Md.Khairul Islam vs The State Of Assam
2021 Latest Caselaw 2665 Gua

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GAHC010160802011




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./17/2011

            MD.KHAIRUL ISLAM
            S/O MD. IBRAHIM ALI, R/O VILL. -3 NO. JERAGURI, P.S. MANIKPUR, DIST.
            BONGAIGAON, ASSAM.



            VERSUS

            THE STATE OF ASSAM




Advocate for the Petitioner   : MR.S K SHARMA

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER Date : 02-11-2021

The instant appeal under Section 374(2), Code of Criminal Procedure, 1973 ['the CrPC' and/or 'the Code', for short] is directed against the judgment and order dated 29.12.2010 passed by the learned Additional Sessions Judge [FTC], Bongaigaon ['the trial court', for short] in Sessions Case no. 14(M)/2009 [State of Assam vs. Md. Khairul Islam]. By the said judgment and order dated Page No.# 2/20

29.12.2010, the accused-appellant had been convicted under Section 417, Indian Penal Code [IPC] and he had been sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for further 3 months.

2. The case of the prosecution, in brief, is that on 24.03.2007, a First Information Report [FIR] was lodged before the In-Charge, Gerukabari Police Post by the complainant. In the said FIR, it was, inter alia, alleged that she had a love affair with the accused-appellant for last about 6 months. At around 07- 00 p.m. on 22.03.2007, the accused-appellant by making a promise to marry her, took her to his house from her mother's house and thereafter, committed rape upon her in his room against her will. When the mother of the complainant came to know about the complainant's absence in the house, she along with her brother and some neighbours made a search for her. In the course of such search, they arrived at the courtyard of the accused-appellant's house. The accused-appellant hearing about the sound of people approaching, ran away from the house. The parents of the accused-appellant were questioned with regard to the incident by those persons. After such enquiry, they left the place leaving the complainant in the house of the accused-appellant. The complainant alleged that after a while, the parents of the accused-appellant abused her with filthy language and drove her out of the house. She then raised alarm and hearing her alarm, nearby people gathered at the place and took her to the police station.

3. On receipt of the said FIR, the In-Charge, Gerukabari Police Post registered Gerukabari Police Post General Diary Entry no. 369 dated 24.03.2007 and by forwarding the FIR to the Officer In-Charge, Manikpur Police Station for registering a case under Section 376, IPC, he took up the investigation of the Page No.# 3/20

case. On receipt of the FIR, the Officer In-Charge, Manikpur Police Station registered a case being Manikpur Police Station Case no. 31/2007 [G.R. Case no. 83/2007] against the accused-appellant under Section 376, IPC on 25.03.2007.

4. The investigating officer [I.O.] of the case, upon completion of investigation, submitted a charge sheet being Charge Sheet no. 25/2007 dated 30.05.2007 under Section 173, CrPC finding a prima facie case under Section 376, CrPC against the accused-appellant. On submission of the charge sheet,

the learned Judicial Magistrate, 1st Class, Bijni, upon appearance of the accused- appellant, furnished copies to him as per the provisions of Section 207, CrPC and as the offence under Section 376, IPC is exclusively triable by the Court of

Sessions, the learned Judicial Magistrate, 1 st Class, Bijni committed the case record of G.R. Case no. 83/2007, arising out of Manikpur Police Station Case no. 31/2007, by order dated 03.03.2009 and by taking the accused-appellant into custody after rejecting his bail prayer, to the Court of Sessions. On receipt of the case record of G.R. Case no. 83/2007, the Court of Sessions registered the same as Sessions Case no. 14(M)/2009 and transferred the case to the Court of learned Additional Sessions Judge [F.T.C.], Bongaigaon ['the trial court'] for disposal.

5. After causing production of the accused-appellant from custody, the learned the trial court after hearing the learned Public Prosecutor and the learned defence counsel and after perusal of the materials on record, framed charges under Section 376, IPC and under Section 493, IPC against the accused-appellant. The charges were then read over and explained to the accused-appellant to which he pleaded not guilty and claimed to be tried.

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6. During the course of the trial, the prosecution examined 9 [nine] nos. of witnesses and exhibited 7 [seven] nos. of documents in order to bring home the charges against the accused-appellant. After closure of the prosecution evidence, the accused-appellant was examined under Section 313, CrPC and his plea was denied. The defence did not adduce any evidence. After hearing the learned counsel for the parties, the learned trial court had found the accused- appellant guilty of the offence under Section 417, IPC and he was sentenced in the manner, indicated above.

7. Heard Mr. T. Chakraborty, learned counsel for the accused-appellant and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent State of Assam.

8. Mr. Chakraborty has submitted that the ingredients of Section 375, IPC are absolutely absent in the case in hand. He has further submitted that the complainant was never under any mistaken belief that she was lawfully married to the accused-appellant and as such, the question of framing any charge under Section 493, IPC could not have arisen at all. The only issue was as to whether there was any sexual intercourse on the date of the incident on the false promise of marriage. If there was no sexual intercourse, there could not be any conviction also under Section 417, IPC. As there was no false promise on behalf of the accused-appellant to marry the complainant and no advantage was taken by him to commit any sexual intercourse on such false promise of marriage, the conviction of the accused-appellant by the learned trial court is unsustainable. He has further submitted that the reasoning given by the trial Court about cognate offences cannot be countenanced. In such view of the matter, the accused-appellant is entitled to be acquitted.

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9. Mr. Goswami has submitted that there was deception on the part accused-appellant as the complainant was taken to his house on the date of the incident on the pretext that he would marry her. After taking the complainant to his house, the accused-appellant had sexual intercourse with her with his such promise to marry her. He has, thus, submitted that the judgment and order of conviction and sentence of the learned trial court does not call for any interference.

10. I have considered the submissions of the learned counsel for the parties and have perused the materials available in the case record of Sessions Case no. 14(M)/2009, in original.

11. The complainant was examined as P.W.4. P.W.1 is a brother of the complainant whereas P.W.3 is the mother of the complainant. The P.W.2, P.W.6, P.W.7 and P.W.8 are co-villagers of the complainant and the accused. The medical evidence was laid through a doctor who deposed as P.W.5 while the Investigating Officer [I.O.] was examined as P.W.9.

12. In order to appreciate the submissions of the learned counsel for the parties, it would be apposite, at first, to mention, in brief, about the testimonies of the prosecution witnesses, with the testimony of the complainant at the last.

13. P.W.1 in his testimony, had stated that at about 07-00 p.m. on the date of the incident, his mother [P.W.3] came to his house to inform that the complainant [P.W.4] was not present at the house. P.W.1 used to live separately from his parental house where his mother [P.W.3], the complainant [P.W.4] and two other sisters used to live. P.W.1 stated to have gone immediately to the house of the accused-appellant along with three other co-villagers including Md.

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Motiur Rahman [P.W.6]. All of them met the complainant in the house of the accused-appellant. He further deposed that as soon as the accused-appellant saw them, he ran away from the house. When the complainant was confronted by them, she told them that the accused-appellant brought her along with him to his house with a promise to marry her. After meeting the father of the accused-appellant there, all of them returned home. After half an hour, he heard commotion in the house of the accused-appellant and when he went to the house of the accused-appellant, he saw the mother and the two sisters of the accused-appellant assaulting the complainant and driving her out from the house. He saw blood injury in the left hand of the complainant. Thereafter, the complainant along with him went to Gerukabari Police Post and filed the case. In his cross-examination, P.W.1 had stated that as there was a love affair between the accused-appellant and the complainant, both of them were called to a village meeting and in the meeting, they were asked not to continue the love affair.

14. P.W.2 stated that on the date of the incident, he went to the house of the accused-appellant at about 07-30 p.m. on hearing alarm. His three neighbours also accompanied him. On going there, he saw the complainant sitting on a bed inside the house of the accused-appellant. When the complainant was queried, she told that the accused-appellant brought her there with a promise to marry her and with such promise, he had committed sexual intercourse with her. After telling the father of the accused-appellant to do the needful, he came back. After an hour, he saw the complainant raising alarm from the house of the accused-appellant by accusing that she was assaulted and driven out of the house by the parents of the accused-appellant. In his cross-examination, P.W.2 stated that he was initially called by the mother of the complainant, P.W.3.

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15. P.W.3, the mother of the complainant, deposed to the effect that on the date of the incident, she at around 07-00 p.m. found her daughter, that is, the complainant missing from the house. She thereafter, along with Md. Suleman Khan [P.W.8], Md. Ismail Seikh [P.W.2] and others searched for the complainant and found her at the house of the accused-appellant. When she asked the complainant, the complainant reported that she went there at the request of the accused-appellant. She claimed that the age of her daughter was about 15 years at that time. The co-villagers took the complainant back to her residence in that night. In her cross-examination, she deposed that she was not aware as to whether the complainant was taken forcibly by the accused-appellant or she had gone there voluntarily. She had stated that on the date of the incident, she did not enter into the house premises of the accused-appellant to see her daughter. She had understood that the complainant was in the house of the accused-appellant. The complainant was taken back to the house at around 08- 00 p.m. and then only, she got the opportunity to talk with her daughter.

16. P.W.6, another co-villager, deposed that at around 07-00 p.m., he having heard alarm from the house of the accused-appellant, went there and saw a gathering of 20/25 people from the neighbourhood at that place. P.W.2, P.W.7 and P.W.8 were also there. He saw the complainant crying at the courtyard of the accused-appellant. The complainant reported them that she was brought by the accused-appellant with a promise to marry her. They did not find the accused-appellant at his house. As the parents of the accused-appellant were reluctant to keep the complainant in their house, the complainant was taken to the police station by the neighbouring people. In his cross-examination, he deposed that he along with P.W.2 and one Ismail Ali took the complainant to the police station. He did not know whether the complainant was taken to the Page No.# 8/20

courtyard of the accused-appellant by the accused-appellant himself or that she voluntarily went there.

17. P.W.7 deposed to the effect that at around 07-00 p.m. on the date of the incident, he found the complainant sitting in the house of the accused-appellant. At that time, the complainant's brother, P.W.1 came and told him that the complainant had gone missing from the house and it was needed to be enquired if she was in the house of the accused-appellant. Then, P.W.2, P.W.6 and P.W.8 along with P.W.1, went to the house of the accused-appellant. Seeing them, the accused-appellant fled away from his house. When the complainant was asked, she told that since she and the accused-appellant was having a love affair for about six months, she was brought to his house to marry her. The parents of the accused-appellant then chided them. Thereafter, the group leaving the complainant in the house of the accused-appellant, left the place. About half an hour later, there was commotion in the courtyard of the house of the accused- appellant as the parents of the accused-appellant assaulted the complainant and thereafter, 20/30 villagers including P.W.2 and P.W.8, handed the complainant over to Gerukabari Police Post. At the Gerukabari Police Post, the complainant filed the case. In his cross-examination, he stated that he did not see the accused-appellant and the complainant roaming together prior to the date of the alleged incident. He stated that the complainant expired about 2/2½ months ago.

18. P.W.8 in his examination-in-chief, stated that at around 08-30 p.m. on the date of the incident, P.W.1 who was his neighbour, came to his house and informed that the complainant was missing from the house. Then, P.W.8 along with 10/12 people including P.W.2, P.W.6 and P.W.7, made a search for the Page No.# 9/20

complainant and during the search, they found the complainant in the house of the accused-appellant. At that time, the accused-appellant was not found in his house. In reply to their query, the complainant told them that the accused- appellant took her there with a promise to marry her. Then, they left the house of the accused-appellant. After about one hour of their leaving the house of the accused-appellant, the complainant too returned to her parents' home and told that since the mother of the accused-appellant did not allow her to stay there, she had to return. In his cross-examination, he stated that his house is situated at a distance of about 48-60 feet from the house of the accused-appellant. He further stated that earlier, the complainant did not tell them that the accused- appellant would marry her. After the incident, the complainant got married to some other person in some other place. He also deposed that the complainant expired about 3 months ago.

19. P.W.9 who was the In-Charge of the Gerukabari Police Post on 22.03.2007, and also the Investigating Officer [I.O.] of the case, deposed to the effect that at around 11-45 p.m., the complainant appeared at the Police Post and informed orally that at around 07-00 p.m., the accused-appellant took her to his residence with the assurance to marry her and thereafter, rape was committed upon her by him. Accordingly, he made a General Diary Entry no. 341 dated 22.03.2007. On 23.03.2007, he visited the place of occurrence, prepared a sketch-map, examined the witnesses and sent the complainant for medical examination. It was only on 24.03.2007, the complainant lodged a written FIR and on that date, he was entrusted to investigate the case. After completion of investigation, he submitted the charge sheet [Ext.8]. He further exhibited the FIR as Ext.1 and the sketch-map as Ext.7. In his cross- examination, he stated that the General Diary Entry register was not brought by Page No.# 10/20

him to the Court.

20. One Dr. Sanatan Das was examined as P.W.5. P.W.5 deposed that one Dr. Arjun Ch. Das who was posted as the Senior Medical & Health Officer at the Manikpur Primary Health Centre [PHC], examined the complainant at the Manikpur PHC on 23.03.2007. Dr. Arjun Ch. Das expired in the meantime and P.W.5 deposed that he was acquainted with the handwritings of Dr. Arjun Ch. Das. P.W.5 deposed that after examination of the complainant, Dr. Arjun Ch. Das found inter alia the following :-

"(1) one abrasion on the lower 1/3 rd and in front of the left forearm about 1" x 1/3" in sizes. The age of the wound is 12 to 24 hours. In his opinion, the injury was simple in nature and it was caused by the blunt weapon. (2) No torn or soiled cloth, (3) No matting of the public hair or bloodstain, (4) No injury to the pubic region, (5) No injury to the vaginal canal, (6) hymen not intact, (7) vaginal aspirate taken, no sperm seen on microscopic examination, (8) L.M.P. on 11.03.2007; used for pregnancy determination and urine for pregnancy test (HCG)."

21. The complainant was examined as P.W.4. In her examination-in-chief, she stated that at around 07-00 a.m. on the date of the incident, when her mother was not present at the house, the accused-appellant who was from the same village, came to their house and told her that he would marry her. He asked her to accompany him to his house. The complainant stated that she was about 19 years of age and as she had a long standing love affair with the accused- appellant, she voluntarily went with the accused-appellant to his house. When the people became aware of their relationship, they held a meeting in the house Page No.# 11/20

of the accused-appellant. When the accused-appellant saw the public gathering, he ran away from his house. As the accused-appellant was found absent, the meeting could not be held and she returned to her mother's house in that night itself. Thereafter, she filed the case vide the FIR [Ext.1]. The police got her medical examination done as well as got her statement recorded before the learned Magistrate. It was only when a query was made by the Court, she stated that the accused-appellant took her to his house and at around 08-00 p.m., he committed rape upon her against her will in his house. Since the accused-appellant made a promise to marry her, neither she raised any objection nor did she scream. As the accused-appellant did not marry her as per his promise, she had to file the case.

22. The learned trial court after considering the evidence on record, had arrived at a finding that the complainant was a consenting party to the sexual intercourse. She being a major at that point of time and being a consenting party to the sexual intercourse, the allegation of rape upon her by the accused- appellant was not established as against the accused-appellant. The learned trial court had further held that the ingredients of the offence under Section 493, IPC were also absent. The learned trial court then, considered the offences under Section 493, IPC and Section 417, IPC and found the said two offences as cognate offences by holding that the main ingredients of deception and inducement are common for both the offences. Holding as such, the accused- appellant was found guilty of the offence under Section 417, IPC and he was convicted and sentenced, in the manner mentioned above.

23. The case, after receipt of the FIR from the complainant vide Gerukamukh Police Post General Diary Entry no. 369 dated 24.03.2007, was registered under Page No.# 12/20

Section 376, IPC. In view of specific submission by the defence to the effect that the ingredients of Section 375, IPC are absolutely absent in the case, it would be apposite, at first, to consider and examine the medical evidence available on record. As per the medical examination report [Ext. 3], the complainant was examined at 01-05 p.m. on 23.03.2007. The doctor upon examining the complainant, found no injury to the breast of the complainant. There was no torn or soil cloth. There was no matting of the pubic hair or blood stain. There was no injury either in the pubic region or in the vaginal canal though the hymen was not intact. In the vaginal aspirate taken, no sperm was seen on microscopic examination. One abrasion in the left forearm of about 1" X " was seen which injury, according to the doctor, was simple in nature and caused by blunt object. After examination, the doctor opined that there was no sign to ascertain that it was a case of rape. On the basis of the radiological report, it was opined that the complainant was above 18 years of age.

24. Thus, the medical examination report [Ext. 3] and the opinion of the doctor had negated the commission of offence of rape. The radiological report stated that the complainant was above 18 years of age and, thus, was a major at the time of the alleged incident. In her testimony, the complainant [P.W.4] had also deposed that she was 19 years of age on the date of the incident. P.W.1 i.e. the brother of the complainant also stated to the same effect. Though the mother of the complainant [P.W.3] deposed to the effect that the complainant was about 15 years of age at the time of the incident, the same stands discarded in view of the other evidence, mentioned above, to the effect that the complainant was above 18 years of age and was a major on the date of the incident.

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25. The only injury of abrasion could only be made relatable to the allegation of assault upon the complainant by the family members of the accused- appellant when he was not present in the house. In the absence of any medical evidence of forcible sexual assault, it becomes necessary to look at the oral evidence in view of the settled position that a conviction can be based on the sole testimony of prosecutrix if it is unimpeachable and beyond reproach. When the complainant deposed as P.W.4, she stated in her examination-in-chief that at about 07-00 p.m. on the date of the incident, the accused-appellant came to their house and told her that he would marry her. She was told by the accused- appellant to accompany him to his house. Her mother was not present in the house at that point of time. She stated that she had a long standing love affair with the accused-appellant and she voluntarily went along with the accused- appellant to his house. When the public became aware of the same, the public held a meeting in the house of the accused-appellant. Seeing the gathering of the public in his house, the accused-appellant stated to have ran away and in the absence of the accused-appellant the meeting could not be held. She then returned to her mother's house in the night. Thus, in her examination-in-chief, the complainant did not say anything regarding commission of rape upon her by the accused-appellant forcibly against her will. It was only when a query was made by the Court the complainant stated that the accused-appellant committed rape upon her in his house against her will. But she also deposed to the effect that since the accused-appellant made a promise to her that he would marry her she did not either raise any objection nor scream. She had to file the case as the accused-appellant did not marry her. In her cross-examination, P.W.4 stated that when she and the accused-appellant reached the house of the accused-appellant the parents, the elder brother and two minor sisters of the Page No.# 14/20

accused-appellant were present. She further stated that she did not tell anyone that the accused-appellant had committed rape upon her on the date of the incident. At the same time, she denied suggestions to the effect that the accused-appellant did not take her to his house with a promise of marriage and that he did not commit rape on her. She further deposed that she was not aware about the date on which the incident took place but she lodged the FIR one day after the incident.

26. On an analysis of the testimony of the complainant, it is found that she was not aware when the incident took place but the FIR was lodged after one day of the incident. If the same is accepted to be correct and considering the fact that the FIR was lodged on 24.03.2007 then the alleged incident of rape had taken place on 23.03.2007. It was on 23.03.2007 the complainant was medically examined by the doctor who found no evidence of rape. On the other hand, in the FIR [Ext. 1] instituted by the complainant herself she had alleged that the incident took place at around 07-00 p.m. on 22.03.2007. Thus, a serious doubt has arisen about the date of the alleged incident. The doubt has got further strengthened in view of her testimony to the effect that she did not tell anyone on the date of the incident that the accused-appellant had committed rape upon her. The complainant did not depose, in her examination- in-chief, about the accused-appellant committing rape upon her. She appeared to made improvement only when the learned trial court made a query to her, by bringing the alleged event of committing rape on her. With her reply that she had filed the case only when the accused-appellant did not marry her has put a further dent in her version.

27. It is settled that when a Court, on an analysis of the version of the Page No.# 15/20

prosecutrix, finds difficulty in accepting the said version because it is not unimpeachable and beyond reproach then there arises a requirement to search for other evidence - either direct or circumstantial - which would lend assurance to the testimony of the prosecutrix. It is in such fact situation it has become necessary to examine and scrutinize the other evidence on record.

28. As per P.W.1, he went to the house of the accused-appellant along with P.W.6 and two other co-villagers immediately on the date of the incident and met the complainant there. The complainant did not tell P.W.1 at that point of time that she was forcibly raped. P.W.6 had, on the other hand, deposed that he went to the courtyard of the house of the accused-appellant on hearing alarm at around 07-00 p.m. from the house of the accused-appellant and saw a gathering of about 20/25 people there and he also saw P.W.2 there. The complainant reported before the gathering only to the effect that she was brought by the accused-appellant with a promise to marry her. P.W.6 also did not depose that the complainant had reported to him that she was forcibly raped by the accused-appellant. The mother of the complainant i.e. P.W.3 stated that she along with few of her co-villagers including P.W.2, P.W.7 and P.W.8, went to the house of the accused-appellant on the date of the incident where she saw the complainant in the house of the accused-appellant. When asked the complainant told her that she went there at the request of the accused- appellant. In her testimony, P.W.3 did not say that she was told by the complainant that the complainant was forcibly raped by the accused-appellant in his house on the date of the incident. P.W.7 stated that on the date of the incident, he along with Ismail Hussain, P.W.1, Suleiman Sheikh, Motibar went to the house of the accused-appellant and found the complainant there. When asked by them, the complainant told them that since the accused-appellant was Page No.# 16/20

having a love affair with her since six months he took her to his house to marry her. When the parents of the accused-appellant scolded them they left the house of the accused-appellant leaving the complainant there. Thus, P.W.7 also did not depose about committing forcible rape upon the complainant by the accused-appellant on the date of the incident. P.W.8 who stated to have gone to the house of the accused-appellant on the date of the incident, deposed to the effect that he went there along with P.W.2, P.W.7 and P.W.8 searching for the complainant and found the complainant there. Then the complainant told them that the accused-appellant brought her there with a promise to marry her. Having been told so by the complainant, they left the house of the accused- appellant and after one hour, the complainant also returned to her house. Like P.W.7, P.W.8 also did not depose that when he met the complainant, she told anything about commission of rape by the accused-appellant. It is only P.W.2 who had deposed about commission of rape. This witness stated that he had gone to the house of the accused-appellant on the date of the incident with P.W.7 and P.W.8 and going there, they saw the complainant in the house of the accused-appellant. When the complainant was asked by them, they were told by the complainant that the accused-appellant brought her there with a promise to marry her and he also committed sexual intercourse with her. This part of the evidence of P.W.8 is found not acceptable in view of the facts that he stated that such an allegation was made by the complainant when he was present along with P.W.7 and P.W.8 and that P.W.7 and P.W.8, in their testimonies, did not say that they were reported by the complainant that she was raped by the accused- appellant in his house.

29. The testimonies of the other witnesses save and except P.W.2 did not support the case of the complainant that she was sexually assaulted by the Page No.# 17/20

accused-appellant in his house after she was taken there by him with a promise to marry. The testimony of P.W.2 is not found acceptable in view of the reasons mentioned hereinabove. On a conjoint reading of the testimonies of the other prosecution witnesses other than the victim and the medical evidence, as discussed above, it is found that there is neither any credible direct evidence nor any credible circumstantial evidence which supports a case of commission of rape of the complainant by the accused-appellant in his house on the date of the alleged incident. It is also not clear from the evidence on record as to when the alleged incident had occurred. The evidence of the complainant is not found unimpeachable and trustworthy to return a finding of guilt against the accused- appellant of committing the offence of rape on the sole basis of her testimony.

30. In such backdrop, it is required to be seen as regards availability of evidence on record for convicting the accused-appellant for committing the offence of cheating under Section 417, IPC. Section 415, IPC has defined cheating and Section 417, IPC has provided for the punishment for cheating. As per Section 417, IPC, whoever cheats shall be punished to imprisonment of either description for a term which may extend to one year, or with fine, or with both.

31. A few undisputed facts have emerged from the evidence on record. The complainant, as per her own version, was about 19 years of age on the date of the alleged incident. The medical examination report [Ext. 3] also supports the same since as per the radiological report, the age of the complainant was above 18 years on the date of the alleged incident. It has also emerged from the version of the complainant that she and the accused-appellant were having a love affair for a period of six months prior to the date of the alleged incident. On Page No.# 18/20

the date of the alleged incident, the accused-appellant had gone to the house of the complainant and asked her to come to his house and he would get married to her. On that premise, the complainant had voluntarily went to the house of the accused-appellant. Other than the above, nothing further have emerged from the evidence on record regarding the complainant and the accused- appellant having entered into any sexual intercourse on the date of the incident. Had it been a case that the accused-appellant by extending a false promise to marry the complainant, indulged her into sexual acts then only a question of having the consent of the complainant fraudulently under the misconception of fact would have arisen because sexual indulgence by an accused with the victim's consent given under misconception of fact falls within the ambit of rape.

32. From the evidence on record, it has emerged that when the complainant reached the house of the accused-appellant with the accused-appellant, the parents, an elder brother and two sisters of the accused-appellant were present in the house at that time. The complainant herself had stated that when the accused-appellant saw that a number of persons had gathered inside the premises of his house, who might have gathered there in search of the complainant as have emerged from the evidence of the other witnesses, the accused-appellant ran away from his house. The complainant has further deposed that she instituted the case when she found that the accused-appellant did not marry her as per his promise. It is noticed that the complainant instituted the FIR on the next date of the alleged incident whereas the alleged incident stated to have occurred at around 07-00 p.m. and beyond, on the previous date. Thus, the said evidence on record is deficient to reach a finding either about a false promise on the part of the accused-appellant to marry the complainant or about a mere breach of promise on the part of the accused-

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appellant to marry her due to circumstances beyond his control. In view of want of credible evidence regarding sexual indulgence/cohabitation by the accused- appellant with the complainant with her consent given under misconception of fact, thus, bringing the case within the ambit of rape and deficient nature of evidence to arrive at any finding regarding either about false promise of marriage or mere breach of promise of marriage, the conviction of the accused- appellant for the offence of cheating is found unsustainable. To sustain a finding of guilt for the offence of cheating there has to be fraudulent or dishonest inducement of a person by the accused and the evidence on record in the case in hand does not establish any fraudulent or dishonest inducement of the complainant by the accused-appellant for entering into any sexual indulgence with her.

33. Chapter XX of the Code pertains to offences relating to marriage and Section 493, IPC comes within the said chapter. The offence under Section 493, IPC is with regard to cohabitation caused by a man deceitfully inducing a belief of lawful marriage. The essence of the offence consists of deception induced by a man upon a woman as a result of which the woman is led to believe that she is lawfully married to him whereas she is not lawfully married to him. The ingredients of the offence inter alia are that there must be intention on the part of the accused to practice deceit to induce a woman to believe that she was lawfully married to him and there was cohabitation or sexual intercourse between them as a result of such deception. When a charge for a major offence is not made out, conviction for a minor cognate offence, even in absence of a charge, can be sustained. If the accused is charged with a grave offence but the same is not established on merits, he can still be convicted and punished for commission of a less graver offence without altering the charge, provided the Page No.# 20/20

lesser offence is of cognate nature and its ingredients are independently proved beyond reasonable doubts. The learned trial court after arriving at a finding that the offence under Section 493, IPC was not established, had convicted the accused-appellant for the offence under Section 417, IPC by holding that the offence under Section 417, IPC is a cognate offence to the offence under Section 493, IPC. From the discussion on the evidence on record, it has already been found that the ingredients of the offence under Section 415, IPC which has defined the offence of cheating are found absent in the case in hand. Thus, a conviction of the accused-appellant under Section 417, IPC which has provided for the punishment for the offence of cheating defined under Section 415, IPC, is not found merited.

34. In view of the discussions made above, this Court has found merit in the appeal and accordingly, the same is allowed. Resultantly, the conviction and sentence passed against the accused-appellant by the learned trial Court in Sessions Case No. 14(M)/2009 is set aside by acquitting the accused-appellant. The accused-appellant was allowed to remain on previous bail, pursuant to an order dated 28.01.2011 passed in connected Crl.Misc. Case no. 77/2011. The bail bond stands discharged, accordingly. The LCR be sent back forthwith.

JUDGE

Comparing Assistant