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Mon Mayur Sharmah And Anr vs The State Of Assam And Anr on 21 November, 2019

Page No.# 1/15

GAHC010105542010

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P. 13/2010

1:MON MAYUR SHARMAH and ANR.
S/O LAKSHYESHWAR SHARMAH,

2: SMTI MONALISHA SHARMA @ POREE SHARMAH
W/O SRI MON MAYUR SHARMAH BOTH R/O POHUMORA GAON
P.O. BAMUNPUKHURI
P.S. TEOK
DIST. JORHAT
ASSAM

VERSUS

1:THE STATE OF ASSAM AND ANR

2:SMTI SANDHYA RANI BHATTACHARJEE
D/O SRI NARAYAN BHATTACHARJEE
R/O BONAI GAON
P.O. BONAI
P.S. TEOK
DIST. JORHAT
ASSAM

Advocate for the Petitioner : MR.S BHARALI

Advocate for the Respondent : MR.C CHOWDHURY

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BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR

JUDGMENT ORDER
Date : 21-11-2019

Heard Mr. N. Dutta, learned Senior Counsel, assisted by Mr. S. Bharali, learned
counsel for the petitioners. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor,
Assam appearing for the respondent No. 1/State and Mr. A. Goswami, assisted by Mr. N.
Chakraborty, learned counsels for the respondent No. 2/complainant victim.

2. This revision petition under Sections 401 read with Section 397 of the Cr.P.C. is
preferred against the judgment and order dated 23.12.2009 passed by the learned Sessions
Judge, Jorhat in Criminal Appeal No. 17/2009 dismissing the appeal preferred by the
accused/petitioners and upholding the judgment and order, dated 30.03.2009 passed by the
learned Chief Judicial Magistrate, Jorhat in C.R. Case No. 1671/2005 convicting the
accused/petitioner No. 1 (Sri Mon Mayur Sharma) under Section 494 of the IPC and the
accused/petitioner No. 2 (Smti. Poree Sharma) under Sections 494/Section109 of the IPC and
sentenced the petitioner No. 1 to undergo Rigorous Imprisonment for 7 (seven) years and to
pay fine of Rs. 50,000/- (rupees fifty thousand) only, in default to undergo simple
imprisonment for 1(one) year and accused/petitioner No. 2 to undergo simple imprisonment
for 6(six) months and to pay a fine of Rs. 1,000/- (rupees one thousand) only, in default to
undergo simple imprisonment for 1(one) month.

A) Complaint:

3. The allegations, in brief, as detailed in the complaint, dated 18.11.2005, filed in the
Court of learned Chief Judicial Magistrate, Jorhat, inter-alia, revealed that in the year, 2004,

the complainant (victim), aged about 19 years, was studying in 1 st year degree course and
the petitioner No. 1, who was a teacher in Bamunpukhuri High School, served as her private
tutor. The complainant felt sympathetic towards the petitioner No. 1, learning from him about
his wife’s (the petitioner No. 2) physical incapacity and secretly made a proposal to marry her
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and stated that his wife, the petitioner No. 2 has consent to their marriage. On request of the
petitioner No. 1, the complainant accompanied him to his house and she talked to the
petitioner No. 2, who persuaded the complainant to marry her husband- the petitioner No. 1.
On 31.12.2004, a registered marriage was executed between the petitioner No. 1 and the
complainant, where the petitioner No. 2 stood as a witness. Thereafter, both of them
consummated their marriage, but after some days as the petitioner No. 1 started to subject
her to cruelty, physical and mental, on demand for dowry, she left their (petitioners) home,
on 23.09.2005, and filed the complaint seeking justice.

B) Trial Conviction:

4. Based on the above complaint, C.R. Case No. 1671/2005 was registered in the Court of
the learned Chief Judicial Magistrate, Jorhat. After making necessary inquiry under Sections
200/Section202 Cr.P.C., the learned Sub-Divisional Judicial Magistrate having found prima facie
material took cognizance of the offences under Sections 366/Section376/Section493/Section494/Section417/Section34 of the IPC
against the accused/petitioners and accordingly, issued summons to them. On appearance of
the accused/petitioners and as the offences under Sections 366/Section376 of the IPC are exclusively
triable by the Court of Sessions, by an order dated 18.05.2006, the case was committed to
the Court of learned Sessions Judge for trial. Thereafter, the case was registered as Sessions
Case No. 38 (JJ)/2006 in the Court of learned Sessions Judge, Jorhat. After hearing the
learned counsels for both the sides and scrutiny of the case records, the learned Sessions
Judge, Jorhat having found prima facie material to proceed under Sections 496/Section493 of the
IPC against the accused/petitioner No. 1 and under Sections 496/Section493/Section109 of the IPC against
the accused/petitioner No. 2 framed charges accordingly and transferred the case to the
Court of learned Chief Judicial Magistrate, Jorhat as per Section 228 (a) SectionCr.P.C. for trial. The
learned Chief Judicial Magistrate, Jorhat after conclusion of trial, held the accused/petitioners
guilty under the aforesaid Sections of the SectionIPC and convicted and sentenced as stated above
vide the impugned judgment and order dated 30.03.2009 passed in C.R. Case No.
1671/2005. Thereafter, the accused/petitioners preferred an appeal against the aforesaid
judgment and order of conviction passed by the learned Chief Judicial Magistrate, Jorhat to
the Court of learned Sessions Judge, vide Criminal Appeal No. 17/2009 where the conviction
and sentence aforementioned passed by the learned Chief Judicial Magistrate, Jorhat was
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affirmed. The present Revision Petition is preferred against the aforesaid judgments and
orders of conviction of the accused/petitioners.

C) Arguments:

5. Mr. N. Dutta, learned Senior Counsel for the petitioners, inter-alia, contended that it is
a settled law that to prove the charge of bigamy, it is necessary to prove that not only the
first marriage of the accused was validly solemnized, but also the impugned second marriage
has been validly solemnized, so far the rituals or legal formalities are concerned. Mr. Dutta
further contended that merely because the man and the woman live together for long, it
cannot be automatically presumed to be a valid marriage for the purpose of holding of an
accused guilty of the charge for bigamy and in this context, even admission of the second
marriage by the accused would not be enough, without evidence of observance of the
essential ceremonies or customary rites to constitute a valid marriage. Referring to Section 50
of the Evidence Act, Mr. Dutta contended that it is specifically laid down in the proviso to the
said Section that opinion evidence on relationship cannot be sufficient to prove a marriage in
prosecutions for bigamy and adultery as in those cases, stricter proof would be required.
Therefore, if the validity of the first marriage is not proved in accordance with law, the proof
of the second marriage is irrelevant. Mr. Dutta, learned Senior counsel for the petitioners,
emphatically contended that in criminal proceedings, the onus is always on the prosecution to
prove, beyond reasonable doubt, the guilt of the accused, which never changes and as such,
it being the solemn duty of the prosecution to prove its own case, therefore, falsity or
weakness of the defence case is immaterial. Mr. Dutta also contended that mere silence or
failure on the part of the defence to challenge specifically the allegation of bigamy in cross-
examination of the prosecution witnesses, does not amount to admission nor the opinion of
the people regarding the relationship is sufficient to prove a charge of bigamy. So far the
charge of abetment of bigamy by the petitioner No. 2 is concerned, Mr. Dutta contended that
although the combined effect of Section 17 of the Hindu Marriage Act and Section 494 of the
IPC is that when a person contracts a second marriage, after coming into force of the said
Act, while the first marriage is subsisting, he commits the offence of bigamy and therefore,
mere consent of the petitioner No. 2 or any other person(s) present at the second marriage
for holding the second marriage cannot constitute the offence of abetment unless it is proved
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that they had within their knowledge that the first marriage of the accused/petitioner No. 1
herein was valid and subsisting, which material legal aspect is lacking in the instant case. Mr.
Dutta also focused on omission on the part of the learned courts below to look into the
applicability of Section 360 Cr.P.C. or Section 4 of the Probation of Offenders Act, 1958, which
is a mandatory provision, by way of releasing on probation postponing the sentence after
conviction, after calling for a report of the Probation Officer and consideration thereof as
required under sub-Section (2) of Section 4 of the Act as the offence under Section 494 of
the IPC is not punishable with death or imprisonment for life. Mr. Dutta, however, contended
that in the State of Assam, Section 360 Cr.P.C. has no application as the provisions of the
SectionProbation of Offenders Act are made applicable in view of the fact that the aforesaid Section
of SectionCr.P.C. and the provisions of the said Act are significantly different, because under Section
8 (1) of the SectionGeneral Clauses Act, where the provisions of the said Act have been brought into
effect, Section 360 Cr.P.C. is wholly inapplicable. Summarising the evidence on record and the
relevant provisions of laws applicable thereto, Mr. Dutta stressed that the ingredients of the
offence of bigamy being not proved beyond all reasonable doubt, the petitioners be acquitted
of the charge setting aside the impugned judgment and orders.

6. Per contra, Mr. R. J. Baruah, learned Additional Public Prosecutor, contended that in
this case, the ingredients of the offence of bigamy is proved by reasons of abundance of
prosecution evidence, and admission of the petitioner No. 1 in his statement under Section
313 Cr.P.C. in regard to the first and second marriages. Mr. Baruah vehemently contended
that D.W. 1, the doctor, has proved medical certificate vide Ext. ‘Ka’ issued in favour of the
petitioner No. 2 and D.Ws 5 and 8 proved the registration of the marriage vide Exhibits 2 and
3 between the petitioner No. 1 and the victim woman.

7. Mr. A. Goswami, the learned counsel appearing on behalf of the respondent No. 2/the
victim woman, contended that only disputed questions of law and not facts can be
entertained by this Court and reappreciate the evidence sitting as a revisional Court. Mr.
Goswami further contended that as the defence did not raise any question or put any
suggestions pertaining to the second marriage to the prosecution witnesses in their cross-
examinations, their evidence whatever in examination-in-chief remained undisputed in view
of admission of the petitioner No. 1 in 313 statement, which need not be proved under
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Section 58 and when relevant facts are proved beyond reasonable doubt by oral evidence of
the prosecution witnesses under Section 59 of the Evidence Act. According to Mr. Goswami,
the learned counsel for the respondent No. 2, the instant case is of serios nature as the
petitioner No. 1, who was a private tutor of the victim woman, enticed her, who at the
relevant time was a minor being aged about 14 years, to enter into marriage with him, who
was already married and having two daughters as are revealed from the evidence. Therefore,
Mr. Goswami contended that opinion on relationship is very much relevant in the case as
provided in Section 50 of the Evidence Act and that in the facts and circumstances proved in
the case, the benefit of Section 4 of the Probation of Offenders Act, 1958 cannot be extended
to the petitioners.

8. I have given due consideration to the above arguments advanced by the learned
counsel for both the sides and perused the case records.

9. It needs to be mentioned that ordinarily in exercise of revisional jurisdiction, it is not
open to interfere with the findings on facts of the courts below by re-appreciating the
evidence in detail. However, the revisional jurisdiction being supervisory in nature, it is often
necessary in the interest of justice to look into the evidence on record to assign cogent
reasons while accepting or upsetting the findings on facts of the courts below.

D) Statutory Provisions- an analysis:

10. Now, before going to re-look into the evidence on record, I feel it apposite to look at
the statutory provisions of Sections 494 and Section109 of the IPC, which run as hereinbelow:

“494. Marrying again during lifetime of husband or wife. -Whoever, having a
husband or wife living, marries in any case in which such marriage is void by reason of
its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine.

Exception. -This section does not extend to any person whose marriage with
such husband or wife has been declared void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband
or wife, if such husband or wife, at the time of the subsequent marriage, shall have
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been continually absent from such person for the space of seven years, and shall not
have been heard of by such person as being alive within that time provided the person
contracting such subsequent marriage shall, before such marriage takes place, inform
the person with whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.”

“109.Punishment of abetment if the act abetted is committed in consequence
and where no express provision is made for its punishment.-

Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the
punishment of such abetment, be punished with the punishment provided for the
offence.

Explanation. – An act or offence is said to be committed in consequence of
abetment, when it is committed in consequence of the instigation, or in pursuance of
the conspiracy, or with the aid which constitutes the abetment.”

11. So far the above offence of Section 109 is concerned, I further feel it apposite to look
at Sections 107 and Section108 of the IPC, which run as follows:

“107. Abetment of a thing. – A person abets the doing of a thing,

who-

First. – Instigates any person to do that thing; or

Secondly. – Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. – Intentionally aids, by any act or illegal omission, the doing of that
thing.

Explanation 1. – A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be done is said to instigate the
doing of that thing.”

“108. Abettor. A person abets an offence, who abets either the commission of
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an offence, or the commission of an act which would be an offence, if committed by a
person capable by law of committing an offence with the same intention or knowledge
as that of the abettor.

Explanation 1. – The abetment of the illegal omission of an act may amount to
an offence although the abettor may not himself be bound to do that act.

Explanation2. – To constitute the offence of abetment it is not necessary that
the act abetted should be committed, or that the effect requisite to constitute the
offence should be caused.

Explanation 3. – It is not necessary that the person abetted should be capable
by law of committing an offence, or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge.

Explanation 4. – The abetment of an offence being an offence, the abetment of
such an abetment is also as offence.”

12. In Bhaurao Shankar Lokhande Vs. State of Maharashtra, reported in1965 AIR (SC)
1564, the Apex Court while interpreting the provisions of Section 494 of the IPC held:

“Prima facie, the expression ‘whoever…………….marries’ must mean
‘whoever……………marries validly’ or ‘whoever………marries and whose marriage is
a valid one if the marriage is not a valid one, according to the law applicable to the
parties, no question of its being void by reason of its taking place during the life of the
husband or wife of the person marrying arises. If the marriage is not a valid marriage, it
is no marriage in the eye of law. The bare fact of a man and a woman living as
husband and wife does not, at any rate, normally, give them the status of husband and
wife even though they may hold themselves out before society as husband and wife
and the society treats them as husband and wife.”

“5. The word ‘solemnize’ means, in connection with a marriage, to celebrate the
marriage with proper ceremonies and in due form, according to the Shorter Oxford
Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed
with proper ceremonies and due form’ it cannot be said to be ‘solemnized’.”

13. The ratio of Bhaurao Shankar Lokhande (Supra) was reiterated in the judgment
rendered in Kaiiwal Ram Vs. Himachal Pradesh Administration, reported in 1966 AIR (SC)
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614, wherein the Apex Court held that “in a bigamy case, the second marriage as a fact, that
is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by
the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy
case.”

14. In Boloram Baruati Vs. Mt. Surjya Baruati, reported in 1969 AIR (Assam) 90, relying
on the above two judgments of the Apex Court, it was observed that in order to hold an
accused guilty of the offence of bigamy, it must be proved by evidence that the marriage in
question was solemnized in accordance with law and in the absence of any evidence in that
regard, mere admission of marriage by the accused will not satisfy the ingredients of the said
offence. In Priya Bala Ghosh Vs. Suresh Chandra Ghosh, reported in 1971(1) SCC 864, the
Apex Court reiterated the principles laid down in the earlier decisions referred to above and
others, and observed that in prosecution for bigamy, the second marriage has to be proved as
a fact and that admission of marriage by an accused is no evidence of marriage for the
purpose of proving an offence of bigamy or adultery.

15. In Promod Thakuria Anr. Vs. State of Assam, reported in 2008 4 GLR 462, this
Court in para 16 of the judgment observed thus-

“A careful reading of section 494, SectionIPC makes it clear that in order to make a
person guilty of an offence under Sectionsection 494, SectionIPC, what has to be proved is that the
second marriage would have been valid, but for the fact that the person, undergoing
the marriage, in question, (i.e., the second marriage) was already married. It logically
follows that if the second marriage has to be void, the first marriage must be legally
valid. If the first marriage is not legally valid, the question of the second marriage being
void does not arise at all. Hence, the second marriage too must have all the
ingredients of a valid marriage, for, when the second marriage is not valid or according
to law, it would, otherwise, also be void. Consequently, no offence, in such a case, can
be said to have been made out under Sectionsection 494, SectionIPC.”

16. Again, in Krishnakanta Nag Vs. State of Tripura, reported in 2012 (5) GLR 640, this
Court held-

“20……….unless prosecution proves its case on its own, it cannot erect the
edifice of its case on the statement of the accused person, made under Sectionsection 313,
SectionCr.PC. alone, same being not evidence as understood in legal parlance. However,
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implication of such an admission would be different altogether when the prosecution is
found to have proved its case on its own since in such a case, an admission, made by
the accused person under Sectionsection 313, SectionCr.PC., may help the prosecution to fortify its
claim in a particular case more and more.”

17. In Gopal Lal Vs. State of Rajasthan, reported in AIR 1979 SC 713, the Apex Court
succinctly illustrated the essential ingredients of the offence under Section 494 of the IPC as
given below-

“3. The essential ingredients of this offence are:

(1) that the accused spouse must have contracted the first marriage.

(2) that while the first marriage was subsisting the spouse concerned must
have contracted a second marriage and

(3) that both the marriages must be valid in the sense that the necessary
ceremonies required by the personal law governing the parties had been
duly performed.”

18. On perusal of the provision of Section 494 of the IPC, it is revealed that in order to
prove the charge of bigamy, the complainant must prove (a) that the complainant had been
validly married to the accused; (b) that the accused contracted a second marriage during the
subsistence of the first marriage and (c) that both the marriages were valid and strictly
according to the law governing the parties. In other words, to constitute an offence of
bigamy, it is essential to prove that not only the first marriage was a valid marriage, but also
that the second marriage was also a valid marriage.

19. A reading of Sections 107 and Section108 show that the gist of the offence of abetment under
Section 109 of the IPC is the intention to aid commission of an offence. To speak it differently,
an abetment implies instigating any person to do a thing or engaging with one or more
persons in any conspiracy for doing of a thing if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing or intentional aid by any
act or illegal omission to the doing of that thing. The word ‘instigate’ literally means to
provoke, incite, urge on or bring about by persuasion to do anything and abetment, on the
other hand, may be by instigation, conspiracy or intentional aid as provided in the three
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clauses of Section 107 of the IPC. Therefore, in order to prove the charge of abetment of the
offence of bigamy by the prime accused person(s), it is absolutely necessary to prove the role
played by him or her in performance of the second marriage, during the subsistence of the
first valid marriage.

E) A Cursory Glance at the Evidence:

20. Now, in the context of the above requirements of law pertaining to the charges
brought against the revision petitioners, let us look to the evidence on record:

I. Marriage between the complainant and the petitioner No. 1: [Proved]

21. There is no dispute that the petitioner No. 1 contracted marriage with the complainant
(P.W. 1) Sandhya Rani Bhattacharjee by executing marriage under Section 13 of the Special
Marriage Act, 1954, on 31.12.2004, in the Office of the Marriage Officer at Jorhat. The oral
testimony of the prosecution witnesses supported this fact, while the petitioner No. 1/accused
in his statement under Section 313 Cr.P.C. indirectly admitted it. However, it is pertinent to be
mentioned that admission of marriage by the accused is no evidence of it for the purpose of
proving a marriage in a case of matrimonial offence.

22. On scrutiny of the evidence of P.W. 1 Sandhya Rani Bhattacharjee, the complainant
and victim woman, it is revealed that pursuant to love affairs/acquaintance for about five
years, she and the petitioner No. 1 entered into marital tie by executing marriage vide Ext. 1,
the certificate of Marriage, dated 31.12.2004. P.W. 2 Narayan Bhattacharjee, the father of
P.W. 1, P.W. 3 Nayan Moni Bhattacharjee, the brother of P.W. 1 and P.W. 4 Chinta Moni
Borthakur, an adjacent resident to the house of P.W. 1 corroborated the evidence of P.W. 1,
the complainant and victim, as a heresay witness.

23. Supporting the evidence of P.W. 1, P.W. 6, Prodip Rajkhowa and P.W. 7, Amrit Barua,
the attesting witnesses, recognized Ext. 2, the Declarations made by the bridegroom and the
bride at the time of registration of marriage and Ext. 3, the Certificate of Marriage, dated
31.12.2004, issued by the Marriage Officer, Jorhat. Further, P.W. 5 Ajit Borthakur, an U.D.
Assistant of the Office of the Marriage Officer, Jorhat and P.W. 8 Mahmood Ali Pathan, the
Sub-Registrar-cum-Marriage Officer, Jorhat testified, as a whole, to the contents of Ext. 1, the
Marriage Certificate, Ext. 2, the Declarations made by the petitioner No. 1 and P.W. 1, the
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complainant and victim, as well as the Marriage Certificate, all dated 31.12.2004.

24. Be it mentioned that a Marriage certificate once entered in the Marriage Certificate
Book of the Marriage Officer being the conclusive proof of marriage solemnized between the
parties under Section 13 of the Special Marriage Act, 1954, there can’t be any doubt to infer
that the petitioner No. 1 and the complainant entered into marital tie under the said Act on
31.12.2004, although it is noticed that the Marriage Registrar (P.W. 8) apparently waived the
period of thirty days’ mandatory notice provided in Section 16 of the Act. It is also further
noticed that the marriage solemnized under Section 13 of the Special Marriage Act was not
followed by the essential ceremonies recognized under Section 7 of the Hindu Marriage Act,
1955, but as the consummation of the marriage admittedly continued as husband and wife
for nearly 8/9 months, thereafter, it has to be presumed of a valid marriage for the purpose
of criminal trial.

II. Whether a second marriage during the subsistence of first marriage: [Disproved]

25. It may be reiterated that to prove bigamy, it is necessary to prove that not only the
earlier marriage has been validly solemnized, but also the impugned subsequent marriage has
been validly solemnized. Therefore, merely because the man and the woman live together
for long or admission of the second marriage by the accused is not sufficient.

26. On scrutiny of the evidence adduced by the complaint’s side, it appears that the
complainant P.W. 1 Sandhya Rani Bhattacharjee made the allegation of her marriage to the
petitioner No. 1, who had his first wife. The petitioner No. 2, based on her circumstantial
statement that in order to persuade her to contract the second marriage, the petitioner No. 1
stated that his wife/ the petitioner No.2 had no objection to their marriage and accordingly,
he arranged a meeting between her and his wife, on 01.12.2004 somewhere at Jorhat. In the
said meeting, P.W.-1 further deposed, the petitioner No. 2 expressed her consent to their
marriage due to her physical incapacity. According to P.W. 1, the petitioners No. 1 and 2 had
two daughters, but both of them pressurized her to contract marriage with the petitioner No.

1. She (P.W. 1) also stated that in connection with the incident, her father (P.W. 2) filed an
ejahar, whereupon Jorhat P.S. Case No. 01/05 (corresponding to G.R. Case No. 01/05) was
registered and in the said case, she gave her statement in Court and then voluntarily
accompanied with the petitioner No. 1 to their house and further, stayed there as husband
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and wife until she deserted their house on 23.09.2005 allegedly under the compelling
situation of cruelty perpetrated on her.

27. P.W. 2 Narayan Bhattacharjee, the father of P.W. 1, the complainant, stated that before
marrying his daughter, the petitioner No. 1was married to the petitioner No. 2 and out of their
wedlock, two female children were born. P.W. 3 Nayan Moni Bhattacharjee, the brother of the
complainant, corroborated the testimony of P.Ws 1 and 2, the sister (complainant) and father,
respectively.

28. P.W. 4 Chinta Moni Borthakur, an adjacent resident of P.Ws 1, 2 and 3, corroborated
their evidence.

29. Both the petitioners in their statements recorded under Section 313 Cr.P.C., pleaded
innocence and examined D.W. 1 Dr. Ajit Bora, the doctor of FRU at Teok in defence. In the
questionnaire put to both the petitioners, it is noticed that no question as to their first
marriage and children was specifically put, but laid emphasis on the marriage procedure,
when the marriage between the petitioner No. 1 and the complainant (P.W. 1) was executed.
Perusal of the evidence of D.W. 1, the doctor, shows that he issued the medical certificate,
dated 12.12.2004 vide Ext. ‘Ka’, based on the statement of the petitioner No. 2 to the effect
that she lost “interest in sexual intercourse etc. for the last 5 (five) years.”

30. A close scrutiny of the testimony of the complainant’s witnesses, it transpires that
there is consistent general statement attributing the marriage of the petitioner No. 1 with the
petitioner No. 2 before he contracted the prima facie second valid marriage with the
complainant (P.W. 1) and that out of their wedlock two female children were born. It is,
however, surprising to note that the names of the said two daughters of the petitioners are
not disclosed in evidence, although the complainant (P.W. 1) allegedly lived with them after
the purported second marriage for about 8-9 (eight-nine) months. It is also noticed that both
the petitioners were known to the family of P.Ws 1, 2 and 3 for several years as they were on
visiting terms as family friends. In their evidence and in the evidence of P.W. 4, their
neighbour, a general statement is made that both the petitioners were married at the time of
contracting their purported second marriage, but there is no whisper as to how their
solemnization of marriage had taken place. As such, as held in a catena of judgments of the
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Apex Court and of this Court, referred to above, the validity of their so called first marriage
cannot be inferred to have been proved in accordance with law so as to invalidate the
subsequent marriage between the petitioner No. 1 and the respondent No. 2/the complainant
(P.W. 1). It is also noticed that based on an F.I.R. filed by P.W. 2, the father of the
complainant, a case being G.R. Case No. 1/2005 was initiated at the Jorhat Court and in
connection with the said case, the statement of the respondent No. 2/complainant was
recorded in Court, but neither the said case record nor the statement was called for and
exhibited in the case. It is interesting to note that after her (D.W. 1) statement was recorded
in Court, the respondent No. 2/complainant returned to her matrimonial home indicating
thereby that she, who attained the age of majority (vide the complaint petition) had consent
to her marriage with the petitioner No. 1 and inclined to continue with the marriage with him.
There is no explanation on record as to why the records of G.R. Case No. 1/2005 and her
statement made therein in Court have been suppressed entailing a difficulty for this Court to
ascertain the actual facts of the case. In such a backdrop of facts, the mere statement of the
respondent No. 2/complainant to the effect that at the instance of the petitioner No. 1, she
appeared before the petitioner No. 2, who in turn, persuaded her to enter into marriage with
the petitioner No. 1, who is stated to be her husband, undoubtedly cannot amount to
abetment of a second marriage, when the status of the petitioner No. 2 as the first wife of
the petitioner No. 1 has not been proved in accordance with law in the case. Resultantly, the
admission of marriage of the petitioner No. 1 with the respondent No. 2/complainant in the
statement of the petitioner No. 1 recorded under Section 313 Cr.P.C. does not strengthen the
prosecution case as to contracting a second marriage during the subsistence of first marriage
between the petitioners. The petitioner No. 2, in her statement under Section 313 Cr.P.C.
denied making any instigation or abetment to the so called second marriage between the
petitioner No. 1 and the respondent No. 2/complainant. A family implies a social unit
consisting of two legally married parents and their children living together, which is not
proved by credible evidence in this case beyond reasonable doubts.

F) Conclusion:

31. For the reasons, set forth above, this Court is of the considered opinion that the
ingredients of the offence of Section 494/Section109 being not proved beyond all reasonable doubt
Page No.# 15/15

against the petitioners, the impugned judgments and orders of the learned Courts below are
set aside and the accused/petitioners are acquitted of the charge and set at liberty forthwith.

32. The Revision stands allowed.

Return the L.C.Rs.

JUDGE

Comparing Assistant

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