Manoj Sadashiorao Bhise vs State of Maharashtra,

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 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.

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

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

punishable under Sections 366 and 376 of the IPC.

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.

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,

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.

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.

Having given my anxious consideration to the evidence on record, and in particular to the testimony of the prosecutrix who is 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 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.

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 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 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.

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 him.

The appeal is allowed.