Complaint for adultery can be made jointly by husband and wife?

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.

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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 Case; 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.

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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.

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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.

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