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The Calcutta High Court bench of Justice Joymalya Bagchi and Justice Bivas Pattanayak opined that it would be incorrect to punish someone for the offence of rape if the promise to marry did not fructify due to the subsequent events, namely, opposition from family elders which is not attributable to the accused.

The Bench was hearing an appeal against order of Additional District & Sessions Judge, Fast Track First Court, Islampur, Uttar Dinajpur under Section 376 of the Indian Penal Code and which had sentenced accused to imprisonment for 10 years and a fine of Rs. 50,000/-, in default to suffer further imprisonment for one year.

The prosecution alleges that the accused cohabited with the victim girl, who is a minor, on the false promise of marriage. As a result, the girl became pregnant. When she asked the accused to marry her, he evaded the issue. Appellant had last cohabited with the victim on February 16, 2010 at 8.30 pm in a bamboo grove. The matter came to the knowledge of the family members. A salish was held. At the salish, the man refused to marry the victim girl due to strong objection of his family members.

Under such circumstances, the victim girl lodged a First Information Report (FIR) with the police resulting in registration of Chakulia Police Station Case No. 61 of 2010 dated March 1, 2010 under Sections 376/ 493 of the Indian Penal Code.

The counsel for accused, however, argued that the victim was a consenting party and that the accused was a young person and there was free mixing between the parties. Marriage between the couple could not fructify due to resistance of the parents of the man. Hence, the appeal ought to be allowed, it was argued.

Per contra, the State submitted that the victim was a minor at the time of occurrence and the man had forcibly ravished the girl on the first occasion. Thereafter, he had repeatedly cohabited with the victim on the false promise of marriage. Hence, the appeal is liable to be dismissed.

Order

The Court allowed the appeal of the accused noting that it is difficult to accept that the initial cohabitation was forceful as such allegations are significantly absent in the FIR.

“It is argued that the appellant had agreed to marry her but the marriage could not fructify due to resistance of his parents. Hence, it cannot be said that the appellant did not intend to marry her at the time when they cohabited,” the Court observed.

The bench stated that mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception.

It further said that evidence had come on record that the accused man and the victim girl wanted to marry each other and cohabited. As a result, she became pregnant but due to resistance of the parents of the man, the marriage was not held.

“Thus, it cannot be said that the appellant did not have intention to marry the victim at the time when they cohabited but such marriage was not possible due to obstruction from elders in the family,” the Court noted.

The Bench further noted that the cohabitation was consensual. The victim girl at the time was above 16 years of age, hence had “crossed the age of consent.”

“It would be incorrect to punish the appellant as the promise to marry did not fructify due to subsequent events, namely, opposition from family elders which is not attributable to him,” the Court concluded.

Hence, the Calcutta High Court bench set aside the conviction and sentence and acquitted the accused.

Cause Title: Saddam Hussain vs State of West Bengal