BHUPINDER SINGHversusUNION TERRITORY OF CHANDIGARH .

                           [2008] 10 S.C.R. 640
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A                         BHUPINDER SINGH
                                                             '·
                                     v.
               UNION TERRITORY OF CHANDIGARH .
                (Criminal Appeal No. 1047 of 2008)
                             JULY 10, 2008
B
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

           Penal Code, 1860 - ss. 375 clause 'Forthly' and 376 .'-
    Rape - Second marriage by accqsed concealing t(1e [act of
c   his first marriage - Complaint by second wife~ Convfction by
    trial court and sentence of 7 years RI -High court confirming
    the conviction, but reducing the sentence to 3 years· RI in view
    of the fact that the second wife had the knowledge ·about the
    first marriage of the accused:.. Compensation of Rs. 1,00,000(
    - granted - On appeal, held: Conviction justified. - .The case is
0
    covered under clause 'Fourthly' of s .. 37~ -:: In ii)e facts of the   r
    case delay in filing the complaint, cannot wash· away the of-
    fence - Interference with sentence· and· compensation not
    called for.
E ,    Complaint was filed against the appellant-accused
  that he married the complainant, con~ealing the fact that
  he was a married· man. They lived as ·nus.~and and wife.
  The complain.ant also got pregnant. After. 4 years of her
  marriage, After 4 years of her marriage, she came to know
F that the accused was already married. Around· a mQnth
  thereafter, she gave birth to a girl child. She fi'ed a com-
  plaint and case .ulss .. 4201376/498 ..A IPC was registered.
  Accused pleaded that the compl~inant had th.e kno~ledge
  that he was already married. Triai court convicted h~in u/                        i-
G ss. 376 and 417 IPC and sentenced him to 7 years RI and
  fine of Rs. 10,0001- with default clause. High Court con-
  firmed the conviction holding that the case was covered
  by clause 'Fourthly' of Section 375 IPC. But in view of the
  fact that the complainant surrendered herself to the ac-

H                                  640
               BHUPINDER SINGH v. UNION TERRITORY OF           641
                            CHANDIGARH

        cused despite knowing that he was already married, the       A
        sentence was reduced to 3 years R1 and granted com-
        pensation of Rs. 1,00,000/- to the complainant. Hence the
        present appeals by the accused as well as by the com-
        plainant.
             Dismissing the appeals, the court                       B

              HELD: 1.1 It is not correct to say that when complain-
        ant knew that he was a married man, Clause "Fourthly"
        of Section 375 IPC has no application. Even though, the
        complainant claimed to have married the accused, which c
        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 subse-
        quent marriage, if. any, has no sanctity in law and is void
        ab-initio. In any event, the accused-appellant could not
                                                                     0
        have lawfully married the complainant. A bare reading of
        Clause "Fourthly" of Section 375 IPC makes this position
        clear. [Para 11] [647-C,D]
              1.2. The date of knowledge claimed by the complain-
        ant is 6.3.1994, but the first information report was lodged E
        on 19.9.1994. The complainant has explained that she .
        delivered a child immediately after learning about the in-

.   )
        cident on 16.4.1994 and, therefore, was not in a position
        to lodge the complaint earlier. According to her, she was
        totally traumatized on learning about the marriage of the F
        accused-appellant. Though the explanation is really not
        satisfactory, but in view of the position in law that the ac-
        cused was really guilty of the offence punishable under
        Section 376 IPC, the delayed approach of the complain-
        ant cannot, in any event, wash away the offence. [Para G
        11] [647-E,F,G]
             2. 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     H
    642       SUPREME COURT REPORTS               [2008] 10 S.C.R.
                                                                        '(
                                                                               .
A   and adequate reasons for reducing the sentence and
    awarding compensation of Rs.1,00,000/-. The reasons in-
    dicated by the High Court do not suffer from any infirmity.
    [Para 12] [647-G, 648-A]
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal               -+- '
B   No. 1047 of 2008
         From the final Judgment and Order dated 6.9.2006 of the
    High Court of Punjab and Haryana at Chandigarh in Crl. Appeal
    No. 698-SB/1999
c                                    WITH
          Crl. A. No. 1048 of 2008
         Jasbir Singh Malik, R.K. Tripathi, P.K. Singh, Dharam Bir
    Raj Vohra, Jaspreet Gogia and Vipin Gogia for the Appellant.
D
          Ajay Pal for the Respondent.
          The Judgment of the Court was delivered by
         DR. ARIJlT PASAYAT, J. 1. Heard learned .counsel for
    the parties.
E
          2. Leave granted.
           3. Though in SLP (Crl.) No.6796 of 2006, notice has not
    been issued, at the request of and with the consent of the par-
                                                                      _J.
    ties, the same was taken up along with SLP (Crl.) No.1411 of
F   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
G 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 Sec-
  tions 376 and 417 of the Indian Penal Code, 1860 (in short 'the
  Code'). He was sentenced to undergo rigorous imprisonment
H
                       BHUPINDER SINGH v. UNION TERRITORY OF                643
 .,.
       )'
                          CHANDIGARH [DR. ARIJIT PASAYAT, J.]

               for seven years and to pay a fine of Rs.10,000/- with default       A
               stipulations for the first offence and rigorous imprisonment for
               nine months in respect of the second offence.
                     5. The prosecution version, as unfolded during trial, is as
  > ....f      follows:
                                                                                   8
                     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 Sep-
               tember, 1991. She was daily commuting from Naraingarh Dis-
               trictAmbala, where her sister was residing. Accused-Bhupinder c
               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 af-
               ter disclosing himself as unmarried person. Accused-Bhupinder
               Singh insisted upon her to get married at the earliest in a
                                                                                D
               Gurudwara through simple ceremony and said that permission
               from the parents can be taken later on and that thereafter mar-
               riage 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 E
               Sahib. At that time, one Schan 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),
               Chandi.garh, where accused was residing jointly with one J.P.
       )
               Goel, who was working in the same bank. Then they had gone F
               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, Sec-
               tor 42-B, Chandigarh and stayed in a rented accommodation
               owned by one Pritam Singh. Even landlord had lodged a re- G
               port 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 H
    644          SUPREME COURT REPORTS              [2008] 10 S.C.R.


A May 1991, where he had nominated her as his wife. She be-
  came pregnant. But accused got her aborted from Kaushal
  Nursing Home against her wishes. She had left the serviee in
  September 1991 under the pressure of th~ accused. In the year
  1992, aceused-Bhupinder Sing.h was transferred. from
B 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, ·sec-
  tor 38, Chandigarh and accused-Bhupinder started going to
  Ropar daily from Chandigarh. She got re-employment in May
c 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.                  ·
D        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.
E She asked them as to why they had not told her about the previ-
   ous marriage of her husband: But they avoided answering. S.he
   was shocked to learn this and after reaching the residence, she
   asked about Bhupinder Singh, who on the same day had left for
   Patiala on the _pretext of attending some training course and
F .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 cam~
   and started fighting and then Manjit Kaur tried to Phform the po-
   Wce. But Daljit, husband of sister of Bhupinder Singh brought
G 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 in-
   formed 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 und·?.r Sections 420/
   316/~98-A IPC. It was investigated. Investigating Officer, dur-
H         ·~·.
                       BHUPINDER SINGH v. UNION TERRITORY OF                  645
~
         )                CHANDIGARH [DR. ARIJIT PASAYAT, J.]

               ing investigation, collected many documents showing the ac-           A
'              cused-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
j>   Jr
               as aforesaid. He filed an appeal before the High Court.
                     Qn behalf of the complainant, a Criminal Revision was filed     B
              .for enhancement of sentence. Further a Crl. Misc. Application
               was. also filed for awarding compensation under Section 357
               of the Code of Crimirl'81 Procedure, 1973 (in short 'Code').
                      6. The High Court referred to the evidence of the witnesses,   c
                more particularly, Harvardhan (PW2), the Registrar, Births &
                Deattl, U.T. of Chandigarh wherein it was recorded that com-
                plainant Manjit Kaur had delivered a female child on 16.4.1994
                in General Hospital, Sector-16, Chandigarh and accused-
     i          appellanfs name was mentioned as the father. Reference was
                                                                                     D
                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 \N'ith
              · Gurinder Kaur. The complainant was known to his wife before
                her marriage with him and she had come along with her mother         E
                to their place in 1988 in Sector 23, Chandigarh where her
                mother requested him k> get her a 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, en-         F
                tertained 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 fightins with him and demanded money which he
                does not pay and, after delivery of the child, she filed a false     G
                complaint. Gurinder Kaur (PW 20) stated that he knew the com-
                plainant 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.
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    646       SUPREME COURT REPORTS                 [2008] 10 S.C.R.
                                                                          '(   .
A       7. The High Court found that the case at hand was cov-
  ered 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 up-
  held. But taking into account the fact that the complainant had
B knowledge about his marriage, and had yet surrendered to him          1-- ,.
  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 imprisonmer.it was
  imposed in place of seven years rigorous im_prisonment as was
C 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 gi•1en effect to.
        8. Learned counsel for the accused-appellant submitted
D that when the complainant knew that he was a married man and          r
  yet consented for sexual intercourse with him, Clause "Fourthly"
  of Section 375 IPC would have no application. It was also sub-
  mitted that the fact that the complainant knew about his being a
  married man, is clearly established from the averments made
E 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, pointed out that the compensa-
  tion, as awarded by the High Court, has been deposited and
  withdrawn by the complainant.
F       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 complain-
G ant knew that the accused was a married man. It was also sub-
  mitted 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
H         in the case hereinafter excepted. has sexual intercourse
                    BHUPINDER SINGH v. UNION TERRITORY OF               647
       )'              CHANDIGARH [DR. ARIJIT PASAYAT, J.]

                  with a woman under circumstances falling under any of        A
   /
                  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    B
                  she believes that he is another man to whom she is or
                  believes herself to be lawfully married.
                  xxx             xxx                  xxx"
                    11. Though it is urged with some amount of vehemence c
             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
                                                                               0
             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 E
             date of.knowledge claimed by the complainant is 6.3.1994, but
             the first information report was lodged on 19.9.1994. The -com-
             plainant has explained that she delivered a child immediateJy
....
       ~     after learning about the incident on 16.4.1994 and, therefore,
             was not in a position to lodge the complaint earlier. According F
             to her she was totally traumatized on learning about the mar-
             riage of the accused-appellant. Though the explanation is really
             not satisfactory, but in view of the position in law that the ac-
             cused was really guilty of the offence punishable under Section
             376 IPC, the delayed approach of the complainant cannot, in G
       -'<   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 pecu-
             liar facts of the case, more particularly, the knowledge of the
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     648       SUPREME COURT REPORTS                 [2008] 10 S.C.R.
                                                                         "(


A    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 infir-
     mity and, therefore, the appeal fileo by the complainant is with-
.B   out merit and is dismissed. Both the appeals are, accordingly,
     dismissed.
     K.K.T.                                     Appeals dismissed.