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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.603 OF 2002
Manoj Sadashiorao Bhise,
Aged about 24 years,
R/o Kumagarh, Tq. Distt. Amravati. …. APPELLANT
VERSUS
State of Maharashtra,
through P.S.O., Kholapur,
District – Amravati. …. RESPONDENT
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Shri S.D. Chande, Advocate for the appellant,
Shri A.M. Kadukar, Additional Public Prosecutor for the respondent.
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CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 03-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 09-01-2018
JUDGMENT :
The appellant seeks to assail the judgment and order dated
24-10-2002 passed by the learned IInd Ad hoc Additional Sessions
Judge, Amravati in Sessions Trial 422/1997, by and under which the
appellant (hereinafter referred to as the “accused”) is convicted for
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having committed offence punishable under Section 417 of the Indian
Penal Code (“IPC” for short) and is sentenced to suffer rigorous
imprisonment for six months and to payment of fine of Rs.2,000/-. The
accused is, however, acquitted of offence punishable under Sections
366 and 376 of the IPC.
2. Heard Shri S.D. Chande, learned Advocate for the
appellant and Shri A.M. Kadukar, learned Additional Public Prosecutor
for the respondent.
3. The learned Sessions Judge, having acquitted the accused
of offence punishable under Sections 366 and 376 of the IPC, which
finding is predicated on the premise that the sexual relationship was
consensual, has convicted the accused of offence punishable under
Section 417 of the IPC on the premise that the prosecutrix was induced
to consent to sexual relationship due to false promise of marriage. It is
axiomatic that if the consent is vitiated due to a promise which was
never intended to be honoured and which constitutes offence of
cheating, the acquittal of the accused of offence punishable under
Section 376 of the IPC is debatable. However, neither the State nor the
prosecutrix has challenged the acquittal of the accused of offence
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punishable under Sections 366 and 376 of the IPC.
4. The short submission of the learned Advocate for the
accused, is that even if the entire evidence of the prosecutrix is taken at
face value, offence punishable under Section 417 of the IPC is not
established.
5. Section 415 of the IPC defines ‘cheating’ thus :
“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.”
To constitute cheating, the prosecution must establish :
(1) deception of any person and thereby,
(2) (a) fraudulently or dishonestly inducing that person –
(i) to deliver any property to any person, or
(ii) to consent that any person shall remain any property,
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(b) intentionally inducing that person 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 harm to that person in
body, mind, reputation or property.
6. The submission of the learned Advocate for the accused is
that even if the evidence of the prosecutrix is accepted, neither
deception nor fraudulent or dishonest inducement is established. The
evidence on record is grossly insufficient to prove that the promise to
marry, assuming that such a promise was made, induced the
prosecutrix to have sexual intercourse, which she would not have had
but for the promise, is the submission. The submission is that it is not
sufficient for the prosecution to prove that a promise was made which
was not fulfilled. The prosecution must prove that the accused never
intended to fulfill the promise and the promise was at the very
inception falsely made.
7. Having given my anxious consideration to the evidence on
record, and in particular to the testimony of the prosecutrix who is
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examined as P.W.3, I find considerable merit in the submission of the
learned Advocate for the accused. The deposition of the prosecutrix
would reveal that she and the accused were in relationship and, as
would appear from paragraph 1 of the examination-in-chief, she and
the accused had physical relationship even prior to the incident. The
prosecutrix states that the accused met her near the tank in the village
on 01-8-1994 and said that the prosecutrix should accompany him for
registration of marriage. The prosecutrix accompanied the accused to
Amravati where both saw two movies from 12-00 noon to 6-00 p.m.
The accused brought the prosecutrix to village Dhamori by bus and
then took her to Bailmarkheda to the house of his sister Ramabai who
drove them out. The accused and the prosecutrix then walked to
village Dhamori and halted at the S.T. Stand premises. One Balu
Chaware gave a quilt to the accused who asked the prosecutrix to have
sex, which she refused. The prosecutrix states that since the accused
had promise to marry the next day, she consented to sexual intercourse
and in the night between 01-8-1994 to 02-8-1994 the prosecutrix and
the accused had sexual intercourse twice. In the morning, the accused
took the prosecutrix to the house of Anil Ingle at Amravati and left.
The accused returned at 8-30 p.m. on 02-8-1994. The next day, the
father of the prosecutrix lodged a report, Vijay Ingle, Ambadas Chechre
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and Ashok Bhise came to the house of Anil Ingle and took the
prosecutrix to Police Station Kholapur. The prosecutrix lodged the
report Exhibit 32 and the printed first information report is Exhibit 33.
8. The cross-examination of the prosecutrix reveals that she
and the accused were in an intense relationship since long. It would be
relevant to reproduce the following portion of the cross-examination :
In 1992 I failed in X standard. I appeared for the
examination, 1993. At that time centre was Khartalegaon. Accused
had supplied copies to me at the time of examination of 1993. But
I failed. There after I was attending stitching classes at Dhamori. I
then never appeared for S.S.C. examination. Since before one year
of the incident I had affairs with the accused. Accused used to
meet me since about one or two years of the incident. Accused
belongs to my caste. I and accused had decided to perform
registered marriage. It is true that my parent were opposing my
marriage with the accused. I was waiting that I would complete 18
years of my age. I was 19 years before the incident in question. I
was acquainted with Balu Chaware, Ramrao Dholwade and Baldeo
Pawar, and they were acquainted with me, but I was not talking
with them. There were exchange of love letters between me and
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accused. I and accused had decided to marry. On 31-7-1994 we
had decided to perform registered marriage on 01-8-1994.
What emerges from the cross-examination is that it was a
mutual and bilateral decision taken by the accused and the prosecutrix
to marry, which renders suspect the very substratum of the prosecution
case that the accused deceived the prosecutrix by falsely promising
marriage and the deception induced the prosecutrix to consent to sex.
I have already noted that paragraph 1 of the examination-in-chief
indicates that the accused and the prosecutrix had sex even prior to
01-8-1994 on which, they according to prosecution, the false promise
was made.
The prosecutrix admits in the cross-examination that she
had decided to marry the accused and that she was not inclined to
return to the village and that she was told that since her father had
lodged a report she should return to the village. If the evidence of the
prosecutrix is holistically considered, it is difficult to conclude that the
accused did not ever intend to marry the prosecutrix and that he made
a false promise only to induce the prosecutrix to consent to sex. As I
have noted, the prosecutrix and the accused appear to have been in
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sexual relationship even prior to the date of incident. That apart, what
emerges from the evidence is that the accused and the prosecutrix
returned since the father of the prosecutrix lodged report. It is true
that it has come on record that the accused did not marry the
prosecutrix and indeed the suggestion given to the prosecutrix is that
because the accused did not marry the prosecutrix, the report came to
be lodged. Surprisingly, a suggestion is also given to the prosecutrix
that she lodged the report since she was deceived. However, in the
teeth of the evidence on record, I am not inclined to give weightage,
more than absolutely necessary to the stray suggestion given to the
prosecutrix. The suggestion, surprising it is, does not dilute the duty of
the prosecution to prove by adducing cogent evidence that the
prosecutrix was deceived by a false promise to marry which was
dishonestly given and that the prosecutrix consented to sex only due to
the said promise. The evidence of the prosecutrix, is quite to the
contrary.
9. In the light of the discussion supra, the judgment and
order impugned is set aside and the accused is acquitted of the offence
punishable under Section 417 of the IPC. The bail bond of the accused
shall stand cancelled. Fine paid by the accused, if any, be refunded to
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him.
The appeal is allowed.
JUDGE
adgokar
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