Tag Archives: live in

Accused cannot be prosecuted on diff section , #fresh material brought much after #ChargeSheet & #FramingCharge ! #Husband cannot be prosecuted for #ipc493

Accused cannot be prosecuted on basis of #fresh material brought in much after #FIR. Also, #Husband cannot be prosecuted for #ipc493. Story of a #liveIn !

 

Excerpts : “….Therefore, the question that arises is as to whether the petitioner could be convicted under Section 493, I.P.C., on the basis of the new materials introduced, for the first time in the Court, which were not available during investigation. The answer could be the emphatic ‘no’. The reason is that the evidence for the offence under Section 493, I.P.C. cannot be relied upon, since the witnesses have not given these materials at the earliest point of time, or at least before the charge sheet was filed…..”

Notes : A live in woman initially files #ipc420 on a male claiming that he has married another woman. Then she claims that a valid marriage took place on exchange of garlands at Temple, but tries to frame him (the same man) under sec #ipc493 . Lower courts convict him on #ipc493 – #Sex after deceitfully inducing belief of lawful marriage. But Honourable Madras HC sees thru her game and acquits the man, She looses on both #ipc420 and #ipc493 !! HC tells her to file for bigamy or go claim maintenance !!


Madras High Court

Murugaswamy vs State Represented By S.I. Of … on 15 March, 1996

Equivalent citations: 1996 (2) CTC 160

Author: M Karpagavinayagam

Bench: M Karpagavinayagam

ORDER M. Karpagavinayagam, J.

  1. This revision is directed against the judgment dated, 7.9.1993 in C.A. No. 102 of 1991, on the file of the First Additional Sessions Judge, Coimbatore. Originally, the petitioner Murugaswamy was convicted for the offence under Section 493, I.P.C., and sentenced to undergo R.I. for two years and to pay a fine of Rs. 1,000 in default to undergo R.I. for one month, by the learned Judicial Magistrate, Mettupalayam in C.C. No. 624 of 1989, dated 8.7.1991. Against this judgment, the above said criminal appeal had been preferred by the petitioner herein, in which the learned lower appellate Court while dismissing the appeal, confirmed the conviction and sentence imposed upon the petitioner by the trial Court.
  2. The facts leading to the judgment of conviction are as follows:- P.W.1 Bhagawathiammal is a resident of Mudalipalayam. When she was staying at Melkathavukarai village, she had developed intimacy with the petitioner, who was the neighbour. Since the petitioner assured P.W. 1 that he would marry her, P.W.1 allowed him to have inter-course with her and at Melkathavukarai village they were living as husband and wife under one roof for one year. After shifting her residence to Mudalipalayam village, there also they lived together for about three years. But suddenly, the petitioner stopped coming to her house on the instigation of his parents. At that time she was pregnant of three months. Finding no other alternative, P.W.1 gave complaint Ex.P1 to Annoor police station on 7.7.1987, which was registered in Cr. No. 172 of 1987 by P.W.7 Nandakumar, Sub-Inspector of Police, under Section 420, I.P.C. The petitioner was arrested and released on bail subsequently.

  3. After coming out on bail, the petitioner took P.W.1 to Maruthamalai temple and married her by exchanging garlands and tying of thali. After the said marriage, they were living together for four or five months. Suddenly, the petitioner again stopped coming to the house of P.W.1. In the mean time, a child was born to her. Subsequently, she came to know that the petitioner married another woman.

  4. P.W.7, Sub-Inspector of Police during the course of investigation in this case, examined P.W.2 Marathal, P.W.3 Perumal Gounder, P.W.4 Ponnammal and P.W.5 Ramaswamy, the neighbour to speak about the fact that the petitioner and P.W.1 were living together as husband and wife under one roof and that P.W.1 consented to live with the petitioner, without any valid marriage since she was assured by him that he would marry her, in the near, future. After registration of the above complaint, P.W.6 Doctor Nirmala, examined P.W.1, at the request of police and issued Ex.P2 certificate to the effect that she was pregnant of 22 weeks. After completion of investigation, on 5.12.1987 P.W.7 Sub-Inspector of Police filed the charge sheet against the petitioner under Section 420 I.P.C. However, P.W.7 has not conducted any investigation with reference to the marriage held between the petitioner and P.W.1 at Maruthamalai temple after the case was registered. On the basis of the F.I.R. and the statements in support of the accusation in the F.I.R., the charge sheet was filed for the offence under Section 420, I.P.C.

  5. The learned Judicial Magistrate, who took the case on file under Section 420, I.P.C., in C.C. No. 624 of 1989, after furnishing copies to the petitioner under Section 207, Cr.P.C., as well framed the charge under Section 420, I.P.C., alleging that he cheated the complainant P.W.1 by making a false assurance of marriage, to have inter-course with her and made her pregnant. He denied the said charge and claimed to be tried. P.Ws. 1 to 5 were examined by the trial Court. During the course of examination of P.W. 1, since she stated that subsequent to the registration of her complaint, marriage between the petitioner and P.W.1 had taken place at Maruthamalai by exchanging garlands and tying of thali, the Assistant Public Prosecutor, who appeared before the trial Court, filed a petition under Section 216, Cr.P.C., requesting the Court to alter the charge into one of Section 493, I.P.C., on the basis of available evidence. On that aspect the parties were heard. Thereafter, the charge in the present case was altered into one of Section 493, I.P.C.

  6. Fresh charge was again framed, and read over to the petitioner, to which he said that he was innocent. Subsequently, two more witnesses were examined, viz. P.W.6 Doctor and P.W.7 Sub-Inspector of Police.

  7. After the examination of witnesses, the petitioner was questioned under Section 313, Cr.P.C., He denied the incriminating circumstances appearing against him. No defence witness was examined.

  8. After termination of the trial, the learned Judicial Magistrate, on appreciation of the oral and documentary evidence found the petitioner guilty for the offence under Section 493, I.P.C. and sentenced him as referred above. Aggrieved over this, the petitioner filed an appeal in C.A. No. 102 of 1991 on the file of First Additional Sessions Judge, Coimbatore, which was dismissed on 7.9.1993, confirming the conviction and sentence. Hence this revision.

  9. Heard learned counsel appearing on either side.

10. The above revision has to be allowed on the following simple ground. The First Information Report was registered by P.W.7 Sub-Inspector of Police, under Section 420, I.P.C. Charge sheet was also filed under the same Section, on the basis of materials constituting the offence of cheating collected during the course of investigation. The learned trial Magistrate also framed the charge, at first, for the offence under Section 420, I.P.C. against the revision petitioner. Only after examination of five witnesses on the side of prosecution, the charge was altered into one of Section 493, I.P.C. It is clearly apparent that the materials adduced before the Court constituting the offence under Section 493, I.P.C. during the examination of witnesses in Court were not available at the time of filing the charge sheet. Therefore, the question that arises is as to whether the petitioner could be convicted under Section 493, I.P.C., on the basis of the new materials introduced, for the first time in the Court, which were not available during investigation. The answer could be the emphatic ‘no’. The reason is that the evidence for the offence under Section 493, I.P.C. cannot be relied upon, since the witnesses have not given these materials at the earliest point of time, or at least before the charge sheet was filed. It is strange that the learned trial Magistrate as well as the lower appellate Judge have over-looked this aspect and have not considered even the semblance of the said legal position, while convicting the petitioner for the offence under Section 493, I.P.C.

  1. Yet another ground warranting interference of this Court, in the finding arrived at by both the Courts below is as follows:- At this stage, nevertheless, it has become relevant for me to quote Section 493, I.P.C., which relates to 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 ten years, and shall also be liable to fine”. As per this section, the prosecution has to prove four ingredients. They are:- (1) that the accused cohabited with the prosecutrix. (2) That he is not legally married her. (3) That she had consented to the cohabitation, believing that she had been lawfully married to him. (4) That such belief in her was induced by deceit on the part of the accused. On perusal of the evidence available on record, I have no hesitation to come to the conclusion that these ingredients have not been fully proved by the prosecution.

  2. The evidence of P.W.1, though adduced belatedly before the Court, is that after the registration of her complaint, the petitioner/accused took her to Maruthamalai temple and married her by exchanging garlands and tying thali and then thereafter they lived together as husband and wife for four or five months. Of course in their evidence, the neighbours have not referred about this marriage and they merely speak about their living under one roof before the above said marriage. So, it is to be seen whether this piece of evidence as spelt out by P.W.1, relating to her marriage with the petitioner at Maruthamalai temple could be construed to be the material satisfying all the four ingredients of the offence under Section 493, I.P.C. The third ingredient, viz, that she had consented to the cohabitation, believing that she had been lawfully married to him, is totally, absent. In fact, the evidence of P.W.1 is very clear to the factotum of their valid marriage performed at Maruthamalai temple. She had categorically stated in her evidence adduced on 11.10.1990, before the learned Judicial Magistrate, Mettupalayam as hereunder:- The above piece of evidence clearly reveals that there is a lawful marriage existing in between the petitioner and P.W.1 and the cohabitation for four or five months as referred to by P.W. 1 in his examination could be only after this lawful marriage. Once the marriage was held to be valid and lawful, the charge for the offence under Section 420 ceases to exist. That was the reason why learned Assistant Public Prosecutor, appeared before the trial Court must have filed an application for altering the charge into one under Section 493, I.P.C. However, both the Courts below have lost sight of an important aspect with regard to the materials as spelt out by P.W.1 relating to the valid marriage and subsequent cohabitation. From the above aspects, it is very clear, that the charge under Section 493, I.P.C. fails. There is no cross-examination on the part of the petitioner, who subsequently became her husband, with regard to the factum of marriage. The validity of the marriage has also not been questioned in any manner. On considering all the above materials, there is no difficulty in holding that there was a valid marriage held in Maruthamalai temple in between the petitioner and P.W.1 and thereby the petitioner was elevated to the status of husband of P.W.1. In view of the above conclusion, I cannot endorse the view of both the courts below, for conviction of the petitioner for the offence under Section 493, I.P.C.

  3. In that view of the matter, the conviction and sentence imposed the petitioner for the offence under Section 493, I.P.C. are set aside and he is acquitted in respect of the above charge and the fine amount, if paid, by the petitioner is directed to be refunded to him. Accordingly, the revision is allowed. However it is open to P.W.1 Bhagawathiammal, the wife of the petitioner to proceed against the petitioner for maintenance under Section 125, Cr.P.C. or to prosecute the petitioner under Section 494, I.P.C., if so advised.

No #DV relief if woman did NOT #divorce first Husband and was in ADULTERY with second fella !!! #BombayHC

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bombay High Court

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bench: M. S. Patil

1 Cri.Rev.Apln 82/17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 82 OF 2017

Reshma Begum W/o Gajanfar Kazi, APPLICANT

Aged 30 years, Occ. Household,

R/o. At present N-6, A, 120 CIDCO,

Aurangabad, Taluka & Dist. Aurangabad

V E R S U S

[1] The State of Maharashtra RESPONDENTS

[2] Gajanfar Kazi @ Jawed S/o Kazi

Qaiseruddin, Aged 41 years, Occ.

Mechanic, R/o. Katkatgate,

Aurangabad, Taluka & Dist. Aurangabad

Mr. N.R. Shaikh, Advocate for the Applicant

Mr. A.R. Kale, A.P.P. for the Respondent No.1-State

Mr. H.I. Pathan, Advocate for the Respondent No.2

CORAM : MANGESH S. PATIL, J.

Reserved On : 29 June 2018

Pronounced On : 25 July 2018

J U D G M E N T :

Rule. Rule is made returnable forthwith. By consent, the matter is heard finally.

2 Cri.Rev.Apln 82/17

  1. Very short issue that arises for determination in this Revision is as to the interpretation of provision of Section 2 [f] of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as ‘the D.V. Act‘]. The factual matrix leading to revision can be put in a short compass.
  2. The applicant who belongs to Jain Hindu community was married to one Shantaram Mahadu Ughade and the couple begotten a child out of the wedlock. It was averred that, that marriage was brought to an end by virtue of a customary divorce on 15.10.2011. It is averred that she thereafter came in contact with the respondent No.2 who is a Muslim by religion. The acquaintance blossomed into an affair. He was already married and was having children. She got converted to Islam and the couple entered into a marital tie in presence of a Kazi on 21.07.2012. The couple also got a child out of such relation on 29.04.2013. However, a dispute arose and the couple separated. She filed a proceeding under Section 12 of the D.V. Act against him in the Court of Judicial Magistrate First Class at Aurangabad bearing Criminal Misc. Application No.28 of 2013.

  3. The respondent No.2 contested the proceeding primarily on 3 Cri.Rev.Apln 82/17 the ground that the applicant was already married and so was he. The marriage between the two was not legally possible, since they were already having subsisting marital relation. He also denied even that she was staying with him in some kind of relation.

  4. The learned Magistrate allowed the application holding that the relationship between the two was in the nature of marriage and was covered by Section 2 [f] of the D.V. Act and granted various reliefs.

  5. Being aggrieved, the respondent No.2 preferred Appeal under Section 29 of the D.V. Act bearing Criminal appeal No. 156 of 2015. The learned Addl. Sessions Judge by the impugned Judgment and order dated 12.01.2017 relying upon Judgment of the Supreme Court in the case of Velusamy Vs. D. Patchaiammal; 2010 (3) Bom. C.R. (Cri.) 764 (S.C.) concluded that the applicant and the respondent No.2 were not qualified to enter into a legal marriage since they were already married and their marriages were in subsistence. The relationship was not covered by Section 2 [f] of the D.V. Act. She was not entitled to take recourse to the provision of Section 12 of the D.V. Act. The appeal was allowed and the Judgment and order passed by the Magistrate was set aside. Hence, this Revision.

4 Cri.Rev.Apln 82/17

  1. The learned Advocate for the applicant submitted that since the applicant had already got the customary divorce in the form of execution of Notarized Deed on 15.11.2011, her first marriage had come to an end. Since the respondent No.2 is Muslim, his personal Law permits him to solemnize the second marriage. Since there is evidence in the form of testimony of Kazi and a Nikahnama demonstrating that the marriage was solemnized between the applicant and respondent No.2, the relationship between the two was in the nature of marriage within the meaning of Section 2 [f] of the D.V. Act. The couple had also has a child out of the relation. There was a birth certificate of the child which demonstrated that the couple was holding themselves out as husband and wife and the relationship was duly covered under that provision. The observation and the conclusion drawn by the Magistrate was unassailable. The learned Addl. Sessions Judge has ignored these aspects and without any cogent and convincing reason, quashed and set aside the Judgment of the Magistrate. There is no sufficient legal basis to substantiate the interpretation of the learned Addl. Sessions Judge. The impugned Judgment and order is not tenable in law and be quashed and set aside, thereby restoring the Judgment and order passed by the Magistrate.
  • Though the respondent No.2 has been disputing all the 5 Cri.Rev.Apln 82/17 averments, there is enough material to show that the applicant and the respondent No.2 had established a kind of relationship. They had entered into marriage ceremony in presence of a Kazi [PW 2]. A Nikahnama was executed [Exhibit 35]. There is also a Birth Certificate showing that a child was born to the applicant and the respondent No.2 was shown as the father of the child.

  • However, it is necessary to ascertain, whether such kind of relationship is covered by the definition of domestic relationship as contained in Section 2 [f] of the D.V. Act. The definition reads thus :

  • “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

    It is important to note that the interpretation put on the definition and particularly the words ‘relationship in the nature of marriage’ by the Supreme Court in the case of Velusamy [supra] to mean :

    6 Cri.Rev.Apln 82/17

    [a] The couple must hold themselves out to society as being akin

    to spouses.

    [b] They must be of legal age of marry.

    [c] They must be otherwise qualified to enter into a legal

    marriage, including being unmarried.

    [d] They must have voluntarily cohabited and held themselves out

    to the world as being akin to spouses for a significant period of time.

    Even in the case of Indra Sarma v. V.K.V. Sarma; AIR 2014 S.C. 309, a comparison has been made between the relations which are in the nature of marriage and live in relationship and guidelines have been culled out to distinguish between the two.

    1. Perusal of these decisions makes it abundantly clear that not all the live in relationships are covered by the provision of Section 2 [f] of the D.V. Act. It is only those which qualify to be the relationship in the nature of marriage which are governed by that provision. In order to constitute such relationship, a legal marriage between the two must be possible.

    7 Cri.Rev.Apln 82/17

    1. There is one more aspect which needs such an interpretation to be put to words ‘relationship in the nature of marriage’ contained in Section 2 [f] of the D.V. Act. It is well recognized principle of interpretation of statute that a statute should be interpreted in a manner which would not promote illegality. It has made a provision to enable a woman in a relationship in the nature of marriage to seek various remedies under the D.V. Act. One cannot put an interpretation to Section 2 [f] of the D.V. Act which would promote an adulterous relationship which is an offence punishable under Section 494 of the Indian Penal Code. Therefore, these words will have to be interpreted in a conducive and harmonious manner so as not to offend a penal provision contained in the Code. Therefore looked at from this angle, one cannot interpret this provision which would offend any law. The legislature in its wisdom has enacted the Law so as to cover and protect not only a legally wedded wife but has gone a step further to bring in its ambit a woman who has been in a relationship in the nature of marriage. Use of word ‘marriage’ to qualify the relationship is conspicuous and the only interpretation that can be put is that the marriage between the couple must be legally possible. Any other interpretation which would offend any other law would not be permissible.
  • Once it is clear that in order to enable the applicant to claim 8 Cri.Rev.Apln 82/17 any relief under the D.V. Act the relation between her and the respondent No.2 was not in the nature of marriage, she is clearly not entitled to claim any relief under that Act. Admittedly, on her own admission, her first marriage was still in subsistence, and if that be so, she could not have married legally with the respondent No.2 albeit he is a Muslim and his personal law permits him to solemnize the second marriage. In view of such state of factual matrix and the evidence, the observation and the conclusion drawn by the learned Addl. Sessions Judge that the relationship between these two did not fall into the ‘domestic relationship’ as defined under Section 2 [f] of the D.V. Act is unassailable. The Revision is dismissed.

  • The rule is discharged.

    [ MANGESH S. PATIL, J. ] SRM/25/7/18

    woman #elopes with paramour. Parents claim woman #dead, blame #husband & in law #arrested ! finally police trace female who’s #living-in with #lover !

    A married woman runs away with her paramour. Her parents claims she is missing, then claim she is dead, identify some other body as that of their daughter and also cremate that body (meaning burn that evidence) !!

    Missing Woman’s Parents happily blame that woman’s husband !!

    Then the police go and arrest the father of the poor husband and start “hunting” for the husband

    All wake up when the woman is traced to her “paramour” / “lover’s” place and police find her !!

    What about the burnt / cremate woman ??

    What about the poor dad (husband’s dad) who was arrested ??

    what about justice for men ??

    don’t ask

    Noida woman returns home days after family ‘identifies, cremates’ her

    Noida authorities were alerted about a woman’s burnt body lying on the FNG Expressway road in Sector 115. A day later, Raj and Sarvesh Saxena claimed the body as their missing daughter Neetu’s and performed the last rites.

    noida Updated: May 04, 2018 13:37 IST

    Preety Acharya
    Preety Acharya
    Hindustan Times, Noida
    Neetu had gone missing from her house on April 6, in Noida.
    Neetu had gone missing from her house on April 6, in Noida.(Sunil Ghosh/HT Photo)

    When Raj and Sarvesh Saxena performed the ‘last rites’ of their 25-year-old daughter Neetu they were shattered. The couple told the police they suspected Neetu’s estranged husband Ram Lakhan had murdered her. Their allegations set the police on the ‘murder’ trail, which revealed a case of wrong identification and ended in Neetu’s return to her parents.

    On April 24, Noida authorities were alerted by a passerby about a woman’s burnt body lying in a sack on the FNG Expressway road in Sector 115. A day later, Raj and Sarvesh — whose daughter had been missing for 18 days — were called in for identification. The family claimed the body as Neetu’s and performed the last rites.

    “The legs and hands of the body were very similar to that of our daughter. The texture and length of hair were also similar. The face was burnt badly and the body was badly decomposed, so we thought that it was Neetu,” said Raj.

    Sarvesh had lodged a missing complaint with the Phase 2 police station after Neetu went missing on April 6 morning.

    The family alleged that Neetu’s husband Ram Lakhan had a hand in her murder. The couple had been living separately for the last three years following domestic issues.

    On the allegations of Neetu’s family, police reportedly detained her father-in-law Ram Kishan and traced Lakhan. However, during the questioning police realised that Lakhan and his father were not involved in the alleged murder.

    Police then asked Neetu’s family to identify people who frequently visited their grocery shop but had not been showing up since Neetu’s disappearance.

    They narrowed down on a man named Pooran who used to visit the shop regularly for cigarettes but had not been coming for a few days. When Pooran visited after three days, Neetu’s parents grilled him.

    “We questioned Pooran about his disappearance but he gave vague answers. We developed doubts about him. The same night, we saw that Pooran who lived in the same lane was leaving with his baggage. We immediately informed the police,” said Sarvesh.

    Neetu’s family members said the police allowed Pooran to go after the first round of questioning. However, he was later caught in Etah where he admitted that Neetu had been living with him.

    “Pooran told us that Neetu was living with him in Etah. By the time we picked him up, Neetu had already left for Bhangel from where we brought her back. She told us that she had a heated argument with her parents on April 5 after which she decided to leave the house. She knew Pooran as he was a regular customer at the shop and went to live with him by choice,” said Satendra Kumar Rai, station house officer, Phase 2 police station.

    Meanwhile, Neetu’s family members said they requested the police to do DNA test to confirm if the body was that of their daughter. “We had asked the cops to do the DNA test and also to check her fingerprints with the help of her Aadhaar card but both the requests were turned down,” said Raj Saxena, mother of Neetu.

    There have also been discrepancies in the version of police officers about when and where Neetu was found. She was handed over to her parents on the evening of May 2.

    Sector 49 police is now trying to find out the true identity of the body that had been wrongly identified as that of Neetu. Neetu has told the police that she was not forced by Pooran or anyone to leave her house.

    “We have found our daughter and that is the most important thing for us. We don’t want to get into any trouble. We are happy that the police found our daughter,” Raj said.

    She added that Neetu had left for Bareilly with her sister and brother-in-law. Attempts to reach Neetu for a response went unanswered.

    When asked that why the police pursued investigation even after the other body that was identified by Neetu’s family as that of their daughter’s on April 25, Rai said,“The parents had alleged that their daughter was killed by her husband and father-in-law. Since there was a burnt body and it was not a natural death, the case had to be brought to its logical conclusion. That is why our investigation was on.”

     

    source

    Hindustan times

     

    livein woman claims rape, DV, cheating, bigamy etc etc 9yrs later! P&H HC Court throws out her claims

    the false rape, false DV saga in India. How a consenting live in partner alleges everything from violence to bigamy to rape !!

    synopsis
    ********************
    * Live in male partner, ‘the accused’, stands acquitted of the charges under Sections 420, 467, 468, 471, 323, 376(2)(n) and 377 IPC, by lower court
    * female partner (appellant in this case) goes on appeal

    * High court appreciates the facts and sees that
    * the prosecutrix had given history of living with a partner for the last 8/9 years.
    * she admitted that she knew about the accused marrying Poonam (other woman) and siring a child from her.
    * In one of the photographs the prosecutrix is seen holding the child of the accused in her lap.
    * According to her, she had come to know the marriage of the accused with Poonam in 2012 but complained only in the month of February, 2014.
    * she had stated in her examination-in- chief that whenever she asked the accused to marry her he would say that his parents were against proposal
    * The prosecutrix’s accusation that the accused took money from her at different occasions, is not substantiated by any documentary evidence.
    * On the other hand, she had admitted in her cross-examination that the accused was drawing more salary than her and it was she who had utilized his money once by using his credit card and on another occasion by transferring money to her account.

    * The prosecution case taken as such indicates that the prosecutrix has been a consenting party all throughout.

    and decrees “….In view of the above, this Court is of the considered view that no case is made out ….”

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
    *******************************************************************************
    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************

    IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

    Criminal Appeal No.D-1174-DB of 2015

    Date of Decision : October 08, 2015

    Rekha Nair …..Appellant

    Versus

    State of Haryana and another ….Respondents

    CORAM : HON’BLE MR. JUSTICE T.P.S. MANN
    HON’BLE MR. JUSTICE GURMIT RAM

    Present : Mr. Yashpal Gupta, Advocate.

    T.P.S. MANN, J.

    The prosecutrix has filed the present appeal for challenging the judgment dated 9.2.2015 passed by learned Additional Sessions Judge, Gurgaon whereby respondent No.2-Pankaj Kumar, here-in-after referred to as ‘the accused’, stands acquitted of the charges under Sections 420, 467, 468, 471, 323, 376(2)(n) and 377 IPC.

    Briefly put, the prosecution case is that on 15.2.2014, complaint dated 4.2.2014 was received in the office of the Deputy Commissioner of Police (West), Gurgaon after enquiry from the Women Cell (West) wherein the prosecutrix had levelled allegations of bigamy, physical assault, sexual abuse, cheating, forgery, dowry harassment, domestic violence, threats etc. against the accused, who was her husband. She had stated in the said complaint that she was friendly with the accused for the last eight years, who got involved with her physically on the promise of marriage. He, however, did not keep his words and married another woman without informing her. He continued to exploit her physically, mentally and financially. When she learnt about his marriage and confronted him, he replied that his father had forced him to marry as he was likely to get lot of dowry and the woman, whom he had got married as well as her parents knew about their relationship. She also stated that the accused had told her that he would obtain divorce and marry her and, accordingly, continued abusing her physically and sexually. He even took money from her on the pretext of filing a divorce case but no such thing ever happened. She had moved a complaint to the police and the accused and his family members were called. The accused with his other wife, father, uncle and aunt visited her house on 24.11.2013. At that time, it was mutually agreed that the accused would marry her as per Islamic law and a writing to that effect was given to the police. The accused and his parents disclosed that as he has since obtained divorce, they can perform his marriage as per Arya Samaj rites. However, while getting married at Arya Samaj temple, he wrongly stated that he was not married. Further case of the prosecution is that it was mutually agreed between the prosecutrix and the accused that the latter would stay for one week with her and one week with the other woman. However, the other woman, namely, Poonam started calling them at odd hours and had also called the accused continuously for two days and she did not allow her to spend a moment of peace with him. The father of the accused intervened and, accordingly, Poonam stopped making calls. However, the accused, his father and Poonam kept on pressurising the prosecutrix to bring money from her mother for purchasing BMW car. The mother of the prosecutrix was a widow and, therefore, not in a position to afford such a huge amount. The accused wanted her mother to transfer her house in his name and when she refused, he started abusing her mentally and physically. She kept on bearing the torture hoping that he would change. The prosecutrix further averred that the parents of the accused came to stay with her on 8.1.2014 and gave her lot of mental pain and agony by saying that the other woman had brought dowry worth lacs and she had not brought anything. The accused kept on abusing her physically. He had been pressurising her to call her friends to have group sex and when she refused, he abused her. She continued to bear the torture and when she asked the father of the accused in that regard, he again abused and demanded money. On 14.1.2014, the accused went to the other woman and was supposed to return on 21.1.2014. However, he did not come back. She talked to him couple of times on phone but he fought with her on the phone and refused to return. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    Having heard learned counsel for the appellant and on going through the impugned judgment of acquittal, this Court finds that at the time of her medical examination by PW5 Dr. Anshul Singh, the prosecutrix had given history of living with a partner for the last 8/9 years. In her cross-examination, she admitted that she knew about the accused marrying Poonam and siring a child from her. In one of the photographs brought on the record, the prosecutrix is seen holding the child of the accused in her lap. According to her, she had come to know the marriage of the accused with Poonam in the end of year 2012. However, she submitted her complaint only in the month of February, 2014. Under these circumstances, she cannot be heard saying that she was forced into sexual relationship on the promise of marriage. On the other hand, she had stated in her examination-in- chief that whenever she asked the accused to marry her he would say that his parents were against the proposal since they both were from different caste and different states.

    The stand taken by the prosecutrix that the accused had taken money from her at different occasions is not substantiated by bringing on record any documentary evidence. On the other hand, she had admitted in her cross-examination that the accused was drawing more salary than her and it was she who had utilized his money once by using his credit card and on another occasion by transferring money to her account. The prosecution case taken as such indicates that the prosecutrix has been a consenting party all throughout. Even otherwise, when the prosecutrix and the accused got married in Arya Samaj temple, she knew about the earlier marriage of the accused. Merely because the accused had mentioned his status as ‘unmarried’ in the affidavit furnished by him at the time of his marriage with the prosecutrix in Arya Samaj temple, Delhi, it would not amount to forgery as the accused had already disclosed to her about his marriage with Poonam. Even otherwise, the affidavits alleged to have been forged by the accused are not proved on record.

    In view of the above, this Court is of the considered view that no case is made out for any interference in the impugned judgment of acquittal.

    The appeal is without any merit and, therefore, dismissed.

    ( T.P.S. MANN )
    JUDGE

    ( GURMIT RAM )
    JUDGE

    October 08, 2015

    satish

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    Sec 376(2)(n) as taken from press release bureau site is given here

    376. (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

    ( 2 ) Whoever,—
    ( a ) being a police officer, commits rape—
    ( i ) within the limits of the police station to which such police officer is appointed; or
    ( ii ) in the premises of any station house; or
    ( iii ) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
    ( b ) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
    ( c ) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
    ( d ) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
    ( e ) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
    ( f ) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
    ( g ) commits rape during communal or sectarian violence; or
    ( h ) commits rape on a woman knowing her to be pregnant; or
    ( i ) commits rape on a woman when she is under sixteen years of age; or Punishment for rape.
    ( j ) commits rape, on a woman incapable of giving consent; or
    ( k ) being in a position of control or dominance over a woman, commits rape on such woman; or
    ( l ) commits rape on a woman suffering from mental or physical disability; or
    ( m ) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
    ( n ) commits rape repeatedly on the same woman
    shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment …….