JUDGMENT : 1. Challenge is to the judgment and order dated 2872016 rendered by the learned Additional Sessions Judge, Akola in Sessions Trial 144/2013, by and under which accused Sayyad Ali Sayyad Noor is convicted for offence punishable under Section 376(1) of the Indian Penal Code (“IPC” for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.25,000/- and is further convicted for offence punishable under Section 417 of the IPC and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.10,000/- and accused Shahidkhan and Ibbu @ Sayyad Ibrahim are convicted for offence punishable under Section 109 read with Section 376 of the IPC and are sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.5,000/- each. Criminal Appeal 324/2016 is preferred by accused Sayyad Ali and Ibbu @ Sayyad Ibrahim and Criminal Appeal 310/2016 is preferred by accused Shahidkhan. Both the appeals are taken up for final hearing and decided by this common judgment. 2. Heard Shri A.K. Bhangde, learned Counsel for the appellants in Criminal Appeal 324/2016, Shri R.M. Daga, learned Counsel for the appellant in Criminal Appeal 310/2016 and Shri A.V. Palshikar, learned Additional Public Prosecutor for the respondent-State. 3. The gist of the prosecution case is thus: Accused Shahidkhan was residing near the residence of the sister of the prosecutrix. Accused Sayyad Ali and accused Ibbu used to visit the house of accused Shahidkhan. The prosecutrix was acquainted with one Priya who was also residing near the house of the sister of the prosecutrix. Priya conveyed to the prosecutrix that accused Sayyad Ali has expressed love for the prosecutrix and is desirous of talking with the prosecutrix. She handed over a mobile phone to the prosecutrix. The prosecutrix and accused Sayyad Ali used to converse telephonically. The prosecutrix and accused Sayyad Ali then started meeting. Sayyad Ali started to visit the house of the prosecutrix at Morkewadi, Akola. Sayyad Ali took the prosecutrix to Naygaon to the house of accused Ibbu @ Sayyad Ibrahim. Accused Shahidkhan and Ibbu locked the door of the house from outside and went away, leaving the prosecutrix and Sayyad Ali alone in the room. Sayyad Ali sought sexual favour from the prosecutrix, who refused to oblige. Sayyad Ali took the prosecutrix to Naygaon to the house of accused Ibbu @ Sayyad Ibrahim. Accused Shahidkhan and Ibbu locked the door of the house from outside and went away, leaving the prosecutrix and Sayyad Ali alone in the room. Sayyad Ali sought sexual favour from the prosecutrix, who refused to oblige. Sayyad Ali, however, induced the prosecutrix to have sex promising that he will marry her and will convince his parents to consent. Thereafter, Sayyad Ali established sexual contact with the prosecutrix on several occasions. He did not marry the prosecutrix, who lodged report at Police Station Akola File, Akola. On the basis of the said report (Exhibit 38), offence punishable under Sections 417, 420, 376, 109 of the and Section 3(1) (xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act, 1989 (“Atrocities Act” for short) was registered. Investigation was handed over to SDPO Amarsing Jadhav. The caste certificate of the prosecutrix was collected, she was referred for medical examination, accused Sayyad Ali was medically examined, statements of witnesses were recorded and on completion of the investigation chargesheet was submitted in the Court of Judicial Magistrate First Class (Court 2), Akola, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 31) under Sections 376, 109 and 417 of the IPC and Section 3(1)(xii) of the Atrocities Act. The accused abjured guilt and claimed to be tried. The defence is of total denial. Accused Sayyad Ali stated in the statement under Section 313 of the Criminal Procedure Code that he and the prosecutrix were in love. He, however, denied having promised the prosecutrix marriage. He further denied having established sexual contact with the prosecutrix. 4. The prosecution examined the prosecutrix (P.W.1) and the Investigating Officer Amarsing Jadhav (P.W.2) and relied inter alia on report (Exhibit 38), printed first information report (Exhibit 39), caste certificate of the prosecutrix (Exhibit 48), medical examination reports of accused Sayyad Ali (Exhibit 55 and Exhibit 56) and the medical examination report of prosecutrix (Exhibit 41). The defence did not examine any witness. 5. The only material witness from the perspective of the prosecution, is the prosecutrix herself who is examined as PW 1. The only other witness examined is the Investigating Officer. The medical examination report of the prosecutrix (Exhibit 41) is admitted. PW 1 was medically examined on 3.4.2013. The defence did not examine any witness. 5. The only material witness from the perspective of the prosecution, is the prosecutrix herself who is examined as PW 1. The only other witness examined is the Investigating Officer. The medical examination report of the prosecutrix (Exhibit 41) is admitted. PW 1 was medically examined on 3.4.2013. Her hymen was ruptured and vagina admitted two fingers easily. The medical opinion is that the prosecutrix may be accustomed to the sexual intercourse. 6. PW 1 has deposed that accused Shahidkhan was residing near the house of her sister. Accused Sayyad Ali and Ibbu alias Ibrahim used to visit accused Shahidkhan. PW 1 has proved the First Information Report Exh. 38 and the printed First Information Report Exh. 39. She states that she belongs to the Matang community and the accused are Muslims. PW 1 states that one Priya who was also residing near the house of her sister conveyed to the prosecutrix that accused Sayyad Ali loved her and wished to talk with her. Priya handed over a mobile phone to the prosecutrix. The prosecutrix and accused Sayyad Ali used to converse telephonically, they used to meet and Sayyad Ali started visiting the house of the prosecutrix. The prosecutrix states that Sayyad Ali took her to Naygaon to the house of accused 3 Sayyad Ibrahim. Accused 2 and 3 locked the door from outside and went away. Accused Sayyad Ali forcibly established sexual relations with the prosecutrix and told her that nothing would happen if sexual relationship is established and that he would marry the prosecutrix. Accused Sayyad Ali established sexual relations with the prosecutrix 2 to 4 time, however, he did not perform marriage and hence the prosecutrix lodged report, is the deposition. In the cross examination, it is extracted that the prosecutrix met Sayyad Ali in 2012 during Ganesh festival. She met the accused on several occasions, which meetings were concealed from her parents. It is elicited that she and accused Sayyad Ali were in love. It is elicited that many times she accompanied accused Sayyad Ali to view movie and to stroll in the garden. The prosecutrix and accused Sayyad Ali used to meet at night hours. She used to leave her house after her parents retired to bed. It is elicited that till 31.3.2013, the parents of the prosecutrix were not aware of her relationship with Sayyad Ali. The prosecutrix and accused Sayyad Ali used to meet at night hours. She used to leave her house after her parents retired to bed. It is elicited that till 31.3.2013, the parents of the prosecutrix were not aware of her relationship with Sayyad Ali. It is elicited that the prosecutrix was aware that girls from Matang community never marry Muslim boys. Several suggestions were given to the prosecutrix to the effect that Sayyad Ali did not establish sexual contact, which suggestions are denied. She admits that she saw accused 2 and 3 for the first time on the day of the incident. She states that the accused were shown to her by the police and she identified them. 7. The learned Sessions Judge observes thus in paragraph 21 of the judgment and order impugned: “As the M L C Report [Ex. 41] and spot panchnamae [Ex.42,43, 44 & 45] are admitted by the defence, it can be inferred that the defence has admitted that there were sexual relations between prosecutrix and accused No.1 Syd. Ali. This inference can also be drawn from the cross-examination conducted by Ld. Defence counsel. During cross-examination, Ld. Defence counsel brought on record certain admissions from prosecutrix that she was having love affair with accused No. 1 Syd. Ali, on several times, she accompanied him to see movie and used to wonder with him in gardens and that they used to meet at night hours”. The inference drawn by the learned Sessions Judge from the admission of medico legal report Exhibit 41 and spot panchanamas Exhibits 42, 43 and 45 that the defence has admitted sexual relationship between the prosecutrix and accused Sayyad Ali, is inexplicable. The contents of the spot panchanamas are treated, by the learned Sessions Judge as substantive evidence. The admission of the medico legal report, which records that the prosecutrix was habituated to sexual intercourse, cannot by any stretch of imagination be an admission of sexual relationship between the prosecutrix and accused Sayyad Ali. The contents of the spot panchanamas are treated, by the learned Sessions Judge as substantive evidence. The admission of the medico legal report, which records that the prosecutrix was habituated to sexual intercourse, cannot by any stretch of imagination be an admission of sexual relationship between the prosecutrix and accused Sayyad Ali. The learned Sessions Judge has invoked section 114A of the Indian Evidence Act, which reads thus: “Section 114A – Presumption as to absence of consent in certain prosecution were rape – In a prosecution for rape under clause (a), (b), (c), (d), (e), (f), (g), (h), (I), (j), (k), (l), (m) and (n) of sub section (2) of section 376 of Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been rape and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. Explanation – In this section, “Sexual Intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code'. The learned Sessions Judge observes thus: “37. Now, by taking recourse of Section 114A of Indian Evidence Act, the court can very well presume that there was absence of consent when the accused Syed Ali had established sexual relations with the prosecutrix at first instance. It is the specific testimony of the prosecutrix that she did not consent and her consent was obtained deceitfully. To rebut this presumption, the accused person has not adduced any cogent or reliable evidence nor put forth any reliable explanation. Instead, he falsely given his statement before this court that he had not established sexual relations with the prosecutrix. With the help of ruling (cited supra), this court can very well rely on the sole testimony of prosecutrix that she was raped by accused Syed Ali under the false promise of marriage as he was never intending to marry with her. As such, considering the above said facts and circumstances, I am of the opinion that offences punishable under Section 376 and 417 of I P C are duly proved against the accused no.1 Syed Ali beyond all reasonable doubts. Hence, I answer point nos. 1 and 2 accordingly”. As such, considering the above said facts and circumstances, I am of the opinion that offences punishable under Section 376 and 417 of I P C are duly proved against the accused no.1 Syed Ali beyond all reasonable doubts. Hence, I answer point nos. 1 and 2 accordingly”. The learned Sessions Judge, was clearly in error in taking the aid of statutory presumption under section 114 of the Indian Evidence Act. The accused was not charged under section 372 (2) (a), or (b), or (c), or (d), or (e), or (f), or (g), or (h), or (i), or (j), or (k), or (l), or (m), or (n). 8. It is irrefutable that the prosecutrix and accused Sayyad Ali were in love. According to the prosecutrix, the first sexual contact was established at Naygaon in the house of accused Sayyad Ibrahim. No date, month or year is forthcoming in the evidence. However, it is elicited in the cross examination that the prosecutrix and accused Sayyad Ali met in Ganesh festival itself in the year 2012. The prosecutrix was aware that the girls from Matang community do not marry Muslims. She has admitted to have been in love with accused Sayyad Ali. She admits to meeting Sayyad Ali at night hours after her parents retired to bed. She admits to have accompanied Sayyad Ali to view movies and to stroll in the garden. The Apex Court observes thus in Uday Vs. State of Karnataka, 2003 Cr. L.J. 1539 (1): “25. 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 act’. A false promise is not a fact within the meaning of the Code (Indian Penal Code). 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. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has 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 already noted that the only material witness is PW 1. The solitary statement in her evidence that when sexual contact was established at Naygaon, accused Sayyad Ali told her that nothing would be happen and he will marry the prosecutrix, cannot be the basis of conviction. The admissions elicited in the cross examination would suggest that the prosecutrix and accused Sayyad Ali were in love. The prosecutrix was a mature girl aged 20 years. She is presumed to be conscious of the implication and consequences of her actions. She was aware that a Matang girl does not marry a Muslim boy. In the teeth of evidence on record, the finding recorded by the learned Sessions Judge that a false promise of marriage was made which has vitiated the consent, is manifestly erroneous. No evidence is adduced to suggest that a promise to marry was given, the promise was false from the inception to the knowledge of giver and that but for such promise the prosecutrix would not have consented the sexual relationship. I am not persuaded to uphold the conviction of accused Sayyad Ali for offence punishable under section 376(1) and 417 of IPC. Axiomatically, accused 2 Shahidkhan and accused 3 Ibbu Alias Sayyad Ibrahim against whom, even if entire evidence is accepted at face value, there is no material whatsoever to prove the offence under section 109 read with section 376 of IPC, deserve to be acquitted. (i) The judgment and order impugned is set aside. (ii) Criminal Appeal 324 of 2016 and Criminal Appeal 310 of 2016 are allowed. (iii) Accused Sayyad Ali Sayyad Noor is acquitted of offence punishable under section 376(1) and 417 of IPC. Accused Shahidkhan Sahibkhan and Accused Ibbu alias Ibrahim Sayyad Raheman are acquitted of offence punishable under section 109 read with section 376 of IPC. (iv) Bail bonds of the accused shall stand discharged. (iii) Accused Sayyad Ali Sayyad Noor is acquitted of offence punishable under section 376(1) and 417 of IPC. Accused Shahidkhan Sahibkhan and Accused Ibbu alias Ibrahim Sayyad Raheman are acquitted of offence punishable under section 109 read with section 376 of IPC. (iv) Bail bonds of the accused shall stand discharged. Fine paid by the accused, if any, shall be refunded.