JUDGMENT : Heard learned counsel for the appellant and learned Addl. P.P. for the State assisted by the learned counsel for the informant. 2. The appellant has preferred this appeal being aggrieved by the Judgment of conviction dated 24.02.2006 and Order of sentence dated 25.02.2006 passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 246 of 2004 whereby and where under, the learned court below has held the appellant guilty for the offence punishable under section 376 (1) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for seven years and to pay fine with default clause. 3. The case of the prosecution in brief is that in the year 2002, the appellant-accused person- Ravi Singh enticed the prosecutrix by promising to marry her and used to commit rape upon the prosecutrix whenever her family members were remaining absent from her house. When the prosecutrix was insisting for marriage, the appellant-accused person used to avoid the same on one pretext or the other. In the meanwhile, the prosecutrix became pregnant for two months but the appellant-accused person caused the prosecutrix miscarriage by administering medicine to her but continued sexual relationship with the prosecutrix by promising to marry her. Ultimately when again the prosecutrix insisted for marriage, the appellant-accused person refused to marry her and threatened the prosecutrix to kill if she discloses the fact to anyone. Hence, out of fear, the prosecutrix could not approach the police prior to the institution of the case. On the basis of the written report submitted by the prosecutrix, police registered Bisunpur P.S. Case No. 22 of 2004 and took up investigation of the case. 4. After completion of the investigation, police submitted report. Upon commitment of the case to the court of sessions, charges for the offences punishable under section 376 and 417 of the Indian Penal Code were framed against the appellant-accused person. Upon the appellant-accused person pleading not guilty to the charges, he was put to trial. 5. In support of its case, the prosecution has altogether examined 9 witnesses including the Doctor and the Investigating Officer. No evidence however was adduced by the defence. Out of the 9 witnesses examined by the prosecution, P.W.6 is the prosecutrix herself. She has stated that the occurrence took place in the year 2002. 5. In support of its case, the prosecution has altogether examined 9 witnesses including the Doctor and the Investigating Officer. No evidence however was adduced by the defence. Out of the 9 witnesses examined by the prosecution, P.W.6 is the prosecutrix herself. She has stated that the occurrence took place in the year 2002. When no one else was in her house, the appellant-accused person forcibly committed rape upon her. The prosecutrix wanted to marry but the appellant-accused person did not allow her to marry. The appellant-accused person promised to marry the prosecutrix. Because of the rape, the prosecutrix became pregnant for two months. Thereafter the appellant-accused person administered medicine to the prosecutrix resulting in her miscarriage. After miscarriage also the appellant-accused person continued physical relationship with the prosecutrix by terrorizing her and by promising to marry her. The appellant-accused person used to reside outside and was taking the prosecutrix with him but he left the prosecutrix on the way. Thereafter the prosecutrix submitted written report in the police station. She identified her signature on her written report which was marked Ext. 1. She was sent for medical examination to Bisunpur Hospital. She identified the appellant-accused person in court. In her cross-examination, the P.W.6 has stated that she did not disclose the fact of commission of rape upon her by the appellant-accused person out of fear as the appellant-accused person has threatened that he will kill her. She has instituted the case as the appellant-accused person did not marry her and she would not have instituted the case, had the appellant-accused person married her. Prior to institution of the case, the prosecutrix did not disclose the fact of rape upon her to her parents. 6. P.W.1 – Bandhu Kherwar is the brother of the prosecutrix. He deposed that the appellant-accused person enticed away the prosecutrix in the year 2002. Later on after collecting information he brought the prosecutrix to her house. The prosecutrix disclosed that the appellant-accused person took her with a promise to marry her. He identified the appellant-accused person in court. In his cross-examination, the P.W.1 has stated that the house of the appellant-accused person is adjacent to the house of the P.W.1. In the year 2002, when the P.W.1 caught the prosecutrix, he did not institute any case but case was instituted two years thereafter. He identified the appellant-accused person in court. In his cross-examination, the P.W.1 has stated that the house of the appellant-accused person is adjacent to the house of the P.W.1. In the year 2002, when the P.W.1 caught the prosecutrix, he did not institute any case but case was instituted two years thereafter. In paragraph no.5 of his cross-examination, he has stated that the prosecutrix is not living in the village for the last 3-4 months and the P.W.1 came to know that she has gone to Delhi. However, the prosecutrix did not intimate the P.W.1 before going to Delhi. In paragraph no.8 of his cross-examination, he has stated that there is a possibility that both the appellant and the prosecutrix have established relationship out of their own volition. After the occurrence, the P.W.1 imposed a condition upon the appellant-accused person that if the appellant-accused person transfers his entire land to the prosecutrix then he will be allowed to marry the prosecutrix but the parents of the appellant-accused person did not agree to transfer the land. P.W.1 could not say, where her sister was in Delhi. 7. P.W.2 – Situ Kherwar is the father of the prosecutrix. He has stated that the prosecutrix was in relationship with the appellant-accused person two years prior to the occurrence. The P.W.2 came to know about the said relationship, only when the prosecutrix left the house of the P.W.2 and went with the appellant-accused person. On enquiry, the P.W.2 came to know that the prosecutrix is in Chamru village and the P.W.1 went and brought the prosecutrix to their house. The prosecutrix did not tell anything to the P.W.2. He was declared hostile on the point of the prosecutrix not telling anything to the P.W.2 about the occurrence and even though when the prosecution put leading questions to him, he did not support the case of the prosecution. In his cross-examination, he has stated that now also her daughter is absconding and she has not intimated the P.W.2 before absconding. She has absconded clandestinely. P.W.2 cannot say, where the prosecutrix was at the time of his deposing in court. He cannot say, who has taken away the prosecutrix. He did not make any effort to trace the prosecutrix. 8. She has absconded clandestinely. P.W.2 cannot say, where the prosecutrix was at the time of his deposing in court. He cannot say, who has taken away the prosecutrix. He did not make any effort to trace the prosecutrix. 8. P.W.3 – Arti Devi, P.W.4 – Matlu Singh, P.W.5 – Ganesh Singh and P.W.8 – Ayta Bhagat @ Ayta Oraon all have stated that they do not know anything about the case and were declared hostile. Even though the prosecution put leading questions to them, they did not support the case of the prosecution. In her cross-examination, the P.W.3 has stated that nobody has enquired anything from her about the case. 9. P.W.9 – Dr. Smriti examined the prosecutrix on 18.06.2004 and found the following:- There was no sign of recent rape. Vaginal orifices were lax. Three fingers easily intrude. Hymen was lost. So victim was habitually related to sexual intercourse. There was no sign of abortion. According to history, six months back abortion was done. Sign may vanish after three days. So abortion is not concluded. Victims’ age was more than 16 years. There was union of epiphyses with the shape of respective metacarpus and proximal phalanges. On being proved by her, the medical report prepared by her was marked Ext.3. 10. P.W.7 – Turta Khalkho is the Investigating Officer of the case. He has stated that on 05.06.2004, he was entrusted with the investigation of the case. He recorded the statement of the prosecutrix in the police station. He also recorded the statement of the witnesses. He described the place of occurrence with its boundaries. He sent the prosecutrix for medical test in a hospital. The endorsement on the F.I.R. has been marked as Ext. 1/1 and the formal F.I.R. was marked Ext. 2. In his cross-examination, the P.W.7 has stated that during investigation, he collected admit card and registration card of the prosecutrix from her school which was annexed with the case diary. He did not record the statement of the appellant-accused person. 11. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused person regarding the circumstances appearing in evidence against him was recorded which the appellant-accused person denied. 12. Learned trial court after considering the evidence in record both, oral and documentary, convicted and sentenced the appellant-accused person as already indicated above. 13. Mr. 11. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused person regarding the circumstances appearing in evidence against him was recorded which the appellant-accused person denied. 12. Learned trial court after considering the evidence in record both, oral and documentary, convicted and sentenced the appellant-accused person as already indicated above. 13. Mr. Raunak Sahay, learned counsel for the appellant submits that the learned court below failed to appreciate the evidence in record in its proper perspective. It is further submitted that the learned court below erred by ignoring the fact that there was consensual sexual relationship between the appellant-accused person and the prosecutrix and the prosecutrix was a major at the time of occurrence as is evident from the question no.1 put to him in his statement recorded under Section 313 Cr.P.C. wherein the first question put to him was that the prosecutrix was aged 19 years and against her will the appellant-accused person committed rape upon her. It is further submitted by the learned counsel for the appellant that save and except the prosecutrix and the brother being the P.W.1 the rest of the material witnesses have not supported the case of the prosecution and were declared hostile and the learned trial court erred by failing to appreciate this material fact. It is further submitted by the learned counsel for the appellant that the report of the P.W.9- being the doctor, is against the case of the prosecution as the doctor did not find any recent sign of rape upon medical examination of the prosecutrix. Learned counsel for the appellant as well as learned counsel for the informant drawing attention of this Court to Annexure-2 of the interlocutory application no.8246 of 2018 submits that the prosecutrix has married the appellant-accused person during pendency of this appeal and Annexure-2 which is the copy of the Aadhar Card of the prosecutrix which shows that the appellant-accused person is her husband and it is further submitted that the appellant-accused person and the prosecutrix have been blessed with three daughters out of the wedlock. Learned counsel for the appellant further submits that as the evidence suggests that the appellant-accused person was serious about his promise of marrying the prosecutrix and which is even admitted by the P.W.1 and the subsequent conduct of the appellant-accused person goes to show that the appellant-accused person at no point of time made any false promise of marrying the prosecutrix. Hence, it is submitted that no offence is made out against the appellant-accused person. In this respect, learned counsel for the appellant relies upon the judgment of Hon’ble Supreme Court of India in the case of Deelip Singh @ Dilip Kumar vs. State of Bihar reported in 2005 1 SCC 88 wherein the Hon’ble Supreme Court has held as under :- “29. Having discussed the legal aspects bearing on the interpretation of the term “consent” with special reference to Section 90 IPC, we must now turn our attention to the factual aspects of the case related to consent. 30. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.” (Emphasis Supplied) It is further submitted by the learned counsel for the appellant that as the promise of the appellant-accused person was not false and the promise has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, hence, no offence is made out against the appellant-accused person and in this respect, learned counsel for the appellant has relied upon the judgment of Hon’ble Supreme Court in the case of Deepak Gulati vs. State of Haryana reported in 2013 7 SCC 675 wherein the Hon’ble Supreme Court has held as under:- “19. This Court considered the issue involved herein at length in Uday v. State of Karnataka, Deelip Singh v. State of Bihar, Yedla Srinivasa Rao v. State of A.P. and Pradeep Kumar v. State of Bihar and came to the conclusion that in the event that the accused’s promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.” (Emphasis Supplied) Further learned counsel for the appellant in this respect has also relied upon the Judgment of Hon’ble Supreme Court in the case of Uday vs. State of Karnataka reported in AIR 2003 SC 1639 wherein the Hon’ble Supreme Court has held as under :- “21. 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. 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 not 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.” (Emphasis Supplied) It is also submitted that the prosecution has failed to prove the charge for the offence punishable under Section 376 of the Indian Penal Code beyond reasonable doubt, hence, the appellant-accused person be acquitted at least by giving him the benefit of doubt. 14. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the prosecutrix has categorically stated about the commission of rape upon her and there is nothing to disbelieve the testimony of the prosecutrix and her sole testimony is corroborated by the testimony of the P.W.1, which is sufficient to establish the charge for the offence punishable under Section 376 of the Indian Penal Code beyond reasonable doubt. Hence, it is submitted that the learned court below having rightly convicted and sentenced the appellant-accused person, this appeal being without any merit be dismissed. 15. Hence, it is submitted that the learned court below having rightly convicted and sentenced the appellant-accused person, this appeal being without any merit be dismissed. 15. Having heard the submission made at the Bar and after carefully going through the record, it is evident that there is no admissible evidence in record to suggest that the prosecutrix was less than 18 years of age on the date of alleged occurrence. The P.W.1 has categorically stated that he imposed a condition to the appellant-accused person that the appellant-accused person will be permitted to marry the prosecutrix only after the appellant-accused person transfers the ownership of his entire landed property to the name of the prosecutrix but the same could not materialize as the parents of the appellant-accused person did not agree for transferring the ownership of the entire landed property of the appellant-accused person to the prosecutrix which in the circumstances appears to be a joint property of the appellant-accused person and his parents. Under such circumstances, this Court is of the considered opinion that the evidence in the record is insufficient to establish that the appellant-accused person had no intention to marry the prosecutrix at the time of first sexual intercourse between them or at the time of any subsequent sexual intercourse which admittedly continued for several years. Further there is evidence in record that the prosecutrix went away with the appellant-accused person and this evidence comes from the mouth of none other than the father of the prosecutrix himself and there is nothing in record to disbelieve this portion of the testimony of the P.W.3 who is the father of the prosecutrix. The contention of the prosecutrix that out of fear she did not disclose about the commission of rape by the appellant-accused person before institution of the case is contradicted by the testimony of material witnesses who have categorically stated that after the appellant-accused person enticed away the prosecutrix, the P.W.1 who is the brother of the prosecutrix brought back the prosecutrix to her house and even then for a period of two years, they did not approach the police also is a circumstance which indicates consensual sexual relationship between the appellant and the prosecutrix. Thus as already indicated above, the evidence in record is inadequate to establish that the appellant-accused person ever made any false promise of marriage. 16. Thus as already indicated above, the evidence in record is inadequate to establish that the appellant-accused person ever made any false promise of marriage. 16. In view of the discussions made above this Court is of the considered opinion that the prosecution has failed to establish the ingredients of the offence punishable under Section 376 of the Indian Penal Code against the appellant-accused person beyond reasonable doubt and this is a fit case where the appellant-accused person be acquitted of the charge by giving him the benefit of doubt. Accordingly, the appellant-accused person Ravi Singh is acquitted of the charge and the Judgment of conviction dated 24.02.2006 and Order of sentence dated 25.02.2006 passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 246 of 2004, is set aside. 17. Perusal of the record reveals that the appellant is in custody. In view of his acquittal, he is directed to be released from custody forthwith unless his detention is required in connection with any other case. 18. Let a copy of this Judgment be sent to the learned court below forthwith. 19. In the result, this appeal is allowed.