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2019 DIGILAW 1175 (ALL)

Mubin @ Bholu v. State of U. P.

2019-05-03

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : Pradeep Kumar Srivastava, J. At the very outset, the learned counsel for the accused-appellant has submitted that instead of arguing on bail application he will argue on the appeal on merits to which the learned AGA has agreed. 2. Heard Shri Pankaj Sharma, learned counsel for the appellant, Shri Ram Adhar and Shri Ravi Prakash Pandey, learned AGA for the State and perused the record. 3. Learned counsel for the accused-appellant has submitted that the appellant Mobin @ Bholu has been convicted in Sessions Trial No. 458 of 2016, (State of U.P. Vs. Mubin @ Bholu), arising out of same Case Crime No. 33 of 2011, P.S. Mahila Thana, District Mathura and sentenced for the offence under section 493 I.P.C. for 09 years rigorous imprisonment and Rs. 9000/- fine and in case of default in payment of fine 01 year additional simple imprisonment. 4. Perusal of record shows that a case was registered against the appellant on an application given by the victim under section 156(3) of the Criminal Procedure Code stating therein that the accused-appellant kept her for a long period as his wife and three children were born to them. Thereafter, she was forced to leave the house. She filed a petition for maintenance under Section 125 of the Criminal Procedure Code in which because of intervention of local respected people and relatives, a settlement took place and accused-appellant and his family members took the victim back to their house. Thereafter, she was taken to the court where she signed on certain papers and subsequently, she was again beaten by the accused-appellant and his family members and she forced to leave the house along with her children. A panchayat took place in which the accused-appellant denied her to be his wife, whereas he was keeping her as wife from the last 8 years. On the basis of the application, by the order of the Magistrate, a case was registered against the accused-appellant and after investigation charge-sheet was submitted against the accused-appellant by police for the offence under section 376, 420 IPC. 5. Prosecution examined PW-1 victim, PW-2 Neha @ Asgari, PW-3 SI Siyaram in support of the prosecution version. On the basis of the application, by the order of the Magistrate, a case was registered against the accused-appellant and after investigation charge-sheet was submitted against the accused-appellant by police for the offence under section 376, 420 IPC. 5. Prosecution examined PW-1 victim, PW-2 Neha @ Asgari, PW-3 SI Siyaram in support of the prosecution version. On the basis of evidence on record the learned trial court did not find the accused-appellant guilty for the offence under section 376, 420 IPC but found him guilty for the offence under section 493 IPC and convicted and sentenced the accused-appellant by impugned judgment. 6. Aggrieved by the conviction and sentence, this appeal has been filed challenging the impugned judgment on the basis that the victim was residing with the appellant without any pressure on her free will and there was no question of cheating her. Both made physical relationship on the basis of mutual consent. No charge was framed against the accused appellant for the offence under section 493 IPC but the appellant was convicted under that section. Therefore, the whole trial is vitiated and the judgment and sentence is against law and fact and has been wrongly decided by the learned trial court. Therefore, impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal. 7. From the perusal of the evidence on record, it appears that the victim PW-1 Sarjina has proved her application under section 156(3) as Ext. A-1 and affidavit Ext. A-2. She has admitted that both were residing as husband and wife voluntarily. In her cross-examination, she has however stated that she lived with the accused-appellant as wife and there was no pressure on her and accused-appellant never deceived her nor by applying deceit, he made any physical relationship with her. She lived as such for 8-10 years. The accused-appellant never made physical relationship with her on promise of marriage. She has been declared hostile. In cross-examination, she has denied her statement given to IO and has stated that accused has a general store and her family members took certain items on credit. Accused was demanding money, whereupon a quarrel took place and she implicated him in the pressure of her relatives. 8. Another witness PW-2 Neha @ Asgari has also stated that both accused-appellant and victim lived together voluntarily and there was no complaint between them. Accused was demanding money, whereupon a quarrel took place and she implicated him in the pressure of her relatives. 8. Another witness PW-2 Neha @ Asgari has also stated that both accused-appellant and victim lived together voluntarily and there was no complaint between them. The accused-appellant never promised her to marry. This witness has been declared hostile and in cross-examination nothing has come which could help the prosecution version. 9. Pw-3 SI Siyaram is formal witness who has proved charge-sheet Ext. A-3, site-map Ext. A-4, chick FIR Ext. A-5 and GD report Ext. A-6. 10. Thus from the perusal of the evidence on record, it is clear that there was no evidence given from the side of prosecution that the accused appellant forcefully made physical relationship with the victim nor there is any evidence that accused-appellant deceived the victim or by deceitful means made physical relationship and made promise to marry her. Thus, both continued in live-in relationship. In absence of any evidence on record, it appears strange that learned trial court has convicted the accused-appellant for the offence under section 493 IPC. 11. It is pertinent to point out that the offence under section 493 IPC is different kind of offence and it has no relationship with the offence of rape. The law in this regard is well settled that if the offence for which the accused-appellant has been charged is not made out but a cognate offence is established beyond shadow of any doubt, then the accused can be convicted for that cognate offence. The Supreme Court has discussed the concept of 'cognate offence' in Rafiq Ahmad vs State of UP, (2011) 8 SCC 300 and has pointed out that 'cognate' literally means 'akin in nature'. Therefore, it was laid down: "(Cognate)This expression has also been and applied to the criminal jurisprudence as well not only in the Indian system but even in the other parts of the world Such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree have been understood to be 'cognate offence'. .....Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the courts can always exercise its power to punish the accused for one or the other offence provided the accused does not suffer any prejudice......" 12. .....Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the courts can always exercise its power to punish the accused for one or the other offence provided the accused does not suffer any prejudice......" 12. Section 493 is not a cognate offence of rape as it finds mention in Chapter XX of IPC which incorporates 'Offences Relating to Marriage'. Rape is certainly not an offence relating to marriage. It is entirely a different offence and it cannot be converted into that of an offence under section 493 IPC. 13. There is yet another reason why the approach of the learned trial court cannot be said to be justified and according to law. The 'Offence Relating to Marriage' under Chapter XX of the Indian Penal Code is cognizable only on complaint filed by the aggrieved person under section 198 of the Criminal Procedure Code and there is no role of police at any stage of the proceeding. It also goes to establish that an offence under section 376 IPC cannot be converted into that of section 493 IPC to hold guilty and inflict sentence on the accused appellant. 14. In my considered view the reasons assigned by the trial court for convicting the accused under section 493 IPC, in a case where the victim herself was hostile and did not support the prosecution, appears to be confused and based on misunderstanding of law. The conviction and sentence is apparently illegal and is not sustainable. 15. In view of the above discussions, I find that there was no evidence on record on the basis of which the accused-appellant could be convicted for the offence under section 493 IPC. Hence, the impugned judgment is liable to be set aside. 16. Accordingly, the appeal is allowed. The conviction and sentence dated 13.10.2017 passed by Additional District & Sessions Judge (Women Related Offence)/FTC, Court no. -I, Mathura is set aside and consequently the accused-appellant Mubin @ Bholu is acquitted for the offence under section 493 IPC. 17. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.