The main legal point established in the judgment is that consent given under assurance of marriage, without being induced by a misconception of fact, does not constitute cheating under Section 417 of IPC.

1. In this criminal appeal the judgment and order of conviction and sentence dated 20.09.2013 passed by learned Sessions Judge, South Tripura, Udaipur in Sessions Trial Case No.57(ST/U) of 2012 has been challenged by the appellant. Charges under Sections 376(1) and 417 of IPC were framed against the accused appellant to which he pleaded not guilty and in the trial learned Sessions Judge acquitted the accused appellant from the charge under Section 376(1) of IPC and found him guilty of the charge under Section 417 of IPC and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 25,000/-(rupees twenty five thousand), in default of payment of fine to suffer S.I. for three months.

Aggrieved, the accused appellant filed the present appeal.

2. Heard learned counsel, Mr. D. Bhattacharji for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.

3. Prosecution case is that accused Bapi Saha alias Rajesh, a co-villager of the informant, Smti. Chanu Das(PW1), giving false assurance of marriage pretended love with her daughter, the victim prosecutrix(name kept withheld), aged about sixteen years and at first on 17.09.2010, a day of Vijaya Dashami of Durgapuja, committed rape on the victim prosecutrix and thereafter also the accused appellant used to come to the house of the informant in the darkness of night and would take her daughter in the isolated place to the bank of the pond and committed rape on about four occasions and as a result the victim prosecutrix got pregnant and the pregnancy in the meantime matured for about three months. When the victim prosecutrix could understand that she got pregnant, she asked the accused to marry her but the accused was avoiding her saying that his parents had no consent to such marriage and therefore he was not in a position to marry her. It is alleged by the informant that the accused with the assurance of marriage on the pretext of love committed rape on her daughter and therefore by lodging FIR on 21.02.2011 before the O/C of R.K. Pur P.S. she prayed for justice.

3.1. On the basis of the FIR R.K. Pur P.S. Case No.61 of 2011 under Sections 417 and 376 of IPC was registered and during investigation statements of the informant and the victim prosecutrix were recorded under Section 164 of CrPC before the Judicial Magistrate, First Class, Udaipur and medical examination of the victim prosecutrix was done and ultimately police submitted charge sheet against the accused for commission of offence punishable under Sections 417 and 376(1) of IPC. In the course of trial, as stated hereinbefore, charges under Sections 417 and 376(1) of IPC were framed against the accused to which he pleaded not guilty.

3.2. Prosecution examined twelve witnesses and out of them PW1 is the informant and the mother of the victim prosecutrix. PW2 is the victim prosecutrix herself and they are the only material witnesses of the case. PWs 3, 4 and 5 are the teachers of Tripura Sundari J.B. School and out of them PW5 issued a school certificate in the name of the victim prosecutrix which contains her date of birth and PWs 3 and 4 are the witnesses to the seizure list. PW6 is a Laboratory Technician of Tripura Sundari District Hospital in whose presence blood samples of the victim prosecutrix, the accused and the child were collected for DNA test and he proved the seizure list of the collection of blood samples. PW7 is the Pathologist of Tripura Sundair District Hospital and he examined urine for HCG and vaginal swab and opined that urine HCG was positive and there were no spermatozoa in the vaginal swab. PW8 is a constable of police and is a witness to the collection of blood samples. PW9 is a Radiologist of G.B. Hospital and he has done ultrasonography and opined that the victim prosecutrix was carrying pregnancy about thirteen weeks at that time. Ossification test could not be done since the victim prosecutrix was carrying pregnancy. PW10 is the scribe of the FIR. PWs 11 and 12 are th