IMPORTANT POINT
A long-term consensual relationship does not constitute cheating under Section 417 IPC unless deception or misconception of fact is proven.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. M Biswas, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam and Mr. VA Chowdhury, learned Amicus for the respondent No. 2.

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 14.12.2010 passed by the learned Chief Judicial Magistrate, Morigaon in connection with CR Case No. 87/2008, whereby the present petitioner/accused was convicted under Section 417 IPC and was sentenced to undergo Simple Imprisonment (SI) for 1 (one) year and to pay a fine of Rs. 1,000/- (one thousand only) and in default of payment of fine, to undergo Simple Imprisonment (SI) for 2 (two) months.

3. The further challenge is made against the appellate judgment and order dated 09.04.2012 passed by the learned Sessions Judge, Morigaon, Assam in Criminal Appeal Case No. 4/2011, whereby the judgment and sentence dated 14.12.2010 passed by the learned Chief Judicial Magistrate, Morigaon was upheld.

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

(i) The complainant/victim was in love relationship with the accused/petitioner since the year 2004-05. According to her, the accused/petitioner promised to marry her and had sexual intercourse with her and in the year 2007 she became pregnant. According to her, the accused/ petitioner asked her to abort her child and gave st assurance that he would marry her on 1 week of the month of Magh and she aborted her child. Thereafter, on 30.01.2008, the accused/ petitioner expressed his disinclination to marry her and asked her to get married to another person.

(ii) Thereafter, she lodged a complaint before the learned Chief Judicial Magistrate, Morigaon. The learned Chief Judicial Magistrate, Morigaon after taking initial statement of the complainant, took cognizance of offence against the accused/ petitioner under Section 417 IPC and summon was issued against him.

(iii) On receipt of the summons, the accused/ petitioner appeared before the court. Particulars of offence were explained to him, which he pleaded not guilty and claimed to be tried.

(iv) During the trial, the prosecution examined as many as 4 (four) witnesses including the victim. The defence led 1 (one) defence witness.

(v) After the trial, the learned Trial Court convicted the petitioner under Sections 417 IPC and sentenced him as aforesaid.

(vi) Thereafter, the accused/petitioner preferred an appeal against the judgment and sentence dated 14.12.2010, which was also upheld by order dated 09.04.2012, as recorded herein above.

5. In the aforesaid backdrop, Mr. M Biswas, 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. Biswas, 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. Biswas, learned counsel for the petitioner contends that the prosecution has failed to prove miserably by way of cogent evidence that the consent by the complainant to the sexual intercourse was given under misconception of fact, i.e., promise to marry but for the fact that she also desired for it as they were in a love relationship for 4 years. Therefore, the petitioner ought not to have been convicted under Section 417 IPC for cheating based on the evidence a