SHAYAMAPADA TEWARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE hearing arises out of an application under Section 482 of Cr. P. C registered as C. R. R. 200 of 2006 for quashing the proceeding in G. R. Case no. 2to of 2006 under Section 376, I. P. C pending before the learned Chief judicial Magistrate, Bankura.

(2.) IT has been contended by the learned lawyer for the petitioner that the accused-petitioner has been falsely implicated in the instant G. R. Case under Section 376, I. P. C. and there are apparent contradictions between the f. I. R and the statement of the victim girl recorded under Section 164, Cr. P. C. It will appear from the statement of the victim girl under Section 164 of the cr. P. C that accused obtained her consent to sexual intercourse on the promise of marriage and accused did not keep up such promise. Sexual intercourse on promise of marriage does not amount to offence under Section 376,i. P. C. as there was no misconception of fact as contemplated under Section 90, I. P. C. Consent given on the promise of marriage does not amount to misconception of fact so as to attract Section 90, I. P. C and the criminal proceeding under section 376, I. P. C cannot stand. The prosecutrix is aged 34 years and it appears from the statement that she gave consent to such sexual intercourse and accordingly the commission of offence under Section 376, I. P. C does not arise.

(3.) LEARNED lawyer has further contended that even sexual intercourse on the false promise of marriage does not amount to cheating under Section 415, I. P. C and so on any of the grounds the prosecution case does not stand. Learned lawyer for the petitioner has placed his reliance upon the ruling reported in (2003)1 C Cr LR (SC) at page 555, 1990 Cr LJ at page 650, 2004 C Cr LR (Cal) at page 945, 216, (2005)2 C Cr LR (Cal) at page 67, 2001 C Cr LR (Cal)at page 166.