Gauhati High Court
Page No.# 1/7 vs The State Of Assam on 6 January, 2025
Page No.# 1/7
GAHC010005672012
2025:GAU-AS:94
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./259/2012
KUMUD DAS
S/O SITA RAM DAS R/O RAIPUR, UNDER PATACHAR KUCHI P.S. IN THE
DIST. OF BARPETA, ASSAM,
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.D BANERJEE, MR.J C BARMAN,MR.K BHATTACHARJEE
Advocate for the Respondent : MR.R BARUAH, PP, ASSAM,MISSM BORAH,MR.R M
CHOUDHURY,MR.R N CHOWDHURY
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT & ORDER (ORAL)
Date : 06-01-2025
1. Heard Mr. K. Bhattacharjee, learned counsel for the petitioner and Mr. P.
Borthakur, learned Additional Public Prosecutor, Assam for the respondent No.1.
None appears for the informant/respondent No.2, though the name of the
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counsel representing her before this Court has been reflected in the cause list.
2. The present Criminal Revision Petition under Sections 397/401 of the Code of
Criminal Procedure, 1973 is filed assailing the judgment and sentence dated
18.08.2010 passed by the learned Sub-Divisional Judicial Magistrate (S), Barpeta
in connection with GR Case No. 1310/1999, whereby the present
petitioner/accused was convicted under Section 417 IPC and was sentenced to
undergo Rigorous Imprisonment (RI) for 6 (six) months and to pay a fine of Rs.
3,000/- (three thousand only) and in default of payment of fine, to undergo
Simple Imprisonment (SI) for 20 (twenty) days.
3. The further challenge is made against the appellate judgment and order dated
24.01.2012 passed by the learned Additional Sessions Judge (FTC), Barpeta,
Assam in Criminal Appeal Case No. 21/2010, whereby the judgment and sentence
dated 18.08.2010 passed by the learned Sub-Divisional Judicial Magistrate (S)
Barpeta, was upheld.
4. The prosecution story in a nutshell is that:-
(i) The complainant/victim was in love relationship with
the accused/petitioner for 4 years. According to her, the
accused/petitioner promised to marry her and had sexual intercourse
with her. Though the complainant initially refused the proposal of the
accused/petitioner but subsequently, she relented and had started
having sexual intercourse with him. Accordingly, in the month of
"Puh" (in Assamese), she conceived and became pregnant. She put
pressure on the accused/petitioner to marry her but on various
pretexts, he avoided to marry her. She informed about the incident to
the guardians of the both sides and though a village meeting was
held, the accused remained absent in the meeting.
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(ii) Thereafter, she lodged a complaint before the learned
Chief Judicial Magistrate, Barpeta on 23.07.1999 and the aforesaid
complaint was forwarded to the Officer-in-Charge of Sarthebari Police
Station. Accordingly, Sarthebari P.S. Case No. 65/1999 was registered
under Sections 376/420 IPC. After investigation of the case, police
submitted Charge Sheet under Sections 376/420 IPC. The learned
Magistrate committed the case to the Court of the Sessions Judge,
Barpeta and the learned Sessions Judge, Barpeta framed charge
under Section 417 IPC and remanded the case to the Sub-Divisional
Judicial Magistrate (S), Barpeta for trial.
(iii) During the trial, the prosecution examined as many as
5 (five) witnesses. After the trial, the learned Trial Court convicted
the petitioner under Sections 417 IPC and sentenced him to undergo
RI for 6 (six) months and to pay a fine of Rs. 3,000/- (three thousand
only) and in default of payment of fine, to undergo SI for 20 (twenty)
days. Thereafter, the accused/petitioner preferred an appeal against
the judgment and sentence dated 18.08.2010, which was also upheld
by order dated 24.01.2012, as recorded herein above.
5. In the aforesaid backdrop,Mr. Bhattacharjee, learned counsel for the petitioner
argues that the prosecution had failed to bring home the charge under Section
417 IPC as initial deception is missing in the instant case and the complainant
being a major had herself consented to their intimate and physical relationship
out of her own sweet will inasmuch as they were in a relationship of more than 4
years.
6. Mr. Bhattacharjee, learned counsel for the petitioner further urges that there is
no material, even to remotely suggest that the petitioner had lured the victim on
the pretext of marrying her. Therefore, according to him, the conviction under
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Section 417 IPC for 'cheating' is not sustainable in law and the impugned
judgments and orders are liable to be interfered, having been vitiated by
perversity.
7. Mr. Bhattacharjee, learned counsel for the petitioner contends that the
prosecution has failed to prove miserably by way of cogent evidence that the
consent by the complainant to the sexual intercourse was given under
misconception of fact, i.e., promise to marry but for the fact that she also desired
for it as they were in a love relationship for 4 years. Therefore, the petitioner
ought not to have been convicted under Section 417 IPC for cheating based on
the evidence adduced by the prosecution.
8. Mr. Bhattacharjee, learned counsel for the petitioner also contends that it is
well settled that the 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 given under misconception of fact.
9. Par Contra, Mr. Borthakur, learned Additional Public Prosecutor, Assam, argues
that the prosecution through the evidence of the victim and other witnesses have
been able to prove that the promise to marry was false and that the accused
made such promise with an intention not to abide by it but to deceive the victim
and convinced her for engaging in the sexual relationship. Thus, the
misconception of fact, which vitiated the consent of the victim had duly been
proved by the prosecution beyond any reasonable doubt.
10. Mr. Borthakur, learned Additional Public Prosecutor, further submits that the
learned Appellate Court after re-appreciation of the facts established through the
prosecution witnesses, had affirmed the judgment of the learned Trial Court.
Therefore, this is not a fit case to exercise the revisional power of this Court to
interfere with such well reasoned judgments, more particularly, when both the
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Courts below had concurrently found the petitioner guilty of offence under
Section 417 IPC.
11. I have given anxious consideration to the submissions made by the learned
counsels for the parties and also perused the evidence, more particularly for the
reasons that the point of perversity has been urged by the learned counsel for
the petitioner.
12. From the evidence, it is seen that the victim and the accused were in a love
relationship for more than 3/4 years. According to the victim, her last
menstruation was prior to the month of the incident and they had subsequent
physical relationship on the pretext of marriage and they continued such physical
relationship for 8 to 10 days. Thereafter, she missed her periods.
13. It is also discernible from her testimony that on many occasions, they had
physical relationship at different places. It is also disclosed in her evidence-in-
chief that she stayed at the house of the petitioner. However, the family members
of the petitioner refused to accept her as their daughter in law. Thereafter, there
was an attempt for settlement which also failed. During her cross-examination,
she deposed that though they were in a love relationship, she did not disclose it
to her parents.
14. From the evidences of PW-3, PW-4 and PW-5, it is seen that subsequent to the
alleged incident and during the trial, both the accused and the victim had got
happily married to different individuals.
15. Thus, from the testimonies of these prosecution witnesses, it is disclosed that
both the accused and the victim are neighbours and they had a long love
relationship. Though an allegation of promise to marriage and refusal is made,
however, the specific allegation as regards failure of marriage has been attributed
to the family members of the accused as they objected to such marriage.
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16. In the aforesaid backdrop of the evidence, the fundamental issue that arose
before the learned Courts below is whether the petitioner and the victim had a
long love relationship of more than 3/4 years which resulted in pregnancy of the
prosecutrix and thereafter, the accused did not marry her, which amounts to an
offence of cheating.
17. In the case of Promod Suryabhan Pawar Vs. State of Maharashtra
reported in (2019) 9 SCC 608 , the Hon'ble Apex Court held that when the
promise to marry is false and the intention of the maker, at the time of making
the promise itself was not to abide by but to deceive the woman and to convince
her to engage in sexual relation, there is a misconception of fact, which vitiates
the woman's consent. At the same time, a breach of a promise cannot be said to
be a false promise and to establish false promise, the maker of the promise
should have had no intention of upholding his word at the time of giving it. It was
further held that consent of a woman in reference to Section 375 IPC must
involve an active and reasoned deliberation towards the proposed act. It was also
held that to establish whether the consent was vitiated by misconception of fact
arising out of a promise to marry, two propositions must be established. The
promise of marriage must have been a false promise, given in bad faith and with
no intention of being adhered to at the time it was given and such false promise
itself must be of immediate relevance, or it must bear a direct nexus to the
woman's decision to engage in the sexual act.
18. In the case in hand, from the evidence of PW-1, it is clear that there had been
a long love relationship of 4 years between the petitioner and the victim and they
had physical relationship at different point of time at different places. Both of
them were majors. There is no evidence to establish or suggest that the
aforesaid long love relationship and the physical relationship were under
misconception of fact or that the consent of the victim was based on fraudulent
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representation of marriage.
19. This Court has also not found anything to indicate from the available materials
even suggesting that at the inception, the accused did not intend to marry the
victim. What is discernible is that the parents of the accused did not accept the
victim as their daughter in law. Therefore, in the considered opinion of this Court,
in absence of any clinching evidence to prove that the victim, PW-1 had
continued her relationship with the accused for 4 years on a misconception of
fact, the accused could not have been convicted for commission of offence under
Section 417 IPC, more particularly, in view of the settled propositions of law that
mere refusal to marry would not constitute offence under Section 417 of the IPC
until and unless the requirement under Section 90 IPC is established by the
prosecution. Therefore, in the considered opinion of this Court, the impugned
judgments and orders are vitiated by perversity and cannot withstand the
scrutiny of this Court within the parameter of its revisional jurisdiction.
20. Accordingly, for the reasons recorded herein above, the present criminal
revision petition stands allowed by setting aside the judgment and sentence
dated 18.08.2010 passed by the learned Sub-Divisional Judicial Magistrate (S),
Barpeta in connection with GR Case No. 1310/1999 and the judgment and order
dated 24.01.2012 passed by the learned Additional Sessions Judge (FTC),
Barpeta, Assam in Criminal Appeal Case No. 21/2010.
21. The petitioner/accused is hereby acquitted. Bail bond stands discharged.
22. LCR be returned back.
JUDGE
Comparing Assistant
