1. This appeal is directed against the judgment and order, dated 10.3.2011, passed by the learned Additional Sessions Judge (FTC), Nagaon in Sessions Case No. 80(N) of 2008. 2. By the impugned judgment and order, the learned Sessions Judge convicted the appellant, under section 376, IPC and sentenced him to suffer rigorous imprisonment for four years and pay fine of Rs. 1,000, in default, undergo simple imprisonment for another period of one year. 3. Aggrieved by the said judgment and order, the convicted person, as appellant, has come up with this appeal, on the grounds that the learned Sessions Judge committed error by failing to correctly appreciate the evidence-on-record, the provision of section 90 of the Indian Penal Code (TPC) and the consequence of delay in lodging the case. 4. The prosecution case, in brief, is that the appellant, who was known to the informant, developed affairs with the informant's daughter and established physical relationship with her with promise of marriage. Consequent upon the said physical relationship, the informant's daughter became pregnant. Though the victim women, i.e., informant's daughter, had requested the appellant to marry her, he declined to do so and denied his relationship with her. Subsequently, the victim women delivered a baby. The parents of the victim also approached the appellant requesting him to marry their daughter, but the appellant and two other persons, namely, Mr. Habibor and Mr. Safiqul, while refusing the said proposal, threatened them with dire consequence. Therefore, the matter being taken to the villagers, a village 'Mell' was held, but the appellant failed to attend the same. Thereafter, the father of the victim, as complainant, filed a complaint before the court. In due course, the learned Judicial Magistrate 1st Class committed the case to the Court of Sessions. 5. The learned Sessions Judge framed charge, under sections 376/506/ 34, against the petitioner and two others. The charges were explained and read over to the accused persons to which they pleaded not guilty. 6. The prosecution examined as many as four witnesses including the victim and the informant. At the close of the evidence of the prosecution, the accused persons were examined under section 313, Cr.PC. They denied the allegations, brought against them and examined nine witnesses as DWs. 7. 6. The prosecution examined as many as four witnesses including the victim and the informant. At the close of the evidence of the prosecution, the accused persons were examined under section 313, Cr.PC. They denied the allegations, brought against them and examined nine witnesses as DWs. 7. Considering the evidence-on-record, the learned Sessions Judge, found the appellant guilty of the offence under section 376, IPC and accordingly, convicted and sentenced him, as indicated above. The other two accused persons were acquitted for want of evidence. 8. Mr. M.H. Ahmed, learned counsel, appearing for the appellant, taking this court through the evidence-on-record, has submitted that there is sufficient evidence to show that the victim women being a married Muslim women, had the knowledge that her marriage with the appellant, without obtaining divorce from her husband was impossible and as such it is not believable that she had given consent on the basis of the promise of marriage. 9. It is also submitted that, the victim being a married Muslim lady, there was no question of giving consent under any misconception of fact and that there is nothing, on record, to show that from the very inception, the appellant had any intention to deceive the victim or that he had deceitfully induced her to believe that he would marry her. It is also submitted that failure to keep promise, if any, at a future uncertain date, due to reason of impossibility, cannot amount to misconception of fact. 10. It is further submitted that the victim, being a married women had at best indulged in promiscuity with the appellant. Therefore, it is submitted that the learned trial Judge committed error by holding that the victim had given consent on misconception of fact and as such the same was not a consent, in view of provision prescribed by section 90, IPC. 11. The learned counsel, has also submitted that the delay in filing complaint and the silence of the victim for a prolonged period raises about the truth of the prosecution version and that the said delay is fatal for the prosecution. 12. In support of his contention, Mr. M.H. Ahmed, learned counsel, appearing for the appellant, has relied on the decision, held in the cases of Nay an Jyoti Das v. State of Assam, 2011 (5) GLT 788, (2012) 3 GLR 101. 12. In support of his contention, Mr. M.H. Ahmed, learned counsel, appearing for the appellant, has relied on the decision, held in the cases of Nay an Jyoti Das v. State of Assam, 2011 (5) GLT 788, (2012) 3 GLR 101. Vijayan v. State of Kerala, (2008) 14 SCC 763, Bhaiyamiyan alias Jardar Khan v. State of Madhya Pradesh, (2011) 6 SCC 394 and Jayanti Rani Panda v. State of West Bengal and Anr., 1984 Crl. LJ 535. 13. Refuting the said argument, advanced, on behalf of the appellant, Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, referring to the evidence, on record, has submitted that there is sufficient evidence to show that the appellant had falsely induced the victim to believe that he would marry her and by such false promise, he had deceitfully obtained her consent. It is also submitted that the denial of relationship by the appellant indicates that he intended to deceive the victim and obtained her consent by misleading her with such false promise. Therefore, it is submitted that the learned trial Judge rightly held that the consent was obtained under misconception fact and as such the same was not consent in the eye of law. 14. In order to appreciate the arguments, advanced by the learned counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to briefly scrutinise the evidence on record. 15. The prosecution version is that the appellant used to visit the victim women, who was living in her parents house, after leaving her marital home. During her stay in her parents house, the appellant used to visit the victim women. There is no direct evidence except the evidence, given by the victim, i.e., the PW-2. In her evidence, she stated that the appellant promised to marry her and on being so assured with such promise, she consented to have sexual intercourse with the appellant. 16. According to the PW-2, the appellant, after obtaining her consent continued to have sexual intercourse with her till she attained the advance stage of one month pregnancy. She also stated, that when she came to know about her pregnancy, she insisted upon the appellant to marry her, but he stopped visiting her and declined .to marry her. 16. According to the PW-2, the appellant, after obtaining her consent continued to have sexual intercourse with her till she attained the advance stage of one month pregnancy. She also stated, that when she came to know about her pregnancy, she insisted upon the appellant to marry her, but he stopped visiting her and declined .to marry her. She further stated that the matter was placed before the village meeting, but the appellant refused to attend the same, for which, the case was filed. The complaint has been filed during the period when the victim was carrying seven months pregnancy. From her above evidence, it is found that, she kept the said relationship as secret till she attained one month pregnancy. From her evidence, it is also found that, on being refused to marry by the appellant, she disclosed the matter to her parents. Though the appellant was duly cross-examined by the defence, her evidence that she became pregnant through the appellant remained undemolished. 17. Her father, deposing as PW-1, has supported her evidence regarding pregnancy. He stated that his daughter had disclosed that she became pregnant through the appellant. The mother of the victim women, deposing as PW-3 also supported the said evidence of PWs-1 and 2. Supporting the said evidence, Mr. Amin Uddin, an independent witness, deposing as CW-1, stated that in the village meeting, the victim women had disclosed that she became pregnant through the appellant. Though the said witnesses were cross-examined on behalf of the defence, their evidence regarding the said disclosure, made by the victim women, could not be negated. The appellant deposing as DW-1, denied the allegations, brought against him and stated that he had no love affairs or relation with the victim women. He further stated that the victim women was married by another person and that she was staying in her parents, after leaving her marital home. The victim women also in her evidence stated that she stayed in husband's house for about two months and thereafter left her husband's house. 18. Other defence witnesses, namely, Mr. Rustam Ali (DW-2), Mr. Abdul Sobham (DW-3), Mr. Habibur Rahman (DW-4, Mr. Abu Kalam (DW-6) and Mr. Nizamuddin (DW-7), deposing as DWs, stated that the appellant was not involved with the alleged offence. PW-6 and PW-2, stated that another person, namely, Mr. Ajijul used to visit the house of the victim. 18. Other defence witnesses, namely, Mr. Rustam Ali (DW-2), Mr. Abdul Sobham (DW-3), Mr. Habibur Rahman (DW-4, Mr. Abu Kalam (DW-6) and Mr. Nizamuddin (DW-7), deposing as DWs, stated that the appellant was not involved with the alleged offence. PW-6 and PW-2, stated that another person, namely, Mr. Ajijul used to visit the house of the victim. PW- 4 and PW-7 also stated that other people also visited the house of the victim. 19. DW-8 Mr. Jayad and DW-9 Mr. Ainuddin stated regarding the village meeting held in connection with involvement of the appellant. 20. Carefully considering the above mentioned evidence, it is found that the evidence given by the victim women, regarding involvement of the appellant with her pregnancy, remained undemolished. That apart, as observed by the learned trial Judge, there is nothing on record to show as to why the victim women would falsely implicated the appellant, leaving the actual culprit. Therefore, I am of the considered opinion that the learned trial Judge committed no error by holding that the prosecution could establish that the appellant had sexual relationship with the victim. 21. The learned trial Judge, referring to the provision of section 90, IPC, has held that the consent given by victim was under misconception of fact and as such, the same was no consent. Section 90, IPC reads as follows : "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." In view of the above provision of law, a consent is not a consent if the consent is given by a person, under fear of injury or under misconception of fact. 22. Failure to keep the promise at a future date, does not amount to misconception of fact. As the victim was a married Muslim lady, her marriage with the appellant, without dissolution of her earlier marriage, was not permissible. It cannot be believed that she was not aware of such a bar. Therefore, her evidence that she had given consent on the basis of the promise of marry is not believable. As the victim was a married Muslim lady, her marriage with the appellant, without dissolution of her earlier marriage, was not permissible. It cannot be believed that she was not aware of such a bar. Therefore, her evidence that she had given consent on the basis of the promise of marry is not believable. That apart, even if, the appellant had made any such promise, the same being impossible to be complied with, it cannot be held that he made her to misconceive any fact by making any misrepresentation of fact. That apart, even if it is assumed that the appellant had made promise, there is nothing, on record, to show that, at the time of making the promise, the appellant had no intention to marry her. 23. In the case of Jayanti Rani Panda (supra), a Division Bench of Calcutta High Court observed : "If a full grown 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 never really intended to marry her." 24. In view of the above, even if, the victim had given her consent on the basis of the said promise, she had surrendered knowing well that her marriage with the appellant, until dissolution of her marriage with her former husband, was impossible. There is nothing to show that the consent was obtained by the appellant by misrepresenting any fact or falsely in doing her in any manner. Had the appellant obtained the consent by creating a belief, in the mind of the victim, that they were married persons or that he had any right to have sex with her; then the consent obtained could have been treated as a consent given under misconception of fact. 25. Admittedly, she gave consent for the said act. Her stand is that, on being promised to marry, she gave consent. Admittedly, she was a married lady. 25. Admittedly, she gave consent for the said act. Her stand is that, on being promised to marry, she gave consent. Admittedly, she was a married lady. It is well known that a Muslim lady without dissolution of her marriage, cannot enter into an another marriage with another person. Therefore, her evidence that she had given consent on the basis of promise to marry is hard to be believed. There is nothing, on record, to show that the victim women had no knowledge that married Muslim lady cannot be married by another person without dissolution of her earlier marriage. Therefore, even if, the appellant had obtained her consent, on the basis of the said promise, the consent given by her cannot be believed to be given under any misconception of fact. 26. In view of the above discussion, considering entire facts and circumstances of this case, there is no difficulty in understanding that the consent was not obtained under any misconception of fact or fear or injury etc. In view of the attending facts and circumstances of the case, the learned trial Judge committed error by holding that the consent was obtained under misconception of fact. Therefore, the appellant cannot be held to be an accused of committing the offence under section 375, IPC and as such, he cannot be convicted under section 376, IPC. 27. Further from the record, it appears that the victim kept her relationship with the appellant as a secret. If the appellant had made any promise to marry her there was no reason not to disclose such fact to her near relatives, more particularly, her parents. This conduct on her part also raises doubt about the veracity of her version. 28. There is also sufficient delay in filing the complaint. According to the victim, at the stage of her one month pregnancy, the appellant declined to marry her and also stopped visiting her. Complaint was filed when she attained seven month pregnancy. From the evidence of victim and the informant, it is found, in the village meeting, the appellant denied his liability. Therefore, there was no reason to wait for filing the complaint till the victim attained the advance stage of seven months pregnancy. 29. In the case of Nayan Jyoti Das (supra), there was delay of six months in lodging the FIR. The delay was not explained. Therefore, there was no reason to wait for filing the complaint till the victim attained the advance stage of seven months pregnancy. 29. In the case of Nayan Jyoti Das (supra), there was delay of six months in lodging the FIR. The delay was not explained. The Court held that, in view of the unexplained delay it was unsafe to base the conviction. 30. In the case of Bhaiyamiayan (supra), there was delay of sixty hours in lodging the FIR. The court observed - "We first see that the first information report had been lodged after about 60 hours of the incident. The prosecution case is that PW1 accompanied by her parents had gone to Police Post Pathirya attached to Police Station Unarasitai immediately after the incident but had found no police official present therein and had then gone to Police Station Sirnj and lodged a report at 12 noon the next day. We find that the explanation for this delay is somewhat difficult to believe. A police post may have a few police officials posted in it, but Police Station Unarasitai was a full-fledged police station which would invariably be manned. Moreover, even if no one was found in the police port on the first day at that particular point of time, the effort of the prosecutrix ought to have been to lodge a report later at Police Station Unarasitai, but she chose to go to Police Station Sirjoni and recorded her statement and the investigation was thereafter referred to Police Station Unarasitai. 31. In the case of Vijayam (supra), the Supreme Court observed - "The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realization dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to many, therefore, the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under section 376, IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under section 376, IPC. The accused may be released forthwith from custody if not required in any other case." 32. In the case at hand, there was delay of about six months. No satisfactory explanation has been given for such inordinate delay. In view of the above decisions and the principles held there in, the said unexplained delay makes it unsafe to rely on the sole oral testimony of the prosecutrix. 33. In view of the above discussion, I have no hesitation in holding that the prosecution failed to establish, beyond all reasonable doubt, that the appellant had committed the offence under section 375 IPC. Therefore, the conviction and the sentence recorded under section 376, IPC cannot be maintained. Hence, I find sufficient merit in this appeal. Consequently, the appeal is allowed. 34. The impugned conviction and sentence are set aside. The appellant be acquitted and set at liberty forthwith, if not required in any other cases. 35. Return the LCR.