Page No.# 1/ vs The State Of Assam
2025 Latest Caselaw 4864 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 21 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                               Page No.# 1/11

GAHC010003702012




                                                                        2025:GAU-AS:6353

                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Crl.A./37/2012

          PROSANTA BORA
          S/O SRI JAYRAM BORA @ KHADLORA BORA, R/O RAWNAGAON, P.S.
          MAJULI, DIST. JORHAT, ASSAM.



          VERSUS

          THE STATE OF ASSAM


Advocate for the Petitioner : MR.A L MANDAL, MR. SURAJIT DAS, AMICUS CURIAE,MR.N
BARUAH
Advocate for the Respondent : , PP, ASSAM

:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellant : Mr. N. Barua, Advocate.

Mr. S. Das, Amicus Curiae.

                   For the Respondent           :         Mr. B. Sarma,
                                                          Addl. P.P., Assam.

                   Date of Hearing              :         06.05.2025.
                   Date of Judgment             :         21.05.2025.
                                                                          Page No.# 2/11



                          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 Page No.# 3/11

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 unable Page No.# 4/11

to understand the nature and consequences of that to which she gives consent.

Sixthly.-- With or without her consent, when she is under sixteen years of age. Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

9. Section 90 of the IPC has defined the word consent, which reads as under:

Section 90. 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 unsoundness 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 context, if the consent is given by a person who is under twelve years of age.

10. In the case of Uday v. State of Karnataka (2003 CriLJ 1539) , the Apex Court considered the earlier decisions on the subject and held as follows:

"It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for Page No.# 5/11

determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must always weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."

11. In Uday's case (supra), the Court further held that-

"There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The, question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly Page No.# 6/11

when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment succumb to temptation of having sexual relationship. This is what appears to have happened in this case as well as, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to inpute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

12. In the case of Dilip Singh Alias Dilip Kumar v. State of Bihar (AIR 2005 SC 203), the Apex Court was as to whether consent given by a woman believing a man's promise to marry her is a 'consent', which excludes the offence of rape. The decision in Uday (supra) was further explained by the Apex Court, in Dilip Singh (supra), as follows:

"The first two sentences in the above passage need some explanation. 'While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Ram Panda, which was approvingly referred to in Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1530, para 7) -"unless the court can be assured that from the very inception the accused never really intended to marry her", (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an act of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Page No.# 7/11

Code", it cannot be said that this court has laid down the laws differently. The observations following, the aforesaid sentences are also equally important. The court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out."

13. In Bipul Medhi v State of Assam , reported in 2007 (2) GLR 200 , this Court had in a similar matter, held -

"If a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90 IPC, amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417 IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. . . ."

14. Thereafter in Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Page No.# 8/11

Anr (AIR 2007 SC 3059), the Hon,ble Supreme Court has again dealt with the subject. The facts of the case before the Hon,ble Apex court are as under--

"Respondent No.2 lodged the First Information Report (in short the 'FIR') alleging that with an assurance that the accused-appellant would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged."

15. In Pradeep Kumar @ Pradeep Kumar Verma ( supra ), the Hon,ble Supreme Court has held and laid down the ratio as under--

"A promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, I.P.C., it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, I.P.C. clause second."

16. In Deepak Gulati v. State of Haryana , reported in 2013 Crl.L.J.2990, in paragraph 18, the Hon'ble Apex Court has observed as follows:

"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and Page No.# 9/11

passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

17. The so-called victim girl Rekha Bora was more than 18 years of age when the occurrence took place. She allowed the appellant Prosanta Bora to have physical relationship on the ground that he had simply promised to marry her. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact.

18. Now, a brief visit to the definition of cheating as defined by Section 415 of the Indian Penal Code would be fruitful. It reads as under:

"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do Page No.# 10/11

anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."

19. Whoever, by deceiving a woman to give consent for sexual intercourse, which she would not have allowed unless she was so deceived would become cheating punishable under Section 417 of the Indian Penal Code. In the case in hand, the victim girl was more than 18 years of age. On a simple promise to marry, she allowed the appellant to have physical relationship with her. This cannot be said to be an act of cheating on the part of the appellant because the girl gave consent for sexual intercourse on the promise of an uncertain event.

20. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, I.P.C. clause second.

21. In the case in hand, it is an admitted fact that the appellant Prosanta Bora took the girl to his house and introduced her to his family members as his wife. But when the girl started putting pressure upon him to marry her, he asked her to get out of the house. At that point of time, what actually happened, is not known. She claimed that when she had put pressure upon him to marry her, the appellant asked her to get out of the house. On that issue, there is no evidence except the evidence of the victim girl. The reason as to why the appellant asked the victim to get out of the house is not yet clear.

22. Be that as it may, on a simple promise of marriage, the victim girl allowed the appellant Prosanta Bora to have sexual intercourse with her. This proposition of fact does not go well with the proposition that she was deceived by the appellant because the appellant's promise of marriage was a hoax ab initio. This fact has not been Page No.# 11/11

proved. The circumstances show that the appellant Prosanta Bora took the girl to his house and introduced her to his family members as his wife. But what happened next, is not known. No evidence to that effect is available in the record. On the face of the record, it can be said that the promise of marriage made by the appellant Prosanta Bora was not a hoax ab initio.

23. Under the aforesaid premised reason, this Court is of the opinion that the learned trial court had erroneously oriented itself while appreciating the available prosecution evidence. For the aforesaid reasons, the appeal is allowed.

24. The judgment and order dated 17.01.2012 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No.2 of 2006, is set aside.

25. The appellant Prosanta Bora is found not guilty and is acquitted from this case.

26. With the aforesaid directions, the appeal is disposed of.

Send back the LCR.

JUDGE

Comparing Assistant