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2020 DIGILAW 846 (KER)

Balan, S/o. Koran v. Leela, D/o. Kunhappa

2020-10-09

N.ANIL KUMAR

body2020
ORDER : This Criminal Revision Petition is directed against the impugned judgment and order dated 12.9.2006 in Crl.A.No.245/2001 of the Additional Sessions Court (Adhoc-III), Thalassery whereby it had dismissed the Criminal appeal filed by the revision petitioner and had upheld the conviction and sentence passed by the Judicial First Class Magistrate Court-II, Kannur in C.C.No.48/1998 against the revision petitioner for the offence punishable under Section 417 of the Indian Penal Code (hereinafter referred to for short as 'the IPC'). 2. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties. PW1, Leela filed a complaint before the trial court under Section 417 of the IPC. After recording the sworn statement of the complainant, the cognizance was taken for an offence under Section 417 of IPC. The prosecution case was that the accused developed intimacy with the complainant, who was a spinster, by giving her a false promise of marriage. Believing such promise, their relationship subsequently became very strong, the complainant permitted the accused to develop physical relationship with her several times. In the year 1990, the accused had gone abroad in search of a job. While so, he used to send letters to her promising to marry her. When he came on leave for six months, both of them used to see each other and continued their relationship as before. On 18.2.1993 and 20.2.21993, they had physical relationship with each other. On 21.2.1993, the accused left for the Gulf countries promising to marry her when he came on leave the next time. During the year 1996, the accused returned to his native place. The accused, however, when reminded by the complainant of his promise of marriage, was not only turned down and in reality, he had made various proposals to many and ultimately married one Kakkamani Rajini. According to the complainant, when she had questioned the accused, touching his above conduct, he had stated on 3.1.1998 that he had no intention to marry her. Allegation of sexual exploitation on the pretext of a promised marriage is the substance in the complaint. 3. Heard Sri.Grashious Kuriakose, the learned Senior Counsel for the revision petitioner, Sri.P.U.Shailajan, learned counsel for the 1st respondent and Sri.M.S.Breez, learned Public Prosecutor for the State. 4. Allegation of sexual exploitation on the pretext of a promised marriage is the substance in the complaint. 3. Heard Sri.Grashious Kuriakose, the learned Senior Counsel for the revision petitioner, Sri.P.U.Shailajan, learned counsel for the 1st respondent and Sri.M.S.Breez, learned Public Prosecutor for the State. 4. The learned counsel for the revision petitioner submitted that both the trial court and the appellate court have failed to appreciate the facts of the case in actual and correct perspective and the judgments are based on surmises and conjectures. It is further contended that the evidence of the 1st respondent is not clear and specific and the same suffers from material inconsistencies and contradictions with the evidence on record. While concluding his submissions, the learned counsel submitted that there is no evidence on record to suggest that the revision petitioner, on the false pretext of marriage with the 1st respondent and in furtherance of his intention from the very beginning, induced her to surrender to him for sexual intercourse. 5. Per contra, the learned counsel for the 1st respondent sought to justify the conviction and sentence on the ground that the same is in accordance with law. The learned counsel for the 1st respondent/complainant submitted that it has been proved on record that the complainant was an unmarried woman and the accused allured her to commit sexual intercourse on the pretext of marriage and after exploiting her sexually and after fulfillment of his sexual desire, he had chosen to violate his promise of marriage. Hence it is contended that the offence under Section 417 of the IPC is proved against the accused beyond doubt. 6. Although the case of the complainant is that the accused developed intimacy with her for a considerable long period of time prior to his marriage and he allured and ravished her on the pretext of marriage, the complaint was filed before the trial court for the offence under Section 417 of the I.P.C. only. The learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence punishable under Section 417 of the IPC on the basis that the accused had given a false promise of marriage. 7. Ext.P2 marriage certificate would go to show that the accused married one Rajini. The learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence punishable under Section 417 of the IPC on the basis that the accused had given a false promise of marriage. 7. Ext.P2 marriage certificate would go to show that the accused married one Rajini. It is a fact that prior to this, both the accused and the complainant had developed a love affair and he readily agreed with the proposal of marriage. Slowly they had developed a physical relationship on the understanding that the revision petitioner would marry her. While in the Gulf countries, the accused used to write letters to the complainant. Ext.P1 series of letters are self explanatory in this regard. The fact that the love affair went on for a considerable long period of time, during which the accused used to frequently visit her and had physical contact with her is evident from Ext.P1 series in which the accused has specifically put in writing his promise to marry her. Ext.P1 series are emotional in nature. PW1 adduced evidence to show that Ext.P1 series had been written by the accused in his handwriting while he was working in Gulf. The letters are not denied by the accused during the trial of the case. 8. PW1 testified that the accused had left his job in Gulf in 1996. She stated that until 15.11.1997, they had continued their physical relationship. According to her, later she came to know that the accused was in search of a bride. On 25.12.1997, she went to the residence of accused and expressed her desire to marry him. She further deposed that since the accused had turned down his promise, there was a mediation talk between them and thereupon, the accused expressed his readiness to marry her. It is her case that thereafter, in breach of the promise, the accused proposed with Kakkamani Rajini and married her as per Ext.P2. In the cross-examination, the learned counsel for the revision petitioner/accused mainly challenged the version of PW1 that he made a promise to marry her and induced her to subject her for sexual intercourse. Ext.P1 series of letters would show the depth of the relationship between the complainant and the accused. Ext.P1 letters corroborate the oral testimony of PW1. PW1's evidence would show that she gave consent believing the accused. Ext.P1 series of letters would show the depth of the relationship between the complainant and the accused. Ext.P1 letters corroborate the oral testimony of PW1. PW1's evidence would show that she gave consent believing the accused. Although her case is that consent for sexual intercourse had been given under some misconception of marriage, she did not pursue her case for the offence under Section 376 of the IPC. She filed the complaint for the offence under Section 417 only. As far as the offence under Section 417 is concerned, a close scrutiny of her evidence along with Ext.P1 series is material. From the above evidence on record, the fact that the revision petitioner-accused and the complainant had a deep-rooted love affair seems hardly in doubt. 9. A careful reading of the evidence on record would show that the complainant and the accused knew each other. Ext.P1 series letters would reveal the intimacy between the accused and the complainant. It has come out in evidence that the accused had a consensual sexual relationship with PW1 after he had promised to marry her and went back on his word and married someone else. 10. India is still largely conservative when it comes to matters of sex and sexuality. The accused married another woman although he had promised to marry the complainant and had premarital sex with her. The learned counsel for the complainant submitted that she remains unmarried even now whereas the accused is leading a happy life with children in breach of the promise made to her. It is true that virginity is priced more and a woman, who is known to have had premarital sex, may find it hard to get into wedlock with another person. PW1's case is no exception to this general belief. She suffered the same stigma in society. When this case came up for hearing on 25.10.2018, this Court referred the case to the Mediation Centre attached to the District Court, Thalassery for settlement. However, no settlement was arrived at between the parties. Learned counsel for the first respondent/complainant submitted that she was unwilling to settle the matter in terms of money. 11. It is clear from the evidence of PW1 that the accused had actually no intention to marry her. He came back from Gulf and had physical relationship with her. Thereafter, he left for Gulf and accumulated requisite wealth for a secured future. 11. It is clear from the evidence of PW1 that the accused had actually no intention to marry her. He came back from Gulf and had physical relationship with her. Thereafter, he left for Gulf and accumulated requisite wealth for a secured future. He came back in 1996 for good and started searching for a bride. His conduct would eloquently show that he had mala fide motives from the start and made a false promise in order to satisfy his lust. There is nothing on record to show that he actually intended to marry PW1, but had changed his mind later. This is not a case where both the accused and PW1 out of their own free will had developed consensual physical relationship and when the relationship became strained due to reasons best known to the parties, she used the penal provision for rape as a weapon for vengeance against the accused. PW1 did not make any attempt to implicate the accused in a rape case although she alleged that the accused managed to obtain her consent by deceit. Hence, under no circumstances, it can be said that PW1 converted the long standing relationship as an incidence of rape out of anger and frustration that had happened in her life. Evidently, this is a case where PW1 had given her consent for physical relationship on promise of marriage. Ext.P1 series would show that the accused had given a false promise of marriage to PW1 and thereafter committed sexual intercourse with her. He persistently told her that he could not live without her company. It is clear from his conduct that he had made a representation deliberately with a view to obtain her consent without having the intention to marry her and such act of the accused would definitely come within the purview of 'cheating'. The term 'cheating' is defined under Section 415 of the Indian Penal Code. Section reads as follows:- “415. It is clear from his conduct that he had made a representation deliberately with a view to obtain her consent without having the intention to marry her and such act of the accused would definitely come within the purview of 'cheating'. The term 'cheating' is defined under Section 415 of the Indian Penal Code. Section reads as follows:- “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” 12. As mentioned above, Section 415 of the IPC has two parts. In the first part, the person must dishonestly or fraudulently induce the complainant to deliver any property; and in the second part, the person should intentionally induce the complainant to do or omit to do anything which he would not do or omit if he was not so deceived. Evidently, in the first part, the inducement must be dishonest or fraudulent whereas in the second part, the inducement must be intentional. Needless to say that in order to constitute an offence of cheating, the intention to deceit should be in existence at the time when the inducement was offered. In the second part of Section 415 of the IPC, 'property' at no stage is involved. It is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. That apart, such inducement should result in doing of an act or omission to do an act by the complainant as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property. 13. Evidence tendered by PW1 coupled with Ext.P1 series would show that the accused made a false promise to marry her and believing such a promise, she had on his request agreed to have sexual relationship with him. 13. Evidence tendered by PW1 coupled with Ext.P1 series would show that the accused made a false promise to marry her and believing such a promise, she had on his request agreed to have sexual relationship with him. The learned counsel for the complainant would contend that the offence in this case falls within the ambit of Section 415 IPC as enumerated hereinabove. 14. In Mahadeo Prasad vs State of West Bengal [ AIR 1954 SC 724 ], the Apex Court held that in order to constitute an offence of cheating, the intention to deceit should be in existence at the time when the inducement was offered. In G.V. Rao vs L.H.V. Prasad & Ors [ (2000) 3 SCC 693 ], the Apex Court followed the decision in Mahadeo Prasad's case (supra) and held that in order to constitute an offence of cheating, an intention to deceit should be in existence at the time when inducement was offered. 15. A careful reading of the evidence would show that there is evidence against the accused from which it can be conclusively inferred that there was fraudulent or dishonest inducement of the complainant by the accused to constitute an offence under Section 415 of the IPC. 16. In the case of Pramod Suryabhan Pawar v. The State Of Maharashtra & others [ (2019)9 SCC 608 ] Court in the context of a petition for quashing a complaint for offence of rape on the ground that the consent for sexual intercourse was obtained through false promise of marriage, referred to a catena of decisions on the point and observed in paragraph 14 of the judgment as follows:- “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh [ (2019) 13 SCC 1 ], this Court held: “37. In Anurag Soni v State of Chhattisgarh [ (2019) 13 SCC 1 ], this Court held: “37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the Indian Penal Code and can be convicted for the offence under Section 376 of the Indian Penal Code.” Similar observations were made by this Court in Deepak Gulati v State of Haryana [ (2013) 7 SCC 675 ]. “21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…” 17. In the above context, the learned counsel for the revision petitioner relied on the observation made by the Supreme Court in Tilak Raj vs State Of Himachal Pradesh [ (2016)4 SCC 140 ], and contended that it is admitted by the complainant in her testimony before the trial court that she was in a relationship with the accused for the last more than six years prior to the incident and the accused used to meet her very often. It is further contended that they were in an intimate relationship and she well knew the consequences of allowing a male friend to share her bed. According to the learned counsel for the petitioner, the act seems to be consensual in nature. In the present case, the facts are different. It is proved that from the very inception, the accused, who gave the promise to the complainant to marry, did not have any intention to marry and the complainant gave the consent for sexual intercourse on such an assurance by the accused that he would marry her. In the present case, the facts are different. It is proved that from the very inception, the accused, who gave the promise to the complainant to marry, did not have any intention to marry and the complainant gave the consent for sexual intercourse on such an assurance by the accused that he would marry her. Such a consent cannot be said to be a consent obtained from the complainant and such a consent would not excuse the accused from the purview of 'cheating' as defined under section 415 of the IPC. It is clear that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her and PW1 under a misconception of fact submitted to sexual intercourse with him. It is clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused was not bona fide right from the beginning. This is not a case, where the accused having the best intention, was unable to marry the complainant owing to various unavoidable circumstances. She went to the residence of the accused and pleaded with him. A mediation talk was conducted. The accused readily agreed to marry her. Thereafter, the accused cheated her and married as per Ext.P2. The conduct of the accused was reprehensible. These are all circumstances to prove that PW1 submitted to the lust of the accused completely being misled by the accused, who held out the promise for marriage. This kind of promise with clear intention not to fulfill the promise and persuading her to believe that he is going to marry her and obtained her consent for sexual intercourse cannot be treated to be free consent. Thus the act is not consensual in nature. 18. The trial court as well as the appellate court concurrently found that the promise to marry is false and the intention of the accused at the time of making the promise itself was not to abide by it but to deceive PW1 to convince her to engage in sexual relations. Accordingly, he was convicted and sentenced to undergo simple imprisonment for one year under Section 417 of the IPC. The scope of revision is limited. Accordingly, he was convicted and sentenced to undergo simple imprisonment for one year under Section 417 of the IPC. The scope of revision is limited. Unless there is substantial reason to hold that the appellate court is perverse, or founded it on misinterpretation of evidence, it would not be proper to interfere with the finding of facts. The revisional court would not, normally, interfere with the finding of fact unless it can be said that the interference is called for in order to prevent miscarriage of justice. On a perusal of the entire evidence, this Court is of the view that this is not an exceptional case of procedural irregularity or overlooking of material evidence which results in flagrant miscarriage of justice. Both the trial court and appellate court meticulously considered the entire evidence in detail and appreciated the evidence in the correct perspective. Accordingly the accused was rightly convicted under Section 417 of the IPC. 19. The offence is said to have been committed prior to 3.1.1998. The accused was only 36 years old in 1998. The learned counsel for the revision petitioner submitted that the sentence imposed on the revision petitioner is too harsh and disproportionate with the nature of offence. The revision petitioner is now 58 years old and is leading a family life. The offence punishable under Section 417 of the IPC is purely private in nature and no public interest is involved. PW1 is now aged 62 years. She remains unmarried. She is not willing to settle the matter in terms of money on moral grounds. Section 417 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to one year or with fine or with both. The complainant as well as the accused have been conducting the case for the last 19 years. 20. Considering all the above circumstances, while confirming the conviction under Section 417 of IPC imposed by the trial court, as well as the appellate court, this Court is of the view that the sentence under Section 417 of IPC can be modified. The complainant as well as the accused have been conducting the case for the last 19 years. 20. Considering all the above circumstances, while confirming the conviction under Section 417 of IPC imposed by the trial court, as well as the appellate court, this Court is of the view that the sentence under Section 417 of IPC can be modified. Instead of sentencing the accused to mandatory imprisonment for one year, the sentence is reduced to simple imprisonment for one day till the rising of the court and also to pay a compensation of Rs.1,00,000/-(Rupees One Lakh only) to the first respondent/complainant under Section 357(3) of Cr.P.C. and in default of payment of compensation, to undergo simple imprisonment for a period of six months more. If the revision petitioner is unable to pay the compensation directly, the same can be deposited before the trial court and in that event, the complainant is allowed to withdraw the same from the trial court. In view of the Covid-19 Pandemic and the resultant financial crunch, this Court is inclined to grant three months' time from today to the revision petitioner to deposit the compensation amount before the trial court. The revision petitioner/accused is directed to appear before the trial court on 15th January, 2021 to receive the sentence with sufficient proof to show payment of compensation failing which the trial court shall take necessary steps to execute the sentence against the revision petitioner/accused in accordance with law. The criminal revision petition is allowed in part accordingly.