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Madhya Pradesh High Court · body

2013 DIGILAW 1567 (MP)

Santosh v. State of M. P.

2013-12-18

N.K.GUPTA

body2013
ORDER 1. The applicant was convicted for the offence punishable under sections 494 and 498A of IPC and sentenced with two years rigorous imprisonment with fine of Rs.250/- and one year’s rigorous imprisonment with fine of Rs.250/- vide judgment dated 25.1.1997 passed by the learned CJM, Khandwa in criminal Complaint Case No.2050/1996. In Criminal Appeal No.9/1997, the learned First Additional Sessions Judge, Khandwa dismissed the appeal. Being aggrieved with the aforesaid judgments, the applicant has preferred the present revision. 2. The facts of the case, in short, are that, the complainant-respondent had filed a criminal complaint against the applicant and other 15 persons with the allegations that her mariage took place with the applicant 5 years prior to the filing of the complaint. She was blessed with two children but, she was ousted from the house by the applicant and his family members in pursuance to their demand of dowry and harassment. It was also pleaded that on 28.6.1991, the applicant entered into the second marriage with the help of other accused persons with one Sukai Bai, daughter of Tarachand at village Gogawan, District Khargone. 3. The applicant abjured his guilt. Premnath Sharma (DW1), Murarilal (DW2), Laxminarayan Singh (DW3), Shobharam (DW4) were examined as defence witnesses. Premnath, Murarilal, Laxminarayan Singh were examined to prove the plea of alibi for various accused persons, whereas Shobharam was examined to prove the rites relating to the marriage in the concerned caste. 4. The learned JMFC, after considering the evidence adduced by the parties, acquitted all other accused persons but, convicted and sentenced the applicant as mentioned above. The appeal filed by the applicant was dismissed in toto. 5. I have heard the learned counsel for the parties. 6. The respondent No.2 did not appear in the present revision though notice of this petition was served upon her. 7. For consideration of the present revision, the discussion should be done in two parts. One part for the offence punishable under section 494 of IPC and second part for the offence punishable under section 498A of IPC. 8. For convenience of the discussion, offence under section 498A of IPC could be considered initially. In that respect, Kadwa (PW2) has stated in omnibus manner that he was informed by the complainant that her husband was cruel to her for demand of dowry etc. 8. For convenience of the discussion, offence under section 498A of IPC could be considered initially. In that respect, Kadwa (PW2) has stated in omnibus manner that he was informed by the complainant that her husband was cruel to her for demand of dowry etc. but, the statement of the witness Kadwa cannot be accepted under section 32 of the Evidence Act as she still survives. His statement falls in the category of hearsay evidence, which cannot be believed. Kanti Bai (PW1) has stated that she was being assaulted for demand of a scooter/moped. The applicant was habitually consuming liquor and thereby assaulting her. On the contrary, Natthulal (PW3) has stated that the applicant went to his village to drop Kanti Bai in the house of her parents. After sometime, he came back to take Kanti Bai to his house and when she refused to go with the applicant, he assaulted the victim Kanti Bai. The complainant Kanti Bai did not say that such an incident took place in her parents house and, therefore, it would be apparent that the factum of cruelty etc. shown by the witness Natthulal is nothing but, a cooked story which cannot be believed. 9. The complainant Kanti Bai has stated that the applicant was in a habit to consume liquor and to assault her, whereas the applicant was working in the office of S.P., Khandwa and he could not do such a thing otherwise he could lose his job on the complaint made by anyone. In the complaint it was not pleaded that the applicant was in a habit to consume liquor and to assault the victim Kanti Bai and, therefore, such allegation appears to be an after thought which cannot be believed. 10. The victim Kanti Bai has accepted that she filed the complaint one year and 3 months after leaving the house of the applicant. It is strange that neither mother, nor fater of the complainant were examined to show that the complainant was dealt with cruelty and, therefore, they went to talk with the parents of the applicant for conciliation between the victim and the applicant. After considering the evidence adduced by the complainant, she could not tell any reason as to why she did not lodge any FIR against the applicant for offence punishable under section 498A of IPC. Also she did not take any step for conciliation etc. After considering the evidence adduced by the complainant, she could not tell any reason as to why she did not lodge any FIR against the applicant for offence punishable under section 498A of IPC. Also she did not take any step for conciliation etc. in those 1-1/2 years. After considering her cross-examination, she has accepted that she left her husband, 7 years back when she was pregnant for 3 months and his son was in her womb. She has also accepted that she initiated an application for maintenance, 2 years prior to her statements, whereas her statements were recorded on 8.2.1996. She has also accepted that she was ousted from the house, 5 years prior to the proceedings of maintenance and, therefore, it appears that she left the house of the applicant 2 years prior to filing of the complaint. 11. On the basis of the aforesaid discussion, it would be apparent that Natthulal did not support the allegation made by the complainant about cruelty and harassment and he told a new story. No other witness was examined to corroborate the evidence of the complainant Kanti Bai. She did not take any step to lodge anFIR against the applicant for offence punishable under section 498A of IPC within reasonable period. Under such circumstances, the testimony of the complainant Kanti Bai cannot be accepted for the fact of cruelty or harassment done by the applicant. 12. In this connection, the learned counsel for the applicant has submitted that since the alleged second marriage took place at village Gogawan, District khargone, the complaint for offence punishable under section 494 of IPC should have been filed before the concerned Magisterial Court, who had territorial jurisdiction over the territory of Police Station Gogawan, whereas the complaint was filed before the Magisterial Court of city Khandwa and, therefore, to show that the cause of action arose at Khandwa, offence punishable under section 498A of IPC was added in the complaint, without any basis. 13. The contention advanced by the learned counsel for the applicant is acceptable. In the cross-examination of the complainant Kanti Bai, the learned defence counsel has shown a copy of the complaint served to the applicant which was different from the complaint which was actually filed. 14. 13. The contention advanced by the learned counsel for the applicant is acceptable. In the cross-examination of the complainant Kanti Bai, the learned defence counsel has shown a copy of the complaint served to the applicant which was different from the complaint which was actually filed. 14. The complainant Kanti Bai had accepted that initially the complaint was prepared by Shri Mandloi, Advocate and thereafter, she engaged another counsel who changed the draft of the complaint and thereafter, the complaint was filed. Under such circumstances, where the complainant did not take any step against the applicant about his cruelty and harassment in last 2 years before filing of the complaint, her allegations cannot be accepted. Under such circumstances, the complainant could not prove that the applicant did any cruelty to her or harassed her in such a manner that a crime under section 498A of IPC could be constituted. 15. The learned Chief Judicial Magistrate as well as the learned Additional Sessions Judge have failed to observe that it was a case of misjoinder of the charges.The offence under section 498A of IPC cannot be considered as offence in continuation and the complainant did not allege any offence of cruelty during the alleged performance of second marriage.Therefore, cause of action for offence punishable under section 498A of IPC arose with the complainant much prior to the filing of this complaint, whereas alleged cause of action arose for offence punishable under section 494 of IPC in a different manner.So both the offences could not be tried in a common complaint before the Chief Judicial Magistrate,Khandwa. Cause of action for offence under section 494 of IPC had arisen much after the cause of action arose for offence punishable under sectrion 498A of IPC at village Gogawan where alleged second marriage was performed and complaint could be filed before the Magistrate who had territorial jurisdiction over the territory of Police Station Gogawan, District Khargone. 16. On the basis of the aforesaid discussion, it would be apparent that the trial took place with misjoinder of the charges. The complainant clubbed each cause of action in filing a criminal complaint. In this connection, the judgment passed byHon’ble the apex Court in case of K.T.M.S. Mohd. 16. On the basis of the aforesaid discussion, it would be apparent that the trial took place with misjoinder of the charges. The complainant clubbed each cause of action in filing a criminal complaint. In this connection, the judgment passed byHon’ble the apex Court in case of K.T.M.S. Mohd. and another v. Amanullah Quareshi [ AIR 1992 SC 1831 ], in which it is laid that the misjoinder of charges is not a mere irregularity and if misjoinder was done then, accused was entitled to acquittal. Under such circumstances, the trial Court could convict the applicant either for offence punishable under section 498A of IPC or section 494 of IPC because both the charges could not be tried simultaneously. 17. So far as the territorial jurisdiction of the Magisterial Court relating to offence under section 494 of IPC is concerned, it is true that according to section 177 of the CrPC, the Magisterial Court had the jurisdiction to try the case for offence punishable under section 494 of IPC in whose jurisdiction, second marriage was performed. However, in the year 1978 the legislature has amended the provisions of section 182 of the CrPC and it was directed that offence under section 494 of IPC can be tried by the Court within whose legal jurisdiction offence was committed or the offender last resided with his spouse of the first marriage or wife of the first marriage has taken up permanent residence after the commission of the offence. In the present case, the first wife has lastly resided at Khandwa, where the applicant was posted in the S.P. Office, Khandwa and, therefore, the complaint for offence under section 494 of IPC could be prosecuted before the CJM, Khandwa also. 18. If the merits of the case are considered then, the complainant Kanti Bai was not an eye-witness to the alleged second marriage of the applicant.The only witness Kadwa (PW2) was examined who claimed that he saw the second marriage. However, there is a lot of contradiction between the evidence given by the complainant Kanti Bai and Kadwa. 18. If the merits of the case are considered then, the complainant Kanti Bai was not an eye-witness to the alleged second marriage of the applicant.The only witness Kadwa (PW2) was examined who claimed that he saw the second marriage. However, there is a lot of contradiction between the evidence given by the complainant Kanti Bai and Kadwa. Initially, it was pleaded by the complainant Kanti Bai that she got the information of the second marriage of the applicant from Kadwa but, in her statement before the Court, she stated that she got the information about the proposed second marriage of the applicant and, therefore, she had sent Kadwa to attend the marriage and to report her back. She has also stated that her mother and maternal aunt went to Police Station Khargone to lodge the FIR about the second marriage.She has also shown that she had lodged a complaint to S.P., Khandwa to stop that marriage. However, no copy of FIR was shown before the trial Court that any FIR was lodged at Police Station Khargone. Also, either mother or maternal aunt of the complainant is examined in support of that contention. On the contrary, the complainant Kanti Bai had accepted that in her witnesses list, names of her mother and her maternal aunt were not mentioned. If the document, Ex.P-1 is perused then, it is nothing but, a typed complaint signed by the complainant but, no endorsement is shown on the document, Ex.P-1 that it was ever given to S.P., Khandwa. Such type of complaint could be prepared at the time of filing of the complaint to establish the allegation made in the complaint. If the complainant had filed a complaint before the S.P., Khandwa on the proposed date of marriage of the applicant then, it must have been received by S.P., Khandwa in his office by his subordinate staff or by the registered post. The complainant neither submitted any postal receipt or any acknowledgement given by the office superintendent of the office of the S.P., Khandwa that such complaint was submitted in that office and, therefore, the document Ex.P-1 is nothing but, a document created before filing the complaint. The complainant neither submitted any postal receipt or any acknowledgement given by the office superintendent of the office of the S.P., Khandwa that such complaint was submitted in that office and, therefore, the document Ex.P-1 is nothing but, a document created before filing the complaint. For sake of arguments, if it is accepted that the complaint Ex.P-1 was filed before theS.P., Khandwa on 28.6.1991 then, there was no problem with the complainant to file a criminal complaint soon after the incident of second marriage but, the complaint was filed 6 months after the alleged incident. Under such circumstances, the evidence given by the complainant Kanti Bai and Kadwa that the complainant Kanti Bai took the steps to stop the second marriage of the applicant appears to be a falsehood. 19. In this connection, it is pertinent to note that when the complainant Kanti Bai was asked about drafting of the complaint by Shri Mandloi, Advocate that the second marriage took place as “Paat Marriage”, she turned annoyed and she has accepted that she was residing with the aplicant as a wife though no valid marriage took place.The annoyance of the complainant does not disturb the fact of her marriage with the applicant because it was accepted by the applicant but, her annoyance indicates that drafting of the complaint was done according to the advice of an Advocate and not on the basis of actual factual position. 20. The complainant has accepted in para 18 of her statement that in the alleged second marraige, her elder brother-in-law also visited the venue of marriage. However, neither such fact was pleaded in the complaint, nor elder brother-in-law of the complainant was examined to confirm that fact. According to the complainant, she got an information that the applicant was going to perform the second marriage but, she did not tell anything about the source of that information. The complainant has stated that she had send Kadwa, her cousin to watch the second marriage of the complainant, whereas Kadwa (PW2) has stated that he attended the marriage and thereafter, he gave the information to the complainant about the second marriage. He was never sent by the complainant to watch the marriage. 21. Kadwa (PW2) could not tell any due reason as to why he attended the marriage. He did not say that he was invited in the marriage. He was never sent by the complainant to watch the marriage. 21. Kadwa (PW2) could not tell any due reason as to why he attended the marriage. He did not say that he was invited in the marriage. On the contrary, he has accepted that when brother of Sukai Bai saw him at the venue, he directed him to leave the place and, therefore, at 6 p.m. he left the venue and went to the house of her aunt-in-law and thereafter, he remained in the house of his aunt-in-law and saw the rites of marriage from the house of his aunt-in-law because marriage of the applicant was performed at an open place. Conduct of the witness Kadwa indicates that he is a cooked witness. He did not see the marriage of the applicant with anyone at village Gogawan. If he was found at the venue of second marriage then, he could tell to father and brother of Sukai Bai that the applicant was already married. He could inform his aunt-in-law to take steps to stop the marriage because it was not a valid marriage. He did not say in his statement under sectionn 202 of the CrPC that he was shunted from the venue and thereafter, he saw the entire ceremony from the house of her aunt-in-law. His aunt-in-law could be an eye-witness for the factum of second marriage because she was also present in the house and when Kadwa could see the marriage of the applicant performed from the house of his aunt-in-law then that performance could be seen by her aunt-in-law also. When he was asked about the family members of the bride then, he could not say about the names of the brothers of the bride. He could not tell the name of the Pandit, who got the marriage performed. Under such circumstances, the testimony of the witness Kadwa cannot be accepted. It appears that since he was cousin of the complainant and, therefore, he gave the evidence in favour of the complainant to prove her case. Neither he had an opportunity to attend the marriage, nor it is proved that any intimation was received to the complainant about the marriage, prior to the marriage is performed. 22. The defence witnesses have tried to prove alibi of the applicant and his family members. Neither he had an opportunity to attend the marriage, nor it is proved that any intimation was received to the complainant about the marriage, prior to the marriage is performed. 22. The defence witnesses have tried to prove alibi of the applicant and his family members. However, Laxminarayan Singh (DW3) has submitted that the applicant was present in the office on 28.6.1991 but, in the cross-examination he has accepted that on 29.6.1991, the applicant was not present in the office. If a person is required to move for his marriage in the evening then, his absence of the next day shall be counted and, therefore, by the statement of the witness Laxminarayan Singh, the evidence of alibi of the applicant could not established. Though the defence evidence could not create any innocence of the applicant, however, the prosecution should stand on its own feet.The prosecution is accepted to prove its case beyond doubt and, therefore, if defence evidence is not sufficient to prove the innocence of the accused then, it makes no difference to the prosecution’s case. 23. On the basis of the aforesaid discussion, it would be apparent that there is a lot of contradiction between the statement of the complainant Kanti Bai and the alleged eye-witness Kadwa (PW2). It was established that the victim Kanti Bai did not receive any information about the second marriage of the applicant and only the documents and statements of the complainant were created while with drafting of the complaint by the Advocate. After considering the evidence given by the witness Kadwa, his testimony is not acceptable. It is not proved beyond doubt that he attended the marriage ceremony of the applicant and Sukai Bai. The learned counsel for the applicant has placed his reliance upon the judgment passed by Hon’ble the apex Court in case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh [ AIR 1971 SC 1153 ], and Lingari Obulamma v. Venkata Reddy and others [ AIR 1979 SC 848 ], in which it is laid that the second marriage should be proved in accordance with essential religious rites applicable to the parties, otherwise no conviction can be directed for offence of bigamy. In the present case, the complainant failed to prove the second marriage of the applicant and, therefore, the applicant could not be convicted for the offence punishable under section 494 of IPC. 24. In the present case, the complainant failed to prove the second marriage of the applicant and, therefore, the applicant could not be convicted for the offence punishable under section 494 of IPC. 24. On the basis of the aforesaid discussion, it would be apparent that the complainant could not prove the offence under section 498A of IPC committed by the applicant. The trial Court has no jurisdiction to entertain the complaint of the complainant under section 494 of IPC because of territorial jurisdiction, which was with the Chief Judicial Magistrate, Khargone and, therefore, the trial Court could not convict the applicant for offence punishable under section 494 of IPC. Similarly, the complainant failed to prove the factum of alleged second marriage and, therefore, the applicant could not be convicted for the offence punishable under section 494 of IPC on the merits of the case. Under such circumstances, the judgment passed by the learned Chief Judicial Magistrate, Khandwa and the learned Additional Sessions Judge, Khandwa appears to be perverse, which cannot be maintained. In such a situation, the revision filed by the applicant can be accepted and, therefore, it is hereby accepted. The conviction as well as the sentence directed for offence punishable under sections 494 and 498A of IPC are hereby set aside. The applicant is acquitted from the charges of offence punishable under sections 494 and 498A of IPC. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court. 25. The presence of the applicant is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged. 26. A copy of the order be sent to both the Courts below along with their records for information. ...........