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Judgment
Sri Rakesh Kumar Tripathi, the learned counsel for the appellant, has prayed for adjournment of the case without assigning any reason. The appeal is pending since the year 2012. It was admitted on 06.06.2012, on which date, the appellant was enlarged on bail. As the appeal is more than 14 years old, the request for adjournment of hearing made by the learned counsel for the appellant, and that too, without assigning any reason, is turned down and I proceed to pass an appropriate order after perusing the record with the assistance of Smt. Shikha Sinha, the learned A.G.A.
By means of the instant appeal, the appellant has challenged the validity of a judgment and order dated 15.05.2012 passed by Sri Mahendra Prasad Chaudhary, the learned Additional Sessions Judge, Court No. 6, Hardoi, in Sessions Trial No. 756 of 2010 under Section 376 IPC, P.S. Tadiyawan, District Hardoi, whereby the appellant has been convicted for the offence under Section 497 IPC, although he has been acquitted for the offence under Section 376 IPC. The appellant has been sentenced to undergo simple imprisonment for 3 years and to pay Rs.2,000/- fine for the said offence.
The aforesaid case was instituted on the basis of a complaint under Section 376 and 452 IPC, alleging that while the complainant was sleeping beneath a thatched roof with her daughter in the night of 27.08.2008 and her husband and father were sleeping at some distance, the appellant came to her cot at about 1:00 am and committed the misdeed against her while the complainant remained under a misapprehension that her husband was doing the act with her. When the complainant asked him to light a lamp and he did not get up to light the lamp, she got suspicious, she caught hold of the appellant and raised a hue and cry, whereupon her father, husband, and several neighbours came there, but the appellant escaped, leaving behind his slipper and angaochha (a stole).
The complainant was examined as PW-1. She reiterated the allegations mentioned in her complaint and stated that the appellant had made sexual intercourse with her during the night of the incident. During cross-examination, PW-1 stated that the appellant is a married man, he was a friend of her husband and she knew him since before. She stated that there was no room in her house. A thatched roof was kept on a wall, she was sleeping with her daughter towards one side of the wall and her husband and father were sleeping on the other side of the wall. She had drawn curtains by putting up a saree. The appellant came and lied down behind her on the cot. She was in deep sleep and she could not know and he committed the misdeed. She asked him to light a lamp, without changing the side on which she was lying. When he did not light the lamp, she got suspicious whereas earlier she felt that her husband was lovingly making the intercourse with her. She got up, shouted and caught hold of the appellant, but still she could not see his face, as it was dark. Although she was catching the appellant and was shouting for about two minutes, her father and husband did not come there. She described the acts committed by the accused in vivid details and said that she had enjoyed it, but she stated that she could not identify the person due to darkness even after the incident.
One Raj Kumar, a neighbour of the complainant, was examined as PW-2. He stated that he had reached upon hearing the voice of the complainant and he had seen the complainant catching hold of the appellant and when he exhorted, the appellant ran away and the complainant told that the appellant had committed the misdeed against her. During cross-examination, PW-2 stated that he had seen the complainant, her husband Pintu and her father Mangali had pushed the appellant down on the ground, they were strangulating him and beating him with kicks and fists. 50-60 villagers had gathered there.
No other prosecution witness was examined.
In the statement recorded under Section 313 Cr.P.C., the appellant denied the allegations.
The Trial Court held that the complainant had stated that her five year old daughter was sleeping with her, she could have woken up and gathered people in case any noise was raised. The complainant's father and husband were sleeping nearby. These circumstances led the trial court to believe that the appellant had entered the complainant's house with her consent. The Trial Court further held that the complainant did not resist the appellant till completion of the intercourse, which also indicates that the act was committed with her willingness and consent. The trial Court held that the complainant's statement that she misunderstood the appellant to be her husband, cannot be believed, as husband and wife, living together for a considerable period of time, can identify each other by mere touch, gestures or activities and it cannot be believed that a stranger makes sexual intercourse with a married woman without she knowing whether the act was being committed by her husband or any other person. The aforesaid findings of the Trial Court have neither been assailed by the complainant nor the State and, therefore, have attained finality.
The trial Court held that the complainant described the acts committed by the appellant in vivid details in her testimony and she stated that she was enjoying his acts, which establishes that she was not sleeping and yet she did not object to the acts being committed by the appellant. On the basis of these facts, the trial court held that the offence under Section 376 IPC was not made out. However, as the complainant was a married woman, the trial court held the appellant guilty of committing the offence of adultery under Section 497 IPC and accordingly, convicted him for the aforesaid offence and sentenced him to undergo simple imprisonment for 3 years and to pay Rs. 2,000/- as fine.
In Joseph Shine v. Union of India: (2019) 3 SCC 39, a Constitution Bench consisting of five Hon'ble Judges of the Hon'ble Supreme Court has struck down Section 497 IPC, being violative of Articles 14, 15 and 21 of the Constitution.
Now the question that would arise is that the offence in question was committed on 27.08.2008 and the appellant had been convicted and sentenced on 15.05.2012 whereas Section 497 IPC was declared unconstitutional on 27.09.2018, so whether the subsequent declaration of Section 497 IPC as unconstitutional would affect the validity of the order of conviction and sentence. In this regard, it is to be noted that in A.S. Gauraya v. S.N. Thakur: (1986) 2 SCC 709, the Hon'ble Supreme Court held that there is nothing like any prospective operation alone of the law laid down by the Supreme Court and the law laid down by the Supreme Court applies to all pending proceedings.
An appeal filed against an order of conviction and sentence would also fall within the term 'pending proceedings' and, therefore, the law declared by the Hon'ble Supreme Court during pendency of the criminal appeal will apply to the appeal.
There is one more aspect of the matter which vitiates the conviction of the appellant for the offence under Section 497 IPC. Sub-sections (1) and (2) of Section 198 Cr.P.C. provide as follows: -
“198.Prosecution for offences against marriage. -1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that -
(a)where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b)where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
(c)where the person aggrieved by an offence punishable under 126[Section 494 or Section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister 127[, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
(2)For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
While declaring Section 497 IPC to be unconstitutional, in Joseph Shine (supra) the Hon'ble Supreme Court has declared that Section 198(2) CrPC which contains the procedure for prosecution under Chapter XX IPC shall be unconstitutional only to the extent that it is applicable to the offence of adultery under Section 497. Even when Section 497 IPC was unconstitutional, its prosecution could be instituted only on a complaint made by the husband of the woman, which has not been done in the present case.
In the complainant, it was stated that the complainant had caught hold of the appellant and she raised a hue and cry, whereupon her father, husband, and several neighbours came there. However, during her testimony she stated that when she got up after the appellant had committed the misdeed, she shouted and caught hold of the appellant, but still she could not see his face, as it was dark, and although she was catching the appellant and was shouting for about two minutes, her father and husband, who were sleeping on the other side of the wall on which a thatched roof was kept, did not come there. Her father and husband have not been examined as witnesses in the case.
Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, public and private business in relation to the facts of the peculiar case. Illustration (g) appended to Section 114 provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to a person who withholds it.
In Davinder Singh v. State of Punjab: (2023) 19 SCC 229, the Hon’ble Supreme Court referred to an earlier precedent on this point in the following passage: -
“9.On the issue of non-examination of material witness, we wish to place reliance on the decision of this Court in Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145:
19.So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.”
Non-examination of the complainant's husband and father gives rise to a presumption that had they been produced as witnesses and put to cross examination, their testimony would have been unfavourable to the prosecution case.
In view of the foregoing discussion, I am of the considered view that the prosecution had miserably failed to prove the charge under Section 497 IPC against the appellant. The impugned judgment and order of conviction and sentence, is unsustainable in law.
Accordingly, the appeal is allowed. The impugned judgment and order dated 15.05.2012 passed by Sri Mahendra Prasad Chaudhary, the learned Additional Sessions Judge, Court No. 6, Hardoi, in Sessions Trial No. 756 of 2010 under Section 376 IPC, P.S. Tadiyawan, District Hardoi, whereby the appellant has been convicted and sentenced for the offence under Section 497 IPC, is hereby set aside. The appellant is acquitted of the charge under Section 497 IPC.
The appellant shall be released from custody forthwith, upon his executing a personal bond under the provision of Section 437-A Cr.P.C., containing an undertaking to appear before the Hon'ble Supreme Court in case any appeal is filed against this order and the Hon'ble Supreme Court issues notice of the appeal. The bond shall remain in force for a period of six months.