The single judge bench of the Jharkhand High Court held that when consent is obtained on a false promise of marriage there will be no consent and Section 376 will be attracted.
When such a promise of marriage is given after the physical relationship, the offense of rape will not be made out. Whether the promise of marriage preceded or followed a consensual physical relationship is a question of fact that will depend on the facts and circumstances of each case.
Brief facts
The factual matrix of the case is that the written report was lodged by the prosecutrix herself and in which it was alleged that she was a minor and aged about 15 years. The accused had a small shop in the front of their house and one day, she had gone to purchase some articles from his shop and the appellant forcibly committed sexual intercourse with her. However, the proposal of marriage was given after she opposed it. This went on for a while, and he began offering various justifications when she insisted on getting married. As a result, she became pregnant, and when she disclosed to her father a meeting was held in the Village in which the appellant/accused refused to marry her.
Thereafter, the case was registered under Sections 493 and 376 IPC. The trial court convicted the Appellant and the judgment of conviction and the order of sentence passed by the learned trial court is challenged by way of filing a present appeal.
Contentions of the Appellant
The Appellant contended that there was a delay in the lodging of an FIR and no plausible explanation was given for the same. It was furthermore submitted that the appellant was above 16 years old at the time of the incident and the incident took place in 2000, before the 2013 amendment came into force and under Section 375 IPC, the age of consent was 16 years. The victim was major at that time, therefore, in case of a consensual relationship, the offense of rape will not be made out.
The Appellant relied upon the judgments titled Tilak Raj vs. State of Himachal Pradesh, K.P. Thimmappa Gowda v. State of Karnataka, and Dhruvaram Murlidhar Sonar v. State of Maharashtra.
Contentions of the State
The State contended that the prosecutrix was first seduced on the false pretext of marriage and the consent was obtained under a false promise.
Observations of the court
The Hon’ble Court observed that for several months, the victim girl and the appellant had a sexual relationship that took place at different places both within and outside the home. Without the parents or other family members being aware of it, this went on unabated and unprotested. She reported the matter when she became pregnant, and the doctor said that at the time of her examination, the fetus was five and a half months old.
It was furthermore observed that the medical assessment of age and the evidence of the father leaves little doubt that the victim was more than 16 years old at the time of incidence and therefore Section 375(6) shall not apply.
It was noted that Section 376 will apply when consent is obtained on a false pretense of marriage. As a result, there will be no consent. Rape will not be established when a promise of marriage is made after a sexual relationship. Whether or whether a consensual physical relationship came before or after the promise of marriage is a factual determination that will vary depending on the facts of each case.
Based on these considerations, the court granted the benefit of the doubt to the accused.
The decision of the court
With the above direction, the court allowed the appeal.
Case title: Sumant Kumar Sen Vs The State of Jharkhand.
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No.: Cr. Appeal (SJ) No.870 of 2012
Advocates for the Appellant: Mr. R. S. Mazumdar, Sr. Advocate Mrs. J. Mazumdar, Advocate
Advocate for the State: Ms. Nehala Sharmin, SPP
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