Page 1 of 9

HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_

Criminal Appeal(Jail) No.64/2016

Sri Marendra Debbarma,
S/o Sri Radhabhakta Debbarma
of vill : Lambucherra, P.S : Kamalpur,
Dist : Dhalai..
—- Convict-Appellant(s).
Versus

The State of Tripura.
—- Respondent(s).

_B_E_F_O_R_E_
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL

For the appellant(s) : Mr. Ratan Datta, Advocate,
Ms. Simita Chakraborty, Advocate,
For the respondent(s) : Mr. Babul Choudhury, Public Prosecutor.
Date of hearing : 10th April, 2019.
Date of judgment : 27th June, 2019.
Whether fit for reporting :
Yes No
√

JUDGMENT

In Court, prosecutrix referred to as “L” (name

withheld)(PW.5), has simply deposed that “he promised marriage

to me and have sex. I became pregnant. He did not marry me”.

Prior thereto, in her previous statement recorded under Section

164 Cr.P.C. proven before the trial Judge, she deposed as under:

“Since last 1(one) year one named Marendra
Debbarma had developed his love affairs with me
and with an allurement of marrying me that
person(Marendra) had cohabited with me
severally. Resulting of which, I became pregnant
Page 2 of 9

and subsequently a baby was born in the hospital
4/5 days before. Now Marendra has been denying
me. I seek justice.”

[2] The aforesaid statement stands corroborated by her

mother, Smt. Lalita Debbarma (PW.4) and sister, Smt. Bina Rani

Debbarma (PW.6).

[3] With these facts, this Court proceeds to examine the

correctness of findings and judgment, convicting sentencing

accused Mahendra Debbarma under Section 376 IPC. The trial

court found the testimony of the prosecutrix to be believable and

the witnesses to be reliable and deposed truthfully the factum of

accused having sexually assaulted her with the allurement of

marriage, which he never intended to solemnize.

[4] At this juncture, it be also observed that as a result of

the alleged sexual act, prosecutrix became pregnant and delivered

a stillborn child. Medical evidence i.e scientific report (Exbt.3) so

prepared by Dr. Subhankar Nath (PW.3) has established the said

child to have been born through the loins of the accused.

[5] In short, it is the story of the prosecution that, the

accused committed an act of rape with the prosecutrix on the

promise of marriage. Though the prosecutrix consented to sexual

intercourse but, however, such consent was obtained under

deception, inasmuch as he induced her to succumb on the promise

of marriage. It was under such a pretext, that for several months,
Page 3 of 9

prosecutrix continued to have sexual intercourse till it was

discovered that she was pregnant. Thereafter she delivered a

stillborn child. Only when the appellant refused to solemnize the

marriage, the complainant i.e. mother of the prosecutrix, lodged a

report in the police station, pursuant to which investigation was

taken up and the appellant put to trial.

[6] The present case attracts Section 375 read with Sectionsection

90 IPC. From the testimony of the witnesses, it is clear that

prosecutrix had sexual intercourse with the accused-appellant on

the representation that he would marry her. Was this a false

promise held out by the accused? Is it that had such assurances

not extended, perhaps, prosecutrix would not have permitted the

accused to have sexual intercourse with her. Therefore, whether

the accused obtained consent without having intention to get

married is what needs to be examined.

[7] At this juncture, it is pertinent to extract the relevant

portion of Section 375 IPC and Section 90 of IPC.

“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 de-
scriptions:–

(First) — Against her will.

(Secondly) –Without her consent.”

Page 4 of 9

[8] The second clause of Section 375 of IPC “without her

Consent” in particular attracts Section 90 of IPC which deals with

the expression consent. Though the Section itself does not define

consent but states what would not amount to be consent. If it is

given under fear of injury or a misconception of fact, such consent

obtained, cannot be construed to be a valid consent.

“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………….”

[9] The corollary which can be fairly deduced upon a

conjoint reading of aforementioned sections is that an offence of

rape would be deemed to have been committed if a man has

sexual intercourse with a woman without her consent. A consent

obtained under misconception of fact, would not amount to be a

consent within the purview of Section 90 IPC.

[10] To establish the factum of misconception of fact, court

needs to only examine the testimonies of three witnesses i.e.

prosecutrix (PW.5), her mother (PW.4) and sister(PW.6). In Court,

what the prosecutrix has said, already stands reproduced(supra)

and the mother has corroborated such version by stating that her

daughter became pregnant through the accused, who refused to
Page 5 of 9

marry her. Also, prosecutrix delivered a stillborn child.

Consequently, action against the accused was taken.

[11] Testimony of the sister, Smt. Bina Rani Debbarma

(PW.6) is to similar effect. Though she clarified, her sister i.e. the

prosecutrix to be of an unstable mind, who moves around on the

roadside like a vagabond.

[12] At this juncture, it be only observed that the mother in

her cross-examination part of her testimony does state that she

had no grievance against the accused, but then, this does not

imply, that her earlier version is false or not correct. Also it does

not shatter the veracity of her statement nor does it render the

testimony of the witness, in any manner, to be doubtful.

[13] That apart, prosecutrix is clear and categorical. The

accused promised to marry her and had sex. She became

pregnant. Also he did not marry her.

[14] In the case of SectionKaini Rajan v. State of Kerala,

(2013) 9 SCC 113 (2 Judge Bench), Hon’ble Supreme Court has

explained the essentials and parameters of the offence of rape

read with consent under Section 90 IPC. In the said decision, in

para 12, the Apex Court observed and held as under:

“12. Section 375 Indian Penal Code defines the
expression “rape”, which indicates that the first
Clause operates, where the woman is in possession
of her senses, and therefore, capable of consenting
Page 6 of 9

but the act is done against her will; and second,
where it is done without her consent; ………… An
inference as to consent can be drawn if only based
on evidence or probabilities of the case. “Consent”
is also stated to be an act of reason coupled with
deliberation. It denotes an active will in the mind
of a person to permit the doing of an act
complained of. Section 90 Indian Penal Code refers
to the expression “consent”. Section 90, though,
does not define “consent”, but describes what is
not consent. “Consent”, for the purpose of Section
375, requires voluntary participation not only after
the exercise of intelligence based on the
knowledge of the significance and moral quality of
the act but after having fully exercised the choice
between resistance and assent. Whether there was
consent or not, is to be ascertained only on a
careful study of all relevant circumstances. [SectionSee
State of H.P. v. Mango Ram (2000) 7 SCC 224].”

(Emphasis supplied).

[15] SectionIn Deepak Gulati v. State of Haryana (2013) 7

SCC 675 (2 Judge Bench), Apex Court observed and held in

paragraphs 21 and 24 as under:

“21. …………….. 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……………..

………….. An Accused can be convicted for rape only
if the court reaches a conclusion that the intention
Page 7 of 9

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 Indian Penal Code 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.”

The view stands reiterated in Anurag Soni v. State

of Chattisgarh, AIR 2019 SC 1857 (2 Judge Bench).

[16] It stands established and proven that from the very

inception, the appellant, by promising marriage, obtained consent

to enter into a sexual relationship, though he never had any

intention to marry and the prosecutrix who gave her consent for

sexual intercourse with the assurance by the accused of marrying

her. Such a consent can very well be said to be a consent obtained
Page 8 of 9

on a misconception of fact as per Section 90 IPC and, in a case of

such like nature, consent would not excuse the offender. Response

of the accused that who would get married to the prosecutrix itself

indicates his act of false promise particularly when her sister has

uncontrovertedly deposed about her physical and mental

condition. Scientific evidence has proven the child to be that of the

parties. Hence offender is guilty of having committed the offence

of rape as defined under Section 375 IPC.

[17] Considering the propositions of law cited above and

applying the same to the present facts and circumstances,

including the evidence on record, it can fairly be said that

prosecution has succeed in proving the case that from the very

beginning, accused-appellant never intended to marry the

prosecutrix; he extended false promises/promise to the

prosecutrix of marrying her and as such had physical relationship

with her and but for the same, she would not have had such

relationship with him.

As such, for all the aforesaid reasons, the appeal being

devoid of merit stands dismissed. Judgment dated 1st July, 2016

passed by Learned Additional Sessions Judge, Unakoti Judicial

District, Kamalpur in case No. Session Trial 11/2015 titled as

SectionState of Tripura v. Radhabhakta Debbarma and anr. whereby

accused stands convicted for having committed an offence under

Section 376 IPC and sentenced to undergo rigorous imprisonment

for a period of 7(seven) years, is affirmed. Pending application(s),
Page 9 of 9

if any, also stand disposed of accordingly. Record be sent back

immediately.

(SANJAY KAROL), CJ.

Sukhendu.