Bhupinder Singh V/s U.T Of Chandigarh

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 Arising out of S.L.P.No.14107 U.T. of Chandigarh With Crl. Appeal No .of 2008JUDGMENT DR. ARIJIT PASAYAT J Heard learned counsel for the parties Though in SLP No.6796 of 2006 notice has not been issued at the request of and with the consent of the parties the same was taken up along with SLPNo.14107 where notice had been issued Challenge in these appeals is to the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Appeal No.698 SB 1999. The appellant Bhupinder Singhhad filed the appeal before the High Court against the judgment dated 20.9.1999 passed by learned Additional Sessions Judge Chandigarh convicting him for offences punishable under Sections 376 and 417 of the Indian Penal Code 1860Chandigarh where accused was residing jointly with one J.P. Goel who was working in the same bank. Then they had gone to Kasauli for honeymoon on 27.12.1990 and stayed in a hotel. Then her office was shifted from Sector 17 to Sector 42 Chandigarh She and the accused shifted to H.No.1110 Sector 42 B Chandigarh and stayed in a rented accommodation owned by one Pritam Singh. Even landlord had lodged a report in Police Station Sector 36 Chandigarh showing them as husband and wife and prior to that a form was duly filled by Bhupinder Singh and same was handed over to the landlord to establish the fact of their being husband and wife. Accused had also taken a loan of Rs.5000 from a society at Panchkula in May 1991 where he had nominated her as his wife. She became pregnant. But accused got her aborted from Kaushal Nursing Home against her wishes. She had left the service in September 1991 under the pressure of the accused. In the year 1992 accused Bhupinder Singh was transferred from Chandigarh to Ropar and they shifted to Ropar and stayed in House No.111 Street No.8 Malhotra Colony Ropar. They came back to Chandigarh again and started living in H.No.859 Sector 38 Chandigarh and accused Bhupinder started going to Ropar daily from Chandigarh. She got re employment in May 1993 in Punjab University Chandigarh on daily wages as Clerk and visited H.No. C 146 Sector 14 Punjab University Chandigarh on the eve of Diwali in 1993 She again became pregnant in July 1993 and their relations remained cordial till March 1994. On 6.3.1994 when she had gone to Rose Garden she met Devinder Kumar Bansal and Vinod Sharma who were friends of her husband Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She asked them as to why they had not told her about the previous marriage of her husband. But they avoided answering. She was shocked to learn this and after reaching the residence she asked about Bhupinder Singh who on the same day had left for Patiala on the pretext of attending some training course and did not return till 13.3.1994. She went to the house of Devinder Bansal to know whereabouts of accused Bhupinder Singh and there Bhupinder Singh along with his wife Gurinder Kaur came and started fighting and then Manjit Kaur tried to inform the police. But Daljit husband of sister of Bhupinder Singh brought her and left her in her house. On 16.4.1994 she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was father of the child. But Bhupinder Singh did not turn up. On this complaint case was registered for the offence punishable under Sections 420 376 498 A IPC. It was investigated. Investigating Officer during investigation collected many documents showing the accused Bhupinder Singh and prosecutrix Manjit Kaur as husband and wife. After investigation challan was presented Accused appellant faced trial. After trial he was convicted and sentenced as aforesaid. He filed an appeal before the High Court. On behalf of the complainant a Criminal Revision was filed for enhancement of sentence. Further a Crl. Misc Application was also filed for awarding compensation under Section 357 of the Code of Criminal Procedure 1973the Registrar Births Death U.T. of Chandigarh wherein it was recorded that complainant Manjit Kaur had delivered a female child on 16.4.1994 in General Hospital Sector 16 Chandigarh and accused appellant’s name was mentioned as the father Reference was also made to the evidence of Mal Singhstated that he knew the complainant prior to her marriage. Documents were also produced to show that in official documents accused appellant had shown the complainant as his wife and nominee. The High Court found that the case at hand was covered by Clause “Fourthly” of Section 375 IPC and therefore was guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly the conviction as done was upheld. But taking into account the fact that the complainant had knowledge about his marriage and had yet surrendered to him for sexual intercourse held this to be a fit case for reduction of sentence and award of adequate compensation Accordingly custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1 00 000 which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid the reduction in sentence would not be given effect to. Learned counsel for the accused appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him Clause “Fourthly” of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. The sentence imposed is stated to be harsh. It was however pointed out that the compensation as awarded by the High Court has been deposited and withdrawn by the complainant Learned counsel for the State submitted that it is a clear case where Clause “Fourthly” of Section 375 IPC is applicable Learned counsel for the complainant submitted that this was a case where no reduction in sentence was uncalled for. The High Court proceeded on an erroneous impression that the complainant knew that the accused was a married man. It was also submitted that the compensation as awarded is on the lower side. 10. Clause “Fourthly” of Section 375 IPC reads as follows “375 Rape A man is said to commit “rape” who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: Fourthly With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married xxx” 11. Though it is urged with some amount of vehemence that when 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 accused appellant is concerned. Since he was already married the subsequent marriage if any has no sanctity in law and is void ab initio. In any event the accused appellant could not have lawfully married the complainant. A bare reading of Clause “Fourthly” of Section 375 IPC makes this position clear. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994 but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and therefore was not in a position to lodge the complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused appellant. Though the explanation is really not satisfactory but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC the delayed approach of the complainant cannot in any event wash away the offence. 12. The appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case more particularly the knowledge of the complainant about the accused being a married man. The High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1 00 000 . The reasons indicated by the High Court do not suffer from any infirmity and therefore the appeal filed by the complainant is without merit and is dismissed. Both the appeals are accordingly dismissed. (Dr. ARIJIT PASAYAT New Delhi July 10 2008

Summary: The high court found that the case at hand was covered by clause “FOURTHLY” of section 375 IPC and, therefore, the accused-appellant was guilty of the offence and was liable for punishment under section 376 IPC [Case Brief] Bhupinder Singh V/s U.T Of Chandigarh Case name: Bhupinder Singh V/s U.T Of Chandigarh Case number: S.L.P. (Crl.) No.1411 of 2007 Court: The Supreme Court Of India Bench: Justice Arijit Pasayat, Justice P. Sathasivam Decided on: JULY 10, 2008 Relevant Act/Sections: Section 376, 420 and 498-A IPC, 1860 ➢  Complainant Manjit Kaur filed a case against Bhupinder Singh stating that she was employed as a clerk in bank employee’s thrift credit society. Bhupinder Singh was employed as data entry operator in state bank of Patiala at Chandigarh. He used to come to her office and developed intimacy and then asked her to marry after disclosing himself as an unmarried person. Bhupinder Singh insisted her to get married at the earliest in the gurudwara following a simple ceremony and the permission of the parents will be taken later on and thereafter marriage would be solemnized with great pomp and show. She accepted the proposal. On 4-12-1990 Bhupinder Singh and Manjit kaur got solemnized their marriage by exchanging garlands before the holy granth sahib. Then she stayed with accused in sector 22C Chandigarh. Accused has also taken loan of Rs.5000 from a society at Panchkula in May 1991 where he had nominated as her wife.She became pregnant and accused got her aborted from Kaushal nursing home against her wishes. Then she again became pregnant in July 1993 and their relations remained cordial till march 1994 4. On 6-3-1994 when she had gone to rose garden, she met Devinder bansal and Vinod Sharma who were friends of the accused. They told her that the accused was already married with Gurinder kaur and having children from the said wedlock. She was shocked to know this and after reaching the home, she asked about Bhupinder Singh who on the same day left for Patiala on the pretext of attending some training course and did not return till 13-3-1994. 5. On 16-4-1994 she was admitted in general hospital and gave birth to female child. She told accused about the child as he was the father but he did not turn up. ➢ PROCEDURAL HISTORY: Challenge in these appeals is the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Appeal No.698-SB/1999. The appellant Bhupinder Singh (hereinafter referred to as the ‘accused’) had filed the appeal before the High Court against the judgment dated 20.9.1999 passed by learned Additional Sessions Judge, Chandigarh, convicting him for offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860 (in short ‘the Code’). He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default stipulations for the first offence and rigorous imprisonment for nine months in respect of the second offence. The High Court found that Bhupinder Singh and Manjit kaur living as husband wife together for pretty long time at different places. There had been sexual intercourse for which Manjit kaur has given consent treating Bhupinder Singh as husband and Manjit kaur had become pregnant. Bhupinder Singh very well knew that he was married to Gurinder Kaur. Present case will squarely be covered under the description “fourthly” of Section 375 IPC and therefore, the accused was guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly, the conviction, as done, was upheld. The High Court also found that by the statements of Gurinder Kaur and other defence witnesses it cannot be said that Manjit Kaur did not know about the fact that Bhupinder Singh was already married with Gurinder Kaur and held that the case was a fit one for reduction of sentence and award of adequate compensation. Therefore, case for the offence under Section 417 IPC was not made out and the appellant was acquitted of that offence. Accordingly, custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs. 1,00,000/- which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid, the reduction in sentence would not be given effect to. ➢ ISSUE BEFORE THE COURT: Whether the high court was erroneous in its decision to reduce the sentence of accused appellant to 3 years?Whether the case was within the scope of Section 375(4) of the IPC?➢ RATIO OF THE COURT:The Counsel for the appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, Clause “Fourthly” of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. Though it is urged with some amount of vehemence that when 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 accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of Clause “Fourthly” of Section 375 IPC makes this position clear. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994, but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and, therefore, was not in a position to lodge the complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused appellant. Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence.➢ DECISION HELD BY COURT: In this case the judgment was given by JUSTICE ARIJIT PASAYAT that the appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married man. The High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1,00,000/-. The reasons indicated by the High Court do not suffer from an infirmity and, therefore, the appeal filed by the complainant is without merit and is dismissed. Both the appeals are, accordingly, dismissed.