CAV Judgment

1. This appeal has been preferred by the Complainant- Smt. Manti Sahu under Section 378 (4) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 12.10.2022, passed by the Judicial Magistrate First Class, Rajnandgaon (C.G.) in Complaint Case No.3028/2011, whereby, the complaint filed by her was dismissed and, thereby, the respondent- Mahesh Ganjir has been acquitted with regard to the offence punishable under Sections 493 and 496 of IPC.

2. From perusal of the record, it appears that the Respondent has been charge-sheeted with regard to the offence punishable under Sections 493 and 496 of IPC on the allegations levelled by the Complainant, that her marriage with him was solemnized on 08.05.2008 at village Sankaradahra of District Rajnandgaon and, an Ekrarnama with regard to her marriage was executed on 21.01.2009, since then they are living as husband and wife and during this period, they visited at various places and the respondent has made physical relations with her. Further of her allegation was that she incurred a sum of Rs.85,000/- during her visit on several places and, when she refused to provide him money on his demand, he refused to keep her as his wife and drove her out from the house.

3. Although, it was alleged by the Complainant that her marriage with the respondent was solemnized on 08.05.2008, but a bare perusal of her notice (Ex.P-1), issued on 05.01.2009, would, however, show that marriage of her was not stated to be solemnized as such on 08.05.2008 and, even in her Complaint (Ex.P-14) made on 15.06.2009, before the Superintendent of Police, Rajnandgaon, no reference as such was made and, instead, it was stated therein that the respondent on the pretext of marriage has made physical relations with her in the month of May to September, 2008 on various places. In view of the contents made therein, it, therefore, cannot be said that her marriage was solemnized with him on 08.05.2008, as alleged and deposed by her.

4. It is to be seen further, as reflected from her another notice, dated 13.05.2009 (Ex.P-10), that her alleged marriage was made with the consent of his first wife, namely, Maheshwari Ganjir. It, thus, appears that she was fully aware that the respondent was already a married man and, therefore, the alleged Ekrarnama (Ex.P-4), executed on 21.01.2009, was held to be invalid and was held to be not binding upon them by the Second Additional District Judge, Rajnandgaon vide its judgment, dated 11.10.2021 passed in appeal, being Civil Appeal No.13-A/2020, as the same was found to be hit by the provisions prescribed under Section 5 read with Section 11 of the Hindu Marriage Act, 1955.

5. The aforesaid finding was affirmed further by this Court vide judgment dated 12.08.2022 in Second Appeal No.326/2021, preferred by the Complainant. In view of such circumstances, it cannot be said that the respondent dishonestly or fraudulently performed the alleged marriage, as alleged by the Complainant. It is, thus, evident that deceit of the kind contemplated under Section 493 of IPC has not been fulfilled. The said provision is relevant for the purpose, which reads as under :-

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.

6. From perusal of the aforesaid provision, it, thus, appears that the essence of an offence under the aforesaid provision consists in the practice of deception by a man on a woman, in consequence of which, she is led to believe that she is lawfully married to him even though, in fact, they are not lawfully married. The ingredients necessar