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Manoj Sadashiorao Bhise vs State Of … on 9 January, 2018

1 apeal603.02

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

__

Shri S.D. Chande, Advocate for the appellant,
Shri A.M. Kadukar, Additional Public Prosecutor for the respondent.
__

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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3 apeal603.02

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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or

(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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8 apeal603.02

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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9 apeal603.02

him.

The appeal is allowed.

JUDGE
adgokar

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