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2020 DIGILAW 76 (TRI)

Suman Malakar v. State of Tripura

2020-06-19

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. The appellant, by means of filing the present appeal, has challenged the judgment of conviction and order of sentence dated 14.01.2019 passed by the learned Sessions Judge, South Tripura, Belonia in connection with case No. S.T. (ST/S) 40 of 2016 wherein the appellant has been convicted under Section 376(1) of the IPC and sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 30,000/- with default stipulation and also to suffer rigorous imprisonment for 1(one) year for the commission of offence punishable under Section 417 of the IPC and, both the sentences shall run concurrently. 2. Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the respondent. 3. The prosecution case, briefly stated, is that one complaint was lodged by Smt. Sandhya Das stating inter alia that on 01.03.2007 her adjacent neighbor, Suman Malakar i.e. the appellant herein, in her absence came to her house and after giving assurance of marriage induced the victim (name withheld) to develop physical relation and when her daughter did not agree, the appellant gave one ring and thereafter forcibly committed rape upon her and thereafter the appellant told her not to disclose the incident to anybody as otherwise threatened her to kill her mother and brother and also to set fire in her house. It was further alleged that thereafter the appellant in absence of the complainant committed rape upon her daughter on several times and when the menstruation of her daughter was stopped, on persuasion, her daughter disclosed the incident to her and on asking the appellant, he admitted the fact and told that he will marry her daughter and not to disclose the fact to anybody as otherwise she will face the consequence. The matter was brought to the knowledge of the parents of the appellant and thereafter the complainant approached the local panchayat. It was also alleged that she brought her daughter to the doctor, who told that her daughter is pregnant. Thereafter, the complainant approached the Panchayat with the said report but, in the mean time, the parents of the appellant sent him to Delhi. 4. It was also alleged that she brought her daughter to the doctor, who told that her daughter is pregnant. Thereafter, the complainant approached the Panchayat with the said report but, in the mean time, the parents of the appellant sent him to Delhi. 4. On receipt of the complaint (Exhibit-6), the Officer-in-Charge of Sabroom police station had registered a case against the appellant under FIR No. 24 of 2007 under Section 376/493/109 of the IPC. Being endorsed, the investigating officer visited the place of occurrence, recorded the statement of the available witnesses including the victim (PW-1) and arranged for her medical treatment. The investigating officer collected one panchayat resolution and the medical examination report of the victim and also seized one finger ring along with some documents along with birth certificate of the victim. The investigating officer also had arranged for examination of the victim under Section 164(5) Cr.P.C. and her statement was accordingly recorded by the SDJM, Sabroom. After completion of investigation, the investigating officer submitted charge-sheet against the appellant showing him as absconder. 5. Being committed, the learned Sessions Judge, South Tripura, Belonia had framed charge against the appellant under Section 376(2)(n)/417 of the IPC, to which the appellant pleaded not guilty and claimed to be tried. 6. To substantiate the charges, the prosecution had examined 10 witnesses and introduced some documents including medical examination report of the victim (Exhibit-10). After completion of recording of prosecution evidences, the appellant was examined under Section 313 Cr.P.C. where he repeated the plea of his innocence. After hearing argument of both the parties, the learned Sessions Judge convicted the appellant under sections 376(1)/417 IPC and sentenced him as aforestated. Hence, the appellant has preferred this appeal. 7. Mr. Biswas, learned Sr. counsel appearing for the appellant has contended that the judgment of conviction passed against the appellant is not sustainable in law. The prosecution has miserably failed to fulfill the essential requirements to establish the charge against the appellant. In this situation, learned counsel for the appellant has submitted that there was a growing consensus between the appellant and the victim hence, the conviction of the appellant for committing offence punishable under Section 376(1)/417 IPC of the IPC should not sustain. 8. On the other hand, Mr. S. Ghosh, learned Additional PP has supported the finding as returned by the learned Sessions Judge while declaring conviction and sentence upon the appellant. 8. On the other hand, Mr. S. Ghosh, learned Additional PP has supported the finding as returned by the learned Sessions Judge while declaring conviction and sentence upon the appellant. 9. We have perused the judgment of the learned Sessions Judge, South Tripura, Belonia wherein, he has observed thus: "32. The victim was in love with the accused. The accused promised to marry the victim. The victim believed such promise of the accused although it was nothing but a hoax. Consequent to such promise, the accused committed repeated sexual intercourse with the victim and the victim consented to such repeated sexual intercourse believing such fake promise as genuine and honest promise. The victim approached the accused to marry her, but only to be rejected. Now, the victim first informed PW-3, her sister-in-law. In the meantime, information leaked to the family of the accused which is natural as both the families reside in the same village. The accused fled away to Delhi. Thus, the victim informed her mother. Her mother took up the issue with the parents of the accused but only to be challenged and insulted. The mother of the victim thereafter took up the issue with local panchayat and submitted medical certificate to confirm pregnancy of the victim. Panchayat salishi convened by PW-4 and PW-5, the panchayat pradhan and member respectively wherein the victim and her mother and the parents of the accused were present. The parents of the accused assured the salishi to bring the accused within 15 days' but did not do so. Hence, the mother of the victim lodged FIR on 13.06.2007. 33. I find no substance behind the submission of learned defence counsel that a victim who was in deep love with the accused and consequent to the promise of marrying the victim and if the victim believing such promise of the accused consents to repeated sexual intercourse, the victim shall keep a diary to maintain the dates, times of such sexual intercourse. What necessarily follows is that, by giving no such specific date and time of repeated sexual intercourse by the accused, the victim has only exhibited her bona fide and honest belief that the accused was going to be her life partner shortly and thus, consented to such repeated sexual intercourse with the accused. What necessarily follows is that, by giving no such specific date and time of repeated sexual intercourse by the accused, the victim has only exhibited her bona fide and honest belief that the accused was going to be her life partner shortly and thus, consented to such repeated sexual intercourse with the accused. And, therefore, there was no reason for the victim to inform anybody that she was in love with the accused and had been enjoying sexual intercourse with the accused." 10. Keeping in mind the aforesaid observation, it is necessary to go through the evidences and materials on record. 10.1. The victim deposed as PW-1. In her examination-in-chief, she deposed that the appellant herein was her co-villager and she developed love affairs with the appellant in the year 2007. Their affairs continued for 6/7 months. She further deposed that one day in the evening, the appellant went to her house and committed sexual intercourse with her against her will on promise to marry her. Thereafter on the basis of such promise, he committed sexual intercourse with her for 6/7 times in her house. She did not disclose it to anybody. After one month of physical relationship, she realized that she developed pregnancy as her menstruation was stopped. She informed the matter to the appellant and asked him to marry her but, he refused. By that time, she informed Mani Das, the wife of her step-brother Ranjit Das. Thereafter, she took up the issue with her mother but, in that meanwhile, the information was leaked to the family of the appellant that she developed pregnancy due to sexual intercourse with the appellant. She deposed that for that reason, his parents sent the appellant to Delhi. Thereafter, her mother took up the issue with the family members of the appellant. They took 15 days' time to get back the appellant from Delhi as per direction of the local panchayat but, ultimately they did not bring back the appellant from Delhi. The matter being not amicably settled, her mother lodged the FIR against the appellant as well as his parents. She further deposed that after nine months she delivered a female child. She waited for the appellant for about five years but, she did not see the appellant available in her locality during that five years. After five years, her mother had arranged her marriage with Asit ranjan Saha. She further deposed that after nine months she delivered a female child. She waited for the appellant for about five years but, she did not see the appellant available in her locality during that five years. After five years, her mother had arranged her marriage with Asit ranjan Saha. She further deposed that before going to Delhi, the appellant gave a mobile number to her but, she never get any connectivity. 10.2. PW-2, Smt. Sandhya Das is the mother of the victim. She deposed that in the year 2007 her daughter on her pressure informed her that her menstruation course had stopped as she had repeated sexual intercourse with the appellant. On pressure, her daughter further disclosed that she being scared did not inform her of such sexual intercourse. She further deposed that she took up the issue with the parents of the appellant but, they refused to give any redress. Proceeding further, she deposed that in that month they sent the appellant to Delhi. Thereafter, she approached the local panchayat to ask the family members of the appellant to bring him from Delhi. The parents of the appellant sought 15 days' time to bring back the appellant but, they did not bring him. She further deposed that in the panchayat, her victim daughter showed one finger ring which the appellant gave to the victim as a symbol of love and at that juncture, she came to know for the first time that her daughter had love affairs with the appellant. Thereafter she lodged the complaint. In cross-examination, she stated that she proposed the parents of the appellant to arrange the marriage of her daughter with their son but, they refused. She stated in cross-examination that since they refused to give marriage of their son with her daughter, she lodged this case. 10.3. PW-3, Smt. Mani Das, is the sister-in-law of the victim. She deposed that on few occasions, she found the appellant visiting the house of the victim in the evening. She further deposed that though it was a fact that the victim became pregnant and ultimately delivered a female child but, neither the victim nor her mother told her anything how she became pregnant and who was responsible for that. She further deposed that she gave statement to the investigating officer in connection with the case to the extent which she had deposed before the trial court. She further deposed that she gave statement to the investigating officer in connection with the case to the extent which she had deposed before the trial court. Later on, she was declined hostile. 10.4. PW-4, Smt. Mira Singh, was the panchayat pradhan of Damdama gaon panchayat. She deposed that in the month of April, 2007, Sandhya Das of that gaon panchayat submitted one application to their panchayat that the appellant committed repeated sexual intercourse with her daughter. Consequently, the victim became pregnant. She further deposed that they convened a salishi where both the victim and her mother attended while the parents of the appellant also attended. Proceeding further, she deposed that the parents of the appellant informed the salishi that the appellant had gone to Delhi. They asked the parents to bring the appellant within 15 days but, they did not bring. Accordingly, they advised PW-2, mother of the victim to take shelter of law. She deposed that in the application it was stated that the appellant promised to marry the victim and on such promise committed sexual intercourse. 10.5. PW-5, Sri Haradhan Dey, who was a panchayat member of the year 2007 deposed that they received one application from PW-2 annexing a medical certificate that her daughter became pregnant due to physical relationship with the appellant of their panchayat. He further deposed that the appellant promised to marry her. They convened a salishi where the parents of the appellant and both the victim and her mother attended. By that time, the appellant had gone to Delhi. They advised the parents of the appellant to bring him within 15 days but, ultimately the appellant was not brought and they advised the mother of the victim to take shelter of law. 10.6. PW-6, Ajit Das is the brother of the victim who deposed that in one occasion he found the appellant and the victim to gossip in the hut of Mani Das and on another occasion he found the appellant coming out of their house. He further deposed that after two days he came to learn from the victim that due to sexual intercourse with the appellant, she became pregnant. He further deposed that after two days he came to learn from the victim that due to sexual intercourse with the appellant, she became pregnant. He further deposed that his mother had approached the local panchayat and a salishi was convened where the parents of the appellant had attended and sought 15 days time to bring the appellant from Delhi but, ultimately they did not bring the appellant from Delhi. He further deposed that after few months the victim delivered a female child and after 5/6 years of such incident, the victim was given into marriage with Ashit Saha. 10.7. PW-7, Sri Biswajit Das is the brother of the victim who deposed that the appellant used to visit their house off and on and on one day his mother informed that the victim had developed pregnancy because of sexual intercourse with the appellant as the appellant had promised to marry her. He further deposed that his mother approached the local panchayat but no decision could be taken as the appellant had left for Delhi. He further deposed that after few months of the incident, the victim delivered a female child and after five years they arranged the marriage of the victim with Asit Saha. 10.8. PW-8, Dipak Das is the investigating officer of the case who deposed that on 13.06.2007 he was posted at Sabroom PS as Sub-Inspector of police and on that day he received a written ejahar and registered the same as FIR. Thereafter, he had investigated into the matter, recorded the statement of the witnesses, collected several documents alongwith the medical examination papers, arranged for recording the statement of the victim under Section 164(5) Cr.P.C. and after completion of the investigation submitted the charge sheet. 10.9. PW-9, Dr. KP Debnath, is the Medical Officer who deposed that on 27.07.2007 he was posed in the Department of Radio Diagnostic at AGMC & GBP hospital and on that day he had examined the victim and detected that the victim was pregnant. 10.10. PW-10, Dr. Jhantu kumar Bhowmik is the Medical Officer of Sabroom Sub Divisional Hospital and he deposed that on 14.06.2007 he examined the victim and observed that the victim was pregnant for 16/18 weeks. 11. We have carefully scrutinized the evidences of the prosecution witnesses, particularly, the evidence of PW-1, the victim and PW-2, the complainant. 10.10. PW-10, Dr. Jhantu kumar Bhowmik is the Medical Officer of Sabroom Sub Divisional Hospital and he deposed that on 14.06.2007 he examined the victim and observed that the victim was pregnant for 16/18 weeks. 11. We have carefully scrutinized the evidences of the prosecution witnesses, particularly, the evidence of PW-1, the victim and PW-2, the complainant. PW-1, the victim has categorically stated that she had developed love affairs with the appellant in the year 2007. Their affair continued for about 6/7 months. Thereafter on one day in the evening, the appellant went to her house and committed sexual intercourse with her against her will on a promise to marry her. Thereafter, they entered into physical relationship for 6/7 times at her own house but, she did not disclose the fact of their love affairs to anyone. One day she realized that she became pregnant when she made proposal to the appellant to marry her but, he refused. It is also revealed that the mother of the victim i.e. PW-2, thereafter took up the matter with the parents of the appellant. In that meanwhile, the parents sent the appellant to Delhi. A salishi meeting was convened by the local panchayat and in that meeting, the parents of the appellant informed that the appellant was sent to Delhi. However, the parents were advised to bring the appellant from Delhi and for that purpose they sought 15 days' time but, ultimately, they did not bring the appellant, which prompted the mother of the victim to lodge FIR. 12. PW-2, in her examination-in-chief deposed that she came to know about the fact of love affairs between her daughter and the appellant when at the time of salishi her daughter showed a finger ring which was gifted to her by the appellant as a symbol of love. She has categorically stated that "at that juncture, I came to know for the first time that Sukla had love affairs with Suman ". She further stated that the parents of the appellant did not bring the appellant to Sabroom. From her evidence, it is also revealed that her daughter was not ready to terminate the pregnancy and she gave birth of a female child. It has also been revealed that the victim after five years was given into marriage with another person. 13. She further stated that the parents of the appellant did not bring the appellant to Sabroom. From her evidence, it is also revealed that her daughter was not ready to terminate the pregnancy and she gave birth of a female child. It has also been revealed that the victim after five years was given into marriage with another person. 13. On the basis of these evidences, we are to decide whether the appellant had obtained the consent of the victim girl on the basis of misrepresentation of facts or, whether there was any false promise made by the appellant in bad faith. It is also necessary to trace out in evidence that from the very beginning, the appellant wanted to develop sexual relationship on the basis of false promise. In other words, it is to be examined, whether the victim girl consented to develop physical relationship with the appellant based on mis-conception of facts. 14. In Pramod Suryabhan Pawar vs. State of Maharashtra and another reported in (2019) 9 SCC 608 , the apex court has summarized the law in the manner as follows: (SCC pp. 617, 618, 619, 620) para 14 onward "14 In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh [(2019) 13 SCC 1509], this Court held: "37. In Anurag Soni v. State of Chhattisgarh [(2019) 13 SCC 1509], this Court held: "37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC." Similar observations were made by this Court in Deepak Gulati v. State of Haryana [ (2013) 7 SCC 675 ] ("Deepak Gulati"): (SCC p. 682 para 21) "21.... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused..." 15. In Yedla Srinivasa Rao v. State of Andhra Pradesh [ (2006) 11 SCC 615 ] the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed: (SCC pp 620-21 para 10) "10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of P.Ws. 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, 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 for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent...." 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [ (2013) 7 SCC 675 ] this Court observed: (SCC pp. 682-84, paras 21 & 24) "21.... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied) 17. In Uday v. State of Karnataka [ (2003) 4 SCC 46 ] the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors: (SCC p. 58 para 25) "25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married..." (Emphasis supplied) 18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. 19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows: 19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004; 19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and 19.3. The appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occurred. 22. With respect to the offences under the SC/ST Act, the WhatsApp messages were alleged to have been sent by the appellant to the complainant on 27 and 28 August 2015 and 22 October 2015. At this time, Sections 3(1)(u), (w) and 3(2)(vii) of the SC/ST Act as it stands today had not been enacted into the statute. These provisions were inserted by the (Prevention of Atrocities) Amendment Act 201513 which came into force on 26.1.2016. Prior to the Amending Act, the relevant provisions of the statute (as it stood then) were as follows: "3. Punishment for offences of atrocities- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- ... .... ... ... These provisions were inserted by the (Prevention of Atrocities) Amendment Act 201513 which came into force on 26.1.2016. Prior to the Amending Act, the relevant provisions of the statute (as it stood then) were as follows: "3. Punishment for offences of atrocities- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- ... .... ... ... (x) intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste or a Scheduled Tribe in any place within public view; (xi) assaults or uses force to any woman belonging to a Schedule Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty; (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;" 23. Without entering into a detailed analysis of the content of the WhatsApp messages sent by the appellant and the words alleged to have been spoken, it is apparent that none of the offences set out above are made out. The messages were not in public view, no assault occurred, nor was the appellant in such a position so as to dominate the will of the complainant. Therefore, even if the allegations set out by the complainant with respect to the WhatsApp messages and words uttered are accepted on their face, no offence is made out under SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence establish the commission of the offences alleged. 24. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 7 February 2019. The FIR dated 17 May 2016 is quashed." 15. Keeping in mind, the aforesaid principle of law laid down by the apex court in its various decisions, in the context of the case, we find that the victim girl is very categoric to her statement that she has developed love affairs with the appellant which continued for 6/7 months. Thereafter, oneday she developed physical relation with the appellant. Further, it is evident from the statement of the victim (PW-1) that before going to Delhi, Suman gave a mobile number to her. The girl also accepted the mobile number. Thereafter, oneday she developed physical relation with the appellant. Further, it is evident from the statement of the victim (PW-1) that before going to Delhi, Suman gave a mobile number to her. The girl also accepted the mobile number. This fact aptly proves that their love affair was still continuing. In this circumstance, we have serious doubt as to whether actually the victim (PW-1) had surrendered her chastity on being induced by the appellant on the basis of promise to marry her. It is very doubtful circumstance, when we find that PW-2 for the first time stated before the 'salishi', that at that juncture only she came to know about her daughter's love relation with the accused. 16. Now, we may test the circumstances whether there is any breach of promise on the part of the appellant, if there was promise at all to marry her. 17. It is evinced from the evidence on record that the fact of pregnancy of PW-1 was leaked to the family of the appellant. PW-1 and PW-2 have consistently deposed that they approached the parents of the appellant with marriage proposal but, they denied. Moreso, the appellant was sent to Delhi in that meanwhile. PW-2, has categorically stated in her evidence that the parents of the appellant did not bring him to Sabroom. The said circumstance, proves that from the very beginning it was not at all the intention of the appellant to deceive the victim girl. He has gifted a finger ring to her. Even before going to Delhi, he had given his mobile number to her. It was the parents, who did not allow the appellant to return back to Sabroom and marry the victim. We can safely say that the appellant was prevented by his parents to return back and meet the victim (PW-1). Even, if there was any promise, for argument sake, we are of the opinion that, that promise was not given in any bad faith and with no intention of being adhered to at the time it was given. 18. We can safely say that the appellant was prevented by his parents to return back and meet the victim (PW-1). Even, if there was any promise, for argument sake, we are of the opinion that, that promise was not given in any bad faith and with no intention of being adhered to at the time it was given. 18. In the backdrop of our independent analysis of the evidences, we are of the opinion that the prosecution has failed to establish the ingredients of Section 375 IPC that the appellant had obtained consent of sexual intercourse on the basis of mis-representation of facts or in other words, the victim girl (PW-1) had consented to the desire of the appellant on the basis of misconception of facts. 19. On the basis of the aforesaid reasons, we cannot accept the finding, as returned by the learned Sessions Judge in convicting and sentencing the appellant, as aforestated and, thus, the order of conviction and sentence dated 14.01.2019 passed by the learned Sessions Judge, South Tripura, Belonia in connection with case No. S.T. (ST/S) 40 of 2016 is hereby set aside and quashed. 20. The appellant is acquitted from the charges levelled against him. He shall be released forthwith, if he is not wanted in any other case. 21. In the result, the instant appeal stands allowed. Issue the release warrant forthwith. Send down the LCRs.