Calcutta High Court (Appellete Side)

Hajira Bibi vs Dulal Sarkar And Anr on 7 August, 2024

                      IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE
   Present:-
   HON'BLE JUSTICE PARTHA SARATHI SEN
                                 CRA 303 of 1999

                                    Hajira Bibi
                                      -Versus-
                               Dulal Sarkar And Anr.

For the appellant                     : Ms. Monami Mukherjee, Adv.

For the State                         : Mr. Suman De, Adv.,
                                      : Mr. Karan Bapuli, Adv.

For respondent no.1                   : Mr. Dipanjan Chatterjee, Adv.,

Mrs. Sonali Das, Adv., Miss. Kakan Das. Adv, Miss. Rimpa Adhikari, Adv.

Last Heard on                         : 01.08.2024
Judgment on                           :   07.08.2024

   PARTHA SARATHI SEN, J. : -

1. In this appeal as filed under Section 378(3) of the Code of Criminal

Procedure the judgement and order of acquittal dated 29.04.1999 as

passed by learned Chief Judicial Magistrate, Malda has been assailed by

the complainant.

2. By the impugned judgement the accused/respondent no.1 herein is

found not guilty under Section 498A IPC and he is thus acquitted under

Section 248 (1) CrPC in case no.1238(c) of 1996.

3. The complainant felt aggrieved and thus filed the instant appeal

after taking leave of the High Court.

4. For effective adjudication of the instant appeal the facts leading to

initiation of complaint case no.1238(c) of 1996 is required to be dealt with

in a nut shell. The complainant who is the appellant before this Court

filed a complaint against the respondent no.1 herein as well as against

one Yasin Ali, one Mohasin Ali and one Moslim Ali stating that respondent

no.1 herein in is her husband while the other accused persons are her in-

laws. She complained that immediately after her marriage all the accused

persons used to inflict torture upon her on account of demand of

Rs.1,00,000/-. She stated in her complaint that on 14.11.1996 at about 8

pm when she was standing in front of her paternal home at that time all

the accused persons armed with deadly weapons like Hasua, stick, etc.

started assaulting her by pulling her hair and also assaulted her by kicks

and blows. Seeing such incident the inmates of her paternal home and

the witnesses of such incident (whose names have been mentioned in the

said written complaint) rushed to the spot and thereafter the accused

persons fled away.

5. Trial court record reveals that the learned Magistrate after taking

cognizance examined the complainant and the witnesses and directed for

investigation under Section 200 CrPC and on receipt of such investigation

report, issued process under Section 204 CrPC in the name of the

respondent no.1, however, he dismissed the complaint as against the

other accused person under Section 203 CrPC.

6. Pursuant to the summons the respondent no.2/accused appeared

before the learned trial court and prayed for bail and such prayer was

allowed. On 04.06.1998 the trial court considered the charge under

Section 498A IPC as against the accused and on the self same day charge

under Section 498A IPC was framed against him.

7. In order to bring home the charge, the complainant has examined 6

witnesses in all and on behalf of the defence four witnesses have also

been examined. From the deposition of the complaint witnesses it reveals

that PW1 is the complainant herself, PW2 is a resident of Uttar Kaliganj,

PW3 is a resident of Kaliganj and PW4 is the brother-in-law of PW1. PW5

is a Muslim Marriage Registrar and PW6 is the father of the complainant.

So far as defence witnesses are concerned it appears that all the defence

witnesses are co-villagers of the complainant and they reside in and

around the house of the complainant. On behalf of the complainant two

documents have been exhibited also.

8. It is pertinent to mention herein that the appellant who is a lady

appeared in person before this Court on 08.07.2024 and requested this

Court to appoint a lawyer on her behalf and accordingly this Court

appointed Ms. Momami Mukherjee, learned advocate for the appellant

with a request to the Secretary, High Court Legal Service Committee to

regularize her appointment in connection with the instant appeal.

9. In course of her hearing Ms. Monami Mukherjee, learned advocate

for the appellant at the very outset draws attention of this Court to the

evidence of PW1. It is argued that from the evidence of PW1 it would

reveal that she testified that her marriage was solemnized with

respondent no.1 according to the Muslim Rites on 24th June, 1995 and

thereafter she started living with her husband. She further testified that

she was thrown out of her matrimonial home by her husband on account

of her failure to fulfil the demand of Rs.1,00,000/- towards dowry. It is

argued that learned trial court is not justified in holding that marriage

between the present appellant and the respondent no. 1 was not proved

inasmuch as learned trial court failed to visualize the true implication of

Exhibit 2 being the certified copy of Marriage Registration Certificate

which has been proved in accordance with law and further the oral

testimony of PW1 with regard to her marriage gets due support from the

testimony of the remaining PWs.

10. With regard to the alleged assault it is argued by Ms. Monami

Mukherjee, Ld. Advocate that all the PWs have adduced clinching

evidence with regard to the date, time, place and mode of assault by the

present appellant upon the victim (PW1) and therefore the learned trial

court is not at all justified in holding that the complainant has failed to

prove such assault in order to attract provisions of Section 498A IPC.

11. On the point of demand of dowry Ms. Monami Mukherjee, Ld.

Advocate in course of her argument places her reliance upon Exhibit 1

which is a letter written by the respondent no.1 to the appellant claiming

dowry. It is submitted on behalf of the appellant that learned trial court

has equally failed to visualize that such letter has been duly proved by

PW1 in her evidence and the alleged demand of dowry has been fully

established from the evidence of the prosecution witnesses. It is lastly

submitted that strict proof of marriage in a case under Section 498A is

not necessary as is required in a civil proceeding. Placing her reliance

upon the reported decision of Reema Aggarwal vs. Anupam and Ors.

reported in (2004) SCC (Cri) 699 it is submitted that establishment of

marital relationship between the complainant/informant and the accused

in a criminal case involving marriage is sufficient which the learned trial

court failed to consider.

12. Ms. Monami Mukherjee, learned advocate for the appellant thus

submits that the instant appeal may be allowed and the impugned

judgement of acquittal may be converted into a judgement of conviction

holding that the respondent no.1 is guilty of offence under Section 498A

IPC.

13. Per contra, Mr. Chatterjee, learned advocate for the respondent no.1

at the very outset submits before this Court that before the learned trial

court no charge was framed under Section 323 IPC though initially the

complaint was filed under Section 498A/323/506 IPC. Mr. Chatterjee

submits before this Court that the judgement impugned is based on three

facets namely:-

a. Marriage between the appellant and the respondent no.1 is

disputed;

b. Alleged demand of dowry by the respondent no.1 from the

appellant is not proved.

c. The alleged assault by the respondent no.1 upon the

appellant is also not proved

14. In course of his submission Mr. Chatterjee also places his reliance

upon the evidence of PW1. It is submitted that from the deposition of PW1

it would reveal that the alleged marriage between the appellant and the

respondent no.1 was solemnized in the month of June 1995 and

according to PW1 she was driven out in the month of October/November,

1995. It is submitted further that PW1 further testified that since

thereafter she was residing at her paternal home and the alleged incident

of assault occurred on 14.11.1996. It is thus submitted that from the

chain of events it can be perceived that the alleged assault cannot be

connected with the alleged demand of dowry and thus the learned trial

court is very much justified to hold that the charge under Section 498A

IPC has not been proved.

15. Drawing attention to the evidence of PW2 and PW3 it is submitted

that they are mere chance witnesses. It is further submitted that from the

cross-examination of the said PWs it would reveal that in between the

appellant and the respondent no.1 herein a series of litigations were

pending in which PW2 and PW3 also deposed and therefore there cannot

be any iota of doubt that those witnesses have been set up by the

complainant. It is further submitted by Mr. Chatterjee that from the

cross-examination of PW1 it would reveal that immediately after the

alleged assault she went to the local P.S where she lodged a G.D however,

the said G.D was not proved. It is further submitted by Mr. Chatterjee

that PW4 is the brother-in-law of PW1 and from his evidence it would

reveal that there was inimical relationship between PW4 and the

respondent no.1 herein.

16. In course of his argument Mr. Chatterjee placed his much reliance

upon the DWs. It is submitted that from the testimonies of DWs it would

reveal that all the DWs practically are the next door neighbours of the

complainant and all the DWs have testified in the same tune that they

had never seen the complainant and the respondent no.1 leading a

conjugal life and they have also not seen the alleged incident of assault on

the fateful day and hour at the P.O. Mr. Chatterjee placed his reliance

upon the reported decision of Mustt Rehana Begum vs. State of Assam

and Anr. reported in (2022) SCC Online SC 82.

17. On consideration of the entire materials as placed before this Court

and after hearing the learned advocates for the appellant and the

respondent no.1 this Court notices that the learned trial court has come

to a finding that as the marital relationship between the appellant and the

respondent no.1 has not been proved, the charge under Section 498A

must fail. In order to assess as to whether such finding is at all justified

or not this Court proposes to look to the evidence of PW5, a person who is

'naib' of a marriage registrar. Pursuant to the summon, PW5 brought the

original volume of the marriage register for the year 1995 wherefrom, it

reveals that marriage took place between the appellant and the

respondent no.1 under the Muslim Marriage Registration Act and the

certified copy of such certificate has also been proved while returning the

original volume of the marriage register. From the cross-examination of

PW5 this Court finds that nothing could be elicited that such certificate of

marriage (Exhibit 2) is a fake one.

18. In view of such and on production of a documentary evidence of the

marriage between the appellant and the respondent no.1 this Court finds

that the learned trial court is not justified in holding that there was no

marital relationship between the appellant and the respondent no.1.

19. As rightly pointed out by Ms. Monami Mukherjee, learned advocate

for the appellant that in the reported decision of Reema Aggarwal

(supra) the Hon'ble Apex Court while dealing with the case under Section

498A/304 IPC expressed the following views:-

"The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B-IPC and Section 113B of the Indian Evidence Act, 1872 (for short the 'Evidence Act') were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry

does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature 'dowry' does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction". It would be appropriate to construe the expression 'husband' to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of 'husband' to specifically include such persons who contract

marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as 'husband' is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions."

20. From the reported decision of Reema Aggarwal (supra) it thus

appears to this Court that for the purpose of Section 498A/304IPC a

strict proof of marriage is not mandatory as is required in a civil suit. All

that is necessary to prove is that a man and a woman entered into a

marital relationship and has become a victim of an offence arising out of

such marital relationship.

21. In order to assess as to whether before the learned trial court the

PWs are successful in establishing the alleged assault upon the

complainant it appears that admittedly all the prosecution witnesses

adduced sufficient oral evidence with regard to the place, time and mode

of alleged assault upon the complainant by the alleged accused and his

companions but at the same time it cannot be overlooked that though

according to the complainant the accused persons were armed with

deadly weapons the appellant/complainant got no bleeding injuries and

that though she claimed to had lodged a G.D in the local P.S, she failed to

produce the G.D before the learned trial court for the reason best known

to her. From the cross-examination of the PWs it reveals that in between

the appellant and the respondent no.1 series of litigations were pending

then and therefore the chance of false implication cannot be ruled out

especially when all the DWs who are practically the next door neighbours

of the appellant/complainant testified that they witnessed no such

incident though according to the appellant the incident occurred only at

8p.m on the fatal day.

22. So far as the alleged demand of dowry is concerned admittedly the

appellant has proved a letter (Exhibit 1) wherefrom I find a demand of

Rs.1,00,000/- however the letter is addressed to one 'H' and the said

letter is also an undated letter.

23. As rightly pointed out by Mr. Chatterjee that from the evidence of

PW1 it would reveal that the alleged marriage between the appellant and

the respondent no.1 was solemnized in the month of June 1995 and she

was driven out from her matrimonial home in the month of

October/November 1995. However, the alleged incident took place on

14.11.1996 and none of the prosecution witnesses have stated that the

respondent no.1 assaulted the appellant on account of demand of dowry.

In view of such, it has become very difficult to connect the assault with

the alleged demand of dowry by the respondent no.1 in a case where

charge has been framed under Section 498A only leaving apart the charge

under Section 323 IPC.

24. While deciding the instant appeal arising out of a judgement of

acquittal this Court must not be unmindful to the duty of a superior court

while dealing with a judgment of acquittal. In this regard reliance can be

placed upon the reported decision of State of Rajasthan vs. Naresh

reported in (2010) 1 CCrLR SC 58 wherein the Hon'ble Apex Court

expressed the following view:-

"There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent."

The same view was taken in the following reported decisions

namely:-