 20 years and the doctor has categorically stated, that in spite of a negative finding, there is possibility of rape on account of rupture of hymen. The doctor could not distinguish between a rape and an intercourse. Learned counsel for the appellant has relied upon the testimony of the doctor, who has categorically stated that victim is a major lady and as per her fardbeyan, there was a consensual sexual relationship established between the parties, as she has not resisted the appellant and the doctor has not found any injury on the person of the victim. Vijay Singh Kudada (P.W. 4) has been declared hostile by the prosecution. Awdhesh Kumar Pandey (P.W. 5) is the investigating officer of the case and has proved the fardbeyan recorded by the then officer-in-charge Rajiv Ranjan Prasad in his hand-writing and signature which has been proved and marked as Exhibit- 2. This witness has admitted during cross-examination that no information was reported in his police station with respect to missing of the victim on 19.08.2003, nor he has investigated the matter with respect to missing of the informant on 19.08.2003. On the above submissions, learned counsel for the appellant Ms. Madhulika Das Gupta has submitted that the appellant cannot be convicted under Section 376 of the Indian Penal Code as no charge has been framed against the appellant under Section 420 of the Indian Penal code and as such, the appellant deserves to be acquitted of the charge and conviction under Section 376 of the Indian Penal Code. 11. Heard, learned counsel for the State, Mr. Ashok Kumar No. 2, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned trial court, after considering the evidence of P.W. 3, Janki Hembrom, who has alleged that she has been raped by the appellant, has rightly convicted the appellant under Section 376 of the Indian Penal Code. Learned counsel for the State has further submitted that the doctor has not disputed the rape or intercourse committed with the lady and as, such, the learned trial court has rightly convicted the appellant. 12. Learned counsel for the State has further submitted that the doctor has not disputed the rape or intercourse committed with the lady and as, such, the learned trial court has rightly convicted the appellant. 12. Heard, learned counsels for the appellant, Ms. Madhulika Das Gupta assisted by Mrs. J. S. Mazumdar, Advocates and learned counsel for the State, Mr. Ashok Kumar No. 2, Additional Public Prosecutor and perused the evidence brought on record i.e. the First Information Report, framing of charge, evidence of six prosecution witnesses, five exhibits, statement of the appellant under Section 313 Cr.P.C. and the impugned judgment. This Court has scrutinized the evidence on record, from which, it appears that the prosecution witnesses Tarun Hembrom (P.W. 1) and Kuju Mai Kui (P.W. 2) are father and mother of the victim and also they are hearsay witnesses. They have not alleged a single word against the appellant nor they have identified the appellant present in the dock. Vijay Singh Kudada (P.W. 4) has been declared hostile by the prosecution. Awdhesh Kumar Pandey (P.W. 5) investigating officer of the case, has categorically stated that he has not investigated the matter regarding the missing of the victim on 19.08.2003. Dr. Sujata Jha, who has conducted the medical examination of the victim has been examined as P.W. 6 and has not found any mark of injury on the person of the victim nor any foreign hair or semen was found and as such, she has not given a positive evidence with respect to commission of the offence. She has categorically stated during cross-examination that she cannot differentiate between rape and intercourse and as such, this Court is of the opinion that even if intercourse has been establisted, that cannot be construed to be rape, in the background that the victim is a major girl, aged about 25 years (claimed herself in the fardbeyan) and doctor has also found her to be of more than 20 years. Apart from this, from perusal of the fardbeyan, it seems that if any sexual intercourse has been established, it was consensual between the parties. The prosecution has miserably failed to prove its case because of non-examination of sister-in-law Rai Muni Hembram and Jitendra Banra to establish that informant was with the appellant. Apart from this, from perusal of the fardbeyan, it seems that if any sexual intercourse has been established, it was consensual between the parties. The prosecution has miserably failed to prove its case because of non-examination of sister-in-law Rai Muni Hembram and Jitendra Banra to establish that informant was with the appellant. In absence of any positive evidence, this Court is of the opinion that conviction of the appellant under Section 376 of the Indian Penal Code is not sustainable in the eyes of law and as such, appellant is acquitted of the charge and conviction under Section 376 of the Indian Penal Code. 13. In the result, the impugned judgment of conviction dated 31.03.2004 and order of sentence dated 07.04.2004, passed by learned Additional Sessions Judge, Fast Track Court- II, Chaibasa, in S.T. No. 204 of 2003, in connection with Muffasil P.S. Case No. 84 of 2003, corresponding to G. R. No. 325 of 2003, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 376 of the Indian Penal Code by giving benefit of doubt. 14. Accordingly, the present criminal appeal is allowed. 15. The appellant, who is on bail, is discharged from the liability of his bail bond. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal allowed.