GUWAHATI, India, Oct. 27 -- Gauhati High Court issued the following order on Sept. 26:

1. Heard Mr. T.Z. Mahanta, learned counsel for the accused petitioner and Mr. B. Sharma, learned Additional Public Prosecutor, Assam.

2. The present Criminal Revision Petition under Sections 401 read with Section 397 of the Code of Criminal Procedure, 1973 is filed assailing the Judgment and Order dated 27.12.2012 passed in Sessions Case No. 62(NL)/2011 by the learned Assistant Sessions Judge, Lakhimpur at North Lakhimpur convicting the accused petitioner under Section 376 IPC and sentenced him to undergo RI for 7 years and to pay a fine of Rs. 5000/-, in default of payment of fine to suffer RI for 3 months and also convicted under Section 417 IPC and sentenced him to RI for 7 months.

3. The further challenge is made against the appellate Judgment and Order dated 17.06.2013 passed in Criminal Appeal No. 2(1)/2013 passed by the learned Session Judge, Lakhimpur at North Lakhimpur acquitting the accused appellant from the charge under Section 376 of IPC but upholding the sentence passed by the learned Trial Court under Section 417 of IPC.

4. The prosecution story in a nutshell is that the informant lady was in a love affair with the accused person for about 5 years and on 25.05.2010, the accused petitioner had taken her from her house to a rented accommodation where he put vermilion on her head and thereafter co-habited with her as husband and wife and this state of affairs continued till 07.09.2010 when the accused petitioner went to his house and at that time, the informant was pregnant. However, the accused petitioner did not return to her and cut off communication with her which ultimately led her to lodge the instant FIR.

5. After lodging of the FIR, Lakhimpur PS Case No. 594/2010 under Section 120(B)/493/376 IPC was registered, investigated and culminated with the filing of charge-sheet under Section 376/417 IPC and charges were framed accordingly by the learned Assistant Sessions Judge, Lakhimpur. After trial, he was convicted under both the offences. In appeal, the learned Sessions Judge, Lakhimpur while setting aside the conviction under Section 376 IPC sustained the conviction as well as the sentence imposed by the learned Trial Court under Section 417 IPC. Aggrieved, the accused petitioner has preferred the instant Criminal Revision Petition.

6. In the aforesaid backdrop, Mr. T.Z. Mahanta, learned counsel for the accused petitioner argues that the prosecution had failed to bring home the charge under Section 417 IPC as initial deception is missing in the instant case and the complainant being a major, had herself consented to their intimate physical relationship out of her own sweet will in as much as they were in a relationship of more than 5 years.

7. Mr. T.Z. Mahanta, learned counsel for the accused petitioner further urges that there is no material, even to remotely suggest that the accused petitioner had lured the victim on the pretext of marrying her. Therefore, according to him, the conviction under Section 417 IPC for 'cheating' is not sustainable in law and the impugned judgments and orders are liable to be interfered with, having been vitiated by perversity. 8. Mr. T.Z. Mahanta, learned counsel for the accused petitioner contends that the prosecution has failed to prove miserably by way of cogent evidence that the consent by the complainant to the sexual intercourse was given under misconception of fact, i.e., promise to marry and the fact is that she also desired for it as they were in a love relationship for 5 years. Therefore, the accused petitioner ought not to have been convicted under Section 417 IPC for cheating based on the evidence adduced by the prosecution.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=T2Oj5Y97nX2tmju2FyqIU0FTPGWcm5LOwnglrvCjysaxF%2FxZ4Op%2FF4I2RLViuqc5&caseno=Crl.Rev.P./317/2013&cCode=1&cino=GAHC010009432013&state_code=6&appFlag=)

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