Tripura High Court
Sri Mridul Dey vs The State Of Tripura on 3 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 6
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
Crl. A No.50/2019
Sri Mridul Dey, S/o. Sri Mintu Dey, resident of village-Moshauli, P.S-
Kumarghat, District-Unakoti,Tripura.
----Appellant(s)
Versus
The State of Tripura.
----Respondent(s)
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For Appellant(s) : Mr. P. Roy Barman, Advocate.
Mr. Samarjit Bhattacharjee, Adv.
Mr. Kawsik Nath, Advocate.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Date of hearing
& judgment : 3rd January, 2020.
Whether fit for reporting : Yes No
√
JUDGMENT & ORDER (ORAL)
This appeal is filed by the original accused who has been convicted by the Sessions Court by the impugned judgment dated 03.02.2016 for offence under Section 417 of the Indian Penal Code and sentenced to rigorous imprisonment for six months. [2] Briefly stated the prosecution case was that the accused developed intimacy with the complainant who was a widow lady by giving her of false promise of marriage. Believing such promise the complainant allowed the accused to develop physical relations with her pursuant to which she also became pregnant and gave birth to a child who unfortunately died about a month later. The accused however, when reminded by the complainant of his promise of marriage, turned around and in fact pressurized her to get the fetus Page 2 of 12 aborted. A charge was, therefore, framed by the Sessions Court against the accused for commission of offences punishable under Sections 376, 417 and 506 of IPC. The prosecution examined eight witnesses including the complainant. The learned Trial Judge by the impugned judgment did not acquit the accused for offences punishable under Section 376 and 506 of IPC. However, on the basis that the accused had given a false promise of marriage, convicted him for offence under Section 417 of IPC. This conviction and sentence the accused has challenged in the present appeal. [3] PW-1, the complainant in her deposition stated that when her husband died a few years back, she had a two year old daughter. After the death of the husband the accused who was her husband's uncle's son, became friendly. They both developed love affair. She agreed to his proposal for marriage. Gradually they developed physical relationship on the understanding that the accused would marry her. This went on for about a year and a half during which the accused would frequently visit her when they would have sexual intercourse. On different occasions when she brought up the topic of marriage, he would ask her to initiate the proposal with his parents. She would argue that he had to manage with his parents. In the due course she got pregnant, this she informed to the accused. About four months later the accused stopped visiting her when she went to his house he repeated that if his parents agree he would marry her. She took her father to the parents of the accused who disowned the pregnancy having been caused by their son after which accused and his brother pressurized her to terminate the pregnancy. She thereupon lodged the criminal Page 3 of 12 case against the accused later on she gave birth to a male child who unfortunately died after about a month of delivery.
In the cross-examination the defence principally challenged the version of the witness that the accused had promised her to get married.
[4] PW-2, Nidhu Bhusan Dey is the elder brother of the complainant. He has no personal information about the entire episode. He was merely told by the complainant about the accused being responsible for impregnating her under promise of marriage. The evidence of this witness is thus purely hearsay. [5] PW-3, Rina Datta is the person on whose land the complainant resided. She also had no personal information about the involvement of the accused or of the alleged promise given by him to the complainant.
[6] PW-5, Sabita Dhar is the sister of the complainant. She also had no personal information, entire evidence is thus purely hearsay in nature.
[7] The prosecution examined the investigating officer as PW-7. He had narrated the steps taken by him during the course of the investigation.
[8] PW-8, Dr. Dipak Haldar, who was examined in order to prove the medical report of the complainant in which she was found at the advance stage of pregnancy.
Page 4 of 12[9] From the above evidence on record, it can be easily appreciated that in the context of the allegation of false promise of marriage by the accused, evidence of the complainant alone would be crucial. The rest of the witnesses have at best given peripheral information. However, insofar as the promise of marriage is concerned, no other witnesses would be directly relevant. [10] Before assessing the evidence of the complainant, PW-1 on this crucial aspect of the matter, a few incidental issues may be cleared. The fact that the accused and the complainant had a love affair seems hardly in doubt. The defence also has primarily challenged the version of the prosecution in respect of the so called false promise of marriage. The fact that the complainant and the accused knew each other is not in dispute. The complainant as well as other witnesses have referred to the visit of the accused to the house of the complainant after the death of her husband where she was residing alone with her daughter. Intimacy between the accused and the complainant, therefore, need not be in doubt. In fact the complainant had become pregnant for which she had also visited the health centre which had certified that she was at an advanced stage of pregnancy.
[11] The crux of such matter is did the accused give her a promise of marriage? Whether such promise was false at the very outset? and lastly, whether it was on account of the false promise that the complainant allowed the accused to have sexual intercourse with her?
Page 5 of 12[12] In this context the complainant herself in her deposition has stated that she knew the accused before the death of her husband. However, after about three months of the death of her husband the accused started visiting her. They had a love affair upon which they also developed physical relations. In this context the complainant has also stated that the accused promised to marry her. Quite apart from the version of the complainant being unreliable and unrealistic, her deposition is also not conclusive of the promise being false at the very outset. Even when she would remind the accused of his promise to get married, according to her the accused would urge her to persuade his parents for such marriage. The complaint would argue back that having fallen in love it was the responsibility of the accused to manage with his parents. Till this stage even the complainant does not allege that the accused had given a false promise of marriage which he never intended to keep. Even later portion of the deposition of the complainant proceeds along the same line. When she visited the accused at his house, according to this witness he repeated his stand that if his parents agree he would get married. When she approached the parents of the accused along with her father, the parents disowned the entire affair it was subsequent to this that according to this witness, the accused and his brother threatened her and pressurized her to terminate the pregnancy. [13] Entire tenure of the deposition of this important witness is that there was a love affair between the two and that after having given promise to marry her, the accused did not keep the promise. Even according to the complainant the accused did not disown the Page 6 of 12 promise of marriage but seems to have backed down due to the unwillingness of his parents to accept such a marriage. [14] It is by now well settled through series of judgments of the Supreme Court that in order to establish an offence of rape under Section 376 of IPC of sexual intercourse on the premise of false promise of marriage or for that matter for offence under Section 417 of IPC of cheating, the promise must be false at the very outset which the accused never intended to keep. Conversely the promise is genuine but later on not kept by the accused for any reason at all, his action would not amount to offence of rape or even commission of offence of cheating under Section 417 of IPC. In this context, the observations made by the Supreme Court in case of Tilak Raj Vrs. State of Himachal Pradesh; reported in (2016) 4 SCC 140 may be noted:
"16. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code,1860 (in short "IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in a relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of a copy of the FIR and the evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
19. The ingredients required to constitute the offence of cheating have been discussed by this Court in the case of Ram Jas v. State of U.P as under:Page 7 of 12
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
20. A careful reading of evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section 415 of IPC. For conviction of the appellant for abovesaid offence, it is important that all the necessary ingredients constituting an offence under the said section must be proved beyond reasonable doubt. In the instant case, the appellant cannot be convicted for the offence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt."
[15] In case of Pramod Suryabhan Pawar Vrs. State of Maharashtra and another; reported in (2019) 9 SCC 608 the Supreme Court in the context of a petition for quashing a complaint for offence of rape on the ground that the consent for sexual intercourse was obtained through false promise of marriage, referred to large number of judgments on the point made following observations:
Page 8 of 12
14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
Similar observations were made by this Court in Deepak Gulati v State of Haryana ("Deepak Gulati"):
"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused..."
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was Page 9 of 12 the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied)
17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these Page 10 of 12 circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:
"25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married..." (Emphasis supplied)
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To Page 11 of 12 establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
[16] Learned Public Prosecutor however, drew my attention to several decisions to which reference is needed in case of Anurag Soni Vrs. State of Chhattisgarh; reported in AIR 2019 SC 1857 the Supreme Court confirmed the conviction of the accused for offence under Section 376 of IPC in which the Court came to the conclusion that the accused had given a false promise of marriage and from the beginning he had no intention of marrying the prosecutrix as his marriage with another lady was already fixed long back. This was thus a crucial element which weighed with the Supreme Court in holding that the promise of marriage of the accused was false from a very begging.
[17] In the decision of learned Single Judge of this Court in Criminal Appeal(Jail) No.64/2016 in case of Sri Marendra Debbarma Vrs. The State of Tripura dated 27.06.2019 was cited in which the Court had confirmed the conviction of the accused for the offence under Section 376 of IPC. However, the said case rests completely on its own evidence and does not lay down any ratio which can be applied in the present case.
Page 12 of 12[18] In the result, judgment of the conviction and sentence of the accused rendered by the trial Court is set aside. Appellant is acquitted of all charges. Appeal is allowed and disposed of accordingly. Bail bond stands cancelled.
(AKIL KURESHI),CJ.
Dipankar