Rape Conviction Set Aside; Says Marriage Promise Wasn’t Necessarily False Even If He Didn’t Finally Marry

Kalam Sk vs The State of West Bengal

Calcutta HC

20/09/2018

C.R.A. No. 384 of 2008

About/from the judgment:

The High Court allowed an appeal filed by a man convicted of rape by establishing sexual relations with a woman on false promise of marriage.

 

Justice Rajasekhar Mantha opined that the promise of marriage made by the appellant wasn’t proven to be false as the plans for the couple’s marriage were essentially thwarted by the appellant’s father who refused to give his permission for the same.

 

“From the facts of the instant case as set out hereinabove it has not been proved that the appellant had no intention to marry the prosecutrix at the first time of intercourse. In fact it has not been proved even subsequently that the appellant had no intention to marry the prosecutrix. It is only when the father of the appellant had refused to accept the prosecutrix as his daughter-in-law that the actual marriage did not take place. In addition to that the repeated occasions on which the prosecutrix voluntarily had intercourse with the appellant totally disproves absence of consent,” Justice Mantha noted.

 

The Court was hearing an appeal filed by one Kalam Sk, challenging a judgment passed in March, 2008, wherein he was convicted for rape under Section 376 of the Indian Penal Code.

 

The prosecutrix had submitted that both the parties were in a love affair for one and a half years, during which time they cohabited regularly. She, in fact, got pregnant and gave birth to the appellant’s child as well. On the love affair being disclosed to the prosecutrix’s mother, she approached the appellant’s father, who then refused to give his consent for their marriage. With the marriage not coming through, the prosecutrix then alleged rape.

 

The high court, however, now noted that the Sessions Judge had ignored certain vital facts:

 

“(a) Immediately after the first instance and if it were against the consent of the prosecutrix, she should have informed her mother immediately which she did not.

 

(b) The appellant is stated to have promised to marry her at the relevant point of time when he would subsequently become financially sound. This fact has not been disproved.

 

(c) The prosecutrix continued to have intercourse on numerous occasions for one year four months with the appellant.

 

(d) It was never proved that the appellant on the first occasion did not have intention to marry the prosecutrix. It is only the father of the appellant who refused to take the prosecutrix as his daughter-in-law.

 

(e) There was admittedly a love affair and mutual attraction between the appellant and the prosecutrix.”

 

It then concluded that there was no misconception of fact on the part of the prosecutrix leading her to have intercourse with the appellant. Consent, it opined, had neither been obtained under threat of injury nor factual misconception, adding,

 

“The above clearly indicates that the sexual intercourse between the appellant and the prosecutrix was neither without consent nor performed under any false promise of marriage. By reason of the aforesaid the appellant could not have been convicted under Section 376 of the IPC.”

 

Granting the appellant benefit of doubt, the court, therefore, allowed the appeal, while lamenting the fact that the appellant had already undergone the entire sentence since no bail had been granted to him. The prosecutrix was, however, directed to refund the amount of Rs.30,000 if the same had been paid by him, with interest at the rate of 6 % per annum from the date of the conviction till the date of actual repayment.

Read the Judgment

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