Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 871 (GAU)

Anjali Das v. Manindra Das

2011-11-01

C.R.SARMA

body2011
JUDGMENT Hon'ble Mr. Justice C.R. Sarma 1. None appears for the appellant. Heard Mr. A.C. Bhowmik, learned Senior counsel assisted by Mr. P. Saha, learned counsel appearing for the respondent. 2. This appeal, against acquittal, is directed against the judgment and order, dated 11-5-04, passed by the learned Addl. Magistrate, First Class, Udaipur, South Tripura, in C.R. case No. 642 of 2001. 3. Smt. Anjali Das, who is the appellant in this appeal, as complainant filed a complaint before the learned Chief Judicial Magistrate, South Tripura, Udaipur, alleging that Sri Manindra Das i.e. the respondent despite being a married person, by showing a piece of paper purported to be a divorce paper had induced the complainant to believe that he had divorced his earlier wife, and, thus proposed to marry her. According to the complainant, who initially refused to accept the said proposal, was shown a paper alleged to be issued by a court, in support of the claim of divorce in respect of his earlier marriage. Accordingly, on being so persuaded the complainant believed that the respondent had divorced his earlier wife and as such she agreed to marry the respondent. Her marriage was solemnized on 24-5-99 at Kashba Kalibari after performing saptabadi around the sacred fire and exchange of garlands. According to the complainant, after the said marriage, she used to live at Udaipur with the respondent as husband and wife and out of the said wed lock, a female child was born to them. But on 13-12-01, the respondent deserted her. Subsequently, the complainant met the respondent and the respondent, who continued to live with his first wife, refused to accept her as his married wife and told her that he never divorced his earlier wife and told her that he had shown a false document to persuade the complainant to have physical relation with him. On being so informed, the complainant could realize that she was cheated by the respondent and deceitfully induced to believe that she was the married wife of the respondent. 4. On receipt of the said complaint, the learned CJM took cognizance of the offences under Sections 470/493/506 IPC and transferred the case to the court of learned Judicial Magistrate, First Class for trial. The learned Judicial Magistrate, First Class framed charge under Section 493IPC. 4. On receipt of the said complaint, the learned CJM took cognizance of the offences under Sections 470/493/506 IPC and transferred the case to the court of learned Judicial Magistrate, First Class for trial. The learned Judicial Magistrate, First Class framed charge under Section 493IPC. The charge being read over and explained to the respondent, to which the latter pleaded not guilty and claimed to be tried. 5. In order to bring home the case, the complainant examined four witnesses including herself. At the close of the prosecution witnesses, the accused person was examined under Section 313CrPC. He denied the allegations, brought against him and declined to adduce defence evidence. The learned Magistrate, considering entire evidence on record came to the finding that the complainant failed to establish the charge under Section 493 IPC and accordingly, the learned Magistrate acquitted the accused respondent. Aggrieved by the said acquittal, the complainant, as appellant, has come up with this appeal. 6. Mr. A. C. Bhowmik, learned Senior counsel, taking this court through the evidence on record, has submitted that the complainant failed to establish that the respondent had persuaded the complainant to believe that he had divorced his earlier wife and that he deceitfully induced the complainant to believe that she was his married wife. The learned counsel further submitted that the complainant failed to prove, by adducing sufficient evidence, that the marriage between the complainant and the respondent was performed in the Kashba Kalibari, as alleged by the complainant. In view of the above, the learned senior counsel has contended that the complainant failed to establish the allegation of marriage between the complainant and the respondent. 7. Supporting the impugned judgment and order of acquittal, the learned senior counsel has submitted that the learned Magistrate, due to absence of sufficient evidence, rightly recorded the acquittal and that there is no merit in this appeal, requiring interference with the impugned order of acquittal. 8. In order to appreciate the arguments, advanced by the learned Senior counsel and examine the correctness of the impugned judgment and order I feel it appropriate to briefly scan the evidence on record. The complainant, in her evidence, given as PW 1 stated that she knew that the respondent was a married person and as such she, initially, refused to accept the respondents proposal to enter into a marriage. The complainant, in her evidence, given as PW 1 stated that she knew that the respondent was a married person and as such she, initially, refused to accept the respondents proposal to enter into a marriage. According to PW 1, she was persuaded, by the respondents, to believe that he had divorced his earlier wife, by showing a divorce paper written in English. She further stated that her marriage with the respondent, in the Kashba Kalibari, was solemnized by performing Saptabadi around the sacred fire and exchange of garland. PW 1 i.e. the complainant though claimed that a divorce paper was shown to her, no such divorce paper was produced in support of her claim. She did not make any attempt to produce the said document. Therefore, there is no corroboration in her evidence to believe that the respondent had shown her any such divorce paper. In support of her evidence that her marriage with the respondent was solemnized by performing Saptabadi and exchange of garland, no independent evidence, in support of her said contention, has been adduced. As the marriage was claimed to be performed in Kashba Kalibari which is a public place of worship, there was no difficulty, on the part of the complainant, to adduce some independent witnesses including the concerned priest, who had witnessed the said marriage. Non-examination of any such independent witnesses, more particularly the concerned priest, raises serious doubt about the veracity of her statement in this regard. 9. PW 2 Smt. Subhashi Das, who was a resident of the locality where the complainant used to live, stated that she heard that the complainant performed her marriage with the respondent by exchanging garland in Kashba Kalibari. This witness was not present at the time of the said marriage. Her evidence is nothing but hearsay evidence. Hence, I find no force in her contention to believe that the marriage between the complainant and the respondent was really performed in the alleged way. 10. PW 3 Smt. Usha Das, who is the mother of the PW 1, i.e. the complainant, clearly stated that, in their customary system, the marriage is required to be solemnized by performing Saptabadi around the sacred fire and that no other customary procedure is applicable in respect of marriage of persons, belonging to their community. 10. PW 3 Smt. Usha Das, who is the mother of the PW 1, i.e. the complainant, clearly stated that, in their customary system, the marriage is required to be solemnized by performing Saptabadi around the sacred fire and that no other customary procedure is applicable in respect of marriage of persons, belonging to their community. She further stated that her daughter i.e. the complainant had married the respondent out of love affairs and against their will. According to this witness, she was not present at the time of their marriage, alleged to be performed, between the complainant and the respondent. Therefore, it is found that PW 3 did not witness the said marriage. Hence, it cannot be concluded, from her evidence, that Saptabadi was performed in respect of the said marriage. 11. PW 4 Sri Prafulla Das, an uncle of the complainant, stated that the respondent had enticed away the complainant from her parents? house and that they started living in the house of one Rabindra Das at Udaipur. According to this witness, he visited the house, wherein the complainant and the respondent were living as husband and wife. He was not a witness to the marriage, alleged to be solemnized between the complainant and the respondent. Therefore, his evidence does not help the complainant in establishing that her marriage with the respondent was performed as per the customary rites. What PW 4 stated is that he found the complainant and the respondent living together as husband and wife. This evidence of PW 4 does not indicate that the marriage of the complainant and the respondent was performed lawfully, on being falsely induced by the respondent. 12. In view of the above discussed evidence, there is nothing substantive to show that the marriage between the complainant and the respondent was performed as per the Hindu rites by performing Saptabadi. There is also no evidence to show that the complainant, who knew the respondent to be a married person was persuaded to believe that the respondent had divorced his earlier wife. In view of the above, considering entire aspect of the matter, there is nothing on record to conclude that the respondent had deceitfully induced the complainant to believe that a lawful marriage was performed with the complainant. 13. In the case of State of UP Vs. In view of the above, considering entire aspect of the matter, there is nothing on record to conclude that the respondent had deceitfully induced the complainant to believe that a lawful marriage was performed with the complainant. 13. In the case of State of UP Vs. Satish, reported in AIR 2005 SC 1000 , the Supreme Court observed that generally, the order of acquittal should not be interfered with, because the presumption of innocence is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme Court further observed? the principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 14. Carefully perusing the evidence of record, I find that the learned Magistrate, while recording the acquittal, appreciated the entire evidence on record and no convincing evidence has been unjustifiably eliminated in the process. The impugned judgment and order having been based on paper appreciation of the evidence on record, does not suffer from perversity. Therefore, I am inclined to hold that no miscarriage of justice has been done, by the learned Magistrate, by recording acquittal of the accused person. 15. In the light of the above discussion, I have no hesitation in holding that the learned Magistrate committed no error in appreciating the evidence on record. 16. Therefore, I am inclined to hold that no miscarriage of justice has been done, by the learned Magistrate, by recording acquittal of the accused person. 15. In the light of the above discussion, I have no hesitation in holding that the learned Magistrate committed no error in appreciating the evidence on record. 16. In view of what has been discussed above, I find no merit in this appeal requiring interference with the impugned judgment and order of acquittal. Hence, the appeal fails. Return the lower court records.