MD MAHASIN SK Vs. SAYEDA KHATUN BIBI

JUDGEMENT

(1.) This revision application under Section 401 read with Section 482 of Cr. P. C. is directed against the judgment and order dated 5-6-1998 passed by the learned Additional Sessions Judge, 3rd Court, Murshidabad in Criminal Appeal No. 33 of 1995 thereby allowing the appeal in part and affirming the judgment and order of conviction passed by the learned judicial Magistrate, 2nd Court, Berhampore, Murshidabad in Case No. C. R. 272/92 and modifying the sentence of rigorous imprisonment for, one year and to pay a fine of Rs. 1,000/- in default to suffer R.I. for further two months imposed on this petitioner by the learned Magistrate to a sentence of fine of Rs. 5,000/- in default to suffer R.I. for one year for offence under Section 417 of the Indian Penal Code (in short I.P.C.). Being aggrieved by and dissatisfied with the order of the said sentence and order of confirmation of conviction imposed upon him, the petitioner has moved this Court through this revisional application.

(2.) Facts of the case as it appears from the materials on record and lower Court record below is that the opposite party No. 1 Sayeda Khatun Bibi lodged the complaint before the learned Chief Judicial Magistrate (in short CJM), Murshidabad and it was registered as Case No. CR 272 of 1992. In the complaint the complainant alleged that on 20-6-1991 corresponding to 5th Ashar she was engaged as the maid servant in the house of the accused (present petitioner) and after such engagement the accused petitioner started cohabitation with her against her wishes from 6th Shravan alluring her on promise of marriage. In spite of her requests she could not resist the accused petitioner from making sexual intercourse with her as a result of which she became pregnant and gave birth to a son. Subsequently, the accused petitioner refused to marry her and thereby cheated her. Filing the complaint she prayed for direction for sending the complaint to Officer-in-Charge, Berhampore P. S. for investigation under Section 156(3) of Cr. P. C. but, the learned Magistrate rejected the said prayer and after perusing complaint opined that the complaint discloses an offence under Section 417 of I.P.C. and took cognizance of the offence and thereafter, examining the complainant and her witnesses issued process against the accused petitioner under Section 417 of I. P. C. Subsequently, after appearance of the accused the case was transferred to the Court of learned Judicial Magistrate, 2nd Court, Berhampore for disposal. After trial the learned Magistrate by his judgment and order dated 7-8-1995 held the present petitioner guilty under Section 417 of I. P. C. and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for two months. Challenging the judgment and order of conviction and sentence this petitioner as appellant preferred appeal before the learned Sessions Judge, Murshidabad which was registered as Criminal Appeal No. 33 of 1995 and it was heard by the learned Additional Sessions Judge, 3rd Court, Murshidabad. The learned Additional Sessions Judge by his order dated 5-6-1998 allowed the appeal in part and affirmed the conviction but, altered the sentence to a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year. Thereafter, the petitioner has moved this Court in this revisional application.

(3.) Mr. Dipak Sengupta, learned senior advocate appearing for the petitioner contended that the appellate Court failed to appreciate the evidence of witnesses, particularly the cross examination of P. W. 1 (Sayeda Khatum), the complainant herself. The accused petitioner was not examined under Section 251 of Cr. P. C. properly and what are the accusation against the accused was not properly read over and explained to this petitioner. Substance of accusation and statement of particulars of offence are not same thing. The learned appellate Court did not discuss evidence of witnesses properly and without discussing evidence of the witnesses came to the finding that the petitioner was guilty for the offence under Section 417 of I. P. C. Neither the learned Magistrate nor the learned first appellate Court considered the evidence of witnesses in order to come to the conclusion as to whether the offence alleged against the petitioner has been proved or not. The misrepresentation as alleged was not at all a misrepresentation to attract Section 417 of I. P. C. and there was no misconception of fact and there was also no element of cheating.