V.P. Tyagi, J.
1. This appeal of Balia is directed against the judgment of the Special Judicial (Railway) Magistrate, Jodhpur, whereby respondent Heerji has been acquitted by the learned Magistrate of the charge under Section 500 Indian Penal Code.
2. The circumstances leading to this appeal are as follows: Mst. Pushpa. daughter of Heerji. was married to the appellant about eight years back and the 'muklawa' ceremony was performed after five years of the marriage. According to Mst. Pushpa, Balia was not potent and. therefore, in spite of the fact that on many occasions Balia tried to have sexual intercourse with her but he failed to do so, and hence Pushpa out of frustration left her husband's house and ultimately Came to live with her parents.
On 24th May, 1964, it so appears that a caste panchayat was summoned to consider a charge against Heeriji that he was not willing to send his daughter Pushpa to her husband's house. Heerji was also called to meet that charge and it is said that Heerji told the panchayat that Balia was impotent. Balia then filed a complaint against Heerji in the court of the Mun-siff-Magistrate. Jodhpur City, under section 500 Indian Penal Code alleging that accused maliciously propagated among the members of the caste panchayat that the complainant was impotent and therefore he deserves to be punished under Section 500, Indian Penal Code.
3. Complainant Balia when he entered the witness box stated that this allegation of the accused that he was impotent is false and that it was made with a view to defame him. In his cross-examination, however, he admitted that the accused had told this to the caste panchayat because he was informed about it by his daughter Mst. Pushpa. Another prosecution witness Shankerlal (P. W. 13) has, however, deposed that he was present in the panchayat when Heer-ji had made his statement before the panchayat, but he clarified that Heerji made that statement when he was asked by the panchayat to explain as to why he was not sending his daughter to her husband's house.
4. Accused in his statement under Section 342 Criminal Procedure Code admitted to have made such a statement before the panchayat, but his explanation is that he did so because he was informed by his daughter Pushpa that Balia was impotent and was not fit for woman. In his defence he examined his daughter Mst. Pushpa who has very categorically stated that Balia many a times tried to have sexual intercourse with her after her marriage but every time he failed and could not succeed in his attempt and, therefore, she took him to be impotent.
5. The learned Magistrate, after a close scrutiny of the evidence produced by both the sides, came to the conclusion that the accused could not be found guilty under Section 500 Indian Pena Code as the statement was made by the accused before the panchayat in good faith and with a view to defend the interests of his daughter and, therefore, exception 9 to Section 499 Indian Penal Code is attracted to this case. This finding of the learned Magistrate is challenged in the present appeal.
6. Learned counsel appearing on behalf of the appellant, relying on a Supreme Court case in Kanwar Lal v. State of Punjab, AIR 1963 SC 1317, urged that the caste panchayat had no jurisdiction to sit over in judgment about the conduct of the accused as well as the complainant and, therefore, the accused had no business to convey any information to the panchayat which was of a defamatory character, and as such he cannot take shelter under exception 9 to Section 499 of the Indian Penal Code.
He also argued that the panchayat was not in a position to protect the interests of the accused or his daughter and, therefore, the accused cannot be said to have communicated such a defamatory information to the panchayat in good faith and with a view to protect the interests of his daughter Pushpa. In these circumstances, according to learned counsel for the appellant, the trial court-has erred in coming to the conclusion that the accused had made the imputation before the panchayat with a view to safeguard the interests of his daughter and thus he is saved by exception 9 to section 499 Indian Penal Code,
7. There is no doubt that the caste panchayats do not function under any statutory powers or under any constitu-tion of their own but in our country this institution of caste panchayat has been recognised by the society for times immemorial. In spite of our recent political advancement, I can safely say that in many respects our social customs have not changed and people still take recourse to get their grievances redressed through the age-old institutions like caste panchayats which have no legal sanction behind them, but which are still in existence on account of moral sanctions based on the age-old customs prevalent in the community.
It is in the evidence of the prosecution itself that such disputes between husband and wife are referred to the caste panchayats and probably it was in pursuance of this recognised custom in the community to which the parties belonged that the panchayat was called and the dispute between Pushpa and Balia was referred to it.
It is also in the evidence of P. W. 3 Shankerlal that the panchayat had asked the accused as to why he was not willing to send his daughter with her husband and it was in reply to that query made by the panchayat that the accused disclosed this fact that complainant Balia was impotent. Balia himself has admitted in his cross-examination that Heerji had told the panchayat that it was on the information received from his daughter Pushpa that he was communicating the information about the impotency of Balia.
8. Mst. Pushpa has also been examined as a defence witness and she has categorically stated that Balia in spite of repeated attempts had failed to have sexual intercourse with her. It is also in the evidence that for some time she did not disclose this weakness of her husband to anybody but ultimately she communicated this fact to her mother who conveyed it to her father. From these circumstances it is evident that the accused derived his knowledge about the impotency of the complainant from his daughter and there is nothing on the record to show that there was any good reason for the accused to have disbelieved such an information which came to him through his own daughter.
9. All that is required to bring a case under exception 9 to section 499 Indian Penal Code is that there should be a Rood faith, i.e. the imputation must have been made by the accused after due care and attention and the motive behind it was to safeguard the interests of the daughter and not to defame the complainant. I find that both these elements were present when Heerji made his statement before the panchayat and levelled a charge of impotency against the complainant Balia.
10. Learned counsel for the appellant urged that in a civil litigation it has been declared by this Court in D.B. Civil First Appeal No. 61 of 1965 D/-28-2-1968 (Raj) that Balia was not impotent and, therefore, it must be taken that Heerji knew it that the statement that he was making before the panchayat was wrong: I regret, I cannot accept this contention of learned counsel for the appellant because at the time when Heerji communicated to the panchayat about the impotency of Balia there was no such declaration in his favour by any competent authority that he was not impotent. As is admitted by the complainant himself, Heerji was acting on the information that he had received from his own daughter Pushpa and there was no earthly reason for him to disbelieve his daughter. In these circumstances, it is difficult for this Court to infer that Heerji had disclosed the fact of Balia being impotent in a reply to the query put by the caste panchayat itself with any mala fide intention. The order of acquittal passed by the trial court, in these circumstances cannot be said to be erroneous and it cannot be set aside as the case of the accused, in my opinion, definitely falls under exception 9 to section 499, Indian Penal Code.
11. The appeal is dismissed.