JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 12.04.2004, passed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No. 40/2003, the accused-Appellant stands convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 20,000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of six months with further direction that the fine, if realized, be given to the victim. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: The accused, Jasimuddin, being a tutor of the victim LB, was a visitor to the house, where LB used to live with her two sisters and parents. Because of the proximity, which the accused enjoyed with the family of LB, a love affair developed between the two. In course of time, the accused promised LB that he would marry her and with this promise of marriage, he induced her to cohabit with him. Their cohabitation caused LB's pregnancy. LB disclosed her pregnancy to the accused and the accused promised that he would marry her. However, despite the promise so made, the accused did not marry LB; rather, after about two months, he gave to LB some medicines for the purpose of causing abortion, but LB did not take the medicines. Out of embarrassment and also because of the fact that the accused had told LB not to disclose their affair and her pregnancy to anyone, LB did not, for quite some time, disclose her pregnancy to anyone. When, however, the accused did not marry her, she informed the matter to her mother who in turn, informed to her husband. Thereafter, a village 'bichar' (i.e., sitting of elders for settlement of disputes) was called in the village. In the 'bichar', so held, the accused admitted his illicit relation with LB and also assured the people present there that he would marry LB, but instead of marrying LB, the accused fled away. LB, then, lodged a written FIR. Based on this FIR, police registered a case against the accused and, on completion of investigation, laid charge-sheet against the accused under Sections 376/493 IPC showing the accused as absconder. 3. After the accused was arrested, the case was committed to the Court of Sessions for trial. LB, then, lodged a written FIR. Based on this FIR, police registered a case against the accused and, on completion of investigation, laid charge-sheet against the accused under Sections 376/493 IPC showing the accused as absconder. 3. After the accused was arrested, the case was committed to the Court of Sessions for trial. To the charges framed, at the trial under Sections 376 and 417 IPC, the accused pleaded not guilty. In support of their case, prosecution examined six witnesses. The accused was, then, examined under Section 313 Code of Criminal Procedure and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having held the accused guilty of the offence committed under Section 376 IPC, the learned trial Court convicted him accordingly and passed sentence against him as hereinabove mentioned. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 4. I have heard Mr. P. Sharma, learned Counsel for the accused-Appellant, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 5. While considering the present appeal, what needs to be noted is that the evidence of LB (PW1) is the pivot around which revolves the entire case of the prosecution. When I scrutinize the evidence of LB (PW1), I notice that according to her evidence, the accused was her private tutor, he was a frequent visitor to her house and, gradually, they developed affinity towards each other, the accused promised to marry her and, on the basis of such a promise, the accused induced her (PW1) to cohabit with him and this cohabitation continued for about a year. The cohabitation between them, according to the evidence of PW1, made her pregnant and when she disclosed to the accused the fact that she had become pregnant, the accused promised that he would marry her immediately, but instead of marrying her, the accused, after about two months, brought some medicines for her, but she did not take he medicines and it was then that she informed her family members about her pregnancy. PW1 has also deposed that since the accused had asked her not to disclose her pregnancy to anyone and she was also feeling embarrassed and fearful of the reaction of the society, she did not disclose to anyone earlier that she had become pregnant. It is in the evidence of PW1 that after she disclosed to her family members about her pregnancy, a "bichaar" (i.e. sitting of elders for settlement of disputes) was held in their village and in this "bichaar", the accused admitted that he had made her (PW1) pregnant and also promised to marry her, but the accused, thereafter, fled away from their locality and she lodged the F.I.R., which is Exhibits. 6. In her cross-examination, PW1 has clarified that the "bichaar" was held in the house of Abdul Kuddus and that Juber Ahmed, Monsur Haque, Mukam Ali, Hussain Ahmed and their other co-villagers were present in the said "bichaar". PW1 has also clarified, in her cross-examination, that she gave birth to a female child at the house of her parents. 7. I have closely scrutinized the cross-examination of P W1 at the hands of the defence, but I find that nothing was at all elicited from her cross-examination, which can be taken to have shaken her evidence. Thus, the evidence of PW1 has remained wholly unshaken in material particulars. 8. Close on the heels of the evidence of PW1 is the evidence of PW3 (SK), who is mother of LB (PW1). The evidence of PW3 is that the accused is her neighbour, he was home tutor for LB (PW1) and used to visit their house. It is in the evidence of PW3 that after LB became pregnant, she informed her (PW3) about her (LB's) pregnancy and also about the fact that accused had tried to administer medicines for causing abortion. It is also in the evidence of P W3 that a "bichaar" was held in their village, where the accused and their other co-villagers were present and, in this "bichaar", accused owned the responsibility and promised to marry LB, but the accused fled away and the marriage could not solemnized. 9. It is also in the evidence of P W3 that a "bichaar" was held in their village, where the accused and their other co-villagers were present and, in this "bichaar", accused owned the responsibility and promised to marry LB, but the accused fled away and the marriage could not solemnized. 9. Broadly in tune with the evidence of PW3, her husband, SL (PW2), had deposed that on the day, his wife (PW3) reported to him that LB had become pregnant, he made further inquiry from his wife and his wife told him that the accused had assured LB to marry her and it was because of the promise, so made, that LB had cohabitated with the accused. In tune with the evidence of PW1 and PW3, PW2 has deposed that a 'bichaar" was held in their village and in the "bichaar", the accused had admitted that he (accused) had cohabitated with PW2 and promised to marry her, but the accused fled away. 10. Both PW2 and PW3, 1 notice, were put to cross-examination by the defence, but nothing could be elicited from their cross-examination to show that what they had de posed was untrue or false. In fact, at the time of hearing of the present appeal, nothing could be submitted, on behalf of the accused-Appellant, to show that the evidence of PW1 and/or PW 2 and/or PW3 is not reliable and trustworthy. 11. In the backdrop of the unshaken evidence of PW1, PW2 and PW3, when I turn to the evidence of PW4, Juberuddin, I find that according his evidence, the accused as well as the victim (LB) are his neighbours and after LB had become pregnant, a 'bichaar" was convened twice. While, on the first day of the "bichaar ", the accused was not present, the accused came to the "bichaar" on the second day and agreed to marry LB and the following day was accordingly fixed for solemnization of the marriage, but the accused fled away. Same as in the case of PW1, PW2 and PW3, even the evidence of PW4 remained unshaken and his evidence clearly reveals that a "bichaar" was, indeed, held and in this "bichaar", the accused came and promised to marry LB, but he fled away from the village on the very next day. 12. Same as in the case of PW1, PW2 and PW3, even the evidence of PW4 remained unshaken and his evidence clearly reveals that a "bichaar" was, indeed, held and in this "bichaar", the accused came and promised to marry LB, but he fled away from the village on the very next day. 12. Apart from the fact that there is no dispute before me that LB (PW1) was pregnant, when the "bichaar" was held, the evidence of PW 6 (Dr. H. Sarma), who examined, on 26.05.2001, LB, on police requisition, reads as follows: Her height was 147 Cms, weight 44 Kgs, chest and abdominal girth 80 cm, permanent teeth 28. Her breasts were developed - dark coloured areola and nipple. Tubercules prominent. Secretions present. Her last menstrual period was nine months back. Per abdomen examination reveals enlargement of the uterus, fundal height just below xiophoid process. Foetal parts palpable in vertex presentation. Foetal heart sounds audible at the rate of 160 per minute. On genital examination: No pubic hair, vulva and labia patulous hymen annular type and old tear at 9 o'clock position, vagina healthy and admitted thumb, uterus enlarged and cervix short. Smear examination does not show spermatozoa and gono-cocci. X-ray investigation reveals fusion of epiphysis of lower and of radius and ulna, epiphysis iliaccrest appeared and partially fused with patent bones. Foetal skeleton seen (X-ray Plate No. 643 dated 26.5.01) Opinion: On the basis of physical examination, radiological and laboratory investigations done on Mst. Lilupa Begum, I opine as follows: 1) Her age was above 18 years. 2) Evidence of recent sexual intercourse not seen. 3) No injuries present except old hyminal tear on her person. 4) She was pregnant and duration of pregnancy was approximately 9 months. Ext. 2 is the medical report and Ext. 2(1)-(2) are my signatures. 13. The defence, I may point out, declined to cross-examine PW6 and from his evidence, it becomes clear that on 2605.01, when he (PW6) examined PW1, she was found to be carrying pregnancy of full nine months. 14. What transpires from the above discussion held, as a whole, is that certain facts have emerged as unscathed. 2(1)-(2) are my signatures. 13. The defence, I may point out, declined to cross-examine PW6 and from his evidence, it becomes clear that on 2605.01, when he (PW6) examined PW1, she was found to be carrying pregnancy of full nine months. 14. What transpires from the above discussion held, as a whole, is that certain facts have emerged as unscathed. These facts are that the accused was a home tutor for LB, he used to visit her parental house and, in course of time, both of them came close to each other, the accused made a promise to marry LB and, on the basis of this promise, he induced LB to cohabit with him and this cohabitation made LB pregnant, the accused made an attempt to abort her pregnancy and left with no alternative, LB reported the matter to her mother and when her mother, in turn, informed her husband, a "bichaar" was called in the village and in this "bichaar", though the accused promised to marry LB, he fled away. 15. From the facts, which have so emerged, it also clearly follows that the accused never intended to marry LB, for, apart from making a bare promise of marriage and inducing thereby LB to cohabit with him, he showed no signs of being serious about marriage with LB. At no stage of investigation or trial, the accused took the plea that he really intended to marry LB; rather, his defence all alone has been that he never promised to marry LB and never cohabitated with her. 16. Now, in view of the fact that the evidence on record convincingly prove that the accused did make a promise to marry LB without intending to marry her and believing in the promise, which the accused had so made, PW 1 cohabitated with the accused and became pregnant, this Court has to, now, ascertain if the accused could have been legally held guilty of having committed rape on LB. 17. While, however, considering the question posed above, it needs to be borne in mind that, in a case of present nature, it is the responsibility of the prosecution to show that LB did not have sexual intercourse with the accused, because of her own lust or sexual urge and that it was the promise of marriage, made by the accused, which had induced her to have sexual intercourse with the accused. What is also important to bear in mind is that in a case of the present nature, when the evidence on record speak loud and clear that the accused had sexual intercourse with LB and that LB had agreed to have sexual intercourse with the accused not because of her lust or sexual urge, but because of being induced by the promise of marriage made by the accused, the Court has also the duty to determine if, at the time when the accused had made the promise to LB that he would marry her, whether the accused was serious about his promise of marriage or whether the promise was merely a hoax to induce LB to have sexual intercourse with him. In the case at hand, it is not the case of the defence that LB, on her own initiative and because of her own sexual urge, had sexual intercourse with the accused. This apart, when the evidence on record eloquently speak that the accused never intended to marry LB and that he had made the promise of marriage as a hoax and for the purpose of inducing LB have sexual intercourse with him, the Court has the responsibility to decide as to what offence, if any, the accused had committed. 18. What emerges from the above discussion is that the evidence on record convincingly proves that the accused, without every intending to marry LB (PW1), promised to marry her and on being induced by the promise, so made, LB (PW1) allowed the accused to have sexual intercourse with her and became pregnant. It is in the face of these proven facts that one has to now, determine if the conviction of the accused under Section 376 IPC can be sustained. This necessarily requires the Court to ascertain if the accused had sexual intercourse with LB without her consent. 19. While considering the above aspect of the case, it needs to be pointed out that the Indian Penal Code does not define "consent" in positive terms. There is, however, a negative definition of the word 'Consent" in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as "consent" under the Indian Penal Code. The relevant provisions of Section 90 IPC read as under: 90. There is, however, a negative definition of the word 'Consent" in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as "consent" under the Indian Penal Code. The relevant provisions of Section 90 IPC read as under: 90. Consent known to be given under fear or misconception --A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.... 20. From a minute reading of Section 90 IPC, which explains as to what cannot be regarded as 'consent' for the purpose of the Indian Penal Code it becomes clear that 'consent' given under fear of injury, or under a misconception of fact, is not a 'consent' at all. It is, however, worth noticing that giving of 'consent' under fear of injury or misconception of fact is not sufficient to hold that no consent existed unless it is further established that the wrongdoer knew, or had reason to believe, that the consent given was in consequence of such fear or misconception. The factors, set out in the first part of Section 90, namely, that the consent given by a person under fear of injury or under misconception of fact is not consent are from the point of view of the victim; whereas the factors, set out in the second part of Section 90, namely, that the person doing the act knows, or has reason to believe, that consent was given in consequence of such fear or misconception are corresponding provisions from the point of view of the accused. Thus, the second part of Section 90 lays emphasis on the knowledge or reasonable belief of the person, who obtains consent that the consent given by the victim is in consequence of fear of injury or misconception of fact. What is, however, of paramount importance to note is that the existence of the twin requirements of Section 90 must be cumulatively satisfied in order to enable a Court to hold that no consent in law existed at the relevant time. What is, however, of paramount importance to note is that the existence of the twin requirements of Section 90 must be cumulatively satisfied in order to enable a Court to hold that no consent in law existed at the relevant time. In other words, when these two conditions precedent are coexistent in a case, it can be safely held that no consent, as envisaged under the Indian Penal Code, existed. Such a finding can be reached by examining as to whether the person, giving consent, had given the same under fear of injury or misconception of fact and, further, whether the offender knew, or had reason to believe, that but for fear or misconception of fact, 'consent' would not have been given. These aspects of the word "consent", as envisaged under the Indian Penal Code, have been succinctly described in Deelip Singh @ Dilip Kumar v. State of Bihar reported in (2005) 1 SCC 88 . 21. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear or misconception of fact cannot be construed as consented sexual act for the purpose of Section 375 IPC, for, Section 375 IPC requires voluntary participation by the victim not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance and assent. Whether consent existed or not has to be ascertained on the basis of the facts of a given case. See State of Himachal Pradesh v. Mango Ram reported in (2000) 7 SCC 224 . 22. However, subtle may be, there is, indeed, a firm and fine distinction between 'consent' and 'submission'. Every 'consent' involves 'submission', but every 'submission' is not 'consent' and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her 'consent' existed unless the evidence on record establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure. 23. 23. It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday v. State of Karnataka, reported in (2003) 4 SCC 48, reflects as if the Supreme Court has held that 'consent' given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a latter day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Deelip Singh (supra), which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, a representation deliberately made by the accused with a view to obtaining assent of the victim without having intended to marry her will vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry held out by him was a mere hoax, 'consent' ostensibly given by the victim will not exculpate the accused from the ambit of Section 375 IPC. 24. Explaining as to what the decision in Uday (supra) conveys, or should be read as, the Apex Court, in Deelip Singh (supra), has pointed out that in Uday's case (supra), the Court was cautious enough to add that no straight-jacket formula can be evolved for determining whether the 'consent' was given under a misconception of fact and, in the ultimate analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the Court has to decide the question as to whether the 'consent' given was voluntary or was under a misconception of fact. 25. The Apex Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. 25. The Apex Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether 'consent' existed or not, the Court has to take into account not only the previous or contemporaneous acts of the accused, but also his subsequent conduct. To put it differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the Court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain 'consent' or was it an honestly made promise of marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him. 26. Referring to its observations, made in Uday's case (supra), that it is the prosecution's burden to prove absence of a valid 'consent' in order to attract the ingredients of the offence of rape, the Apex Court, in Deelip Singh (supra), has clarified that while reading its said observations made in Uday (supra), the Courts must remember that this proportion would not apply if a case is covered by the provisions of Section 114A of the Evidence Act, which, I may point out, lays down that in a prosecution for rape under Sub-section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. 27. 27. What transpires from the above observations made in Deelip Singh (supra) is that in a prosecution under Section 376(2) IPC, when sexual intercourse by the accused with the prosecutrix is proved to have taken place and the prosecutrix, in such a case, claims, in her evidence before the Court, that she had not consented to the sexual act, the Court shall draw a presumption that she had not consented to the sexual act and the burden would, then, shift to the accused to prove that his sexual act with the prosecutrix was with her consent. The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the consent did not exist. 28. It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no 'consent' existed for the purpose of Section 90 IPC unless it is further established that the accused, at the time, when he had made the promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, it cannot be said that the 'consent' was given under a misconception of fact and/or that the accused knew, or had reason to believe, that the consent given was under such misconception of fact. 29. Conversely, if a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain 'consent' of the woman, for, such a 'consent' given by the woman would not, in the light of the provisions of Section 90 IPC, amount to 'consent' in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is, ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word 'consent', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, consent at all. 30. In the backdrop of the fact that the accused has been proved to have had sexual intercourse with LB and in view of the fact that the consent of LB for sexual intercourse was obtained by the accused by making promise of marriage, it is the duty of the prosecution to prove that the accused, at the time, when he had obtained the consent of LB to his having sexual intercourse with her, he did not intend to marry her or that the promise of marriage by him to LB was a hoax to obtain her consent to sexual intercourse and that the accused knew that the consent of LB had been given on the strength of the promise, which he had so made. In this regard, it is worth pointing out that the accused has flatly denied that he ever had sexual intercourse with LB and/or that he had ever made any promise to marry her. There is absolutely no evidence on record to show, if I may reiterate, that the accused intended to marry LB at the time, when he had made the promise of marriage to LB. It is not merely the previous conduct of the accused, but even his contemporaneous and subsequent conduct, which may help the Court determine the motive of the accused. The evidence on record speak loud and clear that the accused never intended to marry LB and yet he had made promise of marriage to her and, on the strength of such a promise, he induced LB to have sexual intercourse with him. Viewed thus, it is clear that the 'consent', obtained by the accused, was by misrepresentation of fact and such a 'consent' is not a 'consent' within the meaning of the word 'consent' under Section 90 of the IPC. 31. It, therefore, logically follows that when the accused had sexual intercourse with LB, no consent, in law, of LB had existed and, hence, the sexual intercourse, which the accused so had with LB, amounted to an offence of rape. 31. It, therefore, logically follows that when the accused had sexual intercourse with LB, no consent, in law, of LB had existed and, hence, the sexual intercourse, which the accused so had with LB, amounted to an offence of rape. In short, the evidence on record clearly and convincingly prove that the accused-Appellant had made to LB a false promise of marriage, which he never intended to carry out, and induced thereby, the victim (LB) allowed him to have sexual intercourse with her; hence, the sexual intercourse by the accused-Appellant with LB was without her consent, as understood in law, and such sexual intercourse by the accused-Appellant with LB amounts to an offence of rape. 32. Because of what have been discussed and pointed out above, I do not find any infirmity, legal or factual, in the findings of guilt reached by the learned trial Court against the accused-Appellant and/or in the conviction of the accused-Appellant under Section 376 IPC. 33. turning to the sentence passed against the accused-Appellant, what may be noted is that in the facts and circumstances of the present case, I do not see any reason, which could have impelled the learned trial Court to impose, on the accused-Appellant, a sentence lower than what has been imposed on him. Considered thus, it is clear that the sentence, passed against the accused-Appellant, calls for no interference by this Court in appeal. 34. In the result, and for the reasons discussed above, this appeal, being wholly without merit, fails and the same shall accordingly stand dismissed. 35. Send back the LCR. Appeal dismissed