JUDGMENT :

Heard Mr. B. Choudhury, learned counsel for the accused-appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State/respondent No. 1 as well as Mr. A. Khaleque, learned counsel for the respondent No. 2.

2. This appeal has been preferred by the victim and her father as an informant against the judgment and order dated 19.11.2010, passed by the ld. Assistant Sessions Judge, Goalpara in Sessions case No. 67/2010 under Sections 366/417 IPC, whereby the ld. Assistant Sessions Judge, Goalpara acquitted the accused/ appellant.

3. The facts of the case is that on 27.07.2010, the informant Sahad Ali lodged an FIR stating interalia that about 4(four) months back, accused/appellant Md. Faizur Rahman took his married daughter Daliman Nessa to his house with a view to marry her. Accordingly on the same day, she gave talak to her former husband and the accused promised to marry his daughter after expiry of the ‘iddat’ period. But after expiry of the said period since three months the accused did not marry his daughter. Then he approached the accused/appellant, the accused refused to marry his daughter.

4. On receipt of the complaint, a case was registered vide Dhupdhara P.S. case no. 68/2010 under Sections 366/417 IPC and the investigation was started. During investigation, the investigating officer visited the place of occurrence, examined the witnesses including the informant and his daughter/the victim and after completion of investigation, charge-sheet was submitted against the accused/appellant under sections 366/417 IPC before the CJM, Goalpara. As the offence under Section 366 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

5. During trial, on appearance of the accused/appellant before the court, charge was framed under Sections 366/417 IPC which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried.

6. To substantiate the case, the prosecution examined as many as 7(seven) number of witnesses. On the other hand, the defence did not choose to adduce any evidence in support of his case. After completion of prosecution evidence, the accused/appellant was examined under Section 313 Cr.P.C. and all the allegations made against the accused/appellant appeared from the evidence of the witnesses put before him for his explanation where he denied the allegations. It is further stated that he has been falsely implicated in this case. After hearing the argument advanced by the learned counsels for both the parties, the ld. trial court had acquitted the accused. Hence this appeal.

7. It was urged by the ld. counsel for the accused/appellant that it is true that the case against the accused/appellant is not proved beyond all reasonable doubts under section 366 IPC. However, the accused had committed the offence under Section 417 IPC as he earlier had promised to marry the victim but subsequently he refused to marry her, thereby cheated the victim.

8. It is also the submission of ld. counsel for the accused/appellant that when the prosecutrix under the misconception of facts to the extent that the accused is likely to marry her submits to the lust of the accused such a fraudulent act cannot be said to be consensual, so far as the statement of the accused is concerned. It is also submitted that the accused/appellant had promised to marry the victim girl in front of the village people and subsequent refusal of marriage will come under the purview of Section 417 IPC. Hence the accused/appellant may be convicted under the said provision of law.

9. In support of his submissions, ld. counsel has placed reliance on the following case laws :- (2005) vol. 1 SCC 88 (Deelip Singh @ Dilip Kumar –vs- State of Bihar), (2005) vol.9 SCC 15 (Devender Kumar Singla –vs- Baldev Krishan Singla, (2013) vol.7 SCC 675 (Deepak Gulati –vs- State of Haryana).

10. The Additional Public Prosecutor for the State also argued in the same tune by stating that