PINKI @ RASMITA KUNDU @ PAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners assail the order dated 12.1.2004 passed by the J.M.F.C. Nimapara in G.R. Case No.823 of 2003 taking cognizance of the offence under Sections 379/376/109 of I.P.C. against petitioner No.1 and under Sections 417/493/366/376/379 of I.P.C. against petitioner No.2.

(2.) AS per the prosecution case, on 16.8.2002 at 9.30 A.M. as usual while Saraswati Sahu, a student of Class -X of Damodar High School, Konark was going to attend the class, on the way petitioner No.2 threatened her with a sharp knife and asked her to follow him and accordingly out of fear she followed him. In the meantime one Tapu joined petitioner No.2 and both of them took Saraswati to a Chhak where all the three boarded a bus enroute Bhubaneswar. Tapu left petitioner No.2 and Saraswati in a house somewhere near Vani Vihar and returned back to his village at Konark. When asked by Saraswati about the reason of bringing her under threat, petitioner No.2 replied that he would marry her and so saying when attempted to cohabit with her, she refused to it, but still then he forcibly had sexual intercourse with her. He kept her at Bhubaneswar for ten days, and then took her to Khurda where they stayed for one month. From khurda he took the victim to Cuttack and kept her in a rented house near Badambadi. It is the further case of the prosecution that during their stay at Badambadi, petitioner No.1, the sister of petitioner No.2 used to come to the rented house regularly. On 31.10.2002 during evening hour both the petitioners suggested the victim to go for an outing to Kathajori but since she was suffering from fever, the victim refused their suggestion. Despite her protest the petitioners forcibly took her in a car and left her near Kathajori river in a senseless condition. On regaining senses she found that all the gold ornaments which she had put on, had been stolen away. One Bailasini rescued the victim, took her to her house and got her treated in a hospital. After being cured, on 29.11.2002 at 2.30 - P.M. the victim talked with her father over telephone whereafter her father and some of his relatives came to Cuttack and took her to her house.

(3.) WITH regard to the offence under Section 493 I.P.C. learned counsel for the petitioners submitted that the said offence cannot be attracted against petitioner No.2 since the ingredients of that Section cannot be fulfilled even if the prosecution case as it is believed to be true. The essential ingredients of the offence under Section 493 of I.P.C. are as follows : - (i) the accused practised deception on a woman; (ii) the intention of the accused to practise deceit was to induce a woman to believe that she was lawfully married to the accused; (iii) there was cohabitation or sexual intercourse as a result of the deception. In the present case as it is found from statements under Section 161 Cr.P.C. that at first the alleged victim refused petitioner No.2 to cohabit with her, but when he promised to marry her then only she consented for the cohabitation. This clearly shows that the alleged victim was never made to believe that she was married to the accused. So the order of taking cognizance under Section 493 of I.P.C. against petitioners No.2 deserves to be quashed.