Sewak Ram vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal is directed against the judgment and order dated 24.2.1994 passed by Additional Sessions Judge, Durg in Sessions Trial No. 135/1990 convicting the accused/Appellant for the offences punishable under Sections 366 and 376(A) Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years with fine of Rs. 300 u/s 366 and rigorous imprisonment for two years with fine of Rs. 400 u/s 376(A) Indian Penal Code plus default stipulations.

Facts of the case in brief are that on 9.12.1989 at about 9 p.m. FIR Ex. P4 was lodged by Panchram (PW5) alleging that on that day at about 5.30 p.m. when he was returning along with the prosecutrix (PW4) and his son on bicycle and when reached near the Gunargoad locality, accused/Appellant who was already standing there, stopped him and took away the prosecutrix and his son with him by making them sit on his bicycle. It is alleged that the accused/Appellant is the first husband of the prosecutrix but in observance of the local custom known as "Choodi Pratha" the prosecutrix remarried the complainant (PW5) and parted with the company of the accused/Appellant. It is alleged that the complainant Panchram was under obligation to pay certain amount as compensation to the accused/Appellant in lieu of marrying the prosecutrix and as the said amount was not given to him, he took away the prosecutrix with him. Based on this FIR, offences under Sections 341, 342 and 366 Indian Penal Code were registered against him. After completion of investigation, challan was filed by the police for the offences under Sections 366, 376, 341 and 342 Indian Penal Code. However, the Court below framed the charge only under Sections 366 and 376 Indian Penal Code.

So as to hold the accused/Appellant guilty, prosecution has examined 7 witnesses in support of its case. Statement of the accused/Appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Phool Singh (DW1) has also been examined by the defence in support of its case.

After hearing the parties, the trial Court has convicted and sentenced the accused/Appellant as mentioned above in paragraph No. 1 of this judgment.

Counsel for the accused/Appellant submits that even if the entire case of the prosecution is taken as it is, the offences under Sections 366 and 376(A) Indian Penal Code are not made out against the accused/Appellant because the ingredients of the said sections are not attracted thereto. He submits that the prosecutrix went in the company of the accused/Appellant of her own and had spent the night with him and that there is no evidence whatsoever to show that the accused/ Appellant had exerted any force against her during this period.

On the other hand counsel for the Respondent/State supports the judgment impugned and submits that it was within the knowledge of the Appellant that the prosecutrix was at the relevant time no more his wife but even then he forcibly took her away and committed sexual intercourse with her and in these circumstances the ingredients of Sections 366 and 376(A) Indian Penal Code are very much attracted to the case in hand.

Prosecutrix (PW4) has stated in her evidence that in the childhood her marriage was solemnized with the accused/Appellant and that after gavna ceremony she had stayed in his house for 2-4 days and thereafter he had driven her out of his house on the pretext that she was not of his liking. According to this witness after staying in the house of her parents for about 5 years she married the complainant as per the local custom known as "Choodi Pratha" and had been living with him for about 3 years thereto and during this period a male child was born to her. According to this witness, on the date of incident when she was going to village Dhokla along with the complainant and her son, accused met them near village Gunargod Taria, stopped them and took her to the house of one Mohar Das at village Atargadhi by holding her hand where in the night he committed sexual intercourse with her twice. On the next day the police came there and took her to the police station from where she was sent for medical examination. In cross-examination she has stated that after marriage with the accused/Appellant she had lived with him as his wife but thereafter he had left her and kept some other woman with him. She has admitted that before her marriage with the complainant the ritual known as Bihati had not ceased to exist and according to the customary ritual prevailing in the community at the time of Choodi marriage, some monetary compensation is required to be paid which in this case was not paid to the accused/Appellant at the time of her second marriage with the complainant. She has further stated that first the accused/Appellant took her to his sister''s house. According to her, the accused/Appellant had taken her by holding her hand and at that time she had a child in her lap. She is said to have been taken by the accused/Appellant to his brother-in-law''s house at Atargarhi where both of them had slept together in the night.

Complainant Panchram (PW5) has stated in his evidence that about seven years prior to the date of incident, he had performed Choodi marriage with the prosecutrix and for about two-three years she lived with him. He has stated that on the date of incident when he was taking his wife and the child to his house on bicycle, accused/Appellant met him near Gunargod pond, stopped him and took his wife (the prosecutrix) by holding her hand and then the report was lodged. He has stated that the prosecutrix had informed him that in the night the accused/Appellant had committed rape on her. According to him, as per the custom prevailing in the society, if someone married with an already married woman, he had to give something as monetary compensation locally known as Bihati and only thereafter the matrimonial relations with the first husband cease to exist. He has further stated that while taking away the prosecutrix with him, the accused/Appellant had told him that as he had not given Bihati, he was taking the prosecutrix with him. Sukhchand Ram (PW-1) and Derha (PW-2) are the witnesses who had accompanied the complainant and the prosecutrix while she was being taken by the accused/Appellant. Both of them have categorically stated that when the accused/Appellant was taking the prosecutrix with him, they had not said anything. Sukhchand Ram (PW1) has further stated that even the complainant had not objected to the act of the accused/Appellant in taking away the prosecutrix with him. He has however admitted that Bihati was not given to the accused/Appellant. Mohar Das (PW3) from whose house the prosecutrix was recovered has stated in his evidence that matrimonial relations between the accused/Appellant and the prosecutrix had not ceased to exist and that no complaint whatsoever was made by the prosecutrix to him that the accused/Appellant had forcibly brought her. Kekaram Namdeo (PW6) the maternal uncle of the prosecutrix is a witness to recovery Panchnama Ex. P1, seizure of articles made under Ex. P7 and the spot map Ex. P3. Bir Bahadur Singh (PW 7) is the head constable who had done part of the investigation. Defence witness Phool Singh has stated that marriage of the prosecutrix was solemnized with the accused/ Appellant and thereafter she started living with her parents and after the decision of the Panchayat the second marriage can be performed but in such cases some compensation has to be given to the first husband and till such a compensation is not paid, it is the first husband who has the full control over his wife. In cross examination he has stated that in the present case no compensation was given to the accused/Appellant and therefore his marriage with the prosecutrix had not come to an end. For the sake of convenience, Section 366 Indian Penal Code is reproduced as under:

Kidnapping, abducting or inducing woman to compel her marriage, etc. -- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to many any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment to either description for a term which may extend to ten years, and shall also be liable to fine.

In this case the prosecution has not collected any material to show that the accused/Appellant had taken the prosecutrix with intent to marry or forced or seduced to illicit intercourse against her will. Rather the evidence has come that the accused/Appellant was the first husband of the prosecutrix and as the monetary compensation locally known as Bihati meant for second marriage was not given by the complainant to the accused/Appellant, the first marriage with him had not ceased to exist and this way the prosecutrix was very much the wife of the accused/Appellant. Thus in these circumstances the offence u/s 366 Indian Penal Code is not made out against the accused/Appellant.

As regards the offence u/s 376(A) Indian Penal Code, this Court would like to see as to what the ingredients of this Section are. For ready reference the same reads as under:

376A --Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Thus the basic ingredients contained in this section are:

(i) That the accused had sexual intercourse with his own wife when she was living separately under a decree of judicial separation or under any custom or usage;

(ii) that such intercourse was solicited without her consent.

In the case in hand though evidence is there to show that the accused/Appellant had sexual intercourse with the prosecutrix, there is nothing on record to show that at the relevant time she was living separately from the accused/Appellant under a decree of judicial separation or under any custom or usage. On the contrary, the evidence collected by the prosecution goes to show that though the prosecutrix had entered into the second marriage with the complainant, her first marriage with the accused/Appellant was very much in existence because the monetary compensation known as Bihati required to be paid to the first husband as per the local customary rituals was not paid to the accused/Appellant. Evidence on record further goes to show that unless and until said monetary compensation known as Bihati is paid to the first husband, he continues to have the full control over his wife and the women concerned very much remains to be the wife of none else but the first husband itself Even otherwise, the prosecution has not collected any evidence to show that the accused/Appellant had sexual intercourse with the prosecutrix without her consent because in her entire evidence she has not at all stated that while being subjected to sexual intercourse by the accused/Appellant she had raised any kind of protest to the same. The prosecutrix herself has stated that she spent the entire night with the accused/Appellant in the house of Mohar Das (PW3) and had sex with him twice. There is not even a whisper that she had offered any resistance to the sexual intercourse with her by the accused/Appellant. Thus in this view of the matter the ingredients of Section 376A Indian Penal Code are not attracted to the case in hand and that being so the conviction under the said section slapped by the Court below is wholly unjustified and does not deserve to be sustained.

In view of the aforesaid factual discussion in the light of the evidence available on record, this Court is of the considered opinion that the Court below has not taken into account the evidence available on record in its true spirit while convicting the accused/Appellant under Sections 366 and 376(A) Indian Penal Code by the judgment impugned. Accordingly, the appeal succeeds. Impugned judgment is hereby set aside. Appellant is acquitted on the charges levelled against him. He is on bail. His bail bonds stand discharged.