26 May 2020


Judgments

High Court of Patna

Om Prakash Mishra Vs. The State of Bihar

MANU/BH/0792/2018

29.03.2018

Criminal

For not keeping his promise to marry the victim, the Appellant can certainly not be convicted and sentenced for rape

The Appellant has been convicted under Section 376 of Indian Penal Code, 1860 (IPC) vide judgment passed by the learned 2nd Additional District & Sessions Judge, he has been sentenced to undergo rigorous imprisonment for seven years, to pay a fine of Rs. 25,000/- and in default of payment of fine, to further suffer simple imprisonment for one year. The amount of fine realized from the Appellant has been directed to be paid to the victim.

The Appellant was made accused in instant case on the basis of the F.I.R lodged by the victim. In the F.I.R, she has alleged that she was being subjected to rape by the Informant for about four years on the false assurance of marriage. It was further stated by her that, about 2-3 days prior to lodging of the F.I.R, the Appellant had married another girl, despite the family members of the appellant as well as of the girl knowing fully well that the prosecutrix was having relationship with the Appellant. The sole question now remains whether the consent had been obtained on the false promise of marriage.

"Consent" is an act of reason, accompanied by deliberation. The mind of the person giving consent for sexual act weighs, as if, on a balance: the good and evil on each side. A distinction therefore has clearly been made between rape and consensual sex. On a plain reading of Section 90 of the IPC, it becomes very clear that though consent has not been defined but what is not a consent has been explained. The victim as well as perpetrator of the crime, both, are required to know that the consent was given in consequence of any misconception.

There is a distinction between making a false promise for marriage which could come under the category of misconception in the mind of the victim and a breach of promise or non-fulfilment of the promise. If the promise made by the perpetrator of the crime is false from the beginning, any consent by the victim would be of no consequence. If the promise to marry is not fulfilled for reasons other than the deliberate act of the offender in not keeping up the promise after satisfying his bodily lust, it would not fall within the definition of rape as defined under Section 375 of the IPC. But the converse would not be true. If a false promise is made for obtaining the consent, it is rape simpliciter.

Section 375 of the IPC defines rape. A man is said to commit rape if he subjects the victim to different acts as defined in the Section, against her will or without her consent or with her consent when the same has been obtained by putting her or any person in whom she is interested in fear of death or of hurt or with her consent when the offender knows that he is not her husband and the consent is given because the victim believes that the offender is lawfully married to her, or with her consent when she is not capable of giving such consent because of unsoundness of mind or intoxication or when she is under 18 years of age and unable to communicate consent.

The provision spells out conditions under which the consent would not exclude the offence of rape. If an act is committed against the will of a person, it pre-supposes that it did not have the consent of the victim. However, a separate category has been carved out where "against the will" and "without her consent" have been enumerated separately.

In the present case, the factual aspects have already been enumerated. What is to be seen is whether it was a case of abject submission of victim (P.W. 3) in face of an allurement made by the Appellant that, he would marry her later. Whether such an allurement was only for the purposes of beguiling the victim or was it a genuine promise of marriage by convincing the victim to take a conscious decision for permitting sexual act. Whether this tacit consent by the victim was a result of misconception created in her mind about the intentions of the appellant to marry her. These are questions which can only be answered on the basis of an analysis of the deposition of the victim and other materials brought before the Trial Court.

No attempt was made by the prosecution to prove that in the first instance when the victim was subjected to rape, she was less than 18 years of age. The only evidence of age before the Trial Court or before this Court is the assessment of the age of the victim as 17-18 years on 30th December, 2005 when she was examined by P.W. 4. This was after four years of the relationship between the Appellant and the victim. If the outer limit of the age assessed by the P.W. 4 (Doctor) is taken as the reference point, the victim would definitely be much less than 18 years of age in the year 2001. Since the allegation of rape in the first instance i.e. in the first meeting of the appellant with the victim, is found to be doubtful, it cannot be said with certainty that she was subjected to rape against her will when the victim was not of the age of giving consent.

The present case has been lodged only after the Appellant performed marriage with another women, further establishes that the case has been lodged because of the Appellant not having married the victim. Even in the F.I.R, P.W. 3 has disclosed her mindset that she wants to enter into matrimonial relationship with the Appellant and should it not happen, the consequences and the responsibility shall fall on the family members of the Appellant and the woman with whom he has married. This clearly means that, she is ready to settle the case if she is married to the Appellant.

Thus, present court is of the view that the allegation of rape in the year 2001 could not be established because of the doubtful circumstances, specially the conduct of the victim. The fact that the relationship was established thereafter continuously for four years is an evidence of fact that, the later sexual acts were with the consent of the victim. The evidence about the Appellant having served the victim during her troubled days and continuing with the relationship demonstrates that there was a real intention of the Appellant to marry the victim. Epistolary messages, brought on record at the instance of the victim reaffirm the aforesaid fact viz. that the Appellant and the victim were in absolute love; one of such letters even depicting a plan to elope. Thus, it cannot be said that, the intention of the Appellant was to satisfy his body lust by giving a false hope of marriage to the victim. The marriage may or may not have taken place because of other circumstances which are not clearly known. In that event, if according to the victim, the relationship continued for four years, it would be difficult to presume that, it was without the consent and against her will.

Under the circumstances stated above, it is also difficult for present Court to presume that, the Appellant had made a false promise to the victim that he would marry her and that the consent was obtained on such misconception. For not keeping his promise to marry the victim, the Appellant can certainly not be convicted and sentenced for rape. The Appellant, who has already remained in custody for quite some time, is entitled to the benefit of doubt. Accordingly, the judgment of conviction and order of sentence are set aside. The appeal succeeds.

Tags : Rape Conviction Validity

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