A mere promise to marry does not amount to misrepresentation, and consent is valid unless proven otherwise.

JUDGMENT AND ORDER (CAV)

Heard Mr. N. Barua, learned counsel as well as Mr. S. Das, learned Amicus Curiae appearing for the appellant. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, Assam.

2. This is an appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment and order dated 17.01.2012 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No.2 of 2006. The appellant was convicted under Section 417 of the Indian Penal Code and was sentenced to undergo simple imprisonment of six months.

3. On 21.07.2004, Smt. Rekha Bora has filed a complaint stating that she was in a relationship with Prosanta Bora for more than one year. Prosanta Bora allegedly promised to marry and on that promise, he had physical relationship with her. On 29.06.2004, accompanied by two Mohila Samity members, Prosanta Bora took the complainant to his house and introduced her to be his wife. That day also, she slept with Prosanta Bora who had physical relationship with her that night. She put pressure upon Prosanta Bora to marry her. In return, he threatened her and asked her to return to her own house. In that way, Rekha Bora spent many days in the house of the appellant Prosanta Bora. His elder sister Smti Niru Bora did not allow the complainant Rekha Bora to sleep with Prosanta Bora. She compelled Rekha Bora to sleep with her. On the date of filing of the complaint, at about 4.30 in the morning, while Rekha Bora was sleeping, Niru Bora tried to kill her by pressing her neck. She somehow saved her life and went to the house of her parents.

4. With the aforesaid allegation, a complaint was filed and police registered the case being Majuli P.S. Case No.35/2004. The trial court framed charges under Sections 307 and 417 of the Indian Penal Code against the appellant Prosanta Bora. The trial court framed another charge under Section 498-A of the Indian Penal Code against the appellant Prosanta Bora and his elder sister Niru Bora.

5. During the trial of the case, the prosecution side examined as many as 11 witnesses and one court witness. On the basis of the evidence on record, the appellant Prosanta Bora was convicted under Section 417 of the Indian Penal Code . Niru Bora was convicted under Section 323 of the Indian Penal Code . She was allowed to go on probation of good conduct whereas Prosanta Bora was sentenced to undergo simple imprisonment for 6(six) months and was directed to pay a compensation of ₹10,000/- to Rekha Bora with default stipulations.

6. I have considered the submissions made by the learned counsel of both sides.

7. At this stage, I have decided to accept that on a promise of marriage, the appellant Prosanta Bora had physical relationship with Rekha Bora but he did not marry her.

8. The law relating to the subject plays a vital role. At this stage, a quick revisit to the section 375 of this IPC is required, which reads as under:

[375. 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.

Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unabl