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IN THE COURT OF CHIEF JUDICIAL MAGISTRATE: : : JORHAT.

PRESENT : Smti. Farhana Sultana, A.J.S.,

Chief Judicial Magistrate,
Jorhat.
For the Prosecution .... Sri Angshuman Baruah, Ld. A.P.P.
For the accused person .... Sri Siddhartha Bora, Ld. Advocate.

Ref. : G.R. Case No. 1933/2011

State of Assam
-vs-
Sri Rajib Bora .... Accused person

Under sections 420/493 of I.P.C.

Charge framed on .... 13.06.2016

Evidence recorded on .... 15.12.2016, 10.03.2017, 09.08.2017, 01.02.2018,
05.04.2018, 07.09.2018, 12.02.2019, 22.07.2019,
27.08.2019, 30.09.2019, 22.11.2019
Statement of the accused u/s 313 Cr. P.C. recorded on :16.09.2019
Arguments heard on .... 06.02.2020
Judgment delivered on .... 18.02.2020

JUDGMENT AND ORDER

1. The case of the Prosecution, in a nutshell, is that about 9 months back from
13.12.2011, the accused Sri Raju Bora has been giving false assurances to Smti Mamu
Bora that he would marry her and many times he had sexually exploited her. On
12.11.2011, Smti Mamu Bora gave birth to a girl child. But the accused Sri Raju Bora
does not accept the child to be his. Hence, the Informant Sri Biren Bora, lodged ejahar
before the Lahdoigarh O.P. on 13.12.2011.

2. The ejahar was received at Lahdoigarh O.P. where it was entered vide GDE No.
230 dated 13.12.2011 and was forwarded to the Officer-in-charge of Teok Police

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Station for proper registration of a case. The Officer-in-charge of Teok Police Station
received and registered the ejahar as Teok P.S. Case No. 330/2011 dated 14.12.2011
under sections 420/493 of IPC and started the investigation of the case. On completion
of investigation, the I.O. Sarifuddin Ahmed, S.I. of Police, filed charge-sheet against
the accused Sri Raju Borah under sections 420/493 of IPC.

3. During the course of trial, the accused was allowed to go on bail. Thereafter,
the charge-sheet on being put up before my Ld. Predecessor was accepted and the
case was kept in her file. Thereafter, summons was issued to the accused.

4. On appearance of the accused, copy was furnished to him as per section 207
Cr.P.C. After hearing and on perusal of the materials on record, formal charge under
sections 420/493 of IPC were framed against the accused. The charge was read over
and explained to the accused to which he pleaded not guilty and claimed to be tried.

5. During the course of the trial, Prosecution examined eleven (11) witnesses in
this case. Thereafter, Prosecution evidence was closed and the accused was examined
under section 313 of Cr.P.C. His plea is of complete denial and he inclined to adduce
defence evidence. Thereafter two defence witnesses were examined as DW1 and DW2
and defence evidence was closed. I have heard the arguments put forward by the
parties. The Ld. Counsel for the accused has submitted that the Prosecution has failed
to prove its case against the accused and hence he ought to be acquitted. On the
other hand, the Ld. Addl. P.P. has submitted that the Prosecution has succeeded in
proving its case against the accused and hence the accused ought to be penalised as
per law.

6. The points which arise for determination in this case are:-

I. Whether the accused cheated the sister of the Informant, i.e

the victim by dishonestly inducing her to deliver her chastity with
false promise of marriage and hence liable to be punished under
section 420 of IPC?

II. Whether the accused deceitfully caused the sister of the

Informant, i.e the victim whom he did not marry to believe that she
was married to the accused and in that belief had sexual intercourse
with her for which she became pregnant and hence liable to be
punished under section 493 of IPC?

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DISCUSSION, DECISION AND REASONS THEREOF :

7. Let us first discuss about the evidence on record. The Prosecution has
examined as many as 11 witnesses including the victim, her parents, her brother, who
is the Informant of the case and the other independent witnesses. The victim, of the
case has been examined as PW-1. According to her the alleged occurrence took place
about five years back. Her evidence was recorded on 15.12.16, so the alleged incident
would have taken place in the year 2011. At the relevant time, she was in her house
alone, when the accused came and ravished her. Though she obstructed him, he said
that he would marry her. Thereafter, subsequently the accused again had physical
relation with her three four times and repeated his promise that he would marry her.
As a result of which she became pregnant. But, she could not gather anything as she
sometime did not have her menstrual circles after 6/7 months. But, as after sometimes
she started feeling body ache and stomach pain she informed her mother. Her mother
took her to Hospital where she came to know that she was carrying and had delivered
a girl child. Her parents also, came to know after the child’s birth. She has categorically
stated that no sign of pregnancy could be seen on her body. When her parents came
to know after the birth of the child, she told about her relation with the accused. Then,
her parents called a village meeting. But, the accused denied about his involvement.
So, her brother, Sri Biren Bora lodged the ejahar. She has further stated that, during
investigation, Police took her blood sample and that of her daughter as well. Police
also, took blood sample from the accused and on being tested about the child’s
paternity the test came positive, showing that the accused was in fact the father of the
child.

8. PW-1, was cross examined by the Ld. Defence Counsel, but, nothing could be
elicited from her, which would have dislodged her evidence adduced in examination in
Chief. Rather, she has emphasised on the point that she did not object to accused as
he told her that, he will marry her. She has also, stated that, she used to visit the
house of the accused and that, her father and the father of the accused were brothers.

9. PW-2, Sri Indreswar Bora is the father of the victim. He has stated that, about
five years back, his daughter delivered a baby girl and that he came to from his
daughter, the victim, that the accused was the father of the child. He also,
corroborated the evidence of the victim that, no sign of pregnancy was seen on the
victim’s person. His evidence also, reveals that blood samples were collected from the
victim, her daughter and the accused though he did not know about the result. From

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his cross examination also, it has been revealed that, the accused and the victim
belonged to the same family and marriage between them was prohibited.

10. Mother of the victim, Smt. Mira Bora has been examined by the Prosecution as
PW-3. She has also, adduced evidence in the same tune as her husband. It is found
from her evidence that her daughter gave birth to a girl child about five years back,
without being married. She said that no sign of pregnancy could be seen on her
daughter’s body. She also, stated sometimes her daughter did not have her periods for
six seven months at a stretch. So they were completely unaware of the fact. But, after
the child’s birth her daughter informed her that her child was begotten by the accused.
PW-3, further revealed that she came to know her daughter that the accused had
physical relation with her three four times with promising her of marriage. She
corroborated the evidence of the victim saying that, as the victim felt pain in her legs
and stomach, she was taken to a doctor and it was found out that she was pregnant
and delivered the baby. It has also, been revealed by PW-3, that when the accused
was asked about the fact, he completely denied. So, they called a village meeting. But,
the accused declined about the whole incident in front of the villagers. So, the
Informant lodged the case. Nothing could be found out form her cross examination,
which could have created any doubt in the evidence adduced by PW-3. PW- 4, the
Informant of the case is Sri Biren Bora. From his evidence also, it clearly appears that,
the accused by inducing his sister, the victim, with a promise to marry her, had
physical intercourse as a result of which she became pregnant and gave birth to a girl
child. He further stated that, after the birth of the child, the accused was informed,
but, the accused never came to inquire about the child, rather, completely denied the
fact that the child of the victim was begotten by him. As the Informant made enquiry
from his sister, she told him that the accused was the father of the child. As such he
lodged the ejahar. The ejahar was brought to the record as Exhibit-2 and his signature
was proved as Ext-2(1).

11. PW-5, is the Medical Officer, who had conducted her delivery. The M.O,
deposed to the effect of delivery of the girl child by the victim, on 12.12.11. The
Discharge Certificate was proved as Exhibit-3 and his signature was proved as Ext-
3(3). The other two signatures on Ext-3, discharge certificate were of Dr. Bhargav
Chaliha, who signed on the.

12. The independent witnesses, PW-6 and 7, Sri Bipin Bora and Sri Amal Senapati,
have deposed to the effect of holding of the village meeting regarding an illicit relation

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between the accused and the victim. None of the said two witnesses could further
elicit anything in this regard. However, from their evidence it has been established the
fact of holding of meeting regarding the alleged incident.

13. PW8, Nurtaj Ali, S.I. of Police, deposed that on 13.12.2011, he was working as
ASI at Lahdoigarh O.P. On that day, at about 10 p.m., Sri Biren Bora lodged an ejahar.
As the I/C was on leave, he made a GD entry dated 13.11.2011 vide GDE No. 230 and
took up the duty of investigation. He visited the place of occurrence, examined the
place of occurrence and also prepared rough sketch map of it. He also interrogated the
witnesses at the place of occurrence and also interrogated the victim at the spot. He
went in search of the accused but could not find him at his home. Later, the accused
appeared at the police station and he was forwarded along with a prayer for DNA test
of the accused in the forwarding letter. Thereafter, he handed over the case related
documents to Sri Guneswar Sonowal who sent the victim for recording her statement
under section 164 of Cr.P.C in the Court and also sent the accused, victim and the
child for DNA testing.

14. PW9, Dr. Monalisa Choudhury is the scientific officer, DNA unit, Directorate of
Forensic Sciences who deposed that on 26.12.2011, she received one parcel from
Director, DFS, Assam vide Memo No. V/CB-13.11.2014, 480 dated 23.12.2011 in
connection with Teok PS Case No. 330/11 under sections 420/493 of IPC.At that time
she was working as a Junior Scientific Officer at DFS, Assam, Kahilipara. The parcels
consisted of 3 Exhibits, enclosed with cloth cover, Thermos Flask containing ice which
was sealed with the seal impression forwarded. Description of articles:-

1. One sealed EDTA vial contains 2 ml (approx) liquid blood of baby of Mamu
Borah, marked as Ext. No. DNA 470/11.

2. One sealed EDTA vial contains 2 ml (approx) liquid blood of Smti Mamu
Bora, marked as Ext. No. DNA 469/11

3. One sealed EDTA vial contains 2 ml (approx) liquid blood of Sri Raju Bora,
accused marked as Ext. No. DNA 471/11.

Result of DNA Fingerprinting analysis:- After examination of one of the

maternal allele of the amplified loci of Ext. No. DNA 470/11 (baby) matches with one
of the respective allele in the DNA Profile of Ext. No. DNA 469/11 (mother). The non-
maternal allele of Ext. No. DNA 470/11 (baby) is matching with the DNA profile of Ext.
No. DNA 471/11 (alleged father). Therefore, Ext.No. DNA 471/11 is the biological
father of DNA 470/11 (baby). She has exhibited the report No. DFS 485/11/2713/Sero-

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2925/DNA-121 dated 20th November, 2012 and Exst.5(1) is her signature. Ext. 6 is the
forwarding no. DFS-485/11/127 dated 10.12.2012 from the Director cum Chemical
examiner to the Govt. of Assam, Directorate of Forensic Science, Assam to Deputy
Superintendent of Police, Assam. Ext. 6(1) is the signature of the then Director, DFS
Sri Munindra Narayan Borah. During her cross-examination, she deposed that there is
a chance of matching in the DNA of the cousins of the same family (brother and
sister).

15. PW10 is another I.O. who deposed that on 25.11.2012, he received a case
diary from I/C Sri Mohendra Nath Bora for completion of investigation. During his
period of investigation, he received the report of the Forensic Science Laboratory and
entered it in the case diary and on the basis of the materials on the case diary, he filed
the charge-sheet against the accused under sections 420/493 of IPC. Ext.7 is the
charge-sheet and Ext.7(1) is his signature. PW 11, is also one of the I.O.s in this case
who deposed that he received the case diary of this case on 21.11.2011 and after
receipt of it, he recorded the statement of the victim. He also sent blood samples
collected from accused, the victim and the baby to forensic science Laboratory,
Kahilipara for DNA test. In the meantime, he received his transfer order for which he
could not collect the DNA test report from the FSL, Kahilipara. He handed over the
case diary to his successor Sri Mahendra Nath Bora.

16. The accused also adduced the evidence of two defence witnesses as DW1 and
DW2. DW1, Sri Abon Borah deposed in his evidence that the accused is his brother. At
the time of incident the victim was at her home. Accused and victim are cousin brother
and sister. The family member of the victim did not intimate them regarding the
alleged incident. No discussion of their marriage ever took place in their family. During
cross-examination, DW1 deposed that when the child was born to the victim they
came to know that the victim had alleged the accused to be father of the child. He also
cannot say if the accused is guilty as alleged by the victim. DW2, the accused himself
deposed in his defence that the complainant has falsely implicated him in this case.
The Informant is his paternal uncle’s daughter, his first cousin. He never promised to
marry her since she belongs to the same family and this being prohibited degree of
marriage. He has never committed any forceful physical assault on her. He has never
entered into physical relation with her. The Informant never complained about her
pregnancy relating to her before his family members. The child given in birth by the
Informant is not his chid. He is not the father of the child. During cross-examination,

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DW2 deposed that he does not know about the birth of the child by the Informant.
Later, he came to know that the Informant, after delivery of her child told her mother
that he was the father of the child. Police took his blood sample for DNA test. He does
not know if DNA test confirmed about the biological parents of the child to be him and
the Informant.

17. In the backdrop of the evidence laid down by the Prosecution side, the Ld. APP,
has argued that the Prosecution has been able to establish by cogent and unblemished
evidence that, the accused person namely Sri Rajib Bora, deceived the victim, inducing
her to believe that, he will marry her and had physical relation as a result of which she
became pregnant and had delivered the girl child. Ld. APP, has also, argued that, from
the very beginning the accused knew that he could not marry the victim, as their
marriage was prohibited by the social as well as religious norms. But, knowing fully
well and without having any bona fide intention to marry her, he made the victim
believe his false promise and took advantage to fulfil his physical lust. Ld. APP, has
further argued that, the Prosecution has been able to establish even by DNA test that
the child born, was begotten by the accused. Hence, the accused deserves stringent
punishment.

18. On the other hand Ld. Defense Counsel has argued that, the evidence of the
victim is completely doubtful as she did not reveal anything to anyone prior to delivery
of the child. He has also, argued that, the victim also, knew that she was within a
prohibited degree of marriage with the accused. Having known it fully she consented
to the advancement of the accused. So, the accused is not liable to any criminal
Prosecution. He has further argued that, PW-9, Dr. Monalisha Choudhury has stated in
her cross examination that, match of the DNA profiling may be due to the fact that the
accused belong to the same family as the victim. So, matching of DNA does not
conclusively prove that the accused is the father of the child.

19. As we know Medical evidence being an expert evidence, is only a corroborative

piece of evidence. It lends support to the evidence adduced by the other witnesses, be
it the victim or eyewitnesses or any other witness. In this case, the evidence adduced
by PW-9, Dr. Monalisha Choudhury lends support to the evidence adduced by the
victim and her family members and the independent witnesses. The argument
advanced by the Ld. Defence Counsel that, the victim did not report about the incident
to anybody is also, not acceptable, as such a relation which the society does not
approve, cannot be maintained openly. It has to be kept a secret. When the victim did

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not have any other alternative she revealed the same, that too after the birth of the
child. Moreover, as the accused promised to marry her, the victim was under the
impression that their marriage will take place. Their relation turned serious when the
victim delivered the child.

20. Now let us cheque the legal provision under which the accused has been
charged in this case. The charges labelled against the accused are under sections
420/493 of IPC. For the offence of cheating and dishonestly inducing delivery of
property, punishment is prescribed under Section 420 of the IPC, which reads as
under:-

"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and
thereby dishonestly induces the person deceived to deliver any property to any person,
or to make, alter or destroy the whole or any part of a valuable security, or anything
which is signed or sealed, and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine". As far as the offence
punishable under Section 420 IPC is concerned, the same prescribes punishment for
the offence of “cheating‟, which is defined under Section 415 of the 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".

21. From the provision laid down under section 420 of IPC, and from the evidence
on record it is clear that, section 420 of IPC, deals with tangible things like property
valuable security, etc, whereas, in this case the harm caused was of reputation. In
this regard I would like to place reliance on a decision of the Hon’ble
Gauhati High Court in Bipul Medhi –vs- State of Assam reported in 2008
CriL.J 1099, (2007) 2 GLR 200 has observed that “when an accused makes a false
promise to marry, which he never intends to carry out, and induces thereby the victim,
so deceived, to have with him sexual act, which the victim would not have indulged in
or permitted, had she been induced by such deception and when such act of having
sexual intercourse by her with the accused causes, or is likely to cause, damage or

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harm to her body, mind or reputation, the act of the accused would amount to
cheating. Thus, when a woman is induced to part with her chastity or virginity, which
is the most valued possession of hers, the person, who so induces the woman by
making false representation, would be liable for punishment under section 417, IPC if
the victim’s having sexual intercourse, with such a person, causes or is likely to cause
harm to her body, mind or reputation, for in such a case unless so deceived, the victim
would not have permitted sexual act by the accused. To put it differently, had such a
victim not been deceived, she would not have permitted sexual act or would have
refrained from allowing such sexual act and clearly in such a case, but for her
permitting such sexual act, she would not have suffered harm to her body, mind or
reputation. Since, the definition of the offence of cheating indicates as already pointed
out above, that even when no parting of property is occasioned by deception , the
deception may still amount to cheating it as a result of the deception, a woman does
anything or omits to do anything, which she would not have, but for such deception,
done or omitted to do, it logically follows that when an accused, not intending to
marry a woman, induces the woman, so deceived, to have sexual intercourse with him
or induces such a woman to omit from resisting the act of sexual intercourse by him
with her, the act of the accused of having sexual intercourse with such a woman would
amount to offence of cheating if the act of the woman in letting such a man have
sexual intercourse with her or the act of the woman in omitting to resist the act of
sexual intercourse by such a man with her causes or is likely to cause damage or harm
to the person of such a woman, her mind or reputation.”

23. In another case, namely, Tajuddin –vs- State of Assam and another
reported in 2007(1) GLT 206, the Hon’ble Gauhati High Court observed that— 8.
On reading of Section 415 IPC it is evident that in the definition of 'cheating' two
separate classes of acts are set forth, which the person deceived may be induced to
do. A person may be induced fraudulently or dishonestly to deliver any property to any
other person, which constitute the first class of act and the second class of act is the
doing or omitting to do anything which the person deceived would not do or omit to do
if he were not so deceived. To come within the definition of 'cheating', in the first class
of cases, the inducement must be fraudulent or dishonest, but in the second class of
acts the inducement though must be intentional but may not fraudulent or dishonest.
(Reference-Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.: (2000) 4
SCC 168).

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9. Section 415 IPC requires (a) deception of any person (b) fraudulently and
dishonestly inducing that person to deliver any property to any person, or to consent
that any person shall retain any property, or he/she intentionally induces that person
so deceived to do or omit to do anything which he/she would not do or omit if he/she
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. Deception of any person
is common to the second and third requirements of the provision. From a reading of
the definition of 'cheating' it appears that the said requirements are alternative to each
other, which has been made clear by the legislature by use of disjunctive conjunction
"or". If any of the requirement is fulfilled then a person can be said to have committed
the offence of 'cheating' within the meaning of Section 415, which necessarily does not
relate to the conclusion that for the purpose of constituting the offence of 'cheating'
within the meaning of Section 415 IPC, it must relate to the property of another
person. The offence of cheating would also be complete if it is proved that any person
intentionally induces another person to do or omit to do anything, which the other
person would not do or omit if he/she were not so deceived, or act or omission causes
or is likely to cause damage or harm to that person in body, mind, reputation or
property. 10. The word "harm" has not been defined in the Indian Penal Code.
According to the Black's Law Dictionary 'harm' means injury, loss or detriment, which
can be bodily harm meaning thereby physical pain, illness or impairment of the body,
which again includes grievous bodily harm or the physical harm i.e. any physical
impairment of land, chattels, or the human body or the social harm i.e. the adverse
effect of any social interest i.e. protected by the criminal law. The word "harm" has
been defined in Webster's Encyclopedic Unabridged Dictionary as follows: Harm-injury,
damage hurt, to do him bodily harm, moral injury evil wrong - to do or cause harm to
injure, damage, hurt, to harm one's reputation. 11. The Apex Court in Mrs Veeda
Menezes v. Yusuf Khan Haji Ibrahim Khan and Anr. has held that 'harm' in Section
415 IPC means injury to a person in body, mind, reputation or property. The relevant
portion of the said judgment is quoted : 4. The expression "harm" has not been
defined in the Indian Penal Code: in its dictionary meaning it connotes hurt: injury:
damage: impairment: moral wring or evil. There is no warrant for the contention
raised that the expression "harm" in Section 95 does not include physical injury. The
expression "harm" is used in many sections of the Indian Penal Code. In Sections. 81,
87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury.
In Section 93 it means an injurious mental reaction. In Section 415 it means injury to a

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person in body, mind, reputation or property. In Ss. 469 and 499 'harm', it is plain
from the context, is to be reputation of the aggrieved party. There is nothing
in Section 95 which warrants a restricted meaning which Counsel for the appellant
contends should be attributed to that word. Section 95 is a general exception, and if
that expression has in many other Sections dealing with general exceptions a wide
connotation as inclusive of physical injury, there is no reason to suppose that the
Legislature intended to use the expression "harm" in Section 95 in a restricted sense.
From the meaning of the 'harm' as discussed above, it is therefore, evident that the
word 'harm' under Section 415 IPC means the injury caused to the body, mind,
reputation or property of the person deceived. Therefore, the submission of the
learned Counsel for the revision petitioner that as the offence alleged does not relate
to the any property no offence under Section 417 IPC is made out, cannot be accepted
for the simple reason that to constitute the offence of cheating' within the meaning
under Section 415 IPC the involvement of property is not the must and a person can
be convicted under Section 417 IPC, if he made a promise that he will definitely marry
the girl and thereby induced her and subjected to sexual intercourse and thereby
become pregnant and ultimately evaded from marrying the girl. Such inducement need
not be fraudulent or dishonest so as to come within the second part of the meaning of
'cheating' under Section 415 IPC, but it must be intentional. 13. So as to constitute the
offence of 'cheating' the intentional inducement of the person must be proved and
such intention must be at the time of making promise or misrepresentation. Mere
failure to keep up the promise, without the intentional inducement at the time of
making the promise or misrepresentation, is not sufficient to prove the existence of
such intention right from the beginning. However, there may not be any direct
evidence as to the factum of intention to deceive, which can be implied from the facts
proved. Such intentional inducement and deception can be proved by number of
circumstances from which a reasonable inference can be drawn.

24. In this case, the Prosecution has been able to conclusively prove that the
accused did not have any intention to marry the victim, which appears from the
continuous plea of prohibition of marriage, between him and the victim. When the
inducement was made, the accused apparently had no intention to marry the victim.
Though, intention is a mental condition, and it is very hard to prove intention by direct
evidence, it is a settled legal position that the proof of intention can be gathered from
attaining facts and circumstances. In my opinion, the clear defense plea has actually,

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acted against the accused person. It has rather helped the Prosecution in proving that
he had no intention to marry her.

25. So, it has been well established by the Prosecution that the accused has
cheated the victim by giving false promises of marriage and thereby inducing her to
have sexual intercourse with him. Hence, the Prosecution has proved that the accused
Sri Rajib Bora, has committed an offence under section 415 of IPC and he is liable to
be convicted under section 417 of IPC. Section 417 prescribes the Punishment for
cheating.-Whoever cheats shall be punishable with imprisonment of either
description for a term which may extend to one year, or with fine, or with
both.

26. It is pertinent to mention here that, though the charge has been framed under
section 420 of IPC in this case but from the facts and circumstances of this case, it is
clear that the Prosecution has succeeded in proving the guilt of the accused under
section 417 of IPC. Section 417 of IPC, being minor offence of section 420 of IPC,
there is no express bar, to held the accused guilty under section 417 of IPC and
accordingly, basing on the evidence on record as well as the settled legal proposition, I
am of considered opinion that, the Prosecution has been able to prove the guilt of the
accused Sri Rajib Bora under section 417 of IPC. The defence witnesses also could not
shake the case of the Prosecution.

27. As far as section 493 of IPC is concerned, the essential ingredients for the
offence are :- a. The accused practiced deception on a woman;

b. The intention of the accused to practice deceit was to induce a

woman to believe that she was lawfully married to the accused;

c. There was cohabitation or sexual intercourse as a result of the said

deception.

28. Reverting to the present case at hand, Prosecution could not establish that the
victim woman believed or had belief that she was lawfully married to the accused. The
accused only promised that he would marry her soon and had sexual intercourse with
her as being deposed by the victim. But nowhere in her evidence has she stated that
she believed herself to be the lawfully married wife of the accused. The accused only
made her believe that he would marry her soon. Thus, the accused cannot be made
guilty of offence under section 493 of IPC and such he is discharged of section 493 of

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IPC as Prosecution miserably failed to prove the guilt of the accused under section 493
of IPC.

ORDER

In the light of the above discussions, the accused Sri Rajib Bora is convicted for
committing offence under section 417 of IPC, beyond all reasonable doubt. The
accused is acquitted from the offences under section 493 of IPC as Prosecution
miserably failed to prove its case under section 493 of IPC against the accused.

I am not inclined to advance the benefit of sections 3 and 4 of the Probation of

Offender’s Act to the convicted person, because it will not have any deterrent effect on
the accused.

I have heard the convict on the point of sentence U/S 248(2) of Cr.P.C. The
accused stated that both his parents expired and he is living with his elder brother.
Furthermore, he has no source of income and he earns his livelihood by working in the
fields and also as daily wage earner. So, he has prayed before this Court to impose
lenient punishment upon him.

No sentence upon the accused can compensate the loss of the victim for what
she had to undergo as a result of the deception of the accused, but section 417 of IPC
provides the punishment of imprisonment of either description for a term which may
extend to one year or with fine or with both.

I, therefore hold that a sentence of simple imprisonment for a period of 3

(three) months and payment of fine of Rs.20000/- (Rupees Twenty Thousand) only,
on the accused will serve the ends of justice.

Accordingly, the convict Sri Rajib Bora is sentenced to undergo simple

imprisonment for a period of 3 (three) months and to pay a fine of Rs.20000/- (Rupees
Twenty Thousand) only, in default to payment of fine, the accused shall undergo
simple imprisonment for a period of another 3(three) months under section 417 of IPC.

The period of detention already undergone by the accused in judicial custody

during the trial of the case shall be set off.

Let a copy of this judgment be given to the convict free of cost as per the
provisions of section 363(1) of Cr.P.C. The convict is also informed of his right of
appeal against the judgment and order of conviction and sentence.

GR Case No. 1933/2011

 14

Given under my hand and seal of this Court on this 18th day of February, 2020.

(Smti Farhana Sultana)

Chief Judicial Magistrate,
Jorhat.

Dictated & corrected by me :

Chief Judicial Magistrate,

Jorhat.

Typed and Transcribed by:

(Pratimaan Bora)
Stenographer Grade-II

GR Case No. 1933/2011

 15

APPENDIX.

WITNESSES FOR THE PROSECUTION :

P.W.1 ... Smti Mamu Borah

P.W.2 ... Sri Indreswar Bora
P.W.3 ... Smti Mira Bora
P.W.4 ... Sri Biren Borah
P.W.5 ... Sri Siddartha Borgohain
P.W.6 ... Sri Bipin Bora
P.W.7 ... Sri Amal Senapati
P.W.8 ... Sri Nurtaj Ali, S.I. of Police
P.W.9 ... Dr. Monalisha Choudhury
P.W.10 ... Sri Sarifuddin Ahmed, S.I. of Police
P.W.11 ... Sri Guleswar Sonowal

WITNESSES FOR THE DEFENCE :

D.W.1 ... Sri Abon Borah

D.W.2 ... Sri Raju Bora

DOCUMENTS EXHIBITTED BY PROSECUTION SIDE:

Ext. 1 : Statement of the victim recorded under section 164 of Cr.P.C

Ext. 2 : Ejahar
Ext. 3 : Discharge certificate of victim from JMCH
Ext. 4 : Sketch map
Ext. 5 : Report of the result of the DNA Fingerprinting analysis
Ext. 6 : Forwarding letter.
Ext. 7 : Charge-sheet

DOCUMENT EXHIBITED BY DEFENCE SIDE/ACCUSED :

NIL.

(Smti Farhana Sultana)

Chief Judicial Magistrate,
Jorhat.

GR Case No. 1933/2011