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2021 DIGILAW 559 (BOM)

Arun Shrawan Patil v. State of Maharashtra

2021-03-09

SANDEEP K.SHINDE

body2021
JUDGMENT Sandeep K. Shinde, J. - The question that arises for my consideration is, whether the evidence of Victim-Rekha Anant Patil (P.W.9) and of her, husband Anant Patil (P.W.1), has established beyond a reasonable doubt, that the appellant was guilty of taking away or enticing victim, (a married woman) from the care of her husband with intent that she may have illicit intercourse with him. 2. Appellant has been convicted for the offence punishable under Section 498 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- with default stipulation vide judgment dated 15th May, 1998 in Sessions Case No.44 of 1996 passed by the learned 2nd Additional Sessions Judge, Raigad at Alibag. 3. Prosecution case in brief is, that the complainant married, Rekha in May, 1995. Rekha's matrimonial house was at Nerul; whereas her parental house was at Vahal. Complainant said, on 31st October, 1995 at around 8.30 a.m., appellant informed him on telephone that he had abducted his (complainant) wife. Soon thereafter, husband enquired with in-laws. Whereupon, he was told by mother-in-law that, Rekha, had left for Nerul (matrimonial house) on the earlier day (30th October, 1995) at 3.30 p.m. Thereafter, husband lodged the complaint whereupon the offence under Section 366 of the IPC was registered. 4. That after fling final report, charge was framed under Sections 366, 376, 497 and 498 of the IPC. Upon appreciating evidence, accused was acquitted of the offences punishable under Sections 366, 376, 497 of the IPC, but convicted under Section 498 of the IPC. It is against the conviction and sentence, this appeal is preferred. 5. Section 498 of the IPC reads as under: "498. Enticing or taking away or detaining with criminal intent a married woman. Upon appreciating evidence, accused was acquitted of the offences punishable under Sections 366, 376, 497 of the IPC, but convicted under Section 498 of the IPC. It is against the conviction and sentence, this appeal is preferred. 5. Section 498 of the IPC reads as under: "498. Enticing or taking away or detaining with criminal intent a married woman. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." The gist of the offence under this Section consists in the deprivation of the husband of his custody and his proper control over his wife. Therefore, the consent of the wife to deprive her husband of his proper control over her is not material. This section applies to cases where the object of 'taking' or 'enticing' is, that the woman may have illicit intercourse with some other person. One of the elements of the offence under Section 498 of the IPC is taking or enticing away the wife of another. In the case of Mahadeo Rama v. Emperor,1943 AIRBombay 179, it was held that to bring Section 498 into operation, there must be some influence operating on the woman, or co-operating with her inclination at the time the final step is taken, which causes a severance of the woman from her husband. Therefore, unless there is some influence physical or moral by the accused upon the wife of another, there cannot be any "taking". In so far as the word "detain", i.e., keeping back, need not necessarily be by physical force. It may be by persuasion. In the case of Alamgir and another v. State of Bihar, (1959) AIR SC 436 it is held 'keeping back may be by force; but it need not be by force. It can be the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman, or may have encouraged, or cooperated with, her initial inclination, to leave her husband. . It can be the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman, or may have encouraged, or cooperated with, her initial inclination, to leave her husband. . However, in Chaman Lal Monga v. Haji Sabir Ali, (1973) CriLJ 1249 the complainant's wife left her husband's place and live with the accused. There was no proof to show that the woman was being detained by the accused as a result of allurements or she was being encouraged or induced not to go back to her husband. . Thus, keeping in mind the ratios laid down in the aforesaid judgments, let me analyse the prosecution evidence to ascertain, whether charge under Section 498 of IPC has been proved. Rekha in her testimony stated, that she accompanied the accused from Belapur to Thane in ST bus; thereafter in a truck; thereafter in rickshaw and finally reached Miraj on the next day in the morning. Her testimony shows, she stayed in the house of the accused's married sister. While under cross-examination, she stated thus, 'I voluntarily went to Miraj. It is correct that the accused has not given any threat to accompany with him while going to Miraj. It is correct to say that no sexual relation had been between myself and accused during our stay at Miraj. I have attained age of more than 18 years at the time of going to Miraj.' Thus, the testimony of Rekha does not show, the accused in any manner influenced or encouraged or induced Rekha, when she was inclined to deprive her husband's control over her. The evidence does not suggest that he had induced her not to go back to her husband nor evidence suggests, he detained her as a result of allurements. 6. As a result, it is to be held that prosecution has not proved, the accused enticed Rekha nor proved that he took away her from the care of her husband with intent that she may have illicit intercourse with him or any person. 7. In consideration of the evidence and in view of the reasons stated, appeal is allowed. The impugned conviction and sentence passed in Sessions Case No.44 of 1996 by the 2nd Additional Sessions Judge, Raigad, Alibag, is quashed and set aside. Bail bond of the accused stands cancelled. Sureties are discharged. 7. In consideration of the evidence and in view of the reasons stated, appeal is allowed. The impugned conviction and sentence passed in Sessions Case No.44 of 1996 by the 2nd Additional Sessions Judge, Raigad, Alibag, is quashed and set aside. Bail bond of the accused stands cancelled. Sureties are discharged. Fine amount, if any, paid shall be refunded to the appellant. 8. Appeal is allowed and disposed of.