Brij Basi vs The Queen-Empress

John Edge, Kt., C.J. and Aikman, J. 1. Brij Basi charged before a Magistrate with having committed the offence of lurking house trespass by night with intent to commit theft punishable under Section 457 of the Indian Penal Code. The Magistrate, finding on the evidence that Brij Basi had no intent to commit theft, altered the charge to one of house trespass in order to the committing of an offence punishable with imprisonment, specifying the offence as adultery with the wife of one Ram Gopal, and convicted Brij Basi under Section 451 of the Indian Penal Code. Brij Basi appealed. The Sessions Judge, agreeing with the Magistrate, dismissed the appeal. Brij Basi has brought this application in revision. Ram Gopal was not the complainant. The complaint was preferred by a nephew of Ram Gopal, who was also living in the house. Ram Gopal was not called as a witness, and there was no evidence that Brij Basi had gone to the house to have connection with the wife of Ram Gopal without the connivance and without the consent of Ram Gopal. The offence of criminal adultery, i.e., of adultery which is recognised by the Indian Penal Code as a criminal offence, is not committed unless connection with the married woman is without the connivance and without the consent of her husband. It is the first principle of criminal law that where a statute creates a criminal offence the ingredients of that criminal offence must be strictly proved, and that where the doing of an act without consent or without authority is made a criminal offence, and the statute does not expressly put upon the accused the proof of such consent or authority, it is a necessary part of the case for the prosecution to negative by evidence such consent or authority. In this case, if Brij Basi had actually been caught in the act of sexual intercourse with the wife of Ram Gopal, assuming that he knew her to be Ram Gopal''s wife, the offence of criminal adultery would not have been made out without proof that such sexual intercourse was without the consent and without the connivance of Ram Gopal. Brij Basi was convicted of a house trespass in order to commit a criminal adultery with the wife of Ram Gopal. It was consequently necessary to support the prosecution to prove that if Brij Basi had had sexual intercourse on that occasion with the wife of Ram Gopal, it would have been without Ram Gopal''s consent or connivance. The Court cannot make assumptions against prisoners in the absence of necessary evidence for the prosecution, and there was no evidence here to show that Brij Basi did commit the trespass in order to commit criminal adultery as that offence is defined by the statute. It was not even proved that Brij Basi had committed criminal trespass on this occasion. There would be no intent on his part to commit criminal adultery or to insult or annoy the owner of the house, Earn Gopal, unless Brij Basi was there to commit criminal adultery witli the wife of Ram Gopal, i.e., to have sexual intercourse with her without the consent and without the connivance of Earn Gopal. There could be no intent to insult or annoy Ram Gopal if Ram Gopal was consenting or conniving at the adultery, and there is nothing in this case to show whether or not Ram Gopal was a consenting or conniving party. We allow this application, and we quash the conviction and the order of the Sessions Judge, and, acquitting Brij Basi of the offence of which he was convicted, order him to be at once released.