JUDGMENT AND ORDER : This appeal is directed against the judgment and order dated 28.08.2008, passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions case No. 229/2006 convicting the accused appellant u/s 417 of the IPC and sentencing him to R.I. for 3 months and to pay fine of Rs.1000/- in default to imprisonment for 30 days. 2. Heard Mr. B.J. Dutta, learned Addl. PP, Assam. None appeared for the accused appellant to argue the case. 3. The accused appellant and the informant Minakshi Das had love affair and according to the informant, they solemnized the marriage in the Tezpur court by executing a marriage agreement. According to her before the marriage agreement was executed in the court both of them indulged in sexual intercourse in the printing press of the accused appellant as a result of which she became pregnant but after the marriage the accused appellant got her pregnancy terminated in the Midha Nursing Home at Tezpur and kept her in her parents’ house with the assurance that he would take her back after 1 year. 4. On 17.03.2005, the accused called her to his printing press and when she visited the press at Biswanath Chariali she saw the father of the accused and both the father and the son assaulted her and threw her out of the printing press. She was attacked with a knife as a result of which she sustained injuries. She directly came to the police station and filed FIR, Exbt. 1 alleging therein that on that day at about 12 noon, the accused appellant Ashim Saikia and his father Ghana Kanta Saikia confined her in the printing press and assaulted her with sharp weapon. It was also stated that she was in a love affair with the accused since 2004 and there was an agreement of marriage between them but the accused appellant refused to marry her and thereby cheated her. Police registered the FIR and on completion of investigation submitted charge sheet against the accused appellant u/s 376/493 of the IPC. 5. During trial of the case which commenced before the learned Addl. Sessions Judge, Biswanath Chariali, prosecution examined as many as 8 witnesses including the MO and IO. Defence pleaded total denial. 6. Police registered the FIR and on completion of investigation submitted charge sheet against the accused appellant u/s 376/493 of the IPC. 5. During trial of the case which commenced before the learned Addl. Sessions Judge, Biswanath Chariali, prosecution examined as many as 8 witnesses including the MO and IO. Defence pleaded total denial. 6. Though the informant Minakshi Das had stated in her evidence that she had love affair with the accused and they executed a marriage agreement in the court but during trial no copy of the agreement was produced and proved. She claimed that she was 4 months pregnant due to her cohabitation with the accused appellant but her evidence is not corroborated by the doctor, PW 3 Dr. Dulal Ch. Sarma who examined her on 20.03.2005 at Biswanath Chariali Civil Hospital. The doctor opined after examination of the victim that there was no sign of recent sexual intercourse and he also did not find any clinical sign or symptom of abortion by the patient. She also failed to produce and prove by documentary evidence that her pregnancy was terminated in the Midha Nursing Home. Though she claimed that she produced the marriage certificate before the police but the same was not brought on record and it was not tendered in evidence. There was no mention in the FIR that she was impregnated by the accused and that her pregnancy was terminated in the Midha Nursing Home. She also admitted that she has not stated before the IO that she was forcibly raped by the accused in his printing press and no such statement was even given before the court. 7. PW 2 Dibyajyoti Das who is the elder brother of the victim girl and PW 4 Rani Monjula Das who is the mother of the victim girl claimed that they were present at the time of execution of the marriage agreement at the Tezpur Court and PW 2 even claimed that he was present at the time of termination of her pregnancy in the Nursing Home. Both these witnesses are close relatives of the alleged victim girl and obviously they are interested to secure conviction of the accused appellant for his refusal to marry the girl. Both these witnesses are close relatives of the alleged victim girl and obviously they are interested to secure conviction of the accused appellant for his refusal to marry the girl. In a case of instant nature the evidence of the girl is of utmost importance for the prosecution but on careful scrutiny of her evidence what is discernible is that she had some affair with the accused, which the accused appellant also admitted in his defence statement u/s 313 of the CrPC but it is difficult to believe that the accused appellant had forceful sex with her due to which she become pregnant. No such statement was made by her before the IO and in the FIR also no such accusation was brought. There has been marked improvements made by the witness during the trial and consequently, she was not found to be reliable and trustworthy. Though she alleged forceful sexual intercourse by the accused appellant with her but from her evidence itself it emerges that she was a consenting party and even if it is presumed that there was sexual relationship between the two it can easily be held that it was with her consent. The learned trial court also disbelieved her evidence regarding commission of rape on her by the accused appellant and I find no reason to differ with his finding. 8. Now the pertinent question is whether the accused appellant persuaded her to have sex with him with false promise of marriage. The independent witnesses PW5, PW 6 and PW 7 were the employees of the accused appellant in his printing press at the relevant time and they have given an entirely different version. The girl came to the printing press of the accused appellant in his absence. His father Ghana Kanta Saikia was present in the press and when she asked the father to perform her marriage with his son and she was informed that it was not the way to come for marriage proposal and the father informed that her parents should come along with her to which she reacted violently and threatened that she would send his son to jail and thereafter filed the FIR. 9. 9. From the uncontroverted evidence of these 3 witnesses there is no room for doubt that the girl came to the printing press in the absence of the accused appellant and insisted his father to perform the marriage between his son and her and on his refusal to do so and asked her to come with her parents with the proposal she became infuriated and lodged the FIR. 10. On a careful perusal of the entire evidence on record what is discernible is that she had love affair with the accused appellant and she was a grown up girl capable of giving consent and if at all there was sexual intercourse it was with her consent. Her evidence shows that the accused appellant indulged in sexual intercourse with her on several occasions. There might have been love affair between him and the girl and though she claimed that there was marriage agreement, neither the agreement nor copy thereof was tendered in evidence in court during trial. Evidence shows that they were in sexual relationship continuously and secretly and it was not disclosed to her parents by her. Evidence is also lacking to show that the accused had any intention to cheat her or he induced her to have sex with him with false promise of marriage. Rather from the evidence it appears that the father of the accused who was present at the printing press told her to come with her parents for marriage proposal. Her evidence that the accused appellant in the printing press had forceful sexual intercourse with her without her consent was disbelieved by the trial court and on perusal of her evidence I also endorse the view of the trial court. 11. There is no evidence that she offered resistance to the accused at any point of time. She consciously consented to have sexual intercourse with the accused and it cannot be held that her consent was not in consequence of any misconception of facts. 12. The evidence of PW 1 shows that she frequently shifted her version again and again, regarding the fact of her marriage with the accused appellant as claimed by her she did not mention any such averments in her FIR. 12. The evidence of PW 1 shows that she frequently shifted her version again and again, regarding the fact of her marriage with the accused appellant as claimed by her she did not mention any such averments in her FIR. Question of abortion after the marriage while she was 4 months pregnant was also did not find place in the FIR and before the I.O. also it was admittedly not disclosed by her. There is no consistency in her evidence and she made vital improvements while adducing evidence in the court so far her pregnancy and termination of pregnancy is concerned. Though the learned trial court disbelieved her version that the accused appellant committed rape on her but has held that he cheated her by having sex with her with the promise of marriage but on perusal of the evidence on record it emerges that at the very inception accused appellant had no intention to deceive her and there is no evidence to show that he had disclosed to her that he would not marry her. Rather it appears that when his father asked her to come with her parents she became furious and lodged the FIR. In order to sustain the plea of offence u/s 417 of the IPC, the complaint must disclose that accused had dishonest intention at the time the complaint or the FIR was filed. Section 415 of the IPC mandates that there has to be dishonest intention from the very beginning which is sine-quo-non to held the accused guilty for commission of the said offence. When allegations are made in this regard, failure on the part of the accused to keep his promise in the absence of culpable intention at the time of making initial promise, no defence u/s 417 of the IPC can be said to be made out. 13. The accused in his defence statement admitted that he had love affair with the girl and taking the advantage of the affair she wanted to force him to marry her by foisting a false case. 14. Under the above facts and circumstances no ingredients of offence u/s 417 of the IPC is attracted and consequently the judgment of the learned trial court is not sustainable in law and is liable to be set aside, which I accordingly do. 15. The appeal is allowed accordingly. 16. The accused appellant be set at liberty forthwith. 14. Under the above facts and circumstances no ingredients of offence u/s 417 of the IPC is attracted and consequently the judgment of the learned trial court is not sustainable in law and is liable to be set aside, which I accordingly do. 15. The appeal is allowed accordingly. 16. The accused appellant be set at liberty forthwith. Bail bond, if any, stands discharged. 17. Send down the LCR forthwith.