JUDGMENT : (Ramachandra D. Huddar, J.) : Appellant-accused has preferred this appeal being aggrieved by the judgment of his conviction dated 12.06.2014 and order of sentence dated 17.06.2014 passed in Sessions case No.78/2011 by VII Additional Sessions Judge, Mysuru. 2. Parties to this appeal are referred to as per their rank before the trial Court for convenience. 3. That accused who was charge sheeted by the Circle Inspector of Police, Nanjangud Circle in Crime No.179/2010 of Kowlande Police Station for the offences punishable under Sections 417 and 376 of IPC. 4. That the victim girl filed a complaint before the Sub-Inspector, Kowlande Police Station, Nanjangud Taluk on 28.11.2010 at 8.30 p.m. by appearing before the Police Station alleging that she is the resident of Tagaduru Village, she was in love with her neighbour i.e., Prakash S/o Muddumadegowda (accused) for the last two years prior to filing of the complaint. It is alleged that for the last six months prior to filing of the complaint, he started cheating her. She used to inform him stating that because of that she is facing problems in her education. It is alleged that with an assurance to marry her, forcibly without hearing the words of the complainant, raped her. This fact was informed to the elderly members of her village. At that time, his father and uncle Shivu were called by the Panchayathdars of her village to Malle temple and conducted panchayath. In the said Panchayath, it was requested the accused to get marry the victim girl. At that time the father and uncle of the accused told the Panchayathdars, that in the recent future they intend to perform the marriage of sister of accused and prayed for two months time. Accordingly, two months time was granted. After two months time, even there was no response either from the accused or from his parents. They vacated the village. Despite calling of the accused and his father so also his uncle, they did not respond and went on postponing and did not come to the Tagaduru village. Therefore, a complaint came to be filed against them before the Kowlande Police Station. It is stated that twice they came to Kowlande police station and took two adjournments regarding the response. It is alleged that even then there was no response from them. Therefore, a complaint came to be filed against them before the Kowlande Police Station. It is stated that twice they came to Kowlande police station and took two adjournments regarding the response. It is alleged that even then there was no response from them. Thus it is alleged by the complainant that, accused, his father Muddumadegowda, his wife Susheela and uncle so also his wife Pramila have committed the offence of cheating against the victim girl. With these allegations a complaint came to be filed before PW-19 Krishna Ramanna, the then Police Sub- Inspector of Kowlande police station. It was registered by him in Crime No.179/2010 and he registered the FIR as per Ex.P-20 based upon Ex.P-1 complaint and the said criminal law was set in motion. 5. PW-24 on taking up the investigation deputed the staff for the purpose of apprehending the accused. Accordingly, his staff apprehended the accused and produced before him. He arrested the accused. He also called the victim girl to the police station, seized her clothes worn by her. On 30.10.2010 he visited the Tagaduru village recorded the statements of the witnesses, he visited the scene of offence conducted the panchanama, subjected both accused and victim girl for medical examination. After completion of investigation by following all the formalities of investigation, filed charge sheet against the accused for the aforesaid offences. 6. Before the learned Sessions Judge, to bring home the guilt of the accused, prosecution in all examined 24 witnesses from PW-1 to PW-24 and got marked Exs.P1 to P29 with respective signatures and M.O.Nos.1 to 14. During the course of the cross examination Exs.D1 to D15 were marked. 7. On hearing the arguments and on evaluation of the evidence found the accused guilty for committing the offences punishable under Sections 376 and 417 of IPC. Accordingly, sentenced him as under: "Accused is sentenced to undergo R.I for 7 (seven) years and shall pay a fine of Rs.50,000/- and in default to undergo S.I for one year for offence U/s 376 IPC. Accused is sentenced to undergo R.I for 6 (six) months and shall pay a fine of Rs.1,000/- and in default to undergo S.I for 2 months for offence U/s 417 IPC". 8. This judgment of conviction and order of sentence is now challenged by the appellant-accused by preferring this appeal. 9. Accused is sentenced to undergo R.I for 6 (six) months and shall pay a fine of Rs.1,000/- and in default to undergo S.I for 2 months for offence U/s 417 IPC". 8. This judgment of conviction and order of sentence is now challenged by the appellant-accused by preferring this appeal. 9. The learned counsel for the appellant-accused with all vehemence submits that the facts of this case do not attract the provisions of Sections 417 and 376 of IPC. It is his submission that the learned trial Court without properly appreciating the evidence and documents produced by the IO, has passed the impugned judgment which is not at all sustainable in the eyes of law. 10. Learned counsel for the appellant submits that, there was a complaint on 17.07.2010 to the Kowlande police station stating, that victim girl and accused were in love with each other. This fact of their love affair between them was within the knowledge of their family members. He would further submit that, though there was a insistence as per the case of the prosecution for the marriage of the victim girl with accused, the parents of the accused agreed and left the village. The earlier part of the evidence so stated by the victim girl in the complaint as well as in her evidence is not properly appreciated by the trial Court which has resulted in miscarriage of justice. He would further submits that evidence of PW1 so stated by her in her cross examination clearly disclose that accused had never promised to marry the victim girl-PW1. The learned trial judge according to him has pre-determined by reading the contents of Ex.P5 which is utterly wrong. 11. He would further submit that, on reading the contents of Ex.P5 and Ex.D2 to 15 do establish that accused had no intention to marry her or having any sex with her. These documents are wrongly read by the trial Court. He would further submit that, learned trial court had failed to appreciate the contents of Medical Report and evidence of PW.14 which do establish that, there was no rape on her at all. Barring the victim girl-complainant, the evidence other witnesses inter se is contradictory in nature. He would further submit that their evidence do not support the case of the prosecution of alleged cheating and commission of rape by the accused. Barring the victim girl-complainant, the evidence other witnesses inter se is contradictory in nature. He would further submit that their evidence do not support the case of the prosecution of alleged cheating and commission of rape by the accused. He would further submit that, the evidence of PWs.1,2,3,5 and 8 do not inspire any confidence to prove the case of the prosecution. He would further submit that on reading the complaint allegation, date of alleged incident is not stated and the evidence of doctor suffice to acquit the accused. 12. In support of his submission, he relied upon various oral and documentary evidence led by the prosecution. He craves to allow the appeal and set aside the impugned judgment of conviction and order of sentence. 13. As against this submission, the learned HCGP for State refuting the arguments of the learned counsel for the appellant with all force, would submit that, the evidence of PW.1 victim girl itself is sufficient to convict the accused. He would further submit that, her evidence supported by evidence of her father, the second wife of her father and also the panchayatdars who were examined in the trial Court. He would further submit that on perusal of the oral and documentary evidence placed on record by the prosecution as rightly appreciated by the trial court, they prove the case of the prosecution. He would further submit that, the trial Court is right in passing the impugned judgment by finding the accused guilty. He would further submit that such a considered judgment cannot be interfered by this Court. He too relied upon the various evidence placed on record by the prosecution and also the findings of the trial Court on various aspects. He prays to dismiss the appeal. 14. I have given my anxious consideration to the submissions of both the side and perused the records. 15. In view of the rival submission of both the side the following points arise for my consideration: i. Whether the judgment of conviction and order of sentence suffers from illegality and without properly appreciating the evidence? ii. If so, the judgment of conviction and order of sentence passed by the trial court impugned in this appeal requires interference by this Court? 16. ii. If so, the judgment of conviction and order of sentence passed by the trial court impugned in this appeal requires interference by this Court? 16. As the prosecution has alleged the offence of cheating and rape against the accused, before adverting to the other aspects of the case, it is just and proper to read the definition and ingredients of offences so alleged against him. 17. Section 415 of IPC defines 'Cheating'. It reads as under: "Whoever, by deceiving any person, fraudulently or property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". 18. On reading the aforesaid definition of cheating, it is the obligation of the prosecution to prove:- 1) Deception of any person 2)(a) Fraudulently or dishonestly inducing that person i) to deliver any property to any person or ii) to consent that any person shall retain any property or (b) intentionally inducing that person to do or omit to do anything which she would no do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 19. That means in the offence of cheating, there are two elements:- a) Deception and dishonest inducement to do or omit to do something. b) Mere dishonesty is not a criminal offence. Moreover, to establish the offence of cheating, the complainant would have to show not only that he was induced to do or omit to do a certain act but that this induced omission on his part caused or was likely to cause him some harm or damage in body, mind, reputation or property- which are presumed to be the four cardinal assets of humanity. The Hon'ble Apex Court has laid down the ingredients required to constitute cheating in various judgments. They are: 1) There should be fraudulent or dishonest inducement of a person. 2) The persons who deceived should be induce to deliver any property to any person or to consent that any person shall retain property. The Hon'ble Apex Court has laid down the ingredients required to constitute cheating in various judgments. They are: 1) There should be fraudulent or dishonest inducement of a person. 2) The persons who deceived should be induce to deliver any property to any person or to consent that any person shall retain property. 3) The person so deceived should be intentionally induced to do or omit to do any thing which he would not do or omit to do if he were not so deceived. 4) Such act is likely to cause damage or harm to the person induced in body, mind, reputation or property. 20. So far as definition of 'Rape' is concerned, is defined under Section 375 of IPC. The said section reads as under: 375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven 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 lawfully married. 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 lawfully 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 gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 21. 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 descriptions mentioned above. Section 376 of IPC speaks for punishment for rape. 22. Thus, to prove the offence of 'Rape', the prosecution is under obligation to prove the following: 1) Sexual intercourse by a man with a woman 2) The sexual intercourse must be under circumstances falling under any of the six clauses given under section 375 of IPC. 3) That the accused had sexual intercourse with his own wife aged under twelve years. Moreover, victim's consent is not a real consent, and rape is said to have committed in the following cases: 1) Where victim's submission is procured by threats of personal violence; 2) Where the consent is obtained by fraud as per the nature of the act. 3) That the accused had sexual intercourse with his own wife aged under twelve years. Moreover, victim's consent is not a real consent, and rape is said to have committed in the following cases: 1) Where victim's submission is procured by threats of personal violence; 2) Where the consent is obtained by fraud as per the nature of the act. 3) Where the consent is obtained by impersonating the women's husband; 4) Where the female is so mentally deficient or young or drunk that her knowledge and understanding are such that she is not in a position to decide whether to consent or resist; 23. Keeping the aforesaid definition and ingredients of the offence in mind, let me analyze the evidence placed on record by the prosecution to ascertain as to whether the prosecution is able to establish the guilt of the accused or otherwise. 24. It is the case of the prosecution, that both victim girl and accused were the neighbours. Both had love affair between them. Even prior to filing of the complaint i.e., Ex.P1 dated 28.10.2010, a similar complaint was also filed as per Ex.P27 on 17.07.2010 by the victim girl herself. It is stated in Ex.P27 that she is residing at Tagaduru village along with her parents and studying in 2nd PUC at Janatha Pre-University College. It is stated by her that for the last one year prior to filing complaint she was in love with accused. Her parents and family members of the accused got the knowledge of the same. Even the elderly members of the village with whom the love affair were brought to their notice, advised the accused to marry the victim girl. Though the parents of the accused girl agreed and gave consent to perform the marriage of accused with victim girl, but, they ran away to Mysuru. Therefore, she lodged a complaint as per Ex.P27 requesting the police to call the accused and his parents to render justice to her. 25. In the second complaint dated 28.11.2010 for the first time, she had stated that for the last six months prior to filing of his compliant Ex.P27, accused started cheating her. On assuring to marry her, with force raped her. Thereafter, panchayat was called and the elderly members of the village conducted the panchayat. 25. In the second complaint dated 28.11.2010 for the first time, she had stated that for the last six months prior to filing of his compliant Ex.P27, accused started cheating her. On assuring to marry her, with force raped her. Thereafter, panchayat was called and the elderly members of the village conducted the panchayat. At that time, it was told by the father of the accused that he had to perform the marriage of sister of accused i.e., his daughter and prayed for two months time. Accordingly, two months time was granted by the panchayathdars. Even after that accused or his parents did not respond to the panchayathdars or to the call of her father, therefore, a complaint came to be filed by her vide Ex.P1. 26. On comparing the contents of Ex.P27, the initial complaint dated 17.07.2010 and the contents of Ex.P1, the second complaint dated 28.07.2010, the first complaint is silent about the alleged cheating, rape. Whereas, the second complaint is silent about the date of alleged offence of rape. That means she has filed quite contradictory complaints before the Kowlande police station. If one complaint is believed in its entirety, the other complaint cannot be believed in toto. 27. Ex.P2 is the scene of the panchanama prepared by the IO on 29.11.2010 as shown by the complainant in the presence of panchayath. Ex.P3 and P4 are the photographs. Ex.P5 are the bunch of love letters addressed by the accused to the complainant victim girl expressing his love with victim girl. Ex.P6 is the letter. Ex.P7 is the panchanama under which 11 letters are seized. The love letters marked under Ex.P5 are seized by the IO. So far as handwriting on these letters is concerned, the accused is not disputing. Even these letters are sent for scientific examination and a report to that effect is received along with the admitted hand- writings of accused as per Ex.P24. It is opined by the Scientific Examiner that the said hand-writings belong to the accused. To that effect, he submitted a report with certificate of examination as per Ex.P22 and P.23. A detailed mode of scientific examination is stated in Ex.P23. While marking these documents, no little finger was raised by the defence. That means accused admits the handwriting on these letters as opined by the Scientific Examiner. 28. To that effect, he submitted a report with certificate of examination as per Ex.P22 and P.23. A detailed mode of scientific examination is stated in Ex.P23. While marking these documents, no little finger was raised by the defence. That means accused admits the handwriting on these letters as opined by the Scientific Examiner. 28. The important document is Ex.P13 the opinion of the doctor after medically examining the accused. It is stated that accused is capable of doing sexual intercourse and is opined that there is no evidence to suggest that he is incapable of doing sexual intercourse. The contents of Ex.P13 is not denied by the defence. 29. Another important document is Ex.P14 addressed by the IO to the doctor PW.13 Dr.Veena to medically examine the victim girl and submit the report. Accordingly, after medically examining the victim girl- PW1, the doctor gave the report/opinion that, the victim girl at the time of medical examination was aged more than 17 years and less than 18 years. The said age is determined based upon her physical, dental, radiological findings and secondary sexual character. It is her evidence before the trial Court that hymen was not torn but, her hymen admits two fingers. Accordingly the doctor has issued a report as per Ex.P14. It is opined by the doctor after medically examining the victim girl that, it is not possible to opine that whether she had any sexual intercourse or not. Ex.D2 to D15 are the bunch of love letters addressed by victim girl to the accused wherein she had expressed her deep love with the accused. These are all the important documents produced by the prosecution in proving its case. 30. So far as oral evidence is concerned, PW1 being the victim girl has stated beyond the contents of her complaint so filed as per Ex.P1. It is her evidence that, herself and accused were in love with each other. At that time, she was studying in PUC. Accused was an agriculturist and also doing other works. There were exchange of love letters in between them. According to her, six months prior to filing of complaint, accused committed rape on her. It is her evidence that, herself and accused were in love with each other. At that time, she was studying in PUC. Accused was an agriculturist and also doing other works. There were exchange of love letters in between them. According to her, six months prior to filing of complaint, accused committed rape on her. She states that one day prior to six months of fling of complaint, at 4.00 pm, when herself and accused were talking with each other in a backyard of the house of the accused, though she resisted and asked the accused not to commit sexual intercourse with her, but, he committed rape on her. She states about the place where alleged offence said to have been committed by the accused. It is her evidence that in the said place, there is no movement of any public. Even, from that place, one cannot see the public who used to move. According to her evidence, after undressing her so also undressing himself, he committed rape on her though she resisted. For the first time, she states in her evidence that as he intended to marry her, therefore, forcibly he committed such an offence on her. According to her, at that place they were together till 7.00 pm. Thereafter, he asked her to go to her house and at that time she told that as he had sexual intercourse with her, asked him to take her to his house. But, accused was reluctant. When she went to her house, her father was in the house. She narrated the incident to her father as he asked why she came late. Her father informed the father of the accused. Thereafter, as her father understood that no justice will be given to her, they approached the panchayathdars of her village. It is her further evidence that, panchayathdars advised the accused to marry the victim girl. As there was no response, complaint Ex.P1 came to be filed. She narrates about she being taken to the hospital for medical examination etc. She identifies the letters addressed by the accused to her. According to her, though accused assured her to marry, but, ran away. 31. On reading the contents of the complaint and her statement in her examination-in-chief, we find sufficient improvements in her evidence. She narrates about she being taken to the hospital for medical examination etc. She identifies the letters addressed by the accused to her. According to her, though accused assured her to marry, but, ran away. 31. On reading the contents of the complaint and her statement in her examination-in-chief, we find sufficient improvements in her evidence. Whatever she has not stated in her complaint has been stated for the first time in her evidence on oath. She has been thoroughly cross- examined by the defence. She admits that when she was in love with the accused, she was studying in 10th Standard. She admits that, in the said love letters, accused has not stated that he is going to marry her. In unequivocal terms, she states that prior to the alleged incident so stated in this case, she had no physical contact with the accused. According to her, the backyard of the accused is the 5 minutes away from her house. When she was in SSLC, there were exchange of letters in between both. According to her, in all 16 letters were addressed by the accused. For two years accused used to visit her house. On that day, she went to the backyard at 4.30 p.m. and was there upto 7.00 p.m. When she returned to her house, the second wife of her father was in the house. She narrated the incident to her. Thereafter, after three days, her father called the Panchayath after meeting the elderly members of his village. According to her version in the examination-in- chief, when she came to the house, her father was in the house. She narrated the incident to him. Her father called the father of the accused etc. But in the cross- examination, she had given a different evidence and states that after three days of incident, Panchayath was called. According to her evidence, she narrated about the incident to the panchayathdars also. She also had narrated about running away of the accused. She went to the police station at 9.00 pm on that day. According to her, after four days of filing complaint, she was taken to the doctor for medical examination. She states about the letters addressed to her by the accused so confronted to her as per Ex.D2 to D15. She had denied all other suggestions. 32. She went to the police station at 9.00 pm on that day. According to her, after four days of filing complaint, she was taken to the doctor for medical examination. She states about the letters addressed to her by the accused so confronted to her as per Ex.D2 to D15. She had denied all other suggestions. 32. On reading the evidence of PW1 the victim girl, we find so many improvements, exaggerations, embellishments, contradictions and omissions in her evidence with that of the complaint allegations. 33. PW.2 Basavegowda PW.3 Rajamma Basavegowda are the father and second wife of PW2 respectively. Evidently, they are the hearsay witnesses. As per the evidence of PW.2 on getting the information about the incident within six months, there were four panchayaths conducted. Discussion was made. At that time, father of the accused agreed to perform his son's marriage with victim girl and prayed for two months time. In the cross- examination, PW.2 states that, on the date of incident, he came to the house at 6.00 pm and at that time his wife and victim girl were talking with each other. On that day he came to know about love affairs between his daughter and accused. This is altogether a different evidence spoken to by PW.2. 34. PW.3 Rajamma states that, about two years back at 6.00 pm her daughter i.e., victim girl after coming from college was found weeping. When she enquired, she told that accused took her to his backyard, forcibly by gagging her mouth, raped her. This evidence is not spoken to by the victim girl. In the cross- examination, PW.3 deposed ignorance about love affair between victim girl and accused. According to her, when victim girl narrated about the incident, Saraswathi and her husband were not there in the house. There were three panchayaths conducted. On the following day of incident, the panchayath took place. In the said panchayath, about 200 persons of Keranguru village and 300 persons of her village gathered. She does not know the discussion which has taken place in the panchayath. This PW.3 has given a different evidence with that of the evidence of PWs 1 and 2. 35. PW.4 Madegowda being Pancha was signatory to Ex.P7 Mahazar but, has been turned hostile. Therefore, his evidence would not help the case of the prosecution. 36. PW.5 - Revegowda, S/o.Muddegowda is the elderly person of Kiragunda village. This PW.3 has given a different evidence with that of the evidence of PWs 1 and 2. 35. PW.4 Madegowda being Pancha was signatory to Ex.P7 Mahazar but, has been turned hostile. Therefore, his evidence would not help the case of the prosecution. 36. PW.5 - Revegowda, S/o.Muddegowda is the elderly person of Kiragunda village. According to his evidence, PW.2 father of the victim girl came to him and informed about commission of rape by the accused on her daughter (victim girl). He requested to give justice to him. It is his further evidence that, therefore, himself from his village and other persons of his village like Doddegowda, Siddaraju, Javeregowda, etc., together arranged the Panchayath along with elderly members of Tagadur village by name Madegowda, gurumallegowda and another Madegowda about two years back prior to giving of his evidence. In the said Pancahyath accused as well as his father Muddeumadegowda attended. The father of the accused sought two months' time as he has scheduled the marriage of his daughter and assured to arrange a marriage of victim girl with accused (his son). Accordingly, Panchayathdars agreed. It is his further evidence that, as agreed no marriage of accused and victim girl took place. When enquired with the father of the accused, he stated ignorance about the said marriage. Accordingly, they informed PW.2 to take necessary action. 37. In the cross-examination, he states that victim girl is not belonging to his village whereas, the first wife of Basavegowda was the native of his village and she is not related to him. According to him, in all twelve persons went to Tagadur village to attend the panchayath. According to him people of Tagadur village gathered in the panchaayath. Except the said Panchayath no other panchayaths were held. 38. On perusal of the evidence of this witness, it shows that he has altogether given a different evidence with regard to conducting of Panchayaths. As per the case of the prosecution, in all four panchayaths were conducted. but, according to this PW.5, except the panchayath which he has told in the cross-examination, there were no other panchayaths. He being the hearsay witness about the incident, no much value can be attached to his evidence but, however, his evidence is to be accepted to the extent of conducting panchayath of which he is one of the panchayathdar. 39. but, according to this PW.5, except the panchayath which he has told in the cross-examination, there were no other panchayaths. He being the hearsay witness about the incident, no much value can be attached to his evidence but, however, his evidence is to be accepted to the extent of conducting panchayath of which he is one of the panchayathdar. 39. PW.6 P. Ravi is the relative of victim girl and according to him on getting information about the incident, the panchayath was conducted in Tagaduru village. 50-60 persons of Tagadur village gathered in the said panchayath. He being a hearsay witness, much value cannot be attached to his evidence. His evidence can be believed to the extent that he attended the panchayath so also was present when Ex.P7 was prepared. 40. PW.P7 Siddaraju S/o. Ramegowda is concerned, he is signatory to Ex.P10 under which the letters were seized and marked as Ex.P5. Seizure of letters as per Ex.P5 is not disputed by the defence. According to the cross-examination directed to PW.7, often he used to visit the Police Station and in the Police Station he signed the Panchanama. With regard to the seizure of the letters under the aforesaid panchanama, there is no serious dispute between both the sides. 41. PW.8, Gurumallegowda, S/o.Puttegowda is resident of Tagadur village and elderly member of the said village who participated in the panchayath. According to his evidence, when panchayath was conducted, the father of the accused, Muddumadegowda was present but, his son (accused) was absent. When enquired, he assured to perform the marriage of his son (accused) with victim girl. In the cross-examination, he states that the father of the victim girl has not given any written letter to conduct the Panchayath. He deposes ignorance about the avocation of the accused. 42. On reading the evidence of this PW.8, he is quite ignorant about the incident and had got the knowledge about the incident from others, except participating in the pacnahayath he has not stated any other evidence. To that extent his evidence is to be accepted. 43. PW.9 Shivamallegowda and PW.10 Madegoda are cited as Panchas to Ex.P2 but, have been turned hostile. Nothing worth is elicited from their mouth so as to disbelieve their version spoken in the examination-in- chief. Therefore, their evidence would not help the prosecution. 44. To that extent his evidence is to be accepted. 43. PW.9 Shivamallegowda and PW.10 Madegoda are cited as Panchas to Ex.P2 but, have been turned hostile. Nothing worth is elicited from their mouth so as to disbelieve their version spoken in the examination-in- chief. Therefore, their evidence would not help the prosecution. 44. PW.11, Rajashankar, S/o.Rajendra Swamy was a Principal of Janatha PU College at the relevant time who has issued Ex.P12 showing the date of birth of victim girl as 20.03.1994. The date of birth of victim girl as stated in Ex.P12 is not disputed either by the prosecution or by the defence. To the extent of issuing Ex.P12, evidence of PW.11 is to be accepted. 45. PW.12, Dr.Jayaprakash is a Doctor who medically examined the accused and issued Ex.P13. There is no dispute with regard to the contents of Ex.P13 by the accused. It is stated in the cross-examination that if any forcible sexual intercourse is committed such person may sustain small injuries. For this suggestion directed to him, he has given positive evidence. To the extent of contents of Ex.P13 evidence of PW.12 is to be accepted as the contents of this document are not denied by the defence. 46. PW.13, Dr.Veena W/o. Gangadhar, having medically examined the victim girl on 29.11.2010 at 4.50 p.m. has issued the certificate as per Ex.P14 noticing the contents of her medical examination in the said document. While discussing on Ex.P14, it is discussed that what were all the features she noticed while medically examining the victim girl. Contents of Ex.P14 are not disputed by both the side. It has come in the cross-examination of PW.13 that, normally in case of rape, the victim may sustain injuries on her person but, she has not noticed any type of injuries on the person of the victim girl. She has denied all other suggestions directed to her. 47. PW.14 K.G.Veena, PC of Kowlande police station accompanied the victim girl to the Hospital for medical examination and submitted a report as per Ex.P15. According to her, the victim girl was taken to the Hospital in between 12.30 p.m. and 1.00 p.m. but she cannot say the time of her return to the police station. To the extent of accompanying victim girl to the Hospital, her evidence is to be believed. According to her, the victim girl was taken to the Hospital in between 12.30 p.m. and 1.00 p.m. but she cannot say the time of her return to the police station. To the extent of accompanying victim girl to the Hospital, her evidence is to be believed. Likewise PW.15 P.Champak the Police Constable took the victim girl on 29.11.2010 to the Mysore Medical College for the purpose of medical examination and obtained certificate as per Ex.P17. To the extent of obtaining Ex.P17 after medical examination his version is to be believed. 48. PW.16, Dr.D.N.Chandrashekar also examined the victim girl and after medical examination of victim girl of her teeth, X-ray, physical examination, development of her private part etc.., came to the opinion that, the victim girl was aged more than 17 years and less than 18 years and to that effect he has issued Ex.P17. 49. No effective cross-examination is directed. It is his evidence that, if the girl is minor he has to obtain the permission of the parents or guardian of the girl. But, in this case, he has not obtained any person either from the parents or guardian of the victim girl. 50. From the evidence of this witness, it shows that the victim girl was aged between more than 17 years and less than 18 years when she was medically examined. This fact is not disputed by the prosecution or the defence. 51. PW.17 was the Village Accountant of Nanjangud Taluk and has issued RTC extract as per Ex.P18. NO cross-examination is directed to this witness by the defence. To the extent of issuing Ex.P18 his evidence is to be believed. 52. PW.18, Nanjundiah was HC of Kowlande police station as the relevant time on 29.11.2010, as per the directions of PSI went to Tagadur village and as shown by the victim girl, prepared the Pancahnama of the scene of offence as per Ex.P2 obtained the photographs as per Ex.P3 and P4 prepared the sketch as per Ex.P19. According to his evidence, the said scene of offence and as shown by the victim, he prepared the panchanama. To the extent of conducting panchanama and obtaining the photographs, his evidence is to be believed. 53. According to his evidence, the said scene of offence and as shown by the victim, he prepared the panchanama. To the extent of conducting panchanama and obtaining the photographs, his evidence is to be believed. 53. PW.19, Krishna S/o. Ramanna, the ASI of Kowlande police station at the relevant time who typed the complaint filed by the victim as dictated by her and registered the crime in Crime NO.179/2010 of Kowlande PS prepared the FIR as per Ex.P20. He identifies Ex.P1. No cross-examination is directed to this witness by the defence. That means, defence admits filing of a complaint as per Ex.P1 and also setting the criminal law in motion. 54. PW.20, Devendra S/o.Ramaiah, the Police Constable of Kowlande Police Station at the relevant time, as per the directions of his superiors, he apprehended the accused at Tagadur Bus Stand and produced before IO and produced Ex.P21 report. Apprehension of accused and his production before the IO is not disputed by the defence. 55. PW.21 Yathish Kumar S/o. Revanna was Police Constable of Kowlande Police station carried the FIR to the Magistrate. No cross-examination is directed to him. 56. PW.22 Zenith S/o.Mohammed Basha, the In- charge Scientific Officer, FSL, Bengaluru speaks in his evidence about scientifically examining 16 love letters comparing the hand writings. On scientific examination, he has given opinion that the said handwritings pertain to accused and to that effect, he has given opinion as per Ex.P22. Except denial nothing is elicited from his mouth. 57. As discussed supra, the contents of letters stated above and the handwriting pertains to accused is not disputed by the defence. 58. PW.23, Mallegowda, S/o.Kullakuppegowda is a neighbour to the house of the victim and accused. But, has been declared as hostile witness. Nothing worth has been elicited from his mouth. 59. PW.24, Pramodh Kumar B., was the investigation officer who conducted the investigation and filed the charge sheet against the accused. Though he has been directed with intensive cross-examination but, nothing worth is elicited from his mouth. 60. So far conducting of investigation by him, defence never disputes the same. 61. On cumulative reading of the evidence adduced by the prosecution, it shows that, much contradictory and discrepant evidence has been spoken to by all the witnesses. Though he has been directed with intensive cross-examination but, nothing worth is elicited from his mouth. 60. So far conducting of investigation by him, defence never disputes the same. 61. On cumulative reading of the evidence adduced by the prosecution, it shows that, much contradictory and discrepant evidence has been spoken to by all the witnesses. As stated supra, PW.1 being the main witness in this case has altogether given a different evidence with that of her own first complaint marked as Ex.P27 and second complaint on which the criminal law was set in motion marked as Ex.P1. 62. On reading the entire oral and documentary evidence there are large discrepancies in the complaint made to the police both Ex.P27 and P1 respectively. Even based upon Ex.P1, FIR was registered if considered in the light of the statement which the complaint was filed as per Ex.P27, we find so many improvements, embellishments. This fact is not properly explained by the prosecution. 63. On reading the entire text of the evidence, it shows that, the relations between the parties are shown to be consensual if any. The mis-statement by the complainant is evident from the fact that she claimed to have love affair with the accused and she had no physical contact prior to six months of filing the complaint. The initiation of the proceedings against the accused as per the argument of the counsel for the accused being an abuse of process of law have some force. 64. The learned HCGP submitted that, on account of the assertions made in the complaint, it is proved by the prosecution that the accused has committed the aforesaid offence. It is alleged by the complainant that on a false promise to marry, both herself and accused had physical intercourse. There was an assurance to perform the marriage by the father of accused. All the family members knew about the same. It was all in good faith on the promise made by the accused. According to the prosecution, with these facts on record, it is a clear case of rape on false promise to marry is made out against the accused. 65. On referring the FIR and the complaint, it is stated by the victim that herself and accused had love affair. According to her, prior to six months of the incident, on assurance to marry her, accused raped her. 65. On referring the FIR and the complaint, it is stated by the victim that herself and accused had love affair. According to her, prior to six months of the incident, on assurance to marry her, accused raped her. She never disclosed the date of such an offence. Even thereafter also there were exchange of love letters in between them. She has categorically stated that, in all the love letters addressed by accused there is no mention that he is going to marry her. Gradually the relationship between them developed as per her evidence. 66. The investigation officer after registering the complaint never chose to record her statement under Section 164 of Cr.PC. In the second complaint Ex.P1 as per the evidence placed on record, there was a complete change in the stand of the complainant. The fact remains that the parties admittedly were in relationship from the time when the victim girl was studying in 10th Standard. Alleged promise to marry came about six months back prior to filing of compliant Ex.P1 from where they started having physical relation. It has also come on record that, it is not only the consent of the complainant which is really evident from her own evidence. It is her evidence that, often both used to meet together. On the date of alleged incident, she left the house at 4.30 p.m. and she was with the accused till 7.30 p.m. 67. From the contents of the complaint i.e. Ex.P1 on the basis of which, FIR was got registered and her earlier statement before the Police as per Ex.P27 it is evident that there was no promise to marry initially when relations between them started when she was studying in 10th Standard. In any case, even on the dates, months, time etc…, when the complainant alleged about her visit with the accused, she never stated about promise to marry as alleged in Ex.P1. In Ex.P1, for the first time, after six months of the incident, she states though there was a promise to marry when panchayath was conducted accused ran away from the village. It is not a case where the complainant was of an immature age who could not foresee her welfare and take right decision. She was a grown up girl studying in PUC, aged about 18 years. It is not a case where the complainant was of an immature age who could not foresee her welfare and take right decision. She was a grown up girl studying in PUC, aged about 18 years. She was matured and intelligent enough to understand the consequences of the moral and immoral acts for which she consented. In fact, it was a case of betraying her welfare. 68. In a recent decision of Hon'ble Apex in 2024 SCC Online SC 316 between Mrs.X vs. Mrs.A and others, the Hon'ble Apex Court have categorically held that, in a case of present nature, taking into consideration of the allegations of FIR and charge sheet as they stand, the crucial ingredients of the offence have to be proved. In the course of the judgment in para.11 the Apex Court has referred the judgment in Pramod Suryabhan Pawar vs. State of Maharashtra reported in (2019) 9 SCC 608 wherein, the Hon'ble Apex Court has observed in para.18 of the judgment as under: "To summarise the legal position that emerges from the above cases, the ‘‘consent’’ of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a ‘‘misconception of fact’’ arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. 69. In the aforesaid 2024 SCC Online SC 316 at para.13 the Hon'ble Apex Court has given events that have taken place based upon the facts of the case. 70. By taking the allegations in the FIR, the charge sheet and the contents of Ex.P27, the first complaint and the evidence placed on record by the prosecution, the crucial ingredients of the offence under Sections 415 and 375 of IPC are absent in this case. The relationship between the parties was purely of a consensual nature. 70. By taking the allegations in the FIR, the charge sheet and the contents of Ex.P27, the first complaint and the evidence placed on record by the prosecution, the crucial ingredients of the offence under Sections 415 and 375 of IPC are absent in this case. The relationship between the parties was purely of a consensual nature. In the backdrop of interpretation of the various relevant provisions and also the evidence placed on record by the prosecution, if looked into, the trial Court has committed a factual and legal error in appreciating the evidence placed on record by the prosecution. None of the ingredients of offence under Section 415 and 375 of the IPC are fulfilled by the prosecution with legal and acceptable evidence. This being the first appellate Court, under the provisions of the criminal law the appellant court, can very well re-appreciate the evidence and come to a definite conclusion to know that whether the prosecution was right in proving its case or otherwise. In the light of the aforesaid ingredients culled out in the aforesaid paras, offences alleged against the accused and in the light of evidence placed by the prosecution, in my opinion, the prosecution case suffers from material particulars. The evidence of victim is full of improvements, embellishments and with contradictory statement not only in the complaints so filed by her but also in the evidence. In a case of present nature, victim is the best witness to speak the real truth. But, her stand throughout the evidence is altogether is inconsistent. Such a evidence never inspire any confidence so as to believe her story. 71. During the course of arguments, it was submitted by the learned HCGP as well as the accused appellant that the victim girl is married to a different person and residing happily with her husband and children. Even the accused is also married and residing happily with his wife. This submission is placed on record as per the submissions of both the side. 72. If all the aforesaid factual features coupled with the position of law is put together, the prosecution has utterly failed to prove the guilt of the accused to the hilt. The learned trial Court by basing the evidence of PW.1 victim only has come to a wrong conclusion that, it was a case of cheating and rape which in my opinion is incorrect. 73. The learned trial Court by basing the evidence of PW.1 victim only has come to a wrong conclusion that, it was a case of cheating and rape which in my opinion is incorrect. 73. The said finding of the trial Court requires interference by this Court. Consequentially, the judgment of conviction and order of sentence passed by the trial Court is liable to be set aside by allowing this appeal. Resultantly, I pass the following: ORDER i) Appeal filed by the appellant is allowed. ii) Judgment of Conviction dated 12.6.2014 and order of sentence dated 17.6.2014 passed in SC No.78/2011 by the VII Additional Sessions Judge, Mysore dated 12.6.2014 is set aside. iii) The appellant- accused is acquitted of the charges levelled against him under Section 415 and 376 of IPC. iv) His bail bonds stand cancelled and is set at liberty. v) Send back the trial Court records along with a copy of the judgment. vi) Orders regarding disposal of the property is undisturbed.