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2019 DIGILAW 741 (GAU)

Madhu Das v. Satyabati Das D/o Bhogiram Das

2019-06-13

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Present revision is preferred against the judgment and order dated 23.04.2010, passed by the learned Session Judge, Sonitpur, Tezpur in Criminal Appeal No. 10 (S-2)/2006 whereby, the learned trial Court has affirmed the judgment and order dated 31.03.2006, passed by the learned Judicial Magistrate, 1st Class, Biswanath Chariali, Sonitpur, Tezpur, in CR Case No. 54/2004, whereby the present accused person was convicted under Section 493/417 of IPC and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs. 5000/- in default, to undergo rigorous imprisonment for a further period of one month, for the offence punishable under section 493 IPC and to pay a fine of Rs. 2000/- in default, to undergo rigorous imprisonment for a period of one month, for the offence under Section 417 IPC. 2. I have heard Mr. G. Baishya, learned counsel for the petitioner. None appears for the respondent. 3. Necessary brief fact of this case is that the complainant (respondent herein) filed a complaint before the learned Sub-Divisional Judicial Magistrate, Biswanath Chariali on the allegation that the accused, Madhu Das, developed love affairs with her pretending himself as an unmarried person and expressed his desire to marry her. As a result of which on 25.02.3003 she eloped with the accused person. The accused took her to the Shiva temple at Telengania village and put vermillion on her forehead and observed marriage formalities and accepted her as his wife. Thereafter, both of them started to live together as husband and wife and out of the wedlock she became pregnant. Further case of the complainant is that she saw a lady with two children in the house of the accused person, who was introduced as sister-in-law of the accused person, but later on she came to know that the lady is kept by the accused person as wife and said two children are illegitimate child of the accused person. As the complainant raised protest against such affair, the accused threatened her with dire consequence and thereafter he also tried to terminate her pregnancy by taking her in nursing home but somehow the complainant left the place and returned to her paternal house thereafter on 19.02.2004 she gave birth to a child. 4. On the basis of the said complaint, CR Case No. 54/2004 was registered. 4. On the basis of the said complaint, CR Case No. 54/2004 was registered. Upon recording the statement of the complainant, the court took cognizance under Section 493/417 IPC. 5. The accused persons faced the trial and denied the charge that were explained to him in the aforesaid sections of law. 6. To substantiate the allegations, the complainant examined four witnesses including herself whereas the defence examine none. At the conclusion of the trial, the learned trial court convicted the accused person (petitioner herein) under Section 493/417 of IPC and sentenced him as indicated above. The other accused, named in the complaint, Nirupama Das, was acquitted from the charge. 7. On appeal, so preferred by the respondent/complainant, the learned appellate court affirmed the judgment passed by the learned trial court and while maintaining the conviction, the sentence was modified. The accused was sentenced to simple imprisonment for six months for the offence under Section 493 IPC, maintaining the sentence regarding payment of fine in respect of other offence. 8. The petitioner still being dissatisfied with the order of the two forums, has preferred the present petition challenging the legality and validity of the order passed by the learned trial court. 9. The learned counsel for the petitioner has also contended that the learned trial court failed to take note of the evidence of the complainant/respondent herself and her conduct. 10. Relying on the decision of C.K. Venkatanarasimham vs. S. Jagadeesa, 1970 Cri. L.J. 1321 as well as the decision of this Court in Tseten Nagadup vs. Tsering Pema @ Sonam, (2001) 1 GLT 614 and Bapan Dey vs. State of Assam, (2015) 3 GLT 603, it has been submitted that there is absolutely no evidence to show that the marriage was performed by the petitioner and the cohabitation between the parties was made by any sort of dishonest intention on the part of the petitioner. In case of C.K. Venkatanarasimham (supra), it has been held that Section 493 of the IPC is not intended to punish one for contracting a marriage, which turns out to be illegal. But it only punishes a man for obtaining the body of the woman deceitfully, assuring her that he had acquired that right by jus mariti. In case of C.K. Venkatanarasimham (supra), it has been held that Section 493 of the IPC is not intended to punish one for contracting a marriage, which turns out to be illegal. But it only punishes a man for obtaining the body of the woman deceitfully, assuring her that he had acquired that right by jus mariti. Similarly, in the case of Bapan Dey (supra), it has been held that there is no offence under Section 493 IPC when the accused eloped with the victim and she was the legally married by accused-appellant. 11. On careful examination of the evidence on record, it is found that the complainant has examined herself and other three witnesses and they are not related with her and they are the person of the same locality. 12. In her evidence, the complainant, as PW-1, has stated that out of love and affection, she eloped with the accused and he married her in a Mandir and thereafter they started their conjugal life and as a result of which she got pregnant and then she came to know that the accused kept her sister-in-law as his wife and the two children born out of such illicit relationship. While the accused was asked about the matter then the accused threatened her and tried to terminate the pregnancy for which she fled away to her paternal house. 13. Admittedly, the complainant herself has not stated that the marriage was solemnized; deceitfully rather, she herself pleaded that she was legally married with the accused- petitioner and their long conjugal life also indicate that she was treated as wife by the accused person. So, there remains nothing to disclose that she was deceit to attract Section 493 of the IPC. More so, the witnesses that have been examined as PW-2, PW-3 and PW-4 have also categorically stated that the respondent/complainant was kept in his house as his wife and she was pregnant from his side. Their evidence is not supportive of the fact that the accused deceitfully married her. The said witnesses, in their evidence, has stated that they have no personal knowledge of the entire episode, but it was informed by the mother of the complainant that the accused eloped with the victim and tried to terminate her pregnancy. Their evidence is not supportive of the fact that the accused deceitfully married her. The said witnesses, in their evidence, has stated that they have no personal knowledge of the entire episode, but it was informed by the mother of the complainant that the accused eloped with the victim and tried to terminate her pregnancy. It appears that whatever the witnesses had stated is based on reporting of the mother of the complainant and the mother of the complainant is not examined by the complainant in support of her case. No other family member of the victim was also examined by her. 14. The witnesses of the complainant are also hearsay witness and none of them has supported allegation of the complainant that the accused-petitioner was married earlier and had a wife and children. In the entire evidence, it does not reveal that the accused pretended a lawful marriage with the victim; rather, it reflects that he has taken her out of love and affection and even conducted marriage as per Hindu rites. She was pregnant from his side. The conduct of the complainant itself appears to be doubtful as to why she chooses to return to her paternal house when the accused tried to terminate her pregnancy and such matter can be settled also. 15. The ingredients of both the offences under Section 493 of the IPC and under Section 417 IPC is dishonest intention on the part of the accused person, which is the crux of the matter and the same is not found in the present case. If the accused had dishonest intention to cheat the complainant then he had not married her as per Hindu rites and would not consume the marital life by taking her to his house. All these materials on record simply nullify the allegation of the complainant. She has failed to prove her case by fulfilling the ingredients of the offence under Sections 493 and 417 IPC. 16. It appears that the learned trial court as well as the appellate court has not appraised all aspect of the aforesaid matter and has passed the order of conviction only on the basis of the testimony of the victim, whereas the same is not at all supported by her own witnesses. 16. It appears that the learned trial court as well as the appellate court has not appraised all aspect of the aforesaid matter and has passed the order of conviction only on the basis of the testimony of the victim, whereas the same is not at all supported by her own witnesses. The non-examination of the family members to support the contention is a serious lapse on the part of the prosecution, which are not considered by the courts below. The witnesses that has been examined, have no direct or personal knowledge about the affairs and they even failed to prove the material allegation of the complainant that the accused person dishonestly took her away; rather, they have firmly established that the accused person has kept respondent/complainant as his wife, in his house and she was also pregnant out of such wedlock. That being so, the essential ingredient is not at all proved. The decision of the learned trial court as well as the appellate court is vitiated for non-examination of all material aspect of the matter for which decision rendered by the learned court below is not sustainable in the eye of law. 17. Resultantly, the revision is allowed and the impugned judgment and order passed by the trial court and the appellate court is hereby set aside and quashed. The petitioner is set at liberty forthwith. 18. Send back the LCR.