A case of breach of promise rather than false promise to marry: Madras High Court upholds acquittal of cop in rape case

The Madras High Court recently had occasion to highlight the difference between the punishable offence of sexual intercourse induced on a false promise to marry, which would amount to the criminal offence of rape, and the breach of a genuine promise to marry which is not an offence. .Justice AD Jagadish Chandira referred to a number of case laws on the offences of cheating, rape and cohabitation or sexual intercourse by a man deceitfully inducing a belief of lawful marriage to render his finding in the case. .The case referred to included Anurag Soni Vs. The State of Chhattisgarh, Deepak Gulati v. State of Haryana and Tilak Raj v. State of Himachal Pradesh..Relying on these cases, it was recounted that for an offence to have arisen, it has to be shown that from the very beginning, the accused had given a false promise to marry and that the accused had no intention to marry the victim/ prosecutrix. .In such cases, there would be no consent for sexual intercourse as per Section 90 (defining "consent known to be given under fear or misconception") of the Indian Penal Code (IPC) and the accused would be guilty of the offence of rape (punishable under Section 376, IPC)..Having noted the legal position, the Court found that in the instant case there was no indication that the accused had made a false promise to marry, even if the accused had sexual intercourse with the complainant. ."It seems to be a case of breach of promise rather than a case of false promise to marry ... there is absolutely no evidence to suggest that at the initial stage itself the accused had no intention whatsoever of, keeping his promise to marry and that the false promise was made only to satisfy the lust," the Court said..Case background.The complainant alleged that she had initially met the accused police man at a Coimbatore eye hospital, where they exchanged numbers and sparked off a relationship. The accused cop is stated to have promised to marry her after his younger sister's marriage. On the complainant's insistence that he meet her father, the accused is stated to have visited her house in October 2013. .On that day, while her mother had stepped out to buy fish, the complainant alleged that he bolted the door to her room and forced her to have sex, while assuring that he would marry her. .The complainant further alleged that she had raised protest to having pre-marital sex, only for the accused to raise the volume of the TV to drown out the noise. She also claimed that he subjected her to unnatural sexual intercourse. Afterward, she submitted that they had food together following which he left around 4 pm without meeting her father. It was also alleged that the accused threatened to die by suicide if she were to disclose the incident to anyone else. .As per the complainant, she was unable to reach the accused in the days after despite her calls. Towards the end of November, he allegedly called and told her that he could not marry her as his parents were adamantly against the match since she was a Tamil and he a Malayali, and since they were from different castes. .She further stated that he gave her his blessing to marry someone else and said that he would be punished for his mistake before hanging up the phone. Unable to contact him thereafter, the complainant said that she tried visiting him in Kerala with her family. Upon finding that the accused and his family were evading them, the complainant lodged the first complaint in a Palakkad police station on December 12, 2013. .The case was eventually transferred to the Coimbatore police since the alleged offence had occurred in Coimbatore. .After trial, the accused was acquitted of all charges with the trial court finding discrepancies in the evidence given by the complainant and her mother. The trial court ultimately concluded that the prosecution had not proved its case beyond reasonable doubt. This trial court verdict was challenged by the complainant before the High Court. The State, however, chose not to file an appeal. .No perversity to interfere in trial court's findings: High Court.The High Court took note of the accused/respondent's contention that the scope of interference by an appellate court in cases of acquittal is limited to when the trial court's findings are perverse..The Court referred to various Supreme Court rulings to acknowledge this aspect. Inter alia, it was recounted that in cases of acquittal, "there is double presumption in favour of the accused", i.e. he is firstly presumed innocent until proved guilty and secondly, his presumed innocence is reinforced and strengthened by the trial court..The Judge further took note of rulings which cautioned that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused", and that the trial court would have "recorded the evidence and observed the demeanour of witnesses" before passing its judgement..Bearing these among other allied principles in mind, the Court ultimately re-affirmed the trial court's findings. The factual aspects weighing in the High Court's mind included:.1. That the complainant had not made the allegations of rape/ forced sexual intercourse in the first complaint she had made to the Kerala Police. The High Court remarked that there was "no whisper about any kind of sexual intercourse between her and the accused" in the first complaint. Rather, she is only stated to have alleged that the accused and she were deeply in love for over a year and that he had promised to marry her, but later breached this promise citing disapproval over the match by his parents. The Court was told that initially, the complainant had only sought the intervention of the police so that the couple may get married. It was only in later complaints/ statements that the complainant was found to have exaggerated events and claimed to have been raped. In this regard, the judgment noted:"The appellant had only stated that the 1st respondent had misused her and that since her father had scolded her using filthy words, she had attempted to commit suicide. No where in the complaint the appellant had stated that the 1st respondent / accused had induced her on the false promise of marrying her and committed sexual intercourse with her. Later after deliberation a subsequent complaint had been given by the appellant on 26.12.2013 with exaggerated facts which was in Malayalam and marked as Ex.P2 ... Even in the complaint dated 26.12.2013 nothing had been stated as if the 1st respondent/accused induced the appellant on the false promise, whereas an exaggerated version with improved allegations were given during the recording of statement u/s.164 Cr.P.C." 2. There were discrepancies noted in between the testimonies of the complainant and her mother. On the one hand, the complainant alleged that after the incident in October 2013, the accused had eaten with her and left by 4 pm. On the other hand, her mother stated that she returned home after buying fish to eat at around 2.15 pm, by which time the accused said that he needed to get back to Palakkad and left without seeing her husband/ the complainant's father. 3. The prosecutrix/ complainant being a matured girl was conscious of the consequences. The High Court noted that right from the beginning, she was aware that the accused man's family was opposed to the match and that their chance of getting approval for the marriage was very less. 4. It is clear that the accused did not have the intention to cheat the complainant right from the inception of the relationship. The High Court noted that as per the complainant's own admission, the love between them is still continuing and that it was only on account of the opposition by the family of the accused that the marriage could not be solemnised. Even assuming there had been sexual intercourse between them, the evidence of the complainant does not disclose that the accused had intended to cheat her right from the beginning and that the promise of marriage was made only to satisfy his lust, the Court concluded. It appeared that the marriage did not fructify due to reasons beyond the accused man's control, the Judge added. 5. The High Court also noted the submission that the trial Judge had seen the demeanour of the witness and found that there were inconsistencies and exaggerations in the complaint before acquitting the accused. .In this backdrop, the High Court proceeded to dismiss the appeal, finding that there was no perversity or illegality in the trial court's findings. ."The trial Court taking into consideration the grave contradictions in the statement of PW1/prosecutrix and her mother/PW2 had held that the evidence of PW1 with regard to rape/forceful sex has not been proved. Even assuming that there had been sexual intercourse between PW1 and the first respondent a burden is cast on the prosecution to prove that the consent of the prosecutrix was obtained by playing fraud or deceit and that the accused right from the beginning had no intention of marrying the prosecutrix and that the promise was made only to satisfy his lust ... The trial Court after giving cogent and convincing reasons had acquitted the accused. This Court does not find any illegality or perversity in the impugned judgment of acquittal," the High Court said. .Advocate Dr P Vasudevan appeared for the appellant/ complainant, advocate Kingston Jerold appeared for the respondent/ acquitted police officer and government advocate Saradha Devi appeared for the State.