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Atam Singh vs State Of H.P on 27 September, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 445 of 2017
Date of Decision: 14.09.2018

.
[

Atam Singh ………Appellant
Versus
State of H.P. ……….Respondent

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.

For the appellant: Mr. Rajesh Mandhotra, Advocate.
For the respondent: Mr. S.C. Sharma and Mr. Dinesh Thakur, Additional
Advocate Generals with Mr. Amit Kumar Dhumal
Deputy Advocate General.

Sandeep Sharma, J. (Oral)

Challenge in the present appeal is to the judgment dated

24.8.2016, passed by the learned Additional Sessions Judge-I, Kangra at

Dharamshala, District Kangra, H.P., in Sessions Case No. 20-D/VII/2014,

whereby learned court below while holding the appellant-accused guilty of

having committed offence punishable under Sections 376, 494 and 495 of IPC,

convicted and sentenced him to undergo imprisonment as per description

given herein below:-

“Under Section 376 of IPC
To undergo rigorous imprisonment for a period of seven
years and to pay a fine of Rs. 10,000/- and in default of
payment of fine, to further undergo rigorous imprisonment
for a period of six months.

Under Section 494 of IPC
To undergo simple imprisonment for a period of three years
and to pay a fine of Rs. 5,000/- and in default of payment
of fine, to further undergo simple imprisonment for a period
of three months.

Whether reporters of the Local papers are allowed to see the judgment?

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Under Section 495 IPC
The convict is also sentenced to undergo simple
imprisonment for a period of three years and to pay a fine
of Rs. 5,000/- and in default of payment of fine, he shall

.

further undergo simple imprisonment for a period of three

months.”

2. The prosecution version as emerges from the record is that

complainant-prosecutrix filed a complaint Ext.PW2/A alleging therein that in

the year, 2006, she was married to a person namely Ranjeet Singh and out of

their wedlock, a daughter was born. Above named person Ranjeet Singh

died about four years ago, whereafter prosecutrix started residing in the

house of her parents at Paniala, Tehsil Indora, District Kangra, H.P.

r In the

month of July, 2013, Ramesh i.e. PW-5, a relative of prosecutrix telephoned her

with regard to match for re-marriage of the prosecutrix and asked her to

come to Nurpur. Prosecutrix, her brother and mother came to Nurpur and

met person namely Ramesh PW5 and Kirpal Singh PW6, whereafter accused

was called. Accused disclosed that his wife had died 13 years ago and he is

serving in Army. The maternal aunt of the prosecutrix Rano Devi also came to

the Nurpur and engagement was finalized. Allegedly, prosecutrix insisted to

see the house of the accused, but accused disclosed that he is in army and is

going to Ambala. On 14.8.2013, accused came to village Paniala and

insisted for the marriage on the same day and as such, their marriage was

solemnized at Sug Bhatoli. Accused stayed with the prosecutrix in her house.

Prosecutrix alleged that about three months ago, accused left the house of

the prosecutrix and asked the prosecutrix not to get her daughter admitted in

the school as she will be admitted in the school of his village Tharu, Tehsil

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Shahpur. But since accused did not return, the prosecutrix got suspicious and

on 8.6.2014, she went to the house of the accused at Village Tharu, where she

came to know that wife of the accused is alive and he has children.

.

Allegedly, when the accused saw the prosecutrix and her mother, present in

house, he ran away and subsequently, threatened the prosecutrix over the

phone with dire consequences. Accused also threatened prosecutrix that he

will commit suicide in case matter is reported to the police. Complainant-

prosecutrix alleged that accused had deceived her and committed rape on

her, as a consequence of which, she became pregnant. On the basis of

aforesaid complaint, having been filed by the prosecutrix, formal FIR Ext.

PW18/A came to be registered against the accused at police station Indora.

During investigation, police also got prosecutrix medically examined at

Community Health Centre, Indora, District Kangra, H.P., wherein she was

reported to be pregnant. Police also got statement of the prosecutrix

recorded under Section 164 Cr.PC before the Magistrate. During

investigation, police also found that accused had induced the prosecutrix to

give him Rs. 60,000-70,000/- on the pretext of illness. After completion of

investigation, police presented the challan in the competent court of law,

who on being satisfied that prima-facie case exists against the accused,

charged the accused for having committed offences punishable under

Sections 376, 494, 495, 420 and 506 of the IPC, to which he pleaded not guilty

and claimed trial.

3. Prosecution with a view to prove its case examined as many as

19 witnesses, whereas accused in his statement recorded under Section 313

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Cr.PC denied the case of the prosecution in toto and claimed himself to be

innocent, however, he did not lead any evidence in his defence despite

opportunity afforded to him.

.

4. Learned Additional Sessions Judge on the basis of material

adduced on record by the prosecution held the accused guilty of having

committed offence punishable under Sections 376, 494 and 495 of IPC, and

accordingly, vide judgment dated 24.8.2016, convicted and sentenced him

as per description given herein above, however fact remains that learned

court below acquitted the accused of the offences punishable under

Sections 420 and 506 IPC. In the aforesaid background, appellant-accused

has approached this Court in the instant proceedings, praying therein for his

acquittal after setting aside judgment of conviction recorded by the court

below.

5. I have heard learned counsel for the parties as well

carefully gone through the record.

6. Having heard learned counsel for the parties and perused the

record, this Court is in agreement with the submission made by Mr. Dinesh

Thakur, learned Additional Advocate General that the impugned judgment of

conviction recorded by the court below is based upon proper appreciation

of evidence and there is no scope of interference as far as this Court is

concerned. Careful perusal of evidence available on record, be it ocular or

documentary, suggests that prosecution successfully prove beyond

reasonable doubt that appellant-accused induced the prosecutrix to

solemnize marriage with him during the subsistence of his earlier marriage

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and thereafter, performed sexual intercourse with prosecutrix, as a

consequence of which, she became pregnant. Factum with regard to the

appellant’s having solemnized marriage with the complainant-prosecutrix on

.

14.8.2013, stands duly proved. Similarly, this Court finds that there is cogent

and convincing medical evidence adduced on record by the prosecution to

prove that the prosecutrix and accused are biological parents of the male

child.

7. Mr. Rajesh Mandhotra, learned counsel representing the

appellant-accused fairly conceded before this Court that there is ample

evidence adduced on record by the prosecution to prove that appellant

accused during the subsistence of his earlier marriage induced the

complainant-prosecutrix to marry with him and thereafter, committed sexual

intercourse with her. Mr. Mandhotra, further admitted that there is evidence

to the effect that appellant accused is biological father of the baby born

from the womb of the prosecutrix after the alleged marriage held on

14.8.2013. However, Mr. Mandhotra, while inviting attention of this Court to

the evidence led on record by the respective parties, made a serious attempt

to persuade this Court to agree with his contention that factum with regard to

the earlier marriage of the appellant accused was very much in the

knowledge of the complainant prosecutrix and as such, appellant accused

could not be held guilty of having committed offence punishable under

Section 376 IPC. While placing reliance upon the judgment rendered by the

Hon’ble Apex Court in case titled Bhupinder Singh v. Union Territory of

Chandigarh (2008) 8 SCC 531, Mr. Mandhotra, argued that sentence imposed

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by the court for having committed offence punishable under Section 376, 494

and 495 IPC, needs to be reduced, especially when there is evidence

available on record suggestive of the fact that prosecutrix had prior

.

knowledge that appellant accused is already married to somebody else i.e.

PW8. Mr. Mandhotra, further contended that accused is behind bars for the

last more than 4 years and in case sentence awarded by the court below is

not modified/reduced, great prejudice would be caused to the other family

members of the accused, who are totally dependent upon the accused.

8. Prosecutrix PW2 while deposing before the court below deposed

that her previous marriage was solemnized with Raneet Singh in the Year,

2006, and out of their wedlock, one daughter was born. She further stated

that her previous husband Ranjeet Singh expired in the year, 2010, whereafter,

she was expelled from her-in-laws house and she started residing with her

parents at village Paniala. She deposed that in the month of July, 2013,

Ramesh Chand proposed for her re-marriage with the accused, whereafter

she alongwith her mother, brother and sister-in-law went to Nurpur for the

negotiations of remarriage. She stated that Ramesh Chand, Kirpal Singh and

the accused too came for negotiations of remarriage and the accused told

them that he is serving in Army at Ambala and is earning Rs. 42,000/- per

month. In the month of August, 2013, accused came to her house and asked

to perform marriage and accordingly, her marriage was solemnized with the

accused at a temple at Sug Bhatoli. After solemnization of the marriage,

accused left her in her village Paniala and the accused used to meet her in

her village Paniala and never took her to his native village Tharu. She

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deposed that accused used to commit sexual intercourse with her after the

marriage. Accused directed her not to admit her daughter in the school in

her native village on the pretext that she would be admitted in a school at

.

Ambala, but the accused neither took her to Ambala nor to his house. She

further stated that when she expressed her intention to live with the accused,

he made excuses, whereafter on 3.6.2014, she along with her mother went to

the house of the accused at village Tharu and found the first wife of the

accused living with her children. She also deposed that she became

pregnant from the accused in February, 2014 and gave birth to a male child.

She also stated that accused had disclosed his fake name as Ashok Kumar

and she came to know about his real name from some document. In her

cross-examination, she admitted that Ramesh Chand is brother in law of her

maternal uncle. She also stated that accused disclosed that all his relatives

had died. She admitted that neither horoscopes were matched nor

photographs of the marriage were taken. She also could not tell the name of

the Pandit, who performed the marriage ceremony. She specifically denied

suggestion put to her that before marriage, she had knowledge that the

accused had wife and son. PW1 Vidya Devi, mother and PW3 Bhawna, sister-

in-law of the prosecutrix (PW2), corroborated the aforesaid version of the

prosecutrix.

9. PW4 Ramesh Singh, who is the resident of the village of the

prosecutrix, deposed that prosecutrix was married to Ranjeet Singh in the

year, 2000, who expired in 2010 and thereafter, prosecutrix came to village

Paniala alongwith her daughter. He deposed that in the month of August,

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2013, he came to know that accused has solemnized marriage with the

prosecutrix. The accused disclosed his name as Ashok Kumar and was

working in Army. This witness also stated that accused used to reside with the

.

prosecutrix in her house at village Paniala after the marriage, but

subsequently, he came to know that reall name of the accused is Atam Singh.

He also stated that accused disclosed to him that his first wife had expired

and he is alone, however, subsequently, he came to know that the accused is

having wife and children at village Tharu. He also stated that prosecutrix

became pregnant from the accused and gave birth to a male child. In his

cross-examination, this witness admitted that he came to know whereabouts

of the accused after his remarriage with the prosecutrix.

10. PW5 Ramesh Singh, who had proposed for the marriage of the

accused with the prosecutrix, deposed before the court below that he

proposed the marriage at the instance of his colleague Kirpal Singh, who

disclosed that first wife of the accused had expired and he intends to perform

second marriage. He further stated that he suggested Kirpal Singh for the

engagement of the accused with the prosecutrix and contacted the mother

of the prosecutrix through his sister Sano Devi, whereafter the accused was

called at Nurpur. This witness stated that he alongwith prosecutrix, Vidya Devi,

Sano Devi, Bhawna, Dinesh and Ramesh Chand came to Nurpur for

engagement, where accused disclosed his name as Ashok Kumar, however

subsequently, he came to know that his actual name is Atam Singh and he is

not serving in Army. He stated that he came to know about his first wife and

children in his native village. It has also come in the statement of this witness

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that accused had committed sexual intercourse with the prosecutrix by

cheating, misrepresenting and concealing the true facts and the prosecutrix

also gave birth to a male child from the loins of the accused. This witness in his

.

cross-examination admitted that when he came to know about the false

antecedents of the accused, he refused for the marriage. He also admitted

that marriage was not solemnized in his presence. If the statement having

been made by PW6 Kirpal Singh is read juxtaposing statement of PW5 Ramesh

Singh, he also deposed on the similar lines save and except one statement

which he made in his cross-examination that address of the accused was not

found to be correct.

11.

Though prosecution examined 19 witnesses to prove the guilt of

the accused, but scrutiny of the statements made by all witnesses may not be

very relevant at this stage, especially in view of the limited argument

advanced by the learned counsel for the appellant-accused, whereby he

while conceding that it stands duly proved on record that appellant accused

solemnized marriage with the prosecutrix during the subsistence of his earlier

marriage, claimed that complainant-prosecutrix was in the know of earlier

marriage of the accused. To ascertain the correctness and genuineness of

the aforesaid argument of Mr. Mandhotra, learned counsel representing the

appellant, this Court is only required to go through the statements of PW1 to

PW6, who were actually in one way or the other involved in talks of re-

marriage of the prosecutrix with the appellant-accused. If the statements of

PW1, PW2 and PW3 are read in conjunction, it clearly suggests that proposal

for the re-marriage of the prosecutrix with the appellant-accused was made

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by PW5 Ramesh Singh. It has been categorically stated by PW1 Vidya Devi,

mother of the prosecutrix, PW2(prosecutrix) and PW3 Bhawna (sister-in-law of

the prosecutrix) that in the month of July, 2013 Ramesh Chand, PW5 proposed

.

for re-marriage of the complainant-prosecutrix with the accused and then,

they all went to Nurpur for negotiations of re-marriage. It has also come in the

statement of aforesaid witnesses that Ramesh Chand PW5 and Kirpal Singh

PW6 had also come for the negotiations along with the accused at Nurpur.

Having carefully read/examined statements having been made by the PWs 1

to 6, this Court is inclined to accept the contention having been raised by Mr.

Mandhotra, that prosecutrix along with her, brother and sister-in law had

come to Nurpur to meet the accused on the askance of PW5 Ramesh Singh.

PW5 Ramesh Singh in his statement before the Court below deposed that he

had proposed for the re-marriage of the prosecutrix at the instance of his

colleague Kirpal Singh PW6, who had disclosed him that first wife of the

accused had expired and he intends to perform second marriage. In his

examination in chief, this witness deposed that accused disclosed his name as

Ashok Kumar and later, we came to know that the name of the accused is

Atam Singh and also, he was not serving in the Army. This witness also stated

that he came to know that accused was having his wife and children in his

native village. Most importantly, in his cross-examination, this witness while

stating that he is serving in the forest department, Nurpur for the last 25 years,

deposed that when he came to know about the false antecedents of the

accused, he refused to perform the marriage. He also admitted that no

marriage took place in his presence.

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12. If the statement having been made by this witness is read in its

entirety, it certainly compels this Court to draw inference that factum with

regard to subsistence of earlier marriage of the accused and his not serving in

.

the army had come to the notice of the prosecutrix and other family

members, prior to solemnization of her marriage with the accused. This

witness (PW5) in his cross-examination has categorically stated that when he

came to know about the false antecedents of the accused, he refused to

perform the marriage, meaning thereby, that he after having discovered that

accused is not a truthful person, had cautioned the prosecutrix not to

solemnize marriage with the accused. It is also admitted by this witness that

marriage did not take place in his presence. Similarly, PW6 Kirpal Singh, who

had actually made PW5 Ramesh Singh to meet with the accused also

admitted in his cross-examination that address of the accused was not found

correct prior to marriage, meaning thereby, proper inquiry was made by the

prosecutrix and her family members with regard to the antecedents of the

accused before solemnization of marriage, but they despite having acquired

knowledge that accused is already married, proceeded to solemnize the

marriage of prosecutrix with the accused.

13. At this juncture, this Court wishes to take note of statement

made by PW2 prosecutrix, wherein she stated that in the month of August,

2013, accused came to her house and asked to perform marriage and

accordingly, her marriage was solemnized with the accused in the temple at

Sug Bhatoli. There is nothing in the statement of prosecutrix (PW2) as well as

her mother (PW1) that after having met the accused for the first time at

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Nurpur, they had made any attempt to ascertain the antecedents of the

accused, rather evidence available on record clearly suggests that

prosecutrix and her family members solely relied upon PW5 Ramesh Singh and

.

PW6 Kirpal Singh, who had actually proposed for their marriage. As has been

taken note herein above, Ramesh PW5 after having noticed false

antecedents of the accused had refused to perform the marriage and they

actually did not participate in the marriage. PW5 in his cross-examination has

categorically stated that when he came to know about the false

antecedents of the accused, he refused to perform the marriage, meaning

thereby, he had cautioned the prosecutrix and her family members with

regard to the false antecedents of the accused. Similarly, PW6 Kirpal Singh in

his cross-examination admitted that address of the accused was not found

correct prior to the marriage and he did not participate in the marriage.

14. Having carefully perused the evidence available on record

especially the statements of PW5 and PW6, this Court is compelled to

conclude that prosecutrix and her family members had prior knowledge with

regard to the earlier/subsisting marriage of the accused, but despite that

marriage inter-se accused and prosecutrix came to be solemnized in the

month of August, 2013.

15. At the cost of repetition, it may be stated here that there is

overwhelming evidence suggestive of the fact that at the time of

solemnization of marriage inter-se accused and the prosecutrix, earlier

marriage of the accused with PW8 Nirmala Devi was in existence. Similarly,

there is un-rebutted medical evidence on record suggestive of the fact that

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accused is the biological father of the male child born from the womb of the

prosecutrix. Similarly, marriage inter-se prosecutrix and accused also stands

duly proved and since appellant-accused solemnized marriage with the

.

prosecutrix during subsistence of his earlier marriage, conviction recorded by

the court below under Sections 494 and 495 IPC, cannot be interfered with.

Argument advanced by Mr. Mandhotra, learned counsel for the accused

that since the complainant knew that accused was a married man, yet she

consented for sexual intercourse with him, clause “fourthly” of Section 375 of

IPC, could not be attracted, though appears to be very attractive, but

cannot be accepted in the peculiar facts and circumstances of the case.

16.

It is not in dispute that accused was already married and as

such, subsequent marriage, if any, has no sanctity in law and is void-ab-initio.

Appellant accused being already married could not have lawfully married

the prosecutrix, which is quite apparent from the bare reading of the

provisions contained under Section 494 and 495 of the IPC. Mr. Mandhotra,

argued that when complainant knew that accused was a married man,

clause “fourthly” of Section 375 of the IPC, has no application, but aforesaid

argument is not tenable and same is without any substance and as such,

deserves to be rejected. At this stage, it would be apt to reproduce Section

375 herein below:-

“375 Rape – A man is said to commit “rape”, who, except in
the case hereinafter excepted, has sexual intercourse with
a woman under circumstances falling under any of the six
following descriptions:-

xxx xxx xxx Fourthly – With her consent, when the man knows
that he is not her husband, and that her consent is given

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because she believes that he is another man to whom she
is or believes herself to be lawfully married.”

17. Even if it is presumed that complainant had prior knowledge

.

that accused is already married person and he has living spouse, that will not

improve the situation as far as the accused is concerned because he was

already married, subsequent marriage, if any, has no sanctity in law and is

void-ab-initio and as such, in any event, accused could not have lawfully

married with the complainant. It stands duly proved on record that accused

after having solemnized marriage with the complainant- prosecutrix,

committed sexual intercourse with the prosecutrix, which definitely falls within

the provision of clause “fourthly” of Section 375 IPC and as such, learned court

below rightly held him guilty of having committed rape. In this regard, reliance

is placed upon the judgment passed by the Hon’ble Apex Court in Bhupinder

Singh case Supra, which has also been taken note of by the court below.

Relevant para of the aforesaid judgment is reproduced herein below:-

16. Though it is urged with some amount of vehemence
that when com plainant knew that he was a married man,
Clause “Fourthly” of Section 375 IPC has no application, the

stand is clearly without substance. Even though, the
complainant claimed to have married the accused, which
fact is established from several documents, that does not
improve the situation so far as the accused-appellant is

concerned. Since, he was already married, the subsequent
marriage, if any, has no sanctity in law and is void ab-initio.
In any event, the accused-appellant could not have
lawfully married the complainant. A bare reading of
Clause “Fourthly” of Section 375 IPC makes this position
clear.

18. However, taking note of the peculiar facts and circumstances of

the case, wherein it stands duly proved on record that complainant had prior

knowledge with regard to the subsisting marriage of the accused, this Court is

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persuaded to agree with the contention of Sh. Rajesh Mandhotra, learned

counsel that sentence imposed by the court below deserves to be

modified/reduced being harsh and excessive.

.

19. Bare reading of Section 376 IPC clearly provides that whoever,

except in the cases provided for by sub-section (2), commits rape shall be

punished with imprisonment of either description for a term which shall not be

less than seven years but which may be for life or for a term which may

extend to ten years and shall also be liable to fine. Definitely, case at hand

does not fall under Sub-Section 2 of Section 376 IPC and as such, learned

court below while holding accused guilty of having committed offence

punishable under Section 376 of IPC, convicted and sentenced him to

undergo imprisonment for 7 years. But proviso to aforesaid provision of law

provides that court may, for adequate and special reasons to be mentioned

in the judgment, impose a sentence of imprisonment of either description for

a term of less than seven years. Section 376 of IPC as well as its Proviso are

reproduced herein below:-

“376. Punishment for rape.–

(1) Whoever, except in the cases provided for by sub-
section (2), commits rape shall be punished with
imprisonment of either description for a term which shall

not be less than seven years but which may be for life or for
a term which may extend to ten years and shall also be
liable to fine unless the women raped is his own wife and is
not under twelve years of age, in which cases, he shall be
punished with imprisonment of either description for a term
which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years.”

“Proviso:-

376. Punishment for rape: (1) Whoever, except in the cases
provided for by subsection (2), commits rape shall be

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punished with imprisonment of either description for a term
which shall not be less than seven years but which may be
for life or for a term which may extend to ten years and
shall also be liable to fine unless the women raped is his
own wife and is not under twelve years of age, in which

.

cases, he shall be punished with imprisonment of either

description for a term which may extend to two years or
with fine or with both:

Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven

years.”

20. No doubt, subsequent marriage contracted by the accused

during the subsistence of his earlier marriage has no sanctity in law and he

could not have lawfully married with the prosecutrix but as has been

discussed in detail herein above that there is overwhelming evidence

available on record indicative of the fact that prosecutrix as well as her family

members were aware of the subsisting marriage of the accused with Nirmala

Devi (PW8) at the time of marriage of prosecutrix with the accused and as

such, it is difficult to accept that appellant-accused cheated the prosecutrix

and fraudulently, induced her to solemnize marriage with him. This Court

having perused evidence on record has reason to believe that prosecutrix

had prior knowledge about the subsisting marriage of the accused, but yet

she consented for marriage and thereafter, sexual intercourse and as such,

this case is a fit case for reduction of sentence and award of compensation.

21. At this stage, it would be profitable to take note of following

paras of the judgment passed by the Hon’ble Apex Court in Bhupinder Singh

case supra:-.

“9. On 16.4.1994, she was admitted in General Hospital and
gave birth to a female child. She informed Bhupinder Singh
about this as he was father of the child. But Bhupinder

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Singh did not turn up. On this complaint, case was
registered for the offence punishable under Sections
420/376/498-A IPC. It was investigated. Investigating
Officer, during investigation, collected many documents
showing the accused-Bhupinder Singh and prosecutrix

.

Manjit Kaur as husband and wife. After investigation,

challan was presented. Accused-appellant faced trial.
After trial, he was convicted and sentenced as aforesaid.
He filed an appeal before the High Court.On behalf of the

complainant, a Criminal Revision was filed for
enhancement of sentence. Further a Crl. Misc. Application
was also filed for awarding compensation under Section
357 of the Code of Criminal Procedure, 1973 (in short
`Code’).

10. The High Court referred to the evidence of the
witnesses, more particularly, Harvardhan (PW2), the
Registrar, Births Death, U.T. of Chandigarh wherein it was
recorded that complainant Manjit Kaur had delivered a

female child on 16.4.1994 in General Hospital, Sector-16,
Chandigarh and accused-appellant’s name was

mentioned as the father. Reference was also made to the
evidence of Mal Singh (PW10) in whose house the
appellant and the complainant used to stay.

11. In his statement under Section 313 of the `Code’ the

appellant took the stand that he started knowing the
appellant after his marriage with Gurinder Kaur. The
complainant was known to his wife before her marriage
with him and she had come along with her mother to their
place in 1988 in Sector 23, Chandigarh where her mother

requested him to get her a job as she had finished the
studies and wanted to get a job. The complainant stayed

in their house for six months. Thereafter, he arranged a job
for her. However, she had shifted and being of loose
morals, entertained many people. When he learnt that she
was of loose morals and was going out with different

persons at odd hours, he objected and told the
complainant to mend her ways. But she started fighting
with him and demanded money which he does not pay
and, after delivery of the child, she filed a false complaint.
Gurinder Kaur (PW 20) stated that he knew the
complainant prior to her marriage. Documents were also
produced to show that in official documents, accused-
appellant had shown the complainant as his wife and
nominee.

12. The High Court found that the case at hand was
covered by Clause “Fourthly” of Section 375 IPC and,
therefore, was guilty of the offence and was liable for

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punishment under Section 376 IPC. Accordingly, the
conviction, as done, was upheld. But taking into account
the fact that the complainanthad knowledge about his
marriage, and had yet surrendered to him for sexual
intercourse, held this to be a fit case for reduction of

.

sentence and award of adequate compensation.

Accordingly, custodial sentence of three years rigorous
imprisonment was imposed in place of seven years rigorous
imprisonment as was done by the trial court. The
compensation was fixed at Rs.1,00,000/- which was
directed to be paid within three months. It was indicated

that in case the compensation amount was not paid, the
reduction in sentence would not be given effect to.

13. Learned counsel for the accused-appellant submitted
that when the complainant knew that he was a married

man and yet consented for sexual intercourse with him,
Clause “Fourthly” of Section 375 IPC would have no
application. It was also submitted that the fact that the
complainant knew about his being a married man, is
clearly established from the averments made in a suit filed

by her where she had sought for a declaration that she is
the wife of the accused. The sentence imposed is stated to

be harsh. It was, however, pointed out that the
compensation, as awarded by the High Court, has been
deposited and withdrawn by the complainant.

14. Learned counsel for the State submitted that it is a clear

case where Clause “Fourthly” of Section 375 IPC is
applicable. Learned counsel for the complainant
submitted that this was a case where no reduction in
sentence was uncalled for. The High Court proceeded on
an erroneous impression that the complainant knew that

the accused was a married man. It was also submitted that
the compensation as awarded, is on the lower side.

15. Clause “Fourthly” of Section 375 IPC reads as follows:

“375 Rape – A man is said to commit “rape”,

who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:-
xxx xxx xxx Fourthly – With her consent, when
the man knows that he is not her husband,
and that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married. xxx xxx xxx”

16. Though it is urged with some amount of vehemence
that when complainant knew that he was a married man,

27/09/2018 23:02:20 :::HCHP

– 19 –

Clause “Fourthly” of Section 375 IPC has no application, the
stand is clearly without substance. Even though, the
complainant claimed to have married the accused, which
fact is established from several documents, that does not
improve the situation so far as the accused-appellant is

.

concerned. Since, he was already married, the subsequent

marriage, if any, has no sanctity in law and is void ab-initio.
In any event, the accused-appellant could not have
lawfully married the complainant. A bare reading of
Clause “Fourthly” of Section 375 IPC makes this position
clear.

17. It is pointed out by learned counsel for the appellant
that the date of knowledge claimed by the complainant is
6.3.1994, but the first information report was lodged on
19.9.1994. The complainant has explained that she

delivered a child immediately after learning about the
incident on 16.4.1994 and, therefore, was not in a position
to lodge the complaint earlier. According to her she was
totally traumatized on learning about the marriage of the
accused-appellant. Though the explanation is really not

satisfactory, but in view of the position in law that the
accused was really guilty of the offence punishable

under Section 376 IPC, the delayed approach of the
complainant cannot, in any event, wash away the
offence.

18. The appeal filed by the accused is dismissed. The High

Court has reduced the sentence taking note of the
peculiar facts of the case, more particularly, the
knowledge of the complainant about the accused being
a married man. The High Court has given sufficient and
adequate reasons for reducing the sentence and

awarding compensation of Rs.1,00,000/-. The reasons
indicated by the High Court do not suffer from any infirmity

and, therefore, the appeal filed by the complainant is
without merit and is dismissed. Both the appeals are,
accordingly, dismissed.”

22. It may be noticed that the appellant-accused is behind bars

since the registration of the FIR i.e. 10.6.2014, for the last four years and three

months.

23. Consequently, in view of the discussion made herein above as

well as law relied upon, the appeal is partly allowed and impugned judgment

is modified to the extent that the accused is sentenced to undergo

27/09/2018 23:02:20 :::HCHP

– 20 –

imprisonment for the period he has already undergone qua all the offences

he has been convicted by the court below. Besides that, he shall be liable to

pay compensation to the tune of Rs. 1.00 lac to the prosecutrix within a period

.

of two months. The accused be set free forthwith, if not required in any other

case. Release warrants be prepared accordingly. However, it is made clear

that in case amount of Rs. 1 lac is not paid within the stipulated period,

judgment rendered by the court below shall revive and accused shall be

taken into custody to serve out the remaining sentence in terms of the

judgment passed by the learned court below. Appeal is disposed of in the

aforesaid terms.

14th September, 2018 (Sandeep Sharma),
manjit Judge

27/09/2018 23:02:20 :::HCHP

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