IN TI‘E I-EGH COURT OF JUDICA'IURE AT BILASPUR (CG) cr.‘“Appea1 No? GD} 0f 2005 ( Memcrandum of Cr? Appeal U/s 374 (2) of Cr.P.C. ) / Mahe5h Patel s/o Hari Ram ,aged about 20-21 years, occupation Eailaring, Resident of Indhkavahi, Thana Narharpur,“ District North Bastar Kanker (CG). g P LAN mLT u VerS us ‘ r The Shaw of Chhattisgarh, Through the Dis trict Magis trate Bastar at Jagdalpur (0G). CT ‘ 3 : gEmoRANaUMy? teRIMINAn APPEAL my}: s ‘0? 0r. Pu Gan vi ction" $e‘nt a1 c6“ « U/s 497 of I.P.c. RJ. for 5%1-3 . ry HIGH mum oi: CHHAT1§§GARR§T ggLg§guR (Han. Mr. Justice Pritinker Biwaker) Criminal Appeal Non 91 of 2005 IKPPELLANT Mahesh Pate! VER$US RESPONE‘NENT State of Chhattisgarh. $hri Vishnu Kosta, counsel for appeilant. § $hri Vaibhav Goverdhan PL far the State. u ‘ CREMINAL AP?EAL UNBER SECTmN 374 (2) OF THE QGDE OF CRiMiNAL PROCEBURE. ‘ r J u a: G M E N ‘r x {11.131.2e11) This appeaE is directed against the impugned judgment and order dated 21 12.2004 passed by $peciai Judge SC & 3T Act: Easter, in Sessions Trial N0. 232/2304 convtcting the accused/"appeilant for the offence under Section 497 IPC and sentencing him to undergo rigorous imprisonment for five years. 2. Brief facts of the case are that on 27.{)5.2004‘ FIR Ex. P-i was iodged by the prosecutrix (PW-1) — a married iady aged about 23 years alleging in it that her marriage was soiemnized with Amar Singh on 17.05.2004 at her village Siyarinala and after marriage she was residing with her husband at Barkai. She has aiieged that on 26.05.2004 the appellant who is a taiior by professibn of her village Siyarinaia had come to her in-laws house, had a dinner with her husband and siept in a cot along with her husband whereas she was sleeping on the floor of the said rodm itself. $he has further alleged that at about 11 p.m. the accused/appellant committed sexual vintercourse with her and while he was doing the said act, initially she was under the bona—t’ide belief that it was her husband who was performing sex with her but the moment she came to know that it was accused/appellant who was committing sex with her, she raised her voice then her husband rescued her. On the next day the villagers were called and in the village meeting the appellant had confessed about the commissicn of offence and then the report was lodged. After -2]... investigation the chalEan was filed by the police on 28.96.2004 for the offence under Sections (376 and 5U6 IPC and Section 3 (1) (XH) of SCIS’T’ Act and on 28.092004 the {earned Special Judge has framed the charges against the accused/appeiiant under $ections 3‘76 (D and 506 (H) of IPC. 3. So as to hoid the accused/appefiant guilty, prosecution has examined O6 witnesses in supLoort of its case. Statement of the accused/appeiiant was aiso recorded under section 31 3 of the Code of Criminal Procedure tn which he denied the charges ieveiied against him and pleaded his innocence and faise implication in the case. 4. §y the impugned judgment, the teamed? triai Court has acquitted the accused/appeiiant of the offence under $ection 3% (1} and 506 (2) of IPC but has convicted for a minor offence under 3ection 4937’ of iF’C and sentenced him as mentioned above. 5. Contention of the counsei for the accused/appeiiant is that once the Court beiow has acquitted the accused under section 376 (i) and 506 (ti) of IPC, under no circumstances, he can be convicted under section 497 of IPC. He submits that no compiaint whatsoever has been made by the husband of the prosecutrix against the accused/appeiiant and therefore, in View of the provisions of Section 1Q8 Criminal Procedure code, the appeiiant cannot be convicted under $ection 497 of IPC. 6. On the other hand counsel for the State supports the impugned judgment and submits that the same is strictiy in accordance with law. 7. Heard counsei for the parties and perused the material avaiiable von record inciuding thejudgment impugned. 8; Prosecutrix (PW-1) in her Court statement has stated that she knows the accusediappeiiant as he haiis from her maternai viiiage Siyarinaia. She has stated that on 17.05.20Ci4‘ she was married with Amar Singh (PW—2} and was residing with him in her in—laws house at Barkai. Cn 28.05.20Ct4 at about 8 om. the accused/acneilant came to ’3’ her house. She offered food to the appeilant and her husband and thereafter the appeilant (slept in her house shar'mg a cot wirh her husband. She has further stated ihat she was; area sieeping in the same room where her hueband and the appeuaht were sieeping. At about 11 p.m., she was subjected to sexuai intercourse and while she was subjecting the same, ihi‘hany she thought that it was her husband who was deing the sard act whereas it was the accused/appeitant who was doing the‘same. She has stated that when she was about to raise atarm, her husband woke up and caught hotd the accusedlappetlant. She‘h‘as further ctartfied that before she cautd raise voice her husband caught hoid the‘accusediappetiaht According to the prosecutrix, some ct the Viitagers were called in the night but he questien was put t6 the accused/appeiiant°by them and he remained in her house in the night. Gn the next morning a village meeting wae convened and in the said meeting she narrated the entire incident to the viiiagers but no question was put to the accused/appellant. She has further stated that she was medically examined and her petty-coat and undergarments were seized by the poiice vide Ex. P2. At this stage the prosecutrix was dectared hostite. in her crass—examination a very inconsistent statement has been made by the prosecutrix; in come places she has stated that the accused/appeiiant was known tc her whereas in some pieces she states that he was known to her husband. She has further stated that though she was subjected to sexual intercourse by the appeiiant but even then she could not know that whether it was her husband or some other person who was arming the said act. She has further stated that when she was being subjected to sexual intercourse by the appeliant she did not made any protest as she was under impression that it was her husband who was doing the same. 3 After considering the statement of the prosecutrix; the Court beiow came to the conclusion that the prosecutrix was a major lady at the reievant time and she was a consenting party, therefore the offence under $ection 33’6 (I) and E306 (it) ot‘ IPC is not made out against the accusediappeliant. However, the Court beiow has convicted the accusediappeilant under Section 49‘? of IPC on the ground that the ~Hv accused/appeliant was we?! aware about the fact that the prwecumx is a married ady but ye he cho3e to ve a sexuan iemourse with herv 1 0. Now the question for determinaion of his Cau is as to whether in absence of any campiain y he husband of the proscurtx, e wil f t ii Cd “dultery — Whoever beer sexuai intereourse wih a perscn whe is and Wham he knewe er ges reason a beiieve m be te we af another man, with the «fconsent or caimivanoe ef fhaf man, such sexuag‘ intercourse no? amounting to the offense of rape, is guilty of the offence ef adeiteiy, arid se}! be punished t b t et th accuseapeeant can be canvtctee under Section 49'? o 9P0. $ecion 49‘? of the ndan Penei oe reads as under: imprisonment of eier description for a er whic ay eQten to five years or with ftt or :ltiirh eo . m such case" the wife sail not e pebie as an abeeon” Secion tQS of Code o? minei Procedure reads as under: t tixi firosecuon fo feooes agains marriae — {f} Ne Court seat} take cognizance of an offence punishable wtder Chapter of the indian Pena) Code (45 of $50} excepi apoo e camofaint made by ome person aggrieved by e offence: érovieed naf — (a) were such person is under the age of eigheeri years, oris a idiot er a tenefic, Gris from sickoess or infirmity weabie to make a compiein, or is a woman whe, awarding to the Ioca.’ customs and manners, ough no? o be comoeir‘ed to appear in public, soe other person may, With the leave o the Court, make a complain on his her behatr? (b) Where such perso is the husbano and he is serving in any of e Armed Forces of e Union under conditions which are cetified by his Commanding Onicer as oreciuding hi from obtaining leave of absence to enebie him to make a complaint in person, some oer person authorized by the husband in accordance with the provisions of sub-section (4) may make a compiain on his beneiif (c) where the person aggrieved by an offence punishabie under {section 494 or section 495} of the indian Penai Code (45 of 1860) is the wii'e, compiaint may 'oe made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother’s brother or sister, {with the ieave l t ha in t t rt A t e t h if out h ith th tm h m ‘d e t n o timeo get» ti r of t g XX s th f h t n t t t m f t or n th th r m th t g9 ,5”— of the Court, by any other person reiated to her by Road, marrEage or adaption}. (2) For the purpose of sub-section (1), no person other than the husband of the woman shah be deemed to be aggrieved by any offence punishabie under section 497 or section 49a of ihe eaid Code: Provided that in the abeenoe of the husband, some person Whiz had care of the women on his behaif ai the time when such offence was committed may, with the ieave of the Court mohe a con‘pieint on his behatf (3) When in any case faiiing under ciause (a) of the proweo to sob-section (1} the oowpiairt is sought to be made on behaif of a person under the age of eidhteen «years or of a tunetto by a person who has not been appointed or deciared by a competent authority to be the guerdtan or ti‘e person of the minor oi kinetic and the Court is satisfied that there is a guardian so appointed or deciared the Court shaii before granting the application for leave cause notice to be given to such guardian and give htm a reasonabie opportunity of being heard. (4) The authorization referred to in clause (h) of the prOViso to sub-section (1) shai be in writing, shaii be signed or otherwrse attested by the husbard shat; contain a statement to the effect that he has been informed of the aitegations upon which the compiaint is to be fouhded, shati be countersigned by his Commanding Chicer, and shaii be accompanied by a certificate signed by that Officer to the effect that ieave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorization and complying With the proVisions of sub— section (4) and anv document purporting to be a oertifoate required by that sub—“ectm shall uniess the contrary is proved be presumed to be genume and shaii be received in evidence. (6) No Court shall take cognizance of an offence under section 3:?6 of the lndian Penai Code (45 of 186G) where such offence conSIsts of sexual intercourse by man wth his own wife the wife being under frfteen vears of ade it more than one year has elapsed from the date of the oommission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence. A bare reading of the above provisions of law makes it clear that no Court can take cognizance of an offence under Section 497 IPC except upon a complaint made by the husband of the woman. This @ Mg— section prescribes a statutory bar, prehibiting the Court from taking cognizance of offence under Section 49"? of IPC, except upon a complaint made by the husband of the woman. The word ‘compiaint’ §n Section 198; Criminal Procedure Code, is iimited to the complaint as defined in Section 2 (d) of the Code of Criminai Procedure which reads as under: “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his raking acrioir under this Code} that son’ie person, whether known or unknown, has committed an offence, but doee not 4‘ finclude a police report” in the instant case also the report has never been lodged by Amarlsingh (PW-2) — husband of the prosecutrix and it is the prosecutrix (PW-’4) who had lodged the report with the police station against the accused/appellant and a case under $ection 3'76 (l) and 506 (ll) of EPC was registered against him and during the trial, Amer Singh (PW-2) has supported the poiice case but this cannot be treated as a complaint as defined in Section 2 (d) of the Code of Criminal Procedure before the Magistrate for action being taken under Section 497 of the lndian Penal Code and the accused/appellant cannot be punished for that offence. 1’i. Accordingly, the appeai is aiiowed. impugned iudgment dated '21 .t2.2004 convicting and sentencing the accused/appellant is hereby set aside. l-le is acquitted of the charge ievelied against him. Appellant is reported to be on bail. Bail bonds furnished by him stand discharged. Sdl- Pritinker Diwaker Judge (9%