STATE OF KARNATAKA Vs. ANTHONIDAS

JUDGEMENT

(1.) WE have heard the learned SPP on merits because he has advanced a strong submission that on the facts of this case, the acquittal is unjustified. The contention advanced was basically that the facts unmistakably disclose that the accused had induced the complainant on the basis of assurance of marriage to submit to sexual intercourse which resulted in pregnancy. He has pointed out from the evidence that it was the accused who had taken her to the doctor for purposes of termination of the pregnancy and he has virtually jettisoned her thereafter. It was contended that technically, the offence under Section 376 1pc is established because this would be a case wherein the girl has agreed, has given her consent to sexual intercourse on the basis of false inducement. We have carefully scrutinised the evidence because there is a small category of cases which would come within the ambit of rape if the consent of the woman is obtained by playing fraud on her. That category of cases however is very small and the Section itself makes it clear that the fraud has got to be clearly established and the illustration given is that of an accused person who misleads a woman to agree to sexual intercourse on the mistaken belief that the accused is the husband. The evidence in this case only suggests that the accused had promised to marry the girl and that this was the reason why she has agreed to have sexual intercourse with him. This In our considered view is not sufficient to bring the act within the category of offences as contemplated under Section 376 I PC where fraud is involved because there is nothing to indicate that at the time of offence when the incident took place that the accused did not want to marry the girl. The evidence in this regard is extremely vague. Reading between the lines, we have no hesitation in holding that the consent was quite voluntary. The question of conviction under section 376 IPC will therefore have to be ruled out.

(2.) THE strongest submission advanced was that the accused has cheated the girl who would not have agreed to what had happened except on the basis of assurance given by him and the inducement held out. In sum and substance, the submission is that Section 417 ipc would apply in so far as the accused is alleged to have cheated the girl. Though in common parlance one may term a breach of promise of marriage as an act of cheating, one needs to take cognisance of the fact that as far as the I. P. C. is concerned, this category of cases clearly requires the ingredient of wrongful loss or wrongful gain which would be totally absent in a case of breach of promise of marriage. The learned SPP submitted that a person's reputation is property in the legal sense and that having regard to what has happened, even if the Court has to make an exception, that having regard to the consequence of such acts, the accused should not be allowed to get away. The moral aspects of the case are entirely different because even if a court or a society disapproves of the conduct of the accused in a Criminal Court, it would not be permissible to record a conviction unless the strict ingredients of law are satisfied. The ingredients of Section 415 IPC are very clear and in our considered view, the framing of a charge itself under section 417 IPC was misconceived. The evidence does not make out any case under this charge and therefore, the order of acquittal even under this head will have to be upheld.

(3.) THE last submission canvassed was that there is very clear evidence of miscarriage and the submission was that this would be actionable under Sections 312 or 313 IPC. Even though there is no charge under this head, it is permissible in given cases for a Court to convict of a lesser offence if the facts so justify for which reason, we have examined the argument. First of all, the facts do not make out any case of inducing a miscarriage. This is the most important ingredient in so far as the Section virtually punishes the doctor who is responsible for it and even assuming the learned SPP has submitted that it was done at the instance of the accused, we find from the evidence that there has been no inducement of a miscarriage because the girl was bleeding heavily when she was brought to the doctor and the, doctor has only thereafter done the "cleaning up operations" in medical terms, and has said so in the evidence that the miscarriage was not induced. How the bleeding commenced, is not clear from the evidence and one cannot rule out the possibility that the girl herself had made some attempts to get rid of the unwanted pregnancy. There might have been other good reasons as to how it happened which could have even been in natural course and therefore, even as regards this lesser offence it would not be possible to interfere with the decision of the trial Court.