SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mahendra @ Manish vs State (Nct Of Delhi) on 30 May, 2018

$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24th March, 2018
Pronounced on: 30th May, 2018
+ CRL.A. 388/2016 CRL.M.(Bail) 500/2018
MAHENDRA @ MANISH ….. Appellant
Through: Mr. Ajit Kumar, Ms. Nikita
Sharma, Mr. Ashwani Kumar, Ms.
Nutan Kumari, Mr. Kunal Yadav
and Ms. Priya Yadav, Advs.

Versus
STATE (NCT OF DELHI) ….. Respondents
Through: Mr. Rajat Katyal, APP for
the State with SI Manish Yadav, P.S.
Vasant Kunj (North).
Mr. Santosh Kumar, Mr. Rajiv Ranjan
Mishra, Mr. R.N.Mishra and Ms.
Shruti Sharma, Advs. for respondent.

+ CRL.A. 1010/2017
‗M’ (name withheld) ….. Appellant
Through: Mr. Santosh Kumar,
Mr. Rajiv Ranjan Mishra,
Mr.R.N.Mishra and Ms.
Shruti Sharma, Advs.

Versus

VIJETA @ VARSHA @ LALI ….. Respondents
Through: Mr.Ajit Kumar, Ms.Nikita
Sharma, Mr.Ashwani Kumar and
Ms.Nutan Kumari, Advs.for R-1.
Mr.Rajat Katyal, APP for the State/R-
2.
SI Manish Yadav, P.S. Vasant Kunj
(North).

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 1 of 40
+ CRL.A. 1011/2017
STATE (GNCT OF DELHI) ….. Appellant
Through:Mr.Rajat Katyal, APP for
the State
SI Manish Yadav, P.S. Vasant Kunj
(North).
Versus

VIJETA @ VARSHA ….. Respondent
Through: Mr.Ajit Kumar, Ms.Nikita
Sharma, Mr.Ashwani Kumar and
Ms.Nutan Kumari, Advs.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT

C. HARI SHANKAR, J.

1. Mahendra (the appellant in Crl Appeal 388/2016) has, vide the
impugned judgment, dated 24th February, 2016, passed by the learned
Additional Sessions Judge (hereinafter referred to as ―the learned
ASJ‖), been found guilty of having committed the offences
contemplated by Sections 493, 495 and 375 of the Indian Penal Code,
1860 (hereinafter referred to as ―the
IPC‖), which cover ―cohabitation,
caused by a man deceitfully inducing a belief of lawful marriage‖,
―the same offence with concealment of the former marriage from the
person with whom the subsequent marriage is contracted‖, and ―rape‖,
respectively. Resultantly, the learned ASJ has convicted and punished
Mahendra under
Sections 376, 493 and 495 of the IPC and has, vide
separate order on sentence, dated 26th February, 2016, sentenced
Mahendra to suffer (i) for the offence punishable under
Section 376,
rigorous imprisonment for life with fine of ₹ 5 lakhs, and default
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 2 of 40
simple imprisonment for 2 years, and (ii) for the offences punishable
under
Sections 493 and 495 of the IPC, to suffer rigorous
imprisonment for 10 years and fine of ₹ 1 lakh, with default simple
imprisonment for one year in each case. The sentences have been
directed to run concurrently. Mahendra has been extended the benefit
of
Section 428 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ―the
Cr.P.C.‖).

2. Simultaneously, the impugned judgement acquits Vijeta @
Varsha (the respondent in Crl Appeal 1010/2017), who was charged,
along with Mahendra, under
Section 120-B read with Section 376 of
the IPC, of the said charges.

3. Mahendra has, therefore, chosen to appeal against his
conviction and sentence, whereas the State, and the prosecutrix ‗M’,
have chosen to appeal against the acquittal of Vijeta.

Facts

4. These appeals, which throw up interesting questions of fact and
law, permit us, mercifully, to steer almost completely clear of
references to police procedures, or to medical and forensic evidence.

5. On 16th August, 2013, a written complaint (Ex. PW-11/A), was
tendered by ‗M’ [whose identity must remain undisclosed, in view of
the proscription contained in
Section 228-A (1) of the IPC], at the
Vasant Kunj Police Station, on 16th August, 2013, complaining that
―Mahendra/Manish‖ had, by fraudulently presenting his wife Vijeta as

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 3 of 40
his sister, contracted marriage with ‗M’ and had, by consummating
the marriage, outraged her modesty and ruined her life. It was further
averred, in the complaint, that ‗M’ had come to know of the marriage
of ―Mahendra/Manish‖ with Vijeta, and the fact that they had a
daughter from the said marriage, from a news item aired on television,
more than a year thereafter. The complaint, therefore, exhorted the
Police to prosecute and punish Mahendra/Manish under
Sections 376
and
495 of the IPC.

6. FIR 324/2013 was registered, in the Police Station, on the basis
of the aforesaid complaint submitted by ‗M’, against Mahendra, under
Sections 376 and 493 of the IPC, and against Vijeta, under section
120-B read with
Section 376 of the IPC. Investigations commenced,
during the course of which Mahendra and Vijeta were arrested,
medically examined, and their statements recorded under
Section 161
of the Cr.P.C. ‗M’ was also medically examined. However, nothing
turns on the MLCs issued consequent on the examination of any of the
dramatis personae before us; hence, further reference, thereto, may
conveniently be eschewed.

7. The statement of ‗M’, under Section 164 of the Cr.P.C., was
recorded by the learned Metropolitan Magistrate (hereinafter referred
to as ―the learned MM‖) on 19th August, 2013. The statement, which
was partly in English and partly in Hindi, may be reproduced, with the
vernacular portions translated into English, thus:

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 4 of 40

―On SA
I am a physically challenged person. On 23rd of 2010 my
father had given an advertisement in Punjab Kesri Newspaper
inviting proposals from grooms who were interested in living
in my father’s house. The accused Mahendra/Manish had
come to meet me, along with his sister Vijeta/Varsha. On 30th
August, 2010, we were married at Arya Samaj temple,
Vasant Vihar. Thereafter, we had sexual/physical relations,
like a husband and wife.

However, he later started to mentally torture me. He
used to remain away from home for days at a stretch, and
would not return home at night. On my inquiring, he often
used to give excuses, saying that his sister was not well, his
car had broken down, etc. On 9th May, 2011, Mahendra told
me that he had to proceed to Calcutta, on work, for a month.
He told me that he was engaged in the leather business, for
which he had to go for fieldwork, for which, on his asking,
my father had also given him a car. He did not take me with
him to Calcutta supposedly on the ground that, being
physically challenged, I would not be able to live with him.

He returned on 13th July, 2011. For some time
thereafter, we stayed with parents. Normally, we used to stay
in a separate flat in Safdarjung Enclave, which had been
given by my father in dowry.

On 23rd July, 2011, there was a theft in the house of
my father. On 24th July, 2011, my husband fled from the
house, taking the car.

On 4th August, 2011, there was a TV interview with
DCP Chhaya Sharma, from which I got to know that the
theft, at my house, had been perpetrated by my husband
Mahendra, and that Vijeta/Varsha, who had come with him
masquerading as his sister, was his 1st wife, and that they had
a daughter. At the same time, a report was published in the
newspaper, from which I got to know that Mahendra and his
1st wife were running a fake friendship club. By cheating me,
he established physical relations with me.

Mahendra also took ₹ 2.5 lakhs from my father on 20th
September, 2010, by lying that he was an orphan. On the

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 5 of 40
basis of my complaint and order of the court, FIR has been
registered, against Mahendra, on 16th August, 2013. I want
him to be punished as per law.

He misrepresented his caste and educational
qualifications, to me, as well. He has cheated me.‖

Jasjeet Kaur, learned MM who recorded the above statement of ‗M’,
under
Section 164 of the Cr.P.C., proved the said statement, in her
testimony during trial.

8. Investigations, by the Police, followed, which led, inexorably,
to the filing of chargesheet, dated 12th November, 2013, before the
learned MM. The chargesheet alleged that, after the recording of the
statement, of ‗M’ under
Section 164 of the Cr.P.C., ‗M’ produced,
before the IO, her marriage certificate, which indicated that Mahendra
had, prior to his marriage with ‗M’, shown himself to be unmarried. It
was further alleged that (i) certain property papers, (ii) the birth
certificate of Ishika, the daughter of Vijeta and Mahendra, in which
Vijeta and Mahendra were shown as her parents, (iii) press release
papers relating to FIR No. 190/11, (iv) the Prudential life insurance
Policy, of the ICICI Bank, of the appellant, in which Vijeta was
shown as his wife, and (v) four photographs, were recovered, which
indicated that, prior to his marriage with ‗M’, Mahendra was already
married to Vijeta, and that they had a daughter named Ishika. It was
further noted, in the chargesheet, that, after considerable effort,
Mahendra was arrested on 25th October, 2013, and that, in their
statements under
Section 161 of the Cr.P.C., Vijeta and Mahendra had
confessed to their crime. After conducting the potency test of
Mahendra, at the AIIMS, vide MLC No 10795/2013 (Ex. PW-8/A), it

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 6 of 40
was opined, in the chargesheet, that the facts indicated offences, under
Sections 376/493/495/120-B, of the IPC, to have been committed by
Mahendra and Vijeta. Thus opining, the chargesheet was, as already
noted above, filed, by the IO, before the learned MM, on 12 th
November, 2013.

9. The case was assigned to the court of the learned ASJ on 24 th
August, 2015. Mahendra was charged for having committed rape,
upon ‗M’, by establishing physical relations with her, concealing the
fact of his earlier marriage with Vijeta. He was, therefore, arraigned
under
Sections 376, 493 and 495, read with 120-B of the IPC. Vijeta
was charged for having criminally conspired with Mahendra, by
impersonating herself as his sister, and causing ‗M’ to believe that
Mahendra was unmarried and was, therefore, arraigned under
Section
120-B read with
Section 376 of the IPC.

10. Both Vijeta and Mahendra pleaded not guilty; the case,
therefore, proceeded to trial.

Evidence adduced during trial

Oral Evidence

11. The prosecutrix ‗M’, her mother Sushma Nagpal and her
brother Ankit Nagpal deposed, during trial, as PW-11, PW-3 and PW-
12 respectively. We may proceed, straightaway, to their depositions.

12. The examination-in-chief and cross examination of the
prosecutrix ‗M’, was recorded on 23rd and 24th September, 2014. In
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 7 of 40
her examination-in-chief, ‗M’ reiterated the allegations, contained in
her statement under
Section 164 of the Cr.P.C., that, pursuant to the
advertisement, dated 23rd May, 2010, published by her parents, in the
newspaper, calling for applications from prospective grooms, Vijeta
and Mahendra came to the house, introducing themselves as sister and
brother, with Vijeta stating that Mahendra was unmarried. She alleged
that, having been hoodwinked thus, by the sister-brother team, she
married Mahendra on 30th August, 2010, and that the marriage was
duly consummated. Later, she alleged, Mahendra started torturing her,
and remaining absent from home. It was further averred, by ‗M’, that,
on 23rd July, 2011 when she, along with Mahendra, came to her
parents house, they were informed that a theft had been committed
there and that, on the next day, i.e. 24th July, 2011 Mahendra left the
house in the car, but did not return. She alleged that it was only on
4th/5th August, 2011, that she got to view, in a news clip on a
television channel, a statement by Deputy Commissioner of Police
(DCP) Chhaya Sharma, to the effect that the theft, that had taken
place in her parent’s house was, in fact, perpetrated by Mahendra and,
further, that Mahendra and Vijeta were husband and wife, and that
they had a girl child.

13. ‗M’ further averred, in her statement, that she had submitted, to
the IO, a copy of her marriage certificate (Ex. PW-11/A), which was
seized vide Seizure Memo Ex. PW-11/C. In cross examination, ‗M’
deposed that, on the occasion in August, 2010, when Mahendra and
Vijeta had visited her house she had enquired, from Vijeta, of her
identity, to which Vijeta responded that she was the maternal cousin
sister of Mahendra and that she was married to one Bajaj, and had no
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 8 of 40
children. She admitted that these facts were not to be found either in
her statement to the IO nor in her complaint (Ex. PW-11/A). It was
further testified by the prosecutrix ‗M’ that, prior to finalizing the
marriage, her parents had visited the house of Mahendra in August,
2010, where they found him alone, and had satisfied themselves
before agreeing to the nuptial alliance. She admitted that Vijeta did
not attend her marriage with Mahendra, though some of his relatives
were present. She also admitted that she had no photographs in which
Vijeta was to be seen in the company of her or her parents. She
alleged, further, that, Mahendra had told her parents that he was an
orphan.

14. In her further cross-examination on 24th September, 2014, the
prosecutrix ‗M’ admitted that on the day when she saw the TV news
clip, she did not make any complaint to the police, but reiterated that
it was only from the said clip that she got to know that Mahendra was
already married to Vijeta prior to his marriage with her. She denied
the suggestion that she had registered a false case against Mahendra,
out of pique at his having been granted bail in FIR No.190/2011.

15. Sushma Nagpal, the mother of ‗M’ deposing as PW-3,
substantially supported the statement of ‗M’. She deposed, inter alia,
that (i) in response to the matrimonial, published by her, and her
husband, seeking alliance for the marriage of their daughter ‗M’, on
23rd May, 2010, Mahendra came to their house in August, 2010, with
a proposal to marry ‗M’, (ii) he was accompanied by Vijeta, and
stated that he was unmarried and that Vijeta was his sister, who was
married to some other person, (iii) having finalized the alliance, the

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 9 of 40
marriage of ‗M’ with Mahendra was solemnized on 30th August,
2010, (iv) at the time of marriage, ‗M’s parents i.e. PW-3 and her
husband, gifted one i10 car and Rs. 2.5 lacs in cash, (v) two to four
days after the marriage, Mahendra started absenting himself from the
house, at times for ten to fifteen days, on one pretext or another, (vi)
on 9th May, 2011, Mahendra left the house stating that he was going
to Calcutta, and requesting Sushma Nagpal and her husband to allow
their daughter to stay with them, whereafter Mahendra returned only
on 13th July, 2011, (vii) on 23rd July, 2011, ₹ 80 lacs in cash, and
some jewellery items, were stolen from their house, (viii) from that
day, Mahendra went missing, (ix) later, Mahendra and Vijeta were
apprehended and the police informed Sushma Nagpal and her
husband, on 4th August, 2011, that the stolen articles had been
recovered from their possession (x) it was only thereafter that she got
to know that Mahendra and Vijeta were husband and wife and had a
female child.

16. In cross-examination, PW-3 admitted that, when Mahendra and
Vijeta visited their house in August, 2010, she spoke to Mahendra for
one and a half hours. She deposed that they had visited Mahendra, at
the residential address provided by him, where they found him alone.
She further testified that, while ‗M’ had done Honors in Sociology
and was having a Post Graduate Diploma, Mahendra was, as per his
own disclosure, a first year student of Zakir Hussain College. She
stated that Mahendra had informed them that he was an orphan, and
was staying with his sister. She further deposed, in cross-
examination, that the marriage of Mahendra, with her daughter ‗M’,
was attended only by four to five relatives of Mahendra, who were
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 10 of 40
stated, by Mahendra, to be his paternal aunt and sisters’ in-law.
Deposing further, PW-3 Sushma Nagpal stated that she and her
husband had given of ₹ 2.5 lakhs, in cash, to Mahendra, in the
presence of their family members, as he said that he needed the
money to discharge a mortgage taken by him on his flat. She admitted
that Vijeta was not present at the time of marriage of Mahendra with
‗M’ at the Arya Samaj temple. She further asserted that it was only
when Mahendra was arrested, in the theft case, that they had come to
know that he was married to Vijeta, and that Vijeta was not his sister.
At the same time, she admitted that she had not seen any proof
regarding marriage of Mahendra with Vijeta. In her further cross-
examination by learned counsel appearing for Mahendra, PW-3
Sushma Nagpal deposed that, immediately after marriage, Mahendra
and ‗M’ had shifted to a flat in Safdarjung Enclave, where they stayed
for seven to eight months, during which period none of them had
made any complaint against Mahendra, to the effect that he was
demanding dowry. She further deposed that Mahendra had left his
home in May 2011 and returned in July, 2011, whereafter he, and
‗M’, were residing with them (i.e. Sushma Nagpal and her husband).
She admitted that none of them had lodged a complaint, against
Mahendra, between 30th August, 2010 and 16th August, 2013, and that
it was only on 16th/17th August, 2013, that they had lodged a Police
complaint against Mahendra.

17. PW-12 Ankit Nagpal deposed, in his examination-in-chief on
24th September, 2014, that, it was after their arrest in connection with
the theft that had taken place at their house, that Mahendra and Vijeta
disclosed that they were, in fact, husband and wife, and that the real
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 11 of 40
name of Vijeta was Varsha. He also alleged, in his deposition, that
Mahendra and Vijeta had conspired with each other, and had
defrauded his sister ‗M’ into marrying Mahendra. While seeking to
support the allegation, made by PW-3 Sushma Nagpal, that Mahendra
and Vijeta had represented themselves as brother and sister on the
occasion of their visit in August 2010, he admitted that he was not
present in the house at that time. He insisted that Mahendra and
Manish were one and the same person. He further submitted that, in
support of the allegations made by him, he had handed over, to the
Police, (i) photo copies of property documents of Vijeta, regarding a
deal in UP, in which Manish and his sister-in-law were witnesses, (ii)
some photographs of Mahendra and Vijeta, (iii) certain notarized
documents such as General Power of Attorney, Will, etc., bearing the
thumb impression and signature of Vijeta and Mahendra, in which
Vijeta was shown as the wife of Mahendra @ Manish, (iv) a copy of
an ICICI Prudential Policy, taken in the name of Mahendra @
Manish, in which Vijeta was shown as the nominee, and they were
shown as husband and wife, (v) the discharge slip of Vijeta @
Varsha, from the hospital, and (vi) the birth certificate of a female
child, in which the parents of the child were shown as Manish and
Varsha, which were collectively exhibited as Ex. P-12/A (documents)
and P-12/B-1 to B-3 (photographs), and were seized by the IO vide
Seizure Memo Ex. PW-12/A. He further stated that, on 19th October,
2013 and 26th October, 2013, ‗M’ had handed over certain documents
to the IO, which were seized in his presence, and that he had signed
the Seizure Memos issued in respect thereof.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 12 of 40

18. In his cross-examination, PW-12 Ankit Nagpal deposed that the
photo copies of documents, submitted by him to the IO and marked
Ex. PW-12/A collectively, were obtained by him consequent on the
arrest of Mahendra and Vijeta, and that, while some of the documents
were found in the house of Mahendra at Safdarjung Enclave, some
others were obtained by him from the City Hospital and the MCD
Office.

19. The evidence of the Police Witnesses, as adduced during trial,
necessarily has limited significance in a case such as the present; to
the extent they do matter, however, reference thereto is necessary.
Const. Kavita Yadav, deposing as PW-4, while alleging that, in her
disclosure statement recorded consequent on her arrest, Vijeta
disclosed that Manish was her husband, admitted, nevertheless, that,
in her presence, no document, showing Manish @ Mahendra and
Vijeta to be husband and wife, was recovered by the IO. PW-5 Const.
Vipin Kumar deposed, in examination-in-chief, that the IO had
recovered some property documents, at the instance of
Mahendra/Manish, which were seized vide Seizure Memo Ex. PW-
5/A. However, in cross-examination, he admitted that he had no idea
regarding the nature of the papers recovered by the IO SI Poonam
Yadav (PW-14), and that, though he, along with the IO SI Poonam
Yadav, had visited F-22, Nangloi, Shiv Ram Park, where Mahendra
resided as a tenant, nothing was seized therefrom. In the very same
deposition, however, Const. Vipin Kumar went on to state that the
papers recovered by SI Poonam Yadav were recovered from the
cupboard in the house at F-22, Nangloi. It may be mentioned, at this
juncture itself, that Ex. PW-5/A indeed indicates that the documents,
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 13 of 40
recovered thereunder, were recovered from the cupboard at F-22,
Nangloi, where Mahendra used to stay on rent.

20. Testifying as PW-14, the IO, SI Poonam Yadav deposed, in her
examination-in-chief on 28 October, 2014, that, (i) on 20th August,
2013, she seized photocopies of the property documents of Mahendra
and Vijeta, along with their photographs (collectively exhibited as Ex.
P-12/A), vide Seizure Memo Ex. PW-12/A, (ii) on the same day, i.e.
20th August, 2013, she seized (a) the marriage certificate of Manish @
Mahendra, with ‗M’, vide Seizure Memo Ex. PW-11/C, and also got it
verified from the concerned Arya Samaj Temple, and (b) the birth
certificate of the child of Manish @ Mahendra and Vijeta @ Varsha,
and (iii) during his police remand, she seized, from Manish @
Mahendra, photo copies of certain property related documents (Ex.
PW-14/D collectively), vide Seizure Memo Ex. PW-5/A.

21. Raman Viz, the Sub-Registrar, MCD, Rohini, testified as PW-
13, on 28th October, 2014. He brought, with him, the record pertaining
to the issuance of Birth Certificate No C3364710 dated 27th
September, 2012 (Ex. PW-13/B), which indicated that, on 9th May,
2011, a female child was born to Varsha Sharma and Manish Sharma
at the City Hospital. The photocopy of the record of the Hospital was
collectively exhibited as Ex. PW-13/A, the original whereof was seen
and returned.

Statements of Mahendra and Vijeta under Section 313, Cr.P.C.

22. Vijeta, in her statement under Section 313 of the Cr.P.C.,
denied the allegation that, in connivance with her, Mahendra proposed
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 14 of 40
to marry ‗M’, without disclosing his earlier marriage to her, by
introducing himself as her brother, and that she, in connivance with
him, stated that she was married to some other person. She admitted,
however, that, in the birth certificate (Ex. PW-13/B) of Ishika, she
was shown as her mother and Manish Sharma was shown as her
father, and that, as per the records of the City Hospital (Ex. PW-
13/A), a female child was born to her and Mahendra at the said
hospital. To a query that, of the documents seized from House No F-
22, Nangloi, (i) in the property documents and Ikrarnama, her name
figured as Smt. Vijeta Sharma, with the name of her husband shown
as Mahendra Sharma, (ii) in the affidavit, GPA, Agreement to sell,
possession letter, Will and receipt, her name figured as Varsha
Sharma, and the name of her husband as Manish Sharma, and (iii) in
the GPA and in the insurance papers relating to the ICICI Prudential
Life Insurance, the name of her husband figured against the proposal
and her name figured against the nominee, she merely stated that they
were a ―matter of record‖. Similarly, she stated that the reflection, of
her name as purchaser, in the certified copy of the Sale Deed dated
24th July, 2008, recovered at the instance of Mahendra from House No
F-22, Nangloi, was also a ―matter of record‖. The reflection of
Mahendra, as her husband, in Sale Deed Ex. PW-14/D, relating to the
purchase, by Vijeta, of land measuring 41.8 Sq. m, was also stated to
be a ―matter of record‖, following which Vijeta asserted that she ―was
living with the accused though as husband and wife but it was a live-
in relationship‖.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 15 of 40

23. Mahendra, in his statement under Section 313 of the Cr.P.C.,
while accepting the fact of his marriage with ‗M’, and the
consummation thereof, categorically denied all allegations of his
having introduced Vijeta, to ‗M’, as his sister, having concealed the
earlier marriage between Vijeta and himself, having received ₹ 2.5
lakhs, having tortured ‗M’ or remained away from home for
protracted periods of time, or having had anything to do with the theft
which took place at the house of Sushma Nagpal (PW-3) on 23rd July,
2011. He also denied the allegation that, on 4th/5th August, 2011, ‗M’
saw a news clip on the television, regarding the said theft, which
indicated that he, in connivance with Vijeta, had orchestrated it, and
that he was already married to Vijeta with one girl child, indicating
that he had cheated ‗M’. He also denied the suggestion that, from the
photographs Ex. P-12/B-1 to B-3, P-1, P-2 and P-3, and the
documents seized vide Seizure Memo Ex. PW-11/B, PW-12/A, PW-
14/B and PW-14/C, it was clear that he was known by two names, i.e.
Mahendra and Manish, and that Vijeta was also known by two names,
i.e. Vijeta and Varsha. Significantly, while accepting (i) the fact of the
Police having informed Sushma Nagpal that the articles stolen from
her residence were recovered from the possession of Mahendra and
Vijeta, (ii) the reflection, in the birth certificate of Ishika (Ex. PW-
13/B), as well as in the records of the Hospital (Ex. PW-13/A), of
himself and Varsha as the parents of Ishika, (iii) the recording, by the
IO, of his disclosure statement (Ex. PW-9/D), (iv) the seizure, at his
instance, of the property papers, address proof, affidavit, GPA,
Agreement to Sell, Sale Deed, Will and Ikrarnama, from his house at
F-22, Nangloi, vide Seizure Memo Ex. PW-12/A, (v) the reflection, in

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 16 of 40
the property document and Ikrarnama, of Vijeta as Smt. Vijeta
Sharma, and himself as Mahendra Sharma, (vi) the fact that, in the
affidavit, GPA, Agreement to Sell, possession letter, Will and receipt,
the name of Vijeta apeared as Varsha Sharma, and his name appeared
as Manish Sharma, and (vii) he having been shown as the ―proposer‖,
and Vijeta as the ―nominee‖, in the papers relating to the ICICI
Prudential Life Insurance, he merely stated that they were a ―matter of
record‖. As did Vijeta, Mahendra, too, accepted, as a ―matter of
record‖, his having been shown as the husband of Vijeta, in the
property document Ex. PW-14/D, i.e. Sale Deed dated 24th July, 2008,
but stated that he ―was living with the accused though as husband and
wife but it was a live-in relationship‖.

Documentary Evidence

24. The documents, which would be pivotal to adjudicating on the
controversy before us, were seized, by the IO, under the following
three Seizure Memos:

(i) Vide Seizure Memo dated 20th August, 2013 (Ex. PW-
12/A), the following documents/papers, produced by Ankit
Nagpal (PW-12), were seized:

(a) some property papers,
(b) an ―address proof affidavit‖,
(c) a GPA,
(d) an Agreement to Sell,
(e) a Deed of Will,
(f) an Ikrarnama,

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 17 of 40
(g) birth certificate of the daughter of Vijeta and

Mahendra, issued by the Municipal Corporation of Delhi
(MCD),

(h) Hospital papers,

(i) papers relating to the life insurance policy taken
on ICICI Prudential,

(j) a press release and

(k) three photographs.

The Seizure Memo further stated that the above documents
showed that Mahendra @ Manish and Vijeta @ Varsha were
married and that they had one daughter. It merits mention,
here, that all the documents, referred to from (a) to (j) supra
and exhibited, collectively, as Ex. PW-12/A, were photocopies.
As regards the source of procurement of these photocopies, as
already noted hereinabove, Ankit Nagpal (PW-12) stated, in his
cross-examination on 24th September, 2014, that ―some of the
documents were found from the house of accused which was
situated at Safdarjung Enclave and some of the documents were
obtained by me from City Hospital and MCD office.‖ It is also
relevant to mention that, of these photocopies, the photocopy of
the Birth Certificate, dated 27th September, 2012, of Ishika was
verified, during trial, by PW-13 Raman Viz, the Sub- Registrar
(Birth and Death) of the New Delhi Municipal Corporation
(NDMC), by comparison with the computer record, subsequent
whereto it was re-exhibited as Ex. PW-14/D-1.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 18 of 40

(ii) Vide another Seizure Memo, also dated 20th August,
2013 (Ex. PW-11/C), the marriage certificate, dated 30th
August, 2010, of ‗M’ with Manish @ Mahendra, issued by the
Arya Samaj Temple, Vasant Vihar, in which Manish @
Mahendra showed himself as unmarried, was seized.

(iii) Vide Seizure Memo, dated 25th October, 2013 (Ex. PW-
5/A), certified copies of certain documents, relating to sale and
purchase of property at Khasra No 44, Awasiya Colony, Om
Vihar, Loni, Ghaziabad, which were transacted between Vijeta
and Om Prakash were, at the instance of Mahendra, recovered
from House No F-22, Nangloi, in which Vijeta Sharma was
shown as the wife of Mahendra Singh.

25. Inasmuch as the marriage between Mahendra and ‗M’ is not
disputed by anyone before us, no reference is being made to the
documents which solely relate to, and prove, the said marriage.

The Impugned Judgement

26. The impugned judgement, dated 24th February, 2016, acquits
Vijeta of all charges against her, while convicting Mahendra under
Sections 376, 493 and 495 of the IPC, and proceeds on the following
reasoning:

(i) It was settled, by the judgement of the Supreme Court in
Bhupender Singh vs U.T. of Chandigarh, (2008) 8 SCC 531,
that entering into sexual relations, with the wife of a second
marriage, during the subsistence of an earlier marriage,

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 19 of 40
amounted to ―rape‖, within clause ―Fourthly‖ of Section 375
(2) of the
IPC.

(ii) The birth certificate of Ishika (Ex. PW-13/B), wherein
Vijeta had been shown as her mother and Manish as her father,
had been proved by Raman Viz (PW-13), from the office of the
Sub- Registrar.

(iii) The objection to Ex. PW-14/D, i.e. the Sale Deed, dated
24th July, 2008, to the effect that the document was only a
certified copy, was not available to the accused, in view of the
legal position that an objection, regarding the mode of proof of
a document was required to be taken at the first available
opportunity, failing which the admissibility of the document
could not be challenged at a later stage.

(iv) Meeting of minds, and a common agreement to commit a
crime, were the essentials of the offence of ―criminal
conspiracy‖, contemplated by
Section 120-B of the IPC.

(v) Though the prosecutrix ‗M’ alleged that Vijeta had
visited her house once, in August, 2010, none of the witnesses
were able to prove the exact date and time of her visit, in the
company of Mahendra.

(vi) Further, PW-3 Sushma Nagpal had stated that it was
Mahendra who said that he was unmarried, whereas Ankit
Nagpal (PW-12) stated that both Mahendra and Vijeta said that
Vijeta was unmarried, even though he admitted that he himself
was not present on the said occasion. Except for a bald
statement, therefore, there was no evidence available on record,

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 20 of 40
on the basis of which it could be said, conclusively, that Vijeta
had visited the house of ‗M’ in August, 2010.

(vii) Moreover, PW-3 deposed, in her cross examination, that,
when they visited the house of Mahendra, Vijeta was not found
there. Given our societal mores, it was uncommon, in such
circumstances, for the absence of Vijeta, supposedly the sole
relative of Mahendra, at the time of his marriage, to go
unnoticed, or for her not to have been invited to the marriage
by the parents of ‗M’. Neither was there any explanation
forthcoming as to why, when the other relatives of Mahendra
were present at the marriage, no enquiry, regarding the absence
of Vijeta, was made.

(viii) It was an admitted position that Vijeta did not attend the
marriage of Mahendra and ‗M’.

(ix) It was highly doubtful whether Vijeta would introduce
Mahendra as an unmarried person, so as to hatch a conspiracy
to solemnise his second marriage with the prosecutrix ‗M’,
concealing the fact that she herself was married to him at the
time.

(x) In these circumstances, the delayed lodging of complaint,
on 16th August, 2013, though ‗M’, and her family, came to
know of the earlier marriage of Mahendra with Vijeta on 4 th/5th
August, 2011, assumed significance, especially when there was
no explanation for such delay. The possibility of the belated
complaint having been made as an afterthought, to falsely
implicate Vijeta, who was already a co-accused with Mahendra

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 21 of 40
in FIR No 190/11, dealing with the theft of ₹ 80 lakhs from the
house of the prosecutrix ‗M’, could not be ignored.

(xi) In these circumstances, the prosecution could not be said
to have established its case against Vijeta beyond reasonable
doubt.

(xii) The submission of Mahendra, that he, and Manish, were
not one and the same person, was an afterthought. There was
nothing on record, to suggest that the appellant was not using
the name ―Manish‖ as well. This defence had been taken after
conclusion of the trial. In his entire statement, under
Section
313 Cr.P.C., Mahendra never stated that he was not known by
the name ―Manish‖. In the entire record of the trial, Mahendra
figured as ―Mahendra @ Manish‖, and never objected thereto.
Moreover, when questioned regarding the birth certificate of
Ishika (Ex. PW-13/B), in which his name was shown as Manish
Sharma, and Vijeta’s name was shown as Varsha, Mahendra
merely said that it was a ―matter of record‖. This objection was,
therefore, without substance.

(xiii) The birth certificate of Ishika (Ex. PW-13/B) proved,
beyond reasonable doubt, that Mahendra was married to Vijeta
@ Varsha. The hospital records (Ex. PW-13/A) also suggested
that the baby girl was born out of the wedlock of Mahendra and
Vijeta. These exhibits had been duly proved by PW-13, and no
objection was raised, at the time of exhibition thereof. Even
otherwise, they were certified copies and admissible in
evidence.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 22 of 40

(xiv) The Sale Deed, dated 24th July, 2008 (Ex. PW-14/D),
executed in favour of Vijeta, which was recovered at the
instance of Mahendra, further established, beyond reasonable
doubt, the fact that Vijeta was the wife of Mahendra. This
document was much prior to the marriage of Mahendra with
‗M’, which took place only on 30th August, 2010.

(xv) In the circumstances, it was clear that Mahendra had
contracted his second marriage, with the prosecutrix ‗M’,
during the lifetime of his first wife, by concealing the fact of
his earlier marriage, and deceitfully causing Vijeta to believe
that she was lawfully married to him, though the said marriage
was void ab initio. As such, Mahendra was liable to be held
guilty and convicted for offences under
Section 376, 493 and
495 of the IPC.

27. Vide subsequent order, dated 26th February, 2016, the learned
ASJ held that, as Mahendra had ―not only ravished the prosecutrix
physically but he also ravished her mentally knowing very well that
prosecutrix is a divyang and is totally dependent upon him‖ and had,
thereby, ―ruined the entire family of the prosecutrix and committed
the breach of the trust imposed by the family that he will look after
the prosecutrix being „Ghar Jamai‟‖; and that as it was ―clear that he
(was) a manipulating man and he tried to take all kind of advantages
because of the vulnerability of the prosecutrix being the divyang and
contracted the second marriage and even cohabited with the
prosecutrix and established physical relationship under misconception
of the prosecutrix of being his legally wedded wife‖; there were no
―mitigating circumstances to take a lenient view while awarding the
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 23 of 40
sentence‖. Opining, therefore, that ―the cases like in hand must set an
example in the society that once there is conviction, there is no undue
sympathy while awarding the sentence upon the convict‖, and
―considering the gravity of the offence and peculiar nature of the
case‖, the learned ASJ sentenced Mahendra to rigorous imprisonment
of life and fine ₹ 5 lakhs with default simple imprisonment of 2 years,
for the offence punishable under
Section 376 of the IPC, rigorous
imprisonment for 10 years and fine of ₹ 1 lakh, with default simple
imprisonment for one year, for the offence punishable under
Section
493 of the IPC, and rigorous imprisonment for 10 years and fine of ₹
1 lakh, with default simple imprisonment of one year, for the offence
under
Section 495 of the IPC, with the merciful caveat that the
sentences would run concurrently.

Analysis

28. The most – indeed, the only – definitive authority, regarding
the applicability of clause ―Fourthly‖ of
Section 375 (2) of the IPC, in
a case such as this, it is, undoubtedly Bhupender Singh (supra),
authored by Arijit Pasayat, J., for himself and P. Sathasivam, J. The
facts, in that case, are broadly similar to those obtaining in the
present. The complainant Manjit Kaur filed a complaint, against the
appellant Bhupender Singh, alleging that, misrepresenting himself as
unmarried, Bhupender Singh developed intimacy with her, and
proposed marriage, to which she agreed, following which they got
married. The marriage was consummated. Later, she got to know that
Bhupender Singh was already married to one Gurinder Kaur, and that
they had children out of the said wedlock. She filed a complaint,

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 24 of 40
leading to registration of an FIR, against Bhupender Singh, under
Sections 420/376/498-A of the IPC. It was sought to be contended, by
Bhupender Singh, before the Supreme Court, that the complainant
Manjit Kaur had consented to sexual intercourse with him, even after
knowing the fact that he was married and that, therefore, clause
―Fourthly‖ of
Section 375 of the IPC, would have no application. The
Supreme Court rejected the said contention, in para 16 of its
judgement, holding thus:

―Though it is urged with some amount of vehemence that
when the complainant 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 appellant-accused 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 appellant-accused could not have lawfully married the
complainant. A bare reading of clause ―Fourthly‖ of
Section
375 IPC makes this position clear.‖
(Emphasis supplied)

29. Section 375 of the IPC, with clause ―Fourthly‖, thereto, reads
as under:

―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:-

(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.‖

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 25 of 40

30. Section 375 ―Fourthly‖ has, therefore, two essential ingredients,
i.e. (i) that the prosecutrix should not be lawfully married to the
accused and (ii) that the prosecutrix should, however, believe herself
to be lawfully married to the accused, resulting in her giving consent
for sexual intercourse. It is important to highlight, here, that, as held
in Bhupender Singh (supra), knowledge, by the second wife (we will
for the sake of convenience refer to her thus, though the second
marriage was void), of the subsisting first marriage, is not a sine qua
non, for clause ―Fourthly‖ to apply.

31. Two questions, therefore, would arise in the present case, i.e.

(i) whether the prosecutrix ‗M’ was lawfully married to
Mahendra and,

(ii) if not, whether she consented to sexual relations with
Mahendra because she believed herself to be lawfully married
to him.

32. It is only if the answer to the first question is in the negative,
and the answer to the second question is in the positive, that
Mahendra could be alleged to have committed the offence of rape,
under clause ―Fourthly‖ of
Section 375 of the IPC.

33. The prosecution has alleged, and the learned ASJ has found,
‗M’ not to have been lawfully married to Mahendra, for the reason
that the marriage of Mahendra, with Vijeta, was subsisting at the time.
It is this finding which is principally challenged by learned counsel
appearing for Mahendra before us, by contending that, in fact,

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 26 of 40
Mahendra was never married to Vijeta, and that they only shared a
live-in relationship. The consequence, he would submit, would be that
the marriage of Mahendra with ‗M’ was perfectly valid, and that the
sexual activity, between them, having taken place within the confines
of a valid marriage, could not, by any stretch of imagination, visit his
client with penal consequences.

34. Were, then, Mahendra and Vijeta married, or were they only
sharing a live-in relationship? While examining this aspect, we have
to be mindful of the fact that criminal consequences, impinging on the
life and liberty of the persons concerned, would result from our
decision and that, therefore, the fact has to be established beyond
reasonable doubt, and not merely on probabilities.

35. The learned ASJ has held that Mahendra and Vijeta were
married, on the basis of (i) the birth certificate, dated 27th September,
2012 of Ishika (Ex. PW-13/B), (ii) the related Hospital papers (Ex.
PW-13/A) and (iii) Sale Deed, dated 24th July, 2008 (Ex. PW-14/D).

36. We need not labour much, on the birth certificate of Ishika (Ex.
PW-13/B), in view of the answers, provided by Vijeta to Question No.
3, and by Mahendra to Question No. 10, put to them during the course
of recording of their statements under
Section 313 of the Cr.P.C. The
questions, and responses, may be reproduced as under:

To Vijeta:

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 27 of 40

Q3. It is further evidence against you in testimony of PW-
13 that as per birth certificate Ex. PW-13/B in which your
name is appearing against the name of mother/father as
Manish Sharma and Varsha and relevant records of the
hospital Ex. PW-13/A, a female child was born to you and co-
accused at City Hospital, Main Samaypur, New Delhi and
this birth was registered at Sl.No.MCDOLIR-0111-
004758113. What have you to say?

Ans. It is correct.

To Mahendra:

Q10. It is further in evidence against you in testimony of
PW-13 that as per birth certificate Ex. PW-13/B in which
your name along with co-accused is appearing against the
name of father/mother as Manish Sharma and Varsha and
from relevant records of the hospital Ex. PW-13/A, a female
child was born to your wife/co-accused at City Hospital,
Main Samaypur, New Delhi and this birth was registered at
Sl. No. MCDOLIR-0111-004758113. What have you to say?

Ans. It is a matter of record.

(Emphasis supplied)

37. ―Matter of record‖, we may note, is a term of law, and not of
art, and has a definite connotation. The expression is defined, in P.
Ramanatha Aiyar’s authoritative Advanced Law Lexicon as ―facts the
truth of which can be established by reference to a record‖, ―any
judicial matter or proceeding entered on the records of a Court, and to
be proved by the production of such record‖ and ―matter evidenced by
record and provable only by the record or an authenticated copy‖. As
such, by referring to the fact that Ishika was the child of Varsha and
himself, as a ―matter of record‖, in the context of the birth certificate,
Mahendra not only impliedly acknowledged himself and Varsha as
being the father, and mother, respectively, of Ishika, but also admitted

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 28 of 40
that he was also known as ―Manish‖ and that Vijeta was also known
as ―Varsha‖. This frank admission, of Mahendra, perhaps attributable
to the disinclination, of every parent, to disown her, or his own
offspring, also stands corroborated by the testimony of Vijeta, which
accepted the contents of the birth certificate in a far more unequivocal
manner.

38. It merits reiteration, in this context, that the birth certificate,
dated 27th September, 2012, though a photo copy, was proved by PW-
13 Raman Viz, the Sub-Registrar of Births and Deaths, by verification
with the computer record, whereafter it was re-exhibited, in the
evidence of SI Poonam Yadav (PW-14), as Ex. PW-14/D-1.

39. In view of the acceptance and acknowledgement, by both
Mahendra and Vijeta, of the birth certificate of Ishika, as well as the
contents thereof, any further reference to the Hospital records, is
rendered unnecessary. It is obvious, therefore, that the fact of
Mahendra and Vijeta being the father, and mother, respectively, of
Ishika, stands conclusively proved.

40. Having said that, however, it is a simple biological truism that
there is no presumption, either in law or in fact, that the parents of a
child are necessarily married to each other; least of all could such a
presumption be drawn, where criminal consequences could result
therefrom. There is no reference, in the birth certificate of Ishika, or in
any of the associated Hospital Documents, as exhibited in these
proceedings, to Mahendra and Vijeta as husband and wife; all that

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 29 of 40
these documents indicate is that they were the father, and mother,
respectively, of the girl child. Law has to factor in itself changing
societal, and social, mores, and, in an age in which the sacramental
bond of marriage is often sacrificed at the altar of the more
―convenient‖ live-in association, parentage can no longer be regarded
as creating any kind of presumption – even rebuttable – of marriage.
Significantly, live-in-relationships have also, now, been accorded
legislative imprimatur, with ―relationships in the nature of marriage‖
being included in the definition of ―domestic relationships‖ in clause

(f) of Section 2 of the Protection of Women from Domestic Violence
Act, 2013 as has been held by A.K. Sikri, J in
Nanda Kumar vs. State
of Kerala, 2018 SCC OnLine SC 492. We observe, here, that a
Division Bench of this Court has, in
Suman Singh vs. Vinod Kumar,
2012 SCC OnLine Del 4174, held that even if paternity were to be
established by DNA testing, ―that by itself would not establish the
existence of a marriage between parties‖. We, therefore, have
necessarily to hold that the reliance, by the prosecution, on the birth
certificate of Ishika, and on the associated Hospital documents, does
not advance its case to any extent, as these documents cannot go to
indicate, far less prove, that Mahendra and Vijeta were married.

41. Adverting, now, to the Sale Deed Ex. PW-14/D, we find that
the document is a certified copy of the original, duly certified under
the seal of the Sub-Registrar, Ghaziabad. It represents a transaction
between Om Prakash and ―Smt. Vijeta Sharma, wife of Sh. Mahendra
Sharma‖. It bears the photographs of both parties to the transaction,
i.e. Om Prakash and Vijeta Sharma, as well as their respective

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 30 of 40
thumbprints. The photograph of Vijeta, as it figures on the body of the
said document, when compared with the photographs Ex. P-12/B-1 to
Ex. P-12/B-3, also establishes the identity of Vijeta. When questioned,
regarding this Sale Deed, and the representation, thereon, of Vijeta as
―Smt. Vijeta Sharma, wife of Mahendra Sharma‖, the response of
both Vijeta, and Mahendra, in their statements recorded under
section
313 of the Cr.P.C., was that it was ―a matter of record‖.
Section 79 of
the Indian Evidence Act, 1872 (hereinafter referred to as ―the
Evidence Act‖) enjoins on the Court to ―presume, to be genuine, any
document purporting to be a certificate, certified copy, or other
document, which is by law declared to be admissible as evidence of
any particular fact and which purports to be duly certified by any
officer of the Central Government or of a State Government, or by
any officer in the State of Jammu and Kashmir who is duly authorised
thereto by the Central Government‖, provided only that ―the
document is substantially in the form, and purports to be executed, in
the manner directed by law in that behalf‖. The said Section further
enjoins, on the Court, to ―presume that any officer by whom any such
document purports to be signed or certified, held, when he signed it,
the official character which he claims in such paper‖. The implication
of
Section 79 of the Evidence Act, on the present case, is obvious; a
presumption exists, in law, that the Sale Deed (Ex. PW-14/D), and the
recitals therein, are genuine. The presumption would, therefore, shift
to the person claiming that the document is not genuine, to so
establish. In the present case, far from there being any claim, either by
Mahendra or Vijeta, that the Sale Deed was not genuine, both of them
have frankly confessed the recitals, in the said document, to their

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 31 of 40
being husband and wife, to be a ―matter of record‖. The document
bears the photograph, and the thumb impression, of Vijeta, and was
recovered, at the instance of Mahendra, from his residence at F-22,
Nangloi, vide Seizure Memo Ex. PW-5/A, which was itself proved by
PW-5 Const. Vipin Kumar as well as by PW-14 SI Poonam Yadav.
Section 106 of the Evidence Act would, clearly, cast the onus, on
Vijeta and Mahendra, to explain the circumstances in which they were
shown as wife and husband in the said document and, if the document
did not so indicate, how it was recovered, at the instance of Mahendra,
from the premises occupied by him. No attempt, far less effort, has
been made to discharge this onus; consequently, the inevitable
conclusion is that the marital relationship between Vijeta and
Mahendra stands proved by the recital, in the Sale Deed Ex. PW-
14/D, to the said effect.

42. Without referring to the other exhibited documents, which are
photocopies, we are, therefore, in agreement with the finding, of the
learned ASJ, that the fact of Vijeta being the wife of Manish @
Mahendra, stood proved by the prosecution. The submission, of Mr.
Ajit Kumar appearing for Mahendra, to the effect that Vijeta and
Mahendra were only in a live-in relationship is, therefore, rejected.

43. Per corollary, the marriage, between Mahendra and ‗M’ was
void; Mahendra could not, therefore, be regarded as the ―husband‖, in
law, of ‗M’. The first ingredient of clause ―Fourthly‖, in
Section 375
of the IPC, therefore, stood satisfied.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 32 of 40

44. The second ingredient, also required to be simultaneously
satisfied before clause ―Fourthly‖ could kick in with full force, would
be whether consent, to sexual intercourse with Mahendra, was
granted, by ‗M’, because she believed herself to be lawfully married
to him.

45. That this requirement, of clause ―Fourthly‖ in Section 375 of
the IPC, stands satisfied, is apparent from the fact that sexual
relations, between ‗M’ and Mahendra commenced only consequent
upon, and subsequent to, their marriage. ‗M’ consistently deposed, in
her statement under
Section 164 of the Cr.P.C., as well as in her
deposition during trial (as PW-11), that she, and Mahendra, had
physical relations ―after marriage‖. No suggestion, to the effect that
any sexual intimacy existed, between the prosecutrix ‗M’ and
Mahendra, prior to their marriage, was even put to her in cross-
examination; neither has such a case been put forward by Mahendra
or Vijeta, at any stage of the proceedings. Mahendra, too, admitted as
much in his testimony under
Section 313 of the Cr.P.C., as is
evidenced by ―Q4‖, put to him during the course thereof, and his
response thereto:

―Q4. It is further in evidence against you in testimony of
PW 11 that after marriage you made physical relationship
repeatedly with PW 11. What have you to say?

A. It is correct.‖
(Emphasis supplied)

It is apparent, therefore, that the motivation, for physical relationship
with Mahendra, insofar as ‗M’ was concerned, was the fact that she
Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 33 of 40
was married to him. The second ingredient of clause ―Fourthly‖, in
Section 375 of the IPC also, thereby, stands satisfied.

46. In this view of the matter, the question of whether, at the time
of submitting herself to sexual intercourse with Mahendra, ‗M’ had,
or did not have, knowledge, regarding his earlier, albeit subsisting,
marriage with Vijeta, pales into insignificance, especially in view of
the law laid down by the Supreme Court in Bhupender Singh
(supra), which specifically rejected the defence, by the errant husband
in that case, that his prosecutrix-wife had consented to sexual
intercourse with the full knowledge of his earlier marriage. The
conviction, of Mahendra, under
Section 376 of the IPC, therefore,
deserves to be sustained.

47. With that, we proceed, now, to the conviction, of ‗M’, under
Sections 493 and 495 of the IPC.

48. Section 493 of the IPC reads as under:

―493. Cohabitation caused by a man deceitfully inducing
a belief of lawful marriage. – Every man who by deceit
causes any woman who is not lawfully married to him to
believe that she is lawfully married to him and to cohabit or
have sexual intercourse with him in that belief, shall be
punished with imprisonment of either description for a term
which may extend to 10 years, and shall also be liable to
fine.‖

49. A comparison of Section 493, with clause ―Fourthly‖ of Section
375, of the
IPC, reveal that they are similarly worded, in that both
contemplate submission, of the wife, to sexual relations with the

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 34 of 40
accused, in the belief that she is lawfully married to him. The point of
difference, between the two provisions, is the introduction, in
Section
493, of the element of ―deceit‖, on the part of the man. To the same
effect, in a case such as the present, would operate
Section 495 of the
IPC, which reads thus:

―495. Same offence with concealment of former marriage
from person with whom subsequent marriage is
contracted. – Whoever commits the offence defined in the
last preceding section having concealed from the person with
whom the subsequent marriage is contracted, the fact of
former marriage, shall be punished with imprisonment of
either description for a term which may extend to 10 years,
and shall also be liable to fine.‖

50. The justifiability, of the conviction of Mahendra, under Section
493 and
495 of the IPC, it is obvious, would depend on whether it
could be said that he had deceitfully concealed, from ‗M’, the fact of
his former marriage with Vijeta.

51. ―Deceit‖ and ―concealment‖ are positive elements, which,
therefore, require to be proved, beyond reasonable doubt, by the
prosecution. When we scan the entire evidence in the present case, we
find that the only evidence, of concealment, from ‗M’, of the fact that
Mahendra had earlier been married to Vijeta, is to be found in the
testimonies of the prosecutrix ‗M’ herself, and of her mother Sushma
Nagpal, deposing as PW-3. Ankit Nagpal (PW-12), too, has testified
to the same effect, but has, in the very same breath, admitted that he
was not present at the time of the alleged visit, by Mahendra and
Vijeta, to their house, in August, 2010; his testimony is, thereby,
reduced to hearsay. Mahendra and Vijeta, in their statements under

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 35 of 40
Section 313 of the Cr.P.C., have categorically denied the said
allegation. There is no independent corroboration of the alleged
misrepresentation, by Mahendra and Vijeta, that Vijeta was the sister
of Mahendra, or, for that matter, of Mahendra and Vijeta having
visited Sushma Nagpal at the prosecutrix, at all, in August, 2010. The
only evidence to this effect being in the form of the belated complaint,
dated 16th August, 2013, by ‗M’ in the Police Station, supported by
the later testimonies, by ‗M’ and her mother, during trial, we share the
reluctance, of the learned ASJ, to accept, at face value, the allegation
that such a visit had occurred and that, during such visit, it was
misrepresented, to them, that Mahendra and Vijeta were brother and
sister. In fact, we are surprised at the fact that, having acquitted Vijeta,
on the basis of the said reasoning, the learned ASJ, nevertheless,
convicted Mahendra, under
Sections 493 and 495 of the IPC. In the
absence of any other corroborative evidence, we are unable to hold
that there was positive deceit, or concealment, practised by Mahendra,
or by Vijeta, on the supposedly innocent prosecutrix ‗M’, which
persuaded her to agree to cohabit with Mahendra.

52. In the circumstances, we are unable to sustain the conviction, of
Mahendra, by the learned ASJ, under
Sections 493 and 495 of the
IPC.

53. We, however, concur with his decision to acquit Vijeta,
entirely, of all charges against her. The gravamen of the charge,
against Vijeta, is conspiracy, on her part, with Mahendra, in inducing
the prosecutrix ‗M’, to enter into sexual relations with Mahendra. The
learned ASJ is correct in observing that the sine qua non, for

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 36 of 40
conspiracy, under
Section 120-B of the IPC, is mental conclave, for
commission of the offence in question. In view of the fact that we
have upheld the applicability, to the present case, of clause ‗Fourthly’,
of
Section 375 of the IPC, on the twin considerations of the marriage
between Mahendra and ‗M’ being void by reason of his subsisting
earlier marriage with Vijeta, and the submission, by ‗M’, for sexual
intercourse with Mahendra, only because of her marriage to him, the
question of any conspiracy, of Vijeta, in the matter, does not arise at
all. Even otherwise, we agree with the learned ASJ that there is no
evidence of Vijeta herself having ever been privy to deceitful
concealment, by Mahendra or by anyone else, of the fact that she was
married to him and not his sister. Barring the uncorroborated
testimonies of the prosecutrix and Sushma Nagpal (PW-3), there is
precious little – indeed, nothing at all – to substantiate such a charge.
‗M’ admitted, in her statement, that no such allegation was contained
either in her statement to the Investigating Officer, or in her complaint
(Ex.PW-16/A). She also admitted that Vijeta did not attend her
marriage with Mahendra. Sushma Nagpal (PW-3), while deposing on
similar lines further conceded that she had never come across any
proof that Mahendra had married Vijeta. If Vijeta had, indeed, visited
the home of the prosecutrix with Mahendra, masquerading as his
sister, we fail to understand why she was not invited to their marriage,
or how her absence, on the said occasion, went unnoticed, without
inviting any comment. We agree, with the learned ASJ, therefore,
that the charge of conspiracy, foisted on Vijeta, was without any
substance at all, and that she, therefore, deserved to be acquitted of the
said charge.

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 37 of 40

Sentence

54. Coming, now, to the aspect of sentence, it is apparent, at the
very first glance, that the learned ASJ has been needlessly harsh, in
the matter of awarding sentence to Mahendra. The observations
entered by the learned ASJ, in his order on sentence, dated 26 th
February, 2016 [which we have quoted in para 27 (supra)] appear, to
us, to be completely fanciful and platitudinous and totally
unwarranted, to say the least, in the facts of the present case. It is only
the interpretation of clause ―Fourthly‖ of
Section 375 of the IPC, as
provided by the Supreme Court, in its judgement in Bhupender Singh
(supra), that has persuaded us to uphold the conviction, of Mahendra,
under
Section 376; else, it is difficult to believe that the prosecutrix
‗M’ was entirely unaware of the earlier subsisting marriage between
Vijeta and Mahendra, till the time of her filing her belated complaint,
in the Police Station, on 16th August, 2013. The explanation, that it
was only pursuant to an item shown on a TV news channel, that ‗M’,
and her mother Sushma Nagpal (PW-3) became aware of the earlier
marriage between Mahendra and Vijeta, is, on the face of it, not
believable. No evidence, to support this assertion, is available on
record. Neither is any explanation, worth the name, preferred,
regarding the delay of two more years before ‗M’ sought to complain
to the Police. To us, it is apparent, that, while, by virtue of the fact that
Mahendra was aware of his earlier marriage with Vijeta and,
consequently, of his marriage with ‗M’ being void in law, and that
Vijeta submitted to sexual intercourse with Mahendra only after their
marriage, Mahendra stood exposed to the penal consequences
contemplated by
Section 376 of the IPC, the prosecutrix ‗M’ could not

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 38 of 40
be likened to an innocent prey of a sexual predator. There is no
allegation, at any point in the proceedings, of Mahendra having
compelled, far less forced, ‗M’ to submit to his sexual overtures.
Rather, it is clear that, of her own will and volition and with full
consent (in fact, if not in law), ‗M’ maintained a normal sexual
relationship with Mahendra, and that the provocation, for her to set in
motion, against him, the criminal law of the land, was only the fact of
his earlier having been married to Vijeta of which, ‗M’ would assert,
she came to know much later. To visit Mahendra, in such a situation,
with the extreme penalty of rigorous imprisonment for life appears, to
us, preposterous. We are of the view, therefore, that, in the peculiar
circumstances of this case, a punishment of 7 years’ rigorous
imprisonment, with proportionate reduction of fine, would be more
than sufficient, to deter Mahendra from indulging in such sexual
adventurism in future.

Conclusion

55. Resultantly, we dispose of these appeals in the following terms:

(i) Crl Appeal 1010/2017 and Crl Appeal 1011/2017 are
dismissed.

(ii) Crl Appeal 388/2016 is partly allowed. The conviction of
Mahendra under
Sections 493 and 495 of the IPC, and the
corresponding sentence awarded to him, therefor, by the learned
ASJ in the impugned judgement and order, are set aside. The
conviction of Mahendra under
Section 376 of the IPC is,
however, upheld. The sentence awarded to him, by the learned

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 39 of 40
ASJ, for the said offence is, however, reduced to 7 years’
rigorous imprisonment, with fine of ₹ 10,000/-, in default
whereof he would have to suffer simple imprisonment for three
months more.

56. Trial Court record be sent back with copy of the judgement.

Intimation be sent to Superintendent Jail.

C.HARI SHANKAR
(JUDGE)

S. P. GARG
(JUDGE)
MAY 30, 2018
dsn/Ashish

Crl. A. Nos. 388/2016, 1010/2017 1011/2017 Page 40 of 40

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh