Mintu Baruah vs State Of Assam

None appeared for the petitioners. Heard Ms. S. Jahan, learned Addl. Public Prosecutor for the State.

This revision petition is directed against the judgment and order dated 03/12/2009 passed by learned Addl. Sessions Judge (FTC), Lakhimpur in Crl.

Appeal 14 (4)/2009. By the said judgment, learned Sessions Judge partly allowing the appeal filed by the petitioner against the judgment and order

dated 16/09/2009, set aside the conviction of the petitioner u/s 493 IPC and upheld the conviction u/s 417 IPC and sentenced him to imprisonment for

three months and fine of Rs. 1,000/-with default stipulation.

As per prosecution story unfolded during trial, PW 2, the alleged victim, was in love with the present petitioner, who committed sexual intercourse

with her and consequently, the victim became pregnant. When the parents of the victim came to know about the pregnancy after about 5 months, her

pregnancy was aborted on 24/08/2007 at the instance of the petitioner. An FIR was lodged by the father of the victim, on the basis of which, police

registered a case and after usual investigation laid charge sheet against the petitioner u/s 420/493/312 IPC and eventually the petitioner stood trial.

In course of trial, charges were framed u/s 420/493/312 IPC, to which the petitioner pleaded not guilty. Eight witnesses were examined by the

prosecution to substantiate the charge and on appreciation of evidence, learned Judicial Magistrate convicted the petitioner u/s 493 and 417 IPC and

sentenced him to imprisonment for three months and fine of Rs. 1,000/- with default stipulation u/s 417 IPC and sentenced to imprisonment for 2 ½

years with fine of Rs. 2,000/- u/s 493 IPC.

On appeal learned Addl. Sessions Judge acquitted the petitioner of the offence u/s 493 IPC and upheld and confirmed the conviction and sentence

u/s 417 IPC.

Aggrieved by the appellate judgment of conviction and sentence, the petitioner preferred the instant revision.

I have perused the record and considered the submission made by the learned Addl. Public Prosecutor.

The alleged victim, who was examined as PW 2 deposed, that she was in love with the accused petitioner for last three years and became pregnant

through the accused petitioner in the month of May 2007. On that day, when the other inmates of the house were absent, the accused by putting

vermilion on her forehead, told that he married her and he had sex with her. When she was carrying three months pregnancy and informed the

accused petitioner about her pregnancy, he did not pay any heed and took it lightly. It was elicited from her cross-examination and also from the

evidence of the I.O. that she did not state before police regarding the accused putting vermilion on her forehead. The statement of this witness was

recorded u/s 164 CrPC, which was proved as Ex. 2. In her statement u/s 164 CrPC she stated that she was in love with the accused for the last three

years and about three months back the accused came to their house when other inmates were absent and had sex with her and consequently, she

became pregnant.

PW 3, the mother of the victim, deposed that about one year back, the alleged victim went with the accused and came back on the following day

and fell ill. She did not state anything incriminating.

The doctor, PW 6, who examined the alleged victim (PW 2), stated that the age of the PW 2 was 19 years at the time of occurrence.

The oral testimony of the PW 2 was that she was in love with the accused petitioner and consequently had sex. The PW 2 nowhere stated that

the accused had sex with her forcibly against her consent. Though in her statement for the first time in court, she stated that the accused put

vermillion on her forehead and told that he was married to her. No such statement was made either before police or during her statement recorded u/s

164 CrPC, or in the FIR. So, this part of the oral testimony of the PW 2 that the accused put vermillion on her forehead on a day when other inmates

of the house were not present does not appear to be worthy of trust and perhaps for this reason, the learned first appellate court acquitted the accused

of the charge u/s 493 IPC. If this part of the evidence is disbelieved, there is absolutely nothing to show that the consent of the PW 2 to have sex with

her was obtained by any deceitful means or misrepresentation of fact. Evidently the PW 2, being a grownup woman of 19 years of age, who was in

love with the petitioner, had sex with him and there was no evidence to show that she consented to physical relation as a result of deception or

misrepresentation of fact. In absence of any evidence that the consent of PW 2 was obtained by fraud or deception, the petitioner could not be

convicted u/s 417 IPC.

Thus the evidence on record crystallizes that basic ingredients of the offence of cheating was totally absent in the present case, and as such, the

conviction of the petitioner u/s 417 IPC appears to be perverse and not sustainable. Since there was no evidence to establish the charge u/s 417 IPC,

the conviction and sentence of the petitioner deserves to be set aside. Accordingly, the revision petition is allowed and the conviction and sentence of

the petitioner is set aside.

Bail bond, if any, stands discharged. Send back the LCR.