Jagadish Barman vs The State Of Assam

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GAHC010017712023

2026:GAU-AS:7458
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./25/2023
JAGADISH BARMAN
S/O MANMOHAN BARMAN,
VILL.- BATLAGURI,
P.O. AND P.S.- PUNDIBARI,
DIST.- COOCH BEHAR, WEST BENGAL, PIN- 736165.
VERSUS
THE STATE OF ASSAM
REP. BY P.P.
2:ANIMA RAI
D/O SUKUMAR ROY
VILL.- PARBATINAGAR
P.S. TEZPUR
DIST.- SONITPUR
PIN- 784001
Advocate for the Petitioner : G UDDIN, MR. T HUSSAIN,MS N DEKARAJA,MR. Y S
MANNAN,MR. T HUSSAIN,MR P AGARWAL,MS. P ADHIKARI,MR A K AZAD,MR A H
SARKAR
Advocate for the Respondent : PP, ASSAM, MR. K P PATHAK(AMICUS CURIAE)

BEFORE
HON’BLE MRS. JUSTICE MITALI THAKURIA

: 23.04.2026
Date on which judgment is reserved

Date of pronouncement of judgment : 29.05.2026

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Whether the pronouncement is of the : N/A.
operative part of the judgment?

Whether the full judgment has been : Yes.
pronounced?
UDGMENT RDER
J & O

Heard Mr. Y.S. Mannan, learned counsel for the appellant. Also heard Mr.
K. Baishya, learned Addl. P.P., Assam for the State respondent No.1 and Mr. K.P.
Pathak, learned Amicus Curiae appearing for the respondent No.2.
2. This appeal has been preferred by the accused appellant against the
judgment and order dated 09.01.2023, passed by the learned Addl. Sessions
Judge, FTC, Sonitpur at Tezpur in Sessions Case No.198/2019, whereby the
appellant was convicted and sentenced to undergo rigorous imprisonment for 10
(ten) years and fine of Rs.10,000/- (Rupees Ten Thousand), for committing an
offence under Section 376 of the IPC and to undergo simple imprisonment for
one year for committing an offence under Section 417 of the IPC and both the
sentences to run concurrently and the period of detention, undergone by the
accused appellant during the trial and investigation shall be set of.
3. The prosecution case, as revealed from the ejahar (FIR) lodged by the
informant/the victim of the case is that on 19.03.2018, the informant Smti. ‘X’
(name withheld) lodged an FIR before the Officer-in-Charge of Tezpur Police
Station, alleging inter alia that since last two years of lodging of the ejahar,
there was love affairs between the informant and the accused appellant
Jagadish Barman, who is serving as a BSF Jawan and on the false promise to

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marry the informant, he committed rape on her forcefully. Subsequently, the
accused refused to marry the informant and tried to marry another girl and
thereby the accused cheated her.

4. On receipt of the ejahar, the Tezpur P.S. Case No.560/2018 was registered
under Sections 420/376 of the IPC and started investigation. The investigating
officer visited the place of residence of the victim, recorded the statement of the
witnesses including the statement of victim under Section 164 of the CrPC and
the victim was medically examined. After completion of the investigation and
having found sufficient evidence against the accused person, submitted the
charge sheet against him under the said sections of law. As the offence was
exclusively triable by the Court of Sessions; the learned Chief Judicial Magistrate
committed the case to the Court of Sessions, Sonitpur at Tezpur. Accordingly, on
appearance of the accused appellant, the learned Trial Court took cognizance of
the offence and on appearance of the accused appellant before the learned Trial
Court, the charges were framed against him under Sections 420/376 of the IPC
and the charges were read over and explained, to which the accused appellant
pleaded not guilty and claimed to be tried.
5. During the trial, the prosecution examined as many as seven (7) witnesses
including the informant/vicim as well as the investigating officer and exhibited
some documents in support of its case. The accused person was examined
under Section 313 of the CrPC and he denied the allegation made by the
prosecution. The accused/appellant had declined to adduce any evidence in his
defence and after recording his statement under section 313 of the CrPC,
wherein the accused/appellant took the plea that the allegations brought
against him are false and baseless. Thereafter, the learned Trial Court, after

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hearing the parties and upon perusing the materials on record, passed the
impugned judgment and order dated 09.01.2023 and being highly aggrieved
and dissatisfied with the impugned conviction and sentence, the appellant has
preferred this appeal.
6. Mr. Y.S. Mannan, the learned counsel for the accused/appellant during the
course of argument had submitted that the learned Trial Court committed grave
errors of law as well as of facts, in convicting and sentencing the appellant
under Sections 376 & 417 of the IPC and hence, the impugned judgment and
order is liable to be set aside and quashed.
7. Mr. Mannan, the learned counsel for the appellant also submitted that the
victim girl was not minor at the time of incident and without corroborating her
evidence with the medical evidence as well as the evidence of her mother, the
learned Trial Court below had passed this order of conviction. The learned Addl.
Sessions Judge, FTC, Sonitpur also failed to appreciate the fact of consent of a
major girl and hence the impugned judgment is liable to be set aside and
quashed.
8. It is contended by the learned counsel for the accused appellant that so
far to constitute an offence under Section 417 of the IPC is concerned, the
allegation that the act of deception by the accused to get consent was not
charged and also not framed any charge initially in this case for alleged sexual
intercourse but the learned Session's Judge at the time of passing the
judgment, convicted him by treating a part of the offence along with section
376 of the IPC and as such no fair trial or opportunity is given to the accused
before his conviction under Section 417 IPC.

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9. Moreover, when there is a conviction recorded for the offence under
section 417 of the IPC, there cannot be any separate conviction under Section
376 of the IPC and hence the conviction and sentence imposed on the accused
under Sections 376/417 of the IPC, is liable to be set aside.
10. Mr. Mannan, the learned counsel for the accused/appellant further
submitted that from the moment of filling the FIR till the examination of
witnesses projected that the informant/victim (PW-1) had love affairs with the
accused since last two years and with the promise of marriage, the accused
person had committed rape upon her. The pleaded case of the defence is that
the victim was a major, aged about 25 years at the time of offence and she
voluntarily made relation with the accused person and as such there are no
ingredients to attract the commission of offence punishable either under Section
376 or 420 of the IPC, as charged against the accused. Furthermore, from the
medical report it reveals that after registration of the case, she was medically
examined and from the medical report as well as from the evidence of the
prosecution witnesses, it is clear that the victim refused to be examined by the
Doctor. Had it been a forceful assault of rape, she might have examined herself
to prove the offence under Section 376 of the IPC. Accordingly, it can be held
that the victim is a consenting party from the very beginning. However, the
learned judge misread and misinterpreted the provisions, while passing the
impugned order and as such impugned judgment is liable to be set aside and
quashed.
11. Mr. Mannan, the learned counsel for the accused/appellant also contended
that after marshalling of the aforesaid evidences and cross examinations of
prosecution of witnesses as well as pleadings of the accused, it can draw two

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basic points for decision of the case:
(I) Whether any forceful act from the part of accused to attract offence
under section 376/420 IPC and
(II) Whether any act from the part of accused suggesting for any
promise/pretext to marry so as attract offences under provision of section
376 as per meaning and interpretation of section 90 of IPC i.e.
misconception of fact as regard to consent.
Answer may be ‘no’ as per understanding from the case of the prosecution
but learned court misinterpreted the law laid down by Hon'ble supreme court in
this regard and took a negative view. As such the prosecution has not able to
established a case of either amounting to rape or any cheating as per ingredient
of sections 375, 376, and section 417, 420 read with section 90 IPC. Hence
prosecution has failed to establish a case beyond reasonable doubt and accused
is entitled for acquittal. However, the learned judge misread and misinterpreted
the provisions, while passing the impugned order and as such impugned
judgment is liable to be set aside and quashed.
12. Mr. Mannan, the learned counsel for the accused/appellant further
submitted that from the statement made by the victim under Section 183 of the
CrPC also it reveals that there is no allegation of forceful intercourse or rape on
her. Further, the victim also refused to go for medical examination and in spite
of physical relationship with the accused for such a long period, she never
reported the same to any of her family member or friends, nor there is any
evidence that she met him only because he promised to marry her or there was
any promise of marriage at the outset of their physical relationship. It was
purely a consensual relationship wherein both the victim as well as the accused/

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appellant had intimate relationship and there is no evidence that the appellant
had forceful sexual intercourse or her consent was taken under mis-
representation or fact to fulfill the ingredients of Section 375 of the IPC to
convict the accused appellant under Section 376 of the IPC.
13. In support of his submission, Mr. Mannan, the learned counsel for the
appellant relied upon the following decisions of the Hon’ble Apex Court: (1)
Mahesh Damu Khari vs. State of Maharashtra 2024 INSC 897
reported in and (2)
Lalu Yadav vs. State of Uttar Pradesh reported in SLP (Crl.) No.9371/2018 . In the
case of Mahesh Damu Khari (Supra), in para 21 and 25, the Hon’ble Apex Court
has held as under:
21. The complainant had taken the plea that the appellant had physical relationship
with her against her consent by making a false promise that he would marry her. In this
regard, it has to be considered whether making a false promise to marry amounts to an
offence. If a false promise of marriage is made to a woman by a man, thus deceiving the
woman leading her to engage in sexual relations, it may amount to misconception of
fact, in which case the consent given by the woman may be vitiated. In this regard one
may refer to the decision of this Court in Niam Ahmed v. State (NCT of Delhi )5, “20.
The bone of contention raised on behalf of the respondents is that the prosecutrix had
given her consent for sexual relationship under the misconception of fact, as the
accused had given a false promise to marry her and subsequently he did not marry, and
therefore such consent was no consent in the eye of law and the case fell under the
Clause.
- Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a
difference between giving a false promise and committing breach of promise by the
accused. In case of false promise, the accused right from the beginning would not have
any intention to marry the prosecutrix and would have cheated or deceited the
prosecutrix by giving a false promise to marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one cannot deny a possibility that the accused
might have given a promise with all seriousness to marry her, and subsequently might
have encountered certain circumstances unforeseen by him or the circumstances beyond
his control, which prevented him to fulfill his promise. So, it would be a folly to treat
each breach of promise to marry as a false promise and to prosecute a person for the
offence under Section 376.”
25. In the present case, even assuming that the appellant had made the promise since

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2008 when they met for the first time, the fact that they remained unmarried for a long
period till 2017 without there being any protest or objection by the complainant, does
not indicate the intention at the initial stage itself to make the promise falsely to marry
the complainant. Making an allegation of non-fulfilment of promise to marry without
undue delay by the promissee would, on the other hand, be an indicator of a false
promise being made from the initial stage. In the present case, what is not in dispute is
that the physical relationship between the appellant and the complainant continued for
a long period of about a decade and as such it is difficult to infer that the appellant had
made a false promise since the initial stage and continued to make false promises to
marry her on the basis of which she also continued to have physical relationship with
him.”
14. In Lalu Yadav (Supra) reported in para 14 and 15 of the said judgment, the
Hon’ble Apex Court held that:
“ 14. Now, having bestowed our anxious consideration to the decisions referred supra
with reference to the factual situations obtained in the case at hand, we are of the
considered view that the High Court has palpably gone wrong in not considering the
question whether the allegations in the complaint reveals prima facie case that the
complainant had given her consent for the sexual relationship with the appellant under
misconception of fact, as alleged, or whether it reveals a case of consensual sex. Firstly,
it is to be noted that the subject FIR itself would reveal that there occurred a delay of
more than 5 years for registering the FIR; secondly, the very case of the complainant, as
revealed from the FIR, would go to show that they lived for a long period as man and
wife and thirdly, the facts and circumstances obtained from the subject FIR and other
materials on record would reveal absence of a prima facie case that the complainant
viz., respondent No. 4 had given her consent for sexual relationship with the appellant
under misconception of fact. At any rate, the allegations in the FIR would not constitute
a prima facie case of false promise to marry from the inception with a view to establish
sexual relationship and instead they would reveal a prima facie case of long consensual
physical relationship, during which the complainant addressed the appellant as her
husband. Moreover, it is also the case of the complainant, revealed from the subject FIR
and the other materials on record that she went along with the appellant to Varanasi
with the knowledge of her family and stayed with him in hotels during such visits. The
subsequent refusal to marry the complainant would not be sufficient, in view of the facts
and circumstances obtained in the case at hand, by any stretch of imagination to draw
existence of a prima facie case that the complainant had given consent for the sexual
relationship with the appellant under misconception of fact, so as to accuse the
appellant guilty of having committed rape within the meaning of Section 375 , IPC.
15. The long and short of the above discussion is that the case at hand is a befitting case
where the High Court should have exercised the power available under Section 482 ,
Cr.P.C. to prevent abuse of the process of the Court. Now that the allegation of offence

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under Section 313 , IPC is omitted, there is absolutely no prima facie case for
proceeding further against the appellant on the allegation of commission of offence
punishable under Section 376 , IPC. We are of the considered view that the High Court
should have exercised its inherent power.”
15. By citing the above judgments of the Hon’ble Supreme Court, Mr. Mannan,
the learned counsel for the appellant submitted that in the instant case also
there is no evidence that the victim indulged in the physical relationship with the
accused appellant only for the false promise of marriage and there is no
evidence to show that the physical relationship was purely because of the
promise of marriage made by the accused appellant. Accordingly, Mr. Mannan,
the learned counsel for the accused appellant submitted that it is a fit case
wherein the accused appellant is entitled for acquittal.
16. Mr. Baishya, the learned Addl. P.P., Assam submitted in this regard that the
learned Trial Court below had rightly arrived at the decision by scrutinizing the
evidence on record in its true perspective and there is no any reason to make
any interference in the judgment and order passed by the learned Addl.
Sessions Judge. Mr. Baishya further submitted that the statement made by the
victim under Section 164 of the CrPC as well as at the time of recording her
evidence goes consistent and the defence could not rebut the evidence of the
prosecutrix to disbelieve her statement that she had the physical relationship
with the accused only for the false promise of marriage made by the appellant.
He further submitted that it is not a case that there was forceful intercourse
with the victim but the only issue is to be decided as to whether the consent of
the victim was taken under misrepresentation of fact. From the evidence on
record, it clearly reveals that under the false promise of marriage, the accused
appellant had physical relationship with the victim and subsequently he refused

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to marry her and from the very beginning, he had the intention to deceive the
prosecutrix and only with the false promise of marriage, he maintained the
relationship with her and thus, the entire evidence on record fulfils the
ingredients of Section 375 of the IPC to convict the accused appellant
accordingly.
17. Mr. Pathak, the learned Amicus Curiae appearing for the respondent
No.2/the informant victim submitted that from the evidence of the PW.1 itself, it
is evident that the accused appellant had made promise of marriage on the
night itself when he forcibly committed rape on her, assuring that he would
marry her. Thus, it is seen that at the very beginning of their physical
relationship, the accused made the false promise of marriage. More so, from the
evidence of the victim as PW.1, it is also seen that when she came to know from
her friends that the accused appellant is looking for another girl for marriage,
she immediately went to the Head Quarter of BSF at Shillong and met the
Commanding Officer but she could not meet the accused appellant, as he was
not available in the station. On the next day morning, she again went to
Shillong and appraised him about the details of the incident when the
Commanding Officer made an inquiry and during that time only, the accused
appellant produced some fake documents before the Commanding Officer
showing that he was already married someone. This fact of the case also
establishes that the accused never had any intention to marry the victim and
from the very first day of their relationship, the accused appellant only had the
intention to deceive the victim and had physical relationship with her only with a
false promise of marriage. Mr. Pathak, the learned Amicus Curiae accordingly
submitted that the learned Addl. Sessions Judge had rightly passed the
judgment and order convicting the accused appellant, after scrutinizing the

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evidence on record and specially, the evidence of the prosecutrix.
18. Mr. Pathak, the learned Amicus Curiae further submitted that the testimony
of the prosecutrix stands on a par with that of an injured witness and hence, it
is not necessary to insist for corroboration, if the evidence of the prosecutrix
inspires confidence. To substantiate the same, the learned Amicus Curiae placed
reliance on the judgment of the Hon’ble Supreme Court in the case of Wahid
Khan vs. State of Madhya Pradesh (2010) 2 SCC 9
reported in and basically relied
on para 17 and 18 of the said judgment which reads as under:
17. It is also a matter of common law that in Indian society any girl or woman would not make
such allegations against a person as she is fully aware of the repercussions flowing therefrom.
If she is found to be false, she would be looked by the society with contempt throughout her life.
For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence
has really been committed, a girl or a woman would be extremely reluctant even to admit that
any such incident had taken place which is likely to reflect on her chastity. She would also be
conscious of the danger of being ostracized by the society. It would indeed be difficult for her
to survive in Indian society which is, of course, not as forward looking as the western countries
are.
18. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured
witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix
inspires confidence and appears to be credible. However, in the case in hand, even without the
examination of doctor, the evidence of prosecutrix stands fully corroborated by the evidence of
P.W.3-B.B. Subba Rao, Sub-inspector of the police station who had virtually caught the
appellant red-handed. Thus, even if doctor had not been examined it would not throw or
completely discard the prosecution story. The evidence of prosecution witnesses is fully
trustworthy and there is no reason to doubt genuineness thereof.
19. The learned Amicus Curiae further submitted that from the evidence of the
prosecutrix it is evident the accused appellant had made a false promise of at
the very inception of their relationship, when she was forced to have sexual
intercourse with him on the false pretext of marriage and thus it bears a direct
nexus to the decision of the prosecutrix to engage herself in the sexual act. In
that context, Mr. Pathak, the learned Amicus Curiae had relied on the decision of

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Pramod Suryabhan Pawar vs. State of
the Hon’ble Apex Court in the case of
Maharashtra and another reported in (2019) 9 SCC 608 , wherein in para 18 of
the said judgment the Hon’ble Apex Court had held that:
“ 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 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.”
20. Mr. Pathak, the learned Amicus Curiae accordingly submitted that there is
no need of any interference in the judgment and order passed by the learned
Trial Court below which is well reasoned order and passed after proper
appreciation of evidence on record.
21. Hearing the submissions made by the learned counsel for both sides, I
have also perused the case record, the evidence of the prosecution witnesses
vis-à-vis the judgment and order passed by the learned Assistant Sessions
Judge.
22. To arrive at a just decision, let us scrutinize the statement of the
prosecution witnesses.
23. It is the case of the prosecutrix that she was forced to have sexual
intercourse with the accused appellant only on the false promise of marriage
and thus her consent was obtained under misrepresentation of fact. The
prosecutrix as PW.1 had deposed in her evidence that she came to know the

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accused appellant when she met him in a marriage ceremony and thereafter, he
collected her mobile number from her aunt and then he also made several
phone calls to the prosecutrix/PW.1. While talking with the accused appellant
over telephone, they developed the friendship and thereafter, he came to Tezpur
without informing her in the year 2017. After reaching Tezpur, he also informed
her and also asked her to make some arrangements for his stay. Thereafter, she
herself accompanied with her friend, she went to meet the accused appellant
and he stayed in their house for a day and thereafter, he proposed to take her
to his resident at Koch Bihar for a pleasure trip. But after reaching at Koch Bihar,
the PW.1 was allowed to stay in the house of the accused appellant and on the
said night itself, taking advantage of absence of parents of the accused in the
house, he forcibly committed rape on her with a promise to marry her.
24. On the next day, however the accused appellant brought her to Tezpur and
again made the assurance of to marry her. Thereafter, the accused appellant
took leave for one month and came to Tezpur wherein the accused appellant
took the PW.1 to Hotels, where they stayed together and during that period, the
accused appellant also asked her to take some tablets for safety measures and
then again kept her in the hotels for two nights, wherein they maintained
physical relationship with each other. In such way, whenever the accused
appellant came to Tazpur from Shillong, they used to stay in various Hotels as
husband and wife and thereafter, she took some papers/forms of Court
marriage and asked the accused for solemnization of their Court marriage but
the accused appellant by showing some problems of construction of his
residence etc., he declined to put his signatures on the forms of the Court
marriage and rather sought time for solemnization of marriage after
construction of his residence.

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25. But subsequently, the PW.1 came to know from Koch Bihar that the
accused appellant went on leave for two months and he was staying in Koch
Bihar, looking another girl for his marriage. Thereafter, she confirmed the news
and then went to the Head Quarter of the BSF at Shillong to meet the
Commanding Officer and to appraise everything in that regard. On the day she
went to Shillong, she could not meet the accused but on the next day, she again
went to Shillong Head Quarter, wherein the accused appellant produced some
papers before the Commanding Officer stating that he has already married
someone. Thereafter, only the Commanding Officer advised her to approach the
legal forum and then, the prosecutrix lodged the FIR in the Tezpur Police
Station. From her cross-evidence it is seen that she was major at the time of
lodging the FIR and at that time, they had the relationship for more than two
years. She further stated in her cross-evidence that in the first time the accused
appellant committed rape on her forcibly but thereafter, as the accused
appellant promised to marry her, she continued to live with the accused
appellant whenever he asked and maintained the physical relationship with him.
She further stated that she was brought for medical examination but no medical
examination was conducted after the discussion between the Doctor and the
lady Police Officer who took her before the Doctor. She also denied when
suggested that the accused never promised to marry her.
26. PW.2 is the mother of the informant/victim and as per her, after four
months of the marriage of her relative, the accused appellant made a phone call
to her and told that he intends to come to Tezpur and the accused appellant
being the relative, the PW.2 could not refuse. Thereafter, the accused arrived at
Tezpur and stayed for a night and proposed to take her daughter to Koch Bihar
for a pleasure trip. Although the PW.2 refused to the said proposal but somehow

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the accused appellant forcibly took her daughter to Koch Bihar. Thereafter, her
daughter informed her over telephone that the family members of the accused
appellant was annoyed and then she asked the accused appellant to bring back
her daughter to their residence. After some days only she came to know about
the love affairs between her daughter and the accused appellant and she also
came to know that her daughter used to meet the accused appellant with a
pretext that she is visiting to the residents of her friends and also came to know
that her daughter and the accused appellant used to live together in various
hotels in Tezpur. The PW.2 also came to know from her daughter that the
accused appellant maintained physical relationship with her daughter with false
promise of marriage.
27. In her cross-evidence, the PW.2 stated that the love relationship between
her daughter and the accused appellant was beyond her knowledge and the
accused appellant altogether came twice to their residence at Tezpur. But the
PW.2 never saw the accused appellant and her daughter living together by her
own eyes.
28. PW.3 was serving as the Manager of Hotel Your Room situated at Ranu
Sing Road, Tezpur and backside of Anowar Hall since 2015—2019. During that
period, one Jagadish Barman was residing in their hotel for the night and he
being the manager of the Hotel, entered the name and address of the accused
appellant in the daily register of the hotel. The PW.3 also brought the daily
register of their Hotel, while deposing before the Court. From his evidence, it
reveals that the accused appellant booked the hotel room on 2/3 occasions.
29. PW.4 is the manager of “Hotel Metro”. This witness also brought the

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register of Hotel Metro and accordingly, deposed that as per the daily entry
register, on 03.08.2017, at about 2:30 pm, one Jagadish Barman, accompanied
with his wife Anima Rai came to their hotel and asked for room for their stay.
Accordingly, the room No.111 of the hotel was allotted to them and they stayed
there for two days as husband and wife. Again on 22.08.2017, at 7:00 pm, said
Jagadish Barman along with his came to their hotel and he being the manager
of the hotel, allotted the said room No.111 and they stayed together for three
days in the hotel. From his cross-evidence, it is see that both of them gave their
identity proof and after getting their identity cards only, the room was allotted to
them. However, only Jagadish Barman put his signature in the daily entry
register of the hotel who came along with his wife.
30. PW.5 is the son of the proprietor of Hotel Metro and he also deposed that
the PW.4 being the hotel manager, used to maintain the Daily Inmates Register
during his tenure. The PW.5 also brought the Daily Inmates Register, which was
exhibited as Exhibit No.4, during his examination.
31. PW.6 is also a manager of Hotel Uruka situated at Jankin Road near ASTC
Bus stand at Tezpur Town who accordingly appeared after receiving summons
with his Daily Inmates Register and but he could not produce the hotel register
of 2017, as it was maintained by one manager, namely, Sakreswar Kalita who
expired.
32. PW.7 is the I.O. who was entrusted with the investigation of the case by
the Officer-in-Charge of the Tezpur Police Station, after receiving the FIR lodged
by the PW.1. Accordingly, he visited the residence of the victim, recorded her
statement and other witnesses and also sent the victim for medical examination

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by issuing requisition and thereafter, the victim was brought before the
Magistrate for recording her statement under Section 164 of the CrPC. During
the investigation, the I.O. made search of the accused and came to know that
at that time, the accused was serving at Shillong, Meghalaya and hence, he sent
WT message asking him to appear before him in connection with this case. But
the accused did not turn up and after obtaining the order of bail from the High
Court, he appeared before him.
33. During inquiry, it is also come to the knowledge of the I.O. that the
accused kept the victim with him in the hotels, namely, Hotel Your Room, Hotel
Metro and Hotel Uruka, keeping the identity of the victim as his wife. To
ascertain the said fact, the I.O. also recorded the statement of the Hotel
Manager of the concerned hotels and after completion of the investigation, he
submitted the charge sheet against the present accused petitioner. In his cross-
evidence, he submitted that the victim denied to go for medical examination.
34. So from the evidence of the prosecution witnesses, it is seen that the
PW.2/the mother of the victim who came to know about the relationship of the
accused appellant and the victim subsequently, but from her evidence it is seen
that the accused stayed in their house for two nights but she was not aware
about the stay in the hotels by the accused appellant and her daughter/the
victim.
35. As discussed above, PW.3, 4 & 6 are the hotel mangers of different hotels
who established the fact that both the victim and the accused appellant had
stayed together in their hotels as husband and wife.

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36. So the PW.1/the prosecutrix is the only vital witness of the prosecution.
From her evidence, it is seen that both the victim and the accused appellant had
maintained physical relationship with each other and though in the first night it
was forcible intercourse with the victim but subsequently she gave her consent
for their physical relationship, as the accused appellant promised to marry her
and from the evidence of the prosecutrix, it is seen that from the first night
itself, when the victim was with the accused at Koch Bihar, he had physical
relationship with her saying that he will marry her and on that belief, the victim
also indulged herself in the sexual activities. But it is an admitted fact that there
is no evidence for any forcible intercourse with the victim. Rather they had
consensual relationship and stayed together in different hotels as husband and
wife.
37. So, it is to be seen as to whether the accused had any intention of
deceiving her from the very first day or very first inception of their physical
relationship. It is a fact that both the victim and the accused appellant had
developed friendship and subsequently, love relationship between them and the
accused appellant also came to Tezpur and stayed in the house of the victim for
one night. But thereafter, the victim was taken to Koch Bihar to his residence
wherein, in absence of his parents, the accused appellant forcibly made physical
relationship with her, with the promise of marriage. Thus, it is seen that on the
very inception of their physical relationship, the accused appellant made the
promise of marriage and in that pretext of marriage only, the victim also
continued her relationship with the accused appellant. But from the evidence of
the prosecutrix, it further reveals that during their relationship, she asked the
accused appellant for court marriage and to that extent, she also brought some
forms of Court Marriage asking the accused appellant to put his signature on

Page No.# 19/22
those forms, so that they can entered into a legal marriage/court marriage. The
accused appellant then refused to put his signature on those forms stating that
he would marry her socially and during that time, he had some issues of
construction of house, etc. But subsequently it had come to the knowledge of
the prosecutrix that he is looking for another girl for marriage. Thus, it is seen
that on one hand, the accused appellant had physical relationship with the
victim only on the pretext of marriage but when the victim raised the issue of
marriage, even for court marriage, he simply denied to put his signatures and
immediately, he looked for another girl for marriage, which otherwise prove the
intention of the accused appellant of deceiving the victim from the very
inception of their relationship.
38. Coming to the subsequent part of the evidence of the PW.1/victim, it is
seen that when she came to know about that the accused appellant is looking
for another girl for marriage, she immediately went to meet the Commanding
Officer, BSF at Shillong and in her presence, the accused appellant had
produced some fake documents stating that he is a married person and had
already married another girl. This kind of activities of the accused appellant
shows that he had no intention to marry the victim and had the intention to
deceive her from the very beginning or at the very commencement of their
relationship.
39. The Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar
(Supra) has expressed the view that there is distinction between false promise
of marriage which is given on understanding by the maker and the breach of
promise, which is made in good faith but subsequently not fulfilled. But here in
the instant case it is seen that the physical relationship with the victim had

Page No.# 20/22
started on the very first day of inception of their physical relationship, promise
of marriage was made by the accused appellant. But from the subsequent
event, as referred above, it reveals that the accused appellant had never any
intention to marry the victim and the consent was obtained from the victim only
under misrepresentation of fact of false promise of marriage, which amounts to
rape under Section 375 of the IPC.
40.
Further, from the evidence of the prosecutrix, it is seen that the defence
could not rebut her evidence neither by cross-examining nor by adducing any
defence evidence and her statement in respect of physical relationship with the
accused appellant with false promise of marriage as well as the inducement
made by the accused appellant to have sexual intercourse with the victim, goes
unrebuted and in the same time, from the subsequent development, it is also
seen that the accused appellant refused to marry the victim rather he never had
any intention to marry the victim which shows from the subsequent conduct of
the accused appellant. The entire evidence in that aspect goes unrebuted. It is a
fact that there is no other supporting evidence who saw the incident and the
mother of the prosecutrix also had no earlier knowledge about the physical
relationship between the victim and the accused appellant, though her daughter
met the accused appellant on various occasions. It is very obvious that the
victim might have suppressed the relationship between her and the accused
appellant and they used to meet and stay together in different hotels as
husband and wife, which has already been proved by the Hotel Managers of the
concerned Hotel.
41. Thus the evidence of the prosecutrix is not to be disbelieved, wherein she
made specific allegation against the present accused appellant of inducing her

Page No.# 21/22
to have sexual intercourse with her and her consent was also taken on
misrepresentation of fact.
42. The Hon'ble Apex Court in the case of Moti Lal Vs. State of Madhya Pradesh ,

reported in 2008 0 AIR (SC) 882 , has held in paragraph Nos. 9 as under:
"9. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless
it is corroborated in material particulars. She is undoubtedly a competent witness under
Section 118 and her evidence must receive the same weight as is attached to an injured in cases
of physical violence. The same degree of care and caution must attach in the evaluation of her
evidence as in the case of an injured complainant or witness and no more. What is necessary is
that the Court must be conscious of the fact that it is dealing with the evidence of a person who
is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and
feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or
practice incorporated in the Indian Evidence Act, 1872 (in short Evidence Act) similar to
illustration (b) of Section 114 which requires it to look for corroboration. If for some reason the
Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony short of corroboration required in the case
of an accomplice. The nature of evidence required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and circumstances of each case. But if a
prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on
her evidence unless the same is own to be infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case discloses that the prosecutrix does not have
a strong motive to falsely involve the person charged, the Court should ordinarily have no
hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v.
Chandraprakash Kewalchand Jain (1990 91) scc 550)."

43. State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC
In , reported in
622; 1993 SCC (Cri) 674 , the Hon'ble Supreme Court held that there is no legal
compulsion to look for any other evidence to corroborate the evidence of the
prosecutrix before recording an order of conviction. Evidence has to be weighed
and not counted. Conviction can be recorded on the sole testimony of the
prosecutrix, if her evidence inspires confidence and there is absence of
circumstances which militate against her veracity. A similar view has been
reiterated by the Hon'ble Supreme Court in Wahid Khan v. State of Madhya
Pradesh reported in (2010) 2 SCC 9; AIR 2010 SC 1 , placing reliance an earlier

Page No.# 22/22
Rameshwar S/o Kalian Singh v. State of Rajasthan AIR
judgment in , reported in
1952 SC 54 . Thus the law that emerges on the issue is to the effect that the
statement of prosecutrix, if found to be worthy of credence and reliable,
requires no corroboration. The Court may convict the accused on the sole
testimony of the prosecutrix.
44. So from the entire discussions made above, it is seen that the learned
Addl. Sessions Judge, FTC, Sonitpur at Tezpur had rightly arrived at the decision
that the prosecution could establish the charges against the present accused
appellant under Sections 376/417 of the IPC. It is also seen that at the time of
pronouncement of judgment, the charges were altered to Section 417 of the
IPC, as there was no elements of Section 420 of the IPC, under which initially
charge was framed against the accused appellant. Thus, applying the provision
under Section 222 of the CrPC, the accused appellant has been convicted under
the minor Section 417 of the IPC, altering the charge accordingly. Further, it is
seen that at the time of passing the order of sentence, the learned Addl.
Sessions Judge, FTC, Sonitpur at Tezpur also considered all the aggravating and
mitigating circumstances and passed the conviction and sentence accordingly
and hence, this Court is of the opinion that there is no need of interference in
the present appeal against the conviction and sentence passed by the learned
Addl. Sessions Judge, FTC, Sonitpur at Tezpur and accordingly the Appeal
stands dismissed and disposed of.

JUDGE
Comparing Assistant
Manoranja
n Barman
Digitally signed by Manoranjan Barman
DN: c=IN, o=Personal, postalCode=781353, l=Nalbari,
st=Assam, street=12/190 GOPALBAZAR, Sandheli, Pachim
Nalbari Assam India 781353 NEAR GOPAL THAN, title=2306,
2.5.4.20=29db4acf51a76f18a8b02da116d99d9a830067d0e1e
e9ade3211eba147de7638,
serialNumber=f62c6d212ff0a19bb91eb2be0de18d2d5675f85
15740ee4f44960ef878267138,
[email protected], cn=Manoranjan Barman
Date: 2026.05.29 14:53:05 +05'30'