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2023 DIGILAW 796 (JHR)

Gopal Bhagat v. State of Jharkhand

2023-06-21

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and the order of sentence, both dated 31.05.2004, passed by the learned 4th Additional Sessions Judge, Fast Track Court No. I, Godda, in Sessions Case No. 20 of 2004; whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for five years and fine of Rs.2,000/- under Section 493 of the Indian Penal Code and in default of fine, further to undergo simple imprisonment for one month. 3. The prosecution case in brief is that the informant-Shaili Murmu resided with her mother and brother as his father was no more and the appellant used to come her house as he was the friend of his elder brother. One day when the informant was cutting grass then the appellant came there and has committed rape and when she raised the objection, the appellant assured to marry her. Thereafter, physical relationship between the informant and the appellant continued. In the meantime, the appellant gave maintenance as rice and cloths etc. to the informant and this fact was also known by the mother of the informant. After some period, the appellant refused to marry with the informant and because of that the case has been instituted by the informant against the appellant. 4. Learned counsel for the appellant submits that though initially the appellant was charged for the offence under Section 376 of the IPC, however, the learned trial court has acquitted him for the same. However, he committed an error convicting the appellant for the offence under Section 493 of the IPC on the ground that there is evidence against the accused that he deceived the victim girl Shaili Murmu into believing that she has lawful married woman and made her live as a husband and wife. The aforesaid finding of the trial court is perverse in nature; as such the appellant deserves acquittal. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 6. The aforesaid finding of the trial court is perverse in nature; as such the appellant deserves acquittal. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 6. Having heard learned counsel for the parties and after going through the documents available on LCR, it appears that to decide this case as to whether it is a case of 493 IPC or not, it is relevant to appreciate Section 493 IPC which is quoted herein below: “Section 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.” 7. From the aforesaid provision of law, it is clear that if any person deceives a woman who is not legally married to him but to believe her that she is legitimately married to him and to cohabit or have sexual intercourse with him. In this background, the deposition of the victim girl which has been narrated in para 1 of her deposition is quoted herein below: ÞLkkढ+s pkj lky igys dh ?kVuk gSA xksiky Hkxr esjs ?kj vkrk tkrk FkkA lkgc ds Msjk esa ?kkl dkVus ys x;k FkkA lkgc ds Msjk esa dksbZ ugha FkkA xksiky esjs lkFk tcjnLrh laHkksx fd;kA eSa gYyk djus yxh rks og cksyk fd 'kknh dj ysxsAÞ Further, it is also relevant to mention paragraph 9 of the impugned judgment which is extracted as under: “P.W. 2 is Shaili Murmu who is the informant and victim girl of this case. She has fully supported the prosecution case by her evidence. As she has stated that accused Gopal Bhagat was used to come to her house. When she went to cut the grass at the residence of Saheb. There was no anyone in the residence. The accused Gopal Bhagat committed sexual assault forcibly with her. When she raised alarm then he assured her to marry with her. As she has stated that accused Gopal Bhagat was used to come to her house. When she went to cut the grass at the residence of Saheb. There was no anyone in the residence. The accused Gopal Bhagat committed sexual assault forcibly with her. When she raised alarm then he assured her to marry with her. She has also stated that the accused Gopal Bhagat used to come daily to her house and committed sexual assault with her.” From the aforesaid paragraph as well as from the deposition of the victim girl and also the first information report it appears that though the appellant used to come to the house of the victim girl and they had sexual intercourse but at no time he has deceived the woman by telling her that he is her legally wedded husband. The very first paragraph of the deposition of P.W.3 has narrated herein below: ^^'kSyh eqjeq esjh yMdh gS A xksiky Hkxr esjs ?kj ess vkrk tkrk FkkA esjh csVh ds lkFk og 'kknh djus dh ckr cksydj lksrk Fkk A^^ 8. At this stage, it is important to refer the Judgment passed by the Hon’ble Apex Court in the case of Arun Singh & others versus State of Uttar Pradesh through its Secretary reported in (2020) 3 SCC 736 wherein at para 21, 22 & 23 the Hon’ble Court has dealt with this isse regarding basic ingredients for the offence under Section 493 of the IPC as under: “21. The essence of an offence under Section 493 IPC is, therefore, practice of deception by a man on a woman as a consequence of which the woman is led to believe that she is lawfully married to him although she is not and then make her cohabit with him. 22. Deceit can be said to be a false statement of fact made by a person knowingly and recklessly with the intent that it shall be acted upon by another who on believing the same after having acted thereupon suffers an injury. It is an attempt to deceive and includes such declaration and statement that misleads others or causes him to believe which otherwise is false and incorrect. 23. It is an attempt to deceive and includes such declaration and statement that misleads others or causes him to believe which otherwise is false and incorrect. 23. In other words, to constitute an offence under Section 493 IPC, the allegations in the FIR must demonstrate that the appellant had practiced deception on the daughter of the complainant causing a false belief of existence of lawful marriage and which led her to cohabit with him.” 9. After going through the aforesaid ruling and by analyzing the deposition of the victim and her father, it clearly transpires that though the appellant had deceived this victim girl by saying that he will marry her but at no time he has said that he is her legally wedded husband. As such, the main ingredient of Section 493, quoted herein above, is not fulfilled. Accordingly, this Court holds that in the instant case, conviction under Section 493 is not sustainable in the eye of law. 10. With the aforesaid observations, the instant criminal appeal stands allowed and the judgment of conviction and the order of sentence, both dated 31.05.2004, passed by the trial court, is hereby, quashed and set aside. 11. The appellant shall be discharged from the liability of his bail bond, subject to fulfillment of aforesaid condition. 12. Let a copy of this order and the lower court record be sent to the court concerned forthwith.