Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 10 September, 2025
Page No.# 1/13
GAHC010259302013
2025:GAU-AS:12722
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./339/2013
MD IDRISH ALI,
S/O MD. SARMAT ALI, R/O BAGHAR GAON, P.O. and P.S. BOKO, DIST.
KAMRUP, ASSAM.
VERSUS
THE STATE OF ASSAM,
Advocate for the Petitioner : MR.P J SAIKIA, MR.B PHUKAN,MR.K BARUAH
Advocate for the Respondent : , ,PP, ASSAM
Page No.# 2/13
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 10.09.2025
Heard Mr. K. Baruah, learned counsel for the appellant. Also heard Mr. M.
P. Goswami, learned Additional Public Prosecutor for the State
Respondents.
2. The appellant herein, has instituted the present appeal under
Section 374(2) of the Code of Criminal Procedure, 1973, assailing the
Judgment And Order dated 19.08.2013, passed by the learned Additional
Sessions Judge No.IV, FTC, Kamrup, Guwahati, in Sessions Case
No.140(K)/2012, convicting the applicant under Section 417 IPC and
sentencing him to suffer Rigorous Imprisonment for 6(six) month with a
fine of Rs.20,000/-(Rupees Twenty Thousand only), in default to suffer
Simple Imprisonment of 3(three) months.
3. The prosecution case in brief is that the victim, herein, had lodged
an FIR on 29.05.2011 before the Officer-In-Charge, Boko Police Station,
inter alia, alleging, therein, she had love affair with the appellant, herein,
for about 9 months, who on assuring to marry her had sexual intercourse
with her for about 5 days due to which she had become pregnant. On
receipt of the said FIR, police registered the same as Boko P.S. Case
No.194/11, under Sections 417/376/120(B)/109 IPC.
4. On conclusion of the investigation in the matter, also after recording
the statement of the victim under Section 164 CrPC, a charge-sheet came
to be laid against the appellant herein, under Section 417/376 IPC. The
charge against the appellant being also framed under Section 376 IPC and
the same being exclusively Triable by the Court of Sessions, the learned
Judicial Magistrate First Class, vide order dated 10.04.2012, committed
the case to the Court of Sessions. After commitment, the case came to be
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transferred to the Court of the learned Assistant Sessions Judge No.2,
Kamrup, Guwahati, who framed formal charge against the appellant under
Sections 417/376 IPC. The appellant having pleaded not guilty when the
charge was read over and explained to him a Trial was held in the matter.
5. It is to be noted that the case was thereafter transferred to the
Additional Sessions Judge No.IV, Kamrup, Guwahati, for disposal.
6. During the Trial, the prosecution had examined 11 witnesses
including the Medical Officer, Investigating Officer and the Officer-in-
Charge, Boko Police Station.
7. On conclusion of the Trial, the learned Trial Court on appreciating
the evidences coming on record was pleased to acquit the appellant,
herein, from the charge framed against him under Section 376 IPC.
However, basing on the materials coming on record, the ingredients of
Section 415 IPC having been found to have been established, the
appellant was convicted under Section 417 IPC and sentenced to undergo
6(Six)months Rigorous Imprisonment with a fine of Rs.20,000/-(Rupees
Twenty Thousand) for the offence punishable under Section 417 IPC, in
default to undergo Simple Imprisonment for further 3(three) months.
8. Mr. K. Baruah, learned counsel for the appellant, by referring to the
evidences coming on record in the Trial at the outset, submitted that the
informant victim(PW1) was a consenting party and the physical intimacy
between the appellant and the victim(PW1) was a consensual one. He
submits that, it is only the evidence of PW1 that would be relevant and
the other witnesses were hearsay witnesses. It is submitted that the
learned Trial Court without appreciating the evidence of PW1 in its proper
perspective had proceeded to draw a conclusion that the ingredients of
Section 415 IPC was established against the appellant, herein, and
accordingly, proceeded to convict the appellant under Section 417 IPC. Mr.
K. Baruah, has submitted that the charge against the appellant under
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Section 417 IPC was not established in the matter beyond reasonable
doubt and accordingly, the conviction of the appellant under Section 417
IPC would mandate an interference from this Court.
9. The learned counsel for the appellant has further submitted that
the learned Trial Court while considering the charge under Section 376
IPC framed against the appellant had rejected the contention of the
prosecution that the victim girl was driven by a misconception of fact in
the matter and accordingly, proceeded to hold that the victim girl was
never raped as alleged by the prosecution. He submits that contrary to
the said conclusion drawn by the learned Trial Court, while drawing
conclusion with regard to the charge framed against the appellant under
Section 417 IPC, drew contrary conclusions and thereby, rendering the
conviction of the appellant under Section 417 IPC, unsustainable.
10. In the above premises, Mr. K. Baruah, submits that the purported
promise held out by the appellant to the victim of marrying her and
basing on such promise to have had physical intimacy with the victim girl
was not established beyond reasonable doubt during the Trial and
accordingly, he submits that the conviction of the appellant under Section
417 IPC would mandate an interference from this Court.
11. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor
for the State, has submitted that the evidence adduced by the victim girl
as PW1 during the Trial Court would bring to the forefront that she had
consented to have physical intimacy with the appellant, herein, only on
the promise of marriage extended to her in the matter by the appellant.
He further, submits that the stand of the victim girl during her deposition
in the Trial Court is consistent with her statement recorded under Section
164 CrPC. Accordingly, he submits that the conclusion drawn by the
learned Trial Court, that the appellant, herein, had physical intimacy with
the victim assuring of marrying her, which he never intended, is a
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conclusion drawn basing on the materials coming on record and the
conviction of the appellant under Section 417 IPC, basing on the said
conclusion, would mandate no interference from this Court.
12. I have heard the learned counsel for the parties and also perused
the materials coming on record.
13. For the purpose of appreciating the contentions raised by the
learned counsel for the parties to the proceedings, as well as the
conclusions reached by the Trial Court, the evidences coming on record in
the Trial is required to be noted.
14. PW1, who is the victim and the informant in the matter, had in her
deposition during the Trial stated that on 03.01.2011, the appellant,
herein, had told her that he would marry her. On that night at around
12.11 p.m, while she was near the tube well for attending the call of
nature, the appellant hearing the sound of the tube well had come there
and committed rape on her assuring to marry her. She further deposed
that the appellant had asked her not to disclose the incident to anyone. It
was further deposed by PW1 that after 1 month again one day, the
appellant had sexual intercourse with her, as a result of which she become
pregnant. PW1 further stated that the appellant had given her some
medicines to cause miscarriage and on 08.05.2011, she was taken by the
appellant to Gobardhana Hospital for causing miscarriage to her. However
on account of shortage of money, they were asked to come on the next
day. The PW1, thereafter deposed that on the next day, the appellant did
not come and on calling over the phone, he denied the paternity of the
child in the womb of the PW1 and alleged that it was through her brother-
in-law. It was further deposed by the PW1 that she had given birth to a
female child on 04.10.2011. The PW1 exhibited the FIR as well as her
statement under Section 164 CrPC. as Exhibit Nos.1 & 2, respectively.
During her cross PW1 stated that she knew the accused for 3 years and
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since 1 ½ half years he used to visit her house for about 5 days at night
at about 10.00-11.00p.m, without the knowledge of her parents. She
further deposed that she had kept secret, about her love with the
appellant, from her family members and that she had sexual intercourse
with the appellant inside and outside the house. She also deposed that
she had not raised alarm at the time of sexual intercourse with the
appellant and had admitted that in the FIR she did not mention that the
appellant had sexual intercourse with her, against her will. She also
admitted that in her statement under 164 CrPC, she had stated that the
appellant proposed to marry her, to which she refused but she admitted
that due to love affair she had physical relationship with the appellant but
later on as he did not marry her, the case was instituted.
15. PW2, Mohar Ali is the father of the victim(PW1) and in his
deposition, had deposed that in the month of July 2011, his wife had
informed him over phone that the accused took the victim(PW1) to
Gobardhana Hospital, to cause miscarriage to her. It was further deposed
that after coming home, he came to know that for not being able to
terminate the pregnancy, the victim went to her elder sister's house and
he had thereafter brought the victim back to her home. He also deposed
that a village meeting(bichar) was held but due to commotion raised in
the meeting the matter could not be settled.
During his cross-examination he deposed that till his wife reported the
matter over phone, he did not know about the relation of his daughter
with the appellant.
16. PW3, Taser Ali, is the brother of the victim(PW1) and during his
deposition he deposed that he came to know from his mother that the
victim was carrying 3(three) months pregnancy through the appellant,
herein. He further deposed that at the relevant point of time, the
appellant was absconding and hence, he along with others went to the
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house of the appellant to discuss the matter but the family members of
the appellant assured to give decision after 15 days. He further deposed
that thereafter 4-5 persons have gone to the house of the appellant, but
the family members of the appellant refused to entertain them and ousted
them from their house.
During his cross-examination he deposed that from the victim he knew
about the incident and he further deposed that due to love affair, the
victim did have physical relation with the appellant for about 5-6 days.
17. PW4, Manser Ali, the elder brother of the victim(PW1) deposed in
the lines as was so deposed by PW3.
18. PW5 and PW6 are relatives of the accused and they have deposed
only to the extent that one day police had come to their house in search
of the appellant but did not find him. They deposed that they knew
nothing about the incident.
19. Similarly PW7, Anser Ali, deposed that police had taken him to the
house of Rahim Ali, but he knew nothing about the incident.
20. PW8, Latif Ali, deposed that he came to learn from the victim's
father that the victim is carrying pregnancy through the appellant, herein,
and the victim also reported the same fact.
During his cross, he admitted that he stated before the police that the
victim had a love affair with the appellant and they did have physical
relation for about 5-6 days. But later, due to non performance of the
marriage, the case was filed.
21. PW-9, Manmohan Talukdar, one of the Investigating Officer, had
deposed that he had reported the statement of the witnesses including
the victim and had carried out the preliminary investigation in the matter.
He further deposed that he had got the statement of the victim recorded
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under Section 164 CrPC and on conclusion of the investigation, he
deposed that S.I, Dharmeshwar Pathak, had laid the charge-sheet against
the appellant, herein.
During the cross-examination, the Investigating Officer deposed that the
victim had love affair with the appellant and the appellant did have
physical relation with her on 5(five) occasions by assuring to marry her
but later for not performing the marriage, the case was filed.
22. PW10, Dr. Anurupa Chowdhury, deposed that she had examined the
victim on 31.05.2011, and on such examination had found one tear on
hymen at 1 and 8 O'clock position. She further deposed that the
victim(PW1) was pregnant at the time of the examination of about 19
weeks 4 days. The PW10 opined that the victim(PW1) was above 18 years
and below 19 years of age.
23. PW11, was the Officer-in-Charge of Boko Police Station, who had
registered the FIR lodged by the victim(PW1).
24. The learned Trial Court on appreciating the evidences coming on
record, noticing that the victim girl had deposed that after committing
rape upon her, the appellant had promised to marry her and that due to
love affair she had continued the physical relationship, proceeded to draw
a conclusion, to the effect that the victim being a consenting party and
she having allowed the appellant to have sex with her, the case of the
prosecution that the victim was driven by any misconception of fact of
marriage was unacceptable. Basing on the said conclusion, the learned
Trial Court held that the victim was never raped by the appellant, herein,
as alleged by the prosecution. Accordingly, the appellant was acquitted
from the charge so framed against him under Section 376 IPC.
25. Upon drawing the said conclusion with regard to the charge framed
under Section 376 IPC against the appellant, herein, the learned Trial
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Court examined the materials available on record in connection to the
charge leveled against him under Section 417 IPC. On such examination,
the learned Trial Court arrived at a conclusion that the appellant did have
sexual intercourse with the victim assuring to marry her, but he never
intended to marry her. The learned Trial Court found that the evidence of
the victim was cogent and trustworthy. Accordingly, the learned Trial Court
found the ingredient of cheating as defined under Section 415 of IPC to
have been established against the appellant, herein, and accordingly,
proceeded to convict the appellant under Section 417 IPC and sentenced
him, as noticed, hereinabove.
26. The learned Trial Court having acquitted the appellant under
Section 376 IPC and the reasoning so assigned having not been found to
be erroneous, this Court would not proceed to further examine the said
aspect of the matter.
27. The appellant having been convicted under Section 417 IPC, this
Court would now examine the same. This Court would examine as to
whether the prosecution had established the essential ingredients of
cheating under Section 415 IPC and whether the accused dishonestly
induced the victim to have sexual intercourse with him on the basis of
false promise of marriage.
28. A perusal of the provisions of Section 417 IPC, it comes to the
forefront that "Cheating has been defined in section 415, IPC. The
ingredients of the offence of cheating require (i) deception of a person,
(ii) whereby, fraudulently or dishonestly, inducing the person, so deceived,
to deliver any property to any person or to consent that any person shall
retain any property, or (iii) 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 person in body, mind, reputation or property. Deception of a person is
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common to the second and third requirements of the provisions of section
415. The ingredients, as pointed out under (1) and (ii) hereinbefore, are
alternative to each other and this is made significantly clear by use of
disjunctive conjunction "or". The definition of the offence of cheating
embraces cases in which no transfer of property is occasioned by the
deception and also cases in which such a transfer occurs. Deception is the
quintessence of the offence. [See Devender Kumar Singla v. Baldev
Krishan Singla, (2005) 9 SCC 15].
29. When an accused makes a false promise to marry, which he never
intends to carry out, and induces thereby the victim, so deceived, to have
with him sexual act, which the victim would not have indulged in or
permitted, had she not been induced by such deception and, when such
act of having sexual intercourse by her with the accused causes, or is
likely to cause, damage or harm to her body, mind or reputation, the act
of the accused would amount to cheating. Thus, when a woman is
induced to part with her chastity or virginity, which is the most valued
possession of hers, the person, who so induces the woman by making
false representation, would be liable for punishment under section 417,
IPC. To put it differently, had such a victim not been deceived, she would
not have permitted the sexual act or would have refrained from allowing
such sexual act and, clearly in such a case, but for her permitting such
sexual act, she would not have suffered harm to her body, mind or
reputation.
30. Since the definition of the offence of cheating indicates, as already
pointed out above, that even when no parting of property is occasioned
by deception, the deception may still amount to cheating if, as a result of
the deception, a woman does anything or omits to do anything, which she
would not have, but for such deception, done or omitted to do, it logically
follows that when an accused, not intending to marry a woman, induces
the woman, so deceived, to have sexual Intercourse with him or induces
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such a woman to omit from resisting the act of sexual intercourse by him
with her, the act of the accused of having sexual intercourse with such a
woman would amount to offence of cheating if the act of the woman in
letting such a man have sexual intercourse with her or the act of the
woman in omitting to resist the act of sexual intercourse by such a man
with her causes or is likely to cause damage of harm to the person of
such a woman, her mind or reputation.
31. The learned Trial Court on appreciating the evidences coming on
record, had drawn the following conclusion;
"Besides victim, P.W.2, P.W.3, P.W.4, P.W.8 the father, brother
and villagers also categorically stated that the victim stated
that as a result of cohabitation with the accused she became
pregnant and later on she gave birth to a daughter. Though
the accused denied the allegation levelled against him but
there is nothing to show in his statement U/S 313 Cr.P.C as
well as in cross-examination of prosecution witnesses that for
having sexual intercourse by someone other than the accused,
she was carrying pregnancy. Medical evidence also suggestive
that she was pregnant at the time of examination. The clear
and cogent evidence of the victim is that the accused did have
sexual intercourse with her and assuring to marry her asked
her to keep it secret which she repeated during cross
examination. Though there is no other evidence except the
evidence of the victim that the accused promised to marry her
but from the suggestion put to the victim during cross-
examination clearly reveals that the accused made promises
to marry her in obtaining her consent for indulging her in
having sexual intercourse. Further refusal of allegation by the
accused shows that the promise made by the accused from
the very inception was false and that he never really Intended
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to marry her. His promise was a mere hoax ... In the above
facts and circumstances of the case, I am of the opinion that
the accused did have sexual intercourse with the victim
assuring to marry her but he never intended to marry her. The
evidence of the victim is found cogent and trustworthy. I find
nothing to discard the evidence of the victim.
I view of the aforesaid discussion, I find that the ingredients
of cheating as defined in Section 415 of the IPC has been
established against the accused and hence I have no
hesitation in my mind to hold that the accused is guilty of
offence punishable U/S 417 of the IPC and convicted
accordingly."
32. On a perusal of the conclusions drawn by the learned Trial Court in
the light of the evidences coming on record, this Court is of the
considered view that the said conclusions drawn by the learned Trial Court
are not erroneous, the ingredients of cheating as defined in the Section
415 IPC, having been established against the appellant, herein, the
conviction of the appellant under Section 415 of the IPC would not
mandate an interference.
33. Having drawn the above conclusions, this Court noticed that the
incident had occasioned on some time in the year 2010-2011. Long 15
years had elapsed since the date of the incident and both the appellant
and the victim(PW1) have moved on in their respective lives.
34. Section 417 IPC being relevant is extracted hereinbelow;
"417. Punishment for cheating --- Whoever cheats shall be punished with
imprisonment of either description for a term which may extend to one
year, or with fine, or with both."
35. A perusal of the provisions of Section 417 IPC, would bring to the
forefront that the punishment prescribed is of imprisonment of either
description which may extend to one year or with fine or with both.
Accordingly, in a given case punishment can be confined to that of a fine.
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Considering the long lapse of time since the date of the incident and the
fact that the appellant and the victim have moved on in their respective
lives, this Court is of the considered view that ends of justice would be
met if the sentence as imposed by the learned Trial Court of 6(six) months
Rigorous Imprisonment with fine of Rs.20,000/-(Rupees Twenty
Thousand) is modified and the same is prescribed as a fine of Rs.20,000/-
(Rupees Twenty Thousand) only.
36. Accordingly, while maintaining the conviction of the Appellant under
Section 417 IPC, the sentence as imposed upon the appellant by the
learned Trial Court vide the Judgment and Order dated 19.08.2013, stand
interfered with and the same is modified to that of sentencing of fine of
Rs.20,000/-(Rupees Twenty Thousand) for the offence punishable under
Section 417 IPC, in default Simple Imprisonment for 3(three) months.
37. The appellant to appear before the learned Additional Sessions
Judge No.IV, FTC, Kamrup, Guwahati, within a period of 45(Forty Five)
days from today and deposit the fine amount. The fine amount so realized
be paid to the victim as already directed by the learned Trial Court.
38. Send down the records of the case to the Trial Court along with a
copy of this order for information and necessary action.
39. With the above observations and directions, the present Criminal
Appeal stands disposed of.
JUDGE
Comparing Assistant
