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2023 Supreme(Online)(KER) 8471
HIGH COURT OF KERALA
V. G. Arun, J
EBY BENNY – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 139 2023
ALI, M.CHERIAN, K.M.RAPHY, BRISTO S PARIYARAM, AJAI ALIAS CHALAPPURAM, VIVEK RADHAKRISHNAN, ARUN C.S.
A mere breach of promise to marry, where mutual consent is present, cannot constitute rape, particularly involving a married woman.
Headnote:
Rape - Sexual Offences - Indian Penal Code - Sections 376, 307 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - Section 3(2)(v) - The court considered that a mere breach of promise to marry does not amount to rape, especially involving a consenting married woman.
Fact of the Case:
The appellant, a Christian, engaged in a sexual relationship with a married woman from the Hindu Pulaya community under false promises, which led to allegations of rape and attempted murder after a suicide attempt involving poison.
Finding of the Court:
The court found factual merit in the claim of attempted murder but rejected the rape charges, highlighting that a breach of promise to marry does not constitute rape, especially with a consenting married woman.
Issues: Whether the allegations of rape and attempted murder are substantiated, considering the complainant's marital status and consent.
Ratio Decidendi: Every breach of promise to marry cannot be equated with rape unless there is coercion; consensual relationships, even under false pretenses, complicate allegations of sexual offences.
Final Decision: The appeal was dismissed; the court upheld the need for further investigation into attempted murder allegations.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 23RD DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 CRL.A NO. 139 OF 2023 ORDER DATED 12.1.2023 IN CRMC 2894/2022 OF SESSIONS COURT, ERNAKULAM APPELLANT/S:
EBY BENNY AGED 30 YEARS ILLICKAL HOUSE, ARUVAPPARA P.O KURUPPANPADI, PERUMBAVOOR ERNAKULAM DISTRICT, PIN - 683545 BY ADVS.
ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM AJAI ALIAS CHALAPPURAM VIVEK RADHAKRISHNAN ARUN C.S.
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE KURUPPANPADI POLICE STATION, PERUMBAVOOR ERNAKULAM DISTRCIT, PIN - 683545
2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS.
PUBLIC PROSECUTOR Shibu Varghese OTHER PRESENT:
PP M.C.ASHI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.02.2023, THE COURT ON 23.02.2023 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 23rd day of February, 2023 The appellant is the first accused in Crime No.1009 of 2022 registered at the Kuruppanpadi Police Station for offences under Sections 376 , 376(2)(n), 420, 307, 379 and 506 of Indian Penal Code r/w Section 3 (2)(v), (3)(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 ('the SC/ST (PoA) Act' for short). The other accused in the crime is the appellant's father.
2. The crime is registered based on a complaint filed by the de facto complainant/second respondent raising the following allegations. The second respondent belongs to the Hindu Pulaya community and the accused persons are Christians. The second respondent is a married lady and had a son. Her husband abandoned her and her son committed suicide. While she was living alone, the appellant befriended her and later had sexual intercourse with her by making a false promise of marriage. The affair continued for more than a year. While so, the second respondent came to know that the appellant is planning to marry another lady and the betrothal ceremony was to be held on 11.09.2022. On being questioned about this, the appellant said that he had consented for the betrothal at the insistence of his parents and the second respondent should come over and inform about their relationship to the proposed bride's family. Accordingly, on 11.09.2022, the second respondent reached the venue and showed some of her intimate photographs with the appellant to the proposed bride's relatives. Thereupon, they withdrew from the engagement. Thereafter, on 26.09.2022 at about 11.00 p.m, the de facto complainant reached the appellant's house with a bottle of poison, since the appellant had told her that they will commit suicide together as his family will not permit them to live together. On the second respondent reaching the appellant's house, he came out and they went and sat near the Periyar Valley Canal. Then, at the instance of the appellant, second respondent took a gulp from the bottle containing poison. When the appellant tried to pour more poison into her mouth, she refused. According to the second respondent, after consuming the poison she was in a semi-conscious state. During that time, the appellant took off her gold bangle and left the place in her scooter. The second respondent somehow managed to reach the appellant's house and fell unconscious in the courtyard. From there, she was taken to the hospital and recovered after a few days. Thereafter, the second respondent went to the police station and lodged the complaint.
3. Learned Counsel for the appellant contended that the allegations raised by the second respondent are patently false and ill- motivated. Even if there was consensual sexual relationship between the parties, that cannot be termed as rape. The second respondent being a married lady, cannot allege that she was duped into having sex with the appellant. The Apex Court inNaim Ahamad v State (NCT of Delhi) [2023 SCC OnLine SC 89] has held that it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence of rape. Sim
