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Judgment
Honourable Mr. Justice M. Venugopal
The conviction and sentence dated 31.07.2012 in S.C. No. 149 of 2009 passed by the Learned Sessions Judge/Mahila Court, Madurai are
now under challenge in the present Appeal filed by the Appellant/Accused. The Appellant/Accused was found guilty by the Trial Court for the
offence u/s 417 of I.P.C. and was awarded with the punishment of six months Rigorous Imprisonment and was also directed to pay a fine of Rs.
1,000/-, in default of payment of fine, he was directed to undergo default sentence of one month Simple Imprisonment. The period of sentence
already undergone by the Appellant/Accused was directed to be set off as per Section 428 of Cr.P.C. However, the Appellant/Accused was
acquitted in respect of charge for the offence u/s 376 of I.P.C. as per Section 235(1) of Cr.P.C.
The case of the prosecution is that the Appellant/Accused with a criminal intention to have cohabitation with the victim girl viz., Muthurani, when
she was alone in the house by uttering luring words also gave purchased eatables and cheated her by forcefully indulging in intercourse with her.
When this fact was known to the parents of Muthurani, panchayat was conducted and at that time, the Appellant/Accused informed that he got
married to one Ruby of Palamedu. Therefore, the Inspector of Police, Thirumangalam All Women Police Station, after completing the investigation,
laid a charge sheet against the Appellant/Accused for the offences under Sections 417 and 376 of I.P.C.
On the basis of the accusation levelled against the Appellant/Accused, the Trial Court framed necessary charges for the offences under Sections
417 and 376 of I.P.C. and the same were read over and explained to him. The Appellant/Accused denied the charges framed against him and
demanded a trial.
On the side of the prosecution, witnesses P.Ws. 1 to 16 were examined and Exs. P1 to 12 were marked. On the side of the
Appellant/Accused, no witness was examined and no document was marked.
When the Appellant/Accused was questioned u/s 313 of Cr.P.C. in regard to the incriminating circumstances appearing in evidence against him,
he denied his complicity in the crime.
The Trial Court, on an appreciation of both oral and documentary evidence, had resultantly found the Accused guilty u/s 417 I.P.C and
sentenced him to undergo six months Rigorous Imprisonment and also imposed a fine of Rs. 1,000/-. However, it acquitted the Appellant/Accused
in respect of offence u/s 376 of I.P.C.
Being dissatisfied with the conviction and sentence passed by the Trial Court in S.C. No. 149 of 2009 on the file of the Learned Sessions
Judge/Mahila Court, as an aggrieved person, the Appellant/Accused has projected the instant Appeal before this Court.
The Learned counsel for the Appellant/Accused submits that the Trial Court should have taken into account that the complaint was preferred by
the Defacto Complainant with ulterior motive and should have consequently, acquitted the Appellant herein.
The Learned counsel for the Appellant/Accused takes a plea that the Trial Court should have considered the unexplained delay in filing the
complaint by the Defacto Complainant.
Yet another stand taken by the Learned counsel for the Appellant/Accused is that the prosecution in the instant case had failed to prove that if
at all, the Defacto Complainant has sexual intercourse with the Appellant/Accused.
Advancing his arguments, the Learned counsel for the Appellant/Accused draws the attention of this Court to the evidence of Doctor viz.,
P.W. 13 that the Defacto Complainant did not seem to have had sexual intercourse prior to her examination. Furthermore, the Doctor had not
conducted finger tests on the Defacto Complainant, which goes to the root of the prosecution case.
The Learned counsel for the Appellant/Accused vehemently contends that the Defacto Complainant could not be believed by any reasonable
person because no specific dates having were mentioned and further, the prosecution witnesses were all relatives and they do not inspire
confidence. Moreover, their evidence was not corroborated by the medical evidence.
Lastly, the Learned counsel for the Appellant/Accused submits that however strong the suspicion, the same may be could not take the place of
proof and in any event, the Trial Court found the Appellant/Accused guilty u/s 417 of I.P.C. based on unacceptable evidence and as such, the
Appellant/Accused deserves to be acquitted.
At this juncture, the Learned counsel for the appellant contends that in the present case on hand, Section 417 of I.P.C. is not attracted and to
lend support of his contention, he cites the following decisions:
(i) In the decision Mansoor Ali Khan Vs. State by Inspector of Police, R-2, Kodambakkam Police Station, Chennai reported in (2008) 1 MLJ
(Crl) 450, at special page 451, it is held that
When the prosecutrix freely, voluntarily and consciously consented to having sexual intercourse with the accused, and her consent was not
inconsequence of any misconception of fact, the offence u/s 417 of Indian Penal Code, 1860 is not attracted.
(ii) In the decision P. Govindan Vs. State by Inspector of Police, Thirunavalur Police Station, Villupuram District reported in (2008) 3 MLJ (Crl)
127, at special page on 128, it is held that
When the act of the prosecutrix in having sexual intercourse with the accused has not been proceeded to be pursuant to any promise made by the
accused to marry her and on the other hand, the same was nothing but an act of promiscuity on the part of the prosecutrix, the conviction of the
accused for an offence of cheating u/s 417, Indian Penal Code, 1860 and the sentence imposed thereon is not sustainable and is liable to be set
aside.
(iii) In the decision S. Albert Vs. State, rep. by the Inspector of Police, Navalpattu Police Station, Navalpattu, Tiruchirapalli District reported in
(2009) 2 MLJ (Crl) 532, at special page on 533, whereby and whereunder, it is held that
The consent given pursuant to a false representation that the accused intends to marry, can be regarded as consent given under misconception of
facts. But a promise to marry without anything more will not give rise to misconception of facts, within the meaning of Section 90 of the Indian
Penal Code.
In the decision in Raman @ Ramu Vs. State reported in (2009) 3 MLJ (Crl) 938, 939, it is held that
Consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a
later date, cannot be said to be under a misconception of fact.
Repelling the contentions of the Learned counsel for the Appellant/Accused, the Learned Government Advocate (criminal side) submits that in
the present case, the prosecution has clearly proved the fraudulent/dishonest intention of the Appellant/Accused at the time of commission of the
act in respect of which the cheating is illegal and also that the subsequent conduct of the Appellant/Accused would be an evidence to show the
previous dishonest intention and before the Trial Court, the prosecution has clearly established that the Appellant/Accused spoke luring words to
his knowledge with a view to deceive the complainant/P.W.1 and after analysing the evidence available on record, the Trial Court has rightly found
the Appellant/Accused guilty u/s 417 of I.P.C. and as such, the instant Criminal Appeal is to be dismissed by this Court in the interest of justice.
Before dealing with the respective contentions put forward by either counsel, it is just and necessary for this Court to state that as per Section
415 of I.P.C., to hold a person guilty of cheating, it is to be established that his intention was dishonest at the time of making promise. Further, in
order to constitute the offence of cheating, the person, who induces another to do this clause of acts must fraudulently or dishonestly induced the
person deceived to do that kind of act. Equally, there is a distinction between Breach of Contract and the offence of cheating. It consequently
depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but for this subsequent
conduct, is not the single test. Also, a mere Breach of Contract cannot give room for criminal prosecution in regard to cheating, unless fraudulent or
dishonest intention is shown right at the commencement of the transaction viz., when the offence is purported to have been committed. As such, it
is the intention which is the essence of the offence.
It is to be noted that there ought to be some piece of evidence of fraudulent or dishonest intention at the time of commission of act in respect of
which the cheating is lodged against the accused. It is not sufficient to establish that a false representation has been made. It is further necessary to
prove that the representation so made is a false one to the knowledge of the Accused made with a view to deceive the Complainant.
Admittedly, P.w.1/Complainant and the Appellant/Accused are relatives. P.W.1/Victim in her evidence has deposed that she has studied upto
6th standard and her parents are doing coolie work and her brother is working as a Driver and she alone remained in her house and further that her
parents used to go for work early morning at 7.00 a.m. and return at 6.00 p.m. in the evening.
It is the further evidence of P.W.1 that the Accused/Appellant has been residing in a house situated at a distance of two houses from her house
and since the Appellant/Accused has resided near to her house, he used to visit her house quite often and that after her parents have gone for
work, he used to come to her house and got acquainted by talking with her and when she complained to her parents about this, they informed her
that he is the son of her grandfather and coming to their house just like that. But, on one day, he has come to her house and hugged her and at that
time, no one remained outside. But, she raised her voice and later one day, he has come to her house and informed her that he will marry her and
she believed his words and that the Appellant/Accused informed that he will marry her and by uttering these words, he raped her and on
09.11.2008, the complaint Ex. P1 has been lodged with the Thirumangalam All Women Police Station.
P.W.1 in her cross examination has deposed that when the first wrong has taken place, she has not informed her parents and for one year, they
had sexual intercourse.
P.W. 2/(Father of victim girl/complainant), in his evidence has deposed that a panchayat has been conducted with the help of the village elders
and since the Appellant/Accused has informed that he will not marry P.W.1, they have gone to the Police Station immediately.
P.W. 3/Mother of P.W.1 in her evidence has deposed that after coming to know that her daughter viz., P.W.1 has been raped and a
panchayat talk has been held and on the side of the Appellant/Accused, they informed that marriage between the victim/P.W.1 and the
Appellant/Accused would not take place.
P.W. 6 in his evidence has deposed that when he came to know about the occurrence, he enquired with the known persons and has came to
know that the Appellant/Accused has refused to marry the victim/P.W.1.
P.W. 7 in his evidence has deposed that after seeing the acquaintance of P.W.1 and the Appellant/Accused, the elders have gone to the house
of Appellant/Accused and they demanded that the victim Muthurani should be married to the Appellant/Accused. As a matter of fact, P.W. 7 has
taken part in the panchayat that had taken place.
P.W.1 in her evidence has stated that the Appellant/Accused has refused to marry her because of the reason that he already got married to
one girl. P.W. 3 has deposed that after Ex. P1, the complainant, the Appellant/Accused has got married to another girl.
P.W. 6, in his evidence has stated that initially, a complaint has been lodged with the police and subsequently, the marriage of the
Appellant/Accused has taken place and hence, another report has been filed.
P.W. 1 in her 164 of Cr.P.C. statement before the Learned Judicial Magistrate, Melur on 18.12.2008, has interalia stated that the
Appellant/Accused has informed her that he is to marry her and as such to succumb to his desire and raped her and after lodging the complaint
with the police, the Appellant/Accused got married to Ruby of Palamedu.
P.W. 12, the Learned Judicial Magistrate has deposed that she has recorded Ex. P10, 164 of Cr.P.C. statement of the victim. P.W. 14
Inspector of Police has gone to the scene of occurrence and prepared Observation Mahazar Ex. P2 and Rough Sketch Ex. P12 in the presence of
witnesses P.W.9 Jothiramalingam and Muthumani.
P.W. 9 has deposed in his evidence that he has signed in Ex. P2 Observation Mahazer for the proof of police visiting to the scene of
occurrence.
P.W. 14 has sent the victim/P.W.1(Complainant) for medical examination through Court as per the requisition letter Ex. P3 dated 02.12.2008
and the same was forwarded by the Learned Judicial Magistrate, as per Ex. P.5 his letter dated 02.12.2008.
P.W. 13 Doctor examined P.W. 1 and has issued Ex. P7 medical examination report. P.W. 11 in his evidence has deposed that Ex. P6 letter
dated 02.12.2008 has been sent from the Trial Court to the Forensic Lab, Madurai P.W. 15 has conducted medication on the Appellant/Accused
and has given potential certificate.
P.W. 14, the Investigating Officer has examined P.W. 12 by recording her statement. P.W. 12, the Learned Judicial Magistrate, Melur in her
evidence has stated that he received Ex. P9 letter from the police station and recorded Ex. P10, the confessional statement of the victim girl u/s
164 of Cr.P.C.
Although the Appellant/Accused has been charged in respect of offence under Sections 417 and 376 of I.P.C., the Trial Court has come to
the right conclusion that it has not been established by the prosecution that the Appellant/Accused has forcefully committed the act of rape on the
victim girl viz., P.W. 1 Muthurani and more so, P.W.1, on her own desire, has moved and got acquaintance with the Appellant/Accused and as
such, the charge levelled against the Appellant/Accused for the offence u/s 376 of I.P.C. has not been proved by the prosecution.
At this stage, this Court worth recalls the decision of this Court in Ravichandran Vs. Mariyammal, wherein, in paragraph Nos.7 and 8, it is laid
down as follows:
Deception of any person is common to the second and the third requirements of the section as stated above. Second and third requirements are
alternative to each other and this is made significantly clear, by use of disjunctive conjunction ''or''. Therefore it goes without saying that the
definition of the offence of cheating, embraces some cases in which no transfer of property is occasioned by the deception and some in which no
transfer occurs. For these cases, a general provision is made in S. 417 of Code. For the cases in which property is transferred, a more specific
provisions is made by S. 420. But the offence of cheating of any person by delivery of property is punishable under either of the section. But where
the case appears to be of a serious nature, step is normally taken under S. 420 I.P.C. In this view of the matter, the contention of learned counsel
for the petitioner that since the offence of cheating figuring in Chapter XVII, relates to property offences, the case on hand, cannot at all be said to
be coming within the purview of S. 417 I.P.C. cannot at all be countenanced.
The averments in the complaint, do prima facie, point out false representation said to have been made by the petitioner, in the sense of himself
making a promise to marry her, and believing such a promise, the respondent succumbed to his carnal desire, in request. But for the representation
so made and the deception practiced on her, she would not have been a party for sharing her bed with the petitioner, on the relevant date, which is
said to have resulted in her becoming pregnant. The allegations as stated in the complainant do prima facie, establish an offence under S. 417
I.P.C. requiring him to undergo the ordeal of trial. Further, the Court below has already examined 8 witnesses after taking the complaint on file
with subjective satisfaction that a prima facie case had been established against the petitioner.
Also, this Court aptly points out the decision in Mailsami Vs. State, it is observed and held hereunder:
The submission that no offence u/s 417 I.P.C. is made out, cannot be accepted for the reason that when she refused to have sexual intercourse
with him, he made a promise that he will definitely marry her and induced her to subject herself for sexual intercourse by him; but ultimately when
she insisted for marriage, after she became pregnant, he evaded and ultimately he put an impossible condition and did not marry her. So, the
inducement is there and because of that, she had done something, which she would not do, if she had not believed that inducement and that
inducement is shown to be a dishonest one. All the ingredients necessary to make out the offence u/s 417 are available here. So the first submission
cannot be sustained.
Regarding the second submission that offence u/s 417 I.P.C. is barred by time, the date from which the period is to be computed, assumes
importance Mr. Hajiee P.K. Jamal Mohamed, would submit that the date on which she agreed to have sexual intercourse with the accused would
be the material date. I do not accept this submission for the reason that the date of knowledge of the aggrieved person is the material date and on
the date on which she agreed to have sexual intercourse, she did no have the knowledge that he was going to ultimately cheat her and only the date
on which she came to know that she was cheated is the material date, for fixing the starting point of limitation, so far as offence u/s 417 is
concerned. Any victim of cheating would not know, on the date of cheating that he or she was being cheated. The victim would come to know
only on a later point of time, that he or she was cheated. The victim would come to know only on a later point of time, that he or she was cheated.
That is the material date. In the instant case, she believed the promise made by the accused and agreed for sexual intercourse. Later she became
pregnant by six months. He asked her to dissolve the pregnancy and then he would marry her. The lady doctor said that the pregnancy could not
be dissolved because of the advance stage of pregnancy. Then he insisted that he would marry only after pregnancy was dissolved. Panchayat was
held. At that time he agreed. But it was not given effect to. Then on 11.04.90 she gave report to the police and the Sub Inspector, Keeranur sent
for him and his father and others and at that they agreed for the marriage, but later did not do it. Only then, she has come to know that she has
been cheated and had given this complainant on 15.6.90. Between 11.4.90 and 15.6.90 only about two months has elapsed. So it is not barred by
time. Hence the second submission also fails.
One cannot ignore an important fact that a consent given on a misrepresentation of fact is one given under a misconception of fact within the
meaning of Section 90 of I.P.C. No wonder the evidence of consent which is sufficient in a civil matter should be equally sufficient in exculpation of
an Accused''s guilt.
Furthermore, this Court points out that in the decision in Jaladu N Re (1913) 36 Mad. 453, this Court has held that ''the expression under a
misconception of fact'' is broad enough to include all cases, where the consent is obtained by misrepresentation, the misrepresentation should be
regarded as leading to a misconception of the facts with reference to which the consent is given.
Moreover, in the decision Flattery (1877) 2 QBD 410, the facts that where the Accused professed to give medical and surgical advice for
money. The Prosecutrix, a girl of 19, consulted him with respect to illness from which she was suffering. He advised that a surgical operation
should be performed and under pretence of performing it, had carnal connection with the Prosecutrix.
She submitted to what was done under the belief that he was merely treating her medically and performing a surgical operation. It was held that the
Accused was guilty of rape.
Mere submission by one, who does not know the nature of act done cannot be consent as per Quain J in Lock (1872) LR 2 CCR 10, 14.
This Court relevantly point out the decision in Rao Harnarain Singh Sheoji Singh and others Vs. The State AIR 1958 PUN. 123, wherein, it is held
that all consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-
resistance and passive giving in cannot be deemed to be consent.
Coming to the charge u/s 417 I.P.C. against the Appellant/Accused, it is to be pointed out that it is evident from the evidence of P.Ws.1 to 8
that one day the Appellant/Accused has come to her house and hugged her and at that time, no one has been outside and subsequently, one day he
has come to her house and uttered that he will marry, which she believed and had sexual intercourse with her. In the instant case, P.W.1 believed
the promise/assurance of the Appellant/Accused that he would marry her and for a period of one year, the Accused/Appellant indulged in sexual
intercourse with P.W.1/victim girl (of course, she was a consenting party) Believing the Appellant/Accused''s promise/assurance, P.W.1/victim girl
succumb to his carnal desire and but for the representation so made and also he being in the relationship of an uncle and the said relationship
continued for a year, she would not have been a party for indulging in frequent cohabitation with him. Therefore, on the basis of facts and
circumstances of the present case, the evidence of P.W.1 unerringly point out the dishonest intention/dishonest inducement of the
Appellant/Accused, which is very much present in his act/acts and therefore, this Court unhesitatingly comes to an inescapable conclusion that the
offence of cheating has been made out and rightly he has been convicted and sentenced by the Trial Court in respect of offence u/s 417 I.P.C.
In the upshot of discussions mentioned supra, this Court opines that the Trial Court has rightly found the Accused guilty u/s 417 of I.P.C.
which is not called for any interference by this Court both on factual and legal plane, consequently, the Criminal Appeal fails. In the result, the
Criminal Appeal is dismissed. The conviction and sentence passed in S.C. No. 149 of 2009 dated 31.07.2012 passed by the Learned Sessions
Judge/Mahiula Court are hereby are affirmed by this Court for the reasons assigned in this Appeal. If the Appellant/Accused is not in duress, the
Trial Court is directed to take appropriate steps to confine the Appellant/Accused in prison so as to serve the remaining period of sentence. Arul