The main legal point established in the judgment is the interpretation of consent under Section 90 of the Indian Penal Code in cases of sexual intercourse based on a promise to marry.

H. Barua, J.

1. This is an appeal against the Judgment and Order of conviction dated 15.07.2005 passed by the learned Assistant Sessions Judge Nalbari in Sessions Case No. 26/04 by which the learned trial Court convicted and sentenced the appellant to undergo imprisonment for 8 years under Section 376 IPC together with a fine of Rs. 2,000/- in default to suffer another 6 months RI.

2. The appellant being aggrieved by and dissatisfied with the Judgment and Order of conviction as aforesaid this instant appeal seeking setting aside and quashing of the Judgment so rendered by the learned trial Court has been filed.

3. Criminal law was set in motion by the victim with the lodgment of an FIR (exhibit 1) before the Station House Officer of Mukalmua Police Station on 23.09.2003 contending inter alia that she was in love with the appellant and the appellant used to visit their residence regularly for the last four years and in one day the appellant forcibly raped her. As a result she became pregnant. While she was carrying four months pregnancy she informed the appellant that she was carrying and requested him to marry her. Accordingly on 14.09.2003 accused took her to their residence and kept her in the courtyard and fled away therefrom. The family members of the appellant did not allow her ingress rather forcibly driven her out from their campus. The matter was brought to the notice of village elders. A village "mel" was accordingly convened but the appellant did not make his presence available rather kept himself in concealment.

4. The FIR (exhibit 1) being thus lodged, the Station House Officer registered a case and commenced investigation. The victim informant was examined by the Investigating Officer and got her examined medically. The informant victim was also produced before a Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. During investigation the appellant could not be apprehended by the Police. However, he surrendered before the Court and got himself enlarged on bail. The Investigating Officer after completion of the investigation laid the charge sheet against the appellant under Sections 493/376 IPC. The case was subsequently committed to the Court of Sessions for trial of the appellant. The learned Assistant Sessions Judge framed charge against this appellant under Section 376 IPC. The appellant pleaded not guilty and claimed to be tried. Altogether 6 witnesses were examined by the prosecution. Appellant was examined under Section 313 Cr.P.C. He pleaded his innocence. No defence evidence in any form was adduced. At the conclusion of the trial, the learned trial Court convicted the appellant and sentenced him as herein before stated. Hence this appeal.

5. Heard Sri B.C. Das, learned Senior Counsel for the appellant. Also heard learned, additional PP for the respondent, The State of Assam. This Court has carefully gone through the facts and circumstances of the case, evidence on record and other materials available in the case record including the impugned judgment. It is found from the perusal of the Judgment that the learned trial Court had carefully gone through all the facts and circumstances of the case, the evidence on record and also the law relevant therefor.

6. Sri B.C. Das, learned Senior Counsel while arguing this appeal submitted that this appeal could be disposed of on the decision of a solitary issue of consent of the victim. Sri B. C. Das raised this issue in the following manner:

(1) Whether the victim had given her consent under misconception of facts.

Sri B.C. Das, while arguing submitted that there is no dispute in relation to visit of the appellant to the residence of the victim, since both the victim and the appellant were in love at that time. It was argued by Sri Das that the medical testimony of PW-5 goes to show that victim at the relevant point of time was above 18 years of age as per radiological report and also was carrying 16 to 17 weeks pregnancy as per ultra sono