Homan Bharawan Banmare vs State Of ...
2017 Latest Caselaw 7259 Bom

                                                                                                            CRI.APPEAL.658.03
                                                                       1


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

                                                 CRIMINAL APPEAL NO. 658/2003

            Homan s/o Bharawan Banmare
            Aged about 22 years,
            R/o Chikhla,Tah.Tumsar, Dist.Bhandara.                                                ..           APPELLANT

                        versus

            The State of Maharashtra
            Through P.S.O.
            Police Station Tumsar,
            Tumsar, Dist. Bhandara.                                                                ..         RESPONDENT

...............................................................................................................................................
            None for the appellant
            Mr. S.B. Bissa, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 18th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 07.10.2003 in

Sessions Trial No. 64/2001 delivered by the learned 2nd Additional Sessions Judge,

Bhandara, convicting the appellant (hereinafter referred to as 'the accused') for the

offence punishable under section 417 of the Indian Penal Code and sentencing him to

suffer S.I. for three months and to pay a fine of Rs.10,000/-, in default, to suffer R.I. for

three months the present Appeal is filed. The accused was charged for the offences

punishable u/ss. 376 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act

1961 r/ws.34 of the IPC, along with his father (accused no.2). The accused no.2 was

CRI.APPEAL.658.03

acquitted of all the charges, whereas appellant/ accused was convicted for offence

punishable u/s 417 of IPC, only.

2. None present for the appellant. I have heard Mr. S.B.Bissa, the learned

Additional Public Prosecutor for the respondent-State. With his assistance, I have

gone through the record and proceedings of the case, minutely.

3. Brief facts giving rise to the instant Appeal may be summarized as

under:-

Prosecutrix and the accused are residing in the same vicinity. Their

houses are adjacent to each other and, in between, there was a cattle-shed. It is the

case of the prosecution that on 1.1.2000 the accused made an offer of marriage to the

prosecutrix and expressed his desire to have sexual intercourse with her. Initially, the

prosecutrix consented to the offer made by the accused. The prosecutrix and the

accused met in the cattle-shed at about 10.00 p.m. The accused made a ritual by

spreading blood in the hair of prosecutrix by cutting his finger. The accused also put

vermilion on the forehead of Pushpa. Thereafter it is the case of the prosecution that

the accused had sexual intercourse with the prosecutrix. Their sexual relationship

continued till Diwali i.e. 27.10.2000. The prosecutrix then insisted for marriage.

4. On 7.12.2000 the accused called the prosecutrix at village Awlazari, the

place of his work in Bharveli Mines in Madhya Pradesh. The prosecutrix then went to

Awlazari on 8.12.2000. However the prosecutrix was asked to stay in the house of one

Ashok. Next morning, the prosecutrix and the appellant returned back with an

assurance from the accused to have the court marriage. The appellant promised to

CRI.APPEAL.658.03

perform marriage with the prosecutrix in the Court, however he made a demand of Rs.

50,000/- and a motorbike and non-satisfaction thereof, he said that he would not marry.

The prosecutrix then informed her family members about the said demand. A

community meeting was held on 23.12.2000. The appellant attended it with his father

and consented for marriage. The engagement ceremony of the prosecutrix with the

appellant was performed and the date of marriage was fixed as 2.4.2001. It is the

case of the prosecution that the accused did not turn up for marriage and his house in

his village was found to be locked. The prosecutrix then lodged the complaint against

the appellant.

5. As discussed above, the learned trial Judge has acquitted the accused

for offence punishable u/s 376 IPC and under the provisions of Section 3 and 4 of the

Dowry Prohibition Act. The only question before this Court is, whether the appellant

cheated the prosecutrix, by not marrying with her, although he had promised to

perform the marriage on 2.4.2001.

6. The testimony of PW1-prosecutrix, PW2-Budhram Mandlaye and PW3-

Shrilal Bamnote, indicates that the accused had promised to marry on 2.4.2001.

However on that day, he did not turn up. PW1 has categorically stated that the

meeting of respectable persons from her community was called at the house of Shrilalji

Bamnote on 17.12.2000. However, the accused did not attend the said meeting and

the meeting was again fixed on 23rd December, 2000. The appellant attended the said

meeting on that day and agreed for marriage. The engagement ceremony had taken

place. During the said engagement ceremony, the marriage date was fixed as

CRI.APPEAL.658.03

2.4.2001. According to PW1 on the date of marriage, the appellant did not turn up.

7. PW2-Budhram Mandlaye deposed that father of the accused (accused

no.2) attended the meeting. In the meeting Lalaji Gaherwal and one person known

as Engineer by profession, and other people were present. The father of the accused

was also present. The accused, however, did not come and they demanded a week's

time. In the said meeting engagement was performed, Pandit arrived and engagement

ceremony took place in the presence of a priest. Then date was fixed for marriage as

2.4.2001. In the meeting, engagement was performed in the presence of priest. The

invitation card (article A) was also printed. Thereafter the pandol for marriage was

erected. However the appellant did not attend the marriage. They went to his house

however it was found to be locked. Thereafter the complaint was lodged by his

daughter.

8. According to PW3-Shrilal Bamnote, on 23.12.2000, as many as fifteen

persons from the side of accused and 8 persons from the complainant's side totalling

21 persons attended the meeting. In the said meeting the accused refused to marry

with the prosecutrix. After some time, he admitted that he is ready to marry with the

prosecutrix and confessed his physical relationship with her. A priest was called to take

out the muhurat. The happenings in the meeting were reduced into writing and the

persons present in the meeting signed the same (Exh. 19 and 20). The date of marriage

was fixed as 2.4.2001, sweets were also distributed. The appellant placed tika over

her head and gave her Rs.11/- and thereafter meeting was over. According to PW3,

he received the invitation card from parents of the prosecutrix. However, the appellant

CRI.APPEAL.658.03

did not attend the marriage and barat of the appellant did not come to their house and

hence the complaint was lodged. Thereafter maternal uncle, and aunt of the accused

came to PW3-Shrilal and proposed that if they are ready to give amount of Rs.

50,000/- or Rs. 60,000/- or Hero Honda Bike then they will perform the marriage. PW3

replied that the complaint is lodged and now nothing can be done.

9. On a perusal of Exh.19 (1) & (2), which is the mutual consent deed and

the minutes of the community meeting dated 23.12.2000, it is crystal clear that the

accused had consented to marry with the prosecutrix. The testimony of the above-

referred witnesses has not been shaken in the cross-examination. To hold a person

guilty of cheating as defined under Section 415 of the I.P.Code, it is necessary to show

that he had fraudulent or dishonest intention, at the time of making the promise with

an intention to retain the property. In other words, Section 415 of the I.P.Code which

defines cheating, requires deception of any person (a) inducing that person to : (i) to

deliver any property to any person, or (ii) to consent that any person shall retain 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 damage or harm to that perosn, anybody's mind, reputation or

property.

10. The case of the prosecutrix is covered under clause (b). The accused

had cheated the prosecutrix by not performing the marriage although he promised to do

so, which caused damage to her mind and reputation. The learned trial Judge has

rightly come to the conclusion that the accused has cheated the prosecutrix. Hence

CRI.APPEAL.658.03

the following order:

ORDER:

i)         Criminal Appeal No. 658/2003 is dismissed.

ii)        The judgment and order dated 7.10.2003 in Sessions Trial No.               64/2001

delivered by the learned 2nd Ad-hoc Additional Sessions Judge, Bhandara, convicting

the appellant for the offence punishable under section 417 of the Indian Penal Code,

is hereby maintained.

(iii) The appellant is directed to surrender to his bail bond, within a period of four

weeks.

JUDGE

sahare