JUDGMENT : 1. Heard Mr. R.C.P. Sah, learned counsel appearing on behalf of the appellant and Mr. Prabir Kumar Chatterjee, learned Spl.P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 25.01.2008 and the order of sentence dated 28.01.2008 passed by learned Additional Sessions Judge (F.T.C.) II, Seraikella in Sessions Trial Case No. 34 of 2004 arising out of Ichagarh P. S. Case No. 49 of 2002, corresponding to G. R. Case No. 764 of 2002 for the offence under Sections 376 and 493 of the Indian Penal Code to undergo R.I. for seven years and the period of detention undergone by the appellant as under trial shall be set off towards the period of the sentence. 3. In nutshell, the case of prosecution is based upon the written report of victim who stated therein that eight nine months back appellant’s sister who was friend of the victim came to the house of victim and took her to the house of appellant and after having interaction for some time she went somewhere leaving victim alone in the room and victim started waiting for her, in the meanwhile appellant came inside the room and bolted the door and started doing bad acts which was objected by victim but without her consent he established physical relation with her. When victim started weeping and putting emphasis to divulge this fact to villager, then appellant made promise to her for marriage, thereafter appellant’s mother and sister reached there and victim shared the bad act of appellant to them, then they also given assurance to her for marriage with appellant. 4. It has further alleged by victim that thereafter appellant frequently started meeting with victim and also making physical relation with her and when she started putting pressure on appellant for marriage then appellant was giving assurance to her and one day victim was taken to Seraikella Registry Office for the purpose of marriage and office persons told her to come after a month. 5. It has further been stated that the appellant started keeping victim in the village as his wife and have had sex with her and thereafter, she was taken to Shankosie at Jamshedpur and there also he made physical relation with her. 5. It has further been stated that the appellant started keeping victim in the village as his wife and have had sex with her and thereafter, she was taken to Shankosie at Jamshedpur and there also he made physical relation with her. When victim repeatedly asked appellant visit to Seraikella to complete the formality of marriage, then one day he got angry and started abusing and beating her and she was also kicked out from the house and said that there was no solemnization of marriage between them. Victim claimed that she was deceived on the false pretext of marriage by the appellant and he made physical relation and sexually exploited her. She was thrown out of house by giving beatings and appellant also extended threat to her family member. Upon aforesaid allegations of written report of victim an F.I.R. being P.S. case no. 49 of 2002 date 06.12.2002 under Sections 363, 376 of Indian Penal Code got registered against appellant. 6. After due investigation, charge-sheet being Charge- Sheet No. 53 of 2002 dated 31.12.2002 has been filed under Sections 493 and 376 of Indian Penal Code and cognizance was taken by the Court for the offence under Sections 493 and 376 of Indian Penal Code. Thereafter, case was committed to Sessions Court. Charge has been framed under Sections 376 and 493 of I.P.C. and read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. Learned counsel for the appellant submitted that it is alleged that it is the victim who visited the house of appellant of her own will, where appellant established physical relation with her without her consent but when promise of marriage was made then everything was alright and she remained at the house of appellant for 2-3 days. It is not in dispute that victim was above 18 years of age and at the best it can be said that it is consensual sex and there is no iota of material which could remotely suggest that it is the false promise of marriage extended by appellant to the victim. 8. Per contra learned Spl. It is not in dispute that victim was above 18 years of age and at the best it can be said that it is consensual sex and there is no iota of material which could remotely suggest that it is the false promise of marriage extended by appellant to the victim. 8. Per contra learned Spl. P.P. submitted that victim was ravished at the first instance without her consent which is very evident from testimony of victim and her written report and thereafter false promise of marriage was extended by appellant therefore, there is no consent in the eyes of law. As such, no interference is required by this appellate court in the findings passed by the learned trial court. 9. Heard the rival submissions of the parties and perused the trial court record. 10. To conceal the identity and parentage of the victim and her relatives their names are not being disclosed in this Judgment. It seems that to prove its case, prosecution has examined as many as ten witnesses in the present case. 11. P.W. – 1 is the victim, P.W. – 2 is victim’s mother, P.W. – 3 is the victim’s father, P.W. – 4 is the sister of the victim and P.W. – 5 Pad Lochan Gope @ Padma Lochan Gope-Mukhia, P.W.-6 Senapati Mahato and P.W.-7 Naktul Mahato are villager who got hostile in the present case, whereas P.W.-8 Ramesh Gope, nana of victim who has been tendered by the prosecution, P.W.-9 Dr. Ragini Singh is the doctor who examined the victim on 12.12.2002 at Sub-Divisional Hospital at Seraikella and P.W.-10 is Rabindra Mohan who is a formal witness. 12. P.W. – 1 is the victim who has deposed that it was 4:00 P.M. in the evening when her friend who happens to be the sister of appellant came to her house to call her and she was taken to appellant’s house where she interacted with her and thereafter appellant’s sister went out and she was alone in the house and at that very time her friend’s elder brother (appellant) came there and bolted the door and committed rape on her person without her consent. 13. 13. It is further stated by victim that when she tried to forbade him then she was given assurance by appellant that he would marry with her and when this fact was conveyed to parent of appellant then they also agreed for the same and she also narrated this fact to her parent when came to her house. When her parent told the parent of appellant, then appellant took the victim to his house and she was kept there for two-three months and appellant used to say victim that she is his wife and when she asked for marriage she was taken to the Registry Office, Seraikella and her signature was taken on a paper and appellant asked her that they would have to come after a month and thereafter she was again taken to his house and victim was kept as his wife thereafter again victim was taken to Shankosie at Jamshedpur and there also appellant kept her as a wife. Despite insisting of victim to visit Seraikella for marriage, she was not taken there and appellant did not solemnize marriage with her and lastly she was kicked out after abusing her. Then victim visited Seraikella with her father and after contacting lawyer she narrated incident and it was got typed and the same was read over to her, thereafter she put her thumb impression on it and said application was given in police station and Police sent her for medical examination. In cross-examination she has stated that she has not divulged fact of rape to the villager and after first incident of rape she started meeting with appellant of her own will and accord and started establishing physical relation with him. She further stated that she left the house of appellant two years back and she is residing in TATA. She denied the suggestion that at TATA similar case has been lodged by her against one Budheshwar Gope and appellant asked victim to solemnize marriage but she left his house and came to Jamshedpur of her own. She has further stated that Budheshwar Gope has kept her in the rented house of one Sahu. 14. P.W.-2 is the mother of victim, she has deposed what victim has stated to her. She has further stated that Budheshwar Gope has kept her in the rented house of one Sahu. 14. P.W.-2 is the mother of victim, she has deposed what victim has stated to her. However, in cross- examination she has stated that she told police that she and her husband went to the parent of appellant for the proposal of marriage and police was intimated two-three days after the incident of rape. She has stated that victim used to reside at the house of accused and she has also denied suggestion of defence that when appellant was ready to get married with victim then she was taken to TATA by them. She also showed her ignorance about the present place of stay of victim. 15. P.W.-3 is father of the victim who has stated about the fact that sister of appellant called victim to appellant’s house and she went there and she returned from there after a lapse of two days and victim stated regarding the incident which took place with her. In cross-examination he has stated that he has heard about the incident from her daughter (victim) and when he made commotion about the incident then villager assembled however, he was not able to tell the name of villager and second day of the incident he visited to police station but police didn’t turn up. He is also unaware about the present place of stay of his daughter (victim). 16. P.W.-4 is the sister of the victim who has also narrated the same fact what is stated by her father but she has stated that her sister (victim) returned from the house of appellant after a lapse of three days, and when she came back then she narrated the incident. She further stated that her sister (victim) was kept by appellant for six months and he did not marry with her and victim was thrown out of his house. In cross-examination she has stated that appellant house is half minute away from her house and there is no house in between both the houses. She also stated that when her sister did not returned for three days then they given intimation in police station and said intimation was given by her father but they did not make hue and cry in the village. She also showed her ignorance about the present place of stay of victim. 17. P.W.-9 Dr. She also stated that when her sister did not returned for three days then they given intimation in police station and said intimation was given by her father but they did not make hue and cry in the village. She also showed her ignorance about the present place of stay of victim. 17. P.W.-9 Dr. Ragini Singh who examined the victim on 12.12.2002 and has stated that report of vaginal smear examination of the victim showed presence of a few heads of spermatozoa. She has also stated that age of victim was above 18 years as shown by x-ray report and there was no mark of injury on her body or private part and she found evidence of sexual intercourse committed with the victim and she has identified her writing and signature of medical report which is marked as Exhibit- 1. 18. From perusal of evidence of victim, it transpires that she has stated that appellant committed rape in the evening in his own house without her consent. She has further stated that she tried to forbade him from doing so then appellant gave her assurance that he would marry her but in written report she has stated that in the room at the house of appellant, appellant established physical relation with her without her consent and when victim started weeping and putting emphasis to divulge this fact to villager then appellant made promise to her for marriage. In the evidence of P.W.- 3 (father of the victim) and P.W.- 4 (sister of the victim), it is come in their respective testimony that after the first incident victim remained at the house of appellant for 2-3 days. P.W.- 4 has also stated that her house and house of the appellant is just half minutes away and there is no house in between both the houses. From perusing above stated testimony of witnesses, this Court finds that even on first occasion physical relation between appellant and victim was made on the promise of marriage which has been extended by appellant to the victim. Thereafter victim herself and her mother, father and sister have stated in their respective testimony that victim stayed with appellant in the village as well as at Jamshedpur for couple of months. Victim has stated in her testimony that physical relation was established with her own consent. Thereafter victim herself and her mother, father and sister have stated in their respective testimony that victim stayed with appellant in the village as well as at Jamshedpur for couple of months. Victim has stated in her testimony that physical relation was established with her own consent. Victim has also deposed in her evidence that she was taken Seraikella Registry Office for the purpose of marriage where they were told to come after a month. By way of giving suggestion accused had taken a plea that it is the victim who has not agreed for marriage and left the house of appellant. 19. Hon’ble apex court in the judgment rendered in the case of Deepak Gulati v. State of Haryana, reported in (2013) 7 SCC 675 has reiterated the issue of rape and consensual sex and acquitted the accused where the prosecutrix was 19 years of age capable of understanding the complications and issues surrounding and had left her home voluntarily, of her own free will to get married having adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. Relevant para of the judgment is quoted hereunder: - 17.4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. 18. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as “the 1872 Act”) provides, that if the prosecutrix deposes that she did not give her consent, then the court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 IPC. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape. 19. This Court considered the issue involved herein at length in Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639 ] , Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203 ] , Yedla Srinivasa Rao v. State of A.P. [ (2006) 11 SCC 615 : (2007) 1 SCC (Cri) 557] and Pradeep Kumar v. State of Bihar [Pradeep Kumar v. State of Bihar, (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059 ] and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned. 21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 22. In Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203 ] it has been observed as under : (SCC p. 99, para 19) “19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.” 24. This is the scheme of Section 90 which is couched in negative terminology.” 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. 20. Considering the above legal proposition and from perusal of evidence as well as written report of victim it is not clear that on which date or month she left the house of appellant but she has stated that she was kicked out when she insisted for marriage. It is also stated by the victim that she was also abused. Medical examination of victim suggests that spermatozoa was found in vaginal swab examination and Doctor (P.W.-9) has stated in her cross- examination she found evidence of sexual intercourse committed with the victim. One question which cropped up in the mind of this Court that when appellant refused to marry and had given bad treatment to victim then there was no occasion for making physical relation with victim. Even victim has stated that on one occasion she was taken to Seraikella Registry Office for marriage but on second occasion victim was not taken to Seraikella Registry Office. In cross-examination of victim appellant has given a suggestion to the victim that appellant had asked victim for solemnization of marriage but she left his place. At the time of her evidence she has stated that one Budheshwar Gope has kept her in a rented house of one Sahu. 21. In cross-examination of victim appellant has given a suggestion to the victim that appellant had asked victim for solemnization of marriage but she left his place. At the time of her evidence she has stated that one Budheshwar Gope has kept her in a rented house of one Sahu. 21. Considering the totality of aforesaid evidence, it cannot be inferred that from the very inception of relationship with victim, appellant was having no intent to solemnized the marriage with victim. 22. This Court is of considered view that prosecution has not able to prove beyond reasonable doubt that appellant had committed rape on the person of victim on false pretext of marriage. 23. In view of discussion in preceding paragraph and legal proposition propounded by Hon’ble Supreme Court, this Court is of considered view that appellant is entitle for benefit of doubt, as such, judgment of conviction dated 25.01.2008 and order of sentence dated 28.01.2008 passed by learned Additional Sessions Judge (F.T.C.) II, Seraikella in Sessions Trial No. 34 of 2004 arising out of Ichagarh P.S. Case No. 49 of 2002, is hereby set aside. 24. Resultantly, this appeal is allowed. 25. Since, the appellant is on bail, he is discharged from the liability of his respective bail bonds. 26. Let the trial court record be sent back to the court concerned forthwith.