V. GOPALASWAMY, J. ( 1 ) THIS appeal is preferred against the judgment of the Judicial Magistrate, first Class, Solapur at Cuttack acquitting the accused (the present respondent) of the charge under Section 493, I. P. C. ( 2 ) THE Prosecution base, briefly stated, is that in the year 1981 on the Ganesh Chaturthy day the accused took the complainant (the precent appellant) to Isaneswar Mahadev Temple and, there after performing puja, there was exchange of garlands between the parties when the accused declared that the complainant had become his wife and after that day the accused had sexual intercourse with the complainant on several occasions and she allowed it on the belief that she was his legally married wife and that ultimately when she become pregnant, he deserted her and then she was driven to files the present complaint case under Section 493, I. P. C. ( 3 ) THE accused pleaded that the case was falsely foisted against him. He examined D. W. 1 Rama Chandra Misra in support of his plea. ( 4 ) THE prosecution has examined in all five witnesses to prove its case. The complainant examined herself as P. W. 1 and deposed in support of her case. P. W. 2 is the father of the complainant and P. W. 3 is her mother P. W. 4 Bikala Chandra Mishra claims to have been present in the Isaneswar Mahadev Temple at the time the complainant and the accused performed the Puja. P. W. 5 claims to have attended the Panchayat, where in the complainant's father complained against the accused. ( 5 ) THE complainants case is that in the year 1981 on the Ganesh Chaturthy day the accused took her to Isaneswar Mahadev Temple and there, after performing Puja, they had exchanged garlands and the accused had declared that she become his wife and this had led her to believe that since that day she become his legally married wife, The accused denies about there being any such Puja in the temple or any exchange of garlands between them in the temple. So the burden of proving the same lies on the complainant. ( 6 ) THE complainant stated in her evidence that the priest Bansi Das was present with her at the time of Puja in the temple. So the burden of proving the same lies on the complainant. ( 6 ) THE complainant stated in her evidence that the priest Bansi Das was present with her at the time of Puja in the temple. But the said Bansi Das was not examined on a witness on- the side of the prosecution. On the other hand one Bikal Chandra Misra was examined as P. W. 4 and he claims to have been present in the temple at the time of Puja and also claims to have witnessed the exchange of garlands between the parties after the performance of Puja. The complainant (P. W. 1) has not stated in her evidence any thing about the presence of P. W. 4 in the temple whether at the time of the performance of Puja or at the time of the exchange of garlands between the parties. So it is difficult to accept the evidence of P. W. 4 that he witnessed the exchange of garlands between the parties in the temple on the Ganesh Chaturthy day. That apart, P. W. 4 deposed that he had seen one Rama Chandra Misra, Ute Pujaka of Isaneswar Temple performing the marriage between the complainant and the accused, P. W. 5 stated that in the Panchayat held in the village at the instance of complainant's father (P. W. 2), the complainant stated that one Rama Chandra Misra had performed the marriage between the accused and the complainant. But the said Rama Chandra Misra was not examined as an witness on the side of the prosecution and there is no acceptable explanation for such non-examination. On the other hand, the accused has examined the said Rama Chandra Misra as D. W. 1. Admittedly, the said Rama Chandra Misra was a priest (pujaka) in the temple of Isaneswar Mahadev during the relevant period. He categorically deposed on oath that there was no exchange of garlands in the temple between the accused and the complainant on the Ganesh Chaturthy day and no Puja was performed by them on that day. In view of the above evidence, the Trial Court has rightly held that the complainant failed to prove Satisfactorily that there was performance of Puja by the parties and exchange of garlands between them on Ganesh Chaturthy day in the temple. In view of the above evidence, the Trial Court has rightly held that the complainant failed to prove Satisfactorily that there was performance of Puja by the parties and exchange of garlands between them on Ganesh Chaturthy day in the temple. ( 7 ) EVEN otherwise also, unless such performance of Puja, exchange of garlands between the parties and declaration of the accused that the complainant became his wife in the Isaneswar Temple on Ganesh Puja day induced a belief in the mind of the complainant that she became his legally married wife, the accused cannot be found guilty under Section 493, I. P. C. ( 8 ) SECTION 493, I. P. C. provides:every man who by decoit causes any woman who is not lawfully married to him to believe that she is lay fully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. To bring home the charge under Section 493, I. P. C. to the accused, the complainant must prove: (1) that the accused caused the complainant to believe that she was lawfully married to him. (2) the accused caused such belief by decoit, and (3) the complainant consented to cohabit or have sexual intercourse with the accused under that belief. ( 9 ) IN the year 1981 the calender shows that 2/9/1981 was the Ganesh Puja day and 3/10/1981 was Dasahara. Even after the Ganesh Puja, day, the complainant lived with her parents as before. Her evidence shows that it was only on 2/10/1981, a day prior to Dasahara, the accused had sexual intercourse with her for the first time after making a promise to her that he would marry her. It is in her evidence that even on subsequent occasions she had consented to have sexual intercourse with the accused as he proposed to marry her. It is in her evidence that even on subsequent occasions she had consented to have sexual intercourse with the accused as he proposed to marry her. The evidence of the complainant discloses that even more than one month after the Ganesh Chaturthy day, the accused was promising to the complainant that he would marry her, and this evidence strikes at the root of the complainants case that by performance of Puja and by exchange of garlands and by making declaration in the temple on the Ganesh Chaturthy day, she was made to believe that she became his legally married wife since that day. So the complainant's own evidence is not consistent with her plea that she permitted him to have sexual intercourse with her in the belief that she has law fully married to him. She stated in her evidence that the eldest daughter of the accused aged about 16 to 17 years was a good friend of her. The prosecution evidence shows that the accused was the husband of the niece of the complainants father. P. W. 2, the complainant's father, deposed that the complainant-used to do household work in the house of the accused during the absence of his wife. The complainant stated that the accused was having eight children. So by the relevant date, the complainant was knowing that the accused was having a legally married wife and eight children and with the knowledge of these facts, it is difficult to believe that the accused could induce the complainant to believe that she was his legally married wife. ( 10 ) THE learned counsel for the respondent relied on Raghunath Padhy v. The State1. This is case where a Brahmin boy aged about 22 years with his wife living, married a brahmin widow by going rough a form of marriage such as exchange of garlands and thereafter they lived as husband and wife for some time and later when he deserted her end repudiated the marriage, no offence under Section 493, I. P. C. was held to have been committed as no deception was practiced when he married her. In that context, this court observed that the essence of the offence under Section 493, I. P. C. consists in the practice of deception by a man or a women, in consequence of which she is led to believe- that she is lawfully married to him even though, in fact, they are not law fully married. To prove deception, it must be conclusively established that the accused either dishonestly or fraudulently concealed certain facts, or made a. false statement to the complainant knowing it to be false. ( 11 ) SECTION 493, I. P. C. does not penalise mere cohabilation or sexual intercourse with a woman, who is not lawfully married to the accused. This section is attracted when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. See (Moideenkutty Haji and Ors. v. Kunhikaya and Ors ). ( 12 ) IN the present case, however reprehansible the conduct of the accused may be, as the element of deception is also not proved, the charge under Section 493, I. P. C. is not brought home to the accused and, therefore, the Trial Court was justified in acquitting him. In the result, I find no merit in the appeal and the same is, therefore, dismissed.