Consent for sexual intercourse must be real and not vitiated by immaturity, misconception, misunderstanding, fear, or fraud.

B. C. Chakrabarti, J.:- This revisional application at the instance of the de facto complainant is directed against an order of acquittal passed by the learned Assistant Sessions Judge, Midnapore in Sessions Trial No. 18 of March, 1980 acquitting the accused opposite party No. 2 of the charge under S.376 of the Penal Code.

2. The petitioner lodged a complaint to the police in August 1978 alleging that the accused opposite party No. 2, a teacher of the local village school, used to visit her residence and one day during the absence of the complainant's parents from the house told her that he was in love with the complainant and that he wanted to marry her. The complainant wanted the marriage to be performed. The accused is alleged to have promised that he would do so and that he would himself obtain the consent of her parents. Acting on such assurance she started cohabiting with the accused and this continued for several months during which period the accused often used to visit her house late at night and some times spend the night with her. Eventually she conceived and when she insisted that the marriage should 'be performed as quickly as possible the accused proposed abortion of the child and agreed to marry the complainant sometime after the Panchayat elections. The complainant not having agreed to abortion the accused ultimately disowned the promise and stopped visiting her house. On this allegation Debra P. S.Case No. 20 was started. The accused pleaded innocence and complained that he has been implicated at the instance of a political rival in order to blackmail him, the complainant herself being a woman of easy virtue.

3. At the trial a question was raised as to the age of the girl, whether she was below the age of consent or not and whether the consent was fraudulently obtained and was hit by Sec. 90 of the Penal Code. On the question of age the learned Judge found that she was above 16 years of age at the relevant time. On the other question, viz., whether the consent allegedly given by the complainant was within the mischief of Sec. 90 of the Penal Code, the learned Judge observed that having regard to the facts of the case even if it is assumed that a wholly false promise was given yet then the accused could not be held liable for the offence of rape because consent to the intercourse in such a case was not given under a "misconception of fact" as provided by Sec. 90 of the Penal Code. Precisely his finding is "A false promise is not a fact within the meaning of the Code. The matter would have been otherwise if the accused on the pretext of fake marriage or posing as a husband ravished the girl." In that view of the matter the learned Judge held that the act committed by the accused did not come within the ambit of the Penal Code and on such finding acquitted the accused of the offence under S.376, IPC.

4. Being aggrieved the petitioner has filed the present revisional application and obtained the Rule. Mr. Hait appearing on behalf of the petitioner raised two points in support of the revisional application. Firstly, it was contended that there is no legal evidence to show that the girl was above the age of 16 years and secondly that even if she had attained the age of consent, the consent obtained in this case was hit by the provisions of Sec. 90 of the Penal Code.

5. As regards the first point it was contended that the medical evidence as to the age of the girl is inconclusive and based on insufficient data. But, it appears that in this case the girl herself stated in evidence that she was aged 21-22 years. Her mother (P. W. 2) said in her evidence that she was aged 19-20 years. The evidence was taken on 20-11-1980. The incident alleged by the complainant commenced sometime in February 1978. Therefore, on their own testimony she was above 16 years of age at the time when she started having sexual intercourse with the accused. Even assuming that the medical opinion is based upon insufficient data yet then in v