Judgment

FAZAL ALI, J.

( 1 ) IN these appeals by special leave the appellant Pratap Misra (hereinafter referred to as a-1) in Criminal Appeal No. 564 of 1976 and appellant Suresh Chandra Sahu referred to as a-2 and Khitish Chandra Paltasingh referred to as a-3 in Criminal Appeal No. 565 of 1976 have been convicted under S. 452, I. P. C. and sentenced to rigorous imprisonment for one year, under S. 376, I. P. C. and sentenced to rigorous imprisonment for five years, under S. 342 Indian Penal Code to rigorous imprisonment for two months, and under S. 313 I. P. C. to rigorous imprisonment for three years. Suresh Chandra Sahu A-2 was also convicted under S. 325 I. P. C. and sentenced to rigorous imprisonment for one year. The learned Sessions Judge directed the sentences to run concurrently. The appellants filed appeals against their convictions and sentences to the High Court of Orissa which affirmed the judgment of the Sessions Judge and upheld the convictions as also the sentences passed against each of the appellants. The appellants then moved the High Court for a certificate of fitness for leave to appeal to this Court, which having been refused they obtained special leave from this Court, and hence these appeals.

( 2 ) ORDINARILY this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecutrix not against her will but with her consent and the connivance of her husband Prosecution witness 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals.

( 3 ) PUT briefly the prosecution case is as follows.

PROSECUTION witness 1 Pramila Kumari Rout aged about 23 years was the wife of Prosecution witness 2 Bata Krishna Rout and according to the finding of the High Court she was living in a state of concubinage with Prosecution witness 2 who had already married a wife who was living at the time when Prosecution witness 1 started living with him. The High Court recorded its finding at p. 15 of Paper Book Vol. I as under :

"it is, therefore, clear that he was having legally wedded wife Basanthi by the time he came in contact with Prosecution witness 1. Thus it is clear that Prosecution witness 2 is having illicit intimacy with Prosecution witness 1. Even if their version that their marriage had taken place by exchange of garlands is accepted such a marriage cannot be held to be valid while their previous marriages were subsisting. At worst, Prosecution witness 1 can be treated as the concubine of Prosecution witness 2" P. Ws. 1 and 2 were the residents of Dubagadin within the limits of Dharamsala Police Station in Puri District. Prosecution witness 1 was carrying a child and her pregnancy was running in the fifth month at the time of the incident. It is also admitted that the prosecutrix Prosecution witness 1 was also a midwife and had served in that capacity with a Doctor. On 19/04/1972, the prosecutrix persuaded her husband Prosecution witness 2 to take her to Nandan Kanan for a pleasur