Bombay High Court: Sandeep K. Shinde, J., addressed a matter wherein the appellant challenged the conviction and sentence passed by Additional Sessions Judge for his conviction under Section 417 of Penal Code, 1860.
In the present matter, it has been stated that the appellant was convicted under Section 417 of the Penal Code, 1860.
Prosecutrix while working on the construction site be-friended with the accused and in a short span, they engaged in sexual relations, more than one time.
Further, she alleged that the appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion, by the time she learnt that the appellant was married, she was pregnant.
In 1990, prosecutrix lodged a complaint about the offence punishable under Section 376 IPC, pending investigation, prosecutrix delivered a baby girl.
Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was a consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.
Analysis and Decision
Bench while analysing the facts and circumstances of the case noted that prosecutrix submitted in her testimony that she was living on construction site and be-friended with the accused, whereafter they fell in love with each other.
Further, Court observed that the evidence of the prosecutrix did not suggest that the appellant made a false promise to marry her. Hence, it cannot be said that the appellant lured the prosecutrix to engage in sexual relations with him on the false promise of marrying her.
Question for consideration:
Whether conviction of the accused under Section 417 of the IPC is sustainable?
“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”
In fact prosecutrix’s evidence suggested that she presumed that the appellant was not married and further assumed that he would marry her.
Therefore, the absence of ‘dishonest concealment of fact’, which is an essential ingredient of offence, within the meaning of explanation, appended to Section 415 of IPC, a conviction under Section 417 of IPC is not sustainable.
Lastly, Court concluded by stating that the impugned conviction and sentence by the Additional Sessions Judge be quashed and set aside. [Jagdish Raghunath Mankar v. State of Maharashtra, 2021 SCC OnLine Bom 269, decided on 24-02-2021]
Advocates who appeared before the Court:
Advait M. Sethna appointed advocate with Pravan A. Gohil with Eshaan Saroop for the appellant.
Sharmila Kaushik, APP for the Respondent- State.
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[Section 417 IPC] Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
[Section 415 IPC] Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.
