JUDGMENT : Vide judgment of conviction dated 28.02.2017, appellant Subodh Kumar has been found guilty for an offence punishable under Section 376 of the I.P.C. and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.50,000/- and in default thereof, to undergo R.I. for two years, additionally, with a further direction that the period having undergone during course of trial would be subject to set off in accordance with Section 428 of the Cr.P.C. vide order of sentence dated 03.03.2017 passed by the 4th Additional Sessions Judge, Darbhanga in Sessions Trial No.50 of 2015. 2. Name withheld victim/informant (PW-5) filed Complaint Petition No.1842 of 2013 on 07.11.2013, showing the date of occurrence from 15.02.2013 to 03.11.2013, having an allegation that accused Subodh Kumar happens to be her neighbour as well as distant relative on account thereof, are on visiting term. It has further been disclosed that on 15.02.2013, the family members of the informant had gone to participate in Saraswati Puja, whereupon she was alone. At about 1.00 p.m. accused Subodh Kumar came at her house, inquired about the other family members and then, having been divulged by the informant that they all have gone to participate in Saraswati Puja, he indulged in gossiping with her. Later on, she came inside her house leaving him at her door, who followed her and after closing the door, took control over her, gagged her mouth and then, committed rape. Thereafter, she began to weep, whereupon Subodh consoled her and said that he will marry. He further instructed not to disclose to anybody on account thereof, she kept mum. Subsequently thereof, on the pretext of promise of marriage, Subodh continued with physical intimacy as a result of which, she became pregnant. She divulged the fact to Subodh and requested him to marry, but he began to push the matter ahead on one pretext or the other, whereupon she disclosed the event to her parents. On 31.10.2013, her father convened a Panchayati wherein it was resolved that accused should marry with her on the same day and the venue was fixed at Shyama Temple, Darbhanga where all her family members arrived, but neither Subodh nor any of his family members came. Then thereafter, she got herself examined by a doctor on 01.11.2013, who found her pregnancy to be of eight months. Then thereafter, she got herself examined by a doctor on 01.11.2013, who found her pregnancy to be of eight months. It has also been divulged that on 03.11.2013, her family members had gone to the place of accused and requested to marry, which was not only turned down rather her family members were also assaulted. 3. The aforesaid complaint petition was referred to local police for registration and investigation of the case as provided under Section 156(3) of the Cr.P.C. Accordingly, University P.S. Case No.219 of 2013 was registered, investigated, followed with submission of charge-sheet. Accordingly, trial commenced and concluded whereunder other co-accused were acquitted while appellant has been convicted and sentenced for in a manner as indicated hereinabove, subject matter of instant appeal. 4. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been pleaded that the victim happens to be lady of easy virtue, might have indulged in sexual activity with others, resulting pregnancy, whereupon insisted to marry and on refusal by the accused got him involved in the instant case by way of false and frivolous allegation. However, nothing has been adduced in defence. 5. Prosecution, in order to support its case, had examined altogether nine PWs, who are PW-1, Sanjay Prasad Sah, PW-2, Jai Narayan Sah, PW-3, Ranju Devi, PW-4, Pradeep Kumar, PW-5, victim herself, PW-6, Manju Devi, PW-7, Lila Devi, PW-8, Swami Nath Pandey and PW-9, Umesh Kumar Pandey. Prosecution had also exhibited, Exhibit-1, signature of PW-2 over statement recorded under Section 164 of the Cr.P.C., Exhibit-2, signature of PW-3 over statement recorded under Section 164 Cr.P.C., Exhibit-3, formal F.I.R., Exhibit-4, endorsement, Exhibit-5, statement of the victim recorded under Section 164 Cr.P.C., Exhibit-6, statement of PW-3 under Section 164 Cr.P.C., Exhibit-7, statement of Biltu Sah recorded under Section 164 Cr.P.C., Exhibit-8, statement of PW-2 recorded under Section 164 Cr.P.C., signature of PW-2 over Panchnama (Photo copy) marked as ‘X’ for identification, s ignature of PW-4 as ‘X/1’, C.D. ‘X/2’ for identification. As stated above, nothing has been adduced in defence. 6. Manifold argument has been raised in order to assail the finding recorded by the learned lower Court. The first and foremost argument happens to be that parents of the victim have not been examined. Whoever been examined, are kith and kin of the victim. As stated above, nothing has been adduced in defence. 6. Manifold argument has been raised in order to assail the finding recorded by the learned lower Court. The first and foremost argument happens to be that parents of the victim have not been examined. Whoever been examined, are kith and kin of the victim. Certainly, their status happens to be that of hearsay, inadmissible in the eye of law. It has further been submitted that from the evidence of the victim, it is apparent that the same suffers from vagueness, ambiguity, flexibility whereupon became unreliable. So, it happens to be a case of no evidence. 7. In an alternative, it has also been submitted that victim happens to be major. From her evidence, it is apparent that she was under promiscuous relationship with the appellant and that being so, her indulgence in the physical relationship happens to be consensuous. As such, there happens to be no question of rape and so, does not attract application of Section 376 of the I.P.C. 8. It has further been submitted that when the evidence of the respective witnesses along with the victim are being minutely evaluated, then in that circumstance, it is apparent that whatever allegation has been attributed appears to be out and out an imagination suffering from hollowness and further, has been alleged with a purpose that appellant should give consent to marry with the so alleged victim, whose sinful activities found already exposed. In the facts and circumstances of the case, it has been submitted that no case under Section 376 of the I.P.C. is made out. 9. Furthermore, putting reliance over Uday vs. State of Karnataka reported in A.I.R. 2003 SC 1639 and Dilip Singh Case reported in A.I.R. 2005 SC 203, it has been submitted that from the evidence available on the record, it is apparent that the victim herself was deeply involved with the appellant and further, there happens to be no fraud or deception at the end of the appellant at any earlier occasion in getting consent at the end of the victim. Consequent thereupon, it is fit case wherein judgment of the conviction and sentence recorded by the learned lower Court is fit to be set aside. 10. Consequent thereupon, it is fit case wherein judgment of the conviction and sentence recorded by the learned lower Court is fit to be set aside. 10. On the other hand, learned Additional Public Prosecutor while supporting the finding recorded by the learned lower Court has submitted that right from beginning, it is apparent that intention of appellant was to avail carnal pleasure and with such intention, he firstly committed rape and then thereafter, advanced an undertaking under the garb of promise that he will marry with her, exploited the victim furthermore, who fallen prey on account of deceptive, fraudulent approach of the appellant which ultimately resultant in her pregnancy giving birth to a girl child putting scar mark not only over her character, personality rather robbed of her precious jewels. That being so, the conviction and sentence recorded by the learned lower Court happens to be fit to be concurred. 11. From the L.C. Record, it is evident that in spite of disclosure having been made thereunder that she was examined on 03.11.2013 by a doctor, who had found the victim carrying of pregnancy of eight months, neither the victim was examined during course of investigation by the doctor at the instance of I.O. nor any doctor has been examined during course of trial. It is not the fact that the factum of rape is always to be proved by the medical evidence only being corroborative in nature and for want of medical evidence, the allegation of rape should be discarded, as has consistently been held by catena of judicial pronouncement including Wahid Khan vs. State of M.P. reported in (2010) 2 SCC 9 , as in each and every case, corroboration by medical evidence is not a sine qua, however, from the suggestion, it is apparent that there happens to be no dispute over the same, however been asserted on account of being girl of easy virtue having physical intimacy with so many, which ultimately resulted in her pregnancy. 12. Before coming to main part, it has also to be borne that as per Section 53A of the Evidence Act, the previous character is not of much relevance, moreover, has been suggested in bald way. 12. Before coming to main part, it has also to be borne that as per Section 53A of the Evidence Act, the previous character is not of much relevance, moreover, has been suggested in bald way. And the second event happens to be over presence of Section 114A of the Evidence Act, whereunder if the victim has denied the consent, then in that circumstance, it will be presumed subject to rebuttal at the end of accused. 13. At this juncture, the plea taken by the defence during cross-examination as well as during course of statement recorded under Section 313 Cr.P.C. has also to be taken note of whereunder the accused/appellant had not taken plea of consent, as he had blatantly denied his indulgence. 14. Now, the witnesses are to be seen in order to trace out whether they had substantiated the allegation or not. PW-1, as is evident happens to be brother-in-law (Bahnoi) of the victim, who had stated that on the alleged date and time of occurrence, he was at Kathalbari, victim was alone at her house. Subodh Kumar came, inquired about other family members and getting information that they are away, intruded inside the house and committed rape. After coming to know about the same, they have inquired from the victim, who disclosed the event and then, he along with uncle of the victim Jai Narayan, Ashok Sah, Santosh Sah with local inhabitants had gone to the place of Subodh Kumar inquired from him, who disowned to have committed rape. Then thereafter, Panchayati was convened wherein it was decided that accused should marry with the victim at Shyama Temple. Date was also fixed. Family members of the victim have arrived, but none of the family members of the accused came, whereupon they returned back. They have gone to the place of accused to inquire, whereupon they were assaulted by them. Mother of the victim died as she could not bore the stigma. Victim was examined by Dr. Nagendra Jha. Then thereafter, this case has been instituted, identified the accused. During cross-examination at Para-2, he had stated that he happens to be brother-in-law (Bahnoi) of the victim. He had further stated that at the time of commission of rape, he was near about the place of occurrence. At the time of rape, victim had not raised alarm. Nagendra Jha. Then thereafter, this case has been instituted, identified the accused. During cross-examination at Para-2, he had stated that he happens to be brother-in-law (Bahnoi) of the victim. He had further stated that at the time of commission of rape, he was near about the place of occurrence. At the time of rape, victim had not raised alarm. After the occurrence, she shouted, whereupon he along with Santosh Sah, Jai Narayan, Ashok Sah, aunt of the victim rushed, came and inquired and during course thereof, victim had disclosed regarding the occurrence. Then thereafter, case has been instituted. In Para-4, he had stated that at the time of marpit, he was not present. 15. PW-2 had stated that on the pretext of false promise of marriage having at the end of accused Subodh Kumar, he continued with committing rape over the victim as a result of which, she became pregnant. Subodh Kumar had not married, whereupon Panchayati was convened. In Panchayati, it was resolved that accused will have to marry with the victim at Shyama Temple and for that, date was fixed on which date, they have gone to Shyama Temple, but neither accused nor his family members came as a result of which, they returned back. When they gone to the place of accused, he along with his family members brutally assaulted them. Parents of the victim died out of shock. Panchnama was prepared, identified the same. Also identified his signature over statement recorded under Section 164 of the Cr.P.C. During cross-examination at Para-2, he had admitted the victim to be his niece. In Para-3, he had stated that he had not seen the occurrence and then said, how it could be. He had deposed on the basis of disclosure made by the victim. In Para-5, he had stated that Panchayati was convened on 31.10.2013, wherein he participated, but he is unable to disclose the names of others. 16. PW-3 had deposed that victim happens to be her niece. Advancing false promise of marriage, accused committed sin with the victim as a result of which, she became pregnant. While she was carrying pregnancy of eight months, there was Panchayati in which, accused became ready to marry, but failed to marry. The family members of the accused persons were also not inclined over marriage. Then thereafter, this case has been instituted. While she was carrying pregnancy of eight months, there was Panchayati in which, accused became ready to marry, but failed to marry. The family members of the accused persons were also not inclined over marriage. Then thereafter, this case has been instituted. During cross-examination at Para-4, she had stated that seeing belly bump, her mother died and then, it was known to her that victim is pregnant. Before that, she was not knowing regarding the same. She had further stated that victim had not been with physical relationship with any other. She had further stated that seeing the belly bump, she was assaulted and then, she disclosed regarding the occurrence. In Para-10, she had stated that no D.N.A. Test was conducted. Child died after the birth. Then had said that she had not seen the occurrence. Then had denied the suggestion that victim is a characterless lady having physical relationship with so many persons as a result of which, she became pregnant. Accused never indulged in physical relationship with her. Because of the fact that he happens to be a local resident on account thereof, he has been made a scapegoat. 17. PW-4, during course of examination-in-chief, had reiterated the same version. Furthermore, identified his signature over the panchnama. During cross-examination at Para-2, he had stated that his mother’s name is Kaushalya Devi, who happens to be cousin Fua of the victim. In Para-3, he had stated that he had not seen the occurrence. In Para-5, he had said that he is not aware with the fact that with whom victim was affectionate. In Para-6, he had stated that the victim and her family members were inclined to marry with the accused and as no marriage was facilitated on account thereof, this case has been instituted. 18. PW-6 had deposed in similar manner and had further stated that victim happens to be her niece. During cross-examination, she had stated that she had not seen the occurrence. In Para-4, she had stated that she is not remembering when child had begotten and when she died. 19. PW-7 had stated that about four and half years ago, she came to know that Subodh Kumar had committed sin with the victim as a result of which, she became pregnant and in the aforesaid background, both the parties indulged in marpit. 20. PW-5 is the victim herself. 19. PW-7 had stated that about four and half years ago, she came to know that Subodh Kumar had committed sin with the victim as a result of which, she became pregnant and in the aforesaid background, both the parties indulged in marpit. 20. PW-5 is the victim herself. She had stated that about three and half years ago while her parents were not present at the house, Subodh Kumar came and asked for water and during course thereof, he committed rape after intruding inside the house. Then had asserted that he will marry with her after marriage of his sister. They had gone to Shyama Temple for marriage, but his parents had not allowed. Subodh Kumar was inclined, but his parents were not. She begotten a daughter child at D.M.C.H. Subodh Kumar declined to keep her. Later on, the girl died. Then she came to Court, filed case. Her parents died out of shock and anguish. There was Panchayati. Accused persons have not obeyed the order of the Panch, identified the accused. During cross-examination at Para-2, she had stated that they both were known since before the occurrence. In Para-3, she had stated that they have developed physical relationship during course of making love. She was not in love with anybody else. The Superintendent of Police had directed for D.N.A. Test, but it was never conducted. She had further stated that at the time of institution of the case, she was aged about 20 years. 21. PW-8 is the I.O., who had deposed that after getting order from the learned Court, case was instituted. Then thereafter, investigation was entrusted to him by the Officer-in-Charge (exhibited all the relevant documents). Copied the written report, medical report, prescription issued by Dr. Nutan Raj. Recorded statement of witnesses, inspected the place of occurrence, which happens to be the house of Biltu Sah, father of the victim (detailed the same) recorded statement of the witnesses. Witnesses have produced copy of the panchnama. He had not cared to get the victim medically examined. However, had not recorded statement of the persons of the surroundings. Then had stated that statement of the witnesses, victim was video graphed and produced the C.D., got the witnesses examined under Section 164 of the Cr.P.C. and after completing the investigation, he had submitted chargesheet. He had not cared to get the victim medically examined. However, had not recorded statement of the persons of the surroundings. Then had stated that statement of the witnesses, victim was video graphed and produced the C.D., got the witnesses examined under Section 164 of the Cr.P.C. and after completing the investigation, he had submitted chargesheet. During course of cross-examination, he had admitted that during course of investigation, he came to know that the matter relates with love affair. He had not conducted the D.N.A. Test. 22. PW-9 is the Magistrate, who had recorded statement of the witnesses under Section 164 Cr.P.C. and had exhibited the same. 23. After going through the evidences available on the record as disclosed hereinabove, it is evident that save and except victim herself, none happens to be an eye witness to occurrence, which ought not to be. Furthermore, it is evident from the evidence of PW-5, victim herself that she was aged about 20 years at the time of occurrence. It is also evident from her evidence that she was continuing with the love affair with the accused much prior to the date of occurrence and further, under Para-3 of her cross-examination, she had stated that while they were full of amorousness developed physical relationship. However, from the mode of cross-examination, it is evident that none of the PWs including the victim herself was suggested that it was conscious act. Though, it was suggested to other PWs, but the accused during course of cross-examination of the victim, had not controverted the allegation, nor suggested that she was in contact with somebody else as a result of which, she became pregnant. She was never suggested that no rape was committed at the end of accused rather they indulged in physical intimacy out of their free will, without having deceptively influenced, knowing full-well its repercussion. 24. Now, the question arose why an unmarried girl will levelled such kind of allegation, unless and until confronted with such situation. After all, it happens to be humiliating statement against her honour as well as family. That happens to be reason behind, whereunder it has been settled at rest that unless and until, there happens to be cogent reason to disbelieve the statement of prosecutrix. Ordinarily, it should not be rejected. 25. After all, it happens to be humiliating statement against her honour as well as family. That happens to be reason behind, whereunder it has been settled at rest that unless and until, there happens to be cogent reason to disbelieve the statement of prosecutrix. Ordinarily, it should not be rejected. 25. From the format of charge, it is apparent that a charge under Section 376 I.P.C. has been framed for an occurrence of rape committed from 15.02.2013 to 30.10.2013 and in likewise manner, the incriminating material having been adduced on behalf of prosecution was confronted to him, including, specifically confronting committing of rape on 15.03.2013, while recording statement under Section 313 Cr.P.C., which the accused denied. 26. In Deepak Gulati v. State of Haryana reported in AIR 2013 SC 2071 , it has been held:- “16. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639 ; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203 ; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615 ; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059 , 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. 17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. 18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 19. In Deelip Singh (supra), it has been observed as under: “20. The factors set out in the first part of Section 90 are from the point of view of the victim. 19. In Deelip Singh (supra), it has been observed as under: “20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.” 20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed: “We are of opinion that the expression “under a misconception of fact” is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married…….. “thus … if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person”. “thus … if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person”. … Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence.” 21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” 27. Non-cross-examination of prosecutrix on relevant point much less on rape, as well as with regard to conduct of accused during course of cross-examination as well as during course of statement recorded under Section 313 Cr.P.C. has been taken in consideration by the Apex Court in Ganga Singh vs. State of M.P. reported in A.I.R. 2013 SCW 3008, it has been held:- “11. According to Mr. Mehrotra, however, PW-5 is not a reliable witness as she has made a significant omission in her evidence by not stating anything about the seizure of the blouse, dhoti and broken bangles which were made in her presence. But we find that no question has been put to PW-5 in cross-examination with regard to seizure of the blouse, dhoti and broken bangles in her presence. But we find that no question has been put to PW-5 in cross-examination with regard to seizure of the blouse, dhoti and broken bangles in her presence. If the appellant’s case was that PW-5 cannot be believed because she made this significant omission in her evidence, a question in this regard should have been put to her during her cross- examination. To quote Lord Herschell, LC in Browne vs. Dunn [(1894) 6 R 67]: “……it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.” Section 146 of the Indian Evidence Act also provides that when a witness is crossexamined, he may be asked any question which tend to test his veracity. Yet no question was put to PW-5 in cross-examination on the articles seized in her presence. In the absence of any question with regard to the seizure of the blouse, dhoti and broken bangles in presence of PW-5, omission of this fact from her evidence is no ground to doubt the veracity of her evidence. ............................................................................................ 14. We further find that the appellant has not taken a defence in his statement under Section 313 of the Criminal Procedure Code that the sexual intercourse was with the consent of PW-5. Instead, he has denied having had any sexual intercourse with PW-5 and has taken a stand that he has been falsely implicated on account of a quarrel between him and the husband of PW-5. Yet, the trial court held that there was proof of sexual intercourse between the appellant and PW-5, but the sexual intercourse was with the consent of PW-5. Yet, the trial court held that there was proof of sexual intercourse between the appellant and PW-5, but the sexual intercourse was with the consent of PW-5. We are of the considered opinion that as the appellant had not taken any defence of consent of PW-5, the trial court was not correct in recording the finding that there was consent of PW-5 to the sexual intercourse committed by the appellant and should have instead considered the defence of the appellant that he had been falsely implicated because of a quarrel between him and the husband of PW-5. We have, however, considered this defence of the appellant but find that except making a suggestion to PW-2, the appellant has not produced any evidence in support of this defence. As PW-2 has denied the suggestion, we cannot accept the defence of the appellant that he was falsely implicated on account of a quarrel between the appellant and the husband of PW-5. 28. Had there been genuine conduct of the appellant/accused, he would have offered a plausible explanation, much less, over his promise was not soaked with deceitful intention, and further, would have taken a positive defence by advancing such plea. Blatantly referring the circumstances, it speaks a lot and further, exposes his dubious character. Even having exposed at the end of prosecutrix, PW-5, Para-2 and 3 of her cross-examination coupled with her examination-in-chief. 29. So far delay is concerned, from the narration, it is apparent that it happens to be a continuing offence. Apart from this, the matter has been dealt with elaborately in State of Himachal Pradesh vs. Sanjay Kumar @ Sunny reported in 2017 CRI.L.J. 1443, it has been held:- “24. When the matter is examined in the aforesaid perspective, which in the opinion of this Court is the right perspective, reluctance on the part of the prosecutrix in not narrating the incident to anybody for a period of three years and not sharing the same event with her mother, is clearly understandable. We would like to extract the following passage from the judgment of this Court in Tulshidas Kanolkar v. State of Goa[ (2003) 8 SCC 590 ]: “5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. We would like to extract the following passage from the judgment of this Court in Tulshidas Kanolkar v. State of Goa[ (2003) 8 SCC 590 ]: “5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.” 25. In Karnel Singh v. State of Madhya Pradesh[ (1995) 5 SCC 518 ], this Court observed that: “7...The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false...” 26. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false...” 26. Likewise, in State of Punjab v. Gurmit Singh & Ors.[ (1996)2 SCC 384 ], it was observed: “8...The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” 30. After close and thoughtful evaluation of the evidences adduced on behalf of prosecution in consonance with the conduct of the appellant, did not pursue any kind of interference with the judgment impugned. Consequent thereupon, is affirmed. Appeal is dismissed. Appellant is under custody, which he shall remain till the saturation of the sentence. 31. Looking at the pitiable condition of the victim, who has become orphan as her parents did not bear the shock and died, on account thereof, concerned D.L.S.A. is directed to have the victim properly cared by way of providing adequate compensation under victim compensation scheme on proper identification. A copy of judgment be served upon the D.L.S.A., Darbhanga for proper compliance and report.