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2020 DIGILAW 250 (JHR)

Niranjan Murmu v. State of Jharkhand

2020-02-07

DEEPAK ROSHAN

body2020
JUDGMENT : DEEPAK ROSHAN, J. 1. The instant application is directed against the judgment dated 20.09.2014, passed by the learned Principal Sessions Judge, Pakur, in Criminal Appeal No. 11 of 2014, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence, both dated 12.03.2014, passed by the learned Assistant Sessions Judge-I, Pakur in S.C. No. 47 of 2008, corresponding to T.R. No. 2 of 2013, whereby the petitioner has been found guilty for the offence under Section 493 of the Indian Penal Code and accordingly, he has been convicted and sentenced to undergo SI for five years with fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo S.I. for six months, has been affirmed. 2. The prosecution case is based on the fardbeyan of the informant. It has been alleged that the petitioner proposed the informant (PW-10) for marriage. He took into confidence the family members of the informant and the villagers. Thereafter, on 30.09.2006, the petitioner took her to Haripur and thereafter on 30.10.2006 to Burdhwan (West Bengal) and lastly on 01.11.2006 at Ranchi. It has been further alleged that the petitioner kept the informant at the residence of his relatives at different places and established physical relationship with her during this period. It is also alleged that the petitioner in order to keep the informant quiet, performed ‘Mangni’ (engagement) with the informant and thereafter continuously established physical relationship with her. It has been further alleged that on 10.12.2006, the father of the petitioner came to the house of the informant and took the petitioner to Dumka. It was alleged that the petitioner established physical relationship with the informant on the false pretext that he will marry her and had since fled away. It has also been alleged that the parents and sister of the petitioner have abetted in commission of the crime. 3. On the basis of fardbeyan, formal F.I.R. was registered as Mahespur P.S. Case No. 05 of 2007 under Section 493 and 376 of the Indian Penal Code against this petitioner and his parents and sister. After investigation, police submitted charge-sheet against this petitioner and his father Nathanial Murmu under the aforesaid Sections. Thereafter, learned CJM took cognizance of the offence and committed the case to the court of Sessions. After investigation, police submitted charge-sheet against this petitioner and his father Nathanial Murmu under the aforesaid Sections. Thereafter, learned CJM took cognizance of the offence and committed the case to the court of Sessions. After commitment case was transferred to the court of First Additional Sessions Judge, where a discharge petition under Section 227 of the Cr.P.C. was filed on behalf of the petitioner and his father and thereafter, father of the petitioner was discharged from the aforesaid charges and charges were framed only against this petitioner for the offence under Section 493 and 376 of the Indian Penal Code, for which he pleaded not guilty and claimed to be tried. 4. On the basis of evidences, both oral and documentary laid before him, the learned trial court held the petitioner guilty for the offence punishable under Section 493 of the IPC, however acquitted him for the charge under Section 376 of the IPC. 5. Being aggrieved, the petitioner challenged the aforesaid order before the learned Principal Sessions Judge, Pakur and the learned appellate court after dealing with the evidences placed before him and after hearing the arguments adduced by the parties sustained the conviction and dismissed the appeal in entirety. 6. Mr. Amit Kumar Das, learned counsel for the petitioner vehemently argued that no case is made out under Section 493 of the Indian Penal Code as there was no marriage. He contended that to attract the provision under Section 493 of the Indian Penal Code there has to be believe in the victim that she is lawfully married to the person who is deceiving her. He further submits that the instant case has been falsely implicated as a counter blast to another P.S. Case being Dumka (T) P.S. Case No. 269 of 2006, which was instituted by father of the petitioner against the informant and her family members. He further contended that on the one hand the F.I.R has not been proved and on the other hand there is inordinate delay in lodging the F.I.R. He also contended that non-examination of the Investigating Officer in this case became highly prejudicial to the petitioner inasmuch as the allegation of the informant that the petitioner took her to different places could not be proved in the absence of examination of the Investigating Officer. He further contended that even the engagement has not been proved. He further contended that even the engagement has not been proved. He reiterated that no case is made out under Section 493 of the Indian Penal Code as the informant was well aware of the fact that she has not been married to the petitioner rather she was in anticipation that in future formal marriage will take place. He concluded his argument by submitting that all these aspects have not been considered by the learned trial court and the same error has been committed by the learned appellate court. 7. Per-contra, Mrs. Nitu Sinha, learned counsel for the O.P. No. 2/informant supports the impugned orders and submits that the informant is a tribal girl and innocent and the evidence transpires that she was under mistaken believe that she is lawfully married to the petitioner and due to that reason, she had physical relation with him. She further contended that it is very heinous crime and the petitioner should not be acquitted from the offence. 8. Heard learned counsel for the petitioner and learned counsel for the informant as well as learned APP for the State. 9. The moot question raised by the learned counsel for the petitioner is that in the facts and circumstances of the case and the evidence laid by the prosecution witnesses, no offence under Section 493 of the Indian Penal Code is attracted. For better appreciation of the case section 493 IPC is quoted herein-below: “493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage - Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully 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. From plain reading of the aforesaid Section, it clearly transpires that if any person induces a woman to believe that she is his legal, lawfully married wife and on that pretext cohabits and maintain physical relation with her, then in that case he is guilty for the office u/s 493 of IPC. The learned court below convicted the petitioner holding as under:- 30. The learned court below convicted the petitioner holding as under:- 30. Taking into consideration of the aforesaid facts and circumstances of the case including the contentious advanced on behalf of both sides, I do find that upon being acquainted with the complainant, appellant had developed a close relationship with the informant after final negotiation of his marriage. He used to visit the informant from time to time and he had promised the informant to marry her. On perusal of evidence, I do further find that when village people of the informant raised an objection against them to live together as husband and wife without performing their lawful marriage then a panchayati conveyed in which, appellant participated in a panchayat and giving his free consent to perform his marriage with the informant and put his signature on panchnama (Ext.2) duly singed by informant and witnesses. The aforesaid facts made the informant to believe that appellant is going to perform the final shape of marriage since their marriage engagement had already taken place in a church, which was the part performance of the marriage ceremony of the parties and as per santhal Christian only ring ceremony in church was remained to be perform as final shape of their marriage and as per santhal custom, after performing such marriage engagement they presumed that they become husband and wife and started to reside together and developed their physical relationship. The ceremonies of engagement of marriage in church made the informant to believe that appellants has married her and therefore she had started residing with him as his wife. In fact, the appellant did not marry in final shape of marriage with the informant. The persons related to the informant and the appellant were also made to believe that informant was the wife of appellant though rituals necessary for Christian marriage had never been performed either in church or outside. It is an admitted fact that no marriage had taken place between them but only on the basis of marriage negotiation in the church and marriage negotiation has finalized in the year 2005, the informant was made a belief that she was lawfully married with of the appellant. 35. It is an admitted fact that no marriage had taken place between them but only on the basis of marriage negotiation in the church and marriage negotiation has finalized in the year 2005, the informant was made a belief that she was lawfully married with of the appellant. 35. Thus, having careful scrutiny to the evidence of prosecution witnesses, I find and hold that appellant has deceit the informant, which ultimately resulted into believe in the mind of the informant that she was lawfully married wife of the appellant, though she was not. The informant had also cohabited with the appellant and had sexual intercourse with appellant. Therefore, there cannot be any doubt with regard conviction of the offence under the provision of section 493 IPC. Moreover, I do not find any error committed by the learned Assistant Sessions Judge with regard commission of offence committed by the appellant. Learned Assistant Sessions Judge has meticulously considered the evidence in proper perspective and rightly coming to the finding of the guilt of the appellant and accordingly, convicted and sentenced the appellant, as stated above. Therefore, impugned order and order passed by the learned First Assistant Sessions Judge, Pakur is hereby confirmed.” 10. From the aforesaid finding, it is clear that in the month of December, 2006, when the petitioner came to the house of the informant and stayed there for few days then village people raised objection that without performance of marriage, how can the petitioner be allowed to come and reside at the house of the informant. It has also come on record that the village Pradhan called mother of the informant and finally a Panchayati took place in which the informant along with the petitioner were called upon and both had given their consent to perform marriage but on 10.12.2006, the petitioner went away to his home and did not return. From the aforesaid facts, it clearly transpires that the informant was well aware that she was not married, of-course, she was under impression that the marriage will be performed in future. As a matter of fact, the informant has admitted in her cross-examination that a paper was prepared in Panchayat duly signed by her and also admitted that a Panchanama was prepared on 05.12.2006. She has categorically admitted in her deposition that the marriage negotiation was going on since 2005. 11. As a matter of fact, the informant has admitted in her cross-examination that a paper was prepared in Panchayat duly signed by her and also admitted that a Panchanama was prepared on 05.12.2006. She has categorically admitted in her deposition that the marriage negotiation was going on since 2005. 11. As aforesaid, to attract the offences under Section 493 of the Indian Penal Code, it is necessary that the prosecution should prove that the lady was under mistaken belief that she was legally married wife of the accused and on such mistaken belief she cohabited and had sexual intercourse with him, but in the instant case, the record transpires in clear terms that the informant was well aware of the fact that she was not married with the petitioner rather only engagement had been performed. So, it cannot be inferred from her deposition that she was under mistaken believe to be legally wedded wife of the petitioner. As a matter of fact, even the learned trial court in paragraph 30 quoted hereinabove has narrated the facts of Panchayat which was held to finalize the marriage of the informant with the accused. The learned court below has categorically observed that the Panchayat etc. made the informant to believe that the petitioner is going to perform the final shape of marriage since their marriage engagement had already taken place in a Church which was the part performance of the marriage ceremony. However, even after observing the aforesaid finding convicted the petitioner for the offence under Section 493 the Indian Penal Code. In the case of Moideenkutty Haji and Others vs. Kunhikoya and Others, AIR 1987 Kerala 184, wherein law has been discussed at paragraph 4 which is as under:- “The Section dues not penalize mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The Section is attracted only when certain other ingredients are also associated therewith. The Section envisage the case when a man deceitfully induces a woman to have sexual intercourse with him causing her in believe that she is lawfully married to him. The essence of the Section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. The essence of the Section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the Section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint is only a promise to marry in further. The strange part of it is, there is the further allegation that one day they went for registering marriage, but the petitioner ran away there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493 of the IPC.” The learned appellate court has held in paragraph 13 as under:- “The learned APP-in-charge has fairly admitted in open court that as per evidence adduced by the prosecution and material available on record as well as the impugned judgment, as discussed by the learned trial court, no offence under Section 493 IPC is attracted because it is admitted fact that at the time of occurrence, informant was not married with the appellant and appellant did not commit sexual relationship with the informant on pretext that she was legally wife of him. 12. In the given facts and circumstances of the instant case, the informant can be said to be wife of the petitioner in loose sense for the purposes of claiming maintenance, but not for prosecution in a criminal case where the prosecution has to prove its case beyond all shadow of reasonable doubt. 13. 12. In the given facts and circumstances of the instant case, the informant can be said to be wife of the petitioner in loose sense for the purposes of claiming maintenance, but not for prosecution in a criminal case where the prosecution has to prove its case beyond all shadow of reasonable doubt. 13. In view of the aforesaid discussion and the judicial pronouncement referred hereinabove, the judgment dated 20.09.2014, passed by the learned Principal Sessions Judge, pakur, in Criminal Appeal No. 11 of 2014 and the judgment dated 12.03.2014, passed by the learned Assistant Sessions Judge-I, Pakur in S.C. No. 47 of 2008, corresponding to T.R. No. 2 of 2013 are hereby set aside. 14. As a result, this criminal revision application is hereby allowed. 15. The petitioner is discharged from the liability of bail bonds. 16. Let the lower court record be sent to the court concerned along with a copy of this order forthwith.