1. This is a peculiar case, because although the applicant (we are dealing with the matter in revision) was convicted under Section 497 of the Indian Penal Code, it does not seem to have occurred to any body in the Court of the trying Magistrate that it was necessary definitely to prove the marriage; the marriage of course being that of the complainant and the woman with whom, he alleged, the accused had committed adultery. But it is necessary specifically to prove a marriage in a case under Section 497. This, I think, is so clea that I need say nothing more about it beyond referring to Section 50 of the Evidence Act. That section indicates quite clearly that conduct alone is not a sufficient basis for finding a marriage proved in a case of this kind. But as a matter of fact the evidence proves nothing more than conduct. It proves only that the man and woman spoke of each other as wife and husband and that some of those who were acquainted with them spoke of them as man and wife. But not a single witness deposed to a marriage. The actual fact of a marriage must be proved in some way or another to justify a conviction under Section 497. Now, these people may be married; there is absolutely no reason for supposing that they are not. Therefore were this an ordinary case the defect which has been indicated would be remedied by remanding the case in order that evidence might be taken on the question of marriage. But this as it happens is not an ordinary case. The events which led up to it happened very nearly two years ago. In some form or another these events have been before the Courts practically without intermission almost since they occurred. Both sides have suffered. The accused in this particular case has been in jail for somewhere about or nearly four months. Therefore we have to ask ourselves whether justice really requires that this case should be remanded. On the whole I have come to the conclusion that justice will be satisfied in the very peculiar and special circumstances of this case quite as well by wiping out as it were these proceedings as by continuing them in order to ascertain whether all the requirements of the law necessary for a conviction have been fulfilled.
2. Therefore I think that the conviction and sentence should be set aside, and the applicant acquitted and the fine, if paid, ordered to be refunded to the applicant.
3. It may be said that although the conviction of adultery is not legally established on the present evidence, the conviction under Section 451 is. But that does not necessarily follow, because the conviction under Section 451 requires proof that the house trespass was for the purpose of committing an offence, the only one of the purposes mentioned in the section which apparently would fit the circumstances of this particular case; so that apparently the conviction under Section 451 is just as closely affected as that under Section 497 by the defect which I have mentioned.
4. I concur.