B.C. Chakrabarti, J.
1. This revisional application at the instance of the de facto complainant is directed against an order of acquittal passed by the learned Assistant Sessions Judge, Midnapore in Sessions Trial No. 18 of March, 1980 acquitting the accused opposite party No. 2 of the charge under Section 376 of the Penal Code.
2. The petitioner lodged a complaint to the police in August 1978 alleging that the accused opposite party No. 2, a teacher of the local village school, used to visit her residence and one day during the absence of the complainant's parents from the house told her that he was in love with the complainant and that he wanted to marry her. The complainant wanted the marriage to be performed. The accused is alleged to have promised that he would do so and that he would himself obtain the consent of her parents. Acting on such assurance she started cohabiting with the accused and this continued for several months during which period the accused often used to visit her house late at night and some times spend the night with her. Eventually she conceived and when she insisted that the marriage should be performed as quickly as possible the accused proposed abortion of the child and agreed to marry the complainant sometime after the Panchayat elections. The complainant not having agreed to abortion the accused ultimately disowned the promise and stopped visiting her house. On this allegation Debra P.S. Case No. 20 was started. The accused pleaded innocence and complained that he has been implicated at the instance of a political rival in order to blackmail him, the complainant herself being a woman of easy virtue.
3. At the trial a question was raised as to the age of the girl, whether she was below the age of consent or not and whether the consent was fraudulently obtained and was hit by Section 90 of the Penal Code. On the question of age the learned Judge found that she was above 16 years of age at the relevant time. On the other question, viz., whether the consent allegedly given by the complainant was within the mischief of Section 90 of the Penal Code, the learned Judge observed that having regard to the facts of the case even if it is assumed that a wholly false promise was given yet then the accused could not be held liable for the offence of rape because consent to the intercourse in such a case was not given under a 'misconception of fact' as provided by Section $0 of the Penal Code. Precisely his finding is 'A false promise is not a fact -within the meaning of the Code. The matter would have been otherwise if the accused on the pretext of fake marriage or posing as a husband ravished the girl.' In that view of the matter the learned Judge held that the act committed by the accused did not come within the ambit of the Penal Code and on such finding acquitted, the accused of the offence under Section 376, IPC.
4. Being aggrieved the petitioner has filed the present revisional application and obtained the Rule. Mr. Hait appearing on behalf of the petitioner raised two points in support of the revisional application. Firstly, it was contended that there is no legal evidence to show that the girl was above the age of 16 years and secondly that even if she had attained the age of consent, the consent obtained in this case was hit by the provisions of Section 90 of the Penal Code.
5. As regards the first point it was contended that the medical evidence as to the age of the girl is inconclusive and based on insufficient data. But, it appears that in this case the girl herself stated in evidence that she was aged 21-22 years. Her mother (P.W. 2) said in her evidence that she was aged 19-20 years. The evidence was taken on 20.11.1980. The incident alleged by the complainant commenced sometime in February 1978. Therefore, on their own testimony she was above 16 years of age at the time when she started having sexual intercourse with the accused. Even assuming that the medical opinion is based upon insufficient data yet then in view of the specific and direct evidence coming from the petitioner herself and her mother as to the age of the girl the medical evidence which after all is an opinion evidence, cannot prevail upon the direct testimony. Consequently, we find no force in this contention raised by the learned Advocate for the petitioner. The petitioner cannot be heard to say that the doctor's opinion should prevail upon their own evidence and that their evidence as to the age should not have been believed. The doctor's evidence as it is does not even support the view that she might have been below 16 years at the relevant time. Relying on their own evidence as to the age we find that there is no substance in the first point urged on behalf of the petitioner.
6. In regard to the second point Mr. Hait argued that the consent obtained in this case is vitiated by reason of the provisions of Section 90 of the Penal Code. Section 90 is to the following effect:
A consent is not such a consent as is 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.
7. In support of the contention Mr. Hait contended that a misconception as to the intention of the person in stating the purpose for which the consent is asked is a misrepresentation of a statement of fact within the meaning of Section 3 of the Evidence Act, and a consent given on a misrepresentation of fact is one given under a misconception of fact within the meaning of Section 90 of the Penal Code. In support of this contention, reliance was placed in the case of Emperor v. Soma, 36 Ind Cas 850 : 18 Cri LJ 18(Lah). That was a case where the question of consent in the context of an allegation of kidnapping of a minor girl came for consideration. It was held in the facts of that case that the intention of the accused was to marry the girl to one Dayaram and she obtained Mr. Kujan's consent to the taking away of the girl by misrepresenting her intention. Therefore the point that was decided in that case was that at the time when the offence was committed by taking away the girl, there was a positive misrepresentation of fact, viz., the representation as to the intention regarding the purpose of taking away. In the instant case before us the ' facts cannot be placed as high as that. Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is that if she had really been assured of marriage by the accused who was visiting her house and in whose promise she had faith, why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complaint is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged. The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of, fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court' can be assured that from the very inception the accused never really intended to marry her.
8. The next case referred to by Mr. Hait instead of supporting his contentions really goes against him. The facts of that case Edgington v. Fitzmaurice, (1885) 29 Ch. D. 459 were entirely different. But the principle laid down may have some relevance. This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: 'There must be a misstatement of 'an existing fact.' Therefore, in order to amount to a, misstatement of fact the existing state of things and a misstatement' as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained or a misconception of fact. There is obviously no question of fear of injury. There fore in the facts of this case we are unable to say that the consent was given on a misconception of fact.
9. Finally, the case of Khalil-ur-Rahman v. King-Emperor ILR 11 Rang 213 : 34 Cri LJ 696 (FB) referred to by Mr. Hait appears to be entirely beside the point. It only makes a general observation to the effect that the object and effect of Section 90 of the Penal Code is not to lay down that a child under 12 years of age is in fact incapable of expressing or withholding his or her consent to an act but to provide that where the consent of a person may afford a defence to a criminal charge such consent must be a real consent, not vitiated by immaturity, misconception, misunderstanding, fear or fraud. The decision does not lay down any broad proposition that a consent to the act of sexual intercourse and continuance thereof by a girl attaining the age of consent would be vitiated because of an assurance to perform something on a future date and the subsequent non-performance thereof. All that the decision lays down is that the consent must be real. We find that here the consent in the facts of the case alleged was real. Such being our view of the matter, we find no reason to interfere with the order passed.
10. The revisional application accordingly fails and the Rule is discharged.
Jitendra Nath Chaudhuri, J.
11. I agree.