This revision arises from the conviction and sentence imposed by the learned Additional Sessions Judge, Vellore, in C.A.No. 293 of 1990, confirming the conviction and sentence imposed by the learned Assistant Sessions Judge, Thiruvannamalai, in S.C.No. 91 of 1990 for the offence under Sec. 376, Indian Penal Code to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 3,000.

2. The revision petitioner herein was originally charged before the learned Assistant Sessions Judge, Thiruvannamalai, for the offences under Secs.376 and 493, Indian Penal Code, but he having been acquitted for the offence under Sec. 493 Indian Penal Code, was convicted and sentenced by both the courts below for the offence under Sec. 376, Indian Penal Code.

3. The prosecution case is that this revision petitioner raped P.W.1 in May, 1989 under threat and was continuing the sexual assault under promise of marrying her but when she became pregnant, he denied his access to her.

4. It is pertinent to mention that the revision petitioner herein has got married the prosecutrix after the disposal of the case before the courts below. This is confirmed by the learned Government Advocate, on verification. Anyhow, it has to be found out whether the offence has been made out by the prosecutrix. The prosecution concedes that P.W.1, the prosecutrix, had completed 18 years at the time of the occurrence. In the evidence of P.W.1 on 21.11.1990, she has stated that she was raped by this petitioner about 1 1/2 years ago, which is meant for May, 1989. The accused has produced the birth extract Ex.D-2 and also the death extract of the mother of the prosecutrix, dated 29.12.1971. It is well established that the prosecutrix was aged more than 18 years in May, 1989. Both the courts below have found that the first occurrence was under threat and the successive occurrences were under the promise of marrying her and as the prosecutrix was under the mistake of fact that she would become the wife of the accused, she had submitted for the illicit intercourse and such consent given by the prosecutrix is not voluntary but by misconception and therefore, the offence would fall under Sec. 376, Indian Penal Code. In this case, P.W.1, the prosecutrix alone, has spoken about her sexual contact with the revision petitioner and her grandfather P.W.2 has spoken about the pregnancy of P.W.1 and his approach to the father of the revision petitioner along with P.Ws. 3 and 6 for arranging the marriage between them and as it had failed, she launched a complaint against the revision petitioner. P.Ws. 9 to 11 are the doctors who examined P.W.1 and this revision petitioner. On a careful scrutiny of the evidence of P.W.1, we are able to see that the prosecutrix herself was a consenting party for the sexual partnership with the revision petitioner. The evidence of P.W.1 discloses that she and the revision petitioner were having the sexual courtship within the pumpset room in her grandfathers land. P.W.1 used to go alone to graze the bulls in that land and as the revision petitioner is the owner of the adjacent land they developed friendship between them. Though P.W.1 in her chief examination has stated that on the date of the first occurrence at about 4 p.m., when she was within the pumpset room, the revision petitioner suddenly closed the door of the shed and threatening her to strangulate, raped her, in the cross-examination she has made it clear that before the sexual intercourse both of them were talking together in the pumpset room for about half an hour and as he promised to marry her and requested for sexual intercourse, she consented for that. She has also made it further clear that only after the sexual intercourse, he threatened her that if she divulged this to anyone, it would be a shame to them and he would strangulate her. Therefore, even according to her own evidence, for the first occurrence, as they were having friendly talk within the pumpset room and he also promised to marry her, she willingly consented for the sexual intercourse. As the threat came only subsequent to that, not to divulge that incident to anyone, it cannot be stated that the prosecutrix was raped against her will under threat. The evidence discloses that it was done only with her consent. In the chief examination, P.W.1 has not spoken about any subsequent occurrences between them and has spoken only about her pregnancy on account of the first mating. But only in the cross-examination, she revealed that subsequently also the respondent used to come to the adjacent land frequently and whenever they met, they used to have sexual intercourse within the pumpset room. Therefore, it cannot be stated that P.W.1 was raped against her will in this case. Even assuming that she was given false promise of marrying her and on the hope that he would take her hands as his wife, she submitted her body for his pleasure, it cannot be stated that Sec.90, Indian Penal Code will come into play to hold that the consent of P.W.1 was under misconception. Misconception is a misunderstanding with regard to a fact. P.W.1 was not married to the revision petitioner at the time of this occurrence and she had only a hope that this petitioner would marry her. Therefore, when it was only a hope on the part of P.W.1 that what was stated by the petitioner would become true at a future date, it will not amount to misconception mentioned under Sec. 90, Indian Penal Code and at the most it can be brought under Sec. 415, Indian Penal Code provided it is established that the revision petitioner gave such a promise, which was false to his knowledge at the time of the promise. It cannot be considered as misconception for the company given to revision petitioner while satisfying their carnal urges. As the subsequent sexual affairs between them had also occurred with her consent and cooperation, though on the hope of marriage it will not fall under Sec. 376, Indian Penal Code. In Jayanti Ram Panda v. State of West Bengal, 1984 Crl.L.J. 1535, the Bench of the Calcutta High Court has held that when the girl aged more than 18 had consented for the sexual intercourse with the accused on a false promise of marriage, it would not come within the ambit of the offence under Sec. 376, Indian Penal Code. Similar view has been taken by the same court in a subsequent decision in Hari Majhi v. State, 1990 Crl.L.J. 650. In that case, the prosecutrix agreed for the sexual intercourse as accused promised to marry her and there were frequent sexual intercourses between them for more than a year till she became pregnant. The Bench of the Calcutta High Court has found that no offence was made out as the prosecutrix was a consenting party for the sexual intercourse. This decision is squarely applicable for this case and the evidence of P.W.1 establishes that she agreed for the sexual intercourse with the revision petitioner herein and the threat came from him only after the sexual intercourse, not to divulge the affair to anyone. Therefore, as the sexual intercourse, was not against her will, but with her consent, it will not amount to rape within the definition of Sec.375, Indian Penal Code. The courts below were not right in convicting the revision petitioner for the offence under Sec.376, Indian Penal Code. Therefore, the conviction has to be set aside.

5. In the result, setting aside the conviction and sentence of the courts below, the revision petitioner is acquitted. The revision is allowed. The fine amount will be refunded to the petitioner and bail bond is cancelled.