The validity of consent in cases involving a false promise to marry and the application of Section 90 of IPC to determine the impact of a false promise on consent.

JUDGMENT

(Prayer: Criminal Revision petition filed under Sections 397 and 401 Criminal Procedure Code, to set aside the judgement dated 24.11.2016 in Criminal Appeal No.13 of 2016 on the file of the learned 3rd Additional Sessions Judge, Kallakurichi confirming the conviction and sentence passed by the learned Assistant Sessions Judge, Kallakurichi in Sessions Case No.332 of 2008 dated 29.02.2016.)

1. This revision challenges the Judgment passed by learned III Additional Sessions Judge, Kallakurichi in Crl.A.No.13 of 2016 dated 24.11.2016 confirming the Judgment of the learned Assistant Sessions Judge, Kallakurichi in Sessions Case No.332 of 2008 dated 29.02.2016. The trial Court convicted the petitioner for the offence under Section 376 IPC and sentenced him to undergo 7 years RI and to pay fine of Rs.1000/- in default to suffer 3 months RI; and for the offence under Section 417 IPC and sentenced him to undergo Imprisonment for 1 year RI and also to pay a compensation of Rs.5,00,000/- to the victim for her physical and mental sufferings.

2. The case of the prosecution is that the Victim P.W.1 and the petitioner were in love with each other for two years prior to 05.03.2005. They both belonged to the same village and the petitioner had sexual intercourse with the victim on several occasions by making a promise to marry her. The victim on becoming pregnant informed the petitioner and he replied that he would consult his parents and then would marry her. Meanwhile, the parents of the petitioner started making arrangements for getting the petitioner married to another girl and on 05.03.2005 when the Victim went to the house of the petitioner, his parents and his brother, abused her.

3. The prosecution examined nine witnesses and marked Ex.P1 to Ex.P.15 to prove the charges against the accused. The petitioner was tried along with his mother and brother. The mother and brother were charged for the offence under Section 4 of Tamil Nadu Prohibition of Women Harassment Act 2002.

4. The trial Court convicted the petitioner for the offences under Sections 417 and 376 IPC and sentenced to imprisonment as stated earlier. The trial Court acquitted the remaining two accused of the offence under Section 4 of Tamil Nadu Prohibition Women Harassment Act. The Appellate Court confirmed the finding of guilt and sentence imposed by the trial Court.

5. Heard Mr.N.Suresh, learned counsel for the petitioner and Mr.S.Sugendran, Additional Public Prosecutor for respondent.

6. Mr.N.Suresh, the learned counsel for the petitioner submitted that the evidence of the victim namely P.W.1 would suggest that the petitioner and the victim had consensual relationship and there is no evidence to suggest that the petitioner had committed rape on the victim. The learned counsel also submitted that the petitioner did not commit the offence under Section 417 of IPC, as he had no intention to cheat the victim and he had subsequently married the victim. Initially, he could not get married for reasons and circumstances which were beyond his control. In any event, it would at the worst amount to breach of promise and not cheating. The learned counsel for the petitioner submitted that the victim had voluntarily consented to sexual intercourse and the consent was neither due to fear nor misconception of fact and hence it was a valid consent. Hence, he submitted that the offence under Section 376 IPC would not be attracted. The learned counsel for the petitioner relied upon the following decisions in support of his submissions: -

(i) Uday vs. State of Karnataka reported in 2003 (4) SCC 46.

(ii) Deelip Singh @ Dilip Kumar Vs. State of Bihar reported in 2005(1) SCC 88.

(iii) Deepak Gulati vs. State of Haryana reported in 2013 (7) SCC 675.

(iv) Sam vs State rep by the Inspector of Police, Coimbatore, reported in 2016(4) MLJ (Crl) 558.

(v) Pramod Suryabhan Pawar vs. The State of Maharashtra and Another reported in (2019) 9 SCC 608.

(vi) Thiruvasagam vs. State by Inspe