DURGA Vs. VISWANATHAN

JUDGEMENT

(1.) THIS revision is against the order of acquittal of the first respondent/accused by the Judicial Magistrate, Thiruthani, in C.C.No. 33 of 1989 dated 14.3.1991, holding that the prosecution has not made out a case for the offence under Sec. 417, I.P.C. The revision petitioner who was examined as P.W.1 was the complainant before the Magistrate. She alleged that the first respondent/accused brought her to Thiruthani promising to marry her and in a Pillaiyar Temple in the Thiruthani hill, they got married and thali also was tied to her by the accused. Thereafter they were staying in Lodges for four days enjoing the sexual pleasure. It is the allegation of the Revision Petitioner that on 30.12.1988 the first respondent/ accused left her in Thiruthani and returned after several hours. Then, he took her promising for a photo in photostudio, left her therestating that he would come back with money after few minutes that the revision petitioner realising that she was deceived by the first respondent/accused had lodged a complaint on 14.1.1989 with police. The prosecution examined nine witnesses of whom P.W.1 is the complainant, P.W.2 her mother, P.W.3 her brother and P.W.4 her close relative. The learned Judicial Magistrate, Thiruthani having found that no offence has been made out, acquitted the first respondent/accused, under Sec. 258, Crl.P.C.

(2.) THE learned counsel for revision petitioner contended that in this case the learned Magistrate had not given an opportunity to the prosecution to exhaust all the witnesses cited in the charge sheet and even before the examination by the Investigation Officer the case has been disposed of therefore the case has to be remitted back for fresh trial. THE learned counsel further contended that the victim who was examined as P.W.1 has spoken that she was given false promise by the accused for her marriage with him and also to maintain her throughout as his wife, but after the marriage on 26.12.1988 the first respondent/accused had sexual intercourse with P.W.1 for four days when they were staying in the Lodges and as he has quenched his lust, he abandoned her and this conduct shows that the first respondent/accused had no genuine intention of marrying her, but it was only a pretention for taking her to Thiruthani under the guise of marriage for satisfying his lust and therefore this is a case in which the offence under Sec.417 has been established.

(3.) FOR the reason that the accused had abandoned P.W.1 four days after the alleged marriage, at the most the remedy for P.W.1 would be to proceed against the accused under the matrimonial laws for maintenance or for damages for breach of agreement under the common law, if the accused did not keep his promise of maintaining her. But I find that there is no evidence for making out the offence under Sec. 417, I.P.C. because even according to P.W.1 the promise of marriage was kept by the accused, though he had not maintained her after four days. There is nothing to indicate that the accused had the intention of cheating P.W.1 even at the time of the alleged marriage on 26.12.1988 when the prosecution rests upon the evidence of P.W.1 and if the evidence of P.W.1 is not establishing the offence for which the accused has been charged, the examination of the Investigating Officer will not improve the prosecution case in any manner. Therefore, the court below has rightly exercised the jurisdiction under Sec. 258, Crl.P.C. in acquitting the accused and I and no merits to interfere in the order of the lower court. Therefore, the Revision is not sustainable and deserves to be dismissed.