JUDGMENT & ORDER : 1. Heard Mr. D.C. Saha, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned PP along with Mr. J. Debbarma, learned counsel appearing for the State. 2. By means of this petition filed under Section 401 of the Cr.P.C., the petitioner has challenged the judgment dated 31.01.2014, delivered in Criminal Appeal No. 04(1) of 2014 by the Sessions Judge, North Tripura Judicial District, Kailashahar. 3. By the said judgment dated 09.02.2012, the judgment of conviction dated 17.01.2013 delivered in GR 335 of 2011 passed by the Chief Judicial Magistrate, North Tripura Judicial District, Kailashahar, as it then was, has been affirmed and the appeal against the said judgment dated 17.01.2013 is dismissed. 4. The prosecution case is rooted in the ejahar, filed by Chandani Debbarma (PW-1) on 28.10.2011 revealing that after her marriage with the petitioner which was solemnised on 14.02.2010 as per the Tribal Customary rites and ceremonies, she lived and cohabited with the petitioner at Sidhai, West Tripura in her matrimonial home and after that they shifted to Sadaicherra in her paternal house.There the petitioner demanded a sum of Rs.40,000/- for purchasing a motor bike and when (PW-1) expressed her inability to bring that amount from her parents, she was subjected to physical and mental torture. On 14.10.2011, the petitioner mercilessly assaulted her. The petitioner was a jawan of TSR 13 BN. 5. Based on the said ejahar, Kumarghat P/S Case No. 89/2011 under Section 498A of the IPC was registered and taken up for investigation. The final police report as was filed after completing the investigation found prima facie materials to proceed by way of trial under Section 498A/494 of the IPC as it revealed during investigation that the petitioner contracted second marriage with another tribal lady. On taking cognizance, the charge against the petitioner was framed under Section 498A and 494 of the IPC separately. 6. To substantiate the charge, prosecution adduced five witnesses including the victim and the investigating officer (PW-5). The petitioner was also examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the evidence as led by the prosecution. 6. To substantiate the charge, prosecution adduced five witnesses including the victim and the investigating officer (PW-5). The petitioner was also examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the evidence as led by the prosecution. On appreciation of the evidence, the trial court (CJM, North Tripura Judicial District, Kailashahar) returned the finding of conviction against the petitioner under Section 498A of the IPC but the petitioner was discharged from the criminal liability under Section 494 of the IPC. Thereafter, the petitioner filed an appeal against the judgment dated 17.01.2013 under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, North Tripura Judicial District, Kailashahar, as it then was, being Criminal Appeal No. 04(1) of 2013. The said appeal was dismissed as stated by the impugned judgment dated 31.01.2014 holding that there was no infirmity in the judgment of the trial court. 7. Mr. D.C. Saha, learned counsel appearing for the petitioner has submitted that there is no evidence that the petitioner and PW-1 were married legally and as such, they cannot be called husband and wife. In this regard, Mr. Saha, learned counsel has submitted that the statements of PW-1, 3 and 4 are inadequate to establish the marriage between the petitioner and PW-1. Mr. Saha, learned counsel has further submitted that since the prosecution has realized that there is no evidence in respect of the marriage between the petitioner and PW-1,while the petitioner filed an appeal in the court of the Sessions Judge, North Tripura Judicial District, Kailashahar, after its admission the state filed one application under Section 391 of the Cr.P.C. for adducing additional evidence. The additional evidence, from their bare perusal it would be apparent, was advanced with object, according to Mr. Saha, learned counsel appearing for the petitioner, to fill up the lacuna in the prosecution case, not for any other purpose. CW-1, father of PW-1, who was adduced as the witness in terms of Section 391 of the Cr.P.C., has stated about the incidence of marriage and harassment on unlawful demand. CWs- 2 and 3 have almost followed the same suit. That apart, Mr. CW-1, father of PW-1, who was adduced as the witness in terms of Section 391 of the Cr.P.C., has stated about the incidence of marriage and harassment on unlawful demand. CWs- 2 and 3 have almost followed the same suit. That apart, Mr. Saha, learned counsel has brought to the notice of this court that one document which was not brought on the evidence with due notice to the petitioner and the said document styled as the certificate of marriage has been substantively used to return the finding that there subsisted the marriage between the petitioner and PW-1. Mr. Saha, learned counsel has referred the following paragraph from the impugned judgment dated 09.02.2012 delivered in Crl. App. 04(1) of 2013 which is extracted for illustration : "10. Prosecution side submitted one marriage certificate of the victim and the appellant before this Court, which shows that at the time of registration of the marriage the date of marriage was shown as 03-07-2009, but according to the prosecution witnesses, marriage ceremony was performed on 14-02-2010. In this backdrop, whether the marriage of the victim with the appellant can be believed or not, is a fare question to be determined. I have already discussed and decided in earlier paragraphs that the prosecution witnesses successfully proved the marriage ceremony of the victim with the appellant. At the time of registration of the marriage the presence of both the parties is required and they have to put their signatures. The date of registration was 28- 10-2009 and according to the prosecution case the marriage ceremonies were performed on 14-02- 2010. I consider the marriage certificate as a public document. The certificate is isued on the basis of oral statement of the parties. According to this marriage certificate, registration was done earlier than the ceremonial functions. Meaning thereby, at the time of registration of the marriage necessary conditions of performance of marriage were not fulfilled, rather those necessary ceremonies were performed after registration of the marriage. Now, whether a valid marriage is sine-quo-non to attract the ingredients of section 498A IPC I profitably refer to a decision of Hon'ble the Supreme Court of India, in Koppisetti Subbharao, alias Subhramoniam Vrs. Now, whether a valid marriage is sine-quo-non to attract the ingredients of section 498A IPC I profitably refer to a decision of Hon'ble the Supreme Court of India, in Koppisetti Subbharao, alias Subhramoniam Vrs. State of U.P., reported in AIR 2009 S.C 2684 , wherein Hon'ble the Supreme Court was pleased to examine the ingredients and objects of enacting 498A and 304B IPC and was pleased to decide that the legitimacy of the marriage itself is not the main thrust behind section 498A or 304B IPC. Hon'ble the Supreme Court was pleased to hold that it would be appropriate to construe the expression "husband" employed in section 498A to cover a person who enters into the marital relationship and under the colour of such proclaimed status of husband subjects the woman concerned to cruelty, because the legislative intention was to curb the evil of torture and harassment to woman who enters into the marital relationship with a person and later on becomes a victim and that person cannot be allowed to take the shelter behind a smoked screen to contend that since there was no valid marriage the question of cruelty as defined in section 498A IPC is not attracted." 8. To bolster his submission, Mr. Saha, learned counsel has relied on a decision of the apex court in Ashok Tshering Bhutia vs State of Sikkim reported in AIR 2011, SC 1363 where the apex court while considering the scope and ambit of Section 391 of the Cr.P.C. has observed as under : "15. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887 ; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630 ; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120 ; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294 ; Zahira Habibulla H.Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 ; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352 ). 16. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal & Anr., AIR 1987 SC 1321 , dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....." 18. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C.cannot be pressed into service in order to fill up lacunae in the prosecution's case. T he apex court in ambiguity has stated that the additional evidence can be taken at the appellate stage in the incidental circumstances to remain or ask whether the circumstances so harassed in the public interest. Generally such exercise to have formerly proof of the documents which to made the ends of justice further cannot be proceed with the service nor to fail in the prosecution case." [Emphasis added] The apex court in an unambiguous term had stated that the additional evidence can be taken at the appellate stage in exceptional circumstances to remove an irregularity where the circumstances so warrant in the public interest. Generally such power is exercised to have a formal proof of the documents etc. Provisions of Section 391 of the Cr.P.C. cannot be invoked in order to fill up the lacuna in the prosecution's case. 9. Mr. Generally such power is exercised to have a formal proof of the documents etc. Provisions of Section 391 of the Cr.P.C. cannot be invoked in order to fill up the lacuna in the prosecution's case. 9. Mr. A. Ghosh, learned PP has submitted that from the evidence of PW-1, PW-3 and PW-4 it would be apparent that the petitioner was in a marital relation and they were living in the same house may be not in the same room and there is no attempt by the defence to contradict PW-1's statement in this regard. In the statement, PW-1 (Chandani Debbarma) has further stated that she was subjected to torture both mentally and physically and was assaulted for realising the demand of Rs. 40,000/-. As she could not fulfill the demand on 14.10.2011, she was subjected to severe torture by her husband and she was forced by her husband to leave his house. Then she took shelter in the house of her father at Sadaipara. PW-1 has categorically stated that the incident had taken place at Sadaipara. In cross-examination according to Mr. Ghosh, learned PP, PW-1 has categorically stated how her marriage was solemnized as per rites and customs and one Kanai Debbarma was the Uchai (Priest). In the cross-examination, she has further stated that PW-1 and the petitioner started staying in a separate rooms within the same house of her father and they had a common courtyard. Not a single line in the cross examination has been invested to question the incidence of marriage of the petitioner to PW-1. Mr. Ghosh, learned PP has further submitted that from the statements of PW-3 and PW-4 it would be again apparent that both these witnesses have stated that the marriage was solemnized between the petitioner and PW-1 and they had participated in the ceremony. In the cross examination, PW-3 has further stated that the marriage between the parties was solemnized in the house of the informant and Kanai Debbarma who conducted the marriage. Hemanta Debbarma who is the elder brother of the petitioner also attended the marriage. The petitioner resided in the house of the informant since the marriage as "Ghar Jamai". But there is no single suggestion to deny the incidence of marriage. Hemanta Debbarma who is the elder brother of the petitioner also attended the marriage. The petitioner resided in the house of the informant since the marriage as "Ghar Jamai". But there is no single suggestion to deny the incidence of marriage. Similarly, PW-4 has stated about the inicidence of marriage and in the cross-examination, he had categorically stated that he attended the marriage of the petitioner and PW-1 and Kanai Debbarma was the priest of that marriage. There was not even a single suggestion from the defence questioning the marriage. 10. From perusal of the records, it appears that the appellate court allowed the prosecution to adduce three witnesses. One of the witnesses namely Chitta Ranjan Debbarma, CW-1 is the father of PW-1 who has almost replicated the statement of PW-1. He has repeated the statement which he had made to the Investigating officer. But in the cross-examination of CW-1, the defence had suggested that no social marriage was solemnized between his daughter and the petitioner. But that suggestion was squarely denied by CW-1. CW-2, Smt. Pramila Debbarma has claimed to be the witness of the marriage between PW-1 and the petitioner. To such statement, the defence advanced a suggestion that no marriage was solemnized between the petitioner and PW-1 but that suggestion was squarely denied by CW-2. CW-3, Janmejoy Debbarma was the vice-chairman of Sadaicherra ADC village committee. He has categorically stated that he attended the marriage ceremony on 04.12.2010 and had the lunch there, prior to the marriage ceremony. Thereafter the petitioner and PW-1 had started living in the paternal house of Chandani by constructing a dwelling hut. He has also stated that after some months, their marital relation got strained. In the cross-examination, he had stated that one Kanai Debbarma was the priest of the marriage but regarding this incidence of marriage there was no suggestion to deny. However, presence of CW-3 had been questioned by advancing suggestions. 11. Having regard to the rival contentions as advanced by the learned counsel for the parties, this court has scrutinized the records for appreciating the grounds of objection as raised in this petition. It is apparent on the face of the record that additional evidence was adduced for purpose of meeting the standard, as regard to solemnization of marriage as well as the incidence of contracting second marriage by the petitioner. It is apparent on the face of the record that additional evidence was adduced for purpose of meeting the standard, as regard to solemnization of marriage as well as the incidence of contracting second marriage by the petitioner. But on perusal, it appears that nowhere it has been reflected that how the certificate of marriage has become part of the records of evidence, except in the Para-10 of the judgment, which shed some light in this regard. But according to this court, the appellate court has completely deviated from the standard procedure of law inasmuch as by springing a surprise, no court shall consider a piece of evidence or without affording the opportunity to the accused to contest the evidence. Hence, consideration of the certificate of marriage was highly improper. Another question that falls for consideration is that whether the appellate court was right in giving leave to the state to adduce further evidence or whether the adduction of three witnesses in the appellate stage was merely to fill up the lacuna of the prosecution case. It appears from the statement of CW-1 that he was cited by the prosecution as the witness but was not examined in the trial. Being the father of PW-1, he was considered to be a formal witness as to the incidence of marriage. Since his statement was part of the police papers which was supplied to the petitioner under Section 207 of the Cr.P.C., it cannot be held that the accused person, the petitioner herein, was taken by surprise. 12. Having regard to the decision of the apex court in Ashok Tshering Bhutia vs State of Sikkim, even if the additional evidence is entirely removed from consideration, it would appear before this court that PW-1, who has claimed that she was married to the petitioner was never confronted with the incidence of marriage. Unless her statement is challenged and is not supported by other witnesses in respect of incidence of marriage, it cannot help the defence. Incidence of marriage so far in the context of the prosecution under Section 498A, the appellate court has rightly observed that it is not the strict proof of marriage but it is the semblance of marriage that has to be proved by the prosecution. In Koppisetti Subbharao, alias Subhramoniam Vrs. Incidence of marriage so far in the context of the prosecution under Section 498A, the appellate court has rightly observed that it is not the strict proof of marriage but it is the semblance of marriage that has to be proved by the prosecution. In Koppisetti Subbharao, alias Subhramoniam Vrs. State of U.P. reported in AIR 2009 SC 2684 , the apex court has observed that in order to decide the legitimacy of marriage, the main diction to construe is the expression "husband" employed in Section 498A. "Husband" is a person who enters into a marital relationship and under the colour of such proclaimed status of husband subjects the woman concerned to cruelty, because the legislative intention is to curb the evil of torture and harassment to woman who enters into the marital relationship with a person and later on she becomes victim of that person. When prosecuted, that person cannot be allowed to take shelter behind a smoke screen to contend that since there was no valid marriage, the question of cruelty as defined in Section 498A IPC is not attracted. 13. On appreciation of the evidence on excluding the evidence recorded as the additional evidence, this court is satisfied that the semblance of marriage has quite emphatically been established by the prosecution. The defence has even not denied that the petitioner had lived in the same house and on the face of the statement made by PW-1 which has been supported by PW-3 and 4, that evidence relating to marriage cannot be just brushed aside, inasmuch as according to Mr. Saha, learned counsel appearing for the petitioner, these are not adequate evidence to hold that there existed a legitimate marriage. In terms of the decision of the apex court in Koppisetti Subbharao, alias Subhramoniam Vrs. State of U.P, this court finds that by way of adducing adequate evidence, the prosecution has established that there existed the marital relation and from the evidence this court finds that there was cruelty and cruelty has been sufficiently established. Moreover both the courts below have come to a concurrent finding of fact that the petitioner harassed PW-1 on unlawful demand and that constitutes the cruelty within the meaning of Section 498A of the IPC. Moreover both the courts below have come to a concurrent finding of fact that the petitioner harassed PW-1 on unlawful demand and that constitutes the cruelty within the meaning of Section 498A of the IPC. As such, there is no infirmity in the judgment of the trial court and the appellate court has correctly affirmed the judgment of the trial court though some of his appreciations have been held not proper, but that would not create any embargo in affirming the finding of conviction. 14. The petitioner has been sentenced to suffer rigorous imprisonment for 1 (one) year with a fine of Rs. 5000/- with default imprisonment under Section 498A of the IPC. Considering the age of the petitioner this court is of the view that the ends of justice would be satisfied if the rigorous imprisonment is reduced to 6 (six) months with a fine of Rs. 5000/- with default imprisonment i.e. simple imprisonment for two months in default of payment of fine. Accordingly, the sentence stands modified. The petitioner shall surrender to the Chief Judicial Magistrate, Unokati Judicial District, Kailashahar within a month from today else the appropriate coercive action shall be taken against him to make him suffer the sentence in terms of this order. Hence this petition stands partly allowed. Send down the records forthwith.