Tuesday, 22 November 2016

Whether complaint for adultery can be made jointly by husband and wife?

 Bare reading of Section 497 IPC suggest that
complaint, if any, for punishing the person for having sexual
intercourse with the wife of another man knowingly well that
she is the wife of another man, can only be filed by the
husband and definitely not by woman with whom accused
person had sexual intercourse without the consent or
connivance of husband of that lady.
20. In the present case, admittedly wife of complainant
Bal Krishan is complainant alongwith his husband as she has
also signed that complaint filed before the learned SubDivisional
Judicial Magistrate, Karsog. It is undisputed that
complainants in their complaint had initially prayed for
punishing the accused under Section 497 , 366, 376 of IPC but
as has been observed above, perusal of the complaint,
nowhere suggest that offence under sections 366,376 of IPC is


made out against the accused, rather averments contained in
the complaint suggest that accused despite knowing that Prem
Dassi is legally wedded wife of the complainant Bal Krishan had
developed illicit relation with her and committed sexual
intercourse on several occasions. It is the own case of the
complainant as well as prosecution that taking advantage of
loneliness, accused had enticed and allured her by giving false
promise to marry her and committed sexual intercourse. It is
specifically averred in the plaint that accused promised wife of
the complainant to marry and then indulged in sexual
intercourse meaning thereby wife of the complainant was
consenting party to the sexual intercourse, if any, committed
by the accused. But at this juncture, Court perused the
averments contained in the complaint solely with a view to
ascertain whether the complaint filed and signed by both
husband and wife alleging therein adultery, which punishable
under section 497 IPC, is maintainable or not. After perusing
provision as contained under Section 497 IPC as well as
averments contained in the complaint, this Court has no
hesitation to conclude that once police had concluded that no
prima-facie case exist against the accused under Sections 366
and 376 IPC, complaint, if any, filed by the complainant and his
wife could only be construed to be filed under section 497 of
IPC against the accused. But in the present case, where


admittedly wife of the complainant signed the complaint along
with husband praying therein for punishing the accused under
section 497 IPC, consequently very character of the complaint
has changed and same is not maintainable under Section 497
IPC.
21. After perusing the provision contained in
section 497 IPC, this Court has no hesitation to conclude that
by signing complaint alongwith husband, wherein specific
prayer was made to punish the accused under section 497 IPC,
entire proceedings conducted on the basis of the aforesaid
complaint stands vitiated. Once wife of the complainant joined
her husband in filing the complaint under section 497 IPC, very
character of the complaint gets changed and same cannot be
considered to be filed under section 497 IPC, in any manner.
Section 497 of IPC only authorize husband to file complaint
against the person, who commits sexual intercourse with his
wife against his wishes. But in the present case wife of the
complainant husband joined him in filing complaint and alleges
that accused had developed illicit relation and thereafter
committed sexual intercourse against her wishes by
threatening that in the event of any disclosure made by her, he
would kill her children. Accordingly, this Court after perusing
the complaint Ex.PW1/A as well as statements recorded during
the trial, is of the definite view that complaint, if any, made


against the accused for having committed offence under
section 497 of IPC, signed by husband and wife both is not
maintainable and petitioner-accused could not be proceeded in
any court of law on the basis of complaint Ex.PW1/A.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
 Criminal Revision No.59 of 2007

 Date of Decision: 1st July, 2016
Dharam Dass 
V

State of Himachal Pradesh 
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation: 2016 CRLJ4113

Present Criminal Revision Petition filed under
Section 397/ 401 of the Code of Criminal Procedure, is directed
against the judgment dated 13.4.2007, passed by learned
Additional Judge, Mandi, H.P(Camp at Karsog) in Criminal
Appeal No.27 of 2003, affirming the judgment dated 5.7.2003,
passed by learned Sub Divisional Judicial Magistrate, Karsog
in Police Challan No.8-II of 2003, whereby present petitioneraccused
has been held guilty for having committed an offence
punishable under Section 497 of IPC.
2. Briefly stated facts of the case as emerge from the
record are that on 31.8.2002, complainant Bal krishan as well
as Smt. Prem Dassi filed a complaint in the Court of learned



Sub Divisional Judicial Magistrate, Karsog, District Mandi, HP
(hereinafter referred to as “Trial Court’) alleging therein that
accused taking benefit of loneliness of complainant Prem Dassi
had enticed and allured her by stating that her husband
remains on border and can die at any time. As per complainant
Bal Krishan, accused promised to marry with complainant No.2,
Prem Dassi despite knowing that she is legally wife of
complainant Bal Krishan. As per complaint, accused developed
illicit relation with complainant Prem Dassi and this process
accused committed sexual intercourse with the wife of
complainant Bal Krishan. Averments contained in complaint
reveals that complainant Prem Dassi is mother of three
children and accused compelled her for sexual intercourse. It
has been also alleged in the complaint that accused threatened
complainant Prem Dassi wife of complainant Bal Krishan that in
case she discloses to anybody about their relations, she would
face dire consequences. As per complaint, on 29th August, 2000
when complainant Bal Krishan came on leave to his house, he
was told by local people and his wife complainant Prem Dassi
admitted the illicit relation with the accused. Complainant
specifically prayed that accused may be punished for having
committed the offence punishable under Sections 366,376,497
of Indian Penal Code (hereinafter referred to as “IPC”).

3. Learned trial Court taking cognizance of the
complaint vide order dated 31st August, 2002 held that the
complaint discloses commission of cognizable offence and, as
such, he sent the same to the SHO Police Station, Karsog under
Section 156(3) Cr.P.C for investigation. Record further reveals
that the police after investigating the matter came to the
conclusion that no offence under Sections 366 and 376 of IPC
exist against the accused and accordingly, a case under
Section 497 of IPC was registered against the accused on the
allegations contained in the complaint, which was admittedly
signed by complainant Bal Krishan and his wife Prem Dassi.
4. As per the prosecution, when matter was
investigated on the complaint of complainant, it was found in
the statement of the complainant Prem Dassi that accused
used to visit her house and they had developed illicit relation. It
also emerges from the record of the investigation that their
relations were limited to the room of complainant Prem Dassi.
Police before conducting the case under section 497 of IPC,
concluded that accused with the consent of complainant Prem
Dassi developed illicit relation and to substantiate aforesaid
conclusion, police also recorded the statements of the
witnesses Ramu Ram(PW-3), Sudesh Kumar(PW-4) and Kumari
Poonam, wherein they stated that accused used to visit the
house of complainant Prem Dassi oftenly. Police on the basis

of the investigation carried out by it, presented the challan in
the competent Court of law for convicting the accused for
having committed the offence punishable under Section 497 of
IPC.
5. Learned trial Court after satisfying itself that a
prima facie case exist against the accused, framed charge
under Section 497 of IPC against him, to which he pleaded not
guilty and claimed trial. It also reveals from the record that
prosecution with a view to prove its case beyond reasonable
doubt examined as many as six witnesses and learned trial
Court also recorded the statement of the accused under
Section 313 Cr.P.C
6. Learned trial Court after appreciating the material
evidence available on record held the present petitioneraccused
guilty of having committed the offence punishable
under section 497 of IPC and vide judgment/order dated
5.7.2003 sentenced him with fine of Rs. 3000/- for the offence
punishable under section 497 of IPC, in default of payment of
fine, further to undergo simple imprisonment for one month.
7. Feeling aggrieved and dissatisfied with the
impugned judgment of conviction passed by learned trial Court
below, present petitioner-accused filed an appeal under Section
374 of the Code of Criminal Procedure in the Court of learned
Additional Sessions Judge, Mandi H.P, vide Cr. Appeal No.27 of

2003, which was dismissed by learned Additional Sessions
Judge on 13.4.2007, Hence, the present criminal revision
petition before this Court.
8. Mr. G.R. Palsra, learned counsel representing the
petitioner vehemently argued that the judgments passed by
both the Courts below convicting the accused for having
committed the offence punishable under section 497 IPC are
not sustainable in the eyes of law as same are not based upon
the correct appreciation of the evidence available on record. He
also contended that the judgments passed by the learned
Courts below are against law and facts on record, which have
been passed ignoring the basic principle and ingredients of
section 198(2) Cr.P.C as well as Section 497 IPC and as such,
great prejudice has been caused to the petitioner-accused. He
forcibly contended that both the Courts below have fallen in
grave error by not appreciating that the trial Court had no
power whatsoever, to take cognizance of the case since challan
was put in the Court by the police after investigation relating to
the offence under section 497 IPC. As per Mr. Palsra, the
Magistrate has only power if the complaint is presented to him
and after recording the statement of the complainant, the
complaint is further forwarded for investigation. He also
contended that the judgment passed by both the Courts below

deserves to be quashed and set-aside on the ground that the
prosecution has miserably failed to prove on record the factum
of marriage between complainants Bal Krishan and Prem
Dassi, which is primary requirement of Section 497 IPC. He
submitted that for want of sufficient evidence in support of
legal marriage, no conviction could be made under section 497
IPC. During arguments, he also invited the attention of the
Court towards the statements given by the prosecution
witnesses as well as record made available during the trial of
the case to demonstrate that there are major contradiction in
the statements of prosecution witnesses and same could not
be relied upon by the Courts below while convicting the
accused-petitioner. He forcibly contended that both the Courts
below have ignored the most important fact that the children of
the complainant Prem Dassi were neither cited as prosecution
witness nor examined, especially when as per prosecution
story, during the time of sexual intercourse, these children
woke up and saw the scene. He also contended that no
independent witness, whatsoever, was associated by the
prosecution and as such, deposition, if any, made by interested
parties could not be looked into by the Courts below while
convicting the present petitioner-accused under section 497 of
IPC. Lastly, Mr. Palsra, learned counsel raised question of
maintainability of complaint Ex.PW1/A filed by the

complainants namely Bal Krishan and Prem Dassi. As per Mr.
Palsra, learned counsel representing the petitioner that bare
perusal of complaint Ex.PW1/A suggest that same has been
filed by the husband and wife i.e. Bal Krishan and Prem Dassi
complainant. He strenuously argued that once an attempt was
made to implicate the present petitioner-accused by
complainant Bal Krishan on the ground of adultery there was
no occasion, whatsoever, for complainant Prem Dassi to sign
the complaint, who admittedly as per the version of PW-1 i.e.
husband was a consenting party to the adultery, if any. In the
aforesaid background, Mr. Palsra, learned counsel prayed for
quashing and setting aside of the judgment of conviction
passed by the both Courts below.
9. Mr. Pankaj Negi, learned Deputy Advocate General
appearing on behalf of the respondent-State supported the
judgments passed by both the Courts below and submitted
that no interference, whatsoever, of this Court is warranted in
the present facts and circumstances of the case. He contended
that the judgments passed by both the Courts below are based
on proper appreciation of evidence available on record and as
such, same deserves to be up held. While refuting all the
submissions as well as grounds set up in the criminal revision
petition, learned Deputy Advocate General, strenuously argued
that there is ample evidence on record to suggest that accused

repeatedly committed sexual intercourse with the complainant
Prem Dassi against her wishes and, as such, he has been
rightly convicted by the learned Court below. In his attempt to
persuade this Court to maintain the conviction passed by the
learned trial Court below, Mr. Negi, learned Deputy Advocate
General made this Court to travel through the statements of
the witnesses as well as record of learned trial Court to
demonstrate that how accused took undue advantage of the
absence of husband of complainant Prem Dassi and allured her
to have sexual intercourse with him. Lastly, Mr. Negi, learned
Deputy Advocate General, reminded the Court of its limited
jurisdiction under Section 397 Cr.P.C and prayed that while
exercising its power under section 397 Cr.P.C, this Court has no
power to re-appreciate the evidence available on record,
especially when it clearly stands proved on record that both the
Courts below have meticulously dealt with the each and every
aspect of the matter.
10. I have heard the learned counsel representing the
parties and have carefully gone through the record made
available.
11. Mr. Pankaj Negi, learned Deputy Advocate General
while advancing his arguments on behalf of the respondentState
specifically raised the issue of limited jurisdiction of this
Court under Section 397 Cr.P.C, but in the present case where

during arguments having been made by the learned counsel
for the parties, petitioner-accused has been able to point out
the material discrepancies/ contradictions and discrepancies in
the statements made by the prosecution witnesses, this Court
solely view a view to ascertain that the judgment passed by
both the Courts below are based upon correct appreciation of
evidence available on record and same are not perverse,
undertook an exercise to critically examine the witnesses to
reach just and fair decision. Apart from above, specific question
with regard to the maintainability of complaint purportedly filed
under Section 497 of IPC has also been taken by the
petitioner-accused and this Court after perusing the complaint
deem it fit in the given facts and circumstances of the case to
critically analysis the evidence.
12. True, it is that this Court has very limited powers
under Section 397 of Criminal Procedure Code while exercising
its revisionary jurisdiction. But in the peculiar facts and
circumstances of the present case, it would be apt and in the
interest of justice to critically examine the evidence available
on record that too solely with a view to ascertain that
judgments passed by learned Courts below are not perverse
and same are based on correct appreciation of evidence on
record.

13. As far as scope of power of this Court while
exercising revisionary jurisdiction under Section 397 is
concerned, the Hon’ ble Apex Court in Krishnan and another
Versus Krishnaveni and another, (1997) 4 Supreme Court
Case241; has held that in case Court notices that there is a
failure of justice or misuse of judicial mechanism or procedure,
sentence or order is not correct, it is salutary duty of the High
Court to prevent the abuse of the process or miscarriage of
justice or to correct irregularities/incorrectness committed by
inferior criminal Court in its judicial process or illegality or
sentence or order. The relevant para of the judgment is
reproduced as under:-
“8. The object of Section 483 and the purpose
behind conferring the revisional power under
Section 397 read with Section 401, upon the
High Court is to invest continuous supervisory
jurisdiction so as to prevent miscarriage of
justice or to correct irregularity of the procedure
or to mete out justice. In addition, the inherent
power of the High Court is preserved by Section
482. The power of the High Court, therefore, is
very wide. However, the High Court must
exercise such power sparingly and cautiously
when the Sessions Judge has simultaneously
exercised revisional power under Section 397(1).
However, when the High Court notices that there
has been failure of justice or misuse of judicial
mechanism or procedure, sentence or order is


not correct, it is but the salutary duty of the High
Court to prevent the abuse of the process or
miscarriage of justice or to correct irregularities/
incorrectness committed by inferior criminal
Court in its judicial process or illegality of
sentence or order.”
14. Since Mr. G.R.Palsra, learned counsel during his
arguments specifically invited the attention of this Court to
complaint Ex.PW1/A filed by the complainant Bal Krishan and
Prem Dassi to demonstrate that the complaint is not
maintainable under Section 497 of IPC against the accused as
the same has been signed by Prem Dassi wife of complainant
Bal Krishan alongwith complainant i.e. husband. It would be
appropriate for this Court to examine the issue of
maintainability at first instance before adverting to the merits
of the case.
15. After perusing the complaint Ex.PW1/A filed by
complainant Bal Krishan as well as his wife Smt. Prem Dassi it
clearly emerge that complainant filed the complaint against the
accused in the Court of learned Sub Divisional Judicial
Magistrate, Karsog on the pretext that the complainant Bal
Krishan was serving in Indian Army in the border and his wife
Smt.Prem Dassi is his legally wedded wife and out of their
wedlock three children were born.Careful perusal of the
complaint suggest that it has been alleged that complainant


Bal Kirshan being soldier in Indian Army remains away from his
house for the security of the borders of the nation and the
accused taking advantage of loneliness of his wife Prem Dassi
enticed and allured her by stating that her husband remains on
border and can die at any time. It is also alleged in the
complaint that accused despite knowing that Prem Dassi is
legally wedded wife of complainant Bal Krishan developed illicit
relation and committed sexual intercourse with her. If the
complaint Ex.PW1/A is read in its entirety, it can be inferred
that basic allegation of the complainant is that accused despite
knowing that Prem Dassi is the legally wedded wife of the
complainant Bal Krishan developed illicit relation and
committed sexual intercourse with her. Further perusal of the
complaint suggests that a prayer has been made to punish the
accused for having committed the offence punishable under
Sections 366,376, 497 of IPC.
16. Careful perusal of the allegations made in
the complaint, nowhere suggests the commission of offence
punishable under section 366 and 376 of IPC. Interestingly,
aforesaid complaint Ex.PW1/A is made on behalf of husband
and wife as the same has been signed by both of them. At this
stage, it may be noticed that police after investigation
concluded that no case, if any, exist against the accused under
Sections 366,376 of IPC and as such, on the basis of the


complaint Ex.PW1/A, FIR was registered against the accused
under Section 497 of IPC. In the aforesaid background, only
question, which requires determination of this Court is whether
complaint Ex.PW1/A can be held to be maintainable against
the accused under Section 497 of IPC when admittedly
complaint is filed by husband and wife jointly by appending
their signatures on the complaint.
17. As has been observed above, plain reading of
complaint does not disclose the offence, if any, under Sections
366 and 376 of IPC against the accused but he could be
charged under section 497 of IPC on the basis of the averments
contained in complaint Ex.PW1/A. But once police after
investigating the matter on the basis of the complaint lodged
by the complainant came to the conclusion that there are no
grounds to proceed against the accused under sections 366
and 376 of IPC, it can be concluded that complaint Ex.PW1/A
filed by the complainant against the accused was only for
committing offence under section 497 of IPC.
18. Now at this stage, very interesting question, which
arise for determination of Court is that whether the complaint
for having committed offence under Section 497 of IPC can be
entertained by any Court of law when it is signed by the both
wife and husband. At this stage, it would be apt to reproduce
the provision of section 497 of IPC:-

“497. Adultery:- Whoever has sexual intercourse
with a person who is and whom he knows or has
reason to believe to be wife of another man,
without the consent or connivance of that man,
such sexual intercourse not amounting to the
offence of rape, is guilty of the offence of
adultery, and shall be punished with
imprisonment of either description for a term
which may extend to five years, or with fine, or
with both. I such case the wife shall not be
punishable as an abettor”.
19. Bare reading of Section 497 IPC suggest that
complaint, if any, for punishing the person for having sexual
intercourse with the wife of another man knowingly well that
she is the wife of another man, can only be filed by the
husband and definitely not by woman with whom accused
person had sexual intercourse without the consent or
connivance of husband of that lady.
20. In the present case, admittedly wife of complainant
Bal Krishan is complainant alongwith his husband as she has
also signed that complaint filed before the learned SubDivisional
Judicial Magistrate, Karsog. It is undisputed that
complainants in their complaint had initially prayed for
punishing the accused under Section 497 , 366, 376 of IPC but
as has been observed above, perusal of the complaint,
nowhere suggest that offence under sections 366,376 of IPC is


made out against the accused, rather averments contained in
the complaint suggest that accused despite knowing that Prem
Dassi is legally wedded wife of the complainant Bal Krishan had
developed illicit relation with her and committed sexual
intercourse on several occasions. It is the own case of the
complainant as well as prosecution that taking advantage of
loneliness, accused had enticed and allured her by giving false
promise to marry her and committed sexual intercourse. It is
specifically averred in the plaint that accused promised wife of
the complainant to marry and then indulged in sexual
intercourse meaning thereby wife of the complainant was
consenting party to the sexual intercourse, if any, committed
by the accused. But at this juncture, Court perused the
averments contained in the complaint solely with a view to
ascertain whether the complaint filed and signed by both
husband and wife alleging therein adultery, which punishable
under section 497 IPC, is maintainable or not. After perusing
provision as contained under Section 497 IPC as well as
averments contained in the complaint, this Court has no
hesitation to conclude that once police had concluded that no
prima-facie case exist against the accused under Sections 366
and 376 IPC, complaint, if any, filed by the complainant and his
wife could only be construed to be filed under section 497 of
IPC against the accused. But in the present case, where


admittedly wife of the complainant signed the complaint along
with husband praying therein for punishing the accused under
section 497 IPC, consequently very character of the complaint
has changed and same is not maintainable under Section 497
IPC.
21. After perusing the provision contained in
section 497 IPC, this Court has no hesitation to conclude that
by signing complaint alongwith husband, wherein specific
prayer was made to punish the accused under section 497 IPC,
entire proceedings conducted on the basis of the aforesaid
complaint stands vitiated. Once wife of the complainant joined
her husband in filing the complaint under section 497 IPC, very
character of the complaint gets changed and same cannot be
considered to be filed under section 497 IPC, in any manner.
Section 497 of IPC only authorize husband to file complaint
against the person, who commits sexual intercourse with his
wife against his wishes. But in the present case wife of the
complainant husband joined him in filing complaint and alleges
that accused had developed illicit relation and thereafter
committed sexual intercourse against her wishes by
threatening that in the event of any disclosure made by her, he
would kill her children. Accordingly, this Court after perusing
the complaint Ex.PW1/A as well as statements recorded during
the trial, is of the definite view that complaint, if any, made


against the accused for having committed offence under
section 497 of IPC, signed by husband and wife both is not
maintainable and petitioner-accused could not be proceeded in
any court of law on the basis of complaint Ex.PW1/A. Moreover,
at the cost of repetition, it is again highlighted that bare
perusal of complaint as well as her statement recorded during
the trial clearly suggest that she was a consenting party to the
alleged sexual intercourse committed by the accused. Since
this Court after perusing the complaint Ex.PW1/A and bare
perusal of law contained under section 497 IPC has come to the
conclusion that complaint Ex.PW1/A filed against the accused
under section 497 IPC is/was not maintainable, there is no
occasion to examine the case on merits and the judgment
passed by learned Court below could be dismissed solely for
the reasons stated hereinabove. But this Court keeping in view
the allegations made in the complaint as well as offence with
which the accused has been charged, deem it proper to
examine the case on merits. This Court while exploring
necessary answer to basic question of maintainability, as has
been answered above, had an occasion to peruse the
statements made by the prosecution witnesses.
22. In the present case, prosecution with a view to
prove its case examined as many as six witnesses.
Complainant Bal Krishan examined himself as PW-1 and


deposed that he is serving in the Army. In his statement it has
come that accused promised her wife to marry her and
maintain her children and when his wife did not accede to his
allurement and promise, he threatened to kill her as well as her
children. As per the statement of PW-1, accused committed
sexual intercourse with his wife on the point of knife. He also
stated in his examination-in-chief that due to fear her wife did
not disclose aforesaid fact to anybody and when on 15.8.2002
he inquired from his landlord Ramu Ram (PW-3) and Sudesh
Kumar (PW-4), they also told him that they saw the accused in
the room of his wife. In his cross-examination, PW-1
categorically admitted that he saw the accused first time in the
Court. Careful perusal of the statement given by this witness
suggest/indicate that wife of the complainant was a consenting
party to the sexual intercourse, if any, by the accused. Though,
it has been stated by PW-1 that when his wife did not accede to
the allurement and promise given by the accused, accused
threatened to kill her and her children and committed sexual
intercourse on the point of knife. But at this stage, it remains
unexplained that if wife of the complainant Bal Krishan was
forced to commit sexual intercourse at the point of knife what
prevented her to raise hue and cry, rather none of the
prosecution witnesses i.e landlord Ramu Ram and Sudesh
Kumar nowhere stated that they ever heard any hue and cry


raised by the complainant. They simply stated that they saw
the accused in the room of his wife.
23. PW-2, Prem Dassi, who is also complainant in the
present case alongwith husband, stated that her husband is
serving in Army and she is residing alongwith her children at
Karsog for the last five years. It has come in her statement that
one day, she was sleeping in her room at about 10:30 PM she
saw accused standing outside then she called her landlord
Ramu Ram. It has also come in her statement that landlord
asked her to vacate his house on the pretext of maintenance
and thereafter she took the house on rent from Sudesh Kumar.
She stated in her statement that after six months, accused
visited his house and entered in the room without any alarm or
without her permission. When complainant inquired from the
accused why he had entered in the house without permission,
then accused replied he had come to tell her about her
husband. As per statement of PW-2, thereafter accused told
that her husband is serving in Indian Army. It has also come in
the statement that accused asked to marry him as her husband
is serving in the Army and by showing knife to her forcibly
committed sexual intercourse with her. It has also come in her
statement that accused forcibly committed sexual intercourse
with her and threatened her to do away her life if she disclosed
to the police or any other person. It has specifically come in the


statement of PW-2 that accused keep on committing sexual
intercourse with her against her wishes. It has also come in the
statement that when her husband came on leave, then they
filed complaint Ex.PW1/A against the accused.
24. In cross-examination, PW-2 admitted that she was
residing alongwith her three children in one room. Now, if the
deposition made by PW-2 in her examination-in-chief is
examined in view of the deposition made by her in her crossexamination
where she stated that she used to reside with her
three children in one room story put forth by her appears to be
unbelievable because as per her version, accused came to her
house at 10:30 PM and by showing knife committed sexual
intercourse with her. PW-2, admitted that she resided with her
children in one room, story of forcible sexual intercourse put
forth by her does not appears to be trustworthy. It can be
presumed that at 10:30 PM in night children must be in the
room when accused allegedly came and on the point of knife
and committed sexual intercourse. At this juncture, it remains
unexplained that where were children when accused forcibly
committed sexual intercourse with her and if they were there
why did not they raise any alarm. But in the present case, there
is nothing in the statement of PW-2 and PW-1 to suggest that
children, who were presumably present in the room when

accused entered in the room at 10:30 PM as well as PW-2,
raised any alarm.
25. Another story put forth by PW-2 that the accused
kept on committing sexual intercourse with her against her
wishes by giving/ extending threats to kill her as well as her
children does not appear to be plausible/ trustworthy. Had PW-
2 narrated the incident to anybody with regard to forcible
committing of sexual intercourse with her, this Court would
have lent some credence to the same but in the present case
story put forth by PW-2 does not appear to be worth lending
any credence and same deserves o be rejected out rightly. It
has been also not explained why three school going children
were not cited as prosecution witness to substantiate the
allegations made by PW-1 as well as PW-2 in their complaint
against the accused.
26. As far as another prosecution witnesses
namely Ramu Ram(PW-3) and Sudesh Kumar(PW-4) are
concerned they have only stated that they had objected the
visit of accused to the house of the complainant Prem Dassi
and warned her to file complaint against the accused before
the police. In his cross-examination, PW-3 stated that he got
the room vacated from Prem Devi on the pretext that he is also
having younger daughter in his house. PW-4, Sudesh Kumar
also not supported the case of the prosecution and stated that

he saw the accused visiting the house of complainant Prem
Dassi. But in cross-examination, he admitted that Prem Dassi is
residing in one room alongwith her three children. Careful
perusal of the statements of PW-3 and PW-4, nowhere suggest
that they had any hint whatsoever with regard to the aforesaid
illicit relation, if any, developed between the accused and
complainant Prem Dassi. They nowhere stated on oath that
they heard any hue and cry made by the complainant, rather it
has come in cross-examination of PW-3 that he asked Prem
Dassi to vacate his room on the pretext that he is also having
younger daughter in his house, meaning thereby he was not
approved of the conduct of the complainant Prem Dassi.
Factum with regard to PW-2 living in one room along with her
children also stands proved with the admission made by PW-4
in his cross-examination.
27. PW-6, Nain Singh, investigating officer also stated
that on completion of the investigation, no offence under
Sections 366 and 376 of IPC was made out against the accused
and only offence punishable under section 497 of IPC was
made out against the accused. In his cross-examination, he
admitted that complainant Prem Dassi had not given the
statement that accused had committed sexual intercourse on
the point of knife. PW-6, also admitted in his cross-examination
that Prem Dassi had given the statement that accused has


committed sexual intercourse with her consent and has also
admitted in his cross-examination that Prem Dassi has not
given any statement regarding committing of sexual
intercourse with her by the accused.
28. Conjoint reading of statements given by the
prosecution witnesses, nowhere suggest that the accused had
ever developed relation with PW-2 against her wishes, rather
there is overwhelming evidence on the record to suggest that
PW-2 was a consenting party to the sexual intercourse
allegedly committed by the accused. None of the prosecution
witnesses other than PW-1 and PW-2 have stated anything with
regard to illicit relation as well as sexual intercourse allegedly
having committed by the accused. Since police after
conducting the investigation concluded that no case/offence
under sections 366 and 376 of IPC exist against the accused,
this Court find does find it proper in the given facts and
circumstances of the case to explore whether the accused
could be held guilty for having committing the offence
punishable under Sections 366 and 376 of IPC on the basis of
the material available on record. But this Court after perusing
the evidence available on record is of the view that there are
lot of contradictions and inconsistencies in the statements
given by PW-1 and PW-2 and deposition made by them are not
worth lending any credence. PW-2 with whom accused

allegedly committed sexual intercourse against the wishes of
her husband has been not specific and candid in alleging
something against the accused, rather she changed her
statements very quickly during examination-in-chief as well as
cross-examination. Careful perusal of statement made by her,
nowhere suggest that the same is truthful and worth giving any
weight age. Accordingly, this Court after examining the record
made available to it, is of the view that accused petitioner
could not be held guilty of having committed the offence
punishable under section 497 IPC on the basis of the evidence
adduced on record by the prosecution, rather it appears that
Courts below merely by seeing the statement of PW-2
complainant swayed in emotions and without analyzing the
statements to ascertain the genuineness of the story put forth
by the prosecution, came to the conclusion that accused is
guilty of having committed the offence punishable under
section 497 IPC. Hence, this Court has no hesitation to
conclude that both the Courts below have erred in holding that
the accused committed the offence under section 497 IPC.
Consequently, in view of the aforesaid discussion, this Court is
of the view that the judgment passed by both the Courts below
deserves to be quashed and set-aside as the same are not
based on correct appreciation of evidence available on record.
Moreover, as has been discussed in detail, both the Courts


below have erred in entertaining the complaint admittedly filed
by both husband and wife against the accused for punishing
him under section 497 of IPC. No complaint could be filed
jointly by husband and wife for punishing accused under
Section 497 of IPC
29. In totality of the facts and circumstances of the
present case, I have no hesitation to conclude that the
judgment passed by both Courts below are not based on the
correct appreciation of the evidence available on record and
hence the same is quashed and set-aside. Accused is
acquitted of the charge. His bails bonds are discharged. The
fine amount, if any deposited by the petitioner-accused be
refunded to him.
The present criminal revision stands disposed of,
so also pending application(s), if any.
 (Sandeep Sharma )
July 1, 2016 Judge. (shankar)

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