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Adikanda Samal Vs. Madhabananda Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in39(1973)CLT679; 1973CriLJ1735
AppellantAdikanda Samal
RespondentMadhabananda Naik
Excerpt:
.....she admits that, she is on good terms with the petitioner and she was often remaining alone in her house as her father-in-law used to go out for work and her husband's minor sister used to go out for play. my husband has also good terms with the accused adikanda. as i felt shy regarding the bad ruinous v between me and the accused i did not talk with the accused in the bus. to this witness also a wild suggestion was given that nothing like this had occurred. hemalata's willingness or consent or disposition to stay away from the company, protection and care of her husband is perfectly immaterial to the guilt of the accused. a deterrent sentence is wholly justifiable when the offence is the result of deliberation and preplanning, is committed for the sake of personal gain at the expense of..........to her father's place on foot and she had not been seen by any body on the way and reached her father's house at noon. she admits that, she is on good terms with the petitioner and she was often remaining alone in her house as her father-in-law used to go out for work and her husband's minor sister used to go out for play. she admits that the petitioner is unmarried and his brother lives in a separate quarter with his wife. the petitioner stays alone in his out-house and he 'used to come to her father-in-law's house.' what is significant is that she denies that her father-in-law had eves prevented her going to the petitioner or the petitioner coming to her. there is ample evidence on record to show that the intimacy of hemalata with the petitioner is very thick which was not being.....
Judgment:
ORDER

K.B. Panda, J.

1. Petitioner Adikanda Samal has been convicted under Section 498, IPC and sentenced to pay a fine of Rs. 200/- or in default to undergo S. I. for two months by Sri N. K. Patnaik, Magistrate, First Class, Bhadrak which has been confirmed by Sri S. N. Misra, Sessions Judge, Balasore.

2. The complainant (P. W. 1) married Hemalata (C. W. 1) on 7-6-1969. At that time the complainant was about 22 years and Hemalata was 19 years old. The complainant is a student of Bhadrak College. He belongs to village Olakana which is about 3/4 miles from the village of his father-in-law Gopal Chandra Rout (D. W. 1). Complainant's grievance is that on 26-4-1970 the petitioner enticed his wife Hemalata and detained her with the purpose of having illicit intercourse with her.

3. The defence of the petitioner in his examination under Section 342, CrIPC was a bare denial of the allegation with a suggestion that the witnesses were deposing against him due to party rivalry. However, various suggestions have been put to the prosecution witnesses, such as, there was no valid marriage between the complainant and Hemalata: that Hemalata had come away of her own accord from the protection of her father-in-law on behalf of her husband duo to ill-treatment and that it is a false casa started to avoid maintenance.

4. There are 7 witnesses for the prosecution of whom P. W. 1 is the husband, P. W. 6 Judumani Naik is the father-in-law and the rest are co-villagers of the complainant who found Hemalata on the morning of 27th with the petitioner in his outhouse. The learned Courts below relying on the evidence of the prosecution witnesses and disbelieving the evidence of D. W. 1 and Hemalata convicted the petitioner as aforesaid.

At the time of admission of this revision notice for enhancement of sentence was given as the punishment appeared to be manifestly inadequate.

5. The admitted background of the case is thus: the petitioner, as- admitted by D. W. 1, is his nephew and the complainant is his son-in-law, who married his daughter Hemalata about three years back at the time of his deposition on 4-9-1971. Hemalata remained in the house of her father-in-law for nearly a year. The complainant being a student in the Bhadrak college was often remaining absent from home. His father is a widower. There is no other female member in the complainant's family excepting his minor sister. The petitioner is unmarried aged, about 25 and belongs to the village of the complainant and was residing just in front of the complainant's house. The petitioner acted as a mediator in fixing the marriage between Hemalata and the complainant. Due to the relationship and proximity of his house the petitioner was often found visiting the house of the complainant. As already stated, since the complainant was a student remaining away from home and his father going out on his daily work, the petitioner had ample opportunity of mixing with Hemalata. This became almost a scandal for which both the complainant's father and some of his relations took exception and warned the petitioner.

The petitioner stays alone in an out-house of his brother opposite to the house of the complainant. Hemalata sleeps in a room with her husband's minor sister while the father-in-law sleeps in another room. Towards the latter part of the night of 26-4-1970 P. W. 6 found the doors open and Hemalata absent. On enquiry in the morning he discovered that she had gone away with some articles worth Rs. 1,300/- and was staying with the petitioner in his out-house. He invited his daughter-in-law to come back to his house but to no purpose. Some of the villagers, who are prosecution witnesses, came and intervened but without any result. The complainant was informed of this and he came to village the next day. To his entreaties Hemalata and the petitioner turned a deaf ear and closed the door against him.

6. It was contended on behalf of the petitioner by Mr. Dhal that the conviction cannot be sustained as there is absolutely no evidence of enticing Hemalata and further that it was for the purpose of having illicit intercourse with her.

7. Having regard to the evidence of Hamalata herself, her father (D. W. 1), the complainant (P. W. 1) and his father (P. W. 6), he suggestion to some of the prosecution witnesses that there was no valid marriage can be jettisoned as false. Hemalata has admitted that as she had a quarrel with her father-in law some day towards past Kartik about 1.1/2 years back (the time of her deposition was 24-9-1971) because of her delay in serving food to him, she got annoyed and left the house next day. She has further stated in chief that she covered the entire distance of 3 to 4 miles to her father's place on foot and she had not been seen by any body on the way and reached her father's house at noon. She admits that, she is on good terms with the petitioner and she was often remaining alone in her house as her father-in-law used to go out for work and her husband's minor sister used to go out for play. She admits that the petitioner is unmarried and his brother lives in a separate quarter with his wife. The petitioner stays alone in his out-house and he 'used to come to her father-in-law's house.' What is significant is that she denies that her father-in-law had eves prevented her going to the petitioner or the petitioner coming to her. There is ample evidence on record to show that the intimacy of Hemalata with the petitioner is very thick which was not being relished by her father-in-law and other villagers. In her statement in Court she has stated thus:-

Adikanda went to my father's house two days after I went there and met me. He returned on the same day. I have decided to remain in my father's home. My father nor my brothers have come today to Bhadrak with me. I have come with Nalu Quanr. I have not received summons. The police did not meet me. My husband has also good terms with the accused Adikanda. Only a month back I came to know that my husband has filed a Crl. case against the accused. Till now I have not asked Adikanda why a case has been filed against him even today although I came with Adikanda in the same bus today. As I felt shy regarding the bad ruinous V between me and the accused I did not talk with the accused in the bus. x x x x x It is not a fact that I have been enticed away by the accused and I am deposing at the instructions of the accused and his counsel.

Regarding the present association of Hemalata with the petitioner the evidence is very clear that they are living together. P. W. 2 who is a co-villager aged about 58 states while deposing on 7-1-1971 that Hemalata is still there, meaning with the petitioner, and that they (the petitioner and Hemalata) are going out and coming together for some days. He frankly states that they have suspected that the petitioner had enticed away the wife of P. W. 1 for illicit intercourse. In his cross-examination he denies the suggestions of ill-treatment meted out to her by her father-in-law and that Hemalata is with her father.

P. W. 3 states that Hemalata is remaining in the house of the accused and sometimes she is also going to the house of her father and that the petitioner is keeping the wife of the complainant in his house with the object of having illicit intercourse. He is one of the nephews of P. W. 2 and had attended the marriage between Hemalata and the complainant. A wild suggestion was given to this witness that Hemalata was driven away from the house of P. W. 6 which is nobody's case.

P. W. 4, another co-villager, states how on the morning of 27th April Hemalata was found with the petitioner in his out-house and that when questioned by P. W. 6, Hemalata stated that she had come out of her own accord. To this witness also a wild suggestion was given that nothing like this had occurred.

P. W. 5 is the priest who officiated in the marriage. A suggestion was put to him that the marriage was not performed accord ing to Hindu custom which is belied by evidence of Hemalata and her father.

P. W. 6, the father of the complainant, supports the prosecution story in all details and asserts how Hemalata is still in the house of the petitioner. Evidence of P. W. 7 may be ignored hostile as he is to the complainant

8. Mr. Dhal relied much on the relationship of Hemalata with the petitioner and asserted that the petitioner is the father's sister's son of Hemalata and so their intimacy can never be amorous. But there is no suggestion fax less evidence of such direct relationship, nor that is of any consequence. He also relied much on a statement of P. W. 6 that the petitioner informed the police station and got the police. This suggestion was not pursued further and so it is very much to be doubted whether he did so to escape the wrath of the villagers or to persuade Hemalata to go back to her husband. P. W. 6 asserts that he had shown the police how Hemalata was in the house of the accused and how the police 'gave' Hemalata to her father.

No more discussion on this aspect of the case is necessary and I concur with the findings of the Courts below that Hemalata had been on the alleged morning found in the out-house with the petitioner which is not only borne out by the oral evidence on record but from the circumstantial evidence also.

9. The next point for consideration It if there is evidence of the petitioner enticing Hemalata for the purpose of illicit intercourse. Mr. Dhal laid great stress that there is no evidence whatsoever on this aspect of the case. I do not think this contention of Mr. Dhal can prevail. Law does not postulate that direct evidence of enticement regarding time, place, date or proof of actual illicit intercourse has to be adduced. These are matters on which no evidence will be available and legitimate inference has to be drawn from the conduct of the parties, evidence in the case and circumstances transpiring therefrom.

10. The term 'detention' appearing tinder Section 498, Indian Penal Code, has been the subject-matter of judicial scrutiny in several pronouncements. The matter has been set at rest by the Supreme Court in the case of Alamgir V. State of Bihar : 1959CriLJ527 . Substantially their Lordships have held that 'detention' in Section 498, Penal Code means keep- keeping back may be by force; but it need not be by force. It can be the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman or may have encouraged or co-operated with her initial inclination to leave her husband. The object of the section is to protect the right of the husband and it cannot be any defence to the charge to say that, though the husband has been deprived of his right, the wife is willing to injure the said right and so the person who is responsible for her willingness, has not detained her.

Enticing or taking away or detaining with criminal intent a married woman is an of- fence coming under Chapter XX which exclusively deals with offences relating to marriage. Unlike in many Western countries is not a civil wrong 'to be compensated by damages. Its sole object is to maintain the marriage tie and to punish actions or overtures that are likely to sap it. Persons dealing with married women with husbands alive have the additional responsibility which law does not envisage while dealing with a widow or a spinster. Since sanctity of a matrimonial tie is to be preserved, persons dealing or behaving in a manner which would tend to sever such a tie, run a greater risk which to a great extent is akin to dealing with a minor or an insane person. Consent or no consent of such a minor or insane person immaterial as it is, throws the onus on the accused to justify his conduct to escape the liability. So is the case of an accused who deals with a married woman in any way prohibited by law. In the instant case, it is proved beyond doubt that the petitioner taking advantage of his relationship with Hemalata, absence of the complainant elsewhere, and absence of any other male or female member in the family of the complainant most of the time, has exploited the situation for fulfilment of his amorous designs of gaining the companionship of Hemalata which is an offence against the complainant. Hemalata's willingness or consent or disposition to stay away from the company, protection and care of her husband is perfectly immaterial to the guilt of the accused. These are matters which are to be viewed very seriously in the interest of the society at large. It is unfortunate that neither the trying Court took it in that light, nor the appellate Court which remained content in confirming the sentence of fine of Rs. 200/-.

11. It has often come to the notice of this Court that some courts in the lower hierarchy do not bestow as much attention as is necessary while inflicting punishment com mensurate with the offence. The purpose of law is to preserve the society. To achieve it, the object of the punishment is to serve as deterrent to others from choosing a life of crime. The determination of the right measure of punishment depends on various factors, which cannot be dealt with exhaustively. Nor is it possible to lay down any mathematical formula to measure the penalty in each case, except laying down some guide-lines by way of illustration. The determination of the right measure of punishment in a particular case, though guided by variety of consideration, not excluding the prediction of the Presiding Judge, is a matter of discretion. But it is a judicial balanced discretion and, therefore, the courts should always bear in mind the necessity of proportion between an offence and the penalty.

Punishments fall broadly into two classes :

(i) Those in which courts have favoured the passing of lenient sentence and the observance of moderation, and

(ii) those in which courts have encouraged the passing of heavy or deterrent sentence.

Under the first category will come sentences which are called technically 'corrective' or 'normal' while under the latter category-'exemplary' or 'deterrent' and 'punitive'. In deciding the measurement of punishment the Court ought to take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender and his age, character, means, culture and the antecedents.

The prevalence of a particular crime in a particular area or during a particular period should also be taken into account. For example, theft of cycle, though ordinarily is not such a grave offence, yet may call for exemplary punishment if it becomes widespread at any time in any place. A deterrent sentence is wholly justifiable when the offence is the result of deliberation and preplanning, is committed for the sake of personal gain at the expense of the innocent, is a menace to the safety, health, or moral well-being of the community, or is difficult to be detected or traced.

Ordinarily corrective punishments are given when the offender is of immature understanding and might have committed the offence on the spur of the moment due to temporary lapse. Awarding severe sentence in such a case would not be in the interest of the society, for it would convert mere delinquents into hardened criminals, thus defeating the purpose of law. Nominal punishment is awarded when the offence is purely technical without the necessary mens rea of a criminal. The purpose of expatiating on this point is to demonstrate the grossly inadequate punishment awarded in a case like this where the offender can with impunity entice away a married woman, ruin many otherwise sweet homes and throw a fine of Rs. 200/- with an Ugly ridicule to the 'Majesty of law.'

12. In the result, while confirming the conviction of the petitioner under Section 498, I. P. C, I would convert the sentence of fine to one of rigorous imprisonment for six months. The petitioner is to surrender to undergo the sentence of imprisonment, The revision is dismissed and the rule for enhancement of sentence is made absolute.


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