The importance of corroborative evidence and the credibility of the victim's statements in cases of cheating under Section 417 of IPC.

1. This criminal appeal under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 03.05.2014 passed by learned Sessions Judge, South Tripura, Udaipur in Case No. S.T. 58(ST/U) 2013.

2. Heard learned senior counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder for the appellant and learned Additional P.P., Mr. R.C. Debnath for the State-respondent.

3. The victim prosecutrix Kalpana (actual name kept withheld) set the law in motion by filing an FIR in writing before the Officer-in-charge of Nutun Bazar P.S. on 02.10.2011 alleging that she developed love affairs with accused Nayan Debnath @ Subhankar, a resident of Nutan Bazar Bangali Para and that Nayan Debnath during a period of six months before that day set up physical relation with her tempting/alluring her the prospect of marriage. On that day i.e. on 02.10.2011 at about 8:30 pm the accused called the prosecutrix near ADC office adjacent to Jatanbari Dak bungalow and set up physical relation with her and at that time Biswajit Saha and Kanchan Majumder caught them red-handed, but subsequently the accused Nayan Debnath fled away. The FIR was lodged at 22:45 hours and accordingly, O/C registered Nutan Bazar P.S. Case No. 43/2011 under Section 417 and 376 of IPC and an investigation was taken up.

4. In course of investigation, medical examination of the victim prosecutrix was done at Nutan Bazar Rural Hospital by PW6, Dr. Narendra Chandra Das and she was also produced before the Sub-Divisional Judicial Magistrate, Amarpur and her statement was recorded under Section 164 of Cr.P.C. Her vaginal swab was collected by PW6 and was examined by PW8, Dr. Sabyasachi Nath and the wearing apparels were examined by PW9, Dr. Subhankar Nath. In course of investigation, I/O examined all the material witnesses, recorded their statement under Section 161 of Cr.P.C. and thereafter submitted charge sheet against the accused appellant for commission of offence punishable under Sections 417 and 376 of IPC.

5. Cognizance was taken on the basis of the police report and thereafter on commitment of the case to the Court of learned Sessions Judge, South Tripura, Udaipur, charge was framed against the accused under sections 417 and 376(1) of IPC, to which the accused pleaded not guilty and claimed to be tried.

6. In course of investigation, the prosecution examined 16 witnesses. The prosecution also proved the FIR, the Medical Examination Report, Scientific Examination Reports of vaginal swab and wearing apparels, statement of the victim recorded under section 164 of Cr.P.C. etc. The name of the prosecution witnesses and description of the exhibited documents and material have been mentioned in the Appendix to the trial Court’s judgment and, therefore, I refrain myself from reproducing them in this judgment.

7. After closure of the prosecution evidence the accused was examined under Section 313 of Cr.P.C. and in his turn the accused declined to adduce any evidence. Defence case so far ascertained from the cross-examination of the prosecution witnesses as well as from the statement of the accused made under Section 313 of Cr.P.C. is of denial of the prosecution case and nothing else.

8. Learned trial Judge acquitted the accused from the charge under Section 376(1) of IPC, but found him guilty to the charge under Section 417 of IPC and accordingly sentenced him to suffer R.I. for six months and to pay a fine of Rs. 10,000/- in default of payment to suffer S.I. for two months.

9. Aggrieved, the convict-appellant preferred the present appeal.

10. Learned senior counsel, Mr. Biswas emphatically submitted that there is no evidence at all to hold the accused guilty of the charge under Section 417 of IPC. The victim prosecutrix, according to her own statement, was 20 years at the time of alleged occurrence and she herself stated that she was a consenting party to the physical relation with the accused as alleged. Her statement what is mad