Deception leading to a false belief of lawful marriage and cohabitation is essential for an offense under Section 493 of the IPC.

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. 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. She has also stated that the accused Gopal Bhagat used to come daily to her house and committed sexual assault with her.”

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