REPORTABLE

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

Vs.

U.T. of Chandigarh … Respondent

[With Crl. Appeal No………….of 2008 (Arising out of SLP (Crl.) No.6796 of 2006]   

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Heard learned counsel for the parties.

2. Leave granted.

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3. Though 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.

4. Challenge  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.          

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5. The prosecution version, as unfolded during trial, is as

follows:   

Complainant-Manjit 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.

Accused-Bhupinder  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

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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

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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

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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.

Accused-appellant faced trial. After trial, he was convicted and

sentenced  as  aforesaid.  He  filed  an appeal  before  the  High

Court.         

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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’).  

6. The 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

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job as she had finished the studies and wanted to get a job.

The  complainant  stayed  in  their  house  for  six  months.

Thereafter,  he  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.              

7. The 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

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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.

Accordingly,  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.      

8. Learned  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,

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pointed out that the compensation, as awarded by the High

Court, has been deposited and withdrawn by the complainant.

9. Learned 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 side.   

10. Clause “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.

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xxx xxx xxx”    

11. Though 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

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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.                  

12. The 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.  

…………………………….J.

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(Dr. ARIJIT PASAYAT)

…………………………….J. (P. SATHASIVAM)

New Delhi, July 10, 2008

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