Consent in a love relationship cannot be deemed vitiated unless proven that it was based on a false promise made in bad faith, and mere refusal to marry does not constitute cheating under Section 417 IPC.

JUDGMENT :

(Arun Dev Choudhury, J.)

1. Heard Mr. K. Bhattacharjee, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the respondent No.1. None appears for the informant/respondent No.2, though the name of the counsel representing her before this Court has been reflected in the cause list.

2. The present Criminal Revision Petition under Sections 397/401 of the Code of Criminal Procedure, 1973 is filed assailing the judgment and sentence dated 18.08.2010 passed by the learned Sub-Divisional Judicial Magistrate (S), Barpeta in connection with GR Case No. 1310/1999, whereby the present petitioner/accused was convicted under Section 417 IPC and was sentenced to undergo Rigorous Imprisonment (RI) for 6 (six) months and to pay a fine of Rs. 3,000/- (three thousand only) and in default of payment of fine, to undergo Simple Imprisonment (SI) for 20 (twenty) days.

3. The further challenge is made against the appellate judgment and order dated 24.01.2012 passed by the learned Additional Sessions Judge (FTC), Barpeta, Assam in Criminal Appeal Case No. 21/2010, whereby the judgment and sentence dated 18.08.2010 passed by the learned Sub-Divisional Judicial Magistrate (S) Barpeta, was upheld.

4. The prosecution story in a nutshell is that:-

(i) The complainant/victim was in love relationship with the accused/petitioner for 4 years. According to her, the accused/petitioner promised to marry her and had sexual intercourse with her. Though the complainant initially refused the proposal of the accused/petitioner but subsequently, she relented and had started having sexual intercourse with him. Accordingly, in the month of “Puh” (in Assamese), she conceived and became pregnant. She put pressure on the accused/petitioner to marry her but on various pretexts, he avoided to marry her. She informed about the incident to the guardians of the both sides and though a village meeting was held, the accused remained absent in the meeting.

(ii) Thereafter, she lodged a complaint before the learned Chief Judicial Magistrate, Barpeta on 23.07.1999 and the aforesaid complaint was forwarded to the Officer-in-Charge of Sarthebari Police Station. Accordingly, Sarthebari P.S. Case No. 65/1999 was registered under Sections 376/420 IPC. After investigation of the case, police submitted Charge Sheet under Sections 376/420 IPC. The learned Magistrate committed the case to the Court of the Sessions Judge, Barpeta and the learned Sessions Judge, Barpeta framed charge under Section 417 IPC and remanded the case to the Sub-Divisional Judicial Magistrate (S), Barpeta for trial.

(iii) During the trial, the prosecution examined as many as 5 (five) witnesses. After the trial, the learned Trial Court convicted the petitioner under Sections 417 IPC and sentenced him to undergo RI for 6 (six) months and to pay a fine of Rs. 3,000/- (three thousand only) and in default of payment of fine, to undergo SI for 20 (twenty) days. Thereafter, the accused/petitioner preferred an appeal against the judgment and sentence dated 18.08.2010, which was also upheld by order dated 24.01.2012, as recorded herein above.

5. In the aforesaid backdrop,Mr. Bhattacharjee, learned counsel for the petitioner argues that the prosecution had failed to bring home the charge under Section 417 IPC as initial deception is missing in the instant case and the complainant being a major had herself consented to their intimate and physical relationship out of her own sweet will inasmuch as they were in a relationship of more than 4 years.

6. Mr. Bhattacharjee, learned counsel for the petitioner further urges that there is no material, even to remotely suggest that the petitioner had lured the victim on the pretext of marrying her. Therefore, according to him, the conviction under Section 417 IPC for ‘cheating’ is not sustainable in law and the impugned judgments and orders are liable to be interfered, having been vitiated by perversity.

7. Mr. Bhattacharjee, learned cou