SUKUMAR GHOSH Vs. STATE

JUDGEMENT

(1.) Sukumar Ghosh, the petitioner, herein, was placed on trial before the learned Assistant Sessions Judge Hooghly to answer the following two charges:

(2.) Having considered the materials on record, we are constrained to say that the findings of the learned Courts below that the petitioner is guilty of the charges levelled against him are perverse. Evidence was led only to show that the petitioner had sexual intercourse on a number of occasions with the victim girl, who at the material time was aged more than 16 years, as a result of which she conceived and that she consented to such sexual intercourse as she was given to understand by the petitioner that he would marry her. According to the learned Courts below such a consent was not a valid consent within the meaning of Sec. 90 of the Indian Penal Code and as such the offence committed by the petitioner was one under Sec. 376, Indian Penal Code. We are unable to accept the above view having regard to the Division Bench decision of this Court in the case of Jayanti Rani Panda Vs. State of West Bengal, 1984 Cr LJ 1535, wherein while dealing with a similar question this Court held that if a full grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she became pregnant, it was an act of promiscuity on her part and not an act induced on misconception of fact. Since the principle laid down therein applies in all fours with the facts of the instant case, we must hold that no offence under Sec. 376 Indian Penal Code can be said to have been committed by the petitioner. For the self same reason the charge under Sec. 417, Indian Penal Code fails.

(3.) In the result, the application succeeds and the Rule is made absolute. The impugned order of conviction and sentence passed against the petitioner is hereby set aside and he is acquitted of both the charges. The petitioner, who is on bail, is discharged from his bail bond. Fine, if realised, be refunded to him. Application allowed.