JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. Heard Mr. Atanu Banerjee, learned counsel appearing on behalf of the petitioner. 2. Heard Ms. Mahua Palit, learned counsel appearing on behalf of the opposite party-State of Jharkhand. 3. This Criminal Revision application is directed against the judgment dated 20.05.2014 passed in Criminal Appeal No. 90 of 2014 by the learned Additional Sessions Judge-I, Bermo at Tenughat, whereby the appeal preferred on behalf of the present petitioner against the judgment of conviction and order of sentence including imposition of fine dated 23.09.2004 has been dismissed with a direction upon the petitioner to pay fine amount within ten days, failing which the petitioner was to surrender before the court below within ten days from the date of order to serve out the sentence of one month Simple Imprisonment. The petitioner was held to be in conflict with law and judgment of conviction was passed by the learned Additional Chief Judicial Magistrate, Bermo at Tenughat in G.R. No. 911 of 2002 arising out of Mahuwatand P.S. Case No. 40 of 2002, T.R. No. 201 of 2004 holding the petitioner in conflict with law and convicting the petitioner under Section 417 of the Indian Penal Code and consequently directing for executing bond of Rs. 20,000/- by the petitioner and his guardian with two sureties of like amount each for a period of three years on admonition and also pay fine of Rs. 5,000/- within a month and the learned court found that the petitioner was 20 years of age and earned money. The aforesaid judgment dated 23.09.2004 has also been challenged by the petitioner. Arguments on behalf of the petitioner 4. The learned counsel for the petitioner submits that mainly two points are involved in this case. Firstly, the petitioner has been convicted under Section 417 of Indian Penal Code, although the petitioner was charged under Sections 376/316 of IPC and accordingly, the gist of accusation for offence under Sections 415/417 of IPC was never explained to the petitioner. He submits that this aspect of the matter goes to the root of the case and in absence of explaining the gist of accusation to the petitioner under Sections 415/417 of IPC, the petitioner could not have been convicted under the said section. The learned counsel has also referred to Section 222 of Code of Criminal Procedure. Secondly, by the impugned order, a fine amount of Rs. The learned counsel has also referred to Section 222 of Code of Criminal Procedure. Secondly, by the impugned order, a fine amount of Rs. 5,000/- has been imposed by recording that the petitioner was earning, but it has been stated in para-5 of the memo of revision that the petitioner was remanded on 23.10.2002 and he was under custody till the date of the judgment i.e. on 23.09.2004 and as such the petitioner could not have been said to be an earning person. The learned counsel for the petitioner submits that in this view of the matter, the punishment, so far as it relates to imposition of fine, is perverse and is fit to be set-aside. The learned counsel further submits that so far as the other part of the punishment is concerned, the same has already been served by the petitioner as has been recorded by the learned lower appellate court. He refers to Section 15 of Juvenile Justice Act. 5. The learned counsel also refers to Section 19 of the Juvenile Justice Act to submit that an observation may be made that the petitioner will not be disqualified in future pursuant to the impugned judgment. Arguments on behalf of the opposite party-State 6. The learned counsel appearing on behalf of the opposite party, on the other hand, vehemently opposes the prayer and submits that the evidences which are mentioned in the judgments passed by the learned courts below indicate that in fact a case under Section 376 of IPC was made out, but still the petitioner was convicted only under Section 417 of IPC. She submits that the petitioner does not deserve any sympathetic view of this court. However, she does not dispute that the judgment passed by the first court was never challenged by the State or by the victim. Findings of this Court 7. After hearing the learned counsel for the parties, this Court finds that as per the prosecution case, the petitioner was making physical relationship with the victim/ informant since last 1 year and it was the petitioner, who initially called her one day by indication. House of the petitioner is located in front of her house. She was called alone in his house. The petitioner made physical relationship with her on allurement of marriage and continued to make physical relationship from that day and he repeatedly promised to marry. House of the petitioner is located in front of her house. She was called alone in his house. The petitioner made physical relationship with her on allurement of marriage and continued to make physical relationship from that day and he repeatedly promised to marry. In that course, she became pregnant. She reported the matter to the petitioner, but the petitioner did not pay any attention and continued to make physical relationship. When the pregnancy was about 8 months’ old, her family members asked her and she made some excuse. However, the petitioner, lastly called her in the garden in the evening and gave her some medicine in the pretext that a healthy child will be born. After taking the said medicine, the pain started and a premature child was born. The victim became unconscious and the child was buried in the ground by the petitioner. Her uncle Gurucharan Mahto saw her and she reported all the matter to him. The villagers pressed the petitioner and his family members to marry her with the petitioner but they refused and the child was taken out from inside the ground. 8. Upon the Fardbeyan of the victim girl, the case was instituted and a formal First Information Report was drawn vide Mahuatand P.S. Case No. 40 of 2002 under Section 376/316 of Indian Penal Code against the petitioner and charge-sheet was also submitted under the same sections. The charges were framed under Sections 313, 314, 315, 316 and 376 of Indian Penal Code against the petitioner and when the charges were read over to him, he pleaded not guilty and claimed to be tried. 9. The prosecution examined altogether 10 witnesses including the complainant as PW-6 and Gurucharan Mahto as PW-1. PW-9 is the doctor who had conducted the post-mortem of the child. PW-7 and 8 are seizure-list witnesses and they have identified their signature as Exhibit 1 and 1/A. PW-10 is the mother of the victim. Although the I.O. of the case was not examined but the witnesses have fully supported the prosecution case. The defence did not lead any evidence. It is not in dispute that the petitioner was a juvenile on the date of alleged occurrence and was 20 years old on the date of conviction. It is also not in dispute that the victim was major at the time of occurrence. The defence did not lead any evidence. It is not in dispute that the petitioner was a juvenile on the date of alleged occurrence and was 20 years old on the date of conviction. It is also not in dispute that the victim was major at the time of occurrence. The learned original court upon scrutinizing the evidence held that the case is that of consented sexual intercourse. It further held that no case of rape was made out and rather the evidences were led that the accused made sexual intercourse with the victim with an assurance to marry her and at best, a case under Section 415 of Indian Penal Code was made out because the accused had given false assurance and after the occurrence, he did not marry the victim. The learned court below also recorded that no charge was framed in connection with the dead child and there was contradiction in the version of the victim and the doctor in as much as the victim had stated that the child was born alive and the doctor, who conducted the post mortem on the child, stated that the cause of death was due to non-viability and pre-mature foetus. The learned court found that the evidence with regard to the offence of cheating under Section 417 IPC was available on record and accordingly, convicted the petitioner under Section 417 IPC and held that the petitioner, who was a juvenile at the relevant point of time, was in conflict with law. The petitioner and his guardian were directed to execute a bond of Rs. 20,000/- with two sureties of like amount each for a period of three years of admonition and also to pay a fine of Rs. 5,000/- only within a month and it was clearly recorded that the petitioner, a juvenile, was found in the conflict with law aged 20 years and earned money. The learned first court did not provide any default clause regarding payment of fine. 10. So far as the learned lower appellate court is concerned, it also scrutinized the evidences on record and found that petitioner, at the time of occurrence was below 18 years of age and upheld the conviction by the learned first court as well as punishment imposed. 10. So far as the learned lower appellate court is concerned, it also scrutinized the evidences on record and found that petitioner, at the time of occurrence was below 18 years of age and upheld the conviction by the learned first court as well as punishment imposed. The learned lower appellate court also recorded that the period of admonition which was given by the court for offence under Section 417 of Indian Penal Code for a period of three years for good behaviour had already elapsed. The petitioner was directed to pay a fine amount of Rs. 5,000/- within 10 days from the date of appellate court judgment, failing which he was directed to surrender before the court below to serve out sentence for a period of one month Simple Imprisonment. Thus the lower appellate court modified the sentence to the disadvantage of the petitioner and introduced a default clause in connection with payment of fine by directing that in case of non-payment of fine within 10 days from the date of the judgment the petitioner would undergo a sentence of simple imprisonment of one month. 11. So far as the first point raised by the petitioner is concerned, this Court finds that admittedly no charge was framed under Section 415/417 of Indian Penal Code but the learned original court convicted the petitioner under the said Section 417 of Indian Penal Code after recording a finding that although no case was made out under Section 376 of Indian Penal Code, but there was sufficient material on records to convict the petitioner under Section 417 of Indian Penal Code as the petitioner had sexual intercourse with the victim under false pretext of marriage. This Court finds that the specific case of the victim was that the petitioner had committed rape upon her by having sexual intercourse with her under false pretext of marriage and for this, charge under Section 376 of Indian Penal Code was framed against the petitioner. However, the learned original court was of the view that on account of consensual sexual intercourse no case of rape was made out and held that case under section 376 of Indian Penal Code was not made out, but case under section 417 IPC, of cheating, was made out as the petitioner had sexual intercourse with the victim under a false pretext of marriage. Upon perusal of the statement of the accused recorded by the learned original court after closure of prosecution evidence, it is apparent that it was placed before the petitioner that evidence has come that the petitioner had sexual intercourse with the victim under false pretext of marriage to which the petitioner had denied. Thus, even if no charge was framed under Section 417 of Indian Penal Code, the court could certainly convict the petitioner under Section 417 of Indian Penal Code as the basic ingredients of the said offence were present. The learned counsel for the petitioner has not raised any argument to the effect that the basic ingredients of offence under Section 417 of Indian Penal Code are absent in the present case. In view of the provisions of Section 222 of Criminal Procedure Code, there is a clear provision that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it. This Court finds that the learned original court had clearly held that the petitioner had developed and continued to have sexual intercourse with the informant in the pretext of marriage and convicted the petitioner for offence of cheating though the charge was framed under Section 376 IPC and not under Section 417 IPC, but the allegation of having sexual intercourse through cheating the victim was certainly there. Thus, merely because the petitioner was not separately charged for offence under Section 417 of Indian Penal Code, his conviction under Section 417 of Indian Penal Code is sustainable in the eyes of law. Accordingly, this Court does not find any merits in the first point raised by the petitioner and the conviction of the petitioner under Section 417 of Indian Penal Code is neither perverse nor illegal. 12. So far as the second point regarding finding of the learned original court while imposing fine of Rs. Accordingly, this Court does not find any merits in the first point raised by the petitioner and the conviction of the petitioner under Section 417 of Indian Penal Code is neither perverse nor illegal. 12. So far as the second point regarding finding of the learned original court while imposing fine of Rs. 5,000/- upon the petitioner that the petitioner was earning, this Court finds that no ground as such was taken before the learned lower appellate court and merely because the petitioner was in custody for a considerable period and even on the date of conviction, the same does not necessarily follow that the petitioner did not have any income. A person can continue to have income from other sources even while in custody. The petitioner, having not taken such point before the learned lower appellate court regarding his claim of being a non-earning person, this Court is not inclined to entertain such a plea for the first time in revisional jurisdiction as the point as to whether the petitioner was having income or not is essentially a matter of fact. This Court is of the considered view that such point having not been taken before the learned lower appellate court, the learned lower appellate court was right in upholding the order of fine to be paid by the petitioner. 13. However, the learned lower appellate court not only upheld the order of fine but also introduced a default clause by directing that if the petitioner does not deposit the fine within a period of 10 days from the date of judgment, he would surrender and serve simple imprisonment of one month. This Court is of the considered view that such modification, which is admittedly to the detriment of the petitioner, who was a juvenile at the time of occurrence, was not only uncalled for but is also not sustainable in the eyes of law particularly when the original court did not choose to pass any order of detention against the petitioner and the petitioner and his guardian had already complied with the direction for executing bond of Rs. 20,000/- with two sureties of like amount each for a period of three years on admonition and the said period had already expired. 20,000/- with two sureties of like amount each for a period of three years on admonition and the said period had already expired. This court, in order to meet the ends of justice, for the aforesaid reason, sets aside the direction of the learned lower appellate court directing that if the petitioner does not deposit the fine within a period of 10 days from the date of judgment, he would surrender and serve simple imprisonment of one month. Consequently, the petitioner is directed to deposit the fine amount of Rs. 5,000/- as directed by the learned original court within a period of one month from the date of communication of this order to the learned court below failing which the learned original court is directed to proceed for realization of the fine amount in accordance with the procedure laid down in Criminal Procedure Code, 1973. 14. This petition is accordingly disposed of with aforesaid modification and directions. 15. Pending interlocutory application, if any, is dismissed as not pressed. 16. Interim order, if any, stands vacated. 17. Let the Lower Court’s Records be immediately sent back to the court concerned. 18. Let a copy of this order be communicated to the learned court below through “FAX/Email.”