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Section 493, I.P.C : Accused can't be prosecuted on materials adduced later

Madras High Court

Murugaswamy

vs

State Represented By S.I. Of … on 15 March, 1996

Equivalent citations: 1996 (2) CTC 160

Author: M Karpagavinayagam

Bench: M Karpagavinayagam

ORDER M. Karpagavinayagam, J.

1. This rider is destined opposite a visualisation dated, 7.9.1993 in C.A. No. 102 of 1991, on a record of a First Additional Sessions Judge, Coimbatore. Originally, a postulant Murugaswamy was convicted for a corruption underneath Section 493, I.P.C., and condemned to bear R.I. for dual years and to compensate a excellent of Rs. 1,000 in default to bear R.I. for one month, by a schooled Judicial Magistrate, Mettupalayam in C.C. No. 624 of 1989, antiquated 8.7.1991. Against this judgment, a above pronounced rapist interest had been elite by a postulant herein, in that a schooled reduce appellate Court while dismissing a appeal, reliable a self-assurance and visualisation imposed on a postulant by a hearing Court.

2. The contribution heading to a visualisation of self-assurance are as follows:-

P.W.1 Bhagawathiammal is a proprietor of Mudalipalayam. When she was staying during Melkathavukarai village, she had grown cognisance with a petitioner, who was a neighbour. Since a postulant positive P.W. 1 that he would marry her, P.W.1 authorised him to have inter-course with her and during Melkathavukarai encampment they were vital as father and mother underneath one roof for one year. After changeable her chateau to Mudalipalayam village, there also they lived together for about 3 years. But suddenly, a postulant stopped entrance to her residence on a urging of his parents. At that time she was profound of 3 months. Finding no other alternative, P.W.1 gave censure Ex.P1 to Annoor military hire on 7.7.1987, that was purebred in Cr. No. 172 of 1987 by P.W.7 Nandakumar, Sub-Inspector of Police, underneath Section 420, I.P.C. The postulant was arrested and expelled on bail subsequently.

3. After entrance out on bail, a postulant took P.W.1 to Maruthamalai church and married her by exchanging garlands and restraining of thali. After a pronounced marriage, they were vital together for 4 or 5 months. Suddenly, a postulant again stopped entrance to a residence of P.W.1. In a meant time, a child was innate to her. Subsequently, she came to know that a postulant married another woman.

4. P.W.7, Sub-Inspector of Police during a march of review in this case, examined P.W.2 Marathal, P.W.3 Perumal Gounder, P.W.4 Ponnammal and P.W.5 Ramaswamy, a neighbour to pronounce about a fact that a postulant and P.W.1 were vital together as father and mother underneath one roof and that P.W.1 consented to live with a petitioner, but any current matrimony given she was positive by him that he would marry her, in a near, future. After registration of a above complaint, P.W.6 Doctor Nirmala, examined P.W.1, during a ask of military and released Ex.P2 certificate to a outcome that she was profound of 22 weeks. After execution of investigation, on 5.12.1987 P.W.7 Sub-Inspector of Police filed a assign square opposite a postulant underneath Section 420 I.P.C. However, P.W.7 has not conducted any review with anxiety to a matrimony hold between a postulant and P.W.1 during Maruthamalai church after a box was registered. On a basement of a F.I.R. and a statements in support of a indictment in a F.I.R., a assign square was filed for a corruption underneath Section 420, I.P.C.

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5. The schooled Judicial Magistrate, who took a box on record underneath Section 420, I.P.C., in C.C. No. 624 of 1989, after furnishing copies to a postulant underneath Section 207, Cr.P.C., as good framed a assign underneath Section 420, I.P.C., alleging that he cheated a complainant P.W.1 by creation a fake declaration of marriage, to have inter-course with her and done her pregnant. He denied a pronounced assign and claimed to be tried. P.Ws. 1 to 5 were examined by a hearing Court. During a march of hearing of P.W. 1, given she settled that successive to a registration of her complaint, matrimony between a postulant and P.W.1 had taken place during Maruthamalai by exchanging garlands and restraining of thali, a Assistant Public Prosecutor, who seemed before a hearing Court, filed a petition underneath Section 216, Cr.P.C., requesting a Court to change a assign into one of Section 493, I.P.C., on a basement of accessible evidence. On that aspect a parties were heard. Thereafter, a assign in a benefaction box was altered into one of Section 493, I.P.C.

6. Fresh assign was again framed, and review over to a petitioner, to that he pronounced that he was innocent. Subsequently, dual some-more witnesses were examined, viz. P.W.6 Doctor and P.W.7 Sub-Inspector of Police.

7. After a hearing of witnesses, a postulant was questioned underneath Section 313, Cr.P.C., He denied a damning resources appearing opposite him. No counterclaim declare was examined.

8. After stop of a trial, a schooled Judicial Magistrate, on appreciation of a verbal and documentary justification found a postulant guilty for a corruption underneath Section 493, I.P.C. and condemned him as referred above. Aggrieved over this, a postulant filed an interest in C.A. No. 102 of 1991 on a record of First Additional Sessions Judge, Coimbatore, that was discharged on 7.9.1993, confirming a self-assurance and sentence. Hence this revision.

9. Heard schooled warn appearing on possibly side.

10. The above rider has to be authorised on a following elementary ground. The First Information Report was purebred by P.W.7 Sub-Inspector of Police, underneath Section 420, I.P.C. Charge square was also filed underneath a same Section, on a basement of materials forming a corruption of intrigue collected during a march of investigation. The schooled hearing Magistrate also framed a charge, during first, for a corruption underneath Section 420, I.P.C. opposite a rider petitioner. Only after hearing of 5 witnesses on a side of prosecution, a assign was altered into one of Section 493, I.P.C. It is clearly apparent that a materials adduced before a Court forming a corruption underneath Section 493, I.P.C. during a hearing of witnesses in Court were not accessible during a time of filing a assign sheet. Therefore, a doubt that arises is as to possibly a postulant could be convicted underneath Section 493, I.P.C., on a basement of a new materials introduced, for a initial time in a Court, that were not accessible during investigation. The answer could be a fatiguing ‘no’. The reason is that a justification for a corruption underneath Section 493, I.P.C. can't be relied upon, given a witnesses have not given these materials during a beginning indicate of time, or during slightest before a assign square was filed. It is bizarre that a schooled hearing Magistrate as good as a reduce appellate Judge have over-looked this aspect and have not deliberate even a emergence of a pronounced authorised position, while convicting a postulant for a corruption underneath Section 493, I.P.C.

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11. Yet another belligerent warranting division of this Court, in a anticipating arrived during by both a Courts next is as follows:- At this stage, nevertheless, it has turn applicable for me to quote Section 493, I.P.C., that relates to cohabitation caused by a male deceitfully inducing a faith of official marriage: –

“Every male who by deception causes any lady who is not rightly married to him to trust that she is rightly married to him and to cohabit or have passionate retort with him in that belief, shall be punished with seizure of possibly outline for a tenure that might extend to 10 years, and shall also be probable to fine”.

As per this section, a assign has to infer 4 ingredients. They are:- (1) that a indicted cohabited with a prosecutrix. (2) That he is not legally married her. (3) That she had consented to a cohabitation, desiring that she had been rightly married to him. (4) That such faith in her was prompted by deception on a partial of a accused. On hearing of a justification accessible on record, we have no perplexity to come to a end that these mixture have not been entirely current by a prosecution.

12. The justification of P.W.1, yet adduced belatedly before a Court, is that after a registration of her complaint, a petitioner/accused took her to Maruthamalai church and married her by exchanging garlands and restraining thali and afterwards afterward they lived together as father and mother for 4 or 5 months. Of march in their evidence, a neighbours have not referred about this matrimony and they merely pronounce about their vital underneath one roof before a above pronounced marriage. So, it is to be seen possibly this square of justification as spelt out by P.W.1, relating to her matrimony with a postulant during Maruthamalai church could be construed to be a element gratifying all a 4 mixture of a corruption underneath Section 493, I.P.C. The third ingredient, viz, that she had consented to a cohabitation, desiring that she had been rightly married to him, is totally, absent. In fact, a justification of P.W.1 is really transparent to a factotum of their current matrimony achieved during Maruthamalai temple. She had definitely settled in her justification adduced on 11.10.1990, before a schooled Judicial Magistrate, Mettupalayam as hereunder:-

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The above square of justification clearly reveals that there is a official matrimony existent in between a postulant and P.W.1 and a cohabitation for 4 or 5 months as referred to by P.W. 1 in his hearing could be usually after this official marriage. Once a matrimony was hold to be current and lawful, a assign for a corruption underneath Section 420 ceases to exist. That was a reason because schooled Assistant Public Prosecutor, seemed before a hearing Court contingency have filed an focus for altering a assign into one underneath Section 493, I.P.C. However, both a Courts next have mislaid steer of an critical aspect with courtesy to a materials as spelt out by P.W.1 relating to a current matrimony and successive cohabitation. From a above aspects, it is really clear, that a assign underneath Section 493, I.P.C. fails. There is no interrogate on a partial of a petitioner, who subsequently became her husband, with courtesy to a factum of marriage. The effect of a matrimony has also not been questioned in any manner. On deliberation all a above materials, there is no problem in holding that there was a current matrimony hold in Maruthamalai church in between a postulant and P.W.1 and thereby a postulant was towering to a standing of father of P.W.1. In perspective of a above conclusion, we can't validate a perspective of both a courts below, for self-assurance of a postulant for a corruption underneath Section 493, I.P.C.

13. In that perspective of a matter, a self-assurance and visualisation imposed a postulant for a corruption underneath Section 493, I.P.C. are set aside and he is clear in honour of a above assign and a excellent amount, if paid, by a postulant is destined to be refunded to him. Accordingly, a rider is allowed. However it is open to P.W.1 Bhagawathiammal, a mother of a postulant to ensue opposite a postulant for upkeep underneath Section 125, Cr.P.C. or to prosecute a postulant underneath Section 494, I.P.C., if so advised.

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