Writ Petition Crl No 562 of 1986 Under Article 32 of the Constitution of India Ms Geetha Ramaseshan and Ms Seita Vaidilingam for the Petitioner
DN Dwivedi Ashok K Srivastava and section Suri for the Respondents
75 The Judgment of the Court was delivered by THAKKAR J
Not only the option to make up  or break up  but also the right to haul up  the erring husband before a Criminal Court is claimed by the aggrieved wife irrespective of the fact that the husband of an erring wife does not have a corresponding right
Or else the conscience of the EQUALITY  clause will not be appeased is the plea made by the anguished wife
Accordingly a constitutional gun has been pointed at the provision which in its effect permits only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the adulterer to do so
True it is neither of the spouses can prosecute each other
But the aggrieved wife complains that to deny her the right to prosecute her offending husband for the offence of adultery punishable under Section 497 of the Indian Penal Code is to violate the Constitution by discriminating against her on the ground of her sex
The provision which disables the wife from prosecuting the husband for such an offence is embodied in Section 1981 read with Section 1982i of the Code of Criminal Procedure 1973 which carves out an exception to the general rule that any one can set the criminal law in motion
The constitutional validity of this provision which disables the wife from prosecuting the husband has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India
Be it realised that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery
Thus the law 1 198
Prosecution for offence against marriage 1 No Court shall take congnizance of an offence punishable under Chapter XX of the Indian Penal Code 45 of 1860 except upon a complaint made by some person aggrieved by the offence Provided that a xxxxx b xxxxx 2 For the purposes of sub section 1 no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code Provided that in the absence of the husband some person who had care of the woman on his behalf at the time when such offence was committed may with the leave of the Court make a complaint on his behalf
 76 permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her
Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law
The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife the wife cannot be lawfully disabled from prosecuting her disloyal husband
And that in so far as and to the extent Section 1982 of the Code of Criminal Procedure operates as a fetter on the wife in prosecuting her adulterer husband the relevant provisions is unconstitutional on the ground of obnoxious discrimination she asserts
This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu vs Union of India  Anr  in the context of a challenge to the constitutionality of Section 4972 of the Indian Penal Code by an adulterer who had been prosecuted for the offence of adultery under Section 497 of the Indian Penal Code by the husband of the adultress
Three grounds were pressed into service in support of the challenge rooted in Article 14 of the Constitution of India in Sowmithri Vishnu s case supra
Ground No 2 was in the following terms Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman
This ground of challenge has been dealt with by this Court in para 8 of the said judgment wherein Chandrachud CJ
spoke thus on behalf of the Court In so far as the second of the three grounds is concerned Section 497 does not envisage the prosecution of the wife by the husband for adultery 
The offence of adultery as defined in that section can only be committed by a man not by a woman
Indeed the section provides expressly that the wife shall not be punishable even as an abettor
No grievance can then be made that the section does not allow 2
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man such sexual intercourse not amounting to the offence of rape is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both
In such case the wife shall not be punishable as an abettor
 77 the wife to prosecute the husband for adultery
The contemplation of the law evidently is that the wife who is involved in an illicit relationship with another man is a victim and not the author of the crime
The offence of adultery as defined in Section 497 is considered by the legislature as an offence against the sanctity of the matrimonial home and act which is committed by a man as it generally is
Therefore those men who defile that sanctity are brought with the net of the law
In a sense we revert to the same plint
Who can prosecute who for which offence depends firstly on the definition of the offence and secondly upon the restrictions placed by the law of procedure on the right to prosecute
 Thus this very argument has already been repulsed by this Court albeit in the context of the challenge to Section 497 of the Indian Penal Code
The same bullet has now been fired in order to assail Section 1982 of the Criminal Procedure Code in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress
The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife the wife must have the right to prosecute the disloyal husband
Admittedly under the law the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife in as much as by the very definition of the offence only a man can commit it not a woman
The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to make up  or break up  the matrimonial tie rather than to drag each other to the criminal court
They can either condone the offence in a spirit of forgive and forget  and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce
They are not enabled to send each other to jail
Perhaps it is as well that the children if any are saved from the trauma of one of their parents being jailed at the instance of the other parent
Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence
For the Court is not the arbiter of the wisdom or the philosophy of the law
It is the arbiter merely of the constitutionality of the law
Section 497 of the Indian Penal Code and Section 1981 read with Section 1982 of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed 78 by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit
The community punishes the outsider  who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring man  alone can be punished and not the erring woman
It does not arm the two spouses to hit each other with the weapon of criminal law
That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail
There is no discrimination based on sex
While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished
There is thus reverse discrimination in favour  of the woman rather than against  her
The law does not envisage the punishment of any of the spouses at the instance of each other
Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband
A husband is not permitted because the wife is not treated an offender in the eye of law
The wife is not permitted as Section 198 l read with section 1982 does not permit her to do so
In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other
Thus no discrimination has been practised in circumscribing the scope of Section 1982 and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer
The provision in question is therefore not vulnerable to the charge of hostile discrimination against a woman and cannot be successfully assailed from that platform
The petition must therefore fail and be dismissed


Summary:
 The prosecution case as appearing from the Fardbeyan or the FIR lodged by PW 3 a social worker was that on 12121987 at about 700 AM he was going to his brother in law and just as he reached the main gate of the Sadar Hospital he saw seven persons 1 Hare Krishna Singh
2 Sheo Narain Sharma 3 Ram Kumar Upadhyaya 4 Jagdish Singh s nephew Paras Singh of Birampur 5 Hare Krishna Singh s brother in law Paras Nath Singh of Dhobaha the appellants and two more whom he could not identify
All these persons were armed with rifle gun and pistol and were standing near the northern side of the eastern gate of the Hospital
At that time two Rickshaws were coming from the eastern side
In the front rickshaw the deceased Jitendra Choudhary was sitting along with another person and in the rear rickshaw were his two sisters PW I and PW 2
As the rickshaw of the deceased came close to these seven persons Hare Krishna Singh fired at the deceased from his gun whereupon the latter fell down from the rickshaw with the rifle which he was carrying
The other persons also fired upon the deceased as a result of which he died
After that Hare Krishna Singh picked up the rifle of the deceased and took to his heels
After investigation by PW 9 the charge sheet was submitted against all the appellants and they were put up for trial
The prosecution examined as many as 9 witnesses of whom PWs
1 2 3 and 8 were eye witnesses
The defence of the appellant Hare 2 Krishna Singh was that while he was going to Patna along with appellant Ram Kumar Upadhyaya and one Madan Singh in a rickshaw and that when the rickshaw in which the deceased was travelling came close to him the deceased fired at him and that he sustained injuries
He examined five witnesses DWs
1 to 5 to prove the nature of injury sustained by him
The defence of Paras Singh of Dhobaha was that he had not visited the village for the last fifteen years while the defence of the other remaining appellants was a denial of their complicity in the crime
The Additional Sessions Judge accepted the prosecution case and convicted and sentenced the appellants to various periods of imprisonment
On appeal by the appellants the High Court affirmed the convictions and sentences
In the appeals by certificate to this Court it was contended a on behalf of Hare Krishna Singh appellant in Crl
A No 69082 that the prosecution having failed to explain the injury sustained by Hare Krishna Singh in the same occurrence such injury being a serious one the prosecution witnesses should be disbelieved and that in such circumstances it should be held that the plea of the appellant of self defense shall be probabilised and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence and that in any event a great doubt had been cast on the prosecution case and the benefit of that doubt should go to the appellant
b on behalf of Paras Singh of Birampur the nephew of Jagdish Singh the sole appellant in Cr A No 61682 that in the FIR his name was not mentioned that PW 3 failed to identify him in the TI Parade that PW 8 did not attend the TI Parade and that he was not present at the time of occurrence
c on behalf of Sheo Narain Sharma the remaining appellant in Crl
A No 69082 and Ram Kumar Upadhayaya sole appellant in Crl
A No 61582 that no specific overt act had been attributed to either of them and the fact that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha could not be sufficient to impute common intention to them
Dismissing Criminal Appeal No 690 of 1982 in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha and allowing it in 3 respect of Sheo Narain Sharma and acquitting him of all the charges and allowing Crl
A Nos 615 and 616 of 1982 and setting aside the convictions and sentences of Ram Kumar Upadhayaya and Paras Singh of Birampur and acquitting them of all the charges
 HELD 1
It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence
The burden of proving the guilt of the accused is undoubtedly on the prosecution
The accused is not bound to say anything in defence
The prosecution has to prove the guilt of the accused beyond all reasonable doubts
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise
12E F 2
When the prosecution comes with a definite case that the offence has been committed by the accused and proved its case beyond any reasonable doubt it becomes hardly necessary for the prosecution to again explain how and in what circumstances the injuries have been inflicted on the person of the accused
12G 3
Simply because the accused has received injuries in the same occurrence it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently he had to defend himself by inflicting injury on the deceased or the injured person
13B C 4
It is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence
13D E 5
Common intention under section 34 IPC is not by itself an offence
But it creates a joint and constructive liability for the crime committed in furtherance of such common intention
16E F 6
As no overt act whatsoever has been attributed to the appellants Ram Kumar Upadhyaya and Sheo Narain Sharma it is difficult to hold in the facts and circumstances of the case that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha
When these two appellants were very much known to the eye witnesses PW 3 and 8 non mention of their names in the evidence as to 4 their participation in firing upon the deceased throws a great doubt as to their sharing of the common intention
The conviction and sentences of these two appellants cannot therefore be sustained
They are therefore acquitted of all the charges
16F G 7
The Additional Sessions Judge has not believed the case of R Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor
The High Court has however come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence
In the facts and circumstances of the case the prosecution is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died
The prosecution witnesses have been believed by the Additional Sessions Judge and High Court
In these circumstances it cannot be thought that the materials on record including the statement of Hare Krishna Singh under section 313 Cr
PC probablise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle
The appellant Hare Krishna Singh has therefore been rightly convicted and sentenced
13E G 14B C F 8
As regards Paras Singh of Dhobaha he was found with the accused persons including Hare Krishna Singh
It is not disputed that he is the brother in law of Hare Krishna Singh as has been described in the FIR
It is the categorical evidence of PWs
1 2 3 and 8 that Paras Singh of Dhobaha had fired at the deceased
He has been identified by PW1 in the TI Parade
In these circumstances there is no reason to interfere with the order of conviction and sentence passed by the Courts below
14F G 9
The prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh s nephew as given in the FIR
PW 3 failed to identify the appellant in the TI Parade
PW 8 did not attend the TI Parade
In such circumstances the High Court was not justified and committed an error of law in relying upon the statements of PWs 3 and 8 made before the police mentioning the names of Paras Singh of Birampur
The prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime and that he was present at the time of occurrence
His conviction and sentence cannot therefore be sustained and are set aside
He is acquitted of all the charges
15C F 5 Bhaba Nanda Sharma vs State of Assam   Ramlagan Singh vs State of Bihar  Onkarnath Singh vs State of UP  Bankey Lal vs State of UP and Bhagwan Tana Patil vs State of Maharashtra  relied on
Lakshmi Singh vs State of Bihar  Mohar Rai vs State of Bihar   Jagdish vs State of Rajasthan   Munshi Ram vs Delhi Administration and State of Gujarat vs Bai Fatima  distinguished