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Wednesday, February 3, 2016

“415. 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.”The ingredients required to constitute the offence of Cheating have been discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under: “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” A careful reading of evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section 415 of IPC. For conviction of the Appellant for above said offence, it is important that all the necessary ingredients constituting an offence under the said Section must be proved beyond reasonable doubt. In the instant case, the appellant cannot be convicted for the offence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt. 22. Further, Section 506 of IPC prescribes punishment for the offence of criminal intimidation as defined under Section 503 of IPC. Section 503 of IPC reads thus: “503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.” A reading of evidence on record in the light of aforesaid legal provision shows the insufficiency of evidence to hold the conviction of the appellant for the offence of criminal intimidation punishable under Section 506 part I of IPC. From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charges leveled against the appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC.


|Non-REPORTABLE           |



               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 13  OF 2016
            (Arising out of SLP(Crl.) No.4896 of 2015)



TILAK RAJ                         … APPELLANT

                            Versus


THE STATE OF HIMACHAL PRADESH     … RESPONDENT




                       J U D G M E N T



V. GOPALA GOWDA, J.


      Leave granted.


This criminal appeal is directed against the  impugned  judgment  and  order
dated 06.01.2015 passed by the High Court of Himachal Pradesh at  Shimla  in
Criminal Appeal No. 369 of 2012 whereby  it  has  partly  allowed  the  said
Criminal Appeal filed by the respondent-State and has upheld  the  acquittal
order passed by the trial court in favour of the appellant  herein  for  the
offence punishable under  Section  376  of  Indian  Penal  Code  (for  short
“IPC”). However, it has convicted  the  appellant  for  offences  punishable
under Sections 417 and 506 part I of IPC but instead  of  imposing  sentence
on the appellant for the aforesaid offences,  vide  order  dated  17.03.2015
the High Court has  released  him  under  Section  4  of  the  Probation  of
Offenders Act, 1958 on his entering into a personal bond in the sum  of  Rs.
25,000/- with two sureties in the like amount.

Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:
On 06.01.2010, the Assistant Sub-inspector of Police  (ASI),  Chamba  (H.P.)
received  a  complaint  from  prosecutrix  through  the  office  of   Deputy
Superintendent of Police (DSP), Shri. K.D.  Sharma,  Chamba  (H.P).  In  the
said complaint, it was alleged by her that on 01.01.2010 she was  raped  and
physically assaulted by the appellant. It was also alleged by her that  when
she went to the police station  to  register  her  complaint  regarding  the
offence of rape she was threatened with dire consequences by  the  appellant
on phone. Allegation of sexual exploitation on the pretext of  marriage  was
also made by her in the said complaint.

On the basis of said written complaint FIR No. 6 of 2010 was  registered  by
the ASI under Sections 376,  417  and  506  of  IPC  and  investigation  was
conducted by the investigation officer. After investigation a  report  under
Section 173 of Code of Criminal Procedure, 1973 was filed.


The case of the prosecution is that the appellant  developed  intimacy  with
the prosecutrix (PW 2) about two years prior to the  incident.   He  allured
her on the  pretext  of  marriage.  On  01.01.2010  the  appellant  sexually
violated the person of  prosecutrix  in  her  residential  accommodation  in
Karian, Chamba. At the  same  time,  he  not  only  ravished  her  but  also
physically assaulted her by slapping her and twisting her arm.

On the next day i.e., on 02.01.2010, the  prosecutrix  decided  to  approach
the Police Station, Chamba to get FIR registered against the  appellant  for
the offence of rape. However, at about 6 AM when  she  reached  near  Police
Station the appellant threatened her against making any complaint or  report
about him to the police officials otherwise he would kill  the  prosecutrix.
Thereafter, she did not make any complaint.

On the same day, the appellant met prosecutrix near the  Regional  Hospital,
Chamba and offered to take her to his home. He persuaded her  not  to  lodge
FIR against him and even promised in writing to marry her.  He  assured  her
that both of them would stay  as  husband  and  wife.  However,  instead  of
taking her to his house he dropped her at her residence with a promise  that
he would return soon. The  appellant  did  not  return  thereafter.  Feeling
cheated thereby, on the same day,  she  reported  the  matter  to  Sh.  K.D.
Sharma, DSP, Chamba.

On 05.01.2010, both the appellant and the prosecutrix  were  called  in  the
office of DSP, wherein the appellant agreed in presence of DSP,  Chamba  and
one Yoginder Mohan (PW 3) to marry the prosecutrix the  next  day  i.e.,  on
06.01.2010. On 06.01.2010, when the prosecutrix along with her  family  came
forward for solemnization of marriage, the appellant did not  turn  up.  The
same day FIR No. 06 of 2010 was registered against  the  appellant.  He  was
booked for the offences punishable under Sections 376, 417 and 506 of IPC.

The Court of Sessions, Chamba in  sessions  trial  no.  40  of  2010,  after
examination of the evidence on record, vide its  judgment  and  order  dated
30.04.2012 acquitted the  appellant-accused  of  all  the  charges  levelled
against him by giving him a benefit of doubt.

Aggrieved  by  the  decision  of  the  trial  court,  the   respondent-State
preferred Criminal Appeal No. 369 of 2012 before the High Court of  Himachal
Pradesh, at Shimla urging various grounds and prayed for setting  aside  the
judgment and order of acquittal passed by the  trial  court  and  prayed  to
convict and sentence the accused-appellant for the charges levelled  against
him.

The High Court partly allowed  the  said  Criminal  Appeal.  It  upheld  the
acquittal order passed by the trial court in favour  of  the  appellant  for
the offence punishable under Section 376 of IPC. However, it  convicted  him
for the offences punishable under Sections 417 and 506 part I of  IPC.   The
High Court instead of imposing sentence on the appellant for  the  aforesaid
offences released him under Section 4 of the  Probation  of  Offenders  Act,
1958 on his entering into a personal bond in the sum of  Rs.  25,000/-  with
two local sureties in the like amount. Hence, this appeal.

Mr. Aditya Dhawan, the learned counsel for the appellant contended that  the
High Court has failed to appreciate the facts of  the  case  in  actual  and
correct perspective and its judgment is based on surmises  and  conjectures.
Therefore, the order of conviction and sentence is liable to  be  set  aside
by this Court in exercise of its appellate jurisdiction.

He further contended that the High Court has partly  set  aside  a  reasoned
judgment passed  by  the  trial  court  without  proper  re-appreciation  of
evidence on record and facts and circumstances of the case in hand.  It  was
further  submitted  by  him  that  in  an  appeal  against  acquittal,   the
interference by the Appellate Court is  not  warranted  in  the  absence  of
perversity of the finding of fact  in  the  judgment  of  the  trial  court.
Furthermore, it is well settled position of law that if two plausible  views
are possible on the basis of evidence on record, the appellate  court  shall
not exercise its appellate jurisdiction to set aside the order of  acquittal
unless the findings of the trial court  on  the  charge  of  offences  under
Sections 417 and 506 Part I of IPC are found erroneous.

It was further contended by him that the High Court has failed to take  note
of important fact that there is a  considerable  and  unexplained  delay  of
five days in lodging the  FIR  against  the  appellant.  Further,  the  non-
examination of crucial witness namely Sh. K.D.Sharma, DSP,  Chamba  to  whom
the alleged incidence  was  first  reported  by  the  prosecutrix  certainly
rendered the prosecution case doubtful. In view of the above,  he  submitted
that the prosecution ought to have examined Sh. K.D.Sharma, DSP, Chamba  who
was a material witness. He further contended that the High Court has  failed
to appreciate  that  the  trial  court  was  right  in  drawing  an  adverse
inference from non-examination of a crucial witness in the case.

He  further  vehemently  contended  that  the  High  Court  has  failed   to
appreciate certain facts, namely, the age of the prosecutrix at the time  of
incident was about 40 years i.e., approximately 10 years more than  that  of
the appellant. Further,  she  was  a  government  servant  at  the  time  of
incident and in number of cases she  was  appointed  as  protection  officer
under the Protection of Women from Domestic  Violence  Act,  2005.  Further,
the prosecutrix was in relationship with the appellant for about  two  years
prior  to  the  alleged  incident.  All  the  aforesaid  facts  render   the
prosecution version completely unbelievable that the  appellant  established
physical intimacy with the prosecutrix on the  false  pretext  of  marriage.
Therefore, the impugned judgment and order is liable  to  be  set  aside  by
this Court.

It was further contended by him that the evidence of the prosecutrix is  not
clear and specific and the same is suffering from  material  inconsistencies
and contradictions with other evidence on record. He further submitted  that
the discrepancies in the evidence of the prosecutrix  is  incompatible  with
the credibility of his version is liable to be outrightly rejected  by  this
Court.

While concluding his submissions the learned counsel  submitted  that  there
is no evidence on record to suggest that the appellant on the false  pretext
of marriage with the prosecutrix and in furtherance of  his  intention  from
the very beginning induced her to surrender to him for  sexual  intercourse.
Further, the conviction of the appellant is based only on the  testimony  of
the prosecutrix (PW 2), which in itself could not have been relied  upon  by
the High Court in absence of any corroboration. Thus, the impugned  judgment
and order of the High Court is vitiated in law and is  required  to  be  set
aside by this Court.

Per  contra,  Mr.  Suryanarayana  Singh,  the  learned  Additional  Advocate
General on behalf of the respondent-State sought  to  justify  the  impugned
judgment and order passed by the High Court on the ground that the  same  is
well founded and is not vitiated in law.  Therefore,  no  interference  with
the impugned Judgement and Order of this Court is required  in  exercise  of
its appellate jurisdiction.

We have carefully heard both the parties at length and have also  given  our
conscious thought to the material on record and relevant provisions  of  The
Indian  Penal  Code  (in  short  “the  IPC”).  In  the  instant  case,   the
prosecutrix was an adult and mature lady of around 40 years at the  time  of
incident. It is admitted by the prosecutrix  in  her  testimony  before  the
trial court that she was in relationship with the  appellant  for  the  last
two years prior to the incident and the appellant used to stay overnight  at
her residence. After a perusal of copy of FIR and  evidence  on  record  the
case  set  up  by  the  prosecutrix  seems  to  be  highly  unrealistic  and
unbelievable.

The evidence as a whole including FIR,  testimony  of  prosecutrix  and  MLC
report prepared by medical practitioner clearly indicate that the  story  of
prosecutrix regarding sexual intercourse on false pretext  of  marrying  her
is concocted and not believable. In fact, the  said  act  of  the  Appellant
seems to be consensual in nature. The trial court has rightly held thus:
“23. If the story set up by the prosecutrix herself in the court  is  to  be
believed, it does come to the fore that the two were in a  relationship  and
she  well  knew  that  the  accused  was  duping  her  throughout.  Per  the
prosecutrix, she had not succumbed to the proposal of  the  accused.  Having
allowed access to the accused to her residential quarter, so much  so,  even
having allowed him to stay overnight, she knew the  likely  outcome  of  her
reaction. Seeing the age of the prosecutrix which is  around  40  years,  it
can be easily inferred that she knew  what  could  be  the  consequences  of
allowing a male friend into her bed room at night.

24. The entire circumstances discussed above and  which  have  come  to  the
fore from the testimony of none else but the prosecutrix, it cannot be  said
that the sexual intercourse was without her consent. The  act  seems  to  be
consensual in nature.

25. It is also not  the  case  that  the  consent  had  been  given  by  the
prosecutrix  believing  the  accused’s  promise  to  marry  her.  For,   her
testimony itself shows that the entire story of marriage has unfolded  after
05.01.2010 when the accused was stated to have been summoned to  the  office
of the Dy. S.P. Prior to 05.01.2010, there is  nothing  on  record  to  show
that the accused had been pestering the prosecutrix for  any  alliance.  The
prosecutrix has said a line in  her  examination-in-chief,  but  her  cross-
examination shows that no doubt  the  two  were  in  relationship,  but  the
question of marriage apparently had not been deliberated upon by any of  the
two. After the sexual contact, come  talk  about  marriage  had  cropped  up
between the two. Thus, it also cannot be said that the  consent  for  sexual
intercourse had been given by the prosecutrix under  some  misconception  of
marriage.”


As far as conviction of the appellant under Sections 417 and 506 part  I  of
IPC is concerned, a close scrutiny of evidence of  the  prosecutrix  (PW  2)
along with other prosecution  witnesses  is  done  by  this  Court.  Section
417 of IPC prescribes punishment for the  offence  of  Cheating  as  defined
under Section 415 of IPC. Section 415 of IPC reads thus:

“415.  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.”


The ingredients required to constitute the offence  of  Cheating  have  been
discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under:
“(i) there should be fraudulent or  dishonest  inducement  of  a  person  by
deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property  to
any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit  to
do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be  one  which
causes or is likely to cause damage or harm to the person induced  in  body,
mind, reputation or property.”

A careful reading of evidence on record  clearly  shows  that  there  is  no
evidence against the appellant from which it can  be  conclusively  inferred
by this Court that there was any fraudulent or dishonest inducement  of  the
prosecutrix by the appellant to constitute an offence under Section  415  of
IPC. For  conviction  of  the  Appellant  for  above  said  offence,  it  is
important that all the necessary ingredients constituting an  offence  under
the said Section must be proved beyond  reasonable  doubt.  In  the  instant
case, the  appellant  cannot  be  convicted  for  the  offence  of  cheating
punishable under Section 417 of IPC as the prosecution has failed  to  prove
all ingredients of the said offence beyond reasonable doubt.

22. Further, Section 506 of IPC prescribes punishment  for  the  offence  of
criminal intimidation as defined under Section 503 of IPC.  Section  503  of
IPC reads thus:
“503. Criminal intimidation.—Whoever threatens another with  any  injury  to
his person, reputation or property, or to the person or  reputation  of  any
one in whom that person is interested, with intent to cause  alarm  to  that
person, or to cause that person to do any act which he is not legally  bound
to do, or to omit to do any act which that person  is  legally  entitled  to
do, as the means of avoiding the execution of such threat, commits  criminal
intimidation.  Explanation.—A  threat  to  injure  the  reputation  of   any
deceased person in whom the person threatened is interested, is within  this
section.”

A reading of evidence on record in the light of  aforesaid  legal  provision
shows the insufficiency of evidence to hold the conviction of the  appellant
for the offence of criminal intimidation punishable under Section  506  part
I of IPC.

23. From the aforesaid, it is clear that the evidence of the prosecution  is
neither believable nor reliable to bring home the  charges  leveled  against
the appellant. We are of the view  that  the  impugned  judgment  and  order
passed by the High Court is not based  on  a  careful  re-appraisal  of  the
evidence on record by the High Court and there is no  material  evidence  on
record to show that the appellant is guilty of the  charged  offences  i.e.,
offence of cheating punishable under Section  417  of  IPC  and  offence  of
criminal intimidation punishable under Section 506 part I of IPC.

24. For the reasons stated supra, this appeal is allowed and  we  set  aside
the impugned judgment and  order of conviction and sentence  passed  by  the
High Court against the appellant for the offences punishable under  Sections
417 and 506 part I of IPC. The appellant is acquitted  of  all  the  charges
levelled against him.
                              ……………………………………………………CJI.
                           [T.S. THAKUR]


                           …………………………………………………………J.
                   [V. GOPALA GOWDA]

New Delhi,
January 6, 2016
-----------------------
[1]
      [2]  (1970) 2 SCC 740

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