JUDGMENT : J.B. Pardiwala, J. 1. As both the captioned appeals arise from a selfsame judgment and order of conviction passed by the Addl. Sessions Judge, Rajkot, those were heard analogously and are being disposed of by this common judgment and order. 2. The Criminal Appeal No. 2033 of 2009 is at the instance of a convict-accused, whereas the Criminal Appeal No. 31 of 2010 is at the instance of the State of Gujarat for enhancement of the sentence. 3. We take notice of the fact that both the captioned appeals were taken up for hearing by a Coordinate Bench and they came to be disposed of vide the common judgment and order dated 9.10.2015. The Coordinate Bench, while dismissing the appeal filed by the accused against the judgment and order of conviction and while allowing the State appeal for enhancement of sentence in part, held as under: "4.3 Accordingly, we are of the considered opinion that the interest of justice would meet if the sentence for the offence punishable under Section 376 of the IPC is enhanced to the minimum i.e. seven years' imprisonment and accordingly, the appeal filed by the State for enhancement of sentence is allowed. 5. In view of the aforesaid discussion, Criminal Appeal No. 31 of 2010 filed by the State for enhancement of sentence, succeeds and the impugned judgment and order dated 30/09/2009 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 155 of 2007 is modified to the aforesaid extent and it is held that for the offence punishable under section 376 of the IPC, the accused shall have to undergo rigorous imprisonment for seven years, instead of three years, as has been awarded by the trial Court. Accordingly, if the accused is on bail, he is directed to surrender before the concerned jail authority within 10 weeks from today. The accused be given set off for the sentence he has already undergone. The rest of the judgment and order shall remain unaltered. Bail bond, if any, shall stand cancelled. The Criminal Appeal No. 2033 of 2009 filed by the accused against conviction, is accordingly, dismissed. Registry to return the R & P, if any, to the trial Court forthwith." 4. The accused, being dissatisfied with the judgment and order passed by the Coordinate Bench, referred to above, preferred two Special Leave Petitions (Criminal) Nos. The Criminal Appeal No. 2033 of 2009 filed by the accused against conviction, is accordingly, dismissed. Registry to return the R & P, if any, to the trial Court forthwith." 4. The accused, being dissatisfied with the judgment and order passed by the Coordinate Bench, referred to above, preferred two Special Leave Petitions (Criminal) Nos. 1118-1119 of 2016 respectively before the Supreme Court. The two special leave petitions culminated in the Criminal Appeals Nos. 1351-1352 of 2017 respectively. The Supreme Court, vide order dated 08.08.2017 disposed of both the criminal appeals, holding thus: "Heard Mr. S.K. Jain, learned senior counsel for the appellant and Ms. Hemantika Wahi, learned counsel for the State. The present appeals by way of special leave call in question the legal propriety of judgment and order dated 9th October, 2015 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 31 of 2010 which was heard along with Criminal Appeal No. 2033 of 2009 whereby the Division Bench of the High Court has enhanced the sentence to seven years, though the appellant was convicted under Section 376 of the IPC, 1860 by the trial court and sentenced to three years' imprisonment. It is submitted by Mr. S.K. Jain, learned senior counsel for the appellant that though the appeals were preferred by the appellant, the High Court has not dwelt upon the materials on record warranting conviction but straightway proceeded to enhance the sentence regard being had to the prescription of the minimum sentence. Ms. Hemantika Wahi, learned counsel appearing for the State has, on other hand, supported the judgment passed by the High Court. On a careful scrutiny of the judgment, conviction and order of sentence passed by the High Court, we notice that there has been no analysis with regard to the oral and documentary evidence brought on record and the plea taken by the accused and all such aspects which are required to be dealt with on an appeal. The High Court should have taken into account the contentions while exercising the appellate jurisdiction, as it is required to scrutinize the justifiability and acceptability of the judgment of the trial court. As the said scrutiny and analysis are absent, we are compelled to set aside the judgment rendered by the High Court and remit the matter to it for fresh adjudication. As the said scrutiny and analysis are absent, we are compelled to set aside the judgment rendered by the High Court and remit the matter to it for fresh adjudication. Since the incident is of long time back, we request the High Court to decide the criminal appeals as expeditiously as possible preferably within six months from today. The criminal appeals are disposed of accordingly." 5. In such circumstances, referred to above, both the appeals have been placed before us for fresh hearing. 6. We propose to first take up the Criminal Appeal No. 2033 of 2009 preferred by the accused. 7. This appeal is at the instance of a convict-accused of the offence of rape and is directed against the judgment and order of conviction and sentence passed by the Addl. Sessions Judge, Rajkot dated 30.09.2009 in the Sessions Case No. 155 of 2007. The Trial Court held the accused-appellant herein guilty of the offence punishable under section 376 of the IPC and sentenced him to undergo three years of rigorous imprisonment with fine of Rs. 50,000/-, and in default of the payment of fine, to undergo further simple imprisonment for a period of one year. The Trial Court also held the accused-appellant guilty of the offence punishable under section 506(2) of the IPC and sentenced him to undergo rigorous imprisonment for a period of two years with fine of Rs. 10,000/-, and in default of the payment of fine, to undergo further simple imprisonment for a period of three months. The Trial Court also passed an order awarding compensation under the provisions of section 357 of the Cr.P.C. An amount of Rs. 55,000/- came to be awarded for the welfare of the child born on account of the alleged offence of rape. The Trial Court directed that the amount of Rs. 55,000/- shall be invested in the form of a Fixed Deposit with any Nationalized Bank initially for a period of ten years and, thereafter, the same shall be renewed time to time till the girl, namely, Khushi attains the age of majority, i.e., 18 years. 8. The case of the prosecution may be summarized as under: 8.1 The charge, Exh. 15, framed by the Trial Court vide order dated 01.07.2008, read as under: "I, A.C. Joshi, Presiding Officer & Addl. 8. The case of the prosecution may be summarized as under: 8.1 The charge, Exh. 15, framed by the Trial Court vide order dated 01.07.2008, read as under: "I, A.C. Joshi, Presiding Officer & Addl. Sessions Judge, 3rd Fast Track Court, Rajkot, do hereby frame the following charge against the above mentioned accused. Sometime in February, 2007 at around 12:30 in the afternoon, while the complainant herein (victim) D/o. Vallabhbhai Radadiya, resident of Shivrajpur was all alone at her house, the accused herein went there.. Taking advantage of the same, the accused caught hold of the complainant and forcibly taken her in the room and forcibly made her to sleep on the cot. Thereafter, the accused forcibly took of her clothes and committed a rape upon her. The accused threatened the complainant that "if she would disclose anything to anyone, then he will kill her and her only brother". Thereafter, on three to four occasions, the accused committed a rape upon the complainant by giving same type of threats and committed an offence punishable under sections 376 and 506(2) of the IPC. Thus, at the above stated date, time and place, the accused committed the offence punishable under sections 376 and 506(2) of the IPC. Hence, it is ordered that an appropriate proceeding be conducted against the accused by this Court for the offences enumerated above. After reading and declaring the charge in the open Court today, the seal of the court is being put on it and I have signed the same." 8.2 The first information report lodged by the victim dated 02.09.2007 at the Jasdan Police Station, reads as under: "My name is Hetalben, D/o. Vallabhbhai Gordhanbhai Radadiya, by caste: Patel, aged about 19, Occupation: household & agriculture, Resident of Shivrajpur, Tal: Jasdan, District: Rajkot. Gives my complaint that I am residing at the above mentioned address with my father and mother and doing the household and agriculture work. I have one sister and one brother. The elder brother is Arvind. I am younger than Arvind and my younger sister is Vilashben. I have studied upto 8th standard. I gave up the study since three to four years and I am helping my parents in the field of agriculture. We are Radadiya. We have been shifted to our new house at Shivrajpur since last three years. The elder brother is Arvind. I am younger than Arvind and my younger sister is Vilashben. I have studied upto 8th standard. I gave up the study since three to four years and I am helping my parents in the field of agriculture. We are Radadiya. We have been shifted to our new house at Shivrajpur since last three years. When the construction work of our new house was going on, one Kadvabhai Becharbhai Savaliya, a resident of our village, came to seat with my father. They both were friends, due to which, I came in contact with him. When the construction work of our new house was completed, we had shifted into the same. At that point of time also, Kadvabhai, to whom I addressed as an uncle (Kaka), frequently used to visit our house. Sometime in February, 2007, at around 12:30 in the afternoon, the said kadvabhai entered into my house. I don't know the exact day. At that time, I was alone in the house. Therefore, I told him that there is nobody in the house. Despite, he entered in the house and caught hold of me and forcibly took me in the room where I was forcibly made to sleep on the cot. Thereafter, he took of my clothes and forcibly committed the sexual intercourse. As I felt extreme pain and inflammation in my private part, I started shouting and told him to leave me. However, he told me not to move and keep quiet, otherwise, he will kill me. As i was afraid I remained silent. After the said act was over, I was crying whereupon he told me not to disclose about the incident to anyone and if she would disclose the same to anyone, he will kill her only brother. He told me that nobody will be able to harm him. So that I was afraid. Thereafter, he left. Thereafter, I washed my blood stained clothes. I also washed my private part. I felt extreme pain, but I maintained silence because Kadvabhai had threatened me. When my mother and other family members returned home at evening, I did not told anything to them. So that I was afraid. Thereafter, he left. Thereafter, I washed my blood stained clothes. I also washed my private part. I felt extreme pain, but I maintained silence because Kadvabhai had threatened me. When my mother and other family members returned home at evening, I did not told anything to them. After about ten to fifteen days, the said Kadvabhai, once again, came to my house while I was all alone in the house and asked me, "have you told anything to anyone?, upon which, I told him that "no I have not said anything to anyone". At that time also, he told me that if I would tell anything, he will kill my brother and then left. After a period of one month, he again met me and threatened me. At that time, I told him that I have missed my period. Despite, he told me not to go before any doctor and also told me that he has a watch on her and if there would be any doubt that I have disclosed anything to anyone, he will kill my brother. After giving such a threat, he left. In the same way, the said Kadvabhai frequently used to visit my house and threatened me, and during that also, on three to four occasions, he committed a rape upon me. I did not told anything to anyone as I was afraid. When I was five months pregnant, one day, the said Kadvabhai came to me and told me not to disclose his name before her father and mother if they come to know about the pregnancy. He told me that if I would give his name, then he will kill me and my brother. Thereafter, everyday at the evening hours, he came at our house to seat with my father. Therefore, I maintained silence as I was afraid that no one will believe me and the said Kadvabhai will kill my brother. Before three days from today, when there was a doubt in my mother's mind that I am pregnant, my mother Leelaben and one Ranjanben taken me to the dispensary of Dr. Bhartiben, situated at Kailash Nagar, Jasdan. Dr. Bhartiben referred me to the dispensary of Katesiya for Sonography where it confirmed my pregnancy. Dr. Bhartiben also confirmed my pregnancy. Before three days from today, when there was a doubt in my mother's mind that I am pregnant, my mother Leelaben and one Ranjanben taken me to the dispensary of Dr. Bhartiben, situated at Kailash Nagar, Jasdan. Dr. Bhartiben referred me to the dispensary of Katesiya for Sonography where it confirmed my pregnancy. Dr. Bhartiben also confirmed my pregnancy. Thereafter, we returned home at Shivrajpur and upon being asked by my mother and Bhabhi, I told them the correct fact that sometime in February, 2007, while I was all alone at home, Kadvabhai committed a rape upon me and threatened me that if I would disclosed anything to anyone, he will kill my brother. So that, I did not told anything. Thereafter, my father disclosed the same to Madhubhai Chaganbhai and Bharatbhai Karshanbhai and sent them at the house of Kadvabhai, but they did not replied anything. Therefore, we all decided to go to the police station and lodge a complaint Hence, I am here to lodge a complaint. Therefore, the said Kadvabhai, sometime in February, 2007, first time had committed a rape upon me and threatened me to kill my brother. Thereafter also, on three to four occasions, he forcibly committed the rape upon me and impregnated me. Hence, it is my complaint to take legal action against him for the alleged crime. The facts of my complaint, as narrated by me, are true and correct and I have signed herein below after reading and understanding the same." 8.3 The case of the prosecution as unfolded in the course of the trial is that the victim (prosecutrix) happens to be the daughter of one Vallabhbhai Gordhanbhai Radadiya. The prosecutrix is a resident of village Shivrajpur, Ta: Jasdan, District: Rajkot. The prosecutrix has one brother by name Arvind and one sister by name Vilas. The prosecutrix studied upto 8th standard. She gave up studies before three to four years from the date of the incident. The prosecutrix helps her parents in the agricultural activities. The father of the prosecutrix constructed a new house and, thereafter, the family started residing in the new house situated at Patel Nagar. While the construction of the new house was going on, the accused who also happens to be the resident of the very same village, used to frequently visit the construction site and sit with the father of the prosecutrix. While the construction of the new house was going on, the accused who also happens to be the resident of the very same village, used to frequently visit the construction site and sit with the father of the prosecutrix. The father of the prosecutrix and the accused are friends. As the accused happens to be the friend of the father of the prosecutrix, she came in contact with the accused and started knowing each other. The accused used to frequently visit the house of the prosecutrix. Sometime in February, 2007, at around 12:30 in the afternoon, the accused is alleged to have visited the house of the prosecutrix while she was all alone in the house. It is the case of the prosecution that after entering the house, the accused caught hold of the prosecutrix and committed rape upon her. The accused is alleged to have threatened the prosecutrix with dire consequences if she would disclose about the incident to any other person. On account of such threats alleged to have been administered by the accused to the prosecutrix, she maintained complete silence about the sexual assault. After about 10 to 15 days from the date of the first incident, the accused is alleged to have once again visited the house of the prosecutrix in the afternoon hours while she was all alone in the house. It is the case of the prosecution that the accused had threatened the prosecutrix that he would kill her brother if she would disclose anything about the incident. It is the case of the prosecution that the act of rape committed by the accused impregnated the prosecutrix. The accused is alleged to have told the prosecutrix not to go to any doctor as he would take care of everything. It is also the case of the prosecution that, thereafter, on three to four occasions, the accused ravished the prosecutrix much against her will. While the eight month of pregnancy was going on, the younger sister of the prosecutrix inquired with her as to whether something was wrong with her. The prosecutrix was, thereafter, taken to the dispensary of Dr. Bhartiben situated at Kailash Nagar by her mother, namely, Leelaben and one another lady by name Ranjanben. The prosecutrix was referred to a radiologist for Sonography and the Sonography revealed that the prosecutrix was pregnant. The prosecutrix was, thereafter, taken to the dispensary of Dr. Bhartiben situated at Kailash Nagar by her mother, namely, Leelaben and one another lady by name Ranjanben. The prosecutrix was referred to a radiologist for Sonography and the Sonography revealed that the prosecutrix was pregnant. At home, the prosecutrix was confronted by one and all as to how she got pregnant. At that point of time, she revealed that it was the accused who had committed the rape upon her while she was all alone at home. The prosecutrix informed her family members that as the accused had threatened her with dire consequences and had also threatened to kill her brother, she kept quiet. 8.4 On the first information report being registered, the investigation had commenced. The prosecutrix was subjected to medical examination. Dr. Mahima Jain, Asst. Professor, Department of Gynecology, Civil Hospital, Rajkot examined the prosecutrix and issued the medical certificate, Exh. 42 dated 03.09.2007. The medical certificate, Exh. 42, reads thus: "This is to certify that, I, undersigned, has examined the patient Hetal Vallabhbhai brought by lady police constable Purviben M. Gadhvi, B. No. 792, Jasdan Police Station. The following can be concluded:- From examination, she is found to be about 8 months pregnancy. Ultrasonography at Radiology Department, Civil Hospital, Rajkot is also suggestive of 32 weeks pregnancy with viable fetus. The possibility of sexual intercourse cannot be ruled out. She is advised treatment and follow up in Antenatal OPD." 8.5 The Investigating Officer, in the course of the investigation, recorded statements of the various witnesses including the statement of one Mansukhbhai Chaniyara, who at the relevant point of time, was serving as the Talati cum Mantri of village Shivrajpur. From the records available, it was found that the date of birth of the prosecutrix is 27.06.1988. At the time of the commission of the alleged offence, she was major as she was almost 18 years and 6 months old. At the end of the investigation, police filed the charge-sheet in the court of the Judicial Magistrate, First Class, jasdan. As the case was exclusively triable by the Sessions Court, the same was committed to the Court of Sessions under the provisions of Section 209 of the Cr.P.C., and on committal, it came to be registered as the Sessions Case No. 155 of 2007. 8.6 The prosecution examined the following witnesses: Sr. Details of the witnesses No. 1. As the case was exclusively triable by the Sessions Court, the same was committed to the Court of Sessions under the provisions of Section 209 of the Cr.P.C., and on committal, it came to be registered as the Sessions Case No. 155 of 2007. 8.6 The prosecution examined the following witnesses: Sr. Details of the witnesses No. 1. Deposition of the victim Exh. 23 2. ValJabhbhai Gordhanbhai (father of the victim) Exh. 27 3. Natubhai Radhavbhai Asodariya (Panch witness) Exh. 28 4. Mukeshbhai Batukbhai Exh. 31 5. Bavkubhai Karshanbhai Exh. 34 6. Bhupatbhai Nidabhai Exh. 36 7. Dr. Mahima Harishchandra Jain Exh. 37 8. Bipinchandra Bhanushankar Raval Exh. 44 9. Dr. Haridas Narbheram Deshani Exh. 48 10. Mansukhbhai Jethabhai Chhaniyara Exh. 53 11. Vajsurbhai Naranbhai Exh. 56 12. Ranabhai Devshibhai Diva Exh. 59 8.7 The prosecution also led the following pieces of the documentary evidence: Sr. Details of the Documentary Evidence Exhibit No. 1. Original complaint Exh. 24 2. Panchnama of the scene of offence Exh. 29 3 Panclmama Exh. 32 4. Atak Panclmama Exh. 35 5. Medical Certificate Exh. 42 6. Forwarding Letter/Order of investigation Exh. 58 7. As regards the Vicera Analysis Exh. 60 8. Receipt of Muddamal sent to the F.S.L./sample of seal Exh. 61 9. Letter of the F.S.L. Exh. 62/63, 65 10. Biological report of the F.S.L. Exh. 64 11. Serological report Exh. 66 8.8 It appears that on 6.10.2007, the prosecutrix gave birth to a female child named Khushi. 9. Submissions on behalf of the accused-appellant: 9.1 Mr. Mangukiya, the learned counsel appearing for the accused vehemently submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of rape. The principal argument of Mr. Mangukiya is that having regard to the oral evidence of the prosecutrix, it can be said that the prosecutrix was a consenting party. Mr. Mangukiya submits that indisputably, the prosecutrix conceived and delivered the female child on 6.10.2007. He submits that in the course of the investigation, no DNA Test was carried out to ascertain the paternity of the child. Mr. Mangukiya submits that even if the entire case put up by the prosecutrix is believed or accepted to be true, or to put it in other words, even if it is believed that the accused is the biological father of Khushi, the case is one of consent. Mr. Mangukiya submits that even if the entire case put up by the prosecutrix is believed or accepted to be true, or to put it in other words, even if it is believed that the accused is the biological father of Khushi, the case is one of consent. The prosecutrix, in disputably, at the relevant point of time, was above 18 years of age, and according to Mr. Mangukiya, she was competent to give consent. Mr. Mangukiya submitted that the accused is a married man and father of two children. The accused had very good relations with the family members of the prosecutrix. In such circumstances, according to Mr. Mangukiya, the prosecutrix might have come in contact with the accused, and the frequent visit of the accused at the house of the prosecutrix might have led to intimacy for each other. In such circumstances, referred to above, Mr. Mangukiya prays that there being merit in this appeal, the same be allowed and the judgment and order of conviction be quashed and set aside. 10. Submissions on behalf of the State: 10.1 Mr. K.P. Raval, the learned APP appearing for the State has a preliminary objection as regards the submission of Mr. Mangukiya that the prosecutrix was a consenting party. Mr. Raval would submit that such a defence is being taken up for the first time before this Court. Mr. Raval pointed out that such defence was not even taken by the accused in his 313 statement recorded by the Trial Court. Mr. Raval would submit that in the absence of any specific defence of consent being taken before the Trial Court as also in the 313 statement, it is not open for the accused now to raise the plea of consent. According to Mr. Raval, the case of the accused is very specific. He submitted that the case of the accused is that the allegations are false and politically motivated. The case of the accused is not one of consent. In such circumstances, the learned APP would submit that the only aspect which needs to be considered by this Court is whether the defence of false implication as put forward by the accused is acceptable or not. Mr. The case of the accused is not one of consent. In such circumstances, the learned APP would submit that the only aspect which needs to be considered by this Court is whether the defence of false implication as put forward by the accused is acceptable or not. Mr. Raval, in support of his preliminary objection, has placed strong reliance on a decision of the Supreme Court in the case of Ganga Singh vs. State of Madhya Pradesh, AIR 2013 SC 3008 . The Supreme Court, in para-14, observed thus: "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 P.W.-5. Instead, he has denied having had any sexual intercourse with P.W.-5 and has taken a stand that he has been falsely implicated on account of a quarrel between him and the husband of P.W.-5. Yet, the trial court held that there was proof of sexual intercourse between the appellant and P.W.-5, but the sexual intercourse was with the consent of P.W.-5. We are of the considered opinion that as the appellant had not taken any defence of consent of P.W.-5, the trial court was not correct in recording the finding that there was consent of P.W.-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 P.W.-5. We have, however, considered this defence of the appellant but find that except making a suggestion to P.W.-2, the appellant has not produced any evidence in support of this defence. As P.W.-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 P.W.-5." 10.2 Mr. Raval submitted that a victim of rape is not an accomplice. The evidence of a rape victim should be appreciated like any other evidence of an injured witness. According to Mr. Raval, there is nothing in the evidence of the victim, on the basis of which, it could be said that she was a consenting party. Her case, according to Mr. Raval, is plain and simple. The evidence of a rape victim should be appreciated like any other evidence of an injured witness. According to Mr. Raval, there is nothing in the evidence of the victim, on the basis of which, it could be said that she was a consenting party. Her case, according to Mr. Raval, is plain and simple. The victim maintained silence for almost eight months on account of the threats alleged to have been administered by the accused. Mr. Raval submitted that the history given by the prosecutrix before the doctor at the time of her medical examination is also very clear and specific. Mr. Raval submitted that the Trial Court has rightly appreciated the evidence of the prosecutrix for the purpose of holding the accused guilty of the offence of rape. According to Mr. Raval, the Investigating Officer should have taken the initiative for the conduct of the DNA Test to ascertain the paternity of the child, but unfortunately, for some reason or the other the DNA test has not been preferred in the present case. Mr. Raval submitted that the Trial Court committed a serious error so far as the order of sentence is concerned. Mr. Raval submitted that the Trial Court passed the order of sentence of three years rigorous imprisonment with fine of Rs. 50,000/-. According to Mr. Raval, even if the Trial Court could be said to have invoked the proviso to Section 376 as prevailing prior to the amendment of 2013, the reasons assigned by the Trial Court for imposing the sentence less than the minimum prescribed are not cogent or convincing in any manner. In such circumstances. Mr. Raval prays that the appeal filed by the accused deserves to be dismissed, whereas the appeal filed by the State for enhancement of sentence deserves to be allowed and the sentence be enhanced accordingly. 11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Trial Court committed any error in holding the accused guilty of the offence of rape. 12. 11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Trial Court committed any error in holding the accused guilty of the offence of rape. 12. Before we proceed to look into and discuss the oral evidence on record, more particularly, the oral evidence of the prosecutrix, we propose to deal with the preliminary objection raised by the learned APP as regards the plea of consent raised by the learned counsel appearing for the accused. 13. Indisputably, before the Trial Court, no such defence of consent was raised, and at the same time, even in the 313 statement of the accused, no such defence of consent has been raised. The case of the accused, all through out before the Trial Court, was that he has been falsely implicated on account of the political rivalry. 14. The question, therefore, that falls for our consideration is whether it is open for this Court to consider the plea of consent put forward by the accused. In the decision of the Supreme Court in the case of Ganga Singh (supra), relied upon by the learned APP, a view has been taken that in cases of rape, if the accused does not take any defence of consent, then it is not open for the Trial Court to record a finding of consent. The Supreme Court has taken the view that the Court, in such circumstances, should only consider the defence of false implication. Is this statement, in the ruling, a correct position of law?. We are afraid, the position of law is altogether different. 15. The answer to the argument canvassed by Mr. Raval, the learned APP appearing for the State is in the decision of the Supreme Court in the case of Pratap Misra and others v. State of Orissa, reported in AIR 1977 S.C. 1307 . We may quote the relevant observations:- "Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecutrix not against her will but with her consent and the connivance of her husband P.W. 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals." 16. We may also refer to and rely upon the decision of the Supreme court in the case of Surendra and another v. State of Maharashtra, reported in AIR 2006 S.C. 3063 . In the said case, the Supreme Court was dealing with the plea of right of private defence raised by the accused. In this regard, the Supreme Court observed as under:- "27. The learned courts below committed a manifest error of law in opining that the Appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. 28. In State of U.P. v. Ram Swarup and Another [ (1974) 4 SCC 764 ], this Court stated the law, thus: "The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law Rule of pleadings does not govern the rights of an accused in a criminal trial. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law Rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the Court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded. For a moment, therefore, we will keep apart the plea of the accused and examine briefly by applying the well-known standard of proof whether the prosecution, as held by the Sessions Court, has proved its case." 17. In the case of Kashi Ram and others v. State of Madhya Pradesh, reported in AIR 2001 S.C. 2902 , the Supreme Court observed in para 24 as under:- "24. The High Court was also not right in criticising and discarding availability of plea of self defence to the accused persons on the ground that the plea was not specifically taken by the accused in their statements under Section 313, Cr.P.C. and because the accused Prabhu did not enter in the witness box. Though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not follow there from that the plea of private defence should be specifically taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313, Cr.P.C. or by adducing defence evidence. A plea of self defence can be taken by introducing such plea in the cross-examination of prosecution witnesses or in the statement of the accused persons recorded under Section 313, Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case as held by this Court in Vijayee Singh's case (supra). It is basic criminal jurisprudence that an accused cannot be compelled to be examined at a witness and no adverse inference can be drawn against the defence merely because an accused person has chosen to abstain from the witness box." 18. In the case of Munshi Ram and others v. Delhi Administration, reported in AIR 1968 S.C. 702 , the Supreme Court observed in para 5 as under:- "5. It is true that the appellants in their statement under Section 342, Cr.P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution; witnesses as well as by adducing defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record-see In re, Jogali Bhaigo Naiks, AIR 1927 Mad 97 . The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record." 19. In the case of Gottipulla Venkata Siva Subbrayanam and others v. The State of A.P. and another, reported in AIR 1970 S.C. 1079 , the Supreme Court observed in para 19 as under:- "19. The fact that the plea of self-defence was not raised by accused No. 10 and that he had on the contrary pleaded alibi does not, in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right. When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would not be justified in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence. The analogy of estoppel or of the technical rules of civil pleadings is, in cases like the present, inappropriate and the Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive. The approach of the High Court in this matter seems to us to be erroneous. We accordingly allow the appeal and acquit the appellants." 20. Thus, the law is well settled. Even in the absence of a specific defence of consent being taken by the accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then, the court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. 21. As observed by the Supreme Court in the case of Ram Swarup (supra) that the Civil Law Rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that the prosecutrix was a consenting party and yet the Court may find from the evidence of the prosecutrix that what would otherwise be an offence is not one because the accused engaged himself in sexual intercourse with the prosecutrix with her consent. 22. In view of the aforesaid position of law, as explained and discussed, we now proceed to consider the oral evidence of the prosecutrix. The prosecutrix has been examined by the prosecution as P.W. 1, Exh. 23. 22. In view of the aforesaid position of law, as explained and discussed, we now proceed to consider the oral evidence of the prosecutrix. The prosecutrix has been examined by the prosecution as P.W. 1, Exh. 23. As the entire conviction is based on the oral evidence of the prosecutrix, we propose to reproduce some of the relevant portions of her evidence. The prosecutrix, in her examination-in-chief, has deposed as under: "(1) At the time of the incident, I was residing at village Shivrajpur, Taluka: Jasdan with my mother, father, brother and sister. I have one brother and one sister wherein brother is elder. His name is Arvind. I am the second child of my parents and then my younger sister, namely Vilash. I have studied upto 8th standard in the Kanya Vinay Mandir School situated at Jasdan. At the time of the incident, I used to go to the field for doing agricultural work. The alleged incident had taken place before one and a half years from today. At the time of the incident, the accused, namely, Kadvo came at my house situated at Gaddha wherein I was residing with my mother and father. The accused herein, who is present in the court today, came at my house. The accused used to come at the construction site of our new house and that is how, I came in contact with him. At the time of the incident, the accused came at my house at around 12:00 in the afternoon. At that time, I was all alone in the house. After entering in the house, the accused came near me. Thereafter, he took off my clothes and had a sexual intercourse with me. The said act was done by the accused in the room. The said act was performed on the cot lying in the room. As the accused had sexual intercourse with me, I started crying whereupon he told me not to move and keep quiet, otherwise, he would kill my brother. Therefore, I did not disclose anything and washed the clothes worn at the time of the incident. After fifteen days of the incident, the accused again came to our house and asked me as to whether I had disclosed anything to anyone. I replied that I had not disclosed anything to anyone. At that time also, I was all alone in the house. After fifteen days of the incident, the accused again came to our house and asked me as to whether I had disclosed anything to anyone. I replied that I had not disclosed anything to anyone. At that time also, I was all alone in the house. After one month of the first incident, the accused again came to our house while I was all alone. At that time, once again, the accused had sexual intercourse with me. At that time also, I started crying. (2) He asked me not to disclose his name and also about the incident to anyone. Due to the said incident, I missed my period. When I told about the same to the accused, he told me not to say anything about the same to anyone and also told me not to go anywhere as he has a watch on me. Therefore, I did not told anything to anyone. Thereafter, when I came in the eight month of pregnancy, I disclosed the same to my mother and told her that I am pregnant. Therefore, my mother and my Bhabhi took me to the dispensary of Dr. Bharti at Jasdan. Dr. Bhartiben referred us to Dr. Kateshiya for Sonography. We went there. Dr. Kateshiya confirmed the pregnancy. Therefore, we sent Bharatbhai and Madhubhai at the house of the accused for compromise. However, the accused didn't reply anything. Hence, we have filed the present case. The child born due to the said incident is a girl. We are calling her Khushi. (4) At the time of the first incident, I was 18 years old. The accused-Kadvabhai is a married man and has two children. At the time of the incident, he had two children. (7) When the accused started closing the doors, I told him that her honour will be ruined. In reply, he told that whatever may be the consequences. Thereafter, the said incident had happened. I washed off the clothes worn by me at the time of the incident because there were some stains of blood on the same. At the time of filing of the complaint, I had worn the same clothes as worn at the time of the incident. I can identify the clothes (Zabba) if shown to me. I washed off the clothes worn by me at the time of the incident because there were some stains of blood on the same. At the time of filing of the complaint, I had worn the same clothes as worn at the time of the incident. I can identify the clothes (Zabba) if shown to me. A Muddamal article (Zabbo) kept in a sealed packet is being shown to me, and on seeing the same, I state that it is the same Muddamal article which I had produced before the police. The original complaint is being shown to me from the record of the court. On seeing the same, I state that the signature in the said document is of mine. The said signature is in bracket and at the end of the second page of the complaint. It is exhibited at Exh. 24. At the time of filing of the complaint, my brother, father etc. were present with me. The police had noted down the complaint exactly what was narrated by me. After the sexual intercourse by the accused, there was some bleeding to me, due to which, my clothes (Zabba) got smeared by blood. The accused is present in the court and is being identified by me." 23. In her cross-examination, she has deposed as under; "(9) I have been residing in my village since many years. Accused Kadvabhai is also residing in our village since many years. I was residing at Gadhada Road at the time of incident. Gadhda Road is known as Patel Nagar. There were eleven streets in the said area. Kadvabhai was residing in Juna Gam. One can go for agricultural work via Gokhalana Road. The farm is one k.m. away from the home. Farm of Kadvabhai is situated on Gadhada Road. My brother is doing work of diamond polishing. My brother works in Jasdan. I had been doing farming work since two years before incident. I, my father and my mother were doing farming work. It is true that there are Gram Panchayat Office, Grocery Store, Flour Mill and Vegetable Market in the village. It is true that responsibility of the home was on me and my mother as women. It is true that responsibility to go to the flour mill and to buy vegetable was on me. We have faith in Khodiyar Maata. There is small temple in the house. It is true that responsibility of the home was on me and my mother as women. It is true that responsibility to go to the flour mill and to buy vegetable was on me. We have faith in Khodiyar Maata. There is small temple in the house. My mother was 45 to 50 years old. My father was worshiping twice a day. I do not observe restrictions of menstruation cycle. It means worshiping of Khodiyar Mata temple of my home remains continue even if any woman enters into menstruation cycle. I attained puberty at the age of 15 years. It is true that clothes get smeared by blood in menstruation period and I was cleaning my clothes myself and was drying the said clothes in the street. I was having period in the first part i.e. first week of the month. I don't remember as to whether it was Saturday or not when we had our first intercourse. It is true that it was last day of March Month. It is true that I have menstruation sometimes before or after one or two days. It is true that my mother was asking me about regular menses and I was replying to her. (10) It is true that Kadvabhai i.e. the accused of this case used to come frequently at our home. It is true that the said accused was being helpful in household and repairing work of the home and was helping in the work of one another. It is true that Kadvabhai used to come with me at the time of season of crop. My father and mother remain with me. Same way, he also used to call us when there is crop in his farm. It is true that there was close relationship between my family and family of Kadvabhai. It is true that my home is on the way to the home of Kadvabhai. I was wearing dress. There are about 150 families of Radadiya Caste (In our village). Patel, Koli, Bharwad and various other castes are there in our village. Govindbhai Timbadiya is my uncle. His full name is Govindbhai Ranchhodbhai Timbadiya who is my uncle. He was Sarpanch of our village. I don't know that Ramjibhai Mavjibhai contested election against my uncle. Ramjibhai Mavjibhai resides in our village and his surname is Savaliya. I know about Congress-BJP. Vitthalbhai Gordhanbhai Radadiya is my uncle. Govindbhai Timbadiya is my uncle. His full name is Govindbhai Ranchhodbhai Timbadiya who is my uncle. He was Sarpanch of our village. I don't know that Ramjibhai Mavjibhai contested election against my uncle. Ramjibhai Mavjibhai resides in our village and his surname is Savaliya. I know about Congress-BJP. Vitthalbhai Gordhanbhai Radadiya is my uncle. I don't know as to whether Vitthalbhai is leader or not. I have heard the name of Vitthalbhai Radadiya. He is leader of Congress. I have heard the name of Laljibhai Savaliya. He is from BJP. It is true that I and the accused used to eat lunch together. (11) K advabhai stayed at my house for one and a half hours when he did intercourse with me for the first time. It is true that we both sat on the cot. My parents came at five o'clock in the evening on that day. It is true that I washed my clothes and dried it in the sunshine before my parents came at five o'clock in the evening. It is true that I dried my clothes in the sunshine before my parents came there. Kadvabhai was not at my home when my parents came. My father had not asked me as to whether someone came to our home or not. I had also not stated to him as to someone came to our home and also not stated that Kadvabhai came here. Kadvabhai came to our home on next day of first intercourse. Witness herself says that Kadvabhai was coming daily. He was coming daily in the evening. It is true that the accused of the case used to come daily for work relating to repairing and farm after first physical intercourse. It is true that I had informed everyone in my home when I was carrying foetus of five months i.e. child in my womb. It is true that my mother used to ask me frequently during this period as to why I am not entering into menses. I was giving proper reply to my mother on her question. It is true that when my mother was asking me about menses, I was replying that there is no reason that I am not menstruating. I was replying that there are stains but no menses. I had stated the same version to my sister-in-law Ranjanben. It is true that I was not stating facts. It is true that when my mother was asking me about menses, I was replying that there is no reason that I am not menstruating. I was replying that there are stains but no menses. I had stated the same version to my sister-in-law Ranjanben. It is true that I was not stating facts. It is true that my parents asked me after five months as to whose child is there in your womb. At that time also, I had not replied anything. Thereafter, my sister-in-law and my mother told me to see the doctor. Doctor was from Jasdan. Doctor inquired with me. I had not stated anything about the accused i.e. Kadvabhai before the doctor of Jasdan. The elders i.e. my mother, father and sister-in-law told me to abort the foetus. It is true that I had refused for abortion at that time. It is true that I filed the present complaint after the foetus attained eight months. It is true that I had not discussed with anyone about the fetus till eight months. I had not talked with anyone when I was going to meet my friends, to work in the farm or to purchase anything from market. It is not true that my engagement took place before this complaint. It is not true that a talk regarding marriage with other person took place prior to the complaint. It is not true that the person with whom I got married, used to come frequently at my home before the complaint. (13) There was a gap of three days between the engagement and marriage with whom my marriage was to be solemnized. It is not true that, discussions regarding the marriage with the person were going on earlier with whom my marriage was solemnized. When the complaint was lodged, it was the festival of Satam-Atham. I do not remember as to whether it was the day of Holi or not when the incident of first physical relation that I state took place. It is not true that, we used to play Holi. It is not true that, we used to play Holi with the friends. It is true that, the fire of Holi is ignited in the village. It is true that, the Holi was ignited in the village when the first incident took place. We did not go for Darshan and to take round of Holi fire. It is not true that, we used to play Holi with the friends. It is true that, the fire of Holi is ignited in the village. It is true that, the Holi was ignited in the village when the first incident took place. We did not go for Darshan and to take round of Holi fire. It is not true that, when seventh month of my pregnancy was going on, Ranjanben and Bhupatbhai had initiated talks in this regard. It is not true that, the prosecution has given understanding to me during the recess time. I did not disclose such fact to anybody till my seventh month of pregnancy. I disclosed it when eighth month of started. (14) The police did not come on the day of the complaint but they came on the next day. It is true that, the elders of our family, village and leaders came with us to lodge the complaint. It is true that, Vitthalbhai Radadiya and Govindbhai Timbadiya came with me at that time. Vitthalbhai Radadiya who came with me is my uncle. He is not the leader of the village. I do not know as to whether disputes over the election were going on between the family members of the accused and our Radadiya family. I do not know as to whether the complaint was lodged regarding the scuffle of election animosity took place, before the complaint of this incident lodged against the family members of accused by our Radadiya family. No member of my family was arrested before this complaint. The persons of my matrimonial side where my present marriage was solemnized have named the daughter as Khushi who was born after this incident. I did not go to the accused person when the door was closed but the accused took me forcibly by dragging. I dictated such in my complaint given before the police. It is true that, I did not mention anywhere in my complaint the replies of the questions asked by the court in the examination in chief, that is, I was asked who closed the windows and doors, in reply to which I have stated that, the accused closed the windows and doors therefore I told him that, I do not want to do any such thing because it will spoil my image. (15) It is true that, I did not dictate in my complaint that, when the accused closed the windows and doors and I told that it will spoil my image, the accused replied me that, if your image gets spoiled, let it be spoiled. It is not true that, I did not dictate in my complaint that, the accused of this case is married and he has two children. It is true that, when the accused came to my home for the first time, he came to take his belonging i.e. scythe lying in our house. (This contradiction is only for words 'came to take the scythe'). When the complaint was being reduced to writing, I was sitting inside the police station. The complaint recorded by the police was not read over to me. The person named Harshadbhai was writing the complaint. He was writing as dictated by me. It is not true that, the person who was writing had a gun. It is not true that, when I was dictating the complaint, the members of my family also suggested me to dictate certain fact. When the complaint was recorded, Harshadbhai, myself and one other officer were there. Any woman police was not present there. It is not true that, all the members of the family collectively dictated this complaint. I do not remember as to whether discussions took place within our family regarding the complaint before the complaint was lodged. It is true that, as I stated the fact of the complaint to my family, all the members of the family unanimously decided to lodge the complaint. It is true that, my uncle, maternal uncle and all the elders had decided to lodge the complaint accordingly. It is not true that, I had lodged the complaint at the instance of my family members. The witness voluntarily states that, I lodged the complaint according to the incident that took place. It is not true that, the accused took out the trousers and committed the physical relation. It is not true that, I state the false fact that, the accused threatened me to lie down silently otherwise I will kill your brother. It is not true that, I state false fact that, he once again committed physical relation with me after one month of the incident and began to cry. It is not true that, I state the false fact that, the accused threatened me to lie down silently otherwise I will kill your brother. It is not true that, I state false fact that, he once again committed physical relation with me after one month of the incident and began to cry. It is not true that, I state the false fact that, the accused told me that, you shall not tell this to anybody and shall not take my name. It is not true that, I state the false fact that, he forcibly took me pulling my hand and committed the physical relation. It is not true that, I state false fact that, I am first time stating the fact of scythe. I do not know that, before lodging this complaint, I demanded rupees five lakhs from the accused for the compromise. It is not true that, we demanded five lakhs and the accused did not agree to pay the said money therefore I gave false complaint. It is not true that, the present accused did not commit any physical relation with me but this child was conceived through the physical relation with the person with whom my present marriage was solemnized. It is not true that, it is the child of the person with whom my present marriage was solemnized.” 24. The prosecution has examined P.W. 2-Vallabhbhai Gordhanbhai Radadiya, Exh. 27. The P.W. 2-Vallabhbhai Radadiya is the father of the prosecutrix. 25. Having gone through the oral evidence of the P.W. 2, we are of the view that it is not much of any significance. 26. The prosecution has examined P.W. 7, Dr. Mahima Jain, Exh. 37. The P.W. 7, in her evidence, has deposed that on 03.09.2007, she was on duty as a Medical Officer at the PDU Medical College, Rajkot. She has deposed that the prosecutrix was brought at the hospital by a lady police constable for medical examination. In the history narrated by the victim, she stated before the P.W. 7 about the sexual assault on her by the accused. In the history, she also stated about the threats alleged to have been administered by the accused to the victim. The P.W. 7 has deposed that the breasts of the victim were well developed. Fluid like milk was found oozing from the breasts. Pubic hair were well developed. In the history, she also stated about the threats alleged to have been administered by the accused to the victim. The P.W. 7 has deposed that the breasts of the victim were well developed. Fluid like milk was found oozing from the breasts. Pubic hair were well developed. On physical examination, the doctor found that there was a foetus of about 32 to 34 weeks old. The heartbeats of the foetus were being noted. The hymen was found ruptured. The examination of the private part was possible with the insertion of two fingers. 27. Considering the evidence of the victim discussed above as well as the evidence of the doctor, there is no element of doubt in our mind that it is the accused who impregnated the victim. The only question we need to consider is whether the prosecutrix was a consenting party to all the acts of sexual intercourse. The principal argument of the learned counsel appearing for the accused is that the prosecutrix was a consenting party and, in such circumstances, the accused cannot be held liable for the offence of rape. 28. Section 375 of the IPC reads as under: "375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawful married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she given consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 29. Section 114-A of the Indian Evidence Act was brought on the statute book with effect from 25.12.1983 by the Criminal Law (Amendment) Act, 1983. It reads as under: "114-A. Presumption as to absence of consent in certain prosecutions for rape - In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), 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 raped and she states in her evidence before the Court that did not consent, the Court shall presume that she did not consent." 30. In order to enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to the act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Indian Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian Evidence Act. 31. The commission of rape in most jurisdictions hinges upon one crucial manifestation and that is consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian Evidence Act. 31. The commission of rape in most jurisdictions hinges upon one crucial manifestation and that is consent. In analysing this ingredient, the simple question most often asked is whether or not the victim consented to the act of sexual penetration by the accused, without the depths of the issue really being appreciated. The long-standing disagreements and debates between the academicians and practitioners regarding the meaning and nature of this terms have resulted in courts directing that consent should have its "normal meaning". 32. In Stroud's Judicial Dictionary (Fifth Edition) page 510 "consent" has been given the following meaning:- "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." 33. It refers to the case of Holman vs. The Queen : [1970] W.A.R. 2 wherein it was held that: "there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent'". 34. Similar was the observation in R. vs. Olugboja : [1981] 3 W.L.R. 585 wherein it was observed that "consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction". 35. Stephen, J. in Queen vs. Clarence : (1888) 22 QBD 23 observed- "It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true." 36. Wills, J. observed "That consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." 37. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." 37. Some of the decisions referred to in Words and Phrases Permanent Edition Volume 8A at page 205 have held "that adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character, and the probable or natural consequences which may attend it. (See : People vs. Perry, 26 Cal. App. 143). 38. The Courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent. In Rao Harnarain Singh vs. State : AIR 1958 Punjab 123 it was observed:- "A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of a rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves a submission but the converse does now follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure." 39. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure." 39. The same view was expressed by the High Court of Kerala in Vijayan Pillai @ Babu vs. State of Kerala : 1989 (2) K.L.J. 234 . Balakrishnan, J., as he then was, observed:- "10. The vital question to be decided is whether the above circumstances are sufficient to spell out consent on the part of P.W. 1. In order to prove that there was consent on the part of the prosecutrix it must be established that she freely submitted herself while in free and unconstrained position of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non resistance and passive giving in cannot be deemed to be "consent". Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers. Every consent to act involves submission, but is by no means follows that a mere submission involves consent. In Jowitt's Dictionary of English Law II Edn. Vol. 1 explains consent as follows: 'An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things - a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.'" 40. Consent supposes three things - a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.'" 40. In Anthony alias Bakthavatsalu : AIR 1960 Madras 308, Ramaswami, J. in his concurring opinion fully agreed with the principle laid down in Rao Harnarain Singh's case (supra) and went on to observe:- "A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former." 41. The Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows: "90. Consent known to be given under fear or misconception A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception;" 42. Consent given first under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. 43. 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. 43. 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. 44. Section 90 cannot, however be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the Supreme Court and of the High Courts have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent'. 45. In the case of Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri.) 775, the Supreme Court put a word of caution that there is no straitjacket 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 at page 57 of the Report stated: "21....... 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.......". 46. 46. The Supreme Court in State of H.P. vs. Mango Ram, 2000 (7) SCC 224 has explained the meaning of "consent" for the purpose of the offence of rape as defined in section 375 of the IPC. I may quote para-13 as under: "Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." 47. In Kaini Rajan vs. State of Kerala, (2013) 9 SCC 113 , the Supreme Court observed in para-12 as under: "12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State of H.P. v. Mango Ram (2000) 7 SCC 224 ] 48. I may also refer to a decision of the Delhi High Court in the case of Mahmood Farooqui vs. State (Govt. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State of H.P. v. Mango Ram (2000) 7 SCC 224 ] 48. I may also refer to a decision of the Delhi High Court in the case of Mahmood Farooqui vs. State (Govt. of NCT of Delhi), 2017 (8) AD (Del) 321, wherein a learned Single Judge of the High Court has observed in paras-84 and 85 as under: "84. In order to answer the aforesaid questions, it would be necessary to see what the word "consent", especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a complainant to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredients of consent is that, as consent could be given, it could be revoked at any time, rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an "affirmative model" meaning thereby that "yes is "yes" and "no' is "no". There would be some difficulty in an universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. 85. In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of No. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is by and large, non-verbal. Thus gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today's modern world with equality being the buzzword, such may not be the situation." 49. A close scrutiny of the evidence of the prosecutrix-P.W. 1 is what is called for, there being no other evidence in the case which could throw light on the point at issue. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be the legitimate guides. 50. We are of the view that the prosecutrix was a consenting party. It appears from the evidence on record that the prosecutrix came in contact with the accused as the accused happens to be a good friend of the father of the prosecutrix. By passage of time, it appears that they developed intimacy for each other. In a very specific question put by the court in exercise of its powers under section 165 of the Evidence Act, the prosecutrix has deposed that she had closed the doors and windows of the house. She has also deposed that the accused used to frequently visit her house. The accused used to help the family members in small household matters like repairing etc. She has also deposed that the accused used to help the family in agricultural operations. She has also deposed that at times, they used to have lunch together. She has deposed in her cross-examination that after the first act of sexual intercourse by the accused, the accused stayed at her house for about one and a half hours. During that period of one and a half hours, they both kept sitting on the cot. She has also deposed that at times, they used to have lunch together. She has deposed in her cross-examination that after the first act of sexual intercourse by the accused, the accused stayed at her house for about one and a half hours. During that period of one and a half hours, they both kept sitting on the cot. She has deposed that before the arrival of her parents at home, she had washed the clothes and had put them up on the string for the purpose of drying. She has deposed that she washed off the clothes and hanged them to dry so that her parents would not come to know about anything. She has admitted that her father had inquired with her as to whether anyone had come at their house or not. She has deposed that, at that time, she had not disclosed that the accused had come at their house. She has deposed that even on the next day from the act of first intercourse, the accused had visited the house of the prosecutrix. She has, on her own, deposed that the accused used to visit her house everyday in the evening. She has deposed that on attaining five months of pregnancy, she disclosed about the same to her family members. She has deposed that every time her mother used to inquire about the menstruation cycle, she used to reply very casually. She has deposed that she never used to disclose the true fact before her parents. She has deposed that even after the parents came to know that she was pregnant and when the parents confronted her about the pregnancy, she did not named anyone. She has deposed that when the family members and the other relatives requested the doctor to abort the foetus, she objected to the same She has deposed that she knew that the accused was a married man and father of two children. All other suggestions put to her by the defence counsel have been denied by the prosecutrix. 51. It is very hard to believe that a 19 year old girl, who is alleged to have been raped by the accused, would allow the accused to sit beside her on a cot for one and a half hours. All other suggestions put to her by the defence counsel have been denied by the prosecutrix. 51. It is very hard to believe that a 19 year old girl, who is alleged to have been raped by the accused, would allow the accused to sit beside her on a cot for one and a half hours. Her subsequent conduct of immediately washing off the clothes and hanging them up on the string to dry so that the parents would not come to know about anything, by itself, speaks volume on the issue of consent. The most clinching piece of evidence of the prosecutrix is that when the family members asked the doctor to terminate the pregnancy, she resisted. She objected because it appears that she wanted to keep the child and deliver the baby. Ultimately, this is exactly what she did. 52. Mr. Raval, the learned APP submitted that the prosecutrix knew that the accused was a married man and a father of two children and, in such circumstances, she would not allow the accused to touch her. What is sought to be argued by Mr. Raval, the learned APP, appears to be that the prosecutrix would not fall in love or would not develop any intimacy with a married man, and that too, a father of two children. There is nothing strange or unusual in such type of relationships. Everyday, we come across cases of such a nature. 53. One another circumstance, as reflected from the oral evidence of the prosecutrix, is that immediately after everyone came to know that the prosecutrix was pregnant, two persons, by name, Bharatbhai and Madhubhai were sent to the house of the accused for the purpose of some settlement. As the accused failed to give any proper reply, the first information report was ultimately lodged. This is also something very strange. If a 19 years old daughter is raped by a person, then why should the father of the prosecutrix send someone at the house of the accused for the purpose of settlement. 54. It appears to us that as things must have gone beyond the control of the prosecutrix, she was left with no other option but to lodge the first information report at the concerned police station for the offence of rape. 54. It appears to us that as things must have gone beyond the control of the prosecutrix, she was left with no other option but to lodge the first information report at the concerned police station for the offence of rape. She might also have been left with no other option but to depose before the Trial Court that the accused had forcibly raped her. This could be on account of tremendous pressure from the family members, relatives, friends etc. 55. The Supreme Court in Raju vs. State of M.P., (2008) 15 SCC 133 , while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged. 56. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged. 56. In Sadashiv Ramrao Hadbe vs. The State of Maharashtra, (2006) 10 SCC 92 : (2007) 1 SCC (Cri.) 160, the Supreme Court while reiterating that in a rape case, the accused could be convicted on the sole testimony of prosecutrix if it is capable of inspiring the confidence in the mind of the Court, put a word of caution that the Court should be extremely careful while accepting the testimony when the entire case is improbable and unlikely to have happened. This is what has been stated: "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen." 57. In Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57 : (2008) 2 SCC (Cri.) 207, the Supreme Court reiterated the legal position thus: "6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent." 58. In State of Rajasthan vs. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri.) 898, the Supreme Court held thus: "19. For the offence of rape as defined in Section 375 of the Indian Penal Code, the sexual intercourse should have been against the will of the woman or without her consent. Consent is immaterial in certain circumstances covered by clauses thirdly to sixthly, the last one being when the woman is under 16 years of age. Based on these provisions, an argument is usually advanced on behalf of the accused charged with rape that the absence of proof of want of consent where the prosecutrix is not under 16 years of age takes the assault out of the purview of Section 375 of the Indian Penal Code. Certainly consent is no defence if the victim has been proved to be under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; an inference as to consent can be drawn if only based on evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable." 59. As stated above, consent or absence of it, could be gathered from the attendant circumstances. The previous and contemporaneous acts and the subsequent conduct of the prosecutrix leads us to believe that she was a consenting party. This is also not a case of passive submission in the face of some psychological pressure exerted or an allurement made by the accused. It appears to us that it was a case of conscious decision on the part of the prosecutrix to maintain such physical relations knowing fully the nature and consequences of the act. 60. This is also not a case of passive submission in the face of some psychological pressure exerted or an allurement made by the accused. It appears to us that it was a case of conscious decision on the part of the prosecutrix to maintain such physical relations knowing fully the nature and consequences of the act. 60. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellant. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellant has been proved beyond reasonable doubt. 61. In the overall view of the matter, we hold that the Trial Court committed a serious error in holding the accused guilty of the offence of rape. 62. In the result, the appeal is allowed. The impugned judgment and order of conviction and sentence are hereby quashed and set aside. The accused is acquitted of all the offences charged with. As the accused is on bail, his bail bond stands cancelled.. 63. At this stage, Mr. Raval, the learned APP, pointed out that the Trial Court has awarded compensation of the amount of Rs. 55,000/- to the victim for the welfare and upbringing of the child. He submitted that the order of compensation passed by the Trial Court may be upheld. He further submitted that even if such order of compensation is to be quashed and set aside, the victim should be heard. 64. A criminal court, while recording conviction of an accused, has the discretion to grant compensation for any loss or injury caused by the offence, under section 357 of the Cr.P.C. 65. When an accused files an appeal against his conviction, the entire case is re-opened in appeal. The effect of the judgment of acquittal passed by an Appellate Court is that the conviction recorded by the Trial Court becomes non-existent in the eyes of law; in other words, when a conviction is set aside, the effect which flows out of such a conviction, namely, the award of compensation to the victim, also disappears. When compensation is awarded to the victim, it is always subject to the right of appeal which vests in the convict. When compensation is awarded to the victim, it is always subject to the right of appeal which vests in the convict. This grant of compensation cannot be regarded as a vested right. In such circumstances, we find difficult to accept the submission of Mr. Raval, the learned APP that we must hear the victim so far as the order of compensation is concerned. 66. In Union of India vs. J.N. Sinha, 1970 Serv LR 748 : ( AIR 1971 SC 40 ), it was observed by the Supreme Court as under:- "As observed by this Court in Kraipak and Ors. v. Union of India, 1969 Serv LR 445: ( AIR 1970 SC 150 ) "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It is true that if a statutory provision can be read consistently with the principles of natural justice. the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that powers." 67. In taking the aforesaid view, we are fortified by one decision of the Rangoon High Court in the case of Htanda Meah vs. Anamale Chettyar, AIR 1936 Rangoon 247. We may quote the relevant observations: "The respondent was prosecuted by the applicant in the Magistrate's Court for an offence under S. 406, Penal Code, and was convicted by the Magistrate who passed a sentence of fine of Rs. We may quote the relevant observations: "The respondent was prosecuted by the applicant in the Magistrate's Court for an offence under S. 406, Penal Code, and was convicted by the Magistrate who passed a sentence of fine of Rs. 1,000 or in default six months' rigorous imprisonment, and also an order under S. 545(1)(b), Criminal P.C., directing the payment of Rs. 500 out of the fine, if realized, to the Complainant as compensation. The respondent appealed against the conviction and sentence, and after the due notice of the hearing of the appeal to the District Magistrate, as required by S. 422, Criminal P.C., the appellate Court found that the conviction could not stand and therefore set aside the conviction and sentence passed on the respondent by the Magistrate. The order of the appellate Court makes no reference whatever to the Magistrate's order for the payment of Rs. 500 out of the fine to the applicant (complainant), but the necessary consequence of the setting aside of the conviction is the setting aside of the sentence of which the necessary consequence is the extinguishment of the order made under S. 545(1)(b), Criminal P. C Throughout the proceedings in the appellate Court no notice whatever was issued to the applicant. It is therefore contended on behalf of the applicant that, in view of the possibility of the appeal ending in an order of acquittal involving the extinguishment of the order of the Magistrate for payment to the applicant of the sum of Rs. 500 out of the fine, which would consequently be tantamount to an order to the detriment of the applicant, the appellate Court acted illegally and without jurisdiction passing the order of acquittal without having previously given him (application) an opportunity to appear and support the conviction. Such a notice is not required by any provision of law, and an omission to issue notice of the hearing of an appeal from a conviction to the complainant in the trial Court unlike the omission to issue notice of an appeal prescribed by S. 422, Criminal P.C. Cannot by any means be said to be an illegality. Such a notice is not required by any provision of law, and an omission to issue notice of the hearing of an appeal from a conviction to the complainant in the trial Court unlike the omission to issue notice of an appeal prescribed by S. 422, Criminal P.C. Cannot by any means be said to be an illegality. Does an omission to issue notice of such an appeal to the complainant in the original trial become an illegality by reasons of the fact that an order of acquittal passed by the Court in appeal would involve the extinguishment of an order for payment compensation under S. 545(1)(b), Criminal P.C.. In my opinion it does not. As I have already observed there is no provision of law which require notice of an appeal to be issued to the complainant in the trial Court. The most that can be said is that inasmuch as the appeal might end in an order of acquittal which would involve the extinguishment of an order under S. 545, Criminal P.C. In favour of the complainant in the original trial, it is desirable that a notice of the appeal should be given to him. But this view of the matter will not justify the statement that, owing to the omission to issue such a notice in such a case, the Court has acted illegally or without jurisdiction. The case of 58 Cal 969 (1), has been relied on in support of the application. In that case it was said that: An appellate Court should, in the exercise of a proper discretion, give notice of the hearing of the appeal from a conviction to the complainant when, an order of compensation has been made in his favour under S. 545, Criminal P.C. As this pronouncement does not support the assertion that omission to issue such notice is an illegality, I do not think it is necessary to comment on it in the present case. I am unable to understand why the complainant in the trial Court who would not be, in law, entitled to notice of the hearing of the appeal against a conviction passed by the trial Court where no compensation is awarded under S. 545 should be entitled to a notice of the hearing of the appeal simply because the trial Court has thought fit to award him compensation out of the sentence of fine. The fact that the complainant in the trial Court has no right to a notice of the appeal from a conviction shows that it is the concern of the Crown and not of the private prosecutor to support the conviction in the Court of appeal. The mere fact that he is interested in the order of compensation can not in my opinion justify the view that he is entitled to notice not with reference to the order under S. 545, Criminal P.C. but with reference directly to the hearing of the appeal. In 58 Cal 969 (1), there was not only an omission by the appellate Court to issue notice to the complainant in the original trial but also an omission to issue notice under S. 422, Criminal P.C.. The omission to issue notice under S. 422 is no doubt fatal to the proceedings before the appellate Court, and if it was not for that fatal defect I do not think that the learned Judge would have set aside the order of acquittal. In the present case there is no fatal defect whatever in the proceedings before the appellate Court which passed the order of acquittal and therefore I hold that there is no sufficient ground for interference by this Court in revision with the order of acquittal passed by the appellate Court. The application is dismissed." 68. In such circumstances, with the judgment and order of conviction being quashed and set aside and the accused being acquitted of all the charges, the order of compensation would also get extinguished. At the same time, it is always open for the prosecutrix to initiate appropriate legal proceedings before the appropriate court in accordance with law, seeking maintenance for the illegitimate child born in the physical relationship of the victim with the accused. 69. As the conviction appeal of the accused was allowed, consequently the appeal filed by the State for enhancement of the sentence would fail and is hereby dismissed.