V. GOPALASWAMY, J.

( 1 ) THIS appeal is preferred against the judgment of the Judicial Magistrate, first Class, Solapur at Cuttack acquitting the accused (the present respondent) of the charge under Section 493, I. P. C.

( 2 ) THE Prosecution base, briefly stated, is that in the year 1981 on the Ganesh Chaturthy day the accused took the complainant (the precent appellant) to Isaneswar Mahadev Temple and, there after performing puja, there was exchange of garlands between the parties when the accused declared that the complainant had become his wife and after that day the accused had sexual intercourse with the complainant on several occasions and she allowed it on the belief that she was his legally married wife and that ultimately when she become pregnant, he deserted her and then she was driven to files the present complaint case under Section 493, I. P. C.

( 3 ) THE accused pleaded that the case was falsely foisted against him. He examined D. W. 1 Rama Chandra Misra in support of his plea.

( 4 ) THE prosecution has examined in all five witnesses to prove its case. The complainant examined herself as P. W. 1 and deposed in support of her case. P. W. 2 is the father of the complainant and P. W. 3 is her mother P. W. 4 Bikala Chandra Mishra claims to have been present in the Isaneswar Mahadev Temple at the time the complainant and the accused performed the Puja. P. W. 5 claims to have attended the Panchayat, where in the complainant's father complained against the accused.

( 5 ) THE complainants case is that in the year 1981 on the Ganesh Chaturthy day the accused took her to Isaneswar Mahadev Temple and there, after performing Puja, they had exchanged garlands and the accused had declared that she become his wife and this had led her to believe that since that day she become his legally married wife, The accused denies about there being any such Puja in the temple or any exchange of garlands between them in the temple. So the burden of proving the same lies on the complainant.

( 6 ) THE complainant stated in her evidence that the priest Bansi Das was present with her at the time of Puja in the temple. But the said Bansi Das was not examined on a witness on- the side of the prosecution. On the other hand one Bikal Chandra Misra was examined as P. W. 4 and he claims to have been present in the temple at the time of Puja and also claims to have witnessed the exchange of garlands between the parties after the performance of Puja. The complainant (P. W. 1) has not stated in her evidence any thing about the presence of P. W. 4 in the temple whether at the time of the performance of Puja or at the time of the exchange of garlands between the parties. So it is difficult to accept the evidence of P. W. 4 that he witnessed the exchange of garlands between the parties in the temple on the Ganesh Chaturthy day. That apart, P. W. 4 deposed that he had seen one Rama Chandra Misra, Ute Pujaka of Isaneswar Temple performing the marriage between the complainant and the accused, P. W. 5 stated that in the Panchayat held in the village at the instance of complainant's father (P. W. 2), the complainant stated that one Rama Chandra Misra had performed the marriage between the accused and the complainant. But the said Rama Chandra Misra was not examined as an witness on the side of the prosecution and there is no acceptable explanation for such non-examination. On the other hand, the accused has examined the said Rama Chandra Misra as D. W. 1. Admittedly, the said Rama Chandra Misra was a priest (pujaka) in the temple of Isaneswar Mahadev during the relevant period. He categorically deposed on oath that there was no exchange of garlands in the temple between the accused and the complainant on the Ganesh Chaturthy day and no Puja was performed by them on that day. In view of the above evidence, the Trial Court has rightly held that the complainant failed to prove Satisfactorily that there was performance of Puja by the parties and exchange of