Bipul Medhi and Others v. State of Assam), wher ein, it was held that mere failure to fulfill the
Case Details
Crl.A. 124/2010 BEFORE HON’BLE MR.JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER(ORAL) By filing this appeal, the appellant has challenged the judgment and ord 1. er dated 16.6.2010 passed by the learned Sessions Judge, Dibrugarh in Session Ca se No.02/06, whereby the appellant was convicted under Section 417 IPC and sente nced to undergo RI for 1 (one) year and to pay a fine of Rs.5,000/- in default t o undergo RI for 6 (six) months. 2. The facts leading to the filing of this appeal may be stated in brief as follows -
Legal Reasoning
Complainant Smti. Anjumoni Sonowal and accused Sri Kusha Doimari were in love for a long time. Accused gave assurance and promised to marry her and on t he promise of marriage he committed sexual intercourse. The complainant innocent ly believed on the assurance and promises of the accused and surrendered herself to him. Due to the cohabitation with accused she conceived. At the time of fili ng the FIR she was pregnant. Accused was absconding. Thereafter finding no alter native, she had to file the ejahar with the police on 7.11.2002, whereupon polic e registered a case under Section 419/376/493 IPC and took up investigation. Dur ing the course of investigation, the I.O. had her statement recorded under Secti on 164 CrPC by Magistrate and got her examined by doctor of A.M.C.H. On completi on of investigation, police submitted charge sheet against the accused under Sec tion 419/376/493 IPC showing him absconder. 3. The case was committed to the Court of Sessions at Dibrugarh, since Sect ion 376 IPC is exclusively triable by the Court of Session.. A session case was accordingly registered. After hearing both sides charges under Section 417/376 I PC were framed and explained to the accused, to which he pleaded not guilty. Pro secution examined 7 witnesses including the doctor and the I.O. Accused was then examined under Section 313 CrPC. Defence plea is of total denial. However, defe nce did not adduced any evidence in defence. 4. On conclusion of the trial, the appellant was acquitted of the charges u nder Section 376 IPC but he was convicted under Section 417 IPC and sentenced as aforesaid giving rise to this appeal.
Legal Reasoning
5. nt and Mr. S. Das, learned Addl.P.P. I have heard Mr. T.J. Mahanta, learned counsel appearing for the appella Mr. Mahanta, learned counsel appearing for the appellant, by referring t 6. o the evidence of the witnesses submitted that the element on deception which is required for purpose of convicting the accused appellant under Section 417 IPC is not available. Therefore, the accused appellant deserves to be acquitted of t he charges under Section 417 IPC. Mr. Mahanta, learned counsel for the appellant relied on a decision of this Cour t reported in 2006 (3) GLT 585 (Bipul Medhi and Others Vs. State of Assam), wher ein, it was held that mere failure to fulfill the promise of marriage may not co nstitute the offence of cheating if the dishonest intention of the accused at th e very inception can not be inferred. He also relied on a decision of the Hon’bl e Supreme Court reported in (2009) 14 SCC 696 (Dalip Kaur and others Vs. Jagnar Singh and another), where Supreme Court underlined the ingredients of cheating. 7. In order to appreciate the submissions made on behalf of the appellant a s well as the respondent-State, I would like to extract the core of the prosecut ion witness as follows - PW-5, complainant, Smti. Anjumoni Sonowal has very categorically stated 8. that she had love affair with the accused and both of them were in love. Accused told her that he would marry her and on the promise of marriage he committed se xual intercourse with her. She also believed in the promise but accused did not marry her. Due to the co-habitation with the accused, she became pregnanat and c onsequently she gave birth to a male child. Ext-1 is her ejehar wherein Ext-1(1) is her signature. Doctor examined her. She had also given a statement before th e magistrate. Ext-2 is the statement given before the Magistrate and Ext-2(1) is her signature. She married another person subsequently. In her cross examinatio n she has very categorically stated that she and the accused were in love for ab out 1 (one) year. The distance of the house of the accused from her house is not far away. She did not disclose about her pregnancy to anybody else except accus ed. Accused assured her to marry her and he asked her to wait. She has again sta ted in her cross-examination that she gave consent for sexual intercourse as the accused promised to marry her. She cannot say whether the accused in fact loved her or he pretended to be loved her. The child she gave birth has died. She fil ed the ejahar as the accused refused to marry her. She remained silent expecting that accused would marry her and with such expectation she did not disclose the matter to anybody, even to her mother. 9. PW-1, Shri Rajani Sonowal, is the elder brother of the victim/complainan t. According to him, he was told by his wife that there was a love affair betwee n the accused and his sister, the complainant. 10. PW-2 is the mother of the complainant. According to her, her daughter an d accused were in love and her daughter became pregnant about 4 years back from the date of her deposition and on suspicion the case was filed. 11. pregnant about 4 years back PW-3, Smti. Puspamoni Sonowal, has stated that her sister-in-law became 12. From the materials on record, it appears that the FIR was submitted on 7 .11.02 and the incident took place about 3 months back. At the time of filing th e FIR complainant was carrying pregnancy of 3 (three) months according to her ow n version. Doctor examined her on 12.11.02 and according to PW-6, the doctor, on the date of examination the duration of pregnancy is 8-10 weeks. The doctor has opined that at the time of examination she was above 20 years. That being so, a t the time of incident she was not below 16 years. The age is not in dispute in the present case. From the materials available on record, it appears that at the time of incident, the complainant/victim was above 16 years of age and was majo r at the time of incident. 13. Mr. Mahanta, learned counsel appearing for the appellant referring to th e evidence of PW-1, the father of the victim as well as the victim herself point ed out that witnesses have clearly stated that the FIR was lodged against the ac cused appellant by mistake. From the testimony of PW-1, PW-2 and the victim PW-5 , it transpires that marriage could not be solemnized for some obvious reasons, but from the evidence of witnesses, it cannot be deciphered that the accused wit h an intention to decisive and cheat the victim designed the episode by promisin g to marry the victim, only to have sexual intercourse with her. 14. s - In Bipul Medhi(Supra), a Division Bench of this Court observed as follow 21. This Court, in the case, Ramautar Choukhany Vs. Hari Ram Jodi and Ors. Repor ted in 7952 Crl. L.J. 2266, held that mere failure to fulfill the promise may no t constitute the offence of cheating. However, there may be cases, where there w as dishonest intention at the very inception, which can be inferred under the fa cts and circumstances of the case. There may be cases, where a person, already m arried, dishonestly induces another woman to have sexual intercourse with him on the assurance that he is going to marry her, although at the time of making the able promise, the person knew fully well that is not going to honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix.
Decision
22. In view of the aforesaid discussion, we hold that the decision in Joleswar K alita (supra) is not a good law. The case of Moni Gogoi (supra) was decided main ly on facts. However, we concur with the decision of the learned single Judge in Moran Chandra Paul and hold that where the prosecution can establish the essent ial ingredients of cheating under Section 415 IPC, and where the accused dishone stly induces the woman to have sexual intercourse with him on the basis of false promise to marry her, case of simple cheating under Section 417 IPC can be held to have been made out. 15. ollows - So also in the case of Dalip Kaur (supra) , the Apex Court observed as f (cid:28)An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise of representation. A pure and simple breach of contract does not constitute an offence of cheating. 9. The ingredients of Section 420 of the Penal Code are : (cid:28)(i) Deception of any persons ; (ii) Fraudulently or dishonestly inducing any person to delivery any property ; or (iii) To consent that any person shall retain any property and finally intention ally inducing that person to do or omit to do anything which he would not do or omit. (cid:29) 16. From the above discussion, it clearly transpires that accused-appellant apparently did not have any fraudulent or dishonest intention at the very incept ion where he was in love of the victim lady. There is no materials on record to hold that the promise was made solely for the purpose of enjoying sex. Therefor e, the offence of cheating under Section 417 IPC cannot be said to have been mad e out against the accused appellant. 17. . He is directed to set at liberty forthwith. Accordingly, the accused-appellant is acquitted of the aforesaid charges Send back the lower court records.