Judgment : 1. The appellant by mistake has filed these two appeals challenging the same conviction for offence punishable under Section 376 of the Penal Code and sentence of RI for seven years and fine of Rs.20,000/- or in default RI for one year. 2. The facts, which led to prosecution and conviction of the appellant, are as under : On 11-3-2005, the appellant for the first time established physical relationship with the prosecutrix telling her that he loves her. He also told the prosecutrix that he would marry her. Thereafter this relationship continued till the pregnancy of the prosecutrix was visible. When the prosecutrix and her relations asked the appellant to marry her, he brought some tablets for terminating the pregnancy, which the prosecutrix refused to consume. According to the prosecutrix, the appellant had promised to marry her on the condition that she should terminate the pregnancy. He refused to marry her leading her to lodge a report on 18-8-2005. An offence was registered and investigation commenced. In course of investigation, the police caused the victim to be examined for pregnancy as well as her age. They collected record of her birth, recorded statements of witnesses and on completion of investigation, filed the chargesheet. 3. Upon commitment of the case by the learned Judicial Magistrate First Class, Saoli, the learned Sessions Judge, Chandrapur charged the appellant of offences punishable under Sections 376 and 417 of the Penal Code. Since the appellant pleaded not guilty, he was put on trial, at which the prosecution examined in all three witnesses. Upon consideration of their evidence in the light of defence of denial taken by the appellant, the learned Sessions Judge held the appellant guilty of offence punishable under Section 376 of the Penal Code and sentenced him to suffer rigorous imprisonment for seven years and fine of Rs.20,000/-, or in default to suffer RI for one year. He acquitted the appellant of offence punishable under Section 417 of the Penal Code. Aggrieved thereby, the appellant has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State. Both the learned counsel painstakingly took me through the record of the trial and also illuminated the relevant provisions of law. 5. Aggrieved thereby, the appellant has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State. Both the learned counsel painstakingly took me through the record of the trial and also illuminated the relevant provisions of law. 5. The learned counsel for the appellant submitted that as per the report at Exhibit 36 in respect of age of the prosecutrix on the basis of ossification test, the age of the prosecutrix was not less than 17 years and not more than 19 years. Thus, the prosecutrix was of consenting age at the relevant time. The learned counsel for the appellant pointed out that in the statement before the police, the age of the prosecutrix is shown as 17 years. In FIR Exhibit 41, the age of the prosecutrix is shown as 17 years. The prosecution has tendered in evidence an extract of birth register maintained by Gram Panchayat Aakapur. This extract is at Exhibit 49. It shows that on 1-1-1990, a female child was born to one Prakash Maroti Baligwar and his wife Alka. The prosecution sought to establish from this document that the prosecutrix was born on 1-1-1990. The learned counsel for the appellant, however, submitted that this very document would show that the prosecutrix was born earlier to 1-1-1990. The learned counsel drew my attention to the deposition of the prosecutrix examined as PW 1 at Exhibit 38. She had stated that she was elder in the family and had younger sister by name Rupali. The learned counsel for the appellant submitted that in colum No.19 of the certificate at Exhibit 49, it is mentioned that it was the second time that Alka was giving birth to a child, implying that the certificate may be in respect of younger sister of the prosecutrix, viz. Rupali, since the prosecutrix had claimed to be the eldest in the family. In view of this, the learned counsel for the appellant rightly submitted that at the time of incident on 11-3-2005, the prosecutrix was decidedly above 17 years of age and, therefore, was of consenting age. 6. Rupali, since the prosecutrix had claimed to be the eldest in the family. In view of this, the learned counsel for the appellant rightly submitted that at the time of incident on 11-3-2005, the prosecutrix was decidedly above 17 years of age and, therefore, was of consenting age. 6. The learned Additional Public Prosecutor submitted that it could be held that the prosecutrix had in fact consented to sexual intercourse with the appellant, because the appellant had promised the prosecutrix to marry her and on the basis of this false promise, she had surrendered her person. Therefore, according to him, since the appellant had made a false promise to the prosecutrix in order to induce her to submit to sexual intercourse, the consent allegedly given could not be termed as consent in the eyes of law. For this purpose, the learned Additional Public Prosecutor relied on a judgment of Supreme Court in Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar and another, reported at 2007 All MR (Cri) 2602 (S.C.). In that case, the appellant had been charged for offences punishable under Sections 376 and 406 of the Penal Code. His application for discharge having been rejected, he challenged the said order before the High Court, which rejected the application by observing in one-line that the learned Judge had found sufficient material showing the petitioner's complicity in the crime while rejecting the prayer for discharge and, therefore, the High Court found no error in the rejection of the application for discharge. This order was challenged before the Supreme Court. In this context, in para 19 of the judgment, the Court first considered what amounts to consent under Section 90 of the Penal Code. Section 90 of the Penal Code prescribes that consent given under fear of injury is of no consent at all. It also adds that consent under misconception of fact is no consent at all. Consent under misconception of facts is in fact taken care of in Section 375 of the Penal Code itself, where in Clauses Fourthly and Fifthly, the law makers referred to consent given believing the person to be the victim's husband, or consent given by reason of unsoundness of mind or intoxication induced by the perpetrator of crime. Consent under misconception of facts is in fact taken care of in Section 375 of the Penal Code itself, where in Clauses Fourthly and Fifthly, the law makers referred to consent given believing the person to be the victim's husband, or consent given by reason of unsoundness of mind or intoxication induced by the perpetrator of crime. After considering various judgments on the point of consent, in para 19, the Court quoted with approval from an earlier judgment in Uday v. State of Karnataka, reported at 2003 ALL MR (Cri) 975 (S.C.). It may be useful to reproduce the relevant observations in para 19 of the judgment as under : 19. On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375, IPC, was dealt with by a Division Bench of the Calcutta High Court in Jayanti Rani Panda vs. State of W.B.(1984 Cr.L.J. 1535). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday's case [2003 ALL MR (Cri) 975 (S.C.)] (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7: .Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.. The discussion that follows the above passage is important and is extracted hereunder : The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meanting of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a fullgrown 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. Section 90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused nevery really intended to marry her.. (emphasis supplied).. The Court then went on to observed in para 20 as under : 20. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to .misconception of fact. within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. .... Thus only if it is established as a fact that at the very inception of making promise, the accused did not really entertain the intention of marrying the prosecutrix and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, clause second. 7. The learned counsel for the appellant pointed out that in this case, as has been observed by the learned Trial Judge, the promise to marry came after the first act of intercourse was over. The prosecutrix had stated in para 1 of her deposition that the appellant stated about promise to marry after sexual intercourse. Therefore it is not that she surrendered her person because of promise to marry. Further it is not that on the basis of evidence of prosecutrix, it could not be said that the appellant did not really entertain the intention of marrying the prosecutrix. She specifically stated that the accused told him that when pregnancy was noticed that she should consume abortion tablets and upon terminating the pregnancy, he would marry. Thus it is not that the prosecution has shown by tendering some evidence to the effect that at the time when the prosecutrix surrendered her person, the appellant had absolutely no intention to marry her and the promise to marry held out by him as a mere hoax. 8. The learned Additional Public Prosecutor submitted that the defence taken by the appellant is that of total denial and, therefore, the appellant cannot take the benefit of alleged consent given by the prosecutrix. 8. The learned Additional Public Prosecutor submitted that the defence taken by the appellant is that of total denial and, therefore, the appellant cannot take the benefit of alleged consent given by the prosecutrix. As rightly pointed out by the learned counsel for the appellant, the defence taken by the appellant does not decide his fate. If the prosecution has failed to discharge the onus of proving that the appellant was guilty of perpetrating a rape upon the prosecutrix, the appellant ought to be acquitted. She further submitted that on the basis of the facts unfolded in the prosecution evidence, if it can be seen first, that the prosecutrix had surrender her person even without the appellant making promise to marry her and secondly, the prosecutrix herself stated that the appellant continued to hold out that promise even 5 to 6 months after the pregnancy was detected, it cannot be said that the promise allegedly made was a mere hoax. Therefore, the learned counsel for the appellant submitted that the consent was vitiated. 9. In view of this, the conviction of the appellant cannot at all be sustained. Hence, the appeals are allowed. The conviction of the appellant for offence punishable under Section 376 of the Penal Code and sentence of RI for seven years and fine of Rs.20,000/- or in default RI for one year are set aside. He shall be set at liberty forthwith if not wanted in any other case. Fine, if paid, be refunded to the appellant.