JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 19.08.2010 passed by the learned Prl. Dist. & Sessions Judge, Dharwad in S.C. No. 18/2008. 2. I have heard the learned amicus curiae Sri T.Hanumareddy and the learned Addl. SPP Sri V.M.Banakar for the respondent-State. 3. The genesis of the prosecution in brief is that, the accused-appellant being the relative of the victim on 09.02.2007 at about 2.00 p.m. came to the house of the victim and committed the rape on her. Subsequently accused used to have physical contact with the victim and as a result of the same, victim become pregnant and after coming to know the said fact by the father of the victim and when the panchayath was held, the accused refused to marry the victim and as such the complaint was registered in Crime No. 27/2007. Thereafter, after investigation the charge sheet has been filed. 4. After filing of the charge sheet the learned JMFC committed the case to the Court of Sessions. The Court of Sessions secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. The accused pleaded not guilty and he claims to be tried and as such the trial was fixed. 5. In order to prove the case of the prosecution, the prosecution has got examined 15 witnesses and got marked 14 documents. No material objects were got marked. Thereafter the statement of the accused was recorded u/s 313 of Cr.P.C. by putting incriminating material as against him, the accused denied the same. The accused has not led any evidence on his behalf nor got marked any documents. After hearing the learned Public Prosecutor and the learned counsel for the accused, the learned Sessions Judge came to the conclusion that the materials produced by the prosecution is sufficient to convict the accused for the offences punishable u/s 375 of IPC. Accordingly, he was convicted and sentenced to undergo rigorous imprisonment for seven years and shall pay fine of Rs.10,000/-with default sentence to undergo imprisonment for one year. Challenging the legality and correctness of the said judgment, the appellant-accused is before this Court. 6. Accordingly, he was convicted and sentenced to undergo rigorous imprisonment for seven years and shall pay fine of Rs.10,000/-with default sentence to undergo imprisonment for one year. Challenging the legality and correctness of the said judgment, the appellant-accused is before this Court. 6. The main grounds urged by Sri T.Hanumareddy, learned amicus curiae for the appellant-accused are that, the victim and the accused were acquainted with each other and the entire evidence of the victim if it is taken into consideration, it is nothing but a consensual sex. It is his further submission that the accused and the victim were in deep love with each other and as the victim was aged 20 years and the accused was 18 years and they had a physical contact. It is his further submission that accused and the victim had physical contact on number of occasions and in order to have the satisfaction she use to have a physical contact with the accused. It is his further submission that the testimony of the victim clearly goes to show that more than a year the accused and the victim used to meet each other. Under such circumstances, it cannot be said that the accused had sex with the victim against her will. It is his further submission that the victim was adult and matured lady of 20 years at the time of the alleged incident and they had consensual sex. It is his further submission that even though the alleged incident has taken place, neither any complaint has been registered by the victim nor the said fact has been informed to the members of her family. Under such circumstances, act of the accused amounts to nothing but a consensual sex. The trial Court, without looking into the evidence which has been placed on record has wrongly convicted the accused. In order to substantiate the said contention he has relied upon a decision of the Hon’ble Supreme Court in the case of Tilak Raj Vs. State of Himachal Pradesh reported in (2016) 4 SCC 140 . On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 7. Per contra, Sri V.M. Banakar, learned Addl. State of Himachal Pradesh reported in (2016) 4 SCC 140 . On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 7. Per contra, Sri V.M. Banakar, learned Addl. S.P.P. vehemently argued and contended that the evidence of the victim, if it is taken into consideration that it clearly goes to show that the accused continued to give false promise and alluded the victim to give her consent for the physical relationship. It is his further submission that, in order to constitute the offence of rape as defined u/s 375 of IPC that if the accused had sex against the will of the victim then under such circumstances it constitute the offence of rape as contemplated under law. It is his further submission that, if consent is given by the prosecutrix on misconception of fact, then under such circumstances, the said act cannot constitute a consent as contemplated u/s 90 of IPC. In order to constitute it as a consensual sex u/s 90 of IPC there must be free sex. In the instant case on hand, there is no free consent of the victim. Under such circumstances, it constitute an offence u/s 376 of IPC. The trial Court, after taking into consideration the said fact, has rightly convicted the accused. The accused has not made out any grounds so as to allow the appeal. On these grounds he prayed to dismiss the appeal. 8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 9. In order to establish the case of the prosecution, the prosecution got examined 15 witnesses. PW1 is none other than the father of the victim and it is he who filed the complaint. In his evidence he has deposed that they were working at a place called Dandeli and the victim and other children used to stay independently and they used to visit the house once in a month or once in two months. When they came back to the house the wife of the complainant by seeing the physique of the victim, she made enquiry and at that time the victim disclosed the name of the accused and she told that inspite of her objections and protest the accused had forceful intercourse with her. When they came back to the house the wife of the complainant by seeing the physique of the victim, she made enquiry and at that time the victim disclosed the name of the accused and she told that inspite of her objections and protest the accused had forceful intercourse with her. He has further deposed that, a panchayath was also held initially but the accused refused to marry her and in that light, a complaint has been registered as per Ex.P.1. Subsequently, he has also deposed that the victim gave birth to the baby girl in KIMS, Hubballi and subsequently after two years four months the said child died. He has submitted with regard to DNA test and other formalities which have been undertaken by the I.O. In his evidence he has admitted that after 3 or 4 months of pregnancy external signs are visible on the stomach. The other suggestions which have been made, have been denied, which has not been elucidated from the mouth of this witness. 10. PW2 is the spot mahazar panch to Ex.P.5. He has deposed that the complainant showed spot of occurrence to the Police and there they have drawn mahazar as per Ex.P.5. During the course of cross-examination, nothing has been elicited to discard the evidence of P.W.2. 11. P.W.3 is the star witness and she is the victim in her evidence. She has deposed that about three years back in the afternoon, accused came to the third portion of the house, where she was alone and her sister and brother had gone to the School, though she had refused, the accused made her to fall on the ground and had sex. She has further deposed that the accused told her that he will take care if anything happens and subsequently accused also told that he will marry her. She has further deposed that after four days, once again the accused had come to her house and promised that he would marry her and had sex with her. He has further deposed that he asked not to disclose the matter before her parents. She has further deposed that when she was 6 to 7 months pregnant, her parents had asked and at that time she had disclosed the said fact and a panchayat was held and there the accused had admitted for having committed the sexual intercourse with her. She has further deposed that when she was 6 to 7 months pregnant, her parents had asked and at that time she had disclosed the said fact and a panchayat was held and there the accused had admitted for having committed the sexual intercourse with her. She has identified Exs.P-2 and P-4 photographs. 12. She has been cross-examined by the accused. In her evidence, she has admitted that on account of her frequently visit to grocery shop of the accused, both started developing intimacy. She has further admitted that they fell in love with each other and thereafter accused started to go to her house and on account of frequent visiting of the accused to their house, they developed love and affection to each other and because of love and affection, they desired to sleep together as husband and wife. She has further deposed that when she was carrying for three months, she did not inform the matter to her parents, as the accused had instructed her not to inform the same to her parents. She has further admitted that she did not inform her parents under the guise that if she informs the same, she will be blamed. It is further admitted that during the course of cross-examination that at relevant period, herself and accused were in love with each other and were talking to each other frequently and activities were going on with mutual trust and confidence. She has further admitted that the act of intercourse took place with mutual consent and she was also intending to get some pleasure in life and other suggestions have been denied. 13. P.W.4 is the mother of the victim. She has reiterated the evidence of P.W.1 – complainant. 14. P.W.5 is the person who held the panchayath. They came to the house of the said witness and requested that the accused has caused the pregnancy to the daughter of the complainant and requested him to mediate the matter and thereafter he has sent a word to the accused and the accused and his father came to the house and at that time, the accused had admitted the sexual intercourse with P.W.3 and after discussion, the matter was not settled. In his cross-examination, he has admitted that by the time the panchayat was held, P.W.3 was already carrying for 7 to 8 months. In his cross-examination, he has admitted that by the time the panchayat was held, P.W.3 was already carrying for 7 to 8 months. He has further admitted that when second time panchayat was held the accused told that he has loved her and he is not willing to marry her and except that nothing has been brought on record. 15. P.W.6 is also panchayathdaar. He has also reiterated the evidence of P.W.5. Nothing has been elicited during the course of cross-examination of these witnesses so as to discard the evidence. 16. P.W.7 is the Woman Head Constable. She was deputed to collect blood samples of the victim, her child and the accused by drawing mahazar as per Ex.P.6. 17. P.W.8 is the Junior Engineer. In pursuance of the instructions issued by the Investigating Officer, he got prepared sketch as per Ex.P-7. 18. P.W.9 is the father of the accused. He has not supported the case of the prosecution and he has been treated as hostile. Even in the cross-examination by the learned Public Prosecutor, nothing has been elicited to substantiate the case of the prosecution. 19. P.W.10 is the Secretary of Gram Panchayat. He has issued the extract of the property No.93/2 of Hasarambi Village, as per Ex.P-9, where the alleged incident has taken place. 20. P.W.11 is the Medical Officer. She has examined the victim on 09.02.2007 at about 04:30 p.m. and she has given her opinion that the consensual offence has been committed as there is a rupture of hymen and victim was 32 weeks pregnancy. She has issued the certificate as per Ex.P-10 and opinion as per Ex.P-11. 21. P.W.12 is the Doctor. He has examined the accused to determine the age of the accused and after examination, he has deposed that as on the date of the alleged incident, the accused was 18 years and he has issued the certificate as per Ex.P-12 . 22. P.W.13 is the person who has conducted the DNA test of the deceased female baby and the accused. He has given the evidence that the child inherits half of the DNA of mother and half of the father and the child equally inherits from their biological parents, as shown in the table and it has been got marked as Ex.P-13. 23. He has given the evidence that the child inherits half of the DNA of mother and half of the father and the child equally inherits from their biological parents, as shown in the table and it has been got marked as Ex.P-13. 23. P.W.14 is the scribe, who has written the complaint and obtained the signature of P.W.1 and on the basis of the complaint, a case has been registered. 24. P.W.15 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused. 25. I have given my thoughtful consideration to the evidence which has been produced before the Court below. Though the prosecution has got examined 15 witnesses the most important evidence to determine the case is that of P.W.3, the victim. Though it is contended by the learned Additional S.P.P. that if the consent was given by the victim, on misconception of fact, then under such circumstances, the said consent is not considered to be a free consent and if any physical act take place, then under such circumstances, it constitutes an offence under Section 375 of IPC. 26. It is further submission that if there is a false promise to marry and on such false promise, if he had a physical relationship with the victim, then under such circumstances, with the consent said to have been given under a false promise made by the accused to marry, then the said consent cannot be said to be consent on misconception of fact, as per Section 90 of the IPC. 27. This proposition of law has been also laid down by the Hon’ble Apex Court in the case of Anurag Soni vs. The State of Chattisgarh reported in AIR 2019 SC 1857 . At paragraph No.14 and 15, it has been observed as under: “14. 27. This proposition of law has been also laid down by the Hon’ble Apex Court in the case of Anurag Soni vs. The State of Chattisgarh reported in AIR 2019 SC 1857 . At paragraph No.14 and 15, it has been observed as under: “14. Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B.Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC. 15. Now, so far as the submission on behalf of the accused appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. It was a clear case of cheating and deception. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him.” 28. I am not having any difference of opinion with regard to the law laid down by the Hon’ble Apex Court that if under a misconception or under a false promise from the inception if the accused had a physical contact with the victim, then under such circumstances, definitely it constitutes an offence under Section 375 of IPC. 29. Keeping in view the ratio laid down, if the evidence of P.W.3, the victim is analyzed, it goes to show that the victim used to frequently visit to the shop of the accused and thereafter they started developing intimacy and fell in love with each other and even the accused used to visit to the house of the victim and on account of frequent visit of the accused to her house, they developed love and affection with each other and because of love and affection, they desired to sleep together as husband and wife. Even the said fact has been also clearly admitted by the victim during the course of cross-examination. Even the said fact has been also clearly admitted by the victim during the course of cross-examination. She has also further admitted that herself was inviting the accused to her house and they used to have intercourse with mutual consent and they were also intending to get some pleasure in the life. This evidence which has been produced during the course of cross-examination, it clearly goes to show that the victim, who is an adult and matured lady of 20 years at the time of the incident, has given the consent freely and it is nothing but a free consensual sex and there is no clear evidence to show that the appellant on a false promise, induced the victim and had sex with her. 30. By going through the entire evidence of the victim, nowhere it reveals that under the false promise or under misconception, the accused used to have sex with her. 31. Be that as it may. Even the records show that though in her evidence, examination-in-chief, she has deposed that in the first instance the accused had sex against her will. But in her cross-examination she has clearly admitted that she used to visit the grocery shop of the accused and developed intimacy and thereafter the accused started coming to the house and in that context, they had physical contact. Even immediately after the first instance, if it is against her will, then under such circumstances, definitely she could have intimated the said fact to the parents P.Ws.1 and 4. For the reasons best known to her, she has not intimated the said fact to any other persons including the parents. If really it was as against her will, then definitely a brother and sister were also residing in the house and neighbourers were also there and once in a month or twice, the appellant used to visit till 7 to 8 months pregnancy of the victim and the said act has not been intimated to the parents. Under such circumstances, it constitutes a consensual sex. 32. All these materials, if it is taken into consideration, then under such circumstances, the act of the accused, it amounts to nothing but a consensual sex and it is not a rape, as contemplated under Section 375 of IPC. 33. I have given my thoughtful consideration to the entire materials. Under such circumstances, it constitutes a consensual sex. 32. All these materials, if it is taken into consideration, then under such circumstances, the act of the accused, it amounts to nothing but a consensual sex and it is not a rape, as contemplated under Section 375 of IPC. 33. I have given my thoughtful consideration to the entire materials. None of the ingredients as contemplated in Section 375 of IPC are going to be satisfied so as to bring home the guilt of the accused. When the prosecution evidence has not established the fact that the said physical contact with the victim by the accused was under false promise or under misconception of fact, then under such circumstances, the Trial Court ought to have given the benefit of doubt. 34. I have carefully and cautiously gone through the judgment of the Trial Court. 35. Though the Trial Court has discussed the evidence, of P.Ws.1, 3, 4, 5 and 6, but it lost the sight of the fact that the conduct of the victim was that of a consensual sex and it does not constitute an offence under Section 375 of IPC. Under the said facts and circumstances, the judgment of the Trial Court is erroneous and it is liable to be set aside. In the light of the discussion held by me above, the appeal is allowed and the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Dharwad in Sessions Case No.18/2008 dated 19.08.2010 is set aside. The appellant – accused is acquitted of the charges levelled against him. He is set at liberty forthwith. His and surety bail bonds stand cancelled. The Trial Court is hereby directed, if any fine amount has been deposited by the accused, the same may be refunded to appellant-accused on proper identification and acknowledgment. I place valuable service rendered by Sri.T.Hanumareddy to dispose of this old case which was pending for a decade. The Legal Services Authority is hereby directed to disburse the remuneration in accordance with law. Send back the trial Court records.