JUDGMENT

Sandeep K. Shinde, J. - The appellant herein is convicted of the offence punishable under Section 417 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.200/- in default to suffer simple imprisonment for one month.

2. It is against the conviction and sentence passed in Sessions Case No.256 of 1996 by the Additional Sessions Judge, Palghar, convict has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short).

3. Prosecution case in brief, is that, prosecutrix was working on construction site where she be-friended with the accused and in short span, they engaged in sexual relations, on more than one time. She would allege, appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion. Later, when she learnt that applicant was married, but by the time, she was pregnant, Soon thereafter, she lodged the complaint in September, 1990 whereupon the offence punishable under Section 376 of the IPC was registered against the accused. Pending investigation, prosecutrix delivered a baby girl.

4. Accused was tried of the offence punishable under Sections 376 and 420 of the IPC.

5. The learned Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. The learned Trial Court while acquitting the accused of the charge under Section 376, has observed and held, 'From the version of the complainant, as stated earlier, accused did not have sexual intercourse with the complainant against her will and without her consent. Sexual intercourse by a lady of 20 years age with consent cannot be said to be rape, as the lady is capable of giving her consent. In such background charge for offence punishable under Section 376 of the I.P.C. against the accused must fail.'

6. The State has not preferred the appeal against the order of acquittal as stated above.

7. The learned Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.

8. Mr. Sethna, the learned counsel for the appellant, in support of the appeal would argue that offence of cheating falls under Chapter XVII of the IPC, which relates to the, "offence against the properties" and, therefore, offence under Section 415 read with Section 417, necessarily relate to the property, which in the instant case is not involved and, therefore, the conviction under Section 417 of the IPC is erroneous. Mr. Sethna further submits the appellant has been acquitted of the charge of rape on the ground that it was consensual act and, therefore, it is irrational, to hold appellant guilty of offence of cheating by intentional deception and therefore, once the Court concludes, it was consensual act, on the same set of facts and evidence, accused cannot be convicted for falsehood or concealment of his marital status. On these grounds, Mr. Sethna seeks acquittal of the appellant.

9. On the other hand, the learned Additional Public Prosecutor, Mrs. Kaushik supported the conviction and sentence and would contend that the learned Trial Court has correctly applied penal provisions of Section 417 of the IPC to the facts of the case. The learned Additional Public Prosecutor submits that, proposition canvassed by Mr. Sethna that Section 415 of IPC only relates to the property is incorrect and would submit that second part of Section 415 squarely applies to the facts of the case and in support of this submission, she has relied on the judgment of the Hon'ble Apex Court in the case of G.V.Rao v. L.H.V.Prasad and Others, (2000) 3 SCC 693 and judgment of this Court in the case of Mangesh Madusudan Kotiyan v. The State of Maharashtra & Anr. in Criminal Appeal No.892 of 2012 decided on 2nd