Promise to marry does not negate consent given out of love; misleading promises alone do not constitute misconception of fact for statutory cheating.

1This Criminal Revision Case is directed against the judgment dated 7-11-2001 passed in Cri C,. No. 28 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam, whereby the learned Sessions Judge confirmed the conviction of the accused for the offence under S.417, IPC passed in C.C. No. 820 of 2000 on the file of III Metropolitan Magistrate, Visakhapatnam, while reducing the sentence of imprisonment from six months to one month.

2. The petitioner herein is the accused in C.C. 820 of 2000. The prosecution case in brief is as follows :

P.W. 1 P. Maseenamma is daughter of P.W. 2 P. Bhulokamma and L.W. 8 Peerla Apparao. The petitioner / accused used to visit the house of junior paternal uncle of P.W. 1 and thereby acquaintance developed between P.W. 1 and the petitioner / accused. The petitioner / accused went around P.W. 1 saying that he loved her and he wanted to marry her. He also told her that he could not live without her company. He started inducing P.W. 1 with promise to marry her. On one day finding P.W. 1 alone in the house, the petitioner / accused pressured her to come out and took her to the house of P. Bapanna which was then vacant and made her to succumb to his promise of marriage and thereby had sexual intercourse with her. Whenever she found alone in the house the petitioner / accused used to take the opportunity of calling her out and taking to the house of P. Bapanna which was then vacant and had sexual intercourse with her. It so happened for four or five times. On realizing that she gained pregnancy because of her association with the petitioner / accused, she informed the same to the petitioner / accused and there upon the petitioner / accused advised her not to disclose to any one. He further told her that his parents were not willing to receive her as their daughter in law and so he advised her to get rid of the pregnancy. He took her to the hospital for abortion and his efforts to get the pregnancy of P.W. 1 aborted proved futile. He even gave some pills to P.W. 1 so as to get her pregnancy aborted. But all the efforts made by him to get the pregnancy of P.W. 1 aborted proved to be futile. When P.W. 1 insisted the petitioner / accused to marry her, the petitioner / accused demanded a dowry of Rs. 20,000/- and thereafter refused to marry her. A panchayat was held in the presence of P.W. 6 A. Nookaraju, P.W. 7 K. Dhanaraju, P.W. 8 P. Nookaraju and P.W. 9 K. Appanna. It appears the petitioner / accused admitted his intimacy with P.W. 1 before them, but he refused to marry her. Therefore, P.W. 1 present Ex. P - 1 report before the SHO, Gajuwaka (L and O) Police Station on 25-2-1996. P.W. 13 P. Rarajorasad, SI of police received Ex. P - 1 report and registered a case in Cr. No. 102/96 and issued Ex. P - 5 FIR. He examined P.Ws. 1 to 9 and recorded their statements. He sent P.W. 1 to K. G. Hospital for medical examination. P.W. 12 Dr. T. Radha examined P.W. 1 medically on 26-4-96 and issued Ex. P - 4 certificate opining that P.W. 1 is pregnant and the period of gestation is about 14 weeks. The petitioner / accused was also sent to hospital for medical examination with regard to his potency. P.W. 11 Dr. D. S. Patnaik examined the petitioner / accused medically and issued Ex. P - 3 certificate opining that there is no evidence to suggest his impotency. After usual investigation L.W. 14 I. Chitti Babu, S.I. of Police, laid the charge - sheet in the Court in III Additional Metropolitan Magistrate, Visakhapatnam. The learned Magistrate took the charge - sheet on the file as C.C. 820 of 2000. On appearance of the petitioner / accused and on furnishing copies of necessary documents to him, the learned Magistrate examined him under S.239, Cr. P.C. and framed a charge under S.420 of IPC . The pe