1 Cri.Appeal No.343/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.343/1998 Maroti s/o Kishan Shingare Age: 30 Yrs., R/o Bodhadi, Tq. Kinwat, District Nanded. - APPELLANT (orig.Accused) VERSUS The State of Maharashtra - RESPONDENT ***** Mr.KM Suryawanshi, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 19th January, 2011. ORAL JUDGMENT: 1) Counsel for the appellant called, absent. Heard learned APP for State. Perused the record. 2) The appellant/accused was basically prosecuted for an offence under Sections 366 and 376 of Indian Penal Code. There was an additional charge of offence under section 417 of IPC during trial. The learned Judge acquitted the accused/appellant for the former two offences and convicted him in the later offence, i.e. under 2 Cri.Appeal No.343/1998 Section 417 of IPC, directing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-, in default, to suffer R.I. for three months. This judgment of conviction is questioned by the accused/appellant. 3) The prosecution case revolves that the victim Nirmala had illicit relations with the accused. Her cohabitation with the accused was by consent, however, she narrated one incident dated 22.3.1997 that she felt having duped by the accused and consequently she went to the house of the accused/appellant. She had altercations and report was lodged by father of the accused/appellant. The victim then approached the police against the accused. After completion of investigation, based on F.I.R. of the victim, charge sheet against the accused/appellant was filed. After the charge, the prosecution put in 10 witnesses, PW 1 was medical officer; PW 2 was uncle of the complainant/victim; PW 3 and PW 6 are her parents; PW 4 is victim herself; PW 5 is a relative; PW 7 and PW 8 are the panch of the letter and apparels of the victim (PW 4); PW 9 and PW 10 are the Investigating officers. 4) The evidence of prosecutrix and her letters are of vital importance in the matter. Having read her evidence and the letters, it is 3 Cri.Appeal No.343/1998 clear, out of the theory of inter se love between the victim and the accused/appellant, they had sexual relations, due to which, the victim conceived. The accused denying to marry with her has resulted in the mishap of prosecution and gave rise to the offence under section 417 of IPC. The cross-examination of the victim illustrate, whenever she was in the company of the accused/appellant and had submitted, there was no inducement to her or any deception or fraud played by the appellant/accused with her in lieu of her submitting he would be marrying with her or providing employment. The ingredients of cheating illustrate, - 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. 5) Taking overall survey of evidence of the prosecutrix, it is indicative that there was no such inducement, it was love affair, the victim had with the accused/appellant as she was 4 Cri.Appeal No.343/1998 dejected and refused, the prosecution is initiated. 6) The conviction for an offence under Section 417 of IPC, was contrary to the available record and hence it calls for interference. The conviction is set aside, amount of fine, if deposited, be refunded to the appellant/accused, Bail bond cancelled, surety discharged. The appeal is allowed in the aforesaid terms. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)