114 S. De 266402 06.08.2026 Court No.08 CRA (DB) 290 of 2023 In the matter of : Aparna Middya alias Aparna Midya. …Appellant. Mr. Ramdulal Mannna, Ms. Manju Manna (Dey) Mr. Sayan Mukherjee, …for the appellant. Mr. Mukteswar Maity, Ms. Manika Sarkar, …for the respondent no.2. Mr. Kallol Mondal, Ld. P.P., Ms. Sagnika Banerjee, …for the State. Dictated by Arijit Banerjee, J. 1. This appeal is directed against a judgment and order dated July 5, 2023, passed by the learned Sessions Judge, Purba Medinipur at Tamluk, in S.C. Case No.256 (December) of 2016, S.T. No.24/2020, whereby, the learned Judge acquitted the accused person being the respondent no.2 herein, from charges under Sections 376/417 of the Indian Penal Code. 2. Being aggrieved, the de facto complainant has come up by way of this appeal. 3. The short compass of the case is that the appellant being the de facto complainant/victim lady used to reside with her maternal grand-parents since she was a toddler. She came to know the accused person in the year 2006. The accused used to visit one of his relatives in the same village where the appellant resided with her grand-parents. 4. It appears from the evidence-on-record that since 2011, the accused started taking the appellant to different movie halls on box seats. The appellant says that the accused repeatedly 2 assured her that he will marry her. At such time, the appellant was 19+ years old. 5. The allegation is that continuously the accused had physical relationship with the appellant meting out false promise of marry her. Lastly on September 5, 2012, the accused had sexual intercourse with the appellant in the house of the appellant’s grand-parents. Salishi through the local Panchayat failed. The accused person’s family refused to accept the appellant as a daughter-in-law since she belonged to a differ caste. 6. The written complaint was lodged on July 5, 2013. The written complaint reads as follows : “The submission of the above petitioner is that she had physical intercourse with the above opponent no. 1 for a period of 1 year from today. Opponent No. 1 promises marriage to petitioner and leads to physical intercourse day after day. Petitioner talks about marriage day after day and avoids me on the pretext of various difficulties. Presently on 05/09/12 Wednesday when I went to my maternal-uncle's house, the said opponent no. 1 contacted me over the phone and came to my uncle's house in the night and had forced physical relations with me against my will. When petitioner's elderly grandparents were informed, the village panchayat members and the villagers gathered and offered opponent number 1 to marriage the 3 petitioner. As the said proposal was not heeded, then the opponent number 2/3 was called and informed about the matter, but they secretly gave money to the Gram Panchayat Member Shri. Paritosh Midya and said that they will come before the Panchayat later. But so far they have not communicated or panchayat members have not paid attention. It is revealed that on 30/12/12 the Panchayat member along with opponent number 2/3 have taken signature on 2 white papers by saying that they will bring the opponent no. 1. Due to opponent number 1 being in C.R.P.F at Madhya Pradesh, petitioner is not able to communicate with him. Therefore, my prayer is to take the prescribed measures after understanding the above matter and investigating the ground.” 7. On the basis of the complaint, a criminal case was started. Chargesheet was issued under Sections 376/417 of the Indian Penal Code. Charge was framed. The accused/respondent pleaded not guilty and claimed to be trialed. 8. The prosecution examined seven witnesses. The defence examined none. 9. On an assimilation of the evidence-on-record, the learned Trial Judge came to the conclusion that the ingredients of neither Section 376 nor Section 417 of the Indian Penal Code 4 had been made out by the prosecution. Certain portions of the judgment which are relevant are extracted hereunder : “This Court has carefully considered the rival circumstances and the submissions made. It is clearly revealed from the FIR as well as from the evidence of the P.W. I that the victim had attained majority at the time of occurrence, that is she had attained the age of consent. It has further come on record that P.W.1 and the accused were involved in sexual intercourse on the assurance of marriage given by the latter. The question which arises now for discussion is whether the act of the victim can be said to be consensual in nature or whether it was on account of some misconception of fact, namely the promise of marriage given by the accused. The evidence of PW.I would clearly show that the consent could not be said to be based on the promise made by the accused, but was out of love-affair between the victim and the accused. It is significant to note that although P.W.1 had alleged that the accused had sexually harassed her, she has also contradictorily stated that she had love-affair with the accused and this continued for one year. It can thus be clearly seen that there was a clear consent on a continuing relationship on the basis of which, the accused and 5 P.W.1 had physical intimacy. Regarding the attraction of Section 417 of the I.P.C., the victim nowhere in her evidence stated that she was cheated and dishonestly induced by the accused to deliver any property to him. In the present case, the victim could not establish that the accused had cheated her and had sexually exploited her, to which she would otherwise have not agreed. Hence, we can assume that the allegations made against the accused in the F.I.R. for committing an offence under Section 417 read with Section 376 I.P.C. are not substantiated. For maintaining a charge under Section 417 I.P.C., it should be seen whether the accused had the intention to deceive the victim from the beginning. The prosecutrix has admitted that she was in love with the accused for quite some time. Therefore, it cannot be said that the accused did not have the intention to renege from his commitment after the betrothal. Section 375 I.P.C. 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 but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as execuses the offender, 6 because it is obtained by putting her on any person in whom she is interest in fear of death or of hurt. The expression" against her will" means that the act must have been done in spite of the opposition of the woman. 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 of the I.P.C. is set out below:- 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; or Consent of insane person. if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. Upon due appreciation of the facts of 7 the case, the view of the Hon'ble Apex Court and evidence on record, this Court is of the view that the Prosecution has failed to establish the charge against the accused under Section 376 read with Section 417 of the I.P.C. beyond reasonable doubt. As such, the accused person, Tapan Giri, is entitled to an Order of acquittal and not held guilty to the offence he has charged with.” 10. Learned counsel for the appellant argues that the learned Judge did not apply her mind to the facts of the case at all. After reproducing the evidence of the prosecution witnesses, the learned Judge merely quoted a paragraph from the Supreme Court’s decision in the case of Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675. Thereafter, the learned Judge also referred to the decision of the Hon’ble Supreme Court in the case of Uday Vs. State of Karnataka (2003) 4 SCC 46. Learned counsel then said that from the last paragraph at internal page 12 of the judgment to the first paragraph at internal page 14, although appear to be the learned Judge’s dicta, but in fact, those paragraphs have been bodily lifted from the Supreme Court decision in Uday Vs. State of Karnataka (Supra). Those paragraphs have been sought to be made a part of the learned Judge’s reasoning when the facts of Uday and the facts of the present case are very different. What the learned Judge should have done is quoted those paragraphs within inverted comas so that one would understand that the paragraphs were quotations from another decision. 8 11. Learned counsel further said that the learned Trial Judge completely misinterpreted Section 417 of the Indian Penal Code. The understanding of the learned Judge that Section 417 of the Indian Penal Code applies only if the victim is fraudulently induced to part with property, is misconceived. In fact, if a victim is deceived into doing anything which he or she would not have done, had he/she known that deception was being practised, the same would attract Section 417 of the Indian Penal Code. In the present case, the appellant was deceived into having physical relationship with the accused. She believed the words of the accused that the latter would marry her. If she knew that the accused never intended to marry her, she would not have established any physical relationship with the accused. 12. Learned counsel submitted that there is sufficient evidence- on-record to demonstrate that the appellant was cheated by the accused. The accused sexually exploited her by meting out false promise of marriage. 13. Learned State advocate as well as learned advocate for the accused/respondent no.2 supported the judgment of the learned Trial Judge. 14. Learned State advocate took us through the evidence-on- record. She submits that it is clear that there was a standing relationship between the appellant and the accused. They used to go out for movies. They used to regularly speak on phones. It has not been established beyond reasonable doubt or at all that the appellant, who was a major at the relevant time, was 9 deceived into giving consent to having physical relationship with the accused. Rather, the material-on-record would indicate that the appellant, on her own volition and out of the relationship of love and affection that had developed between her and the accused, was a consenting party to the physical relationship. 15. As regards Section 417 of the Indian Penal Code, learned advocate said that it is incorrect to say that the learned Judge understood the said provision only in the context of the victim being induced to deliver property to the accused by deception. Learned Judge clearly recorded that even the case of sexual exploitation by cheating, could not be established. Therefore, the learned Judge considered the totality of Section 417 of the Indian Penal Code and was of the opinion that the ingredients of that offence have not been established. 16. As regards the grievance of learned advocate for the appellant that certain paragraphs have been bodily lifted from the decision of the Hon’ble Supreme Court in the case of Uday (Supra) and sought to be projected as part of the learned Judge’s dicta in her judgment, learned advocate for the State said that ideally those paragraphs should have been within “inverted comas” to indicate that they were quotations from elsewhere. However, the learned Judge’s failure to do so, does not affect the legality of the judgment which is otherwise based on sufficient material. The learned Judge clearly recorded that having considered the evidence-on-record, she was of the opinion that the offences under Section 376/417 of the Indian Penal Code were not 10 established. 17. Learned advocate for the accused/respondent adopted the submission of learned State counsel. He said that there is no error in the judgment of the Trial Court. The prosecution could not establish the ingredients of the offences with which the accused was charged. 18. We have given our anxious consideration to the rival contentions of the parties. 19. To the extent that learned advocate for the appellant is aggrieved with the learned Trial Judge seeking to make a few paragraphs of the judgment in Uday (Supra), a part of the Trial Court’s judgment giving the impression that the same has emanated from the learned Trial Judge, we have to agree that it was wholly improper on the part of the learned Trial Judge to do so. Indeed, the impression that we had initially got while reading the judgment was that those paragraphs were written by the learned Trial Court. However, learned advocate for the appellant demonstrated with reference to the relevant paragraphs of the judgment of Uday (Supra) that the same had been reproduced word to word, by the learned Trial Court. Such practice is deprecated. If certain portions of another judgment is sought to be relied upon, it is imperative that the same is put within inverted comas or to make it otherwise clear that such portions are borrowed from another judgment and not authored by the learned Judge writing the judgment. 20. However, we cannot agree with learned advocate for the 11 appellant that there is no independent discussion at all by the learned Trial Judge on the issues involved before her. We have extracted certain portions of the Trial Court’s judgment hereinabove. The same will indicate that the learned Judge did express her personal view on the concerned issue, albeit briefly. 21. Speaking for ourselves, that there was physical relationship between the appellant and the accused is not in dispute. The question is whether such relationship was consensual, or did the accused forcibly have sexual intercourse with the appellant? The answer, which is also not in dispute, is that the relationship was consensual. 22. The next question is, whether such consent of the appellant was obtained by the accused by meting out false promise to marry? The prosecution has not been able to establish that the accused has made false promise to marry the appellant. It is established law that to succeed in a case under Sections 376/417 of the Indian Penal Code the prosecution has to establish that the accused did not have intention to marry the victim lady from the very inception and the only purpose of promising to marry the victim lady was to sexually exploit her. 23. In the present case, from the depositions of the prosecution witnesses including the evidence of the appellant (PW-1), it cannot be said with any degree of certainty that the accused never intended to marry the appellant. It appears that the family of the accused came in the way of such marriage since the appellant belonged to a different caste. Hence, we have to agree 12 with the learned Trial Judge that the charges brought against the accused could not be brought home. 24. In this connection we may advert to paragraphs 42 to 48 of our judgment in Nikhil Kumar Chandrakala @ Nikhil Haribhau Lad Vs The State of West Bengal & Anr. reported at 2026 SCC OnLine Cal 5266, delivered on May 15, 2026, wherein we had taken note of quite a few Supreme Court decisions:- “42. In Uday v. State of Karnataka reported at (2003) 4 SCC 46, paragraph 21, the Hon’ble Supreme Court observed as follows:- “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the 13 surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”(Emphasis is ours) 43. In Nitin B. Nikhare v. The State of Maharashtra &Anr. [SLP (Crl.) No. 1889/2024], paragraphs 6 and 7,the Hon’ble Supreme Court observed as follows:- “6. This Court in a catena of judgments has held that the mere fact that physical relations were established pursuant to a promise to marry will not amount to a rape in every case. In order for the offence of rape to be made out, two conditions need to be satisfied i.e. that the promise of marriage was made by the accused solely with a view to obtain consent for sexual relations without having any intention of fulfilling said promise from the very beginning, and that the false promise of marriage had a direct bearing on the prosecutrix giving her consent for sexual relations. [See: PramodSuryabhanPawar v. The State of Maharashtra and Ors. (2019) 9 SCC 608; Mahesh DamuKhare v. The State of Maharashtra and Ors. 2024 SCC OnLine SC 347] 14 7. From a perusal of the record, it is clear that this was a case of a consensual relationship from the beginning. Even if the case of the prosecutrix is accepted, it does not appear that the initial promise to marry was in bad faith. It was only the subsequent circumstances that prevented fulfilment of alleged false promise to marry. Resultantly, the relationship turned sour which has given rise to the present FIR. Further, in view of the material on record, we do not see this as a case where provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be attracted.”(Emphasis is ours) 44. In Dr. DhruvaramMurlidhar Sonar v. State of Maharashtra &Ors., reported at (2019) 18 SCC 191, paragraphs 21, 23, 24,the Hon’ble Supreme Court observed as follows: - “21. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675: (2013) 3 SCC (Cri) 660, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask 15 him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused. 23. Thus, there is a clear distinction between rape and 16 consensual sex. The court, in such cases, must very carefully examine whether the complainant (sic. Accused) had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. 24. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is 17 a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that “as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas sometimes at his home”. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are 18 of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since the complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained. 25. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 Cr.P.C.” (Emphasis supplied) 45. In Maheshwar Tigga v. State of Jharkhand reported at (2020) 10 SCC 108, at paragraph 14,the Hon’ble Supreme Court observed as follows:- “14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her 19 letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.” (Emphasis supplied) 46. In Deepak Gulati v. State of Haryana reported at (2013) 7 SCC 675, at paragraphs 17-19, 21, 24-26, the Hon’ble Supreme Court observed as follows:- “17. The undisputed facts of the case are as under: 17.1. The prosecutrix was 19 years of age at the time of the said incident. 17.2. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married. 17.3. The appellant had been giving her assurance of the fact that he would get married to her. 17.4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. 17.5. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the 20 appellant to Ambala, to get married to him there. 18. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as “the 1872 Act”) provides, that if the prosecutrix deposes that she did not give her consent, then the court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape. 19. This Court considered the issue involved herein at length in Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639] , Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253 : AIR 2005 SC 203] , YedlaSrinivasa Rao v. State of A.P. [(2006) 11 SCC 615 : (2007) 1 SCC (Cri) 557] and Pradeep Kumar v. State of Bihar [Pradeep 21 Kumar v. State of Bihar, (2007) 7 SCC 413 : (2007) 3 SCC (Cri) 407 : AIR 2007 SC 3059] and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned. 21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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 22 understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention 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 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, 23 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. 25. The instant case is factually very similar to Uday [Uday v. State of Karnataka, (2003) 4 SCC 46: 2003 SCC (Cri) 775 : AIR 2003 SC 1639], wherein the following facts were found to exist: 25.1. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. 25.2. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor. 25.3. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. 25.4. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix. 26. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time 24 and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived she went with him to Karna Lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in the court at Ambala. However, here they were apprehended by the police.”(Emphasis added) 47. In Shivashankar @ Shiva v. State of Karnataka &Anr., reported at (2019) 18 SCC 204, at paragraph 4,the Hon’ble Supreme Court held as follows:- “4. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the 25 appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as “rape” especially in the face of the complainant's own allegation that they lived together as man and wife.” (Emphasis added) 48. In PramodSuryabhanPawar v. State of Maharashtra & Anr., reported at (2019) 9 SCC 608 at paragraphs 14, 18, 19, 20 and 21, the Hon’ble Supreme Court observed as follows: - “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court held: (SCC para 12) “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance 26 by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC.” Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p. 682, para 21). “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;” 18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “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 27 intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. 19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows: 19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004. 19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant. 19.3. The appellant expressed his reservations about marrying the complainant on 31-1-2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. 28 20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax. 21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred.”(Emphasis added)” 25. Learned advocate for the appellant argued that this is a fit case for remand since the learned Trial Judge did not address 29 her mind independently to the facts of the case. Apart from the fact that this argument is not entirely correct, we have ourselves gone through the entire material-on-record and have come to an independent conclusion after due re-appreciation of the evidence-on-record that the ingredients of the offences under Section 371/417 of the Indian Penal Code have not been established as against the accused/respondent no.2. Therefore, a remand would be an exercise in futility, enuring to nobody’s benefit. 26. In the result, this appeal fails and is hereby dismissed. 27. As a result, the judgment and order of the learned Trial Judge is affirmed. 28. CRA (DB) 290 of 2023 stands disposed of. 29. Let the Trial Court Records be sent down to the learned Court below. 30. We put on record our appreciation for learned counsel Mr. Sayan Mukherjee, who represented the appellant as a junior member of the Bar. He argued the matter extremely well and very skillfully. 31. We also put on record our appreciation for learned State counsel Ms. Sagnika Banerjee, who is also a junior member of the Bar. She has also assisted this Court commendably well. (Apurba Sinha Ray, J.) (Arijit Banerjee, J.) 30