JUDGMENT : Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 07/08.12.2004, passed by the learned Additional Sessions Judge-cum-Fast Track Court No.1, Gumla, in Sessions Trial No. 55 of 2003; whereby the appellant was convicted under section 376 IPC and sentenced to undergo R.I. for 7 years. 3. The prosecution case in short is that on 22.01.1995 at about 7 p.m. the informant was returning home after attending the call of nature. On the way, appellant stopped her, took her in his home, at that time he was alone and forcibly committed rape upon her by covering her face with cloth. When she threatened to disclose the fact to the villagers, he assured her that he will marry her and on pretext of marriage he continued sexual relationship with her, due to this reason she became pregnant. 4. Learned counsel for the appellant submits that he has been falsely implicated in this case and since the appellant had married another girl, therefore, the prosecutrix has filed this case. The prosecutrix was already married and therefore, there could not be any second marriage of the prosecutrix with the appellant and the P.Ws. 1, 4, 5 and 6 have clearly stated that since the appellant did not marry the complainant, she has filed this case for section 376 IPC. Further, the complaint has been lodged after a delay of five years and no explanation has been given for such delay. Last but not the least, even the prosecutrix at para 2 in her deposition has stated that for four years, she lived happily with the appellant though she was already married with another person and since the appellant wanted to marry another girl the case has been lodged, as such looking to the entire facts and circumstances; the appellant prays for his acquittal. 5. Mr. Tarun Kumar, learned A.P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no criminal antecedent of the appellant. 6. 5. Mr. Tarun Kumar, learned A.P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no criminal antecedent of the appellant. 6. Having heard learned counsel for the parties and after going through the documents available on the LCR, it appears that altogether 9 witnesses were examined and out of 9 witnesses P.W.2 was brother of the informant and he has categorically stated that the informant was married to one Harsha of village Badhani 10 years ago which clearly goes show that the prosecutrix was a married girl. P.W.-1 has stated that the appellant has not kept the prosecutrix and therefore the case has been filed against him. P.W.-3, who was maternal grand-father of the informant/complainant has stated that the prosecutrix and appellant has done second marriage. P.W.4, who was uncle of the informant has also deposed that the prosecutrix married with one Harsha ten years ago. However, the appellant has taken her away and when the appellant did not marry the prosecutrix, the case has been filed. P.W.5 has stated that the appellant has left the prosecutrix four years ago on the ground of dowry. However, he has categorically admitted that the appellant and the prosecutrix lived as per their own wish and only when the appellant did not marry her and did not keep her at home, therefore, the case has been filed. Even the Bhabhi of the appellant has stated that since the appellant did not marry the prosecutrix the case has been filed. 7. Apart from the above PWs, who all were relatives, even the P.W.5 who was a co-villager at paragraph 8 of his cross-examination has admitted that the prosecutrix lived with the appellant with her own wish and she was very happy with him and when she did not marry her the case has been filed. For brevity paragraph 8 is quoted hereinebelow:- f>jxh ftruk fnu fcjlk ls jgh izse ls jgh rFkk vius bPNk ls jghA ’kknh ugha fn;k rFkk ?kj esa ugha j[kk blhfy;s ds’k gqvk A** 8. It further transpires from the deposition of informant-PW7 herself that they used to meet regularly and were living happily for about 4 years and when appellant got the job, he demanded dowry and finally left the victim. It further transpires from the deposition of informant-PW7 herself that they used to meet regularly and were living happily for about 4 years and when appellant got the job, he demanded dowry and finally left the victim. For brevity, para-2 of her examination in chief is quoted herein below:- pkj lky rd oks vPNh rjg ls j[kk mlds ckn gedks NksM+ fn;k D;ksafd mldh ukSdjh yx xbZA oks vc eksVj lkbdy Vhoh ekax jgk gS rFkk vius lkFk ?kj ls iSlk ykus ds fy;s cksyrk gSA** 9. Looking to the aforesaid facts and circumstances of the case few things are apparent. The complaint which was subsequently converted into F.I.R. was instituted on baseless ground and with ulterior motive only to pressurize the appellant so that he should marry the complainant / informant. It further transpires that total 9 witnesses have been examined on behalf of prosecution and 7 witnesses are interested witnesses. P.W.8 is a police officer and P.W. 9 is a typist. The police officer who had done the investigation has not been examined. The complaint petition was filed after a long delay of about 5 years. That apart, from the statement of Jhirgi Orain (P.W.7) there is no evidence to prove that rape has been committed. It further transpires that the complainant/ informant was already married to one Harsha of village Badhni and the allegation made by her appears to be doubtful and further the case is not covered under section 375 (4) IPC. It further transpires that P.W.1, 4, 5 and 6 have clearly stated that since the appellant did not marry the complainant/informant therefore case has been filed. Even the Informant/ complainant in her evidence has stated that for 4 years she lived happily with the appellant in spite that she was already married with Harsha 10 years ago. 10. From the deposition of all PWs is evident that the case has only been filed because the appellant was going to marry with another girl. It is further evident that the physical relation that followed was not isolated but regular over the years. The delay of about 5 years in lodging of F.I.R. raised serious doubts about the truth of the allegations leveled by the prosecutrix. As aforesaid, all the family members were knowing about the occurrence but there is no explanation that why they did not report the matter to police. 11. The delay of about 5 years in lodging of F.I.R. raised serious doubts about the truth of the allegations leveled by the prosecutrix. As aforesaid, all the family members were knowing about the occurrence but there is no explanation that why they did not report the matter to police. 11. Moreover, the prosecutrix was already a woman and P.W.5 has stated that Jhirgi lived with Birsa as per own wish therefore, no case of rape is made out. Thus, from the evidence it is crystal clear that the prosecutrix has only filed case to pressurize the appellant to marry her fully knowing that she is already a married woman. In the case of Maheshwar Tigga versus State of Jharkhand reported in (2020) 10 SCC 108 at para 10, 11 and 14 the Hon’ble Apex Court has held as under:- “10. The appellant belonged to the Scheduled Tribe while the prosecutrix belonged to the Christian community. They professed different religious beliefs in a traditional society. They both resided in the same Village Basjadi and were known to each other. The nature and manner of allegations, coupled with the letters exchanged between them, marked as exhibits during the trial, make it apparent that their love for each other grew and matured over a sufficient period of time. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999. 11. The parents of the prosecutrix, PWs 5 and 6 both acknowledged awareness of the relationship between appellant and the prosecutrix and that they were informed after the first occurrence itself but offer no explanation why they did not report the matter to the police immediately. 11. The parents of the prosecutrix, PWs 5 and 6 both acknowledged awareness of the relationship between appellant and the prosecutrix and that they were informed after the first occurrence itself but offer no explanation why they did not report the matter to the police immediately. On the contrary, PW 5 acknowledges that the appellant insisted on marrying in the Temple to which they were not agreeable and wanted the marriage to be solemnised in the Church. They further acknowledged that the appellant and the prosecutrix were in love with each other. Contrary to the claim of the prosecutrix, PW 6 stated that the prosecutrix was sexually assaulted in her own house. 14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.” 12. In the instant case, the prosecution has miserably failed to prove their case even remotely, what to say of beyond reasonable doubt. Reference in this regard may be made to the case of Anand Ramachandra Chougule versus Sidarai Laxman Chougala, reported in (2019) 8 SCC 50 wherein at para 10 the Hon’ble Apex Court has held as under:- “10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.” 13. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.” 13. In the instant case, it is seen that it is not possible to hold in nature of evidence on record that appellant obtained consent of prosecutrix at the inception by making false promise or putting her under any fear. In fact, of the present case solitary statement of prosecutrix that at the time of first alleged offence her consent was obtained under fear/false promise of marriage is not sustainable. Under Section 90 IPC, consent given under misconception of fact is no consent in the eye of law. But misconception of fact has to be in proximity of time of occurrence and cannot be spread over period of four years. In the instant case both the appellant and the prosecutrix lived happily for about more than 4-5 years. It is further true that delay in lodging/filing F.I.R. casts strong doubt on the prosecution case. All these goes to show that the learned trial court has ignored all these vital facts which it was bound to appreciate, therefore, the judgment and order dated 07/08.12.2004 passed by the learned Additional District and Sessions Judge cum Fast Track Court No.1, Gumla passed in S.T. No. 55 of 2003, deserves to be set aside. 14. Consequently, judgment of conviction and order of sentence dated 07/08.12.2004, passed by the learned Sessions Judge-cum-Fast Track Court No.1, Gumla, in Sessions Trial No. 55 of 2003 is, hereby, set aside. As a result, the instant application stands allowed. 15. The appellant shall be discharged from the liability of his bail bond. 16. The lower court record be sent to the court concerned forthwith.