Bhupinder Singh Vs.
U.T. Chandigarh  INSC 1077 (10 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of S.L.P. (Crl.) No.1411 of 2007) Bhupinder Singh ... Appellant U.T. of Chandigarh
... Respondent [With Crl. Appeal No.............of 2008 (Arising out of SLP
(Crl.) No.6796 of 2006]
DR. ARIJIT PASAYAT,
learned counsel for the parties.
in SLP (Crl.) 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
SLP (Crl.) No.1411 of 2007 where notice had been issued.
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 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.
prosecution version, as unfolded during trial, is as follows:
Kaur filed a complaint stating that she was employed as Clerk in All Bank
Employees Urban Salary Earners Thrift Credit Society Ltd. and worked as such
till September, 1991. She was daily commuting from Naraingarh District Ambala,
where her sister was residing.
Singh was employed as Data Entry Operator in the State Bank of Patiala, Sector
17-C, Chandigarh. He used to come to her office and developed intimacy and then
asked her to marry after disclosing himself as unmarried person.
Accused-Bhupinder Singh insisted upon her to get married at the earliest in a
Gurudwara through simple ceremony and said that permission from the parents can
be taken later on and that thereafter marriage would be solemnized with great
pomp and show. Then she agreed to the proposal of the accused. Then on
4.12.1990, Manjit Kaur and Bhupinder Singh got solemnized their marriage in
Gurudwara after exchanging garland before the holy Granth Sahib. At that 3
time, one Sohan Singh, husband of her cousin sister Joginder Kaur was also
present. Then she stayed with the accused in H.No.3166, Sector 22-C (Top Floor),
Chandigarh, 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 4 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 5 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.
faced trial. After trial, he was convicted and sentenced as aforesaid. He filed
an appeal before the High Court. 6 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, 1973 (in short `Code').
High Court referred to the evidence of the witnesses, more particularly,
Harvardhan (PW2), the 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 Singh (PW10) in whose house the appellant and
the complainant used to stay. In his statement under Section 313 of the
`Code' the appellant took the stand that he started knowing the appellant
after his marriage with Gurinder Kaur. The complainant was known to his
wife before her marriage with him and she had come along with her mother
to their place in 1988 in Sector 23, Chandigarh where her mother requested
him to get her a 7 job as she had finished the studies and wanted to get a
stayed in their house for six months.
arranged a job for her. However, she had shifted and being of loose morals,
entertained many people.
When he learnt that
she was of loose morals and was going out with different persons at odd hours,
he objected and told the complainant to mend her ways. But she started fighting
with him and demanded money which he does not pay and, after delivery of the
child, she filed a false complaint.
Gurinder Kaur (PW 20)
stated 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.
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 8 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.
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.
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, 9 pointed out that the compensation, as awarded by
the High Court, has been deposited and withdrawn by the complainant.
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
"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:- xxx xxx xxx 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.
10 xxx xxx xxx"
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 11
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.
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)