R. K. DASH, J. ( 1 ) COMMISSION Bebarta, petitioner herein stood charged under Sections 494 and 376, I. P. C. and further he along wit his wife Prasanti Bebarta (since acquitted) stood charged under Section 307/34, I. P. C. Learned Assistant Sessions Judge, Parlakhemundi upon trial while acquitting both of them of the charges under Sections 307 and 494, I. P. C. , convicted the petitioner under Section 376, I. P. C. and sentenced him to suffer simple imprisonment for a period of three years with fine of Rs. 200/ -. In default, to suffer imprisonment for a period of two months. On appeal, the learned Additional Sessions Judge, Parlakhemundi maintained the conviction and sentence imposed by the trial Court. Hence, the revision. ( 2 ) THE prosecution case, shortly stated, is that the victim girl, P. W. 3 (name omitted) and the petitioner hail from interior part of newly created district Gajapati (old district Ganjam) and admittedly they earn their livelihood by manual labour. It is alleged that in the year 1992 the petitioner developed intimacy with the victim girl and gave her a proposal for marriage saying that his first wife is dead. She believed his version, accepted the proposal where after they both lived as husband and wife. The further case of the prosecution is that when the victim girl had been to the petitioners village, could find to her utter surprise that his wife is alive. On the alleged date of incident, i. e. 25-11-1992 it is alleged, both husband and wife severely assaulted and throttled the victim girl. She then approached the local police and lodged a written report, Ext. 3 consequent upon which a case under Sections 420, 494 and 307, I. P. C. was registered and after usual investigation charge-sheet was laid against the petitioner and his wife to stand their trial. Initially charge was framed under Sections 494 and 307 read with Section 34, I. P. C. , but in course of trial additional charge was framed under Section 376, I. P. C. against the petitioner only. ( 3 ) THE plea of the petitioner was denial simpliciter. ( 4 ) AT the outset it may be necessary to state that in a case of rape question of age of the prosecutrix assumes importance when consent is put forward as a defence. ( 3 ) THE plea of the petitioner was denial simpliciter. ( 4 ) AT the outset it may be necessary to state that in a case of rape question of age of the prosecutrix assumes importance when consent is put forward as a defence. In the present case since initially the case was not registered under Section 376, I. P. C. , prosecution did not direct its investigation to ascertain the age of the victim girl. Learned Assistant Sessions Judge, therefore, on consideration of the ocular evidence of the victim girl P. W. 3 and two other witnesses, namely, P. W. 9 and 12 came to hold that at the relevant time the victim girl was not minor. He however, applying clause fourthly, of Section 375, I. P. C. accepted the prosecution case and convicted and sentenced the petitioner as hereinbefore stated. The learned Additional Sessions Judge on appeal did not agree with the view of the trial Court with regard to applicability of clause fourthly of Section 375, I. P. C. although he affirmed the ultimate finding of conviction and sentence. According to him, the case squarely falls within the ambit of clause secondly of Section 375, I. P. C. since consent of the victim girl had been obtained under misconception of fact. In view of such conclusion of the learned appellate Court, it is necessary to find whether in the facts and circumstances and on the available materials, conviction of the petitioner recorded under Section 376, I. P. C. can be maintained. ( 5 ) SECTION 90, I. P. C. envisages that consent given under fear of injury or under misconception of fact is not a consent in the eye of law. By taking aid of the said action it was contended on behalf of the prosecution that the petitioner obtained the consent of the victim girl for marriage by misrepresentation of fact, inasmuch as the petitioner made her to believe that since his first wife is dead he wanted to marry her. Even accepting this submission of the prosecution could it be concluded that consent of the victim girl for sexual intercourse was obtained by misrepresentation of fact? It is not the case of the prosecution that the petitioner having obtained the consent married the victim girl and thereafter laid conjugal life. Even accepting this submission of the prosecution could it be concluded that consent of the victim girl for sexual intercourse was obtained by misrepresentation of fact? It is not the case of the prosecution that the petitioner having obtained the consent married the victim girl and thereafter laid conjugal life. Rather as the evidence goes, there was any intrigue between the victim girl and the petitioner as a result the former conceived. A man with little common sense would never believe that a girl of our society having no previous acquaintance with a boy would agree to his proposal for marriage and there being no marriage tie would allow him to be her bed partner. In the case in hand if at all the petitioner made a false representation that his first wife is dead, without there being marriage she should not have agreed to have any sexual relation with him. In the circumstances, therefore, it is difficult to believe that her consent for sexual intercourse had been obtained either by fraud or misrepresentation of fact. Rather a reading of her evidence clearly goes to show that her consent was voluntary and conscious acceptance of the petitioner's proposal for sexual intercourse. ( 6 ) IN view of discussions made above, petitioner's conviction under Section 376, I. P. C. cannot be upheld. In the result, revision is allowed and the order of conviction and sentence recorded against the petitioner is set aside. Revision allowed. .