Uttam Sarkar vs The State of Tripura

Utpalendu Bikas Saha, J.—1. The instant revision petition is filed by the convict-petitioner, Sri Uttam Sarkar challenging the judgment dated 26.11.2011 passed by the learned Sessions Judge, North Tripura, Kailashahar (at present Unakoti District) in Criminal Appeal No. 11(3) of 2011 whereby and whereunder the learned Sessions Judge upheld the conviction under Section 417 IPC but modified the sentence from RI for one year and to pay fine of Rs. 5,000/- i.d. to suffer RI for three months to RI for one year and to pay a fine of Rs. 10,000/-, i.d. to suffer two months SI.

Heard Mr. S Bhattcharji, learned counsel for the petitioner and Mr. RC Debnath, learned Addl. PP for the State.

Prosecution case, in brief, is that the informant-prosecutrix had fallen in love with the convict-petitioner and the convict-petitioner assured her that he would marry her and on such assurance the prosecutrix started living with the convict-petitioner as husband and wife. Later, the convict-petitioner married the prosecutrix as per Reang customs. After marriage, the convict-petitioner demanded an amount of Rs. 50,000/- as dowry. The parents of the victim being poor expressed their inability to meet the demands of the petitioner. As the demand of the convict-petitioner was not fulfilled, he wanted to marry again another woman and went away from the house of the victim. Thereafter, the informant-prosecutrix filed the case. The matter was investigated and charge sheet was filed. After a full trial learned trial court found the convict-petitioner guilty for commission of an offence punishable under Section 417 IPC and sentenced him to suffer RI for one year and to pay a fine of Rs. 5,000/-, i.d. to suffer three months RI.

Being aggrieved by and dissatisfied with the impugned order of conviction and sentence, the convict-petitioner preferred an appeal which was registered as Criminal Appeal No. 11(3) of 2011. The learned trial court after hearing the parties upheld the order of conviction and modified the sentence, as stated supra.

Mr. Bhattacharji, learned counsel appearing for the petitioner submits that from the evidence on record it clearly shows that there is no evidence against the petitioner from which it can be conclusively inferred that there was any fraudulent or dishonest inducement to the prosecutrix by the accused to constitute an offence under Section 415 of the IPC. He further submits that in the FIR, the victim specifically stated that the marriage was solemnized between the victim and the convict-petitioner as per Reang customs and thereafter the convict-petitioner demanded dowry. But the trial court as well as the appellate court disbelieved the story of dowry and offence under Section 376 IPC.

Prosecution examined as many as eight witnesses. The informant PW1, in her statement also stated that in the FIR she stated that the marriage was solemnized between the petitioner and herself under the Reang customs but this witness in court stated that actually no marriage was solemnized. PWs 2,3&4, who are the father and brothers of the prosecutrix, respectively, have deposed in the same tune. These witnesses also stated that the petitioner made an assurance to them as well as to the prosecutrix that he would marry the prosecutrix and on the basis of the said assurance he used to sleep together with the victim with the knowledge of them for about 2 1/2 years continuously.

Mr. Debnath, learned Addl. PP submits that the judgment of the appellate court is bad as regards the modification of the sentence of fine from Rs. 5,000/- to 10,000/-, though he supported the judgment of the appellate court with regard to upholding the conviction.

On evaluation of the evidence of the prosecution witnesses it is found that the prosecutrix used to live with the convict-petitioner as husband and wife on the firm belief that the convict-petitioner would marry her. It also appears from the record that in the FIR the prosecutrix specifically stated that the marriage was solemnized between the convict-petitioner and herself as per the Reang customs though in the court she did not state anything about the marriage. It also appears from the evidence that there was a love affair between the prosecutrix and the petitioner. It is also not the case of the prosecution that the consent had been given by the prosecutrix believing the convict-petitioner''s promise to marry her. Her testimony itself shows that she has unfolded the entire story of the alleged offence almost after 2 1/2 years, i.e. when the FIR was filed.

Section 417 of IPC prescribes punishment for the offence of cheating as defined under Section 415 of the IPC. Section 415 reads as follows:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to "cheat".

Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

The ingredients required to constitute the offence of cheating have been discussed by the Apex Court in the case of Ram Jas v. State of U.P., , (1970) 2 SCC 740 as under:

"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."

A careful reading of evidence on record clearly shows that there is no evidence against the petitioner from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement to the prosecutrix by the petitioner to constitute an offence under Section 415 of IPC. For conviction of the petitioner for the above said offence, it is important that all the necessary ingredients constituting an offence under the said Section must be proved beyond reasonable doubt.

In the instant case, the petitioner cannot be convicted for the offence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove the ingredients of the said offence beyond reasonable doubt. There is a doubt as to whether the marriage was solemnized or not. If the marriage was solemnized then Section 417 of the IPC has no application at all.

From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charge leveled against the petitioner. This Court is of the opinion that neither the judgment of the trial court nor that of the appellate court is based on proper appreciation of the evidence on record, to show that the petitioner is guilty of the charged offence. As there is doubt regarding the evidence of PW1, the prosecutrix, it would not be proper for this Court to rely upon her.

For the reasons stated supra, the revision petition is allowed and both the judgment and order of conviction and sentence passed by the appellate court as well as by the trial court are hereby set aside. The petitioner is acquitted from the charges leveled against him. As the petitioner is on bail his bail bond stands discharged.

Send down the LCRs.