Page No.# 1/8 GAHC010214042015 2026:GAU-AS:10412 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./155/2015 SABUR UDDIN ALI S/O MD. KADAM ALI VILL. ISLAMPUR P.S. MATIA DIST. GOALPARA VERSUS THE STATE OF ASSAM and ANR 2:MD. AZMAL HAQUE S/O LATE OSMAN ALI VILL. ISLAMPUR P.S. MATIA DIST. GOALPARA PIN ------------ Advocate for : MR.I A HAZARIKA Advocate for : MR.Z H AHMEDR-2 appearing for THE STATE OF ASSAM and ANR Page No.# 2/8 BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Advocates for the Appellants : Mr. I. A. Hazarika. Advocates for the Respondent : Mr. Bidyut Sarma, Addl. PP, Assam. Date on which judgment is reserved : 21-07-2026 Date of pronouncement of judgment : 29-07-2026 Whether the Pronouncement is of the operative part of the judgment? : ___N/A_____ Whether the full judgment has been pronounced? : ___Yes_____ JUDGMENT & ORDER (CAV) Heard Mr. I. A. Hazarika, learned counsel for the appellant and Mr. B. Sarma, learned Additional Public Prosecutor, Assam. 2. This appeal has been filed under Section 374(2) of the CrPC against the judgment and order dated 12.05.2015 passed by the learned Additional Sessions Judge, Goalpara in Sessions Case No. 232/2013 convicting the accused/appellant under Section 417 of the IPC and sentencing him to suffer R.I. for 3 (three) months and to pay fine of Rs.3,000/-, in default, to undergo Page No.# 3/8 further R.I. for another period of 23 (two) months for the offence under Section 417 IPC. 3. Prosecution case is narrated as follows: The informant filed a complaint petition before the Ld. C.J.M, Goalpara stating that his minor daughter was reading in class IX at Matia High School and the accused person started love affair with the false promise. The accused person very often lured away his minor daughter to the bamboo grove on the backside of his house and about 4 months back from the date of filing this complaint the accused gave a proposal for sexual intercourse with the victim. But the victim disagreed. 4. It is alleged that the accused forcefully indulged in sexual intercourse with the victim against her will by gagging her mouth. The accused further threatened the victim not to disclose the matter and if it is disclosed she will have a stigma in the society. Likewise they continued such meeting and about 15 days back from the filing of the complaint, the mother of the victim noticed physical changes of the victim and on being treated by the doctor it was confirmed that victim was about 3 months pregnant. The village mel was held but the accused did not attend the said mel and later on he married another girl. 5. To that effect, complainant filed an ejahar in writing before the Ld. CJM, Goalpara and the same was forwarded to the O/C of Matia Police Station to register a case and to investigate the same. 6. On receipt, of the aforesaid complaint, Officer-in-Charge of Matia Police Station, registered a case, vide its P.S. Case No. 31/2013 under Sections 376/506/34 IPC against the accused person. During investigation I.O. visited the place of occurrence and recorded the statements of witnesses. The accused was Page No.# 4/8 arrested during investigation period. Finally, after conclusion of the investigation, Investigating Officer of the case, submitted the charge sheet against the aforesaid accused person under Section 376/506/34 IPC. 7. After hearing the learned counsel for both side and going through the materials and on perusal of the case record, the charge under Section 376/506 IPC was framed against the accused person, and it was read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried. 8. To bring home the charges against the accused, the prosecution side adduced the evidence of altogether 7 (seven) numbers of witnesses including the informant and the victim of the case. 9. The statement of the accused person was recorded under Section 313 Cr.P.C. His plea was total denial. However, he declined to adduce evidence in his defence. 10. The victim was examined as PW-1 who deposed that the accused stated that he likes her and the accused kept on telling even after she refused his proposal. PW-1 further stated that while she was in class VIII the accused gave a proposal for sexual intercourse and one day at about 7 pm, the accused took her near the bamboo grove at the backside of her house and committed rape upon her. It is further deposed that he commited rape upon her twice by putting clothes in her mouth and tying her hands and legs. Later on she became pregnant and did not disclose the incident to anyone. 11. She further deposed that when she missed her monthly menstruation period she informed the incident to her mother and her father also came to know about the incident. She was medically examined by the doctor and her statement was recorded u/s 164 Cr.P.C. She further stated that she delivered Page No.# 5/8 twin male child after filing the case. 12. In her cross examination she deposed that she did not inform her parents regarding the offer made by the accused that he wanted to have sexual intercourse with her when she reached class VIII. She admitted that she started liking the accused on reaching class VIII and stated that the accused committed rape upon her by undressing her and her hands and legs were tied while committing the offence. She did not inform the incident of rape to her mother because the accused promised to marry her. She further deposed in her cross examination that the accused did not marry her and rather he married another girl. 13. PW-2 the informant deposed that the accused used to visit their home regularly and he dishonored his daughter. The victim (P/W-1) told the incident to her mother and aunty and then he took the victim to doctor at Mornoi hospital and came to know that she was 3 months pregnant. 14. PW-3 the Aunty of the victim deposed that accused had a love affair with the victim for the last 3 years and the accused told her that he loved her niece (P/W-1) and wanted to marry her. P/W-3 further deposed that one day the victim came and told her that her menstruation period has stopped and it was caused by sexual intercourse by the accused. 15. PW-4 also deposed that he seen the accused visiting the house of victim and having meal over there and used to talk with the victim on the road as they have a love affair. The victim informed him that she became pregnant and that was made by the accused. 16. PW-5 is the uncle of the victim deposed that he caught the accused with the help of one Mofidul Islam while both the accused and the victim were in Page No.# 6/8 compromising position near the bamboo tree. 17. Although, the victim had made allegation of rape against the accused appellant, she did not report the matter to her mother or father until her pregnancy was discovered, which was three months old at that time. More importantly, however, the PW-5, uncle of the victim himself deposed that he had caught the accused with the help of one Mofidul Islam, while both the accused and the victim were in a compromising position near the bamboo tree, which further indicates that the alleged act was consensual in nature. Furthermore, the victim who was a major, voluntarily accompanied the accused appellant to the bamboo grove where the incident had took place and it has come from the mouth of the victim herself that the accused appellant had given her a direct proposal for sexual intercourse. Therefore, reading the evidence as a whole, there can only be one conclusion which is that the act was consensual in nature. Therefore, the learned Trial Court rightly found the accused appellant not guilty of the offence under Section 376 IPC. 18. Furthermore, since the learned Trial Court did not find any evidence of use of criminal force or assault, it rightly acquitted the accused appellant of the offence under Section 506 IPC. 19. However, the learned Trial Court convicted the accused appellant of the offence under Section 417 IPC upon a finding that the accused appellant had deceived the victim and induced her to enter into a sexual relationship with him upon a promise of marriage, which he never intended to honour. 20. A close perusal of the evidence of the victim herself does not reveal that the accused made any promise of marriage prior to the commission of sexual intercourse. Rather, what the victim stated was that on reaching Class VIII, the Page No.# 7/8 accused told her to allow him to have sexual intercourse and thereafter, the allegation is one of forcible rape and not sexual intercourse upon a promise of marriage. It is only after the act, according to the victim/PW-1 that the accused asked her not to disclose the incident to anyone and proposed to marry her and that is why she did not state about the incident to her mother. 21. This Court in the case of Sh. Nabajyoti Deuri Vs. State of Assam reported in 2025 (7) GLT 1129 had observed: 13. In the case of Pramod Suryabhan Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608, the Hon'ble 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. At the same time, a breach of a 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. It was further held that consent of a woman in reference to Section 375 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. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given and such false promise itself must be of immediate relevance, or it must bear a direct nexus to the woman's decision to engage in the sexual act. 22. As already discussed above in the present case, there was no promise of marriage per se on the part of the accused appellant. Rather, there was a direct proposal for having sexual intercourse. 23. Under the aforesaid circumstances, the finding of the learned Trial Court leading to the accused appellant being held guilty under Section 417 IPC cannot be sustained. Accordingly, the impugned judgment and order is set aside. The appellant be set at liberty forthwith. Page No.# 8/8 24. This appeal is accordingly allowed and disposed of. 25. Bail bond, if any, stands discharged. 26. Send down the LCR forthwith. JUDGE Comparing Assistant Rupam Das Digitally signed by Rupam Das Date: 2026.07.29 16:36:21 +05'30'