MANU/MH/0100/2002

Equivalent Citation:

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 127 of 1996

Decided On: 27.02.2002

Appellants: Harcus Lobo, residing at 23/53, Church Street, Mazagaon, Bombay 400 010 Vs.

Respondent: Harold J. Dcosta, residing at 1103, Bridge View, Hansraj Road, Bombay 400 023 (Now the heirs of H.J. Dcosta) and The State of Maharashtra

Hon'ble Judges/Coram: D.B. Deshpande, J.

Counsels: For Appellant/Petitioner/Plaintiff: Rajendra Sorankar, Adv. h/f A.P. Mundergi, Adv.

For Respondents/Defendant: Pravin Singhal, APP

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code (IPC) - Section 497

Disposition: Application allowed

Case Note: Criminal - adultery - Section 497 of Indian Penal Code, 1860 - husband made allegations of adultery on basis of belief - Criminal Court accepted such allegations as there is no cross examination about said belief - Criminal Court convicted accused on basis of such evidence further giving finding that belief of complainant is bonafide -conclusions of Criminal Court is without any basis.

JUDGMENT

D.G. Deshpande, J.

1. Heard advocate for the accused and learned APP Mr. Singhal for the State.

2. The accused has been convicted by both the courts below for an offence under Section 497 of the Indian Penal code. The trial Court sentenced the accused for one month and fine of Rs.5000/-. The appellate Court only enhanced fine amount from Rs.5000/- to Rs.10,000/doing away with the substantive sentence of one month. Hence this revision. It appears that this case under Section 497 of the Indian Penal Code is of a peculiar characteristics and nature. It was started by way of private complaint filed by complainant Harold J. DCosta. He alleged that the accused had committed an offence of adultery with his wife while she was still bound by the marital tie. There is nothing strange in a husband making such allegation but the proof that is tendered by the complainant in support of his contention is rather unusual. Admittedly, the complainant has no where stated in his evidence that he had any personal knowledge of the so

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called relationship between his wife and the accused. He had never seen his wife with the accused in compromising position or in offending or objectionable manner indicative of their sexual relation. He has also no witness to support his case in this regard. He has no proof that the accused ever seen by any of his friends or relatives or any stranger in the company of his wife being a objectionable manner.

3. The case of the complainant is based on one letter which he found in his own house which was allegedly written by his wife to the accused. In that letter Exhibit-1 the wife is alleged admitted her sexual intercourse with the accused and that letter Exhibit-1 is made basis of conviction by the trial Court as well as by the appellate Court.

4. Admittedly, the complainant did not and could not examine his wife because she has already separated from him and was living in United States. She is not available to him. Admittedly, no such letter, purported to have been written by his wife, was ever found in possession of the accused nor any letter or admission on the part of the accused about such relationship is relied upon by the complainant or produced before the Court.

5. The question therefore is, whether in such a case conviction of the accused under Section 497 of the Indian Penal Code can be maintained and, my answer is in the negative.

6. The learned APP for the State also fairly conceded that the evidence relied upon by the trial Court cannot be made basis for the conviction under Section 497 of the Indian Penal Code.

7. The trial Court had given three circumstances to hold the accused guilty. They are :-

1]The letter Exhibit-1 is written by the complainants wife;

2] It is addressed to the accused;

3]The statement therein proves that the complainants wife had sexual intercourse with the accused on more than one occasion.

All these findings and the reasoning given by the trial Court thereupon are liable to be seriously questioned as has been done by the advocate for the accused.

8. There are vital angles to this case which have been totally overlooked by both the courts below. The trial Court has relied upon following circumstances to come to the conclusion of guilt of the accused :-

1] Whatever was narrated by the complainant in Court about the admission given to him by his wife with reference to her relationship with the accused;

2] The letter produced by the complainant which he found in his own house;

3] The evidence of the complainant that the letter is in the hand writing of his wife;

4] The wife has addressed the letter to one "Mark" which according to the trial Court references to this accused Marcus Lobo alone & none-else in the world;

5] The complainant giving notice to the accused and, the accused not giving reply which is construed to be an admission of adultery by the accused;

6] In the letter Exhibit-1 the wifes admitting her sexual relationship with the said Mark.

9. None of these circumstances or pieces of evidence can be legally used against the accused for convicting him under Section 497 of the Indian Penal Code in the facts and circumstances of

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the case which are :-

A] There is no admission of the accused about his illicit relations with the wife of the complainant;

B] There are no eye witnesses nor any direct evidence to prove such relationship between the accused and the wife of the complainant;

C] There is absolutely no explanation whatsoever how the wife after writing such letter Exhibit-1 to the accused kept it at her house;

D] There is no explanation whether this letter is a copy of the original;

E] There is no evidence that this letter is every posted or sent to the accused by the wife of the complainant;

F] There is nothing like reply of the accused to such letter;

G] Non-examination of the wife by the complainant;

H] In letter Exhibit-1 the words "Mark" are written in different ink while at least first two pages of the letter are in black and portion of the page 3 is in different ink;

I] There is absolutely no evidence at all to show that the words "M" or "Mark" used in this letter refers to the accused and the accused alone and no-one else in the world.

10. In the notice Exhibit-B given by the complainant to the accused through his advocate in first two paragraphs all the allegations are about the financial and monetary transaction between the wife of the complainant and the accused. In the last paragraph of the said notice there is a demand of return of Rs.40,000/- with interest and in between this, at the bottom, there is assertion in three lines as under :-

"He then discovered love letter of his wife to you disclosing her illicit love and sex with you. The complainant now learns that his wife is in constant correspondence with you."

There is nothing on record to show that whether this letter is imaginary or real in sense. Whether the wife has written it by way of admission or wrote this letter as somebody dictated to her. The trial Court has in para 34 of his judgment stated that "It is that the complainants belief that the letter is addressed to the accused." The trial Court has accepted the evidence of the complainant and his case only on the ground that there was no effective cross examination or at least on the ground that the complainant was not cross examined regarding the basis of his belief. The reasoning is very strange and unknown to criminal law. The husband making allegations of adultery on the basis of belief and the criminal Court accepting the same because there is no cross examination about the said belief and convicting the accused on the basis of such evidence and further giving finding that the belief of the complainant is certainly bonafide belief and the word "M" is only intended for the accused are conclusions without any basis. The Court has further observed that the complainant does not speak about there to be another person to whom such letter could have been addressed. The complainant does not appear, according to the trial Court, to be a scheming person or a shrewd person.

11. In fact each and every observation of the trial Court in this regard can be reproduced and out right rejected. However suffice to say that the entire approach of the trial Court is wrong and illegal against known principles of criminal law. The trial Court has observed :-

"If the accused had been innocent, he would have been extremely curious to know

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as to what the letter contained. He would have been surprised and shocked to know that a love-letter has been addressed to him by the wife of the complainant. The accused has not shown any such surprise or curiosity which is indicative, in my opinion, that he thought the existence of such letter probable".

The appellate Court has also confirmed the view of the trial Court. Both of them, therefore, are in grave error in convicting the accused on such evidence. Hence I pass the following order :-

ORDER

The revision is allowed.

The judgments of conviction of both the Courts below are set aside and quashed. The accused is acquitted of the offences under Section 497 of the Indian Penal Code.

Fine, if any, paid by the accused, be refunded to him.

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