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 revision is directed against the judgment dated, 7.9.1993 in C.A. No. 102 of 1991, on the file of the First Additional Sessions Judge, Coimbatore. Originally, the petitioner Murugaswamy was convicted for the offence under Section 493, I.P.C., and sentenced to undergo R.I. for two years and to pay a fine of Rs. 1,000 in default to undergo R.I. for one month, by the learned Judicial Magistrate, Mettupalayam in C.C. No. 624 of 1989, dated 8.7.1991. Against this judgment, the above said criminal appeal had been preferred by the petitioner herein, in which the learned lower appellate Court while dismissing the appeal, confirmed the conviction and sentence imposed upon the petitioner by the trial Court.
2. The facts leading to the judgment of conviction are as follows:-
P.W.1 Bhagawathiammal is a resident of Mudalipalayam. When she was staying at Melkathavukarai village, she had developed intimacy with the petitioner, who was the neighbour. Since the petitioner assured P.W. 1 that he would marry her, P.W.1 allowed him to have inter-course with her and at Melkathavukarai village they were living as husband and wife under one roof for one year. After shifting her residence to Mudalipalayam village, there also they lived together for about three years. But suddenly, the petitioner stopped coming to her house on the instigation of his parents. At that time she was pregnant of three months. Finding no other alternative, P.W.1 gave complaint Ex.P1 to Annoor police station on 7.7.1987, which was registered in Cr. No. 172 of 1987 by P.W.7 Nandakumar, Sub-Inspector of Police, under Section 420, I.P.C. The petitioner was arrested and released on bail subsequently.
3. After coming out on bail, the petitioner took P.W.1 to Maruthamalai temple and married her by exchanging garlands and tying of thali. After the said marriage, they were living together for four or five months. Suddenly, the petitioner again stopped coming to the house of P.W.1. In the mean time, a child was born to her. Subsequently, she came to know that the petitioner married another woman.
4. P.W.7, Sub-Inspector of Police during the course of investigation in this case, examined P.W.2 Marathal, P.W.3 Perumal Gounder, P.W.4 Ponnammal and P.W.5 Ramaswamy, the neighbour to speak about the fact that the petitioner and P.W.1 were living together as husband and wife under one roof and that P.W.1 consented to live with the petitioner, without any valid marriage since she was assured by him that he would marry her, in the near, future. After registration of the above complaint, P.W.6 Doctor Nirmala, examined P.W.1, at the request of police and issued Ex.P2 certificate to the effect that she was pregnant of 22 weeks. After completion of investigation, on 5.12.1987 P.W.7 Sub-Inspector of Police filed the charge sheet against the petitioner under Section 420 I.P.C. However, P.W.7 has not conducted any investigation with reference to the marriage held between the petitioner and P.W.1 at Maruthamalai temple after the case was registered. On the basis of the F.I.R. and the statements in support of the accusation in the F.I.R., the charge sheet was filed for the offence under Section 420, I.P.C.
5. The learned Judicial Magistrate, who took the case on file under Section 420, I.P.C., in C.C. No. 624 of 1989, after furnishing copies to the petitioner under Section 207, Cr.P.C., as well framed the charge under Section 420, I.P.C., alleging that he cheated the complainant P.W.1 by making a false assurance of marriage, to have inter-course with her and made her pregnant. He denied the said charge and claimed to be tried. P.Ws. 1 to 5 were examined by the trial Court. During the course of examination of P.W. 1, since she stated that subsequent to the registration of her complaint, marriage between the petitioner and P.W.1 had taken place at Maruthamalai by exchanging garlands and tying of thali, the Assistant Public Prosecutor, who appeared before the trial Court, filed a petition under Section 216, Cr.P.C., requesting the Court to alter the charge into one of Section 493, I.P.C., on the basis of available evidence. On that aspect the parties were heard. Thereafter, the charge in the present case was altered into one of Section 493, I.P.C.
6. Fresh charge was again framed, and read over to the petitioner, to which he said that he was innocent. Subsequently, two more witnesses were examined, viz. P.W.6 Doctor and P.W.7 Sub-Inspector of Police.
7. After the examination of witnesses, the petitioner was questioned under Section 313, Cr.P.C., He denied the incriminating circumstances appearing against him. No defence witness was examined.
8. After termination of the trial, the learned Judicial Magistrate, on appreciation of the oral and documentary evidence found the petitioner guilty for the offence under Section 493, I.P.C. and sentenced him as referred above. Aggrieved over this, the petitioner filed an appeal in C.A. No. 102 of 1991 on the file of First Additional Sessions Judge, Coimbatore, which was dismissed on 7.9.1993, confirming the conviction and sentence. Hence this revision.
9. Heard learned counsel appearing on either side.
10. The above revision has to be allowed on the following simple ground. The First Information Report was registered by P.W.7 Sub-Inspector of Police, under Section 420, I.P.C. Charge sheet was also filed under the same Section, on the basis of materials constituting the offence of cheating collected during the course of investigation. The learned trial Magistrate also framed the charge, at first, for the offence under Section 420, I.P.C. against the revision petitioner. Only after examination of five witnesses on the side of prosecution, the charge was altered into one of Section 493, I.P.C. It is clearly apparent that the materials adduced before the Court constituting the offence under Section 493, I.P.C. during the examination of witnesses in Court were not available at the time of filing the charge sheet. Therefore, the question that arises is as to whether the petitioner could be convicted under Section 493, I.P.C., on the basis of the new materials introduced, for the first time in the Court, which were not available during investigation. The answer could be the emphatic ‘no’. The reason is that the evidence for the offence under Section 493, I.P.C. cannot be relied upon, since the witnesses have not given these materials at the earliest point of time, or at least before the charge sheet was filed. It is strange that the learned trial Magistrate as well as the lower appellate Judge have over-looked this aspect and have not considered even the semblance of the said legal position, while convicting the petitioner for the offence under Section 493, I.P.C.
11. Yet another ground warranting interference of this Court, in the finding arrived at by both the Courts below is as follows:- At this stage, nevertheless, it has become relevant for me to quote Section 493, I.P.C., which relates to 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”.
As per this section, the prosecution has to prove four ingredients. They are:- (1) that the accused cohabited with the prosecutrix. (2) That he is not legally married her. (3) That she had consented to the cohabitation, believing that she had been lawfully married to him. (4) That such belief in her was induced by deceit on the part of the accused. On perusal of the evidence available on record, I have no hesitation to come to the conclusion that these ingredients have not been fully proved by the prosecution.
12. The evidence of P.W.1, though adduced belatedly before the Court, is that after the registration of her complaint, the petitioner/accused took her to Maruthamalai temple and married her by exchanging garlands and tying thali and then thereafter they lived together as husband and wife for four or five months. Of course in their evidence, the neighbours have not referred about this marriage and they merely speak about their living under one roof before the above said marriage. So, it is to be seen whether this piece of evidence as spelt out by P.W.1, relating to her marriage with the petitioner at Maruthamalai temple could be construed to be the material satisfying all the four ingredients of the offence under Section 493, I.P.C. The third ingredient, viz, that she had consented to the cohabitation, believing that she had been lawfully married to him, is totally, absent. In fact, the evidence of P.W.1 is very clear to the factotum of their valid marriage performed at Maruthamalai temple. She had categorically stated in her evidence adduced on 11.10.1990, before the learned Judicial Magistrate, Mettupalayam as hereunder:-
The above piece of evidence clearly reveals that there is a lawful marriage existing in between the petitioner and P.W.1 and the cohabitation for four or five months as referred to by P.W. 1 in his examination could be only after this lawful marriage. Once the marriage was held to be valid and lawful, the charge for the offence under Section 420 ceases to exist. That was the reason why learned Assistant Public Prosecutor, appeared before the trial Court must have filed an application for altering the charge into one under Section 493, I.P.C. However, both the Courts below have lost sight of an important aspect with regard to the materials as spelt out by P.W.1 relating to the valid marriage and subsequent cohabitation. From the above aspects, it is very clear, that the charge under Section 493, I.P.C. fails. There is no cross-examination on the part of the petitioner, who subsequently became her husband, with regard to the factum of marriage. The validity of the marriage has also not been questioned in any manner. On considering all the above materials, there is no difficulty in holding that there was a valid marriage held in Maruthamalai temple in between the petitioner and P.W.1 and thereby the petitioner was elevated to the status of husband of P.W.1. In view of the above conclusion, I cannot endorse the view of both the courts below, for conviction of the petitioner for the offence under Section 493, I.P.C.
13. In that view of the matter, the conviction and sentence imposed the petitioner for the offence under Section 493, I.P.C. are set aside and he is acquitted in respect of the above charge and the fine amount, if paid, by the petitioner is directed to be refunded to him. Accordingly, the revision is allowed. However it is open to P.W.1 Bhagawathiammal, the wife of the petitioner to proceed against the petitioner for maintenance under Section 125, Cr.P.C. or to prosecute the petitioner under Section 494, I.P.C., if so advised.