Pradeep Kumar Srivastava, J.

At the very outset, the learned counsel for the accused-appellant has submitted that instead of arguing on bail application he will argue on the appeal on merits to which the learned AGA has agreed.

2. Heard Shri Pankaj Sharma, learned counsel for the appellant, Shri Ram Adhar and Shri Ravi Prakash Pandey, learned AGA for the State and perused the record.

3. Learned counsel for the accused-appellant has submitted that the appellant Mobin @ Bholu has been convicted in Sessions Trial No. 458 of 2016, (State of U.P. Vs. Mubin @ Bholu), arising out of same Case Crime No. 33 of 2011, P.S. Mahila Thana, District Mathura and sentenced for the offence under section 493 I.P.C. for 09 years rigorous imprisonment and Rs. 9000/- fine and in case of default in payment of fine 01 year additional simple imprisonment.

4. Perusal of record shows that a case was registered against the appellant on an application given by the victim under section 156(3) of the Criminal Procedure Code stating therein that the accused-appellant kept her for a long period as his wife and three children were born to them. Thereafter, she was forced to leave the house. She filed a petition for maintenance under Section 125 of the Criminal Procedure Code in which because of intervention of local respected people and relatives, a settlement took place and accused-appellant and his family members took the victim back to their house. Thereafter, she was taken to the court where she signed on certain papers and subsequently, she was again beaten by the accused-appellant and his family members and she forced to leave the house along with her children. A panchayat took place in which the accused-appellant denied her to be his wife, whereas he was keeping her as wife from the last 8 years. On the basis of the application, by the order of the Magistrate, a case was registered against the accused-appellant and after investigation charge-sheet was submitted against the accused-appellant by police for the offence under section 376, 420 IPC.

5. Prosecution examined PW-1 victim, PW-2 Neha @ Asgari, PW-3 SI Siyaram in support of the prosecution version. On the basis of evidence on record the learned trial court did not find the accused-appellant guilty for the offence under section 376, 420 IPC but found him guilty for the offence under section 493 IPC and convicted and sentenced the accused-appellant by impugned judgment.

6. Aggrieved by the conviction and sentence, this appeal has been filed challenging the impugned judgment on the basis that the victim was residing with the appellant without any pressure on her free will and there was no question of cheating her. Both made physical relationship on the basis of mutual consent. No charge was framed against the accused appellant for the offence under section 493 IPC but the appellant was convicted under that section. Therefore, the whole trial is vitiated and the judgment and sentence is against law and fact and has been wrongly decided by the learned trial court. Therefore, impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

7. From the perusal of the evidence on record, it appears that the victim PW-1 Sarjina has proved her application under section 156(3) as Ext. A-1 and affidavit Ext. A-2. She has admitted that both were residing as husband and wife voluntarily. In her cross-examination, she has however stated that she lived with the accused-appellant as wife and there was no pressure on her and accused-appellant never deceived her nor by applying deceit, he made any physical relationship with her. She lived as such for 8-10 years. The accused-appellant never made physical relationship with her on promise of marriage. She has been declared hostile. In cross-examination, she has denied her statement given to IO and has stated that accused has a general store and her family members took certain items on credit. Accused was demanding money, whereupon a qu