Allahabad High Court: In a criminal revision by the convict against the judgment of the Appellate Court, wherein the Court partly allowed the Trial Court’s order to the extent that conviction for charge under Section 498-A, 323, 377 of the Penal Code, 1860 (‘IPC’) has been affirmed, but his conviction and sentence for charge under Section 4 of Dowry Prohibition Act, 1961 (‘DP Act’) has been set aside. The sentence awarded by the Trial Court for charge under Section 377 IPC has been modified and reduced to four years, Ram Manohar Narayan Mishra, J. has acquitted the husband from the charge under Section 377 IPC, further reduced the sentence for offences under Sections 498-A, 323 IPC to period already undergone.
The Trial Court convicted him of the charge under Section 498-A, 323, 377 IPC and Section 4 of Dowry Prohibition Act, 1961 and sentenced him to two years rigorous imprisonment and Rs. 30,000/- fine for charge under Section 498-A, IPC and five years rigorous imprisonment and Rs. 20,000/- fine for charge under Section 377, IPC, six months simple imprisonment and Rs. 500/- for charge under Section 323, IPC and one-year simple imprisonment and Rs. 1,500/- fine for charge under Section 4 of D.P. Act.
In the case at hand, the prosecutrix was married to the convict. Her husband subjected her to cruelty just after the marriage and demanded a Fortuner car and Rs. 40 lakhs cash and asked her to bring the dowry from her parents. She alleged that he subjected her to unnatural intercourse (sodomy) many times, which damaged her private parts. On 14-8-2012 her parents brought her to her parental place. On 9-8-2013 when she was alone in her parents house, her husband barged into the house, dragged her forcefully inside the room, abused her and forcefully established unnatural physical relations with her against her consent. In the meanwhile, her parents appeared at the place of incident and brought the convict to the police station.
The husband submitted that the wife resided with him for a brief period of 23 days after marriage and even during that period she was undergoing treatment and operation for her kidney stone ailment in hospitals and the expenses were borne by him. There is no medical evidence of the prosecutrix in support of charge under Sections 323 and 377 IPC. He further emphasised on the medical examination of the victim, that no internal or external injury was found to the person.
After taking note of Sucha Singh v. State of Punjab, (2003) 7 SCC 643, the Court said that it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. Therefore, the Court found no factual or legal error in finding of guilt recorded by the Appellate Court as regards charge under Section 323, 498-A IPC is concerned in which impugned judgment of the Trial Court has been affirmed with some modification.
After taking note of various Supreme Court decisions and Umang Singhar v. State of M.P., 2023 SCC OnLine MP 3221, the Court observed that marital rape has not been criminalized in this country yet.
The Court noted that in the present matter, case of commission of unnatural sex was not taken in the FIR and same is taken afterwards in divorce petition and in proceedings under the Domestic Violence Act. Medical evidence is not supportive of allegations of commission of unnatural sex. Further, no medical examination of victim carried out regarding allegations of commission of unnatural sex prior to 9-8-2013, whereas she has stated in her evidence that she was subjected to sodomy and oral sex during period 23-7-2012 to 14-8-2012 by her husband.
The Court said that protection of a person from marital rape continues in the case where wife is of 18 years of age or more than that. The Court remarked that in the proposed Bhartiya Nyay Sanhita which is likely to replace IPC, no provision like Section 377 IPC is included therein. The charge of committing matrimonial cruelty against the husband is proved in this case and same is corroborated by findings of Family Court while decreeing the divorce petition. Thus, the Court acquitted the convict from the charge under Section 377 IPC, further reduced the sentence for offences under Sections 498-A, 323 IPC to period already undergone.
Advocates who appeared in this case :
Counsel for Revisionist :- Advocate Arvind Kumar Singh, Advocate Arvind Kumar Singh, Advocate Jitendra Singh, Advocate Kirti Singh
Counsel for Opposite Party :- Government Advocate Nitin Gupta
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