JUDGMENT & ORDER : This revision is directed against the judgment and order dated 24-10-2013 passed by learned Sessions Judge, Morigaon in Criminal Appeal No. 73/2013. 2. Learned counsel Mr. S.K. Talukdar for the petitioner and learned Addl. Public Prosecutor, Mr. D. Das were heard. 3. The facts leading to the present revision petition may be briefly stated thus :-The petitioner extended a proposal for marriage to the victim (PW 4), which was followed by negotiation between the elderly members of both the families and the marriage was settled between the petitioner and alleged victim and the date was also fixed. Before the marriage, the petitioner committed rape on the victim and as a result of which, she became pregnant and upon insistence of the petitioner, the pregnancy was terminated. After termination of the pregnancy, the petitioner refused to marry the victim and as such, the victim lodged the FIR, on the basis of which, police registered a case and after usual investigation, submitted charge-sheet against the petitioner u/s 493/420/313 of the IPC. 4. In course of trial charges u/s 376/417/313 IPC were framed against the petitioner and the learned trial court convicted the petitioner u/s 376/417 IPC and sentenced to imprisonment for seven years and fine of Rs. 30,000/-with default stipulation u/s 376 IPC and imprisonment for one year and fine of Rs. 10,000/-with default stipulation u/s 417 IPC. Learned trial court, however, acquitted the petitioner of charge u/s 313 IPC. On appeal against the conviction, learned appellate court, by the impugned judgment, set aside the conviction u/s 376 IPC and convicted the petitioner u/s 417 and 312 IPC. 5. Learned counsel for the petitioner Mr. S.K. Talukdar raised two points in this revision petition. The first contention of the learned counsel was that conviction and sentence of the petitioner u/s 312 IPC by the appellate court was illegal and unsustainable, in view of acquittal of the petitioner of the charge u/s 313, IPC by the learned trial court, inasmuch as, no appeal was filed against such acquittal. The second contention raised by the learned counsel is that there was no legal evidence at all to bring home a charge u/s 417 IPC, and as such, conviction and sentence u/s 417 and 312 IPC was also not sustainable. 6. The learned Addl. The second contention raised by the learned counsel is that there was no legal evidence at all to bring home a charge u/s 417 IPC, and as such, conviction and sentence u/s 417 and 312 IPC was also not sustainable. 6. The learned Addl. Public Prosecutor contended that the power of the appellate court is wide enough, and as such, conviction of the petitioner u/s 312 IPC cannot be faulted if the evidence and materials on record is sufficient to establish such charge. 7. The power of the appellate court is laid down in Section 386 of the Cr.P.C., which is as follows :- “386. Power of the Appellate Court. 7. The power of the appellate court is laid down in Section 386 of the Cr.P.C., which is as follows :- “386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 8. A plain reading of the above provision of Section 386 Cr.P.C. would show, that in an appeal, either from conviction, acquittal or for enhancement of sentence, upon hearing the parties the appellate court may either allow or dismiss the appeal or may pass any other order as laid down in Clause (a), (b), (c) (d) and (e). The clause (a) of Section 386 CrPC provides the order/orders, which may be passed in an appeal against acquittal. Clause (b) of Section 386 CrPC provides the order/orders, which can be passed in an appeal against conviction. The provision of clause (b) of section 386 CrPC makes it abundantly clear, that though in an appeal against conviction, the appellate court can reverse the finding and sentence and acquit or discharge the accused or remand the matter for retrial or alter the findings with regard to sentence, the appellate court, in an appeal against conviction, cannot enhance the sentence. Even in an appeal for enhancement of sentence the court cannot enhance the sentence unless the accused is given the opportunity of showing cause against such enhancement. Therefore, in an appeal against conviction, though, the appellate court may reverse the finding of conviction and sentence and acquit or discharge the accused or modify or alter the finding as to conviction or sentence, the appellate court in an appeal against conviction can neither enhance the sentence nor convict the appellant for any offence, of which he was acquitted by the trial court. 9. Thus, although the power of the appellate court is wide enough, in an appeal against conviction, the appellate court cannot reverse the finding of acquittal of the trial court and convict the appellant for the offence, of which the appellant was acquitted by the learned trial court, unless there is an appeal against such acquittal. 10. In the present case, evidently the charge was framed against the petitioner u/s 313 IPC. However, learned trial court on appreciation of evidence, acquitted the petitioner of the charge u/s 313 CrPC and no appeal was filed by the prosecution or the victim against such finding of the learned trial court acquitting the petitioner of the charge u/s 313 IPC. 11. Section 312 and 313 IPC reads as under : “S.312. However, learned trial court on appreciation of evidence, acquitted the petitioner of the charge u/s 313 CrPC and no appeal was filed by the prosecution or the victim against such finding of the learned trial court acquitting the petitioner of the charge u/s 313 IPC. 11. Section 312 and 313 IPC reads as under : “S.312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.—A woman who causes herself to miscarry, is within the meaning of this section. “S. 313. Causing miscarriage without woman’s consent.—Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 12. A plain reading of the provision of Section 312 and 313 IPC would show that the offence u/s 313 IPC is only an aggravated form of the offence u/s 312 IPC, inasmuch as, when the offence u/s 312 IPC is committed without the consent of the woman, the offender is liable for the offence u/s 313 IPC, maximum punishment for which is imprisonment for life. Therefore, the offence u/s 313 IPC is not a distinct and different offence from the offence u/s 312 IPC. 13. In view of the above legal position, in absence of appeal against acquittal of the petitioner of the charge u/s 313 IPC, the learned appellate court could not have convicted the accused/petitioner of offence u/s 312 IPC. Therefore the conviction and sentence of the petitioner u/s 312 IPC appears to be without jurisdiction and not sustainable in law. 14. 13. In view of the above legal position, in absence of appeal against acquittal of the petitioner of the charge u/s 313 IPC, the learned appellate court could not have convicted the accused/petitioner of offence u/s 312 IPC. Therefore the conviction and sentence of the petitioner u/s 312 IPC appears to be without jurisdiction and not sustainable in law. 14. So far the conviction u/s 417 IPC is concerned, contention of the learned counsel for the petitioner was that there was no legal evidence at all, and as such, conviction and sentence of the petitioner u/s 417 IPC was perverse and not sustainable. 15. Though, by virtue of the provision of Section 401(1) Cr.P.C., the revisional court is empowered to exercise all the powers conferred on the appellate court, the revisional power cannot be equated with that of appeal. Sub-section (3) of Section 401 Cr.P.C. gives a clear indication as to the limitation of revisional jurisdiction. It is the settled proposition of law that a court of revision should not interfere with the judgment or order sought to be revised, unless, such judgment/order is found to be untenable in law or grossly erroneous or perverse, i.e., based on ‘’no evidence’’ or where the judgment/order is passed wholly ignoring the material facts and evidence on record. It is also settled position, that even if two views are possible, revisoinal court is not supposed to dislodge the factual finding or re-appreciate the evidence to replace the view of the trial court by its own view. However, the question of perversity having been raised to assail the conviction of the petitioner u/s 417 IPC, it becomes imperative to have an assessment of the evidence, for purpose of satisfaction as to the propriety of the finding, more particularly to see whether the judgment sought to be revised has suffered from perversity. 16. The informant, who happens to be the alleged victim, was examined as PW 4. She deposed that the petitioner sent a proposal for marriage, and the elderly members of the families of the petitioner came to her house and after negotiation between the elderly members of both the families, marriage was settled. She also stated that after fixation of date of marriage, on request of the accused over phone, she came to Nagaon with his younger brother. She also stated that after fixation of date of marriage, on request of the accused over phone, she came to Nagaon with his younger brother. The accused on the pretext of taking her to market for purchasing cloths, took her to the house of his sister at Dhiphola and committed rape on her forcibly against her will. In the FIR lodged by the victim herself, she stated, that after extending the proposal for marriage, the accused committed rape on her on various occasions, i.e. in his house and also outside the house. She further stated that the accused threatened her not to disclose the incident of sexual activities, by saying, that in case, she discloses the incident of sexual activities, he would not marry her. In her statement u/s 161 Cr.P.C., as revealed from her cross-examination and also from the testimony of the investigating officer, the PW 4 did not state in her previous statement that the accused called her over phone and accordingly, she went out with her brother and the accused took her to his sister’s house, instead of taking to market. During cross-examination, the victim stated that the accused committed sex with her only on two occasions. Admittedly the petitioner and the PW 4 were not known to each other, till their marriage was settled formally through negotiation between the two families. The alleged victim (PW 4) was admittedly a grownup woman of 30 years (old). Having considered all those facts and circumstances and material discrepancies and contradictions in her evidence with the previous statement regarding non-consensual sex, learned appellate court discarded the story of rape or non-consensual sex and acquitted the petitioner of the charge u/s 376 IPC. However, learned appellate court upheld the conviction and sentence of the petitioner u/s 417 IPC for cheating. 17. The offence of cheating is defined in Section 415 of the IPC as under :- “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”.” 18. A plain reading of the above provision would show that Section 415 IPC contains two parts. First part deals with fraudulent or dishonest inducement to any person deceived, to deliver any property and the second part deals with intentional inducement to any person deceived, to do or omit to do any act, which he would not do or omit to do, if he was not deceived. In the present case, there was no evidence or material of fraudulent or dishonest inducement to any person to deliver property, and as such, the second limb of Section 415 IPC would be attracted in the instant case. In order to establish a charge of cheating under the second limb of the provision of Section 415 IPC, the prosecution needs to prove the following ingredients :- (i) The accused deceived any person. (ii) The accused induced such person to do or omit to do something. (iii) Such inducement is intentional. (iv) The act or omission caused or likely to cause damage or harm to a person’s reputation or property. 19. The evidence and materials brought on record show, that the victim nowhere stated, that she petitioner subjected herself to sexual activity on some promise or misrepresentation of the fact by the petitioner. No evidence was brought on record to show that the petitioner had sexual activity with the victim by deceiving her or that she consented to sexual activity, if any, by reason of deception by the petitioner or out of some misrepresentation of facts, inasmuch as, the only evidence brought on record was that she was asked not to disclose the incident of sexual activity. Therefore, deception and intentional inducement at the beginning of the act or omission was totally absent in the instant case. Evidently the victim was a grownup woman of 30 years age. Therefore, even if it is assumed for the sake of argument, that there has been any sexual activity between the PW 4 and the petitioner, such sexual activity, having regard to the age of the PW 4 and in absence of any evidence that PW 4 submitted herself for sexual activity out of any misrepresentation of fact or deception, can by no stretch of imagination be held to have constituted the offence of cheating. Sexual activity, if any, in the facts and circumstances of the case, at best may be termed as promiscuity on her part. 20. Sexual activity, if any, in the facts and circumstances of the case, at best may be termed as promiscuity on her part. 20. The Apex Court, in Uday – VS- State of Karnataka, 2003SCC (Cri) 775 held, that if a full grownup girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, that would be an act of promiscuity on her part and not an act induced by misrepresentation of fact. 21. So far settlement of marriage is concerned, admittedly the marriage was settled through negotiation between the members of the family of the petitioner and the PW 4 and the date of marriage was also fixed. However, subsequently, the petitioner refused to marry the PW 4 and therefore, the FIR was lodged. One has to bear in mind the distinction between cheating or mere breach of contract or breach of promise. Sometime, breach of contract or breach of promise may amount to cheating, but in that case, prosecution needs to prove beyond reasonable doubt, that the accused had the intention to deceive or there must be deception at the beginning of the contract. If it can be inferred from the evidence, that at the inception of the contract or promise, the petitioner knew that he would not keep the contract and entered into the contract or made the promise by means of deception or fraud, in such case, breach of promise may amount to cheating. Mere refusal to marry, after the marriage was settled, per se, would not constitute the offence of cheating in absence of the necessary ingredients required for constituting the offence of cheating, inasmuch as, the essence of the offence of cheating is the culpable intention or mensrea. There was absolutely no evidence on record, wherefrom it could be inferred even remotely, that at the time of settlement of the marriage the petitioner had the intention not to marry or arrangement of marriage was made by deception. Therefore, in absence of the basic ingredient to constitute offence u/s 415 IPC, i.e., deception at the beginning, mere breach of promise or contract is not sufficient to attribute criminal liability. 22. Therefore, in absence of the basic ingredient to constitute offence u/s 415 IPC, i.e., deception at the beginning, mere breach of promise or contract is not sufficient to attribute criminal liability. 22. The factum of deception at the time of settlement of marriage being totally absent, mere refusal of the petitioner to marry the victim (PW 4) subsequently, cannot expose him to criminal liability of cheating, inasmuch as, breach of contract or breach of promise and offence of cheating are not the same thing. 23. In Hridaya Ranjan Prasad Verma-VS-State of Bihar & Anr., (2000) 4 SCC 168 dealing with the distinction between the offence of cheating and mere breach of contract held as under :- “In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 24. In the facts and circumstances of the case, though the marriage was settled by the elderly members of both the families and the same could not be materialized for whatever reason, such act or omission, in not keeping the promise, per-se, does not amount to cheating in absence of the evidence that the petitioner had fraudulent or dishonest intention at the beginning of the transaction (settlement of marriage). What therefore, abundantly clear from the facts and circumstances of the instant case is that there was no evidence at all, to constitute an offence u/s 415 IPC, and as such, conviction of the petitioner u/s 417 IPC was perverse and cannot be sustained. 25. What therefore, abundantly clear from the facts and circumstances of the instant case is that there was no evidence at all, to constitute an offence u/s 415 IPC, and as such, conviction of the petitioner u/s 417 IPC was perverse and cannot be sustained. 25. In view of what has been discussed above, the impugned judgment of conviction and sentence is not sustainable and accordingly set aside. The revision petition filed by the petitioner stands allowed.