Satya Narain Bhagat v. State Of Bihar — 1984 DIGILAW 222 (PAT)

Judgment 1. These two appellants, who are inter se mother and son, have been convicted for having committed an offence under S.498, I.P.C. and each of them has been sentenced to undergo regorous imprisonment for three years. 2. This case was started on a complaint filed by P.W.7. Bhedu Rai against 8 persons, including these appellants, alleging that Mosst. Sonawati was his legally married wife and that in his absence on 11-10-1973 the 8 accused persons had enticed her away from his house and were keeping her at village Bhakurahia, the Nanihal of appellant No.1 Satya Narain Bhagat for illicit intercourse. Cognizance was taken against the 8 accused persons who were ultimately committed to the Court of Session for an offence under S.366, I.P.C. Charge under S.366, I.P.C. was framed against all the accused persons. The learned Additional Sessions Judge who tried the case on a consideration of the evidence of the prosecution came to the conclusion that the ingredients of S.366, I.P.C. were not proved in the case, but, however, the evidence on the record proved the ingredients of sec. 498, I.P.C. and convicted these two appellants (out of the 8 accused persons) under sec. 498, I.P.C. holding that the offence was not proved as against the other remaining 6 accused persons who were acquitted of the charge. 3. The learned counsel for the appellants has challenged the judgment of conviction on two scores. The first is that there could not be a conviction of these appellants under sec. 498, I.P.C. when they stood the trial of the case under sec. 366, I.P.C. The second part of the argument of the learned counsel for the appellants is that even the charge under sec. 498 I.P.C. was not proved against them as the necessary ingredients to constitute the offence under sec. 498, I.P.C. were not proved at all by the evidence on the record. After having considered the evidence and circumstances of the case and the points urged in those respects by the learned counsel for the appellants as well as for the State and the complainant. I must say that the contentions of the learned counsel for the appellants are wholly tenable on both the scores. I set down herewith the reasons for my opinion in that regard. 4. I must say that the contentions of the learned counsel for the appellants are wholly tenable on both the scores. I set down herewith the reasons for my opinion in that regard. 4. So far as the first point as to whether in the facts and the circumstances of the present case, the appellants could be convicted under sec. 498, I.P.C. when they stood trial for a charge under sec. 366, I.P.C, the learned Additional Sessions Judge has convicted the appellants in that way (when the charge was under sec. 366, I.P.C. but the conviction was under sec. 498, I.P.C.) by taking recourse to the provisions of sec. 222(2) of the Code of Criminal Procedure. The first two sub-sections of Sec.222 of the Code of Criminal Procedure are as follows :- "(1) When a person is charged with an offence consisting of several paiticulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence he may be convicted of the minor offence, although he is not charged with it." 5. The principle underlying sub-sec.(1) above-mentioned is that where an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances cognate to constitute the minor offence of which he may be convicted. But when the circumstances constituting the major charge do not necessarily and according to the definition of the offence imputed by that charge, constitute the minor offence or the so, the principle no longer can apply because notice of the former does not necessarily inform notice of that constitutes the latter. Applying that in the present case, it would be noticed that the ingredients of S.366 are (i) kidnapping or abducting any woman (ii) any such kidnapping or abducting must be with intent that she may be compelled........ to marry any person or forced to illicit intercourse. Applying that in the present case, it would be noticed that the ingredients of S.366 are (i) kidnapping or abducting any woman (ii) any such kidnapping or abducting must be with intent that she may be compelled........ to marry any person or forced to illicit intercourse. On the other hand, the ingredients of S.498 are entirely different, namely (i) taking or enticing or concealing or detaining the wife of another man (ii) knowledge or reason to believe that she is the wife of another man (iii) such taking, enticing concealing or detaining must be with the intent that she may have illicit intercourse with any person. It may be noticed that though there are some ingredients common, but the ingredients for the offence under S.498 constitute of some of the very important particulars which are not in an offence under S.366, I.P.C. It may be noted that the first two ingredients of S.498, namely, (i) the woman is the wife of another man and (ii) the accused knew or has reason to believe that she was the wife of that man, do not at all constitute particulars of the ingredients for an offence under S.366, I.P.C. Therefore, an offence under S.498, I.P.C. cannot be said to consist of some of the particulars of the offence under S.366, I.P.C which, by themselves (out of some of the ingredients of S.366, I.P.C.) constitute an offence under S.498, I.P.C. 6. Learned Additional Sessions Judge, however, has relied upon sub-sec.(2) of S.222 which provides that when a person is charged with an offence and facts proving which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. It may be noticed that the term minor offence used in this section has not been defined anywhere in the Cr.P.C. and should, therefore, be understood in its ordinary and not in any technical sense. But nevertheless the major and the minor offence must be cognate offence which must have the mixed ingredients in common and the man charged with one offence, which is entirely of different type from the offence which he is proved to have committed, cannot in absence of a proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence. Rather, the clue as to what is the minor offence in relation to the major one, has, to be gathered from the wordings used in sub-sec.(1) of that S.222. In a case of Ram Prasad V/s. State, AIR 1952 All 878 : (1962 Cri LJ 1551) it was held that a minor offence means an offence made out by some of the ingredients of the major offence. But when a person has been charged for having committed one offence and he is convicted for another offence, it has to be seen as to whether the latter offence is the minor offence of the former. It has been held in that case that if the latter offence constitutes of some additional ingredients which are not at all in the former offence, the latter one cannot be said to be the minor offence of the former, and in that sense the minor offence must be cognate offence of the so-called major offence with which the accused has been charged. The additional ingredients of S.498, I.P.C. are (i) that the woman said to have been taken away is the married wife of another man, and (ii) that the accused has taken her away with the knowledge that she is the wife of that person. These two ingredients are some additional ingredients for the offence of S.498, I.P.C. which are not at all in the offence under S.366, I.P.C. and, therefore, the two offences (under Ss.366 and 498) are not at all cognate offences. Therefore, the offence under S.498 cannot be said to be a minor offence or an offence under S.366 within the meaning of the term used in S.222(2) of the Cri.P.C. Thus, the conviction of these appellants has, therefore, to be set aside on this score alone. 7. Besides that, the second contention of the learned counsel is also correct that all the ingredients to prove the charge under S.498, I.P.C. were not proved at all in the case for want of any evidence whatsoever in respect of those ingredients. 7. Besides that, the second contention of the learned counsel is also correct that all the ingredients to prove the charge under S.498, I.P.C. were not proved at all in the case for want of any evidence whatsoever in respect of those ingredients. I may again repeat that there are three ingredients for proof of the charge under S.498, I.P.C. namely (i) the woman who is said to have been taken away is the wife of another man; (ii) the accused took her away with the knowledge or bad reason to believe that she is the wife of another person and (iii) such taking (or enticing, concealing or detaining) must be with the intent that she might have illicit intercourse with any person. 8. I find on an appraisal of the prosecution evidence that they have not led satisfactory evidence for the proof of the first ingredient and there is no evidence at all for the proof of the second and the third ingredients. In order to prove the first ingredient, namely, that the woman is the wife of the complainant Khedu Rai, the prosecution must prove that she is the legally wedded wife of that man. Though the prosecution has examined several witnesses like P.Ws. 1, 2, 5, 8 and 9, but the learned trial Judge has also analysed the evidence that there is no witness to say that any of them had really witnessed the marriage. The evidence is that this woman was married second time by this man after his first wife had died. But none of those witnesses except P.W.8 who is the Sala of the brother of the complainant has stated that he had attended the marriage. But even this P.W.8 has given evidence in para 5 which shows that really there was no valid marriage by observing the rites of the marriage because this witness states that on the day the marriage was performed, the complainant was at his house itself and that the ceremonies in connection with the marriage were not performed. The learned Judge has, however, based his findings about the validity of the marriage on presumptive evidence of the witness to say (vide P.W.11) that the man and the woman were living as wife and husband for 20 or 22 years. But the validity of the marriage could not be proved on such presumptive evidence. The learned Judge has, however, based his findings about the validity of the marriage on presumptive evidence of the witness to say (vide P.W.11) that the man and the woman were living as wife and husband for 20 or 22 years. But the validity of the marriage could not be proved on such presumptive evidence. The evidence of that P.W.11 at this point is only this much that she used to call him Malik and used to call the son by the first wife of this man as her son. It was not proved that she was the legally married wife of the complainant. In several cases of this Court in Ramdhani Gope V/s. Jagesher Mahto AIR 1941 Pat 526 : (1941-42 Cri LJ 653) it was held that the marriage must be strictly proved. 9. With respect to the second ingredient for S.498, I.P.C. that the accused had the knowledge or had reason to believe that she was the wife of that man, the prosecution has not led any evidence whatsoever, even to say generally that the accused knew it that she was the wife of that man. 10. With respect to the third ingredient that the accused had taken away the woman with the intention that she may have illicit intercourse with any person, the prosecution has not adduced any evidence whatsoever. It is no doubt true that the intention has to be gathered from the circumstances and conduct of the accused in that respect. But even in that respect the prosecution has not led any evidence whatsoever to show any circumstance by any motive or act said to have been committed by the accused from which an inference of such intention could be gathered. In a case of Hari Kishan V/s. State of H.P., AIR 1954 Him Pra 39 : (1954 Cri LJ 845) in which a case of this Court was also considered and it was held that such an intention may be gathered from such circumstances (which were the circumstances of that case) that the accused had offered clothes and shelter etc. to the woman after having taken her from the husbands house. In the present case, there is no evidence at all on behalf of the prosecution of any fact to show any act or conduct of the accused from which it could be inferred that she was taken away with that purpose. to the woman after having taken her from the husbands house. In the present case, there is no evidence at all on behalf of the prosecution of any fact to show any act or conduct of the accused from which it could be inferred that she was taken away with that purpose. Much less there is no evidence at all on behalf of the prosecution to say a word that after this accused and that woman were seen boarding a bus, as to where she was living thereafter. Rather, on the other hand, the circumstances of the present case is that even one of these appellants who is (sic) to have taken away the woman for such illicit intercourse (by inference), it is the prosecution story that this man-accused along with his mother, who is another accused-appellant, had together taken this woman. Normally it is unnatural that people should infer that a man would take away another woman for illicit intercourse and in taking that woman away he would take the help of his mother for such immoral purpose. The other evidence that has come on the record through P.W.8 is that there used to be altercation between this woman and this complainant and that the complainant had some children from his first wife and no child from this woman who is said to have been brought as the second wife. In all these circumstances there might have been other reasons and purpose for which this man-accused, even if the prosecution evidence is believed, had taken away this woman with some other purposes other than for illicit intercourse. In a case of Norman O Connon V/s. Emperor, AIR 1935 Cal 345 : (1936) 37 Cri LJ 731 it was held that when there is considerable doubt in such a case, the benefit of doubt ought to be given to the accused. 11. At any rate, in the present case none of the ingredients of S.498, I.P.C. were proved and, therefore, the conviction has to be set aside also on that account. 12. The conviction is set aside and the appeal is allowed.