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2011 DIGILAW 108 (GAU)

Pinak Sarkar v. State of Tripura

2011-02-10

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. Heard Miss R. Guha, learned Counsel, for the accused-petitioner, and Mr. A. Ghosh, learned Additional Public Prosecutor, representing the State of Tripura. This revision petition is directed against the judgment and order dated 7.3.2003, passed by the learned Additional Sessions Judge, West Tripura, Agartala, in criminal appeal No.53(4)/2002, whereby the conviction of the accused petitioner under Section 498(A) of IPC and sentence to undergo rigorous imprisonment for one year, and to pay a fine of Rs. 2,000, in default, to undergo further rigorous imprisonment for two months, passed by the learned Judicial Magistrate, 1st Class, Sadar, West Tripura, Agartala, in G.R. Case No. 942 of 2001, was confirmed. However, it would be pertinent to indicate here that other co-accused convicted by the learned Trial Court under the aforesaid sections of law were acquitted by the appellate Court. 2. The prosecution case, in brief, is that: accused-petitioner Pinak Sarkar and the victim-Bapi Malakar (PW.1) were neighbours, they were in love with each other. As a sequel to the love affairs between them, on 25.5.2000, both the accused-petitioner and PW.1 fled away from their place of stay. The accused-petitioner took Bapi to Udaipur and lived in the house of one Sri Niranjan Das for three days. The accused-petitioner married Bapi (PW.1) in a Kali temple at Udaipur in front of the Goddess Kali. On 30.5.2000 the parents and sisters of the accused-petitioner took both the accused-petitioner and Bapi to the house of one Sunil Malakar of Kathalia and arranged 'Chaturthamangal' ceremony and thereafter took both of them to East Aralia, where Bapi and Pinak started living together. The parents of the accused-petitioner pressurized PW.1 to bring articles of marriage, money, etc., from her parents, and accordingly, PW.1 approached her parents, but they expressed their inability. Thereafter, on 7.6.2000, the accused Sukhendu (since acquitted) and others beat both PW.1 and the accused petitioner and drove them away from their house. The accused-petitioner and PW.1 went to Sidhai Mohanpur and lived in the house of Kamal Malakar for sometime. Allegedly, the parents of the accused-petitioner once again pressurized Bapi to bring money and other articles, and accordingly, her parents gave ornaments, furniture, and cash amounting to Rs. 30,000. After about one and half months the accused-petitioner and PW.1 shifted to the house of Goutam Sur at Reshambagan. Allegedly, the parents of the accused-petitioner once again pressurized Bapi to bring money and other articles, and accordingly, her parents gave ornaments, furniture, and cash amounting to Rs. 30,000. After about one and half months the accused-petitioner and PW.1 shifted to the house of Goutam Sur at Reshambagan. At that time also, allegedly, the parents of the accused-petitioner came there and conspired to demand an auto-rickshaw, for the accused-petitioner. However, PW.1 expressed her inability to meet the demand. One day accused-petitioner deserted Bapi (PW.1) by leaving her in the house at Reshambagan. 3. The parents of the accused-petitioner did not allow the PW.1 to stay in their house. Accused-petitioner was not immediately traceable. Finally, the PW.1 searched out the accused-petitioner and organized a Panchayat meeting, where it was decided by the Panchayat that the parents of PW.1 would provide some financial help to the accused-petitioner, for purchasing an auto-rickshaw and after which both the accused petitioner and PW.1, would formally get married socially. 4. The defence stand is that of total denial of the prosecution case. The accused-petitioner specifically stated in his defence statement recorded under Section 313, Cr.P.C. that no marriage was solemnized between the accused-petitioner (Pinak) and the complainant-PW.1 (Bapi). 5. On the above factual matrix, with the attendant defence stand as stated above, learned Judicial Magistrate, 1st Class, Sadar, West Tripura, Agartala, convicted and sentenced the accused-petitioner as well as the parents of the accused-petitioner as aforesaid. The order of conviction and sentence awarded by the learned Trial Court was carried on appeal before the learned appellate Court. The appellate Court confirmed the conviction and sentence, awarded by the learned Trial Court as against the accused-petitioner, however, acquitted his parents from the charge aforesaid. 6. Miss R. Guha, learned Counsel for the accused-petitioner in course of her elaborate arguments mainly laid emphasis on two grounds--(i) there was no marriage at all between the accused-petitioner and PW.1 (Bapi), at any point of time, and (ii) the FIR, in the case was filed almost after one and half year from the date of occurrence. 7. 6. Miss R. Guha, learned Counsel for the accused-petitioner in course of her elaborate arguments mainly laid emphasis on two grounds--(i) there was no marriage at all between the accused-petitioner and PW.1 (Bapi), at any point of time, and (ii) the FIR, in the case was filed almost after one and half year from the date of occurrence. 7. The fact remains that the FIR was filed by the petitioner after one year and seven months from the date of occurrence, when the Panchayat decided and approved some financial help to the accused-petitioner by the parents of the PW.1 (Bapi), for purchasing of an auto-rickshaw, as a pre-condition of getting married socially and living together as husband and wife. 8. Apparently there is no explanation as to why there was inordinate delay in lodging the FIR. The FIR which ought to have been filed immediately after last incident of alleged cruelty, but it took one year and seven months for the 1st informant to make up her mind to lodge the FIR accusing the accused-petitioner and his parents for commission of the alleged crime. 9. Learned Counsel for the accused-petitioner has strenuously submitted that the cruelty alleged was not proximate to the date of filing of the FIR. In this context, learned Counsel for the accused-petitioner relied on a decision of the Apex Court, reported in IV (2008) CCR 584 (SC)=(2009) 3 SCC (Cri) 1123, State of Andhra Pradesh v. M. Madhusudhan Rao, wherein the Apex Court held that more often than not, delay in lodging the FIR herself in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. The relevant extracts of the observations made by the Hon'ble Supreme Court, may be gainfully referred hereinbelow: 30. Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. The relevant extracts of the observations made by the Hon'ble Supreme Court, may be gainfully referred hereinbelow: 30. Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. 31. In the present case, as noted supra, the first information report in regard to the alleged occurrence on 19.4.1996 was lodged on 22.5.1996. Admittedly, after her discharge from the hospital on 22.4.1996, the complainant went to her parents' house and resided there. In her testimony, the complainant has deposed that since no one from the family of the accused came to enquire about her welfare, she decided to lodge the first information report. No explanation worth the name for delay in filing the complaint with the police has come on record. We are of the opinion that this circumstance raises considerable doubt regarding the genuineness of the complaint and the veracity of the evidence of the complainant (PW.1) and her father (PW.3), rendering it unsafe to base the conviction of the respondent upon it. Resultantly, when the substratum of the evidence given by the complainant (PW.1) is found to be unreliable, the prosecution case has to be rejected in its entirety. In the instant case, no explanation whatsoever is forthcoming to reason the inordinate delay in lodging the FIR. It would be quite unsafe in the circumstances, to rely on the genuineness of a delayed FIR. The danger of introduction of concocted and coloured version, as a result of deliberation and consultation, cannot be ruled out. 10. Learned Counsel for the accused-petitioner further pointed out that P.W.1 (Bapi) eloped with the accused petitioner and roamed around for a few months having been refused by the parents to accept their relationship and at no point of time, they were married. 10. Learned Counsel for the accused-petitioner further pointed out that P.W.1 (Bapi) eloped with the accused petitioner and roamed around for a few months having been refused by the parents to accept their relationship and at no point of time, they were married. It is for a few months, they were together, moving from one place to another and the brief association they had was due to infatuation in love. When the reality of life and the requirement for day to day living together talked on them, they gave up and yielded to the pressure of the time and left each other and forgot. Learned Counsel for the petitioner pointed out that the entire allegation of cruelty was towards the family members of the husband, who were ultimately acquitted by the learned appellate Court. Learned Counsel for the petitioner submitted that in the facts and circumstance of the case, after the acquittal of all the co-accused, who were convicted under Section 498(A) of IPC, read with Section 34, the petitioner deserved to be extended the benefit of doubt, since the allegation of cruelty was directed towards the parents of the accused-petitioner. 11. Learned Counsel for the accused-petitioner has pointed out that admittedly even the Panchayat, which was organized to resolve the dispute between the accused-petitioner and the complainant (PW.1) did not approve and accept the relationship of the accused-petitioner and Bapi as husband and wife, but expressly desired that after some provisions for purchase of auto-rickshaw was made by the parents of PW.1 (Bapi), the accused-petitioner would formally get married with PW.1. Learned Counsel for the accused-petitioner, further pointed out that the observations made by the Panchayat, apparently, indicate that there was no formal marriage and social recognition of such marriage between the accused-petitioner and PW.1. Therefore, in the absence formal marriage and/or of such social recognition of such marriage between accused-petitioner and PW.1, the offence under Section 498(A) could not have been brought against the accused-petitioner on presumption of a marriage. 12. In this context, Mr. A. Ghosh, learned Addl. Therefore, in the absence formal marriage and/or of such social recognition of such marriage between accused-petitioner and PW.1, the offence under Section 498(A) could not have been brought against the accused-petitioner on presumption of a marriage. 12. In this context, Mr. A. Ghosh, learned Addl. P.P. appearing for the State, relying on the decision of the Apex Court, reported in 2004(3) SCC 199 , Reema Aggarwal v. Anupam & Ors., has submitted that where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary is clearly proved, that they were living together-in-consequence of a valid marriage and not in a state of concubinage. The relevant extracts of the decision can be gainfully reflected hereinbelow: 8. In response, learned Counsel for the respondents submitted that to constitute a marriage in the eye of law it has first to be established that the same was a valid marriage. Strong reliance was placed on Bhaurao Shankar Lokhande and Anr. v. The State of Maharashtra and Another, AIR 1965 SC 1564 , in that context. Reference was also made to Sections 5(i), 11 and 16 of Hindu Marriage Act, 1955 (for short the 'Marriage Act') to contend that the stipulations of conditions of valid marriage, the circumstances in which the marriage becomes void and the protection given to children of void and voidable marriage respectively makes the position clear that wherever the Legislature wanted to provide for contingencies flowing from void or voidable marriages, it has specifically done so. It is latently evident from Section 16 of the Marriage Act. There is no such indication in Section 498-A, IPC. The language used is "husband or relative of the husband". Marriage is a legal union of one man and woman as husband and wife and cannot extend to a woman whose marriage is void and not a valid marriage in the eye of law. 9. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as 1869 "when once you get to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law" (See Inderun Valungypooly v. Ramaswamy, 1869 (13) MIA 141). So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage (see Sastry Velaider v. Sembicutty, 1881 (6) AC 364) following De Thoren v. Attorney General, 1876 (1) AC 686 and Piers v. Piers, L.R. (2) H.L.C. 331). Where a marriage is accepted as valid by relations, friends and others for a long time it cannot be declared as invalid. In Lokhande's case (supra), it was observed by this Court-- The bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife. These observations were cited with approval in Surjit Kaur v. Garja Singh and Others, AIR 1994 SC 135 . At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande's case (supra), this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. The prosecution had contended that second marriage was gandharva form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva marriages, ceremonies were required to be performed. To constitute bigamy under Section 494, IPC, the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of law and was therefore invalid. The essential ingredient constituting the offence of bigamy is the "marrying" again during the lifetime of husband or wife in contrast to the ingredients of Section 498A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly "marrying" in Section 494, IPC as against subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of the offence under Section 304B is also the "Dowry Death". Consequently, the evil sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also any one who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabitate and exercise authority as such husband over another woman. As the prosecution had set up a plea of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall back upon the presumption of a valid marriage. It was further held that there was no such presumption if the man was already married. In Surjit Singh's case (supra), the stand was that the marriage was in Karewa form. This Court held that under the custom of Karewa marriage, the widow could marry the brother or a relation of the husband. But in that case the man was a stranger. Further even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande's case (supra). But in that case the man was a stranger. Further even under that form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Lokhande's case (supra). As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked. 10. The presumption may not be available in a case, for example, where the man was already married or there was any insurmountable obstacle to the marriage, but presumption arises if there is strong evidence by documents and conduct. Above position has been highlighted in Mayne's Hindu Law and Usage. 11. The question as to who would be covered by the expression 'husband' for attracting Section 498A does present problems. Etymologically, in terms of the definition of "husband" and "marriage" as given in the various Law Lexicons and dictionaries, the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Another, AIR 1988 SC 644 , a woman claimed maintenance under Section 125 of the Criminal Procedure Code, 1973 (in short the 'Cr.P.C.'). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and Section 5 lays down that for a lawful marriage the necessary condition that neither party should have a spouse living at the time of the marriage is essential and marriage in contravention of this condition therefore is null and void. The concept of marriage to constitute the relationship of 'husband' and 'wife' may require strict interpretation where claims for civil rights, right to property, etc., may follow or flow and a liberal approach and different perception cannot be an anathema when the question of curbing a social evil is concerned. 13. In Reema Aggarwal (supra), Hon'ble Supreme Court observed that a man and woman would be considered to be husband and wife, when the marriage is accepted as valid by relations, friends and others for a long time. 13. In Reema Aggarwal (supra), Hon'ble Supreme Court observed that a man and woman would be considered to be husband and wife, when the marriage is accepted as valid by relations, friends and others for a long time. The concept of marriage to constitute the relationship of 'husband' and 'wife' may require strict interpretation, where claims for civil rights, right to property, etc., may follow or flow and a liberal approach and different perception cannot be an anathema, when the question of curbing a social evil is concerned. 14. But in the instant case, even if we try to construe and presume the relationship of the accused-petitioner and PW.1 liberally, it appears that such presumption is rebutted by the mode and manner of the relationship between the parties and ultimately by the village Panchayat of the locality, which did not consider the relationship between the accused-petitioner and the complainant-Bapi (PW. 1) as a valid marriage and directed them to get married socially. On top of it, after the elopement, admittedly both accused-petitioner and Bapi, were on the run, for a few months, before departing from each other. Therefore, in the facts and circumstances of the present case, it would be absolutely unsafe to presume the accused-petitioner as husband of Bapi (PW.1). There is no prima facie material to draw a presumption either of a valid marriage between them or a marriage accepted as valid by relations and friends. More so the society did not recognize them as husband and wife and the conduct of the accused-petitioner and PW.1, did not spell out a relationship of husband and wife. 15. Over and above, from the facts and circumstances discussed above, I am of the considered view that the Trial Court as well as the appellate Court failed to appreciate the inordinate delay in lodging the FIR in the instant case as well as the attendant danger of relying on the genuineness of the complaint and the veracity of the evidence of record. 16. In view of the above discussion, the accused-petitioner is entitled to benefit of doubt in the instant case. Accordingly, the instant revision petition filed by the accused-petitioner is allowed and the conviction and sentence of the accused-petitioner affirmed by the appellate Court in Crl. 16. In view of the above discussion, the accused-petitioner is entitled to benefit of doubt in the instant case. Accordingly, the instant revision petition filed by the accused-petitioner is allowed and the conviction and sentence of the accused-petitioner affirmed by the appellate Court in Crl. Appeal No. 53(4)/2002, is hereby set aside and the accused-petitioner is acquitted of charge under Sections 498A/34 of IPC and he is directed to be set at liberty forthwith. 17. Send down the Lower Court Record. Bail bonds furnished by the accused-petitioner, stand discharged. Petition allowed.