Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 715 (GAU)

Dipali Bhagabati v. Promod Chandra Bhagabati

2013-09-27

I.A.ANSARI

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal has arisen out of the judgment and order, dated 29.12.2003, passed, in Criminal Appeal No. 27 of 1998, by the learned Additional Sessions Judge (FTC No. 2), Kamrup, Guwahati, whereby the learned Additional Sessions Judge has set aside the judgment and order, dated 14.09.1998, passed, in Complaint Case No. 821 of 1996, by the learned Chief Judicial Magistrate, Kamrup, Guwahati, convicting the accused-respondent under Section 494 IPC and sentencing him to undergo rigorous imprisonment for 3(three) years. In consequence of the setting aside of the conviction of the accused-respondent by the learned Additional Sessions Judge, the accused-respondent has been acquitted of the offence of bigamy punishable under Section 494 IPC. 2. Before entering into the discussion of the merit of the impugned judgment and order passed by the learned appellate Court acquitting the accused-respondent, it is apposite to take note of the case, which the complainant-appellant had set out in her complaint. The case of the complainant-appellant, as unfolded at the trial, may, in brief, be described: (i) The appellant, Dipali Bhagabati, was married to accused Dr. Pramod Chandra Bhagabati, on 20.03.1987, at the residence of her uncle, late Upen Chang Kakoti, at South Sarania, as per Hindu customary rites. After the marriage, the couple started residing, as husband and wife, at the official quarter of the accused, at Kahikuchi. On 07.03.1996, the accused disappeared from his official residence without giving any information to the complainant and, on 13.03.1996, at about 5 O' clock in the evening, the accused reappeared at his official residence and informed the complainant that he had married, on 11.03.1996, Bina Sarma, a resident of Dibrugarh, as par Hindu customary rights and that he (accused) had kept Bina Sarma at the former's residence at Nalbari and wanted to forcibly take the complainant, too, to the residence of the accused at Nalbari. The complainant did not, however, agree to go to Nalbari. (ii) Thereafter, the accused went away and did not turn up at his office or at his official residence. Finding no other alternative, complainant informed the matter to the Principal, Assam Agricultural University, and her maternal uncles, namely, Balin Bordoloi and Nabin Bordoloi. The complainant also sent a message to her brother, Hirok Chang Kakoti, who had been staying at Bangalore. Finding no other alternative, complainant informed the matter to the Principal, Assam Agricultural University, and her maternal uncles, namely, Balin Bordoloi and Nabin Bordoloi. The complainant also sent a message to her brother, Hirok Chang Kakoti, who had been staying at Bangalore. Hirok Chang Kakoti came rushing to Guwahati and, then, went to Dibrugarh and, upon making inquiry, learnt that the accused had solemnized 2nd marriage with Bina Sarma, daughter of one Ranjan Sarma, on 11.03.1996, as per Hindu rites and rituals, with Madhab Ch. Sarma having acted as the priest. The accused has, thus, committed the offence of bigamy punishable under Section 494 IPC. 3. In course of time, when a charge, under Section 494 IPC, was framed against the accused, he pleaded not guilty thereto. 4. In support of her case, the complainant examined three witnesses including her own self. The accused was, then, examined under Section 313(1)(b) Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him. No evidence was adduced by the accused. 5. Having come to the conclusion that the accused stood proved, beyond reasonable doubt, guilty of offence under Section 494 IPC, the learned trial Court convicted him accordingly and sentenced him to suffer rigorous imprisonment for 3(there) years. 6. Aggrieved by his conviction and the sentence, which had been passed against him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 27 of 1998. 7. By the impugned judgment and order, dated 29.12.2003, passed in Criminal Appeal No. 27 of 1998, the learned appellate Court, having held the accused-appellant, Dr. Promod Chandra Bhagabati, not guilty of the offence, which he stood charged with, has set aside the judgment and order, dated 14.09.1998, passed by the learned trial Court and acquitted the accused-respondent. 8. It is the acquittal of the accused-respondent of the offence of bigamy, punishable under Section 494 IPC, which is the subject-matter of challenge, in this appeal, by the complainant-appellant. 9. I have heard Mr. P. Kataki, learned counsel for the complainant-appellant, and Mr. A.K. Bhattacharyya, learned Senior counsel, appearing on behalf of the accused-respondent. 10. 8. It is the acquittal of the accused-respondent of the offence of bigamy, punishable under Section 494 IPC, which is the subject-matter of challenge, in this appeal, by the complainant-appellant. 9. I have heard Mr. P. Kataki, learned counsel for the complainant-appellant, and Mr. A.K. Bhattacharyya, learned Senior counsel, appearing on behalf of the accused-respondent. 10. While considering the present appeal, it needs to be noted that the scope of the appellate Court, in an appeal, arising out of acquittal, is distinct and different from the scope of an appellate court's power in an appeal arising out of conviction of an accused. The material distinction between the two is that it is possible for an appellate Court, while sitting in an appeal, arising out of conviction of an accused, to take a view, which is reasonable, but different from the view, which the trial Court may have taken; whereas a Court, while sitting in an appeal, arising out of acquittal, cannot take a view different from the decision of the Court, which has acquitted the accused, unless the appellate Court has reasons to take a view that the conclusion, which the Court, while acquitting the accused, had reached, is completely irrational or is based on a total misreading of the evidence on record leading to miscarriage of justice or is perverse in the sense that the finding of acquittal has been reached contrary to the weight of the evidence on record or on a misconception of law. 11. In short, thus, interference with the judgment of acquittal is possible only when the view, which the Court, while acquitting an accused has taken, is found to be wholly irrational and unacceptable. When two views were possible on the basis of the evidence on record, it is permissible for a Court, while sitting in an appeal, arising out of conviction, to take a view different from the one, which may have been taken by the trial Court. On the other hand, while sitting on an appeal against acquittal, a Court would not interfere with the finding of acquittal if there were, on the basis of the evidence on record, two views reasonably possible. On the other hand, while sitting on an appeal against acquittal, a Court would not interfere with the finding of acquittal if there were, on the basis of the evidence on record, two views reasonably possible. Interference, with a finding of acquittal, is permissible only when the conclusion, which has been reached by the trial Court, while acquitting an accused, is such, which a rational mind cannot agree to, or where the conclusion, as regards acquittal, was reached by ignoring the evidence on record or wholly contrary to the evidence on record or on misconception of law or on the basis of inadmissible pieces of evidence and/or the law relevant thereto. 12. What is also of immense importance to note, while considering an appeal against the acquittal, is that an accused is presumed to be innocent until he is proved to be guilty and an order of acquittal bolsters this presumption and strengthens thereby the case of the accused that he is innocent. 13. The above position of law can be discerned from the decisions, which have been referred to by Mr. P. Kataki, learned counsel for the complainant-appellant, and Mr. A.K. Bhattacharyya, learned Senior counsel, appearing for the accused-respondent. 14. Mr. Kataki, learned counsel, has, in support of this appeal, referred to the case of Bhajan Singh @ Harbhajan Singh & Ors. Vs. State of Haryana, reported in (2011) 7 SCC 421 , too, wherein the Court has observed thus: 44. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had foiled to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. 45. The expressions like "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with the acquittal. The expressions like "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, the appellate court may interfere with an order of acquittal. 46. The appellate Court should also bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (See Sanwat Singh v. State of Rajasthan ( AIR 1961 SC 715 ), Suman Sood v. State of Rajasthan, reported in (2007) 5 SCC 634 , Brahm Swaroop v. State of U.P., reported in (2011) 6 SCC 288 , V.S. Achuthanandan v. R. Balakrishna Pillai, reported in (2011) 3 SCC 317 and Rukia Begum v. State of Karnataka reported in (2011) 4 SCC 779 .) 15. From a careful reading of the observations made in Bhajan Singh alias Harbhajan Singh (supra) and the law laid down therein, it becomes clear that the appellate Court must bear in mind that the presumption of innocence of the accused is bolstered by acquittal of the accused. Interference, in a routine manner with the judgment of acquittal, is, therefore, not permissible and must be avoided unless there are good reasons to interfere. If the appellate Court finds that while acquitting an accused, the Court below had failed to take into consideration the admissible evidence and/or had taken into consideration evidence brought on record contrary to law, or wrongly placed the burden of proof or where it is possible to take only one view, namely, that prosecution or complainant's evidence pointed to the guilt of the accused and the judgment of acquittal is, on the face of it, perverse, interference is permissible. 16. Broadly in tune with the proposition of law, which have been laid down, in Bhajan Singh alias Harbhajan Singh (supra), are the decisions, which Mr. 16. Broadly in tune with the proposition of law, which have been laid down, in Bhajan Singh alias Harbhajan Singh (supra), are the decisions, which Mr. A.K. Bhattacharyya, learned Senior counsel, has also referred to and relied upon. In Sheo Swarup (supra), which Mr. Bhattacharyya, relies upon, the Privy Council has made it clear that an appellate Court shall be slow in disturbing a finding of fact arrived at by the judge, who had the advantage of seeing the witnesses. 17. In the case of Pabitar Singh Vs. State of Bihar ( AIR 1972 SC 1899 ), the Supreme Court has made it clear that great care and attention should be devoted by the Courts to all questions of law and fact, while dealing with a case of acquittal if the reversal thereof may have an impact on the service career of the acquitted accused. The relevant observations are reproduced below: 12. Lastly it cannot be over-emphasised that in cases of the present nature where not only the liberty of a citizen is involved but also his whole career on-conviction a person in service is bound to be dismissed-great care and attention should be devoted by the courts to all questions of law and fact which unfortunately has not been done in the present case. That has led to miscarriage of justice. The appellant is entitled to the benefit of doubt and he is hereby acquitted. 18. In the case of Tota Singh & Anr. Vs. State of Punjab, reported in (1987) 2 SCC 529 , the Supreme Court has pointed out that when the High Court does not find that the reasons given by the trial Court, while discussing the testimony of some witnesses, unreasonable or perverse, the High Court can-not, on independent re-appraisal of evidence, interfere with an order of acquittal, because of the mere fact that the appellate court is inclined, on a re-appreciation of the evidence, to reach a conclusion, which is at variance with the one recorded in the order of acquittal passed by the court below. The jurisdiction of the appellate court, in dealing with an appeal against an order of acquittal, is circumscribed by the limitation that no interference is permissible with the order of acquittal unless the consideration of the evidence by the trial Court is vitiated by some manifest illegality or the conclusion, recorded by the court below, is such, which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. The Supreme Court, in Tota Singh (supra), has also emphasized that where two views are possible on an appraisal of the evidence adduced in a case and the court below has taken a view, which is a plausible one, the appellate court cannot legally interfere with such an order of acquittal even if it is of the opinion that the view, taken by the court below, is erroneous. 19. The Supreme Court has reiterated, in its later decision, in Ram Swaroop Vs. State of Rajasthan, reported in (2004) 13 SCC 134 , that if two views are reasonably possible on the basis of the evidence on record, the view, which favours the accused, must be preferred. Similarly, it is well settled, points out the Supreme Court in Ram Swaroop (supra), that if the view, taken by the trial Court, while acquitting an accused, is a possible and reasonable view on the evidence brought on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take a contrary view. 20. Bearing in mind the scope and ambit of the appellate Court's power to interfere with an order of acquittal, it may, now, be noted that Mr. P. Kataki, learned counsel for the complainant-appellant, has submitted that the learned appellate Court has seriously fallen in error by taking into consideration two documentary pieces of evidence, namely, Ext. A and Ext. B, Ext. A being a photocopy of an affidavit sworn by Madhab Sarma, who is claimed to have acted as a priest at the time of the second marriage of the accused-respondent, and Ext. B, is claimed to be a certificate given by Madhab Sarma that he had solemnized the marriage between the accused-respondent and Bina Sarma. 21. Thus, the said two documents, points out Mr. B, is claimed to be a certificate given by Madhab Sarma that he had solemnized the marriage between the accused-respondent and Bina Sarma. 21. Thus, the said two documents, points out Mr. Kataki, learned counsel, were inadmissible in law and could not have been taken into account by the learned appellate Court for the purpose of reaching a decision of acquittal on the ground that none of these two documents reflect that while solemnizing the marriage between the respondent and Bina Sarma, Spatapadi, which is essential for a valid Hindu marriage, was performed. This apart, points out Mr. Kataki, the learned appellate Court has also fallen in error in taking the view that Madhab Sarma has been examined as the sole eye witness to the alleged performance of marriage between the accused-respondent and Bina Sarma and since his evidence, in the light of the other evidence on record, cannot be described as evidence of a wholly reliable witness, particularly, when PW 1, Madhab Sarma, had, admittedly, acted as a priest in the marriages of the members of the family of the complainant, no credence can be given to the evidence of Madhab Sarma. 22. Thus, Madhab Sarma's evidence, according to the learned appellate Court, was not the evidence of a disinterested witness and his evidence, being not wholly reliable, no implicit reliance can be placed on his evidence. These conclusions, reached by the learned appellate Court, were, according to Mr. Kataki, learned counsel, wholly against the materials on record. 23. While considering the above aspect of the case, what needs to be noted is that the witnesses, generally, fall into three distinctly different categories, namely, (i) a witness, who is wholly reliable: (ii) a witness, who is wholly unreliable; and (iii) a witness, who is neither wholly reliable nor wholly unreliable. In the case of a witness, who is wholly reliable, there is no difficulty in placing reliance on the evidence of such a witness and even one wholly reliable witness's evidence can become foundation for conviction of an accused. When, however, a witness is wholly unreliable, no reliance can at all be placed on such a witness's evidence and his evidence has to be rejected by Court. Difficulty, however, arises in the case of the third category of witnesses, who are neither wholly reliable nor wholly unreliable. When, however, a witness is wholly unreliable, no reliance can at all be placed on such a witness's evidence and his evidence has to be rejected by Court. Difficulty, however, arises in the case of the third category of witnesses, who are neither wholly reliable nor wholly unreliable. In the case of appreciation of evidence of a witness, who is neither wholly reliable nor wholly unreliable, the Court cannot readily accept his evidence nor can his evidence be rejected outright. The remedy, in such a case, lies in looking for corroboration and if the evidence of such a witness is corroborated by independent and credible evidence, direct or circumstantial, the evidence of the witness, who is neither wholly reliable nor wholly unreliable, can be placed reliance upon. 24. In the light of the law, which I have discussed above, when I turn to the submissions, which have been made on behalf of the accused-respondent, I notice that the complainant, in the very complaint (which she had filed), had stated that Madhab Sarma was the priest, who had performed the marriage between the accused-respondent and Bina Sarma and that Madhab Sarma had given an affidavit and also a certificate about his having solemnized the marriage between the said two persons, but the photocopy of the affidavit and the certificate, which were filed, along with the complaint, had not been brought into the evidence on record by the complainant and it was in this background of facts that the accused had to bring the said affidavit and the said certificate to the evidence on record in order to draw attention of PW 1, Madhab Sarma, to the fact that neither in his affidavit nor in his certificate, he had stated, contrary to the evidence given by him, at the trial, that Saptapadi and horn were performed in the marriage, which was solemnized between the accused-respondent and Bina Sarma. 25. Coupled with the above, the factum of not bringing on record, the affidavit and the certificate aforementioned given by the complainant and appellant, gives, in the facts and attending circumstances of the present case, rise to an adverse inference against the complainant-appellant, the inference been that had these documents being produced on record, they would have weakened or even destroyed the case of the complainant-appellant and were, therefore, withheld and not brought on record. 26. Mr. 26. Mr. Bhattacharyya, learned Senior counsel, has also pointed out that present one is not a case, where there was no witness available inasmuch as Madhab Sarma, who is claimed to have acted as a priest has deposed that the complainant and Balin Bordoloi had gone to Dibrugarh to meet him (PW 1) and made inquiry about the marriage and that in the said marriage, Durlabh Sarma was also present, who was known to him. Thus, in the light of the evidence of Madhab Sarma, at least, Durlabh Sarma was present, but he has not been examined and no reason has been assigned for not examining him. 27. Similarly, points out Mr. Bhattacharyya, learned Senior counsel and rightly so, that the complainant (PW 2) has deposed that it was not she (complainant), but her brother, Hira Chang Kakoti, who had gone to Dibrugarh and made inquiry and came to learn about the fact that the accused had solemnized his marriage with Bina Sarma, at Dibrugarh, on 11.03.2003. There is, thus, glaring inconsistency between the evidence of PW 1 and PW 3 inasmuch as while PW 1 claims that the complainant and Balin Bardoloi went to Dibrugarh and made inquiry from him about the marriage, in question, the complainant claims that it was her brother, Hira Chang Kakoti, who went to Dibrugarh and made inquiry about the said marriage. 28. It is also in the evidence of the complainant (PW 2) that Sri Kamini Barua, a professor of Kanai College, informed them about the name of the priest, but even Kamini Barua has not been examined as a witness to support this assertion of the complainant. 29. It is further in the evidence of the complainant that her uncle, Jatin Bhagabati, informed them about the marriage of Bine Sarma with the accused, but also told them not to reveal his name. No such restriction was imposed by Kamini Barua, Yet Kamini Barua was not examined. Similarly, the complainant has deposed that she reported, in her colony, about the second marriage of her husband to her neighbours, namely, Dr. Ahmed, Chief Surgeon, Dr. Mahem, Dr. Hangsdhar Choudhury; but before they could come, the accused fled away. However, none of the complainant's neighbours, in the colony aforementioned, was examined as a witness. Similarly, the complainant has deposed that she reported, in her colony, about the second marriage of her husband to her neighbours, namely, Dr. Ahmed, Chief Surgeon, Dr. Mahem, Dr. Hangsdhar Choudhury; but before they could come, the accused fled away. However, none of the complainant's neighbours, in the colony aforementioned, was examined as a witness. The complainant further claims that the Vice Chancellor, Agricultural University, and the Principal of the College were informed, but none of these two persons was examined either. 30. While considering the submissions of Mr. Bhattacharyya that the contents of the photocopy of the affidavit (Ext. A) as well as the photocopy of the certificate (Ext. B) could have been treated as secondary pieces of evidence, it needs to be noted that Section 65 of the Evidence Act, 1872, makes it abundantly clear that secondary evidence may be given as regards existence or contents of a document, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved and when, after notice has been given, in terms of the provisions of Section 66 of the Evidence Act, 1872, to the possessor to produce the document, in question, the possessor does not produce the document. 31. In the case at hand too, therefore, the accused-respondent ought to have given notice, under Section 66 of the Evidence Act, 1872, for production of Ext. A and Ext. B in original and had the original affidavit and the certificate, in question, were not produced on record, the accused-respondent could have proved the contents of Ext. A and Ext. B as secondary pieces of evidence. This has, admittedly, not been done. 32. Notwithstanding, however, the fact that the contents of Ext. A and Ext. B were not proved in accordance with law, the fact remains that PW 3 is ex facie a witness, who could not have been described as a disinterested witness inasmuch as PW 3 has been, admittedly, a priest for the family of the complainant. The sole testimony of PW 3 was, therefore, not sufficient to prove the factum of marriage between accused-respondent and the said Bina Sarma, particularly, when the evidence, adduced by the complainant, as to who made inquiry from him (PW 3), with regard to the solemnization of marriage, in question, has not been proved satisfactorily and convincingly. The sole testimony of PW 3 was, therefore, not sufficient to prove the factum of marriage between accused-respondent and the said Bina Sarma, particularly, when the evidence, adduced by the complainant, as to who made inquiry from him (PW 3), with regard to the solemnization of marriage, in question, has not been proved satisfactorily and convincingly. Far from this, the evidence, adduced by the complainant, in this regard, is, as already pointed out above, contradictory and irreconcilable. 33. Under no circumstances, therefore, the evidence of PW 3, as rightly concluded by the learned trial Court, could have been treated as evidence of a wholly reliable witness. At best, the evidence of PW 3 can be treated as evidence of a witness, who is neither wholly reliable nor wholly unreliable. 34. Implicit reliance cannot be placed on the evidence of a witness, such as, PW 3 unless his evidence is corroborated by credible evidence, direct or circumstantial. However, though a large number of witnesses had attended the alleged solemnization of marriage between the accused and the said Bina Sarma, no witness was examined and no explanation has been offered, in this regard, by the complainant for their non-examination nor is there any explanation, plausible and convincing, discernible, in this regard, from the evidence on record. 35. Situated thus, the finding of acquittal, reached by the learned appellate Court, cannot be said to be so irrational that no rational person could have reached such a conclusion. 36. In the circumstances indicated above, it would not be legally permissible to interfere with the acquittal of the accused-respondent. 37. Because of what have been discussed and pointed out above, this appeal fails and the same shall accordingly stand dismissed. Send back the LCR.