The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 1190 of 2004 (Against the judgment of conviction and order of sentence dated 07.07.2004, passed by learned Additional Judicial Commissioner, Fast Track Court No.5, Ranchi, in Sessions Trial No. 245 of 1999.) the --------- Anmol Kachchap ..… Versus The State of Jharkhand ...... Appellant Respondent --------- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN ---------
Legal Reasoning
For the Appellant : Mr. Ramit Satendra, Adv. For the State : Mr. Manoj Kr. Mishra, APP --------- 06/Dated: 27th June, 2023 Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 07.07.2004, passed by the learned Additional Judicial Commissioner, Fast Track Court No.5, Ranchi, in Sessions Trial No. 245 of 1999, whereby the appellant was convicted for the offence punishable under section 420 IPC and sentenced to undergo R.I. for 4 years and was also, imposed a fine of Rs. 1,000/- and in default in payment of fine further S.I. for one month. 3. The prosecution case in brief is that the appellant was married with the informant in March of 1995 and after marriage the appellant did not take her to his house. On 1.06.1998 when the informant went to the house of appellant and introduced herself as wife of appellant she was assaulted by the family members of appellant and a woman was introduced to her as first wife of appellant. 4. Learned counsel for the appellant submits that the informant herself had committed an offence by marrying the appellant during the life time of her husband, who was still alive and had not divorced her. He further submits that the complaint petition itself (Ext A) and the ocular evidence of the informant would clearly show that she was leading an 2 immoral life and had extra-marital relation with the appellant and had also played fraud upon the Court by naming the appellant as her husband in the title page of her recorded evidence. He further submits that the impugned judgment is also illegal as the appellant was not questioned on all the circumstances appearing against him, while being examined under section 313 of the Code of Criminal Procedure, therefore, it is liable to be set aside. 5. Last but not the least, the conviction under section 420 IPC is not made out, inasmuch as, conviction under section 420 IPC deals with cheating and dishonestly inducing delivery of property and in the instant case there is no allegation of delivery of any property by deceiving the victim. At best this case can be of cheating for which maximum punishment is one year and since the petitioner has remained in custody for about two months, as such after acquitting the petitioner from the charge under section 420 IPC he may be convicted for section 417 IPC and sentenced so awarded shall be modified for the period already undergone. 6. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the appellants. 7. Having heard learned counsel for the parties and after going through the document and LCR and the submissions made by learned counsel for the parties it is necessary to deal with both the section i.e. section 420 for which the petitioner has been convicted and also section 415 IPC which deals with only cheating. For better appreciation sections 415 and 420 is quoted hereinbelow:- “415.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 3 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". "420. Cheating and dishonestly inducing delivery of thereby dishonestly property.—Whoever cheats and induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 8. After perusal of the F.I.R, it appears that initially the case was lodged against the appellant for sections 376 and 420 for dishonestly introducing himself to be unmarried and committing cheating and rape on the victim. From record it transpires that the appellant has been acquitted from the charge under section 376 IPC as it has come on record that the appellant married with the said women and thereafter 3 years of their marriage, he deserted her wife-victim. It has further been alleged that whereabouts of the appellant was not known to her; as such she is living with her father. It has further been alleged that the victim developed intimacy with the appellant and the appellant told her that he would marry her and for this her father also gave consent and accordingly, they were married in the month of March, 1995 and when she expressed her desire to live with her husband the appellant distanced himself and stopped visiting her house and when the victim inquired about the matter, she learnt that the appellant was already married. 9. After going through the aforesaid provision of law and the prosecution case, it appears that even the entire allegation is accepted as true, then also it is difficult to accept the conviction of the appellant for section 420 IPC which deals with cheating and dishonestly inducing delivering of property, 4 inasmuch as, neither in the F.I.R. nor in the deposition it has been proved that the appellant has cheated the victim for delivery of any property to her. Though there was allegation of snatching a gold chain by the female member of appellant’s family. However, by critically examining the provision of cheating, it appears that if anybody intentionally induces the other person so deceive to do or omit to do anything which he/she would not do or omit if he were not so deceived and which act or omission causes damage or harm to the other person. Here it has been proved that the appellant and the victim were in love together, may be on the inducement of the appellant, but finally the appellant and the victim married and that might be the reason that the appellant has not been convicted under section 376 IPC. However, the main allegation in the complaint petition is that finally the appellant deserted her and victim is living with their parent. Thus, at best this case can be of the section 417 IPC. Thus, this Court is having no hesitation in accepting the contention of the learned counsel for the appellant that at best the conviction could be made under section 417 IPC and not 420 IPC for the reason that there was no delivery of property. 10. Having regard to the discussions made hereinabove the conviction of the appellant for the charge under section 420 IPC, is, hereby quashed and set aside. However, looking to the facts and circumstances of the case and the deposition of the victim and other P.Ws. this court is of the considered view that the appellant is guilty for the offence under section 417 IPC as he deceived the victim by saying her that he is unmarried and married her and finally deserted. 11. Thus, this court holds the appellant guilty for the offence punishable under section 417 IPC and accordingly sentenced him for a term of 6 months. Now coming to the argument on the question of 5 sentence it appears that the appellant remained in custody for about two months and the incidents is of the year around 1995. Thus, about 28 years has passed and looking to the overall facts and circumstances of the case, I am of considered view, the sentence ought to be modified to the extent that the appellant shall be released for the period already undergone. With 12. modification, the instant criminal appeal is partly allowed. the aforesaid observations, directions and The appellant shall be discharged from the liability of his 13. bail bond. 14. Let a copy of this order be sent to the Jharkhand High Court Legal Services Committee for quantifying the fee of learned Amicus and a copy of this order be also communicated to the court below and to the appellant through the concerned police station. 15. Let the lower court record be sent to the court concerned forthwith. Amardeep/ (Deepak Roshan, J.)