Gauhati High Court
Crl.Rev.P./317/2013 on 26 September, 2025
Page No.# 1/8
GAHC010009432013
2025:GAU-AS:13403
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Rev. Pet. No. 317/2013.
Sri Nabajyoti Deori ... ... ...Petitioner
S/o Late Kutu Ram Deori
Resident of- Narayanpur Kundil Nagar
Mouza-Narayanpur
Sub-Division - North Lakhimpur
Police Station-Narayanpur
District-Lakhimpur (Assam).
-Versus-
State of Assam ... ... ...Respondent
For the petitioner : Mr. T.Z. Mahanta, Advocate.
For the Respondent : Mr. B. Sharma, Addl. P.P, Assam.
Date of hearing : 16.09.2025.
Date of judgment : 26.09.2025.
-BEFORE-
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
JUDGMENT & ORDER (CAV)
Heard Mr. T.Z. Mahanta, learned counsel for the accused petitioner and Mr. B.
Sharma, learned Additional Public Prosecutor, Assam.
Page No.# 2/8
2. The present Criminal Revision Petition under Sections 401 read with Section 397
of the Code of Criminal Procedure, 1973 is filed assailing the Judgment and Order
dated 27.12.2012 passed in Sessions Case No. 62(NL)/2011 by the learned Assistant
Sessions Judge, Lakhimpur at North Lakhimpur convicting the accused petitioner
under Section 376 IPC and sentenced him to undergo RI for 7 years and to pay a fine
of Rs. 5000/-, in default of payment of fine to suffer RI for 3 months and also
convicted under Section 417 IPC and sentenced him to RI for 7 months.
3. The further challenge is made against the appellate Judgment and Order dated
17.06.2013 passed in Criminal Appeal No. 2(1)/2013 passed by the learned Session
Judge, Lakhimpur at North Lakhimpur acquitting the accused appellant from the
charge under Section 376 of IPC but upholding the sentence passed by the learned
Trial Court under Section 417 of IPC.
4. The prosecution story in a nutshell is that the informant lady was in a love affair
with the accused person for about 5 years and on 25.05.2010, the accused petitioner
had taken her from her house to a rented accommodation where he put vermilion on
her head and thereafter co-habited with her as husband and wife and this state of
affairs continued till 07.09.2010 when the accused petitioner went to his house and at
that time, the informant was pregnant. However, the accused petitioner did not return
to her and cut off communication with her which ultimately led her to lodge the
instant FIR.
5. After lodging of the FIR, Lakhimpur PS Case No. 594/2010 under Section
Page No.# 3/8
120(B)/493/376 IPC was registered, investigated and culminated with the filing of
charge-sheet under Section 376/417 IPC and charges were framed accordingly by the
learned Assistant Sessions Judge, Lakhimpur. After trial, he was convicted under both
the offences. In appeal, the learned Sessions Judge, Lakhimpur while setting aside the
conviction under Section 376 IPC sustained the conviction as well as the sentence
imposed by the learned Trial Court under Section 417 IPC. Aggrieved, the accused
petitioner has preferred the instant Criminal Revision Petition.
6. In the aforesaid backdrop, Mr. T.Z. Mahanta, learned counsel for the accused
petitioner argues that the prosecution had failed to bring home the charge under
Section 417 IPC as initial deception is missing in the instant case and the complainant
being a major, had herself consented to their intimate physical relationship out of her
own sweet will in as much as they were in a relationship of more than 5 years.
7. Mr. T.Z. Mahanta, learned counsel for the accused petitioner further urges that
there is no material, even to remotely suggest that the accused petitioner had lured
the victim on the pretext of marrying her. Therefore, according to him, the conviction
under Section 417 IPC for 'cheating' is not sustainable in law and the impugned
judgments and orders are liable to be interfered with, having been vitiated by
perversity.
8. Mr. T.Z. Mahanta, learned counsel for the accused petitioner contends that the
prosecution has failed to prove miserably by way of cogent evidence that the consent
by the complainant to the sexual intercourse was given under misconception of fact,
Page No.# 4/8
i.e., promise to marry and the fact is that she also desired for it as they were in a love
relationship for 5 years. Therefore, the accused petitioner ought not to have been
convicted under Section 417 IPC for cheating based on the evidence adduced by the
prosecution.
9. It is also contended that it is well settled 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
misconception of fact.
10. Par Contra, Mr. B. Sharma, learned Addl. Public Prosecutor argues that the
prosecution through the evidence of the victim and other witnesses have been able to
prove that the promise to marry was false and that the accused petitioner made such
promise with an intention not to abide by it but to deceive the victim and convinced
her for engaging in the sexual relationship. Thus, the misconception of fact, which
vitiated the consent of the victim had duly been proved by the prosecution beyond any
reasonable doubt.
11. Mr. B. Sharma, learned Addl. Public Prosecutor further submits that the learned
Appellate Court after re-appreciation of the facts established through the prosecution
witnesses, had affirmed the judgment of the learned Trial Court. Therefore, this is not
a fit case to exercise the revisional power of this Court to interfere with such well
reasoned judgments, more particularly, when both the Courts below had concurrently
found the accused petitioner guilty of offence under Section 417 IPC.
Page No.# 5/8
12. I have given due consideration to the submissions made by the learned counsels
for the parties and also perused the evidence, more particularly for the reasons that
the point of perversity has been urged by the learned counsel for the accused
petitioner.
13. In the case of Pramod Suryabhan Pawar Vs. State of Maharashtra
reported in (2019) 9 SCC 608, the Hon'ble Apex Court held that when the promise
to marry is false and the intention of the maker, at the time of making the promise
itself was not to abide by but to deceive the woman and to convince her to engage in
sexual relation, there is a misconception of fact, which vitiates the woman's consent.
At the same time, a breach of a promise cannot be said to be a false promise and to
establish false promise, the maker of the promise should have had no intention of
upholding his word at the time of giving it. It was further held that consent of a
woman in reference to Section 375 IPC must involve an active and reasoned
deliberation towards the proposed act. It was also held that to establish whether the
consent was vitiated by misconception of fact arising out of a promise to marry, two
propositions must be established. The promise of marriage must have been a false
promise, given in bad faith and with no intention of being adhered to at the time it
was given and such false promise itself must be of immediate relevance, or it must
bear a direct nexus to the woman's decision to engage in the sexual act.
14. At this stage, it would be apposite to notice what the informant had actually
stated in her deposition during the trial as PW-1. The very first line of her deposition is
Page No.# 6/8
"The accused person is my husband". She deposed that she was in a love affair with
the accused petitioner who had taken her from her house to a rented room of his
friend on 25.05.2010 where the accused petitioner kept her and put vermilion on her
hair parting in the presence of one Dipankar Hazarika, whose rented room was used
and married her and since then they used to live as husband and wife for about one
month in the said rented house. Thereafter, they shifted houses on two occasions.
However, on 07.09.2010, the accused petitioner went to his own house during
which time she was pregnant. The accused also took her to hospital for check-up over
her pregnancy and after return from the hospital the accused petitioner went to his
house at Narayanpur upon being called by his family members and thereafter, he went
to Guwahati and returned to his own home after two days and telephoned her but did
not go to their rented house. The accused petitioner told her over telephone that he
was discussing his marriage with her with his family members but faced opposition
from his mother and elder sister. After that the accused petitioner did not
communicate with the informant and there was no communication between them.
Thereafter, his elder sister sometimes used to telephone her and abuse her in
filthy language.
In cross-examination, she stated that prior to her marriage, the accused
petitioner used to visit her house for about five years and they fell in love with
each other and as a result of such love, they entered into marriage with each other
and they lived peacefully in their rented house as husband and wife and the accused
Page No.# 7/8
petitioner also took care of her during the period of staying in the rented house at
North Lakhimpur. She admitted that the accused petitioner left her under pressure of
his family members as they had not accepted her in their family. The accused
petitioner never expressed at any point of time that he would leave her alone.
15. What is obviously interesting to notice is that even at the time of her deposition
which was about one year after she started cohabiting with the accused petitioner, she
affirmed that the accused petitioner was her husband and that he had married her,
albeit not in the formal manner. Going back by that version, not even a case of breach
of promise to marry would have been made out.
16. Be that as it may, what clearly appears from the deposition of the informant PW-
1 is that she was in a consensual love relationship with the accused petitioner for a
long period of about five years during which time they maintained physical relationship
resulting in her pregnancy. The accused petitioner also took care of her during her
pregnancy and it is evident from the cross-examination of the PW-1 that the accused
petitioner had come under family pressure which perhaps led him to shy away from
formally marrying the informant. There is no allegation or statement on the part of the
victim that the accused petitioner had made any false promise of marriage to her
which led her to succumb to him and enter into a physical relationship.
17. In fact, there is nothing in the evidence on record to indicate that the accused
petitioner never intended to formally marry the informant and it is the converse that is
true as is discernible from the cross-examination of the PW-1 and the act of applying
Page No.# 8/8
vermilion on the hair parting of the informant though cannot perhaps be equated with
an act of marriage but is suggestive of a promise to marry but there is nothing in
the evidence to indicate that such promise was actuated by any ill intention from the
very inception so as to attract the ingredients of Section 417 IPC.
18. That being the case, the impugned judgments of both the learned Courts below
suffer from perversity and impropriety and deserve to be set aside.
19. Accordingly, the impugned Judgment and Order dated 27.12.2012 passed in
Sessions Case No. 62(NL)/2011 by the learned Assistant Sessions Judge, Lakhimpur
and the impugned Judgment and Order dated 17.06.2013 passed in Criminal Appeal
No.2(1)/2013 by the learned Sessions Judge, Lakhimpur are hereby set aside and
quashed.
20. The Criminal Revision Petition stands allowed and disposed of.
Send back the TCR.
JUDGE
Comparing Assistant
