1. This appeal is directed against the judgment and order, dated 10.3.2011, passed by the learned Additional Sessions Judge (FTC), Nagaon in Sessions Case No. 80(N) of 2008.

2. By the impugned judgment and order, the learned Sessions Judge convicted the appellant, under section 376, IPC and sentenced him to suffer rigorous imprisonment for four years and pay fine of Rs. 1,000, in default, undergo simple imprisonment for another period of one year.

3. Aggrieved by the said judgment and order, the convicted person, as appellant, has come up with this appeal, on the grounds that the learned Sessions Judge committed error by failing to correctly appreciate the evidence-on-record, the provision of section 90 of the Indian Penal Code (TPC) and the consequence of delay in lodging the case.

4. The prosecution case, in brief, is that the appellant, who was known to the informant, developed affairs with the informant's daughter and established physical relationship with her with promise of marriage. Consequent upon the said physical relationship, the informant's daughter became pregnant. Though the victim women, i.e., informant's daughter, had requested the appellant to marry her, he declined to do so and denied his relationship with her. Subsequently, the victim women delivered a baby.

The parents of the victim also approached the appellant requesting him to marry their daughter, but the appellant and two other persons, namely, Mr. Habibor and Mr. Safiqul, while refusing the said proposal, threatened them with dire consequence. Therefore, the matter being taken to the villagers, a village 'Mell' was held, but the appellant failed to attend the same. Thereafter, the father of the victim, as complainant, filed a complaint before the court. In due course, the learned Judicial Magistrate 1st Class committed the case to the Court of Sessions.

5. The learned Sessions Judge framed charge, under sections 376/506/ 34, against the petitioner and two others. The charges were explained and read over to the accused persons to which they pleaded not guilty.

6. The prosecution examined as many as four witnesses including the victim and the informant. At the close of the evidence of the prosecution, the accused persons were examined under section 313, Cr.PC. They denied the allegations, brought against them and examined nine witnesses as DWs.

7. Considering the evidence-on-record, the learned Sessions Judge, found the appellant guilty of the offence under section 376, IPC and accordingly, convicted and sentenced him, as indicated above. The other two accused persons were acquitted for want of evidence.

8. Mr. M.H. Ahmed, learned counsel, appearing for the appellant, taking this court through the evidence-on-record, has submitted that there is sufficient evidence to show that the victim women being a married Muslim women, had the knowledge that her marriage with the appellant, without obtaining divorce from her husband was impossible and as such it is not believable that she had given consent on the basis of the promise of marriage.

9. It is also submitted that, the victim being a married Muslim lady, there was no question of giving consent under any misconception of fact and that there is nothing, on record, to show that from the very inception, the appellant had any intention to deceive the victim or that he had deceitfully induced her to believe that he would marry her. It is also submitted that failure to keep promise, if any, at a future uncertain date, due to reason of impossibility, cannot amount to misconception of fact.

10. It is further submitted that the victim, being a married women had at best indulged in promiscuity with the appellant. Therefore, it is submitted that the learned trial Judge committed error by holding that the victim had given consent on misconception of fact and as such the same was not a consent, in view of provision prescribed by section 90, IPC.

11. The learned counsel, has also submitted that the delay in filing complaint and th

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