Sk. Kamaluddin vs State of Orissa

Satrughana Pujahari, J. - The appellant herein this appeal assails the judgment of conviction and order of sentence dated 18.7.1991 passed against him by the learned Addl. Sessions Judge. Jajpur in S.T. 0.338/74 of 1990. The learned Addl. Sessions Judge, Jajpur vide the impugned judgment and order held the appellant guilty of the charge under Section 493 of IPC and sentenced him to undergo rigorous imprisonment for two year s and to pay a fine of Rs. 4,000/- (rupees four thousand) in default to undergo further R.I. for three months.

Prosecution placed the case before the trial court that the house of the accused-appellant as well as the victim was adjacent to each other. The accused-appellant was visiting terms with the house of the victim. The accused-appellant brought the victim on 20.2.1989 to PIR BABA and married her by exchange of garlands and gave her an impression of lawful marriage. Thereafter, they lived as husband and wife and the accused-appellant had sexual intercourse with the victim. But, while the victim was carrying a child in her womb, the accused-appellant caused miscarriage to the pregnancy of the victim by taking her to the doctor. Few days thereafter, she was neglected, assaulted and ultimately, on 16.9.1989 driven out from the house of the accused-appellant. Thereafter, the victim made a complaint before the learned S.D.J.M., Jajpur and the said complaint being a case to be triable by the court of Sessions, the same was accordingly committed to the court of Sessions.

Taking into consideration the aforesaid case which was supported by the materials on record, the trial court framed the charges against the appellant for alleged commission of offences punishable under Sections 493/313 of IPC. As the appellant pleaded not guilty to the charge, he faced his trial and the prosecution, as such, examined as many as four witnesses and also exhibited certain documents in order to establish the charge against the appellant. The appellant, who had taken the plea of false implication did not examined any witness to substantiate his plea, but exhibited certain documents. On conclusion of, trial, placing reliance on the evidence available on record, the trial court returned the judgment of conviction and order of sentence against the appellant as stated earlier while acquitting him of the charge under Section 313 of IPC.

It is submitted by the learned counsel appearing for the appellant that since in this case the evidences of the victim and other witnesses are unworthy of credence with regard to the marriage which is sine-qua-non'' to attract the offence under Section 493 of IPC, the impugned judgment of conviction and order of sentence is unsustainable in the eye of law.

Learned counsel for the State, however, drawing the notice of the Court to the evidence on record submitted that there being c ear and categorical evidence of the victim with regard to the offence committed by the appellant which has remained untrammeled in the cross exarnmation and other evidence being there corroborating such version, the contention advanced on behalf of the appellant challenging the judgment of conviction is not sustainable. Since there is categorical evidence disclosing the fact that the appellant giving belief of lawful marriage cohabited with the victim, but later on denied her to give the status of a legally married wife and drove her out from his house, the same squarely attracts the ingredients of the charge, hence the impugned judgment of conviction and order of sentence needs no interference in this appeal, submits the learned counsel for the State.

The evidence of the ''victim (P.W. 1) would go to show that the appellant giving the belief of lawful marriage by exchanging garlands to the victim, cohabited with her and had sexual intercourse with her The aforesaid evidence of the victim gets corroboration from the version of P.W. 2 to P.W.4. There is, as such, ample material that the appellant had given impression f lawful marriage to the victim, kept her and had also sex with her as his wife and thereafter material are there that the appellant denied to give her the status of married wife.

From the aforesaid, it appears that from the very inception the appellant made cohabitation with the victim by giving her belief that they were legally married, but later on refused to recognize the marriage between them. No evidence as been ''adduced disclosing the fact that the version of the victim in this regard is unworthy of credence. The aforesaid evidence attracts the ingredients of the offence in which the appellant was found guilty, In such premises, the impugned judgment of conviction cannot be found fault with.

But, so far as the imposition of sentence is concerned, considering the facts and submissions made, the same stands modified with the order that the appellant shall undergo rigorous imprisonment for two months and pay a compensation of Rs.1,00,000/- (rupees one lakh) and on failure to pay the compensation, to undergo rigorous imprisonment for two years. The compensation amount shall be deposited m the trial court by an Account Payee Bank draft drawn in the name of the victim within a period of six months hence.

Accordingly. this criminal appeal is dismissed with the modification of the sentence indicated above.

LCR along with a copy of this order be sent to the court below forthwith.