Nilo Kanta Doley Vs the State of Assam and Anr.

of Criminal Procedure, 1973, the petitioner has assailed the judgment and order dated 31.05.2014 passed by the learned Sessions Judge, Golaghat in Criminal Appeal No.04/2008 whereby the appeal of the petitioner/appellant was rejected by upholding the judgment and order of conviction dated 28.12.2007 passed by the learned Sub-Divisional Judicial Magistrate (S), Golaghat in G.R. Case No.37/2007 by which the petitioner/appellant was convicted under Section 417 of the Indian Penal Code and sentenced to undergo simple imprisonment for a term of one year with fine of Rs.2000/- (Rupees Two Thousand), in default of payment of fine, another simple imprisonment for six months.

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The case of the prosecution, in a nutshell, is that upon information being lodged on 10.01.2007 by the victim that she had love affairs with the petitioner for about one year and during that period the petitioner had committed sexual intercourse with her with a promise to marry her and hence she became pregnant, however, later on, he refused to marry her in spite of her repeated request and

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ultimately fled away from his house, a case was registered before the Bokakhat Police Station vide Bokakhat P.S. Case No.06/2007 under Sections 493/420 of the IPC.

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After completion of the investigation and submission of Charge-sheet under Section 493/420 IPC the case was transferred to the Trial Court. The accused/petitioner upon pleading not guilty and seeking trial, the trial commenced wherein the prosecution examined five witnesses including the Investigating Officer. The prosecution witnesses are as follows : Smti. Budheswari Doley (PW-1), Sri Hemoram Doley (PW-2), Smti. Lileswari Doley (PW-3), Sri Bharat Doley (PW-4) and Sri Lileswar Gogoi (PW-5). That apart, the Court has examined four witnesses as CWs, viz., Smti. Dipali Hazarika, Advocate-cum- Secretary of the Women Cell, Bokakhat (CW-1), Sri Saityam Doley (CW-2), Sri Dharmeswar Pegu (CW-3) and Smti. Bhagyashree Doley (CW-4). Thereafter, the incriminating circumstances having been put before the accused/ appellant under Section 313 Cr.P.C. he denied all such incriminating circumstances.

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It appears that the victim during her deposition in the Court has deposed that the accused had promised to marry her and thereby committed sexual intercourse with her on several occasions. She further deposed that she conceived and became pregnant from the aforesaid relationship with the accused and when she approached him for marriage, he refused to marry her. She further deposed that though PW-2 i.e. her father had organized a village meeting for discussing and deciding the said matter, however, the accused by then had absconded from his place and remained absent from the said meeting. She further deposed that upon

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being advised to approach the Women Cell of Bokakhat, she filed a proceeding before the jurisdictional Women Cell. She further deposed that though the Women Cell had also issued notices upon the accused for appearances but he did not appear. She further deposed that thereafter she filed the instant case.

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PW-2, who is the father of the victim, deposed that the accused had been frequently visiting his home since last two years and he had also promised to marry the victim. He further deposed that on 27.10.2006 the victim informed that she was pregnant from the aforesaid relationship with the accused and that after the accused came to know that the victim has conceived he had asked her to conceal the said fact from others. He further deposed that by the time they came to know, she was already 5 months pregnant. He further deposed that immediately he proceeded to the house of the accused to discuss the matter and the accused promised to marry the victim on the next day i.e. 28.10.2006. However, he did not turn up on that day. He further deposed that accordingly a village meeting was held but the accused absconded. He further deposed that a female child was later on delivered by the victim on 03.01.2007 at Bokakhat Health Center.

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Similarly, PW-3, who is the mother of the victim and PW-4, who is the younger sister of the victim deposed that the accused used to frequently come to their house and also promised to marry the victim to marry her. They also deposed that after the victim became pregnant the accused refused to marry her.

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Thereafter, the learned Trial Court summoned four witnesses as Court witnesses.

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CW-1 deposed that the victim had filed a case in the Women Cell, Bokakhat on

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03.11.2006 stating that the accused on the false pretext of marriage had sexually intercourse with her on several occasions for which she has become pregnant. CW-2 deposed that on learning about the pregnancy of the victim he accompanied the father of the victim to the house of the accused and though he agreed to marry the victim but later on absconded. CW-3, who is the President of the village meeting which was organized, deposed that the accused was absent in the said meeting. CW-4 deposed that the victim had come to her and had informed her about the pregnancy sometime in the month of Kati, 2006.

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PW-8, who is the Investigating Officer, deposed that he had conducted the investigation and submitted charge-sheet and that the accused had absconded from his place.

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What transpires from the aforesaid evidence is that there was a love relationship between the accused and the victim for about two years and the family of the victim fully knew about the same and never objected to their love affair. It is further evident that initially the accused had not only promised the victim that he shall marry her but also to the family members of the victim including the parents and the younger sister. Thus, it is clear that the accused initially had the intention to marry the victim. It is further evident that there was physical relationship between the victim and the accused and both are adults. Hence, it is clearly established that the sexual relationship between them was consensual. It is further apparent that upon the victim becoming pregnant, when the father of the victim approached the petitioner to marry the victim though he initially agreed to marry her the very next date, he later

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absconded.

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In the case of Pramod Suryabhan Pawar Vs. The State of Maharashtra reported in (2019) 9 SCC 608 the 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. However, at the same time, a breach of 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. The Apex Court in that decision further held that consent of a woman in reference to Section 375 of the 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 – (i) the promise of marriage must have been a false promise, given in bad faith and (ii) that no intention of being adhered to at the time of giving such false promise itself must be of immediate relevance or must bear a direct nexus to the woman’s decision to engage in the sexual act.

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Relying on the aforesaid decision of the Apex Court, a coordinate Bench of this Court in the case of Guluk Kathar vs. State of Assam in Crl. Rev. Pet. No.265/2012 by judgment and order dated 22.01.2025 in the context of a case where there had been a physical relationship of four years between the two consensual adults who were in love, upon noting that there is no evidence to establish or suggest that the aforesaid long love relationship and the physical relationship were under

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misconception of fact was based on fraudulent representation of marriage and that there was no materials whatsoever suggesting that at the inception the accused did not intend to marry the victim, allowed the Criminal Revision Petition by setting aside the judgment and order of conviction under Section 417 IPC against the accused therein.

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In the present case also, this Court finds that there have been a long love relationship of two years between the petitioner and the victim and that they had also developed physical relationship. It is also noticed that both of them were majors and the family of the victim was also aware of their relationship. There is also no material whatsoever to indicate that the accused did not intend to marry the victim at the inception. Rather, it appears that though he intended initially to marry the victim, however, later on, the relationship between them broke down. Be that as it may, in the absence of any clinching evidence to prove that the victim had continued her relationship with the accused/petitioner for two years on a misconception of fact, the petitioner/accused could not have been convicted for commission of offence under Section 417 of the IPC. Hence, the conviction is erroneous and perverse.

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Resultantly, the impugned judgment and order of conviction dated 28.12.2007 passed by the learned Sub-Divisional Judicial Magistrate (S), Golaghat in G.R. Case No.37/2007 and the judgment and order dated 31.05.2014 passed by the learned Sessions Judge, Golaghat in Criminal Appeal No.04/2008 upholding the judgment and order of conviction passed by the Trial Court stand set aside. The

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petitioner/accused stands acquitted of the charges and his bail bond stands

discharged.

Send back the TCR.

JUDGE

T U Choudhury