Mishir Rai vs The State of Bihar (Now Jharkhand)

D.G.R. Patnaik, J.—The appellant was convicted for the offence u/s 493 of the IPC and sentenced to undergo imprisonment for five years by the 2nd Additional Sessions Judge, Dhanbad in Sessions Trial No. 96 of 1991. In the present appeal, the appellant has challenged the order of his conviction and sentence passed by the trial court.

Facts of the case in brief is that the appellant had struck acquaintance and developed intimacy with the prosecutrix (PW 7) and both were in love with each other. The appellant had persuaded the prosecutrix to solemnize marriage at the temple and accordingly, a formal marriage ceremony was solemnized at the temple. Thereafter, the prosecutrix on being made to believe that she is the legally marriage wife of the appellant, she lived with him as his wife and allowed the appellant the indulgence of physical relationship with her. As a result, she had conceived and delivered appellant''s child. The appellant was expected to undergo a further ceremony of marriage by social custom, but he refused and instead, proceeded to marry another girl. Being aggrieved, the prosecutrix through her parents and other elders of her family, convened panchayat in the village. In the panchayat, the appellant had promised to undergo ceremony of marriage with the prosecutrix, but he did not keep his promise.

The appellant had denied the charges for the offences under Sections 493 and 376 of the IPC which was framed against him.

At the trial, as many as eight witnesses were examined which includes prosecutrix (PW 7), her parents (PWs 1 and 3), her aunt (PW2) and uncle (PW4) and two co-villagers (PWs 5 and 6). The trial court placing reliance on the testimony of the prosecutrix and finding support from the evidence of her parents as well as of other witnesses, recorded its finding of guilt against the appellant for the offence u/s 493 of the IPC and sentenced him accordingly.

Counsel for the appellant while assailing the impugned judgment of conviction and sentence, submits that conviction against the appellant for the offence u/s 493 of the IPC is totally misconceived and is against the weight of evidence on record. Learned Counsel would explain that the entire case of the prosecution rests on the testimony of the prosecutrix and, therefore, it is her evidence alone which would be relevant to be considered as to whether the charge for the aforesaid offence has been proved by the prosecution or not? Inviting attention to the testimony of the prosecutrix, learned Counsel submits that contrary to the statements contained in the first information report, the prosecutrix has come up with the case wherein she admits that she was in love with the appellant and she had allowed herself to be sexually exploited by the appellant believing his assurance of marriage. It was later that the ceremony of marriage was performed at the temple, thereafter she went to the house of the appellant and lived with him accepting him to be her husband. Yet, being not satisfied with the marriage solemnized at the temple, she had desired that a formal marriage ceremony according to social customs, be performed, but the appellant had refused. Inviting further attention to the evidence of PW2, who happens to be the aunt of the prosecutrix, learned Counsel submits that this witness has admitted that the marriage of the prosecutrix with the appellant solemnized at the temple, was according to Hindu rites and customs. If this was so, then it cannot be said that the appellant had made any false inducement to prosecutrix to believe that she was his legally married wife. On the other hand, if the marriage at the temple is treated as a sham transaction only to deceive the girl, then admission of the PW2 amounts to vital contradiction in the prosecution''s case.

Counsel for the State, on the other hand, while offering support to the findings of the trial court, submits that the marriage solemnized at the temple was in fact a sham transaction by which the appellant had persuaded the prosecutrix to believe that she was his legally married wife.

It appears from the impugned judgment that the trial court has though considered the evidence of the prosecutrix as well as other witnesses before recording its finding of guilt against the appellant, but has conspicuously failed to read the testimony of the prosecutrix in between the lines on comparing with the evidence of other witnesses.

As rightly pointed out by the learned Counsel for the appellant, the prosecutrix in her examination in chief, has admitted that even before undergoing ceremony of the marriage at the temple, she had allowed the accused / appellant the indulgence of maintaining physical relationship with her and it was thereafter, that on her persuasion, the appellant had undergone ceremony of marriage at the temple. The nature of such marriage, according to PW2 who is the aunt of the prosecutrix, was a marriage according to Hindu rites and customs.

In the light of the above facts, it is apparent that ceremony of marriage at the temple had resulted in a legal marriage and on and from the date of such marriage, the prosecutrix became the legally married wife of the appellant. It further appears from the evidence of the prosecutrix that prior to solemnization of the marriage, there was negotiation between the parents of both the prosecutrix and the present appellant and it was only after the negotiation, that the marriage was solemnized at the temple. It cannot, therefore, be said that the prosecutrix was falsely induced to believe that she was legally married wife of the appellant and that by such deceitful means, she was subjected to sexual exploitation by the appellant.

Section 493 of the Indian Penal Code reads as follows:

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 the entire evidences on record, it appears that essential ingredients of Section 493 of the IPC is lacking in the instant case.

In that view of the matter, finding of guilt as recorded by the trial court against the appellant cannot be sustained.

In the facts and circumstances, I find merit in this appeal. Accordingly, the same is allowed. The judgment of conviction and order of sentence, as imposed by the trial court against the appellant, is hereby set aside. Appellant is acquitted of the charges for the offence u/s 493 of the IPC. Since the appellant is on bail, he is absolved from the liability of his bail bond.