u Single Beaift IN THE mOH COURT OF JUDICATURE OF CHHAmSQA3RH AT BILASPUR ^lACr.C. N0?-%^/20oi^ A^,. A: ••<:^SI ff CRBgONALAPPEAL nsM :,sjJ^-v ^6ta ..lo0.^^ ^'A°' VgRSUS RESPONDENI:, Dularibai Aged about 39 years W/o-tikendra C/o- ctahabiram verma Village- kima Police station- neora Tah. & distt- raipur (c.g.) TIkendraverma A.ged about 43 years S/o- ram prasad verma Village- kima Police station- neora Tafa. & distt- raipur (c.g.) APPLICATION FOR GRANT OF SPECIAL LEAVE TO FILE THE APPEAL AGAINST ORDEROF ACOUITTAL UNDER SECTION 378 f4TW THE CODE OP CRIMINAL PROCEDURE. ;i-:.^~i:,:;-'-S*'S TH Singie Bench : Hon'bie Mr. Justice Pritinker Diwaker Acauitta! ApDea! Dulari Bai. wife of Tikendra Tikendra 'v'erma Shri y.C. Shri B.P. 1t. Sharma, counsel for the oppellant. Sharma, counsel for the respondent. iF'?TTfSM 378('4'^.?iF THE CObE OF C&IMIIsi.4 'i.T^. 'S'/i--'—-.?_'~^^i«>\^u'i—%^T ' !?tP*=j^J"S-P^'* '!P>t' The present appea! arises out or +he impugned ju< and orde'fdated 1.6.8.200^ passed by Judiciai AAagistrgte Fir'st Class, Raipur irT.:Complaint Gas& No. .47^1999 fll£qyit'}-1ng"the resBOndent/accused;of the offence uncler Secti'sn 493 of.;fh.e. •IridianPenaiCode.';.. ,.. ': '.':".. '''-'-'i.'X--'.'' Brief facts of fhecdse aretftWon 14.6;lg88 a comptoint.: case was fited by the GpRe.llant/comp.iainan* under Sect?ons 493 . and, 376 of .j the TndlaBPendi.Cqde-.'dgainst+he r'espQr!dent/accused.,Accordjn3 to t.iie complaindnt, she used to 'QO to the.'h'ouse of one Parmanand to Durchase milk and' cupd and there she.niet with the respondent/accused who happens to be a friend of said P.arrriariand. She has stated that she and the resp'ondent/accused used to: rneet .B'och other.in the veterinapy hospita! which was under construction esid this continued for about 1 - 1-i, years. She has further stated th.at ssmetime in the month of April - way. 1987 when she met the respondent/aceused, he came with two qarlands and by putting \1'he scme on each other they performed mar-riage formaily. •-^e^S However, the sociaily accepted marriaae remQined due to be oerformed later on. Thus the resDondent./accused told the complainant that as they have entered in the love marriags, thenceforth they have become husband and wifa. According to the complainant, whsnever the accused/respondent met her he used to have sexuai intercourse by defraudina her. She has furrher stated that wheri shs became pregnant, respondent/accused first tried to console her but then he st< :^ under Sections 376 cmd 493 of IPC. 'while framing the charge, court be!ow has framed the charqe oniy under Section 493 of the Indicn Pena! Code against the respondent/accused. ^ '"Kw^SsiSS) 3. In suppor!" of his case, the compiainant examined herself and four other witnesses namely Chhabiram (CW-2), Kejuram (CW-3), Jhariyar Verma (CVi/-4) and Kair.a! Kumar Soni (CW-5). Statement of the respondent/accused was aiso recorded under Section 313 of the Code of Crirninai Procedure in which he denied the chcrges !eyeil?d against him and pleaded hls innocence and faise implication in the case. In addltion to this, witnesses nGmeiy &j|ab Verma (D'vV-i), Parasram (DW-2) and Dayanad Bachhor (DW-3) have ajso been examined by the defence in support of its case. 4. B the responc Section 493 impugned ju. ent/Qccused the Indian dament the court below has acaui of the offence punishable u Penal Code. Hence this aOGeaj. 5. ' Counsel for the aDDeltant/comDlainant submits that on \the basis of evidence adduced by the complainant and her RT. "(^ Sl ''^"^' ^^^•WSffS^ witnesses, the court below ought to have convicted the respondent. He submits that ingredients of Section 493 IPC is cieariy made out against the respondent/accused and by misinterpreting the provision of said section and the evidsnce, the courf' below has erred in iaw in acquitting the respondent/accused. 6. On the other hand support'ing the impugned iudgment it has been arqued by the counsel for the resoondent thot impugned judgment is strictly in accordance with law and there is no infirmity in the same. He further gubmits that there is no evidence on record to show that at any point of time the respondent had deceit the appeitant to bejieve that she is lawfully married with hlm. He has furrher argued that in case of acquittal if two views are possibje on the basis of the evidence ied by the prosecution and the trial Court taking one view favourable to the accused, no interference is called foi" by the appeliate court. 7. I have heard couhsel for the oarties and Derused the mGterial available on record includinq iudqmsnt imDUQned. Complainant Dulari (CW-1) has stated in her evidence that she used to 90 to the house of one Parmanand to purchase milk and curd where she met the resDondent/accused and fe!l in love wi.th him. She has stated that every evening she used +o visit veterinary hospitai which was under construction and used to meet the respondent and there once she had asked the respondent/accused to take responsibility of any act to which accused/appeilant had assured her to take the same and had ireed that he wiii come with two qariands and bv outtinq the n ......E.if^a** sMWS^ same on each other thsy wii! perform marr'isge formally. She has further stated that when she became pregnant, she informed this fact to the respondent/accuged and also to her mother and father. She has also stated th.at her marriaae was solemnized with the respondent by aar'ianding each other in the veterinary hospitai itself. She has further stated that when she becams pregnant, occused/a.ppeliant stopped meeting her. Panchayat meeting was caiied by he appe!!ant/com| which was duly attended by the responden+./accused but iater OR he ran away from the said meeting and thereafter. in another meeting th.e respondent/accused had refused any relation with the complainant. Shs has further stated that on 1.5.1988 she had delivered a male chiid and thereofter aoain ?anchayat meeting was calied but in the said meeting the respondent/accused had refused to keep her o.nd her son and then the resoondent/accused and his inother & father wa.s ousted from the Societv. In oaraqraDh 9 of her cross- examinatioh this witness has stated as to how marTiage is bein< solemnized in her society and then she had given the description of iawful marriage of her society. She has admitted the fact that he" marriaae was aqainst societv. She has stated that once she asked the respondent/accused to serform marriaqe with her by Der'forminG rituals like seven sacred rounds of aiter and t'nen accused/respondent had agreed that that he wii! do the same after the examination. In her evidence. she has nowhere stated that accused/respondent had made sexual relations with her only after the so-called marriage. Chhabiram (CW-2) - father of the prosecutrix has stated in his evidence that he was informed by her daughter about her tove affair with the respondent/accused o.nd the marriage between them. He has furt-her stated that as to in what manner the panchayat meetings were calied and later on complainant had informed him about her pregnancy. Gulab Verma (DW-1) has stated in his evidence that the complainant was a iady of easy virtue. Parasram (DW-2) and Dayanand Bachhor (bVV-3) are +he witnesses of Panchayat meeting. Section 493 of the Indian Penal Code reads as under :- i(^e.- cvery mcn who &y deceit causes any woman who is not iawfuily married to him to beiieve that she is lawfuliy married to him and to cohabit or have sexual intercourse with him in that beiief, shali be punished with imprisonment of either aescription for a term which may extend to ten years, and shali also be liabie to fine." In order to prove the offence under Section 493 of the Indian Penai Code, the prosecution is required to prove : (i) That th.e accused ccused the woman in question to beiieve that she was lawfullv married to him. (ii) That he induced the woman to cohabit with him under that beiief; (iii) That he caused such bejief bydeceit. It is to b®noticed that essence of the offence under Section 493 IPC consists in the practice of deception by a mon on a womcn, ir> consequence of which she is !ed to belieye that she is iawfuily married to him even though, in fact, they are nof lawfully married. The crucial question for consideration is whether on the basis of evidence adduced by the parties, it can be reasonabiy held that the respondent practiced such dsceptron with the complainant. To prov'e deception it must be ^ ^ x conclusively established that the appeilant either dishonestiy or frauduiently conceaied certain facts, or made a false statement knowing it to be false. In the case in hand, in the complaint, the case of the complainant is somewhat different from that of her court statement. In her court' statement she has admitted the fact that one day the respondent/accused came with two gariands and by puttina the same on each other they psrformed marriage formaliy. 1-iowever, in her cross-examination she admits that as tb in what rnonner the marriages are being performed in her society like seven sacred rounds of alter. Considering the totality of the case particularly the eyidence adduced by the parf'ies, it is difficult to hold that resDondent/accused has committed the offence under Section 493 of the Indian Pend Code. AAoreover, the entire evidence as adduced by the prosecution and the material brought on record has been duly considered by the court below whiie passing the impugned judgment of acqu'rttal. Furthermore, being very niuch conscious of the existing legal position that in an appeal agairist acquitta! if two views are possible on the basis of evidence led by the prosecution and the triat Courr taken one view favoured the accused, taking the o+her plausible view into consideration, is not permissibie in law and therefore this Court is of the considered opinion that the judament impugned acquitting the respondent/accused of the offence under Section 493 of the Indian Penal Code, is just and proper and does not warrant any interference by this Court. Accordingly, the appeal being without substaice is liable to be dismissed. It is accordinqly dismissed. Sd/- Pritinker Diwaker