Mohd. Akram Vs. The State of Madhya Pradesh - (High Court of Madhya Pradesh) (29 Oct 2018)

Mere breach of promise without mala fide intention cannot amount to deception

MANU/MP/0523/2018

Criminal

The Appellant has preferred present appeal against the judgment passed by the trial Court whereby the Appellant has been convicted for the offence under Section 376(2)(n) of the Indian Penal Code, 1860 (IPC) and sentenced to undergo RI for 10 years with fine of Rs. 2,500, in case of default further undergo 3 months R.I. the only question for consideration is that whether the Applicant committed sexual intercourse with the prosecutrix with her consent or will.

The Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana has held that, the prosecution has to prove the fact that, the Accused acted with mala fide intention of seducing prosecutrix by making false promise of marriage and not keeping his promise. But mere breach of promise without mala fide intention cannot amount to deception. Prosecutrix (PW-3) has categorically stated that, the sexual intercourse was committed by the Applicant with her consent, but she give her consent because the Applicant promised her to marry her and thereafter he refused to marry with her.

The prosecutrix was 21 years old, who had adequate intelligence and maturity to fully understand the significance and morality associated with the act she was consenting and she was conscious of the fact that, her marriage may not take place in case of refusal of the parent of the Applicant. Further, it was difficult to impute to the Applicant, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. Further, there is no evidence on record to establish the fact that, the Applicant had never intended to marry the prosecutrix and made promise simply to get her consent only to satisfy her lust.

It can't be held that, the prosecution has succeeded to establish the fact beyond the reasonable doubt that the Applicant committed sexual intercourse with the prosecutrix without her consent or will. Hence, the finding of the learned trial Court with regard to commission of rape by the Applicant cannot be upheld. Therefore, Applicant’s conviction and sentence under Sections 376(2) (n) of the IPC is set aside and he is acquitted of the aforesaid charge. Accordingly, this appeal is allowed.

Relevant : Deepak Gulati vs. State of Haryana MANU/SC/0546/2013

Tags : CONVICTION CONSENT LEGALITY