HON’BLE SRI JUSTICE K.G.SHANKAR CRL.R.C.No. 1308 of 2005 O R D E R: The revision petitioner is the sole accused. He allegedly duped P.W.1 and committed an offence u/Sec.417 IPC. The prosecution examined as many as eight witnesses. After considering the evidence, the learned III Metropolitan Magistrate, Visakhapatnam, considered that the offence u/Sec.417 IPC was made out and accordingly, convicted the accused and sentenced him to rigorous imprisonment for a period of one year and a fine of Rs.5,000/- with appropriate default sentence. An appeal was preferred before the Sessions Court. The learned Sessions Judge, Mahila Court, Visakhapatnam, considered that the conviction recorded by the trial court is just and reasonable and found no merits in appeal and consequently, dismissed the appeal. 2. Sri K.Jyothi Prasad, learned counsel for the accused contended that the offence u/Sec.417 IPC is not made out and that there was no intention to the accused to cheat P.W.1 at that point of time when specific overtact was alleged against the accused. 3. It is convenient to refer to the case of the prosecution at this stage. 4. P.W.1 is the victim. She was described to be 18 years old at the time of the incident. The accused is the son of her paternal aunt. It is the case of P.W.1 that the accused induced P.W.1 to sleep with him promising to marry her. Believing the words of the accused, P.W.1 physically entertained the accused on several occasions. In August, 2002, P.W.1 requested the accused to marry her as she was in 4th month of pregnancy at that time. The accused and his parents demanded Rs.2,00,000/- as dowry for the marriage of P.W.1 with the accused. The mediation of P.W.1 and her parents to convince the accused and his parents proved futile. Later a complaint was lodged against the accused, which was registered by the police u/Sec.417 IPC. 5. It is relevant to refer to Sec.417 IPC which reads: “Sec.417:Puinishment 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.” 6. In view of Section 417 IPC, there must be cheating to establish the offence u/Sec.417 IPC. 7. Sri K.Jyothi Prasad, learned counsel for the accused drew my attention to the evidence of P.W.1 primarily and the evidence of P.Ws.1 to 4 in general and pointed out that the accused never cheated P.W.1 that he would marry P.W.1 so as to obtain the consent of P.W.1 for her physical intimacy with the accused. 8. It is the case of P.W.1 that when P.W.1 informed the accused about her pregnancy, the accused stated that he would convince his parents to agree for his marriage with her. P.W.1 never stated that the accused disowned P.W.1. Her further case is that when the parents of P.W.1 expressed their inability to pay Rs.2,00,000/- as dowry, the accused and his parents did not agree for the marriage of P.W.1 with the accused. I am afraid that this part of the conduct of the accused cannot be considered to be cheating within the meaning of Sec.417 IPC to establish the offence punishable u/Sec.417 IPC. In the present case, the prosecution should establish that at the time of the carnal acquaintance between P.W.1 and the accused, the accused had no intention to marry P.W.1 and had merely offered to marry P.W.1 to induce her to have physical intimacy with the accused and that the accused had the requisite mens rea to cheat P.W.1. 9. Sri Rudresh Deshpande, learned counsel representing the Public Prosecutor submitted that the evidence of P.Ws.1 and 2 establishes the intention and conduct of the accused. I do not agree with the contention of the learned counsel representing the Public Prosecutor. There is no whisper in the evidence of P.W.2 that the accused induced P.W.1 to sleep with him and that the accused had no intention to marry P.W.1. In that view of the matter, I am afraid that the offence u/Sec.417 IPC is not made out. Unfortunately, neither the trial court nor the appellate court appreciated the evidence of P.W.1 primarily and the evidence of P.Ws.1 to 4 generally in a correct perspective and thereby arrived at an erroneous conclusion. The prosecution in fact, failed to establish the guilt of the accused for the offence u/Sec.417 IPC muchless beyond reasonable doubt. The accused is consequently, liable to be acquitted for the offence u/Sec.417 IPC. 10. In the result, the criminal revision is allowed. The accused is acquitted in respect of the offence punishable u/Sec.417 IPC. His Bail bonds shall stand discharged. The fine amount, if already paid by the accused before the trial court, shall be refunded to him. ________________ K.G.SHANKAR, J Dt.30.09.2011 Mjl/*