Allahabad High Court acquits man convicted of adultery, applying the Supreme Court’s ruling that struck down Section 497 IPC to his pending appeal

The complainant alleged that the appellant had sexual intercourse with her at night while she mistakenly believed he was her husband.

The trial court acquitted the appellant of rape under Section 376 IPC but convicted him of adultery under Section 497 IPC and sentenced him to three years’ simple imprisonment and a fine of ₹2,000.

The appellant appealed.

The trial court’s findings supporting the acquittal under Section 376 IPC were not challenged by the complainant or the State.

The complainant’s husband and father, who were said to have been nearby, were not examined as witnesses.

Whether the declaration that Section 497 IPC was unconstitutional applied to the appellant’s pending appeal against conviction and sentence.

Whether the conviction under Section 497 IPC could stand where the prosecution was not initiated on a complaint by the husband, as contemplated by Section 198(2) CrPC.

Whether the non-examination of the complainant’s husband and father warranted an adverse inference against the prosecution.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, the Supreme Court struck down Section 497 IPC as unconstitutional.

Under A.S. Gauraya v. S.N. Thakur, (1986) 2 SCC 709, law declared by the Supreme Court applies to pending proceedings.

Section 198(2) CrPC provided that, for an offence under Section 497 IPC, only the woman’s husband was deemed to be an aggrieved person; Joseph Shine declared that provision unconstitutional only to the extent it applied to adultery.

Section 114, Illustration (g), of the Evidence Act permits an adverse inference where material evidence that could have been produced is withheld.

Under Davinder Singh v. State of Punjab, (2023) 19 SCC 229, relying on Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, non-examination of a material witness may support such an inference where the witness could have addressed a gap or infirmity in the prosecution case.

The Court held that the appellant’s appeal was a pending proceeding when Joseph Shine was decided; therefore, the declaration invalidating Section 497 IPC applied to it.

It also found that the prosecution had not been initiated on a complaint by the complainant’s husband.

The husband and father were material witnesses in light of the account that they were nearby and the conflicting evidence about whether they came to the complainant’s aid.

Their non-examination supported an adverse inference against the prosecution under Section 114, Illustration (g), of the Evidence Act.

The Court consequently found the charge under Section 497 IPC unproved.