P.G. Agarwal, J.

1. Criminal Appeal No. 313/2001 is directed against, the Judgment and Order, dated 4.9.2001, passed by the Addl. Sessions judge, Kamrup, Guwahati, in Sessions Case No. 135(K)/1997 (GR Case No. 209/97), whereby the accused appellant Bipul Medhi was convicted under Section 417, IPC and sentenced to rigorous 'imprisonment for six months and to pay fine of Rs.1,000 in default further imprisonment for two months.

2. The prosecution allegation, in brief, is that accused Bipul Medhi developed some intimacy and friendship with Sewali Kalita and the affair continued for two-and-half years. The accused, thereafter, promised to marry Sewali and believing on the said plea, Sewali allowed the accused to have cohabitation with her and as of such cohabitation, she became pregnant. The victim also alleged rape, whereupon the accused was tried for commission of offence under Section 493/376, IPC. On conclusion of the, trial, the learned trial court convicted the accused-appellant as aforesaid.

3. While hearing the appeal, the learned Single Judge noted that in the facts and circumstances of such cases on the question whether offence under Section 417, IPC is made out or not, there are three decisions of this court and two of these decisions are contrary to each other. All these cases have been decided by learned Single Judges, but with different views. On reference being made, the Hon'ble Chief Justice has referred these matters to this Bench and that is how, we have heard matters.

4. Mr. J.M. Choudhury, learned senior advocate, and Mr. T.J. Mahanta, learned advocate, were appointed as amicus curiae. We have heard the learned P.P. and the learned Counsel in each case.

5. In this batch of cases, we are deciding the question of law referred to us and as such, the facts of individual cases are not considered or referred to.

6. Before proceeding further, we may briefly note the various decisions of this court on the subject.

7. In the case of Joleswar Kalita v. State of Assam, the question raised was that the prosecutrix could not have surrendered to the petitioner, if she was not deceived and as the prosecutrix had suffered damage or harm in body, mind and reputation due to deception, the offence of cheating under Section 415, IPC is made out Hon'ble Sangma, J, declined to accept, the above submission and held that the petitioner could not be convicted for cheating under the penal law and it was held as follows:

Section 415/417, IPC come under Chapter XVII - Offenses against property. Therefore, in order to bring the case even under the later part of the section, deception must be in relation to property. The expression 'to do' or 'omit to do any thing in Section 415 apply to a person who is deceived in relation to property though the property may or may not be delivered. It does not apply to the case of the woman who is made to surrender her chastity to a man who deceived her.

8. The facts in Moni Gogoi v. Smti. Sarumani Hazarika were also more or less identical and the accused promised the complainant that he would marry her and on that understanding, he requested her to have sexual intercourse with the complainant, who became pregnant and gave birth to a child. The accused deserted the complainant and refused to marry her. The learned Single Judge (Hon'ble S.D. Roy, J, as his lordship then was) set aside the order of conviction and acquitted the accused holding, inter alia, as follows:

There is no evidence on record that at the time of making such promise/assurance or at the time of cohabitation, petitioners made such promise to the complainant that he would marry her with knowledge that ultimately he would not marry to complainant. Had the petitioner made the promise honestly and bona fide during or before the alleged intercourse then the petitioner could be convicted under Section, 417 IPC for his failure to keep the promise. There may be hundreds of factors for which an accused may fail to keep his promise. He may even change