The High Court of Jharkhand (Ranchi Bench) has held that where the accused, being already married, conceals that fact and induces the prosecutrix into a sexual relationship on a promise of marriage that was never intended to be fulfilled, the woman’s consent stands vitiated by “misconception of fact” under Section 90 IPC. In such a case, the conduct amounts to a false promise of marriage and not a mere breach of promise, warranting conviction under Section 376 IPC.
The Court further held that a conviction under Section 313 IPC cannot be sustained in the absence of concrete evidence proving that miscarriage was caused without the woman’s consent. Mere allegation, without medical records or examination of the treating doctor, was held insufficient to satisfy the ingredients of the offence. The appeal was therefore partly allowed, and the High Court upheld the conviction and sentence of the appellant under Section 376 IPC, but set aside the conviction and sentence under Section 313 IPC.
Since the appellant was on bail, the Court cancelled his bail bond and directed him to surrender before the trial court within two months from the date of judgment to undergo the sentence awarded under Section 376 IPC, subject to set-off for the imprisonment already undergone during trial. The Court further directed that if the appellant failed to appear within the stipulated period, the trial court should take coercive steps for his arrest and send him to jail custody under proper conviction warrant for serving the remaining sentence under Section 376 IPC.
A Single Judge Bench of Justice Pradeep Kumar Srivastava closely examined the evidence of the prosecutrix and noted that she consistently stated that the first act of sexual intercourse was forcible and committed on threat of life. The Bench also noted her evidence that thereafter the appellant proposed that he would keep her, bear her expenses and solemnize marriage with her, and that they lived together for 3–4 years during which she became pregnant twice. The Bench found it significant that the appellant had suggested that he was already married in 1997, while the defence brought nothing on record to show any exceptional circumstance that prevented marriage with the prosecutrix.
Referring to the distinction between a “false promise” and a “breach of promise” to marry, the Bench reiterated that consent is vitiated under Section 90 IPC only where the promise was false from the very beginning, given in bad faith, and directly connected to the woman’s decision to engage in the sexual act. On the facts, the Bench held that the appellant had concealed that he was already married and had induced the prosecutrix to continue the relationship under a pretext of marriage which was never intended to be fulfilled; therefore, this was not a mere breach of promise but a false promise of marriage that vitiated consent.
On the charge under Section 313 IPC, however, the Bench found no concrete evidence to prove that the appellant caused miscarriage without the prosecutrix’s consent. It noted that although the prosecutrix said she was treated by Dr. Shakuntala Pandey, no documentary evidence was produced and the doctor was not examined, and therefore the ingredients of Section 313 IPC were not established.
Briefly, the appeal challenged the trial court’s judgment convicting the appellant under Sections 376 and 313 IPC and sentencing him to seven years’ rigorous imprisonment for rape and five years’ rigorous imprisonment for causing miscarriage, with both sentences to run concurrently. The prosecution case was that the prosecutrix, a widow living at her parental home after her husband’s death, alleged that on Dec 10, 1999 the appellant forcibly committed rape on her in a forest area after threatening her with death.
According to the prosecutrix, after that incident the appellant allured her with a promise of marriage, continued sexual intercourse with her, and at one stage kept her in a rented house where they resided together for about 4–5 months. She alleged that she became pregnant twice and that the appellant got both pregnancies terminated by assaulting her abdomen, but ultimately refused to marry her, after which she lodged the FIR on Jan 06, 2004. At trial, the prosecution examined six witnesses including the prosecutrix, her parents, the doctor and the investigating officer, while the defence examined two witnesses and took the stand of denial and false implication.
