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IN THE HIGH COURT OF GAUHATI
Ajit Borthakur, J.
Mon Mayur Sharmah And Anr. – Appellants
Versus
State of Assam and Anr. - Respondents
Criminal Revision Petition No. 13 of 2010
Decided On : 21-11-2019
Criminal Procedure Code – Sections 401, 397, 200, 202, 228 (a), Section 360 – Indian Penal Code – Sections 494, 109, 366, 376, 493, 494, 417, 34 – Evidence Act – Section 50, 59 – Hindu Marriage Act – Section 17 – Probation of Offenders Act, 1958 – Section 4 – Special Marriage Act, 1954 – Section 13 – Bigamy – Valid marriage – Guilty – Misrepresentation – Illegal – Demand for dowry – Cruelty – Imprisonment – This revision petition under Sections 401 read with Section 397 of Cr.P.C. is preferred against judgment and order passed by learned Sessions Judge in Criminal Appeal dismissing appeal preferred by accused/petitioners and upholding judgment and order, passed by learned Chief Judicial Magistrate, in C.R. Case convicting accused/petitioner under Section 494 of IPC and accused/petitioner under Sections 494/109 of IPC and sentenced the petitioner to undergo Rigorous Imprisonment for 7 years and to pay fine only, in default to undergo simple imprisonment for 1year and accused/petitioner to undergo simple imprisonment for 6months and to pay a fine only, in default to undergo simple imprisonment for 1month – Held, mere statement of respondent No. 2/complainant to effect that at instance of petitioner No. 1, she appeared before petitioner No. 2, who in turn, persuaded her to enter into marriage with petitioner No. 1, who is stated to be her husband, undoubtedly cannot amount to abetment of a second marriage, when status of petitioner No. 2 as first wife of petitioner No. 1 has not been proved in accordance with law in case – Resultantly, admission of marriage of petitioner No. 1 with respondent No. 2/complainant in statement of petitioner No. 1 recorded under Section 313 Cr.P.C. does not strengthen prosecution case as to contracting a second marriage during subsistence of first marriage between petitioners – Petitioner No. 2, in her statement under Section 313 Cr.P.C. denied making any instigation or abetment to so called second marriage between petitioner No. 1 and 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 – Revision stands Allowed
JUDGMENT :
Ajit Borthakur, J.
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 494/109 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 1st 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 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 200/202 Cr.P.C., the learned Sub-Divisional Judicial Magistrate having found prima facie material took cognizance of the offences under Sections 366/376/493/494/417/34 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 366/376 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 496/493 of the IPC against the accused/petitioner No. 1 and under Sections 496/493/109 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) Cr.P.C. for trial. The learned Chief Judicial Magistrate, Jorhat after conclusion of trial, held the accu
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