Alamgir & ANR Vs. The State of
Bihar  INSC 115 (14 November 1958)
CITATION: 1959 AIR 436 1959 SCR Supl. (1) 464
CITATOR INFO :
R 1972 SC1823 (10)
Criminal Trial-Detaining married woman with
criminal intent -Detaining, if must be against will of woman-Sentence,
enhancement of-Indian Penal Code, 1860 (XLV of 1860), s. 498-Code of Criminal
Procedure, 1898 (V of 1898), s. 439.
One R, the wife of S, disappeared from her
She was traced to the house of the
appellants, A and his brother B. When S went there and asked A to let his wife
go with him A told him that he had married her and B threatened S and asked him
to go away. The appellants were charged under s. 498 Indian Penal Code for
detaining R when they knew or had reason to believe that she was the wedded
wife of S, with intent to have illict intercourse with her. The appellants
pleaded that R was not validly married to S and that she had not been detained
by them inasmuch as she was tired of living with S and had voluntarily and of
her free will come to stay with them. The Magistrate found the appellants
guilty, convicted them and sentenced them to undergo simple imprisonment for
two months each. On appeal the Sessions Judge confirmed the conviction but
reduced the sentence to a fine of Rs. 50/each. The appellants filed a revision
before the High Court. The High Court issued a notice of enhancement and after
hearing the appellants dismissed the revision and enhanced the sentence to
rigorous imprisonment for six months each.
Held, that detention in s. 498 means keeping
back a wife from her husband or any other person having the care of her on
behalf of her husband. Such 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 have either caused the willingness of the woman, or may have encouraged, or
co-operated with, her initial inclination to leave her husband. The object of
the section is to protect the rights of the husband and it cannot be any
defence to the charge to say that, though the husband has been deprived of his
rights, the wife is willing to injure the said rights and so the person who is
responsible for the willingness has not detained her. A was rightly convicted
as the charge of detention was proved against him on the findings of the Courts
below that he had offered to marry R and had thereby either persuaded or
encouraged her to leave her husband's house. But the charge was not made out
against B as it was not proved that he had offered any inducement, blandishment
or allurement to R for leaving the protection of her husband and for refusing
to return to him.
465 Sundara Dass Teva, (1868) IV Mad. H. C.
R. 20; Ramaswamy Udayar v. Raju Udayar, A. 1. R. (1953) Mad. 333 ; Emperor v. Jan
Mohomed, (1902) IV Bom. L.R. 435; Broomfield, J., in Emperor v.Mahiji Fula, (1933)
I.L.R. 58 Bom. 88, Emperor v. Ram Narayan Baburao Kapur, (1937) 39 Bom. L.R.
61; Mahadeo Rama v. Emperor, A.I.R. (1943) Bom. 179; Prithi Missir v. Harak
Nath Singh, I.L.R. (1937) 1 Cal. 166; Bipad Bhanjan Sarkar v. Emperor, I.L.R.
(1940) 2 Cal. 93; Banarsi Raut v. Emperor, A.I.R. (1938) Pat. 432 and Bansi Lal
v. The Crown, (19I3) Punj. L.R. 1066, approved.
Divatia, J., in Emperor v. Mahiji Fula,
(1933) I.L.R. 58 Bom. 88, Mabarak Sheikh v.-Ahmed Newaz, (1939) 43 C.W.N. 980
and Harnam Singh v. Emperor, A.I.R. (1939) Lah. 295, disapproved.
Held further, that the High Court was not
justified in enhancing the sentence to six months rigorous imprisonment, and it
should have only restored the sentence passed by the trial Court. The question
of sentence is normally in the discretion of the trial Court and the High Court
can enhance the sentence only if it is satisfied that the sentence imposed by
the trial Court is unduly lenient, or, that in passing the order of sentence,
the trial Court had manifestly failed to consider the relevant facts. The
sentence of two months simple imprisonment imposed by the trial Court was not
so unduly or manifestly lenient as not to meet the ends of justice.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 187 of 1956.
Appeal by special leave from the judgment and
order dated December 7, 1955, of the Patna High Court in Criminal Revision No.
875 of 1954, arising out of the judgment and order dated May 31, 1954, of the
Court of the Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of
B. K. Saran and K. L. Mehta, for the
B. H. Dhebar and T. M. Sen, for the
1958. November 14. The Judgment of the Court
was delivered by GAJENDERAGADKAR, J.-This criminal appeal raises a short
question about the construction of the word " detains " occurring in
a. 498 of the Indian Penal Code. It arises in' this way. The two appellants
were charged before the trial magistrate under s. 498 of the Code in that on or
about October 27, 1952, at the village Mohania they wrongfully detained Mst.
59 466 Rahmatia, the legally married wife of
the complainant Saklu Mian, when they knew or had reason to believe that she
was the wedded wife of the, complainant and was under his protection, with
intent to have illicit intercourse with her. The prosecution case was that Mst.
Rahmatia had disappeared from her husband's house on October 21, 1952;
the complainant made J. search for her for
several days but was not able to trace her whereabouts. Ultimately he filed a
complaint at the police station after he was informed by Shakoor Mian (P. W. 4)
that he had seen the complainant's wife at the house of the two appellants. The
complainant then went to the house of the appellants along with Shakoor Mian
(P. W. 4), Musa Mian (P. W. 2) and Suleman Mian (P. W. 3); they saw the woman
in the house of the appellants whereupon the complainant asked appellant No. I
Alamgir to let his wife go with him but appellant No. I told him that he had
married her and appellant No. 2 warned him to get away and said that, if he
persisted, he would be driven out.
This story is corroborated by the three
companions of the complainant.
The appellants denied the charge. They
pleaded that the complainant had not validly married -the woman and that she
had not been detained by them. According to them, the woman was tired of living
with the complainant and that she had voluntarily and of her free will come to
stay with the appellants.
The learned trial magistrate believed the
prosecution evidence, rejected the pleas raised by the defence, convicted the
appellants of the charge framed and sentenced them to undergo simple
imprisonment for two months each.
This older of conviction and sentence was
challenged by the appellants by their appeal before the court of sessions.
The appellate court confirmed the conviction
of the appellants but reduced their sentence from simple imprisonment for two
months to a fine of Rs. 50 or in default simple imprisonment for one month
each. The appellants then moved the High Court at Patna in its revisional
jurisdiction. When the revisional application came to be heard before
Choudhary, J., the learned judge thought 467 that the appellate court should
not have reduced the sentence imposed on the appellants by the trial magistrate
and so he issued a notice against the appellants calling upon them to show
cause why their sentence should not be enhanced. This notice and the main
revisional application were ultimately heard by Ramaswamy and Imam, JJ., who
confirmed the order of conviction and enhanced the sentence against both the
appellants by ordering that each of them should suffer six months' rigorous
imprisonment. An application made by the appellants to the High Court for a
certificate to appeal to this Court was rejected. The appellants then applied
for and obtained special leave to appeal to this Court. That is how this appeal
has come before us for final disposal.
On behalf of the appellants, Mr. B. K. Saran
has urged that the evidence in the case clearly shows that the woman was
dissatisfied with her husband and had left his house and protection voluntarily
and of her free will. If having thus left the house she came to stay with the
appellants and they allowed her to stay with them, it cannot be said that they
have detained her within the meaning of s. 498. According to him, the word
" details " used in s. 498 must necessarily imply that the woman
detained is unwilling to stay with the accused and has been compelled so to
stay with him against her will, and desire. It is difficult to imagine that, if
a woman is willing to stay with a person, it can be said that the person has
detained her. That is not the plain grammatical meaning of the word "
detains ". It is this argument which calls for our consideration in the
At the outset it would be relevant to
remember that s. 498 'occurs in Ch. XX of the Indian Penal Code which deals
with offences. relating to marriage. The provisions of s. 498, like those of s.
497, are intended to protect the rights of the husband and not those of the
wife. The gist of the offence under s. 498 appears to be the deprivation of the
husband of his custody and his proper control over his wife with the object of
having illicit intercourse with her. In this connection it would be material to
compare and contrast the 468 provisions of s. 498 with those of s. 366 of the
Section 366 deals with cases where the woman
kidnapped or abducted is an unwilling party and does not respond to the
criminal intention of the accused. In these cases the accused intends to compel
the victim afterwards to marry any person against her will or to force or
seduce her to illicit intercourse. In other words s. 366 is intended to protect
women from such abduction or kidnapping. If it is shown that the woman who is
alleged to have been abducted or kidnapped is a major and gave her free consent
to such abduction or kidnapping, it may prima facie be a good defence to a
charge under s. 366. On the other hand s. 498 is intended to protect not the
rights of the wife but those of her husband; and so prima facie the consent of
the wife to deprive her husband of his proper control over her would not be
material. It is the infringement of the rights of the husband coupled with the
intention of illicit intercourse that is the essential ingredient of the
offence under a. 498. Incidentally it may be pointed out that the offence under
s. 498 is a minor offence as compared with the offence under s. 366.
The policy underlying the provisions of s.
498 may no doubt sound inconsistent with the modern notions of the status of
women and of the mutual rights and obligations under marriage. Indeed Mr. Saran
vehemently argued before us that it was time that ss. 497 and 498 were deleted
from the Penal Code. That, however, is a question of policy with which courts
are not concerned. It is no doubt true that if the words used in a criminal
statute are reasonably capable of two constructions, the construction which is
favourable to the accused should be preferred; but in construing the relevant
words, it is obviously necessary to have due regard to the context in which
they have been used; and, as we will presently point out, it is the context in
which the word" detains " has been used in s. 498 that is
substantially against the construction for which the appellant contends.
Section 498 provides:
469 " 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.
It would be noticed that there are three
ingredients of the section. The offender must take or entice away or conceal or
detain the wife of another person from such person or from any other person
having the care of her on behalf of the said person. He must know or has reason
to believe that the woman is the wife of another person; and the taking,
enticing, concealing or detaining of the woman must be with intent that she may
have illicit intercourse with any person. It is clear that if the intention of
illicit intercourse is not proved the presence of the first two ingredients
would not be enough to sustain the charge tinder s. 498. It is only if the said
intention is proved that it becomes necessary to consider whether the two other
ingredients are proved or not.
It is plain that four different kinds of
cases are contemplated by the section. A woman may be taken away or enticed
away or concealed or detained. There is no doubt that when the latter part of
the section refers to any such woman, it does not mean any woman who is taken
or enticed away as described in the first part, but it refers to any woman who
is and whom the offender knows or has reason to believe to be the wife of any
other man. It is not seriously disputed that in the first three classes of
cases the consent of the woman would not matter if it is shown that the said
consent is induced or encouraged by the offender by words or acts or otherwise.
Whether or not any influence proceeding from the offender has operated on the
mind of the woman or has co-operated with or encouraged her inclimations would
always be a question of fact. If, on evidence, the court is satisfied that the
act of the woman in 470 leaving her husband was caused either by the influence
of allurement or blandishments proceeding from the offender, that may be enough
to bring his case within either of the three classes of cases mentioned by s.
498. In this connection, when the consent or the free will of the woman is
relied upon in defence, it is necessary to examine whether such alleged consent
or free will was not due to allurement or blandishments or encouragement
proceeding from the offender.
It is, however, urged that, when the latter
part of the section speaks of detention, it must prima facie refer to the
detention of a woman against her will. It may be conceded that the word "
detains" may denote detention of a person against his or her will ; but in
the context of the section it is impossible to give this meaning to the said
word. If the object of the section had been to protect the wife such a
construction would obviously have been appropriate; but, since the object of
the section is to protect the rights of the husband, it cannot be any defence
to the charge to say that, though the husband has been deprived of his rights,
the wife is willing to injure the said rights and so the person who is responsible
for her willingness has not detained her. Detention in the context must mean
keeping back a wife from her husband or any other person having the care of her
on behalf of her husband with the requisite intention. Such 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 leave caused the willingness of
the woman, or may have encouraged, or co-operated with, her initial
inclination, to leave her husband. It seems to us that if the willingness of
the wife is immaterial and it cannot be a defence in cases falling tinder the
first three categories mentioned in s. 498, it cannot be treated as material
factor in dealing with the last category of case of detention mentioned in the
said section. Therefore, we are satisfied that the High Court was right in
holding that the charge of detention has been proved against appellant No. I
inasmuch as both the courts of facts have found that 471 he had offered to
marry Mst. Rahmatia and thereby either persuaded or encouraged her to leave her
It may be that Rahmatia was dissatisfied with
her husband and wanted voluntarily to leave her husband; but, on the evidence,
it has been held that she must have been encouraged or induced not to go back
to her husband because she knew that she would find ready shelter and
protection with appellant No. 1 and she must have looked forward to marry him.
In fact appellant No. 1 claims to have married her. Thus there can be no doubt
that he intended to have illicit sexual intercourse with her. That is the
effect of concurrent findings of fact recorded against appellant No. I ; and it
would not be open to him to challenge their correctness or propriety in the
This section has been the subject-matter of
several judicial decisions and it appears that, except for a few notes of
dissent, there is a fair amount of unanimity of judicial opinion in favour of
the construction which we feel inclined to place on the word " detains
" in s. 498. It is, however, true that the relevant decisions, to some of
which we would presently refer disclose a striking difference of approach in
dealing with questions of fact. It would appear that though the relevant
portion of the section has received the same construction in dealing with same
or similar facts, the learned judges have differed in their conclusion as to
whether the accused person had been guilty of conduct which would bring his
case within s. 498. This, however, is a difference in the method of approaching
evidence and assessing its effects. It would be futile and even improper to
consider whether a particular conclusion drawn from the specific evidence
adduced in the case was right or not.
What is important in such cases is to see how
the section has been construed and, as we have just indicated, in the matter of
construction there appears a fair amount of unanimity. Let us now refer to some
of the decisions cited before us.
In 1868, the Madras High Court held in
Sundara Dass Tevan (1) that depriving the husband of his (1) (1868) IV Mad.
472 proper control of his wife for the
purpose of illicit intercourse is the gist of the offence just as it is the
offence of taking away a wife under the same section; and a detention occasioning
such deprivation may be brought about simply by the influence of allurement and
blandishment. On the facts of the case, however, the court was not satisfied
that the accused bad offered any such allurement or blandishment and so the
order of conviction passed against the appellant was quashed. It appears that
the construction put by the Madras High Court on s. 498 in this case has been
generally accepted in the said High Court (Vide: Ramaswamy Udayar v. Raju
Udayar (1) ).
The Bombay High Court has taken the same view
in Emperor v. Jan Mahomed (2). It was held by the High Court that the offence
contemplated by & 498 is complete if it appears that the accused went away
with the woman in such a manner as to deprive her husband of the control of his
wife; the fact that the woman accompanied the accused of her own free will does
not diminish the criminality of the act. Even in this case, the court was
unable to discover any evidence, direct or indirect, about the intention of the
accused or any allurement or blandishment offered by him and so the order of
conviction passed against the accused was set aside.
This question came to be considered by the
said High Court again in Emperor v. Mahiji Fula (3). Mr. Justice Broomfield who
delivered the main judgment of the Bench has expressed the view that " the
word I detains ' means, by deprivation, and according to the ordinary use of
the language I keeps back"'; and he adds that ,there may be various ways
of keeping back. It need not necessarily be by physical force.
It may be by persuasion or, as the Court
" (Madras High Court) " has observed in this particular case"
(Sundara Dass Thevan (4)) " by allurement or blandishment ". On the
facts, however, it appeared to the trial court that the conduct of the accused
did not bring his case within the mischief of s. 498. The wife of the
complainant had been taken (1) A.I.R. (1953) Mad. 333.
(3) (1933) I.L.R. 58 Bom. 88, 92.
(2) (1902) IV Bom. L. R. 435.
(4) (1868) IV Mad. H. C. R. 20.
473 away by her brother and she was
subsequently married by natra marriage to the accused. The complainant learnt
about this incident and went to the accused to ask him to allow his wife to go
back to him. On seeing the complainant and his friends the accused came out
with a dharia and threatened the complainant and his companions who then returned
to their village. The conduct of the accused' when the complainant approached
him, it was said, cannot necessarily indicate that the accused had detained the
woman. This was the' view taken by the trial court who acquitted the accused ;
on appeal the High Court saw no reason to differ and so the order of acquittal
was confirmed by it. Divatia, J., who delivered the concurring judgment
apparently differed from Broomfield, J., in regard to the construction of the
word " detains ". He agreed that the scheme of s. 498 showed that
though the woman may be perfectly willing to go with the man the offence of
taking or enticing away would occur because it simply consists of taking or
enticing away a woman without anything more; but according to him, in the
latter part of the section, which speaks of concealing or detaining the woman,
the woman would be detained only if she is prevented from going in any quarter
where she wants to go. In our opinion, this construction is not sound. It is
not easy to see how the act of concealing the woman would necessarily import
any considerations of the consent of the woman ; besides, according to Divatia,
J., himself, the woman's Consent would be irrelevant in the cases of -taking or
enticing her away.
If that be so, it is difficult to make her
consent relevant and decisive in dealing with the cases of detention.
Unfortunately the learned judge does not
appear to have appreciated the fact that the primary and the sole object of s.
498 is to protect the husband's rights and not the rights of the wife. If it is
shown that the woman's inclination to stay away from her husband was either
instigated or encouraged by the offender, she can be said to have been detained
or kept away from her husband within the meaning of the section 60 474 though
at the time of the detention she may be willing to say with the offender. The
same view has been expressed by Broomfield and Sen, JJ., in Emperor v.Ram
Narayan Baburao Kapur (1) and by Beaumont C.J., and Sen, J., in Mahadeo Rama v.
Emperor (2). We may point out that in both these cases the court was have
detained the woman.
The Calcutta High Court appears to have put a
similar construction on the word "detention". In Prithi Missir v. Harak
Nath Singh (3) it has been held by the said High Court that " the word '
detention' is ejusdem generis with enticement and concealment. It does not
imply that the woman is being kept against her will but there must be evidence
to show that the accused did something which had the effect of preventing the
woman from returning to her husband ". On the merits, however, the court
held that the learned trial magistrate had not come to any definite finding of
fact. In fact it did not appear that the accused was keeping the complainant's
wife as his mistress; and on the whole, the court was not satisfied that the
accused was responsible for the conduct of the complainant's wife for leaving
her husband's house and so detention was held not proved against the accused.
In Mabarak Sheikh v. Ahmed Newaz (4) the same High Court held that there can be
no detention of a woman within the meaning of s. 498, second part, if the woman
is an absolutely free agent to go away from the person charged whenever she
likes. It appears that the learned judges were inclined to hold that there
could be no detention if the woman was an absolutely free agent to go away from
the person charged whenever she likes to do so;
and in support of this view they have
referred to some of the decisions which we have already considered. With
respect, it appears that the effect of the earlier decisions has not been
properly considered and the findings of fact recorded in the said decisions are
assumed to lend colour to, and modify, the construction of the section (1)
(1937) 39 Bom. L.R. 61.
(3) I.L.R.  1 Cal. 166.
(2) A.I.R. (1943) Bom. 179.
(4) (1939) 43 C.W.N. 980.
475 adopted by them. Besides, the relevant
observations appear to be obiter because, on the facts, it was found in this
case that the woman was not a free agent and so the charge against the accused
under s. 498 was held established. In Bipad Bhanjan Sarkar v. Emperor (1),
Henderson and Khundkar, JJ., have considered the word " detains " in
the same manner as we have done. However, as in many other cases, in this case
also, the court found that there was absolutely nothing to show that the
accused had done anything which could bring his case within the mischief of s.
The Patna High Court, in Banarsi Raut v.
Emperor (2), has held that providing shelter to a married woman is such an
inducement as to amount to detention within the meaning of s. 498. This case
shows that where a married woman was found living in the house of the accused
for some time and sexual intercourse between them had been established, the
court was inclined to draw the inference that there was persuasion or
inducement of the woman as would come within the meaning of the word "
detention ". This is a case on the other side of the line where on facts
the inference was drawn against the accused.
The Lahore High Court has taken a similar
view as early as 1913 in Bansi Lal v. The Crown (3 ). The court has held that
where the accused had provided a house for the woman where she stayed after
deserting her husband under the protection of the accused as his mistress, it
was active conduct on his part which was sufficient to bring him within the
terms of s. 498. In 1939, however, a Division Bench of the Lahore High Court
has taken a contrary view in Harnam Singh v.
Emperor (4). In this case the revisional
application filed by Harnam Singh against his conviction under s. 498 was first
argued before Din Muhammad, J., who referred it to a Division Bench because he
thought that the question of law raised was of some importance. In his
referring judgment the learned judge mentioned some of the relevant decisions
to which his attention was drawn and indicated his own view that (1) I.L.R.
 2 Cal. 93.
(3) (1913) XlV Punjab L. R. 1066.
(2) A.I.R. (1938) Pat. 432.
(4) A.I.R. (1939) Lah. 295.
476 the word " detains " would
naturally imply some overt act on the part of the person who detains in
relation to the person detained. He thought that mere blandishment would not
constitute any relevant factor in the matter of detention.
The matter was then placed before a Division
Bench consisting of Young, C. J., and Blacker, J. Unfortunately the judgment of
the Division Bench does not discuss the question of the construction of s. 498
; it merely records the conclusion of the court in these words: " In our
opinion, the word " detains " clearly implies some act on the part of
the accused by which the woman's movements are restrained and this again
implies unwillingness on her part.
Detention cannot include persuasion by means
of blandishments or similar inducements which would leave the woman free to go
if she wished ". The learned judges also added that they were of the
opinion that the word " detains " cannot be reasonably construed as
having reference to the husband. In our opinion, these observations do not
correctly represent the true purport and effect of the provisions of s. 498.
The position, therefore, is that, on the
findings of fact made by the lower courts against appellant No. I it must be
held that he has been rightly convicted under s. 498.
That takes us to the question of sentence
imposed on him by the High Court in its revisional jurisdiction. We are
satisfied that the High Court was not justified in directing appellant No. I to
suffer rigorous imprisonment for six months by way of enhancement of the
sentence. It is unnecessary to emphasise that the question of sentence is
normally in the discretion of the trial judge. It is for the trial judge to
take into account all relevant circumstances and decide what sentence would
meet the ends of justice in a given case. The High Court undoubtedly has
jurisdiction to enhance such sentence under s. 439 of the Code of Criminal
Procedure; but this jurisdiction can be properly exercised only if the High
Court is satisfied that the sentence imposed by the trial judge is unduly
lenient, or, that, in passing the order of sentence, the trial judge had
manifestly failed to consider the 477 relevant facts. It may be that the High
Court thought that the appellate order passed by the Sessions Judge modifying
the original sentence was wrong, and in that sense, the issue of notice under
s. 439 of the Code of Criminal Procedure against appellant No. 1 to show cause
why his sentence should not be enhanced may have been justified;
but, in enhancing the sentence, the High
Court should, we think, have restored the sentence passed by the trial judge
himself. It is true that, in enhancing the sentence, the High Court has
observed that " women in this country, whether chaste or unchaste, must be
protected and that it is the duty of the court to see that they are given
sufficient protection ". We are inclined to think that the consideration
set out in this observation is really not, very helpful and not decisive
because, as we have already observed, s. 498 does not purport to protect the
rights of women but it safeguards the rights of husbands. Besides, in the
present case, it is clear that Mst. Rahmatia, who is a woman of loose moral
character, was dissatisfied with the complainant, who is her second husband,
and was willing to marry appellant No. 1. In such a case, though appellant No. I
is guilty under s. 498, it is difficult to accept the view of the High Court
that the sentence of two months' simple imprisonment imposed on him, by the
trial court was so unduly or manifestly lenient as not to meet the ends of
justice. It would not be right for the appellate court to interfere with the
order of sentence passed by the trial court merely on the ground that if it had
tried the case it would have imposed a slightly higher or heavier sentence.
We would accordingly modify the order of
sentence passed against appellant No. 1 by reducing it to that of simple
imprisonment for two months.
The case of appellant No. 2 is clearly
different from that of appellant No. 1. The findings of fact recorded by the
courts below do not implicate appellant No. 2 in the act of persuasion or
offering blandishments or inducements to Mst.
Rahmatia. The only evidence against this
appellant is that when the complainant went to take away his wife appellant No.
2 threatened 478 him. The record shows that appellant No. 2 is the brother of
appellant No. 1; and, if knowing that Rahmatia had married his brother,
appellant No. 2 told the complainant to walk away, that cannot legally justify
the inference that he must have offered any inducement, blandishment or
allurement to Rahmatia for leaving the protection of her husband and refusing
to return to him. Indeed the courts below have not considered the case of this
appellant separately on its own merits at all. In our opinion, the conviction
of appellant No. 2 is not supported by any evidence on the record. The result
is the appeal preferred by appellant No. 2 is allowed, the order of conviction
and sentence passed against him is set aside and he is ordered to be acquitted
Appeal of appellant No. 1 dismissed.
Appeal of appellant No. 2 allowed.