High Court
Case Details
Crl.A. 198/2010 BEFORE HON’BLE MR.JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER This appeal is directed against the judgment and order dated 27th Septem ber, 2010 passed by the learned Sessions Judge, Karimganj in Sessions case no. 4 7/2008 convicting the appellant u/s 417 of the IPC instead of section 376 of the said code and sentencing him to suffer rigorous imprisonment for one year. The facts leading to filing the appeal may be stated as follows:
Legal Reasoning
2. The houses of the appellant and the complainant are contiguous to each o ther. The appellant had been a frequent guest to the house of the complainant. A fter courting and dating the victim, on the promise that he would marry her, the appellant started having sexual intercourse with her. In due course the victim conceived and the accused-appellant was informed. The appellant proposed her to abort the foetus. The discerning villagers voluntarily came forward and tried to settle the matter amicably but the guardians of the appellant did not cooperate , though the appellant was agreeable and consequently the victim lodged an FIR a gainst the accused. Following this, police started an investigation and on concl usion thereof, submitted a charge-sheet against the accused u/s 376 of the India n Penal Code. On committal of the case to the Court of Session for trial, the trial st 3. arted. In course of trial, as many as eight witnesses were examined by prosecuti on. On conclusion of recordings of the evidence of PWs, defence statement of the accused was recoded u/s 313 of the Cr.PC. And on conclusion thereof, the learne d Sessions Judge found the accused guilty of offence u/s 417 of the IPC instead of 376 of the Indian Penal Code and accordingly sentenced him as aforesaid, givi ng rise to this appeal. 4. Sinha, learned Additional Public Prosecutor.
Legal Reasoning
I have heard Mr SC Biswas, learned counsel for the appellant and Mr B S 5. Mr Biswas submitted that the evidence clearly reflects that the Kaji-e-S hariyat and some villagers had obstructed the marriage between the accused and t he victim. The accused had never said that he would not marry the victim. Learne d counsel for the appellant pointed out that the appellant had no intention in h is mind to cheat the victim. Learned counsel for the appellant submitted that in order to constitute an offence u/s 417 IPC, an element of cheating has to be pr esent at the very inception but, the said element is missing in the present case . 6. Mr Sinha, learned Additional Public Prosecutor, referring to evidence of the witnesses, submitted that the accused had intentionally deceived the victim girl and committed the offence u/s 417 IPC. 7. From the evidence of the prosecutrix, it is clear that on her consent th e accused had been having sexual intercourse with her on the promise to marry he r. 8. In her cross-examination, PW1 had categorically stated that the accused had never told her that he would not marry her. In his cross-examination, PW2 Ab dur Rahmam had stated that it was the Kaji-e-Shariyat and the local villagers th at obstructed the marriage of the victim and the accused. 9. In order to constitute an offence u/s 417 IPC, the following ingredients are required to be satisfied: i) ii) Deception of a person; Whereby, fraudulently or dishonestly, inducing the person, so de ceived to deliver any property to any person or to consent that person shall ret ain any property; or iii) Intentionally inducing that person to do or omit to do anything which he would not do or omit if she were not so deceived and which act or omiss ion causes or likely to cause damage or harm to that person in body, mind, reput ation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415 IPC. The ingredients as pointed out are required t o be present at the very inception when the deception was made by the accused. 10. As a matter of fact, when an accused intentionally gives false assurance to marry, which he never intended to carry out and induces thereby the victim s o deceived to have with him sexual intercourse which, otherwise, the victim woul d not have indulged in or permitted, had she not been so induced by the deceptio n made by the accused such, act of sexual intercourse by the accused with the vi ctim, if it is likely to cause damage or harm to her body, mind or reputation, w ould constitute the offence of cheating. 11. In the instant case, apparently, there is no evidence on record to show that the accused, at the very inception, wanted to cheat the victim only for the purpose of having sexual intercourse with her. As a matter of fact, the failure to keep the promise on a future uncertain date due to good reasons does not alw ays amount to deception at the inception of the act itself. The deception would have been definitive if the consent had been obtained from the victim for creati ng a belief that he was intending to marry her, but the evidence on record do no t support such fact. 12. Overall consideration of the entire gamut of the facts therefore, I am o f the view that prosecution has failed to establish that the appellant committed the offence u/s 417 IPC by inducing the victim to believe that he would marry h er only to have sexual intercourse. 13. Consequently, the order of conviction and sentence warrants interfere nce by this court and accordingly the judgment and order dated 27th September, 2 010 passed by the learned Sessions Judge, Karimganj in Sessions case no. 47/2008 , is set aside. 14. The appellant is acquitted of the charge, and is set at liberty forthwi th. The bail bond furnished on his behalf stands discharged. Send back the lower court records.