Bombay High Court
Karna Balmukund Joshi vs State Of Maharashtra on 13 March, 2023
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.267 OF 2023
WITH
INTERIM APPLICATION NO.929 OF 2023
WITH
INTERIM APPLICATION NO.928 OF 2023
Karna Balmukund Joshi .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Mr.Murtuza Najmi a/w Mr.Dilip H. Shukla for the
Appellant/Appellant.
Ms.A.A.Takalkar, A.P.P. for the State.
...
CORAM: BHARATI DANGRE, J.
DATED : 13th MARCH, 2023
P.C:-
1. The Appellant/Appellant seeks suspension of sentence
imposed on him, on being convicted for the offence punishable
under Section 493 of IPC and being sentenced to suffer R.I. for
3 years and to pay a fne of Rs.5,000/-, in default to undergo
S.I. for 3 months.
2. The learned Additional Sessions Judge, Thane, tried the
Appellant for the offences punishable under Sections 376(2)
(n), 417, 493, 354-A(i), (ii), (iii), (iv) of IPC.
M.M.Salgaonkar
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On culmination of trial, on 13/02/2023, the Appellant
stood acquitted of the offences with which he was charged,
barring Section 493 of IPC.
3. Chapter XX deals with the offences relating to marriage.
Section 493 punishes an act of a 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. On such an act being
committed, Section 493 attracts and the act is punishable with
imprisonment of either description for a term which may
extend to ten years and shall also be liable to fne.
4. My attention is invited by the learned counsel to the
fnding rendered by the Sessions Court on the accusations
under Section 376(2)(n), where a specifc fnding is returned
that the Appellant intended to marry the prosecutrix, but just
because the relationship ended on hostile terms, it could not be
concluded that the Appellant had no intent to marry the
prosecutrix. Apart from this, based on the evidence place
before the Court, the learned Judge has clearly recorded that
the consent accorded by the prosecutrix for establishment of a
physical relationship was not predicated upon misconception
or fear and this is the specifc reason why the learned Judge
acquitted the Appellant for the offences punishable under
Sections 376(2)(n) and 354-A(i),(ii), (iii), (iv) of IPC.
In another breathe, based on the same evidence which
was placed, the learned Judge has, however, recorded a fnding
M.M.Salgaonkar
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that Section 493 is attracted and the fnding is further
strengthened by an observation that the ingredients of said
Section are clearly made out. The factual scenario brought on
record through the evidence was accepted to draw a
conclusion that after putting sindoor in her head and on
promising that he would marry, the Appellant started residing
in the house of the prosecutrix as husband and wife, though no
legal marriage was performed between them.
The aforesaid circumstances have been held to be
suffcient to establish the offence under Section 493 of IPC.
5. The learned counsel for the Appellant would vehemently
submit that the prosecutrix was already married to one
person, but since the dispute arose between them, since the
year 2009, she left his house and in the year 2010, fled a
divorce petition, which was allowed in the year 2013. The
question, therefore, raised for consideration in the Appeal is,
whether by any deceitful means, did the Appellant made the
prosecutrix to believe that she is lawfully married to him,
particularly when the prosecutrix is major and have been
lawfully married in the year 2005 and obtained divorce in the
year 2013 and having a grown up son. Since this aspect
deserve consideration and sentence imposed upon the
Appellant is R.I. of 3 years, I deem it appropriate to suspend
the said sentence, pending the consideration of the Appeal.
Hence, the following order.
M.M.Salgaonkar
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: ORDER :
1. Interim Application Nos.929 and 928 of 2023 are
allowed.
2. The sentence imposed upon the Appellant by the
impugned Judgment and Order dated 13/02/2023 is hereby
suspended.
3. The Appellant is released on bail and shall abide by the
terms and conditions, upon which he was released on bail by
the trial Court, subject to fresh PR Bond being executed within
a period of four weeks from today.
( SMT. BHARATI DANGRE, J.)
M.M.Salgaonkar
