AKKIRAYU SANYASI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner, was convicted by the Stationary Sub-Magistrate of Anakapalle of an offence under Section 498, Penal Code, and sentenced to rigorous imprisonment for three months. The conviction was upheld in appeal by the Sub-Divisional Magistrate of Vizagapatam, who reduced the sentence to a fine of Rs. 200 out of which a sum of Rs. 100 was ordered to be paid to the complainant as compensation.

(2.) Mr. Venkatesam appearing for the petitioner has raised two points in support of his application, The first of them is that from the evidence it can be discerned that the wife of the complainant who, it is alleged, had been taken away or enticed by the petitioner, had already been discarded by the complainant sometime ago, and therefore if she had gone and lived with the petitioner as his wife either as a result of inducement or request made by the petitioner or of her own free will and volition which were aided by the petitioner, it cannot be said that an offence under Section 498 has been committed. In support of this contention reference wag made to the evidence of P. W. 6 who in crossexamination says that the complainant abandoned his wife and went away to another village for two years. From this statement it is sought to be argued that at the time of the alleged enticement or taking away the woman was not under the protection of the complainant at all and that therefore the element necessary to constitute an offence under Section 498 is absent. From the evidence of P. Ws. 1, 2 and 3 and others it is clear that the alleged enticement or taking away took place only three months before the complaint, but according to the evidence of P. W. 6, the abandonment and going away were two years ago. P. Ws. 1 to 3 as well as other witnesses including P. Ws. 8 and 9 say that at the time the petitioner and the woman went from their villages the woman was under the protection of the husband. There is some evidence also that she was living with her father. This portion of the evidence has been accepted by the lower Court, and I can find no justification for holding that at the time the woman left her village she was not under the protection of the complainant. It seems to me that the finding of fact on this aspect of the case have to be accepted, especially since nothing can be said against the evidence of those witnesses. I therefore find it difficult to accept the contention raised by the learned counsel that the woman had been abandoned by the complainant.

(3.) The other question which has been rather elaborately argued at the Bar is whether the elements constituting an offence under Section 498 can be held to be present in the present case. It is conceded however by the Public Prosecutor and by the learned counsel appearing for the complainant that from the evidence it cannot be said that there was any case of enticement in the strict sense of the term. The word "enticement" necessarily connotes that some kind of persuasion or allurement was held out by the person who imposed either his will or power upon a woman. There is no evidence whatever that the petitioner was seen offering any inducement; nor is it suggested that the petitioner placed before the woman any false impressions of his status or what he would do to benefit her. In these circumstances, if the matter had stood then it wold be very difficult to confirm the conviction of the petitioner.