JUDGMENT: 1. THE hearing arises out of an application under Section 482 of Cr. P. C registered as C. R. R. 200 of 2006 for quashing the proceeding in G. R. Case no. 2to of 2006 under Section 376, I. P. C pending before the learned Chief judicial Magistrate, Bankura. 2. IT has been contended by the learned lawyer for the petitioner that the accused-petitioner has been falsely implicated in the instant G. R. Case under Section 376, I. P. C. and there are apparent contradictions between the f. I. R and the statement of the victim girl recorded under Section 164, Cr. P. C. It will appear from the statement of the victim girl under Section 164 of the cr. P. C that accused obtained her consent to sexual intercourse on the promise of marriage and accused did not keep up such promise. Sexual intercourse on promise of marriage does not amount to offence under Section 376,i. P. C. as there was no misconception of fact as contemplated under Section 90, I. P. C. Consent given on the promise of marriage does not amount to misconception of fact so as to attract Section 90, I. P. C and the criminal proceeding under section 376, I. P. C cannot stand. The prosecutrix is aged 34 years and it appears from the statement that she gave consent to such sexual intercourse and accordingly the commission of offence under Section 376, I. P. C does not arise. Learned lawyer has further contended that even sexual intercourse on the false promise of marriage does not amount to cheating under Section 415, I. P. C and so on any of the grounds the prosecution case does not stand. Learned lawyer for the petitioner has placed his reliance upon the ruling reported in (2003)1 C Cr LR (SC) at page 555, 1990 Cr LJ at page 650, 2004 C Cr LR (Cal) at page 945, 216, (2005)2 C Cr LR (Cal) at page 67, 2001 C Cr LR (Cal)at page 166. 3. LEARNED Counsel for the State has contended that the statement under Section 164, Cr. 3. LEARNED Counsel for the State has contended that the statement under Section 164, Cr. P. C recorded shows that consent of prosecutrix was obtained by the accused by- making a false promise to marry her and the accused had no intention to fulfil that and the said consent was of no consequence and provision of Section 90, I. P. C can be invoked as the act was induced by misconception of fact so as to attract the provision of Section 90, I. P. C. She has placed her reliance upon the ruling reported in (2007)1 scc (Cr) at page 557 and has contended that in the said decision also the apex Court held that consent obtained by making a false promise to marry is not a consent and sexual intercourse on such false promise was the sexual intercourse without consent of the victim and the said Act fell in second category as enumerated in Section 375, I. P. C and the conviction under Section 376, i. P. C was justified. 4. LEARNED Counsel for the State further contended that in that case before the Apex Court the decision in the case Uday v. State of Karnataka reported in (2003)1 C Cr LR (SC) at page 555 was considered and distinguished. She has further contended that as the offence under Section 376, I. P. C is made out so the question of quashing the proceeding does not arise and the instant petition is liable to be rejected. It is undisputed that friendship developed between the victim woman and the accused as both of them were agents of Peerless Insurance Company. It has been further stated in the F. I. R that on 9. 1. 2005 the accused committed rape on the victim woman and after the occurrence when the victim woman cried and wanted to know as to why he spoilt her life the accused told her that she had nothing to be afraid and he would marry her within a few days and she kept mum but the accused started avoiding her. Then again on 21. 7. 2006 the accused committed rape on her. Local persons were informed. The accused arranged for marriage elsewhere. F. I. R was lodged so that the accused may not marry elsewhere and the victim woman gets the status of wife of the accused. 5. Then again on 21. 7. 2006 the accused committed rape on her. Local persons were informed. The accused arranged for marriage elsewhere. F. I. R was lodged so that the accused may not marry elsewhere and the victim woman gets the status of wife of the accused. 5. IN course of investigation, the statement of the victim woman was recorded under Section 164, Cr. P. C on 2. 8. 2006. In the said statement the victim woman stated that one day at noon the accused had sexual intercourse with her in the house of the daughter of his maternal-uncle on promise to marry her and after that also for a long time there was cohabitation at different places like husband and wife and even on 27th January, 2006 there was cohabitation. The accused killed time on the assurance of marriage and subsequently it was learnt that his marriage was arranged elsewhere. The accused denied that. So, the statement under Section 164, Cr. P. C unequivocally discloses that the accused had sexual intercourse with the victim woman on the promise of marriage. 6. IT appears from the C. D that the victim woman is aged 34 years. The statement of the witness Arobinda Ghosh under Section 161, Cr. P. C discloses that whenever the victim woman and the accused used to visit maynapur they used to stay in his room and to take key of the room and when they used to leave the room they used to handover the key to him. So it appears that intimacy developed between the accused and the victim woman and it is admitted that victim woman in her statement 164, Cr. P. C that for a number of times accused had sexual intercourse with her in different places and the victim woman did not object or resist. So, the fact remains that the victim woman had consent to such sexual intercourse. According to the statement under Section 164, Cr. P. C the said consent was obtained on the promise of marriage. P. C that for a number of times accused had sexual intercourse with her in different places and the victim woman did not object or resist. So, the fact remains that the victim woman had consent to such sexual intercourse. According to the statement under Section 164, Cr. P. C the said consent was obtained on the promise of marriage. In the case of Uday v. State of Karnataka reported in (2003)1 C Cr lr (SC) at page 555 it has been held that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the code. 7. IN the case reported in 1990 Criminal Law Journal page 650 the division Bench of this Court had the occasion to consider the case of conviction and sentence of the accused under Sections 376 and 417, I. P. C where the consent of the victim girl to sexual intercourse was obtained on the promise of marriage. It has been held there that the prosecution case does not cover any of the circumstances in Section 375 of the Indian Penal Code and the accused cannot be held guilty of rape. It was further held that the charge under Section 417 cannot be sustained in the absence of any evidence to show that the representation of the accused was false to the knowledge of accused at the time it was made. 8. IN the case reported in (2005)2 C Cr LR (Cal) at page 67 it has been held that it is a settled rule that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and the accused cannot be rapped on a charge of rape. In the case reported in (2007)1 SCC (Cr) at page 557 relied by the learned Counsel for the State the prosecutrix was a girl of tender age between 15 or 16 years and the accused regularly persuaded her to have sexual intercourse by telling her that he would marry her the prosecutrix resisted for sometime but later on one day the accused committed forcibly intercourse with the prosecutrix against her will and consent. She protested as to why he spoiled her life. The accused promised that he would marry her. Subsequently the process continued for sometime and she became pregnant. Accused gave her tablets for abortion in order to get rid of pregnancy which did not work. The prosecutrix insisted the accused to marry her. The accused informed that his parents were not agreeable. The matter was reported to Panchayat. The accused accepted the guilt and promise to marry but subsequently he absconded from the village. The Apex Court held that in that case the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise of marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for sexual intercourse under total misconception cannot be treated to be consent such fraudulent consent cannot be said to be consent so as to condone the offence of the accused. The Apex Court considered the decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal reported in 1984 Cr lj 1535 Calcutta where it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown-up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that Section 90, I. P. C. cannot be invoked unless the Court can be assured that from the inception the accused never intended to marry her. The Apex Court in this decision held that therefore it depends from case to case what is the evidence led in the matter. If it is a fully grown-up girl who gave the consent then it is a different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, Section 90 can be invoked. Therefore, so far as Jayanti Rani Panda is concerned, the prosecutrix was aged 21-22 years old. But, here in the present case the age of the girl was very tender between 15-16 years, Therefore, Jayanti Rani Panda case is fully distinguishable on facts. The Apex Court in this decision reported in (2007)1 SCC (Cr) af page 557 also considered the case of Uday v. State of Karnataka and observed that the case before the Apex Court stands entirely on a different footing. 9. IN the instant case before us there are glaring contradictions between the statement of the victim woman in the FIR and her statement under section 164, Cr. P. C. In the FIR the victim girl stated that on 9. 1. 2005 the accused committed rape on her and then on being asked as to why the accused caused great harm to her and on her cry the accused assured her to marry and on 27. 1. 2006 the accused also committed rape on her. But as per the statement of the victim girl under Section 164, Cr. P. C the victim woman had intimacy with the accused in connection with their work and the accused had sexual intercourse with the victim girl at first in the house of daughter of her maternal-uncle. The accused asked him to go to the up stairs stating that he would make the victim woman understand the table relating to programme of peerless agency and take rest. The victim woman had been to the up stairs and placed mat in the room of the upper floor and accused closed the door. The accused wanted to have sexual intercourse with the victim woman. The victim woman stated that she had consent if the accused would marry her and the accused agreed and she had sexual intercourse with the accused. The accused wanted to have sexual intercourse with the victim woman. The victim woman stated that she had consent if the accused would marry her and the accused agreed and she had sexual intercourse with the accused. Then they returned their home and after that there was cohabitation at a different places in her house and the house of her relative and Shilabati Lodge for long time as husband and wife and lastly on 27th January, 2006 the accused also had sex with her in the house of Arabinda Ghosh. Whenever the accused was asked to marry he stated that he would marry her later on and when the victim girl heard that the marriage of the accused was settled elsewhere she asked the accused over the matter and the accused denied. 10. IN this case the victim woman is a fully-grown lady aged 34 years. There was intimacy between her and the accused. There is no mark of injury on her private parts and according to medical report she was habituated to sexual intercourse. She was quite aware of the consequence of pre marriage sexual intercourse. She had sufficient intelligence to understand that significance and moral quality of the act she was consenting. She took the accused to the house of daughter of her maternal-uncle and voluntarily went up stairs and placed the mat on the floor. Even when she was proposed by the accused for sexual intercourse she did not resist the overtures of the accused and in fact she succumbed to them. Only she put a condition for such sexual intercourse i. e. the promise of marriage considering her future. The first occurrence referred in the statement under Section 164, Cr. P. C shows that both of them were overcome with emotions and passion and found themselves in situations and circumstances where they, in a weak moment, succumbed to the temptation of having sexual relationship. The victim woman willingly consented to having sexual intercourse with the accused with whom she was intimated not because he promised to marry her but because she also desired it. So, it cannot be said that the consent given by the victim woman was actuated by misconception of fact. The victim woman willingly consented to having sexual intercourse with the accused with whom she was intimated not because he promised to marry her but because she also desired it. So, it cannot be said that the consent given by the victim woman was actuated by misconception of fact. To the contrary, the act of the victim woman is an act of promiscuity on her part and the facts and circumstances of the case before the Apex Court reported in (2007)1 SCC (Cr) at page 557 are different from the facts and circumstances of the present case and the principles laid down in that case do not help the learned Counsel for the State. To the contrary, the principles laid down in the case of Uday v. State of Karnataka and Jayanti Rani Panda are applicable in this case. The case under Section 376,i. P. C does hot lie. There is nothing to show that the accused had no intention to marry the prosecutrix from the very beginning and the representation made by the accused was false to the knowledge of the accused at the time it was made. The case under Section 417, I. P. C is also not made out. 11. IN the result the continuance of the criminal case against the accused is an abuse of process of Court and the same must be quashed. 12. THE criminal case being G. R. 210 of 2006 arising out of Jaypur police Station Case No. 31 of 2006 dated 2. 8. 2006 under Section 376 of Indian penal Code is hereby quashed. I make no order as to costs.