ORDER
V.K. Gupta, C.J.
1. This Criminal Revision petition is directed against the judgment dated 14th August. 2001 passed by the learned 1st Addl. Sessions Judge. Seraikella in S.Tr. Case No. 20 of 1997 whereby he has acquitted the respondent No. 1 of the charge under Section 376. IPC by holding him not guilty for the same.
2. The charge under Section 376. IPC on which the respondent No. 1 was tried related to and revolved around PW 1, the alleged so-called victim. According to her, respondent No. 1 who was her co-villager used to come to her house off and on whenever she was alone in the last 1 1/2 years. It was her case that the respondent No. 1 used to assure her that he would marry her and based on this assurance he established illicit sexual relationship with PW 1 repeatedly for long periods due to which she became pregnant. It has also come in her deposition that while respondent No. 1 used to have sexual intercourse with her and when she had become pregnant, she came to learn that he had married another lady and on enquiry he assured PW 1 that he will marry her also. On this, an adjudicatory process was set in motion in the village Panchayat in which respondent No. 1 denied to keep PW 1 as his wife or to marry her and it was on this refusal on the part of respondent No. 1 that the prosecutrix (PW 1) lodged FIR against respondent No. 1 under Section 376, IPC alleging that he had raped her.
3. Undoubtedly PW 1 at all relevant times was a major. It is not the case of the prosecution that while both were having illicit sexual intercourse with each other. PW 1 was a minor at any point of time. The entire prosecution case was built round the allegation of ‘rape’ on the basis of the consent element.
4. ‘Rape’ has been defined in Section 375, IPC. In so far as it is relevant for our purposes, the extract of Section 375, IPC reads thus :
“Rape: A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First : Against her will.
Secondly : Without her consent.
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Section 90. IPC in so far as the question of ‘consent’ relatable to Section 375, IPC is concerned, states as under :
“Consent known to be given under fear or misconception :
A consent is not such a consent as it 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; or
consent of insane person: if the consent is given by a person who, from un-soundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child: unless the contrary appears from the content, if the consent is given by a person who is under twelve years of age.”
5. A bare look at Section 375. IPC clearly suggests that the offence of rape, meaning thereby a man having sexual intercourse with a woman, is said to have been committed if the man has such sexual intercourse with the woman either against her will or without her consent. It is only in such cases where the woman is under 16 years of age that the consent is immaterial. In such cases, the Act of having sexual intercourse, with or without consent amounts to the offence of committing rape on such woman who is under 16 years of age.
6. Viewed in the aforesaid legal perspective and the definition of ‘rape’ vis-a-vis the consent element, as provided for in Section 375. IPC when we consider the evidence on record which is mainly the deposition of the prosecutrix herself, what emerges manifestly clear is that the respondent No. 1 and the prosecutrix were having sexual intercourse with each other and that the prosecutrix all along was a consenting party to such sexual intercourse. She was also a willing party to this Act. Not only this, according to her own statement, this went on for as long as 1-1/2 years and only when she became pregnant as a result of such sexual intercourse, she, perhaps, realised that time for action had come. Can it be said that a man had been having sexual intercourse with a woman for full 1-1/2 years, the woman being a consenting party to such act of sexual intercourse between the two of them, and yet the act of sexual intercourse would amount to the man committing rape on the woman?
The answer has to be in the negative, because the element of consent being the most important ingredient for constituting the offence of rape, because the woman had consented, the offence is not made out at all.
7. An argument can be raised based on Section 90. IPC with respect to the legality of the consent on the ground that it was given under a misconception of fact. This argument can be very easily repelled by a counter argument that a woman consenting to have sexual intercourse with a man only on the premise (on the presumption that the premise is treated to be true and not false) that the man would ultimately marry her, cannot be said to have given consent for sexual intercourse under a misconception of fact. There is no question of any misconception of fact as far as the woman is concerned. The man promised to marry her: she believed his promise, rightly or wrongly, foolishly or intelligently and based on such belief, she started having sexual intercourse with her, by giving consent to the same and she being a willing party to this act, in such a situation, it cannot be said that such consent was given under any misconception of any fact. She clearly understood the fact and she gave the consent. Rather, if one treats the issue from the moralistic point of view, one can say that the act of the woman in giving consent for sexual intercourse at a premarital stage (presuming she was acting on the premise that the man had promised to marry her) can be called an immoral and sinful act because under our social ethos, norms and values, an unmarried woman is not to have sexual intercourse with anyone even if that person happens to be the one who has promised to marry her. On the report of such a woman, therefore, even registering a case under Section 376. IPC was not called for. Such an FIR on the very face of it does not show the commission of any offence, much less the offence under Section 376, IPC. In such a case, even the investigation should not have started because a bare reading of the FIR and a bare reading of the statement of the prosecutrix recorded under Section 161. Cr PC would suggest and establish that no offence under Section 376, IPC was made out primarily and mainly because on her own showing, the sexual intercourse between the two of them was on free will and consent of the prosecutrix herself. She being a consenting party, cannot be permitted to turn around and accuse the man of committing rape upon her, that too after repeated episodes of sexual intercourse, admittedly lasting for more than 1 1/2 years and she on her own showing, on her own admission, subjecting herself to such sexual intercourse on a premise that he was her future husband.
8. A Division Bench of Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal and another, reported in 1984 Cr LJ 1535 had the occasion to deal with an identical situation. It had the following to say :
“In support of the contention Mr. Hait contended that a misconception as to the intention of the person in staling the purpose for which the consent is asked is a misrepresentation of a statement of fact within the meaning of Section 3 of the Evidence Act, and a consent given on a misrepresentation of fact is one given under a misconception of fact within the meaning of Section 90 of the Penal Code. In support of this contention, reliance was placed in the case of Emperor v. Soma, 36 Ind Cas 850 : (18 Cri LJ 18 (Leh). That was a case where the question of consent in the context of an allegation of kidnapping of a minor girl came for consideration. It was held in the facts of that case that the intention of the accused was to marry the girl to one Dayaram and she obtained Mr. Kujan’s consent to the taking away of the girl by misrepresenting her intention. Therefore the point that was decided in that case was that at the time when the offence was committed by taking away the girl, there was a positive misrepresentation of fact, viz., the representation as to the intention regarding the purpose of taking away. In the instant case before us the facts cannot be placed as high as that. 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 that if she had really been assured of marriage by the accused who was visiting her house and in whose promise she had faith, 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 complaint is that the accused did not till then back out. Therefore, it cannot be said that tilt then the accused had no intention of marrying the complainant even if he had held out any promise at ail as alleged. 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 meaning 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 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 can 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.”
9. Looked at from whichever point of view, therefore, we have no hesitation in holding that the acquittal of Respondent No. 1 was not only warranted but fully justified and that actually the prosecution in this case should not have even started.
10. This petition is dismissed, but without any orders as to costs.