JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. The present appeal is directed against the judgment and order of conviction dated 18.07.2007 and sentence dated 19.07.2007 passed by learned 5th Additional Sessions Judge, FTC, Dumka in S.C. No.277 of 2004 whereby and whereunder, the sole appellant has been held guilty for the offence under section 376 of INDIAN PENAL CODE and sentenced to undergo R.I. of 7 years with fine of Rs.2,000/- with default stipulation. FACTUAL MATRIX 2. Factual matrix giving rise to this appeal is based on the complaint petition being C.P. No.132 of 2004 filed on 02.04.2004 in the court of CJM, Dumka by the prosecutrix (complainant) stating inter alia that in the last month of Aghan on Tuesday at about 5:00 PM, while the prosecutrix (P.W.7) was going towards the house of Chandan Hembrom (appellant) in village-Murbhanga, meanwhile, Chandan Hembrom caught hold of her and dragged inside his dilapidated house and committed rape upon her by pressing her mouth. When the prosecutrix started weeping, the accused assured her to solemnize marriage with her. Thereafter, on false pretext of marriage, the accused Chandan Hembrom frequently committed rape with her taking her to Bangal in Gando Durga Puja Fair, Kushpahari Ras Fair, Balijore Fair, Palopisa Kadma Lakhi Puja Fair. It is further alleged that due to sexual intercourse, the prosecutrix (P.W.7) got conceived. Thereafter, she informed the accused about the pregnancy then the accused Chandan Hembrom along with Dular Hembrom and Shushilal Tudu tried to abort her pregnancy and also gave Rs.500/- to her for abortion. It is further alleged that when the prosecutrix did not concede to the accused regarding abortion, then they started threatening to kill her and assaulted her. It is further alleged that when the prosecutrix was pregnant for 3-4 months, she informed her parents, thereafter, her parents and villagers made contact with all the accused persons and asked them to get the accused Chandan Hemobrom married with the prosecutrix but the other accused persons locked the accused Chandan Hembrom in the house and sent him somewhere, so that he could not attend the Panchayati. It is further alleged that the accused persons have misbehaved with the prosecutrix and her parents. The prosecutrix again went to the house of accused Chandan Hembrom with a proposal of marriage but other accused, Dular Hembrom and Shushilal Tudu assaulted the prosecutrix and dashed her away from the house. It is further alleged that the accused persons have misbehaved with the prosecutrix and her parents. The prosecutrix again went to the house of accused Chandan Hembrom with a proposal of marriage but other accused, Dular Hembrom and Shushilal Tudu assaulted the prosecutrix and dashed her away from the house. The sister of the accused, Dular Hembrom and his brother-in-law Sushilal Tudu were trying to solemnize marriage of the accused Chandan Hembrom with another girl. 3. On the basis of above information, the prosecutrix filed a complaint petition for the offences under sections 376, 420, 323, 201, 500 and 34 of IPC, which has been sent to Dumka (M) P.S. under section 156(3) Cr.P.C for instituting the FIR. Accordingly, Dumka (M) P.S. Case No.41 of 2004 under the aforesaid sections was instituted and charge to investigation of the case was given to S.I. Sunil Kumar Singh. After completion of investigation, charge-sheet was submitted against the accused persons for the offence under sections 376, 417, 323, 504 and 34 of IPC. The case was committed to the court of Sessions where S.C. No.277 of 2004 was registered. The appellant has denied the charge levelled against him and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and sentence has been passed, which has been assailed in this appeal. 4. In the course of trial, altogether 10 witnesses have been examined by the prosecution namely:- P.W.1 Dr. Pushpalata Tudu P.W.2 Ram Das Soren P.W.3- Kistu Hembrom P.W.4- Gondhu Soren (Murmu) P.W.5- Ajad Mian P.W.6 Naushad Mian P.W.7-Prosecutrix (X) P.W.8-Hirali Marandi P.W.9- Santi Soren P.W.10-Chandeshwar Prasad. Apart from oral testimony of the witnesses, following documentary evidences have been adduced: Ext.1 is the medical report of prosecutrix Ext.2 is the signature of the prosecutrix on complaint petition. Ext.3 is endorsement on the fardbayan 5. In defence, no witness has been examined in this case. Neither any documents has been adduced. The case of defence is denial from occurrence and false implication. 6. Learned counsel for the appellant assailing the impugned judgment and order of conviction and sentence of the appellant has argued that the appellant has been falsely implicated in this case on the basis of false allegation. From evidence on record, it is proved that the victim was consenting party and the sexual relation has been developed with the consent of both the parties. From evidence on record, it is proved that the victim was consenting party and the sexual relation has been developed with the consent of both the parties. It is further submitted that the Investigating Officer of this case has not been examined in this case and the same has caused serious prejudice to the case of defence. It is further submitted that the victim was major girl and was able to extend her consent. Learned counsel for the appellant has further submitted that two other co-accused have been acquitted by the learned trial court on the basis of same set of evidence. Therefore, the impugned judgment and order of conviction and sentence of the appellant is liable to be set aside, allowing this appeal. 7. On the other hand, learned Additional Public Prosecutor appearing for the State defending the impugned judgment of conviction and sentence of the appellant has submitted that there is no illegality or infirmity in the impugned judgment. The appellant has first committed rape on the victim girl, thereafter, in assurance of marriage, continued to have sexual intercourse with the victim girl resulting in her pregnancy. The appellant has also abstained from Panchayati and fled away from his house, which showing the intention of appellant was not to solemnize marriage from the very inception. The appellant has deliberately spoiled the life of the victim girl. There is no substance in the points of argument raised on behalf of the appellant and no merits in this appeal, which is fit to be dismissed. 8. I have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf both side. 9. It appears that altogether 10 witnesses were examined in this case including the prosecutrix and out of them P.W.3, P.W.6, P.W.8 and P.W.9 have not supported the prosecution story at all and they have been either declared hostile or tendered for cross-examination. P.W.-2, Ram Das Soren is the father of the victim. According to his evidence, the occurrence is of one year back, when his daughter and the accused Chandan Hembrom went to Kolkata for doing some work. This witness further deposed that his daughter P.W.7 is pregnant by the appellant Chandan Hembrom. From his evidence, it appears that he came to know about the fact of pregnancy by P.W.7. According to his evidence, the occurrence is of one year back, when his daughter and the accused Chandan Hembrom went to Kolkata for doing some work. This witness further deposed that his daughter P.W.7 is pregnant by the appellant Chandan Hembrom. From his evidence, it appears that he came to know about the fact of pregnancy by P.W.7. P.W.4-Gondhu Soren (Murmu) is a hearsay witness, who came to know about the pregnancy of the prosecutrix by Ramdas Soren. He deposed that due to illicit sexual intercourse committed by Chandan Hembrom(appellant), her daughter became pregnant. P.W.5-Ajad Mian is also a hearsay witness and he came to know from Ram Das Soren (P.W.2) that Chandan Hembrom has committed rape with the victim due to which she became pregnant. Ram Das Soren informed 2-4 persons of the village and took them to the accused. This witness also went to meet the accused/appellant, who told that he will not help the girl and the appellant offered Rs.500/- then they returned home. P.W.7 is the victim-cum-prosecutrix of this case. According to her evidence, at about 5:00 PM, on one Tuesday (month of Aghan), while she was passing through the house of the accused/appellant, he caught hold of her and took her inside his dilapidated house and committed rape upon her and when the prosecutrix started weeping, the appellant assured her to marry with her. Later on, on false pretext of marriage, the appellant committed rape upon her several times at different places including in some village fairs and also in Bengal. Due to frequent physical relationships, the prosecutrix became pregnant for 3 to 4 months then she informed about the pregnancy to the accused/appellant but he along with other co-accused persons tried to abort the pregnancy by giving Rs.500/-. This witness further deposed that she informed the occurrence to her parents. Thereafter, her parents along with some villagers called the accused for panchayati but the accused did not turn up. The other accused persons locked the accused/appellant in a room and later on they helped him in escaping from panchyati. The prosecutrix went to house of the accused/appellant but his sister Dular Hembrom and his brother-in-law, Shushilal Tudu assaulted and threatened her to kill. P.W.10-S.I. Chandeshwar Prasad has been examined as a formal witness. The other accused persons locked the accused/appellant in a room and later on they helped him in escaping from panchyati. The prosecutrix went to house of the accused/appellant but his sister Dular Hembrom and his brother-in-law, Shushilal Tudu assaulted and threatened her to kill. P.W.10-S.I. Chandeshwar Prasad has been examined as a formal witness. This witness has deposed that on 14.04.2004, he was posted at Dumka Muffasil Police Station and the then Officer-in-Charge was M.F. Beg and S.I. Sunil Kumar Singh. He further deposed that on the said date, a petition of complaint case No.132 of 2004 was received at the police station from the court of CJM, Dumka on the basis of which Dumka(M) P.S. Case No.41 of 2004 was registered and charge of investigation was given to S.I. Sunil Kumar Singh. The endorsement for registration of case is proved as Ext.3. In his cross-examination, this witness admits that he has not conducted the investigation of the case. P.W.1-Dr. Pushpalata Tudu is the medical officer and she has deposed that on 14.04.2004, she was posted as Medical Officer (C.A.S.) in Sadar Hospital, Dumka, she examined the victim at about 10:55 AM and found following:- Height 5’2”. Weight-124 lb. Teeth upper 14, lower 14. Breast developed. Auxiliary and public hair present. No external injury over her body. Per abdomen examination uterus 20-21 week size. No internal injury over her private part. Hymen shows rupture. No foreign hair present. Vaginal swab was taken and sent to pathology for microscopic examination for spermatozoa. Report shows spermatozoa was not found dead or alive. The report was given by Dr. R.P. Verma, In-Charge, Pathologist Sadar Hospital, Dumka. X-ray of both wrist joints, both knee joints iliac crest were advised and X-ray plates were shown to Dr. S.N. Jha orthopedic surgeon Sadar Hospital, Dumka, who have the opinion-X-ray of knee joints shows upper epiphysis of both tibia and fibula united. X-ray of wrist joint shows lower epiphysis of both radius and ulna united. X- ray of hip bones shows union of crest of both ilium bones in an advance stage. Ultrasonography of uterus was done on 16.04.2004. According to above findings no definite opinion could be given that the victim was raped or not recently. As per age is concerned according to secondary sex characters, number of teeth and x-ray report, the age of the victim is about 18 years. Ultrasonography of uterus was done on 16.04.2004. According to above findings no definite opinion could be given that the victim was raped or not recently. As per age is concerned according to secondary sex characters, number of teeth and x-ray report, the age of the victim is about 18 years. According to ultrasonography report, the victim is pregnant and carrying 20.3 weeks pregnancy. This witness has further stated that in order to ascertain the father of the child, DNA test is required. This witness has proved the report as Ext.-1. 10. From the aforesaid discussion of prosecution evidence, it is crystal clear that the victim has deposed in categorical terms that she was forcibly ravished by the present appellant for the first time at his dilapidated house and thereafter they went several places where the appellant committed rape upon her on the pretext of false promise of marriage, which he never intended to fulfill. It is revealed from the evidence of the victim as well as her father that after coming to know about the pregnancy of the victim, a Panchayati was also held but the appellant instead of attending the Panchayati managed to flee away from his house. Again the victim approached to appellant and requested for marriage but she was threatened and assaulted by appellant, his sister and brother-in-law. Therefore, there is no reason at all for false implication of the appellant. The appellant has also not elicited in the cross- examination of witnesses any material showing any motive for false implication. It is also not pleaded by the appellant that there was love-affairs with the victim girl prior to the occurrence. Therefore, the plea of consensual sex taken by the appellant does not inspire confidence. 11. In the instant case, the attending facts and circumstances as revealed in the evidence of the witnesses particularly prosecutrix unerringly tend to show that the victim was at first raped by the appellant while she was passing through the house of the appellant. Thereafter, on promise of marriage, the sexual indulgence was continued for considerable period of 3-4 months, in the meantime, the victim girl became pregnant and carrying pregnancy of 20-21 weeks. Thereafter, she again requested the appellant to solemnize marriage but he continuously avoided in one pretext or another. Thereafter, on promise of marriage, the sexual indulgence was continued for considerable period of 3-4 months, in the meantime, the victim girl became pregnant and carrying pregnancy of 20-21 weeks. Thereafter, she again requested the appellant to solemnize marriage but he continuously avoided in one pretext or another. The factual aspects of the case clearly show that the victim’s indulgence in sexual intercourse was outcome of false promise of marriage by the appellant. The appellant had no intention from the very inception to solemnize marriage with the victim but to satisfy his own sexual lust. It is not a simple case of mere breach of promise. 12. The Hon’ble Apex Court in the case of State of U.P. Vs. Naushad, AIR 2013 SC has emphasized the need for courts to carefully assess whether the accused had a genuine intention to marry or acted with malafide motive in cases involving false promises of marriage and subsequent sexual intercourse. The court reiterated that a mere breach of promise to marry does not automatically constitute rape, but rather, a false promise made from the outset with the intention of obtaining consent for sexual relation without the intention of fulfilling the promise, can constitute rape. Thus, the Apex Court emphasized the distinction between a false promise (made with the intention of deceiving) and an unfulfilled promise (where the promise was initially genuine but could not be kept due to unforeseen circumstances). In the instant case, there is no plea of defence that there was any genuine unforeseen circumstances which prevented the appellant from solemnizing marriage with the victim girl rather he has simply pleaded that the victim girl was major and sexual intercourse was consensual which cannot be sustained. 13. In view of the above discussions and reasons, I find that learned trial court has very wisely considered all the aspects and material evidence available on record and arrived at right conclusion, which suffers from no illegality/infirmity to interfere with the impugned judgment. I do not find any merits in this appeal, which stands dismissed. 14. The appellant is on bail, his bail bond is hereby cancelled and the appellant is directed to surrender before the court concerned to undergo remaining period of sentence awarded by the learned trial court. 15. Pending I.A(s), if any, is also disposed of accordingly. 16. I do not find any merits in this appeal, which stands dismissed. 14. The appellant is on bail, his bail bond is hereby cancelled and the appellant is directed to surrender before the court concerned to undergo remaining period of sentence awarded by the learned trial court. 15. Pending I.A(s), if any, is also disposed of accordingly. 16. Let a copy of this judgment along with Trial Court Records be sent back to the trial court for information and needful.