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2015 DIGILAW 331 (ORI)

Rajani Patel v. Naresh Chandra Naik

2015-05-13

J.P.DAS

body2015
Judgment : J.P. Das, J. This appeal is directed against the order dated 18.05.1991 passed by the learned S.D.J.M., Sundergarh acquitting the respondent from the charge under Section 493 of the Indian Penal Code (IPC in short) in I.C.C. Case No.5/ Tr. No. 459 of 1987. 2. The present appellant filed the complaint petition before the learned S.D.J.M, Sundergarh with the submissions, shorn of unnecessary details, that she and the respondent belonged to the same village and for pursuing their studies in colleges at Sundergarh they were commuting daily and developed friendship. The friendship gradually turned into a love affair. She alleged that on 1.4.1985 the respondent called the appellant to his house during the absence of his parents. There the respondent brought two garlands and got exchanged with the complainant and told her that their marriage was completed. The complainant believed in good faith that she and the respondent became wife and husband and allowed the respondent to cohabit with her. The physical relationship between the two continued thereafter at different places including once in a hotel at Jharsuguda and consequently the complainant became pregnant. The complainant asked the respondent to keep her in his house as wife but the respondent delayed the matter on some plea or other. The complainant went to the house of the accused in the month of December 1986 and stayed there for two days but was driven out by the father of the respondent as the accused was absent from the house. She was also not allowed by her own parents to stay in her own house and hence, she took shelter in the house of one of her relatives at Sambalpur. Being aggrieved by the deception of the respondent she reported the matter to the police but since the police did not take any action, she filed the complaint in the Court on 28.01.1987. Cognizance was taken under Section 493 of the IPC and charge was framed. 3. The accused faced the trial with a plea of complete denial. The complainant examined four witnesses including herself in support of her case besides exhibiting certain documents as against none preferred by the accused-respondent in defence. 4. Cognizance was taken under Section 493 of the IPC and charge was framed. 3. The accused faced the trial with a plea of complete denial. The complainant examined four witnesses including herself in support of her case besides exhibiting certain documents as against none preferred by the accused-respondent in defence. 4. The learned Trial Court on evaluation of the evidence, both oral and documentary found and held that the alleged offence under Section 493, IPC has not been established beyond all reasonable doubts and pronounced the impugned judgment of acquittal. 5. The appeal has been filed with the submissions that the learned trial court failed to appreciate the evidence led on behalf of the complainant and the position of law in proper perspective and reached the conclusion erroneously. It has been submitted that the learned Court below erred in law by disbelieving the positive statement of the appellant that the respondent by exchange of garland made her to believe that the marriage was completed and kept physical relation with her. It has been stated that the learned Court below wrongly discarded the positive evidence that the appellant and the respondent were staying as husband and wife and searched for the evidence of eye witness regarding the marriage and cohabitation, which was not possible. It has been submitted that all the required ingredients constituting an offence under Section 493, IPC having been established, the impugned judgment of acquittal is liable to be set aside. 6. In order to be convicted for an offence punishable under Section 493, IPC, the man must by deceit cause any woman who is not lawfully married to him to believe that she is lawfully married to him and to have sexual intercourse with him with that belief. 7. Thus two ingredients are necessary in order to establish an offence under Section 493 of the IPC, viz. i) the man must have deceitfully induced the woman to believe that she is his lawfully married wife and ii) with such belief to make her cohabit with him. 8. In the present case the complainant has examined four witnesses to establish her case. i) the man must have deceitfully induced the woman to believe that she is his lawfully married wife and ii) with such belief to make her cohabit with him. 8. In the present case the complainant has examined four witnesses to establish her case. The P.W. 1 is the manager of the hotel where the appellant and the respondent allegedly spent one night, the P.W. 2 is the complainant herself, the P.W. 3 is the brother-in-law of the complainant and the P.W. 4 is the owner of one house where both the appellant and the respondent stayed for sometime as husband and wife. The learned Trial Court has evaluated the evidence of all the four witnesses and has disbelieved the evidence of P.Ws.1, 3 and 4. 9. The P.W. 1 proved some entries in the register of the hotel to show that the appellant and the respondent spent one night in the hotel. But he admitted that the respondent had mentioned the appellant to be his sister in the entries. Thus the evidence of P.W. 1 was of no use for the purpose of the case. The P.W. 3 who is the brother-in-law of the complainant stated that he had gone to the house of the respondent in the first week of January 1987 to ask him to keep the appellant as his wife but the respondent admitting his marriage with the appellant offered him Rs.5,000/-to give to the appellant, which he did not accept. The learned Trial Court held this witness to be an afterthought for the reasons that as per the complainant herself she had been to the house of the respondent on 30th December 1986 and stayed there for two days but was driven out by the father of the respondent since he was not there. Thus the presence of the respondent during the 1st week of January 1987 was not believable. Further as per the complainant, she had not disclosed the factum of marriage or physical relationship with the respondent before anybody apart from the fact that the said meeting between the respondent and the P.W. 3 or offering of money was not mentioned in the complaint petition. Similarly the P.W. 4 stated that he had rented his house to the respondent where both the appellant and the respondent stayed as husband and wife. Similarly the P.W. 4 stated that he had rented his house to the respondent where both the appellant and the respondent stayed as husband and wife. Again this was not the case of the complainant that at any time she stayed with the respondent in any house as husband and wife. Rather it was her consistent case that her repeated request to the respondent to take her as his wife was not paid heed to. On going through the record and the evidence of the witnesses, I find no compelling reason to take any different view from what has been taken by the learned Trial court in discarding the evidence of these three witnesses as of no help to the complainant. 10. Thus remained the evidence of only the complainant-appellant herself as P.W. 2 to prove her case. It is to be seen from her evidence as to how far she has been successful to bring home the required two ingredients in order to establish the alleged offence under Section 493 of the IPC. 11. As regards the deceitful inducement, the case of the appellant was that the respondent took her to his house during the absence of his parents, and exchanging two garlands told her that they became husband and wife. Thereafter they cohabited. As stated earlier, the deceitful inducement must be so as to make the woman believe that she is the lawfully married wife of the man. It is the position of law that the inducement should be such that it can be inferred with normal prudence that the woman could believe that she has been ‘lawfully’ married to the man. The word ‘lawfully’ has been used with the wisdom of the lawmakers to backup the belief of the woman with strong conviction about the marriage so as to surrender herself physically to the man for cohabitation. 12. On the aforesaid touchstone the evidence of the complainant-appellant is to be examined as to how far she has been successful to establish the allegations. 13. In the instant case the only contention of the appellant was that the respondent exchanged garlands with her and told her that they became man and wife. That was all to make her believe that she was married to the accused-respondent. Admittedly this exchange of garland was beyond the knowledge and sight of any third person. 13. In the instant case the only contention of the appellant was that the respondent exchanged garlands with her and told her that they became man and wife. That was all to make her believe that she was married to the accused-respondent. Admittedly this exchange of garland was beyond the knowledge and sight of any third person. Further the appellant has categorically stated in her evidence before the Court that she had no idea about marriage by garlanding and that such marriage by garlanding was not recognised by the society. She has further stated that while she belonged to ‘Mali’ caste, the accused belonged to ‘Aghria’ caste and that marriage between these two castes was not permissible according to the prevailing social customs. Such facts have also been stated by her brother-in-law, the P.W. 3. Added to this the appellant has further stated before the Court that after the exchange of garlands the accused promised to marry her. She has also stated in her complaint petition that the accused told her that he would register the marriage subsequently but did not keep his words. In view of such glaring statements and admissions of the appellant herself before the Court, I find absolutely no fault with the learned Trial Court to have hold that there was no marriage, much less ‘lawful marriage’ between the appellant and the respondent so as to be believed by the appellant. It may be mentioned here that the appellant, at the time of the alleged occurrence was studying in 2nd year Arts in Government Women’s college and she was no illiterate or ignorant rustic girl so as to believe that by mere exchange of a garland she became the lawfully married wife of the accused-respondent. Further it has been also remained admitted by the appellant in her evidence that the respondent had told her to get the marriage registered but did not comply. In such circumstances it could never have been said that the accused committed any deceit or fraud so as to make the complainant believe that they were lawfully married. In the stated facts and circumstances, I find no reason to disagree with the learned Trial Court that the required ingredient of the offence under Section 493, IPC has not been established by the complainant. 14. In the stated facts and circumstances, I find no reason to disagree with the learned Trial Court that the required ingredient of the offence under Section 493, IPC has not been established by the complainant. 14. The first ingredient for the offence u/s. 493 IPC having not been established, the second ingredient becomes merely academic. The allegation of physical relationship between the parties has not been seriously assailed by the defence. The complainant has proved certain letters to have been written by the accused-respondent to show their love and physical relationship. She was confronted by the defence in her cross-examination with Ext.-4, a letter said to have been written by the respondent, which revealed that after the exchange of garland on the first day there was no cohabitation between the two. Another factor that came to notice is that the appellant has exhibited a bunch of letters said to have been written by the respondent. But two of the letters vide ext. 6 and ext. 11, are seen to have been written by one Suryakanta and specifically in ext. 11 the author has described himself as ‘brother Suryakanta’. Of course the complainant has started her evidence before the Court by saying that the accused was known as Dambarudhar @ Suryakanta besides Naresh Naik. But one person having three different names, as stated, is bit difficult to be believed. Apart from that all the letters do not appear to have been written in one handwriting even to the naked eye. Of course some letters seem to have been written by the respondent Naresh Naik hint about the physical relationship between the two, but the circumstances, as stated, cast a doubt on the veracity of the complainant-appellant. The complainant had given birth to a child in the year 1987 after filing of the complaint case. The learned trial court has calculated the time of conception to be around June 1986, i.e., more than one year after the alleged first date of meeting on 01.04.1985. However, I find those not relevant for the purpose of the case. 15. The complainant had given birth to a child in the year 1987 after filing of the complaint case. The learned trial court has calculated the time of conception to be around June 1986, i.e., more than one year after the alleged first date of meeting on 01.04.1985. However, I find those not relevant for the purpose of the case. 15. Thus, it can safely be concluded that the deceitful inducement by the respondent to the appellant to make her believe that she was lawfully married to the respondent having not been proved beyond reasonable doubts, no other persuading reason is found to take any different view from what has been taken by the learned Trial Court in acquitting the accused-respondent from the charge u/s.493 of the IPC. 16. Accordingly the appeal stands dismissed and the judgment of the learned lower Court stands confirmed.