False Promise Of Marriage Vitiates Consent Under Sec 90 IPC: Jharkhand HC Upholds Rape Conviction [Read Judgment]

Ranchi: The Jharkhand High Court has partly allowed a criminal appeal filed by a man convicted of rape and causing miscarriage without consent, upholding his conviction under Section 376 of the Indian Penal Code while setting aside his conviction under Section 313 of the IPC for want of evidence.

Justice Pradeep Kumar Srivastava was hearing an appeal filed against a judgment of the Additional District and Sessions Judge, II, Gumla, which had convicted the appellant under Sections 376 and 313 of the IPC and sentenced him to seven years and five years of rigorous imprisonment respectively, to run concurrently, along with fine.

According to the prosecution case, the prosecutrix was widowed within two years of her marriage after her husband died of tuberculosis, following which she began residing at her parental home. It was alleged that, the appellant caught hold of her in a forest area while she had gone to graze her goat and raped her under threat to her life. He subsequently promised to marry her, began cohabiting with her and bearing her expenses, and continued the relationship for three to four years, during which she became pregnant twice, both pregnancies being terminated by the appellant assaulting her on the abdomen. When the appellant ultimately refused to solemnise the marriage, the prosecutrix lodged an FIR in 2004.

Counsel for the appellant argued that the relationship was consensual between two mature adults, that the FIR was lodged after an inordinate delay of four to five years, and that the testimony of the prosecutrix and her family, being that of interested witnesses, could not be relied upon without independent corroboration. Reliance was placed on Mandar Deepak Pawar versus State of Maharashtra to contend that a failed relationship following a bona fide but unfulfilled promise of marriage did not attract Section 376 of the IPC.

The State opposed the appeal, submitting that the appellant had exploited the prosecutrix's vulnerable condition after her husband's death, that he had concealed the fact of his prior marriage, and that his conduct from the very inception showed a deceitful intention to satisfy his lust without ever intending to marry her, thereby vitiating her consent under Section 90 of the IPC.

Examining the distinction between a false promise and a mere breach of promise of marriage as laid down by the Supreme Court in Naim Ahamed versus State (NCT of Delhi), the Court noted that the appellant had, during trial, suggested that he was already married since 1997, a fact he never disclosed to the prosecutrix while continuing to cohabit with her and repeatedly postponing marriage.  

"it cannot be said that there was any breach of promise of marriage due to reason of any exceptional hardship rather it was false promise of marriage which was never intended to be fulfilled vitiating the consent of prosecutrix under Section 90 of the I.P.C."

The court further noted that the delay in lodging the FIR stood sufficiently explained in the facts and circumstances of the case, and did not, by itself, discredit the prosecution's case.

On the charge under Section 313 of the IPC, however, the High Court found the prosecution's case wanting. While the prosecutrix had stated that she was treated by a doctor after the alleged assaults on her abdomen, neither documentary evidence nor the testimony of the treating doctor was placed on record. The court held that "there is no concrete evidence on record that the appellant has caused miscarriage of the prosecutrix without her consent", and that the trial court had proceeded merely on the uncorroborated testimony of the prosecutrix without satisfying itself on the essential ingredients of the offence. The conviction and sentence under Section 313 of the IPC were accordingly set aside.

The High Court cancelled the appellant's bail bond and directed him to surrender before the trial court within two months to undergo the remaining sentence for the offence under Section 376 of the IPC, after adjusting the period of imprisonment already undergone by him during the pendency of the trial.

Appearances: Mr. A.K. Chaturvedi, Advocate, appeared for the appellant, while Mr. S.K. Srivastava, A.P.P., appeared for the State of Jharkhand.

Case Title: Ramesh Sahu versus The State of Jharkhand & Anr.

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