Failure To Fulfil Promise To Marry Doesn't Automatically Attract Offence Of Rape, 'Intention To Deceive' Must: Punjab & Haryana High Court

The Punjab and Haryana High Court has acquitted a man accused of committing rape on pretext of false promise to marry the alleged victim, observing that the failure on the part of the accused to fulfill his promise "cannot be construed to mean that the promise itself was false."

Justice Harpreet Singh Brar noted that, "there is no allegation in the testimony or the statement of the victim that when the appellant promised to marry her, it was done in bad faith or with the intention to deceive her."

Additionally as per the testimony of the victim, she had only met the appellant once prior to the day she decided to elope with him. In such a case, this Court finds it highly implausible that the appellant made a false promise to marry the victim only after meeting her for the second time, said the Court.

"Even if it assumed that such a promise was made, the failure on the part of the appellant to fulfill his promise cannot be construed to mean that the promise itself was false," it added.

The Court was hearing an appeal filed by a man against the judgment of conviction and order of sentence, passed by the Additional Sessions Judge, arising out of FIR lodged in 2012 under Sections 363, 366, 376, 120-B of IPC and Section 181 of the Motor Vehicles Act.

The appellant was sentenced to 7 years of rigorous imprisonment under Section 376 IPC, for 2 years under Section 363 IPC and under Section 366 for 5 years of rigorous imprisonment.

According to FIR, the alleged victim left her house with the accused on her own volition. She stated that the acccused called her outside in order to take her to some place to get married. However, he took her to a tubewell where he raped her on the pretext of marrying.

The alleged victim was medico-legally examined and charges of rape was added in the FIR.

The counsel for appellant contended that the woman is an adult and eloped with him voluntarily and with her free will.

"The prosecutrix stayed with the appellant for 3 days and had traveled a considerably long distance on a motor cycle with him. There was no resistance or protest of any kind on behalf of her. All the circumstances prove that the prosecutrix was a consenting party and therefore, no offence whatsoever has been committed by the appellant," he added.

After hearing the submissions, the Court noted that the alleged victim is above 18 years and, "there is no evidence to suggest that throughout her time with the accused, the victim raised any alarm or protest."

"A perusal of the testimony of the victim depicts that she was not abducted by the accused against her wishes. She rode as pillion when she was taken by the appellant to Kala Amb and they stayed there for 2 days. During the entire period, the prosecutrix did not even make a single attempt to inform or alert someone," noted the judge.

The Court considered the question, "whether a false promise was made on behalf of the accused to marry the victim ?"

Justice Brar highlighted that, "the absence of consent on the part of the woman is sine qua non to attract the offence of rape as defined under Section 375 IPC. While Section 90 IPC does not lay down all the necessary ingredients to constitute consent, it elucidates circumstances that would render consent irrelevant, for instance, when consent is given under misconception of fact, the incident cannot be deemed to be consensual."

Therefore, engaging in sexual relations with the victim on a false promise of marriage would invoke the offence under Section 375 IPC as the same is premised on a misconception of fact, the Court said.

The judge said that, the valid consent necessarily requires due and active consideration of all the relevant circumstances, actions, and consequences that flow from the said act, before assenting.

"Whatever choice one makes, it must be reasoned and adopted after being alive to all the probable outcomes. While adjudicating a case, the factum of consent is to be inferred after closely scrutinizing the surrounding and relevant circumstances," 

On obtaining consent on a promise to marry, the Court said that the Supreme Court, in a catena of judgments, has observed that there is a distinction between a false promise given by the accused at the very outset when he has no intention of following through and a promise made in good faith that could not be fulfilled due to intervening circumstances.

"In situations like the former, the conduct of the accused is explicitly laced with mala fide intentions ab initio and thus, the consent to any sexual activities obtained from the victim in furtherance of the same would stand corrupted...", added the Court.

In the present case, the Court noted that, "there is no allegation in the testimony or the statement of the victim that when the appellant promised to marry her, it was done in bad faith or with the intention to deceive her. Additionally as per the testimony of the victim, she had only met the appellant once prior to the day she decided to elope with him."

The judge opined that it cannot be ruled out with certainty that he was not willing to marry the victim. "In this backdrop it is unfeasible to find the essential ingredients for the commission of offence as punishable under Section 376 of IPC, to be present in the instant case," the Court opined.

In the light of the above, the Court allowed the plea and set aside the conviction stating that, "The appellant is hereby acquitted of the charges framed against him in the present case and his bail bonds and surety bonds also stand discharged."

Sheena Dahiya, Legal Aid Counsel for the appellant

Vikas Bhardwaj, AAG, Haryana

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