Purushottam Dharamji Dahiwale vs State Of Mah.Thr.P.S.O.Kuhi
2017 Latest Caselaw 5963 Bom

                                                                                             CRI.APPEAL.337.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                            CRIMINAL APPEAL NO. 337 /2003

          Purushottam  s/o Dharmaji Dahiwale 
          Aged about 20 years, 
          R/o Brahmni, Post:Veltur 
          Dist. Nagpur.                                                                        ..   APPELLANT 

                     v e r s u s

          State of Maharashtra 
          Through : Police Station Officer 
          Kuhi, Dist. Buldana                                                                .. RESPONDENT

...........................................................................................................................
           Mr. R.M.Daga, Advocate for appellant 
           Mr. N.H.Joshi, Additional Public Prosecutor for  respondent-State
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     16th August, 2017

ORAL  JUDGMENT: 

The appellant has preferred this Appeal against the judgment ad

order dated 29.04.2003 passed by the learned 2nd Ad-hoc Additional Sessions

Judge, Nagpur in Sessions Trial no.406/1996, thereby convicting the appellant

under section 417 of Indian Penal Code and sentencing him to suffer rigorous

imprisonment for one year and to pay a fine of Rs. 5,000/-, in default, to

suffer further rigorous imprisonment for one year. The learned Judge further

directed that the out of the fine, an amount of Rs.4000/- be paid to the

prosecutrix.

2. I have heard Mr. R.M.Daga, the learned counsel for the appellant

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as well as Mr. N.H. Joshi, the learned Additional Public Prosecutor. I have

gone through the entire record.

3. The learned counsel for the appellant contended that the

judgment and order passed by the learned 2nd Ad-hoc Addl. Sessions Judge is

illegal and perverse, inasmuch as the learned Judge has acquitted the

appellant of the offence punishable under Section 376 of the IPC, whereas

relying on the same testimony, convicted the appellant u/s. 417 of the IPC.

4. The learned APP stated that the learned Judge of the Court

below has rightly convicted the appellant u/s. 417 of the IPC as the appellant

had promised to marry with the prosecutrix inspite of the fact that he was a

married person.

5. The prosecution case in brief is that, the prosecutrix was working

as a labourer on daily wages. She was aged about 19 years at the time of the

incident. The appellant was a contractor and had taken a contract to construct

a room of Gram Panchayat Balwadi in village Dongarmouda where the

prosecutrix was residing. It is the case of the prosecution that the appellant

was residing in a rented room in village Mandhal. He was a married person;

however had divorced his wife. The incident took place since Teel Sankrant

festival. The prosecutrix used to work on the said site. According to the

prosecution, the prosecutrix used to go all alone for her work. The appellant

used to pay the weekly labour charges on every Tuesday, being a market day.

After Sankrant, whenever the prosecutrix used to go to the room of the

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appellant for collecting weekly labour charges, he used to commit sexual

intercourse with her on the allurement of marriage. Due to the said illicit

relationship, the prosecutrix carried pregnancy of about six months. The

prosecutrix informed about the said fact to the appellant. The appellant

brought the prosecutrix to Kuhi Court for the purpose of marrying with her.

The appellant asked the prosecutrix to wait in front of the Court at Kuhi and

the appellant went away by saying that he would come after some time.

However he did not return. The prosecutrix searched the appellant, but in

vain. The prosecutrix then realised that she was deceived by the appellant.

Therefore she proceeded to the Police Station and lodged complaint (Exh.17).

On the basis of the said complaint, the offence was registered u/s. 376 and

417 of the IPC. The investigation was carried out. Charge-sheet was filed.

Charge was framed by the learned trial Judge. After conducting the trial, the

learned trial Judge acquitted the appellant of the offence punishable u/s. 376

of the IPC disbelieving the testimony of the prosecutrix. He,however, convicted

the appellant u/s. 417 of the IPC. Hence this Appeal.

6. In order to consider the rival contentions of the learned counsel

for the respective parties, it is necessary to go through the testimony of PW

1. According to PW 1, the incident took place about seven years back. On the

date of adducing evidence, the prosecutrix had already performed marriage

with some other person and she was having children too. PW 1 deposed that

the appellant had taken a contract of building a Balwadi at village

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Dongarmouda. The prosecutrix was a labourer and was working on the said

construction site. According to PW1, the appellant used to pay her labour

charges on weekly basis. Since he used to pay labour charges at village

Mandhal, the prosecutrix went to receive the same at Mandhal. She was asked

to wait. The appellant then closed the door of the room. The appellant asked

her to allow him to have sexual intercourse, on the pretext that he would

solemnize marriage with her. He then committed sexual intercourse with her.

Thereafter the appellant indulged in the sexual intercourse for 5 to 7 times. As

a result, PW1 conceived. PW1, thereafter stated that the appellant has assured

her that he will be performing marriage with her in the Court. In order to

perform the marriage, the prosecutrix along with her parents and appellant

went to Kuhi Court. They were asked to sit in the shadow of a tree. The

appellant went away and he did not return back. The prosecutrix thereafter

lodged the complaint (Exh.17) against the appellant. In her cross-examination,

the prosecutrix specifically stated that as her parents advised her to lodge the

report, she lodged the same, which was reduced in writing by the police.

PW1, however, stated that she did not know the contents which were reduced

into writing. The said version of the prosecutrix makes it amply clear that she

was not aware about the contents in her complaint. Many improvements were

pointed out in the testimony of the prosecutrix. According to the prosecutrix,

she stated before the police that when she went to the receive the labour

charges at Mandhal, appellant asked her to wait. Appellant thereafter closed

CRI.APPEAL.337.03

the door. The appellant and the prosecutrix were only in the room and the

appellant asked her to allow him to perform intercourse. Then the appellant

committed sexual intercourse. The appellant did commit sexual intercourse

with her for 6 to 7 times. Surprisingly enough, all the above-said version of

PW1 does not find place in her complaint (Exh.17). PW1 failed to state as to

why the said contents are not reduced into writing in her report before the

police. Similarly, from the testimony of PW1 it is palpable that whatever she

had stated before the Court about the commission of sexual intercourse for

about 6 to 7 times, is not reflected in the complaint (Exh.17). PW1 had

admitted that she did not know the contents which were reduced into writing

by the police. From the said version of PW1, her case becomes doubtful.

Interestingly, PW1 stated before the Court that she had not opposed for the

sexual intercourse, on the contrary, she had consented for it. She further

clarified that sexual intercourse each time, was with her consent. She went

up to the extent of saying that since the appellant refused to marry with her

she lodged the report against him.

7. From the testimony of the prosecutrix, it appears that since she

was already married with some other person on the date of evidence she has

half-heartedly adduced the evidence before the Court. It is significant to note

that the learned trial Judge disbelieved the testimony of the prosecutrix as

regards her allegation against the appellant for commission of rape is

concerned, however, took up few sentences here and there from the testimony

CRI.APPEAL.337.03

of PW1 that the appellant had assured to solemnize marriage with her, she

consented for the sexual intercourse. Thus it is noticed that PW1 is changing

her version before the Court and she is not found to be a reliable witness.

8. Significantly, in the instant case, the allegations of rape on

promise to marry and cheating are interconnected. Under these circumstances,

if the testimony of the prosecutrix is to be disbelieved, it is to be disbelieved

in toto and in its entirety.

9. As regards the testimony of PW 2-Nilkanth Padole is

concerned, he is the father of the prosecutrix. He deposed that the incident is

about 5 to 6 years back. His daughter PW1 had gone on weekly market at

Mandhal. She did not return home. The appellant used to call his daughter at

Mandhal for payment of labour charges. On the next day, he went to search

his daughter at Mandhal. His daughter was seen in the market. On enquiry,

she told him that the appellant committed sexual intercourse with her on the

allurement of marriage and, as such, she did not disclose about the same to

him. PW2 stated that he met the appellant and the appellant agreed to marry

with his daughter. PW2 himself along with his daughter went to Kuhi. The

appellant was ready to perform marriage with his daughter. However as it was

6.00 p.m. the Office was closed. Therefore, they returned home. On the next

day he came to know that appellant left his daughter at Kuhi alone and ran

away.

10. On careful scrutiny of testimony of PW2 it appears that the

CRI.APPEAL.337.03

appellant was ready to marry with his daughter. However as working hours

of the Registrar's office were over, the appellant could not marry with PW1 on

that day. During the cross-examination, PW 2 stated that he came to know

about the pregnancy of his daughter after about 2 to 3 months. Then, he

went to the appellant and asked him either to terminate the pregnancy or to

marry with his daughter. Nothing material could be elicited from the cross-

examination of PW2 and his testimony does not throw any light on the

aspect of appellant promising to marry with his daughter and on the pretext of

the said promise, the appellant committed sexual intercourse with her.

11. Coming to the testimony of PW4-Pramod Duradkar,(ASI), he has

stated before the Court that the complaint (Exh.17) is in the handwriting of

PSO Shri Selokar and the FIR does not bear either the thumb impression of

the complainant or her signature. The testimony of PW4 is in consonance

with the testimony of PW1 where she stated that she does not know the

contents in the report which were reduced into writing. Under these

circumstances, it is very difficult to rely upon the testimony of PW1-

prosecutrix, PW 2-Nilkanth Padole and PW 4-ASI Duradkar. They are not at

all found to be reliable and trustworthy witnesses and their testimony do not

inspire confidence at all.

12. The prosecutrix did not disclose either to her mother or father

about the fact that the appellant had promised to marry with her. It has come

on record that when she became pregnant of three months, she informed her

CRI.APPEAL.337.03

father. Even the prosecutrix did not state that she was cognizant of the fact

that the appellant was a divorcee. It is already established that the prosecutrix

had consensual sexual relationship with the appellant. If the trial Court has

reached the conclusion disbelieving that the prosecutrix was raped by the

appellant and held that she had consented for sex, in that case, the version of

prosecutrix that the appellant promised to marry with her cannot be

countenanced. There is absolutely no evidence on record from which it can

be conclusively inferred that there was any fraudulent or dishonest

inducement of the prosecutrix by the appellant to constitute an offence under

section 415 of the IPC. Section 415 IPC reads 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 to deceived, and which act of 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. "

The ingredients required to constitute the offence of cheating

have been discussed by the Hon'ble Apex Court in Ram Jas v. State of U.P.

(1970 ) 2 SCC 740, as under :-

CRI.APPEAL.337.03

"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not to deceived; and

(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

Thus, for conviction of the appellant for the above-said offence, it

is important that all the necessary ingredients constituting an offence under

the said section must be proved beyond reasonable doubt. In the instant case,

the appellant cannot be convicted for the offence of cheating punishable

under Section 417 IPC as the prosecution has failed to prove all ingredients of

the said offence beyond reasonable doubt.

14. Hence, the following order.

                                      ORDER 

(1)       Criminal Appeal No. 337/2003  is  allowed.

(2)       The  impugned  judgment and    order dated 29.4.2003   passed  by the 

learned 2nd Ad-hoc Additional Sessions Judge in Sessions Trial No. 406/1996

is hereby quashed and set aside. The appellant is acquitted of the offence

punishable under Section 417 of the IPC.

CRI.APPEAL.337.03

(3) The bail bonds of the appellant shall stand cancelled.

JUDGE

Sahare