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2014 DIGILAW 339 (TRI)

Tapan Kumar Acharjee v. State of Tripura

2014-10-28

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. No representation on behalf of the petitioner. This is a revisional application of the year 2006 challenging the judgment and order of conviction and sentence passed by the lower Court. So, I think it appropriate to dispose it on merit. 2. Perused the impugned judgment dated 03.03.2006 passed by learned Addl. Sessions Judge, Court No. 2, West Tripura, Agartala in Criminal Appeal No. 36(3) of 2005 and the judgment dated 24.06.2005 passed by learned Assistant Sessions Judge, West Tripura, Agartala in Case No. S.T.(WT/A) 2 of 2003. 3. Accused petitioner got introduced with the informant-victim (named kept withheld) on 13th of May, 1993 at Abhoynagar BOC when the accused petitioner helped the informant-victim to get a permit of kerosene and thereafter the accused petitioner developed intimacy with the informant-victim and visited her rented house and with the assurance of marriage undergone intercourse with her. The informant-victim lived in different house as a tenant under different landlords and in all places the accused petitioner lived with her as husband and wife and undergone intercourse with her giving her assurance of marriage and because of such sexual intercourse she once got pregnant and her pregnancy was terminated at the instance of the accused in the nursing home of Dr. M.L. Saha at Agartala. At last, she resided as a tenant at Shibnagar in a rented house belonged to PW1, N.C. Deb and at that time she got pregnant and when she insisted the accused to marry her, the accused petitioner refused. She, thereafter lodged an FIR on 11.05.2001 and accordingly East Agartala PS Case No. 96 of 2001 under Sections 493 and 376 of IPC was registered and subsequently charge sheet was submitted after investigation against the accused for commission of offence punishable under Sections 493 and 376 of IPC. 3.1. Cognizance was taken on the basis of police report and ultimately in course of trial charges were framed against the accused for commission of offence punishable under Sections 417, 493 and 376(1) of IPC to which the accused pleaded not guilty and claimed to be tried. 3.2. Prosecution examined 9(nine) witnesses to prove the charges and the accused adduced no evidence. Accused was examined under Section 313 of Cr.P.C. and the case of the accused is nothing but denial of the prosecution case. 3.3. 3.2. Prosecution examined 9(nine) witnesses to prove the charges and the accused adduced no evidence. Accused was examined under Section 313 of Cr.P.C. and the case of the accused is nothing but denial of the prosecution case. 3.3. The trial Court found the accused petitioner guilty of committing offence punishable under Section 493 of IPC and sentenced him to suffer RI for three years. The learned Assistant Sessions Judge (trial Court) acquitted the accused from charges under Sections 417 and 376(1) of IPC. 3.4. The accused petitioner challenged the judgment and order of conviction and sentence by preferring an appeal in the Court of learned Sessions Judge and the learned Addl. Sessions Judge, Court No. 2, Agartala by the impugned judgment dated 03.03.2006 passed in Criminal Appeal No. 36(3) of 2005 found the accused petitioner guilty of committing offence punishable under Section 417 of IPC and set aside the conviction under Section 493 of IPC and sentenced him to pay a fine of Rs. 25,000/- (rupees twenty five thousand), in default to suffer SI for one year. 4. By filing this revisional application the accused petitioner challenged the finding of the appellate Court contending that the ingredients of cheating as defined in Section 415 of IPC is totally absent and so the conviction under Section 417 of IPC as has been passed by the learned Addl. Sessions Judge is not tenable and liable to be set aside. 5. Learned Addl. P.P. has submitted that the accused giving the assurance of marriage undergone intercourse with the informant-victim (PW2) and had there been no such assurance she would not surrender herself for the sexual relation with the accused and so the ingredients of cheating as defined in Section 415 has been well established and therefore the punishment is maintainable. 6. Here in this case there is overwhelming evidence that the accused developed intimacy with the informant-victim (PW3) and while PW3 was living as a tenant in different house, the accused also used to visit those houses and would live with the victim. 6. Here in this case there is overwhelming evidence that the accused developed intimacy with the informant-victim (PW3) and while PW3 was living as a tenant in different house, the accused also used to visit those houses and would live with the victim. Evidence of PWs 1 and 2 clearly shows that at last the victim resided in the house of PW1 as a tenant and the accused petitioner used to visit that house and introduced the informant-victim to PW1 as his sister and it is the case of the informant-victim that while residing in the house of PW1 also the accused has undergone intercourse with her giving assurance of marriage and as a result she got pregnant and subsequently delivered a male child. It is not disputed that she was pregnant and delivered a child. It is her definite case that because of her illicit relation with the accused petitioner she got pregnant and delivered the male child. The trial Court rightly held that since the victim is a consenting party to the alleged sexual intercourse the ingredients of rape is absent but as it appears from the evidence on record that the accused from the very inception with a deceitful mind undergone intercourse with the victim falsely assuring that he will marry her. 7. Section 415 of IPC 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"." 8. A careful reading of the definition makes it abundantly clear that if the deceived person do or omit to do something because of the inducement of the accused, the offence of 'cheating' will stand established. Here in this case, the accused has undergone intercourse with the victim giving her assurance of marriage. He even introduced her as his sister while they entered as a tenant in the house of PW1. Here in this case, the accused has undergone intercourse with the victim giving her assurance of marriage. He even introduced her as his sister while they entered as a tenant in the house of PW1. It is evident from the evidence on record that the accused was all along guided with the mischievous mind of deceiving the victim and therefore the ingredients of 'cheating' has been clearly established and in my considered opinion the appellate Court rightly held the accused petitioner guilty under Section 417 of IPC. I find no merit in the revisional application and hence the revisional application stands dismissed. 9. Send back the L.C. records along with a copy of this judgment.