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Allahbad High Court
H.C.P.TRIPATHI,J.S.TRIVEDI
A. N. Mukerji - Appellant
Versus
State - Respondent
Decided On : 01/05/1968
CRIMINAL APPEAL NO. 471 OF 1966 BY DR. AMAR NATH MUKERJI AGAINST HIS CONVICTION AND SENTENCE OF ONE YEAR'S RIGOROUS IMPRISONMENT AND A FINE OF RS. 75,000/- UNDER SECTION 417 I. P. C. AND CRIMINAL APPEAL NO. 944 OF 1966 BY SMT. HARBANS KAUR THE PROSECUTRIX, AGAINST HIS ACQUITTAL OF CHARGES UNDER SECTIONS 493 AND 376 I. P. C., ARISE OUT OF THE SAME JUDGMENT OF THE LEARNED SESSIONS JUDGE, VARANASI AND THEY ARE BEING DISPOSED OF TOGETHER.
Fact of the Case:
SMT. HARBANS KAUR (PROSECUTRIX) WAS BORN IN A SIKH FAMILY AT SIALKOT. HER FATHER LATE SARDAR KHAZAN SINGH WAS ONCE THE PRESIDENT OF THE REGENCY COUNCIL OF MAHARAJA OF FARIDKOT AND LATER ON THE DEPUTY COMMISSIONER OF LYALLPUR. IN THE YEAR 1921 AT THE AGE OF 11 OR 12 YEARS SHE WAS MARRIED TO SUJAN SINGH (P. W. 4) A SIKH BY FAITH IN THE ANAND FORM WHICH IS AN APPROVED FORM OF MARRIAGE AMONGST THE SIKHS. ABOUT AN YEAR AFTER SUJAN SINGH WENT ABROAD FOR HIGHER STUDIES AND RETURNED TO INDIA BY THE END OF 1925 AFTER HAVING QUALIFIED HIMSELF AS A BACHELOR OF SCIENCE IN ENGINEERING FROM THE UNIVERSITY OF LONDON. HE WAS APPOINTED AS AN ASSISTANT ENGINEER IN THE ASSAM BENGAL RAILWAY IN 1926 AND RETIRED IN 1959 AS DEPUTY CHIEF ENGINEER ON A SALARY OF RS. 2000/- PER MONTH.
Finding of the Court:
THE STORY UNFOLDED BY THE PROSECUTRIX MAY BE SUMMARISED AS FOLLOWS:- 5. SMT. HARBANS KAUR (PROSECUTRIX) WAS BORN IN A SIKH FAMILY AT SIALKOT. HER FATHER LATE SARDAR KHAZAN SINGH WAS ONCE THE PRESIDENT OF THE REGENCY COUNCIL OF MAHARAJA OF FARIDKOT AND LATER ON THE DEPUTY COMMISSIONER OF LYALLPUR. IN THE YEAR 1921 AT THE AGE OF 11 OR 12 YEARS SHE WAS MARRIED TO SUJAN SINGH (P. W. 4) A SIKH BY FAITH IN THE ANAND FORM WHICH IS AN APPROVED FORM OF MARRIAGE AMONGST THE SIKHS. ABOUT AN YEAR AFTER SUJAN SINGH WENT ABROAD FOR HIGHER STUDIES AND RETURNED TO INDIA BY THE END OF 1925 AFTER HAVING QUALIFIED HIMSELF AS A BACHELOR OF SCIENCE IN ENGINEERING FROM THE UNIVERSITY OF LONDON. HE WAS APPOINTED AS AN ASSISTANT ENGINEER IN THE ASSAM BENGAL RAILWAY IN 1926 AND RETIRED IN 1959 AS DEPUTY CHIEF ENGINEER ON A SALARY OF RS. 2000/- PER MONTH.
Issues: THE QUESTION, THEREFORE, WHICH ARISES FOR CONSIDERATION IS, WHETHER THE DECEPTION BEING THE SAME, NAMELY THE INDUCEMENT TO BELIEVE THAT THE PROSECUTRIX WAS THE LEGALLY WEDDED WIFE OF THE ACCUSED THROUGHOUT THE PERIOD, THE VARIOUS ACTS SPREAD OVER THAT PERIOD BY WHICH SHE IS ALLEGED TO HAVE PARTED WITH HER MONEY AND JEWELLERY CAN FORM THE SAME TRANSACTION SO AS TO ATTRACT THE EXCEPTION PROVIDED UNDER SECTION 235 TO THE GENERAL RULE.
Ratio Decidendi: IN OUR OPINION, HOWEVER, THE CONTENTION OF MR. CHATURVEDI THAT THE SESSIONS JUDGE WAS DEBARRED IN LAW FROM FRAMING A CHARGE UNDER SECTION 417 AGAINST THE ACCUSED WHO WAS COMMITTED TO STAND HIS TRIAL FOR AN OFFENCE UNDER SECTION 493 I. P. C. ONLY IS NOT TENABLE IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THIS CASE.
Final Decision: CRIMINAL APPEAL NO. 471 OF 1966 IS ALLOWED. THE CONVICTION AND SENTENCES OF APPELLANT DR. AMAR NATH MUKERJI AS RECORDED BY THE TRIAL JUDGE ARE SET ASIDE. HIS BAIL BONDS ARE DISCHARGED AND FINE IF PAID, SHALL BE REFUNDED TO HIM. CRIMINAL APPEAL NO. 944 OF 1966 FILED BY SMT. HARBANS KAUR UNDER SECTION 417(3) OF THE CODE OF CRIMINAL PROCEDURE AND HER MISC. APPLICATIONS NO. 1037 OF 1966 DATED 20TH APRIL, 1966, AND ANOTHER DATED 22ND DECEMBER, 1967, ARE DISMISSED.
TRIPATHI, J. :- Criminal Appeal No. 471 of 1966 by Dr. Amar Nath Mukerji against his conviction and sentence of one year's rigorous imprisonment and a fine of Rs. 75,000/- under Section 417 I. P. C. and Criminal Appeal No. 944 of 1966 by Smt. Harbans Kaur the prosecutrix, against his acquittal of charges under Sections 493 and 376 I. P. C., arise out of the same judgment of the learned Sessions Judge, Varanasi and they are being disposed of together.
2. On 11th of August 1958, Smt. Harbans Kaur filed her petition of complaint against Dr. Mukerji in the court of a Magistrate First Class at Calcutta praying that he be tried for offences under Sections 493, 496 and 417 of the Indian Penal Code. After undergoing many vicissitudes her complaint resulted in the commitment of Dr. Mukerji to the court of sessions at Calcutta to stand his trial under Section 493 I. P. C. On an application by the prosecutrix the case was, however, transferred from West Bengal to the Court of the Sessions Judge, Varanasi, for trial. The learned Sessions Judge, Varanasi, amended the charge under Section 493 I. P. C. and added charges under Sections 376 and 417 I. P. C. and the trial proceeded against the accused in respect of those charges. He was acquitted on the first two counts but was convicted under Section 417 I. P. C: The trial Judge has ordered "that out of the fine realised two-third (Rs. 50,000/-) shall be paid" to the complainant as compensation.
3. On the 5th of August, 1957, Smt. Harbans Kaur had instituted suit No. 1381 of 1957 (Exhibit Ka 390) against Dr. A. N. Mukerji for recovery of a sum of Rs. 7,59,469/- and another suit (Exhibit Kha 65) on the 12th day of September, 1957, for the recovery of a sum of Rs. 2,00,000/- as damages by reason of the wrongful breach of his promise to marry her. Km. Sureila Mukerji alias Neena, daughter of the prosecutrix, had also instituted suit No. 1163 of 1957 (Exhibit Kha 68) of July, 1957, through her mother against Dr. Mukerji claiming a sum of Rs. 18,000/- as arrears of maintenance and future maintenance @ Rs. 600/- per month. In May, 1958. Dr. Mukerji had also instituted suit No. 778 of 1958 (Exhibit Kha 66) for the recovery of Rs. 48,988.37 P. from the prosecutrix on account of loan advanced to her from time to time. These civil suits between the parties are pending disposal on the original side of the Calcutta High Court.
4. The story unfolded by the prosecutrix may be summarised as follows:-
5. Smt. Harbans Kaur (prosecutrix) was born in a Sikh family at Sialkot. Her father late Sardar Khazan Singh was once the President of the Regency Council of Maharaja of Faridkot and later on the Deputy Commissioner of Lyallpur. In the year 1921 at the age of 11 or 12 years she was married to Sujan Singh (P. W. 4) a Sikh by faith in the Anand form which is an approved form of marriage amongst the Sikhs. About an year after Sujan Singh went abroad for higher studies and returned to India by the end of 1925 after having qualified himself as a Bachelor of Science in Engineering from the University of London. He was appointed as an Assistant Engineer in the Assam Bengal Railway in 1926 and retired in 1959 as Deputy Chief Engineer on a salary of Rs. 2000/- per month.
6. In 1927 after his first appointment Sujan Singh brought his wife who was a shy and innocent girl observing Pardah to live with him. During the period 1927 to 1939 Sujan Singh was posted at various stations in Assam where the husband and wife lived happily and had four children. In 1939 Smt. Harbans Kaur started getting pain in her abdomen and on the suggestion of a lady friend she went to Calcutta to get treatment from the accused who had recently returned from England after obtaining double F. R. C. S. from two British Universities. Sujan Singh could not accompany her. She met the accused who treated her and when her pain had subsided she came back to Mymensingh where her husband was posted and told him that the doctor had advised her to come to
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