ORDER
Dixit, J.
1. The applicant Ibrahim has been. convicted by the Sub-Divisional Magistrate of Mhow under Section 456, I.P.C. for house trespass in order to commit criminal adultery with one Parwati the wife of Ramcharan. He has been sentenced to 3 months' rigorous imprisonment and to pay a fine of Rs. 50/- or in default to suffer one month's imprisonment. The accused appealed unsuccessfully to the Sessions Judge Indore. Hence this revision petition.
2. It is not disputed that on the night of 11-12-1952, between 11 P.M. and mid-night the applicant scaled a wall of the house where Parwati was living and entered a room where she was sleeping and that on the night of the occurrence Parwati's husband who was in the army was on duty away from Mhow. The applicant pleaded, and it has been found by both the Courts below on the evidence on record, that the applicant was on terms of intimacy with Parwatibai for over four years and that on 11-12-1952 he entered the house on the invitation of Parwati.
The only question for determination is whether the entry in the house was with the intention necessary to make it a criminal trespass. As the applicant entered the house on the invitation of Parwati there can be no question of Ills entering the house with intent to intimidate, Insult or annoy Parwati or her brother-in-law Jugdishprasad who was in another room at the time of the occurrence. The lower Courts have found that the accused entered the house of Parwati with intent to commit adultery with her.
Mr. Khanwilkar, learned Counsel for the petitioner urged that the charge framed against the applicant did not state that the applicant entered the house with the intention of committing any offence and that there was no evidence whatsoever to show that if the applicant had had sexual intercourse with Parwati it' would have amounted to an offence of adultery under Section 497, I.P.C. Learned Counsel placed reliance on - Brij Basi v. Queen-Empress 19 All 74 (A), and several other cases,
3. In my opinion the contentions advanced by the learned Counsel must be given effect to and the conviction of the applicant must be set aside. The charge framed is unmistakably defective. It only stated that the accused entered the room where Parwati was sleeping by scaling a wall for the purpose of a secret meeting with her. In this statement there is no indication whatsoever that the entry, was with the intent to commit adultery or any other offence.
The learned Sessions Judge thought that in this statement there was a clear suggestion that the intention of the applicant was to have a sexual intercourse with Parwati. I do not agree with him. If two persons are in love for several years and meet frequently and arrange their meetings at odd times in order to keep their affair a secret, it does not necessarily follow that at every meeting the intention of the parties is to have an intercourse.
It is possible to conceive that the meeting in question may have been for other forms of' expression of love. It is not necessary to pursue further the point of the defect in the charge for in my opinion the applicant has not in fact peen misled by the omission in the charge to state that in entering the house of Parwati the intention of the applicant was to commit adultery with her.
The main point for consideration is whether on the evidence it is established that if the accused had had intercourse with Parwati it would have amounted to an offence under Section 497, I.P.C. If the intention of the applicant was not to annoy, intimidate or insult but to do an unlawful act, then unless that unlawful act, if done amounts to an offence, the entry of the applicant in the house cannot be a criminal trespass.
It is therefore obvious that there must be evidence to show that the act the applicant intended to do, if done would have amounted to an offence. Now for an offence under Section 497, I.P.C. it is necessary to prove that the woman with whom the accused had sexual intercourse was the wife of another man; that the accused had knowledge or had reason to believe that she was the wife of another man and that the intercourse was without the consent or connivance of the husband.
In the present case the evidence on the point of Parwati being the wife of Ramcharan and of the applicant's knowledge that she was the wife of another man is meagre and thin, and the prosecution led no evidence whatsoever to prove the fact that the sexual intercourse which the applicant intended to have on 11-12-1952 was without the consent or connivance of the husband
On the question of marriage the only evidence consists of Parwati's bare statement that she was married to Ramcharan some years back and the statement of Jagdishprasad that Parwati was his sister-in-law. This evidence is clearly insufficient to prove the marriage of Parwati or the fact that the accused had the knowledge that Parwati was the wife of another man.
The accused in his statement under Section 342, Criminal P. C no doubt said that immediately after he had entered the house Parwatibai'a brother-in-law (sic) raised a hue and cry. The inference of tacit admission of Parwati being the wife of the brother of Jagdishprasad on the part of the accused by the mere use of the word (sic) cannot avail the prosecution, because the prosecution led no evidence to prove Parwati's marriage strictly. '
The prosecution case Is not carried any further, even if it is assumed that the statement of Jagdishprasad and Parwatibai together with the admission of the accused, prove the fact of Parwati's marriage and of the knowledge of the accused that she was the wife of another man for there is no evidence that the sexual intercourse intended by the applicant was without the consent or connivance of the husband. The prosecution did not produce Ramcharan the husband.
Learned Dy. Government Advocate referred me to the statement of Parwati that when her husband returned home after this incident he gave her a beating one day, and suggested that this statement of Parwati showed the absence of consent or connivance on the part of Ramcharan. I am unable to accept this suggestion. There is no reason to think that in the community to which Ramcharan and Parwati belong, beating of the wife by the husband is resorted to only when the wife commits adultery.
It is common knowledge that a husband who thinks that he has right to beat his wife adopts that measure whenever he is provoked by any act or omission on the part of the wife. The fact that Ramcharan beat his wife after the incident does not therefore lead to the conclusion that the applicant was having or intended to have sexual intercourse with Parwati without his consent or connivance.
It must be noted that Parwati has not deposed that it was in connection with the incident of 11th December 1952 that her husband beat her. The view that for a conviction for the offence of house trespass with intent to commit adultery, it is necessary to establish the ingredients of Section 497, I.P.C., in regard to the intended act of sexual intercourse is fully supported by the decision of the Allahabad High, Court in 19 All 74 (A).
The Courts below have relied on - 'Jhallar v. State' : AIR1954All17 , but that decision is distinguishable on facts. It makes no reference to 19 All 74 (A), and can be explained only on the basis that the evidence in that case proved the pre-requisites for the offence of adultery. Those pre-requisites are absent here. In my Judgment the prosecution has failed to prove that the entry of the applicant in the house of Parwatibai was with the intent to commit an offence under Section 497, I.P.C.
4. In the result this revision petition is accepted and the conviction and sentence awarded to the applicant are set aside. If the applicant has already paid the amount of fine, it be refunded to him.