Criminal Appeal No. 27 of 1998 · High Court
Case Details
Crl.A. 69/2004 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER This appeal has arisen out of the judgment and order, dated 29-12-2003, passed, in Criminal Appeal No. 27 of 1998, by the learned Additional Sessions Ju dge (FTC No. 2), Kamrup, Guwahati, whereby the learned Additional Sessions Judge has set aside the judgment and order, dated 14-09-1998, passed, in Complaint Ca se No. 821 of 1996, by the learned Chief Judicial Magistrate, Kamrup, Guwahati, convicting the accused-respondent under Section 494 IPC and sentencing him to un dergo rigorous imprisonment for 3 (three) years. 2. In consequence of the setting aside of the conviction of the accused-res pondent by the learned Additional Sessions Judge, the accused-respondent has bee n acquitted of the offence of bigamy punishable under Section 494 IPC. Before entering into the discussion of the merit of the impugned judgmen 3. t and order passed by the learned appellate Court acquitting the accused-respond ent, it is apposite to take note of the case, which the complainant-appellant ha d set out in her complaint. The case of the complainant-appellant, as unfolded a t the trial, may, in brief, be described: (i) The appellant, Dipali Bhagabati, was married to accused Dr. Pramod C handra Bhagabati, on 20-03-1987, at the residence of her uncle, late Upen Chang Kakoti, at South Sarania, as per Hindu customary rites. After the marriage, the couple started residing, as husband and wife, at the official quarter of the acc used, at Kahikuchi. On 07-03-1996, the accused disappeared from his official res idence without giving any information to the complainant and, on 13-03-1996, at about 5 ’O’ clock in the evening, the accused reappeared at his official residen ce and informed the complainant that he had married, on 11-03-1996, Bina Sarma, a resident of Dibrugarh, as par Hindu customary rights and that he (accused) had kept Bina Sarma at the former’s residence at Nalbari and wanted to forcibly tak e the complainant, too, to the residence of the accused at Nalbari. The complain ant did not, however, agree to go to Nalbari. (ii) Thereafter, the accused went away and did not turn up at his office or a t his official residence. Finding no other alternative, complainant informed the matter to the Principal, Assam Agricultural University, and her maternal uncles , namely, Balin Bordoloi and Nabin Bordoloi. The complainant also sent a message to her brother, Hirok Chang Kakoti, who had been staying at Bangalore. Hirok Ch ang Kakoti came rushing to Guwahati and, then, went to Dibrugarh and, upon makin g inquiry, learnt that the accused had solemnized 2nd marriage with Bina Sarma, daughter of one Ranjan Sarma, on 11-03-1996, as per Hindu rites and rituals, wit h Madhab Ch. Sarma having acted as the priest. The accused has, thus, committed the offence of bigamy punishable under Section 494 IPC. 4. nst the accused, he pleaded not guilty thereto. In support of her case, the complainant examined three witnesses includi 5. ng her own self. The accused was, then, examined under Section 313 (1)(b) Cr.P.C . and, in his examination aforementioned, the accused denied that he had committ ed the offence, which was alleged to have been committed by him. No evidence was In course of time, when a charge, under Section 494 IPC, was framed agai adduced by the accused.
Legal Reasoning
6. Having come to the conclusion that the accused stood proved, beyond reas onable doubt, guilty of offence under Section 494 IPC, the learned trial Court c onvicted him accordingly and sentenced him to suffer rigorous imprisonment for 3 (there) years. 7. Aggrieved by his conviction and the sentence, which had been passed agai nst him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 27 of 1998. 8. By the impugned judgment and order, dated 29-12-2003, passed in Criminal Appeal No. 27 of 1998, the learned appellate Court, having held the accused-app ellant, Dr. Promod Chandra Bhagabati, not guilty of the offence, which he stood
Legal Reasoning
charged with, has set aside the judgment and order, dated 14-09-1998, passed by the learned trial Court and acquitted the accused-respondent. 9. It is the acquittal of the accused-respondent of the offence of bigamy, punishable under Section 494 IPC, which is the subject-matter of challenge, in t his appeal, by the complainant-appellant. 10. I have heard Mr. P Kataki, learned counsel for the complainant-appellan t, and Mr. AK Bhattacharyya, learned Senior counsel, appearing on behalf of the accused-respondent. 11. While considering the present appeal, it needs to be noted that the scop e of the appellate Court, in an appeal, arising out of acquittal, is distinct an d different from the scope of an appellate court’s power in an appeal arising ou t of conviction of an accused. The material distinction between the two is that it is possible for an appellate Court, while sitting in an appeal, arising out o f conviction of an accused, to take a view, which is reasonable, but different f rom the view, which the trial Court may have taken; whereas a Court, while sitti ng in an appeal, arising out of acquittal, cannot take a view different from the decision of the Court, which has acquitted the accused, unless the appellate Co urt has reasons to take a view that the conclusion, which the Court, while acqui tting the accused, had reached, is completely irrational or is based on a total misreading of the evidence on record leading to miscarriage of justice or is per verse in the sense that the finding of acquittal has been reached contrary to th e weight of the evidence on record or on a misconception of law. 12. In short, thus, interference with the judgment of acquittal is possible only when the view, which the Court, while acquitting an accused has taken, is f ound to be wholly irrational and unacceptable. When two views were possible on t he basis of the evidence on record, it is permissible for a Court, while sitting in an appeal, arising out of conviction, to take a view different from the one, which may have been taken by the trial Court. On the other hand, while sitting on an appeal against acquittal, a Court would not interfere with the finding of acquittal if there were, on the basis of the evidence on record, two views reaso nably possible. Interference, with a finding of acquittal, is permissible only w hen the conclusion, which has been reached by the trial Court, while acquitting an accused, is such, which a rational mind cannot agree to, or where the conclus ion, as regards acquittal, was reached by ignoring the evidence on record or who lly contrary to the evidence on record or on misconception of law or on the basi s of inadmissible pieces of evidence and/or the law relevant thereto. What is also of immense importance to note, while considering an appeal 13. against the acquittal, is that an accused is presumed to be innocent until he is proved to be guilty and an order of acquittal bolsters this presumption and str engthens thereby the case of the accused that he is innocent. 14. The above position of law can be discerned from the decisions, which hav e been referred to by Mr. P Kataki, learned counsel for the complainant-appellan t, and Mr. AK Bhattacharyya, learned Senior counsel, appearing for the accused-r espondent. 15. Mr. Kataki, learned counsel, has, in support of this appeal, referred to the case of Bhajan Singh alias Harbhajan Singh and others -vs- State of Haryana , reported in (2011) 7 SCC 421, too, wherein the Court has observed thus ; (cid:28)44. The appellate court is entitled to consider whether in arriving at a findin g of fact, the trial court had failed to take into consideration admissible evid ence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matte r of scrutiny by the appellate court. 45. The expressions like (cid:28)substantial and compelling reasons (cid:29), (cid:28)good and suffici ent grounds (cid:29), (cid:28)very strong circumstances (cid:29), (cid:28)distorted conclusions (cid:29), (cid:28)glaring mis takes (cid:29), etc., are not intended to curtail the extensive powers of an appellate c ourt in an appeal against acquittal. Such phraseologies are more in the nature o f (cid:28)flourishes of language (cid:29) to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i .e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, the appellate court may interfere with an order of acquittal. 46. The appellate court should also bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumpti on of his innocence. Interference in a routine manner where the other view is po ssible should be avoided, unless there are good reasons for interference. (See S anwat Singh v. State of Rajasthan (AIR 1961 SC 715), Suman Sood v. State of Raja sthan, reported in (2007) 5 SCC 634, Brahm Swaroop v. State of U.P., reported in (2011) 6 SCC 288, V.S. Achuthanandan v. R. Balakrishna Pillai, reported in (201 1) 3 SCC 317 and Rukia Begum v. State of Karnataka reported in (2011) 4 SCC 779. ) From a careful reading of the observations made in Bhajan Singh alias Ha 16. rbhajan Singh (supra) and the law laid down therein, it becomes clear that the a ppellate Court must bear in mind that the presumption of innocence of the accuse d is bolstered by acquittal of the accused. Interference, in a routine manner wi th the judgment of acquittal, is, therefore, not permissible and must be avoided unless there are good reasons to interfere. If the appellate Court finds that w hile acquitting an accused, the Court below had failed to take into consideratio n the admissible evidence and/or had taken into consideration evidence brought o n record contrary to law, or wrongly placed the burden of proof or where it is p ossible to take only one view, namely, that prosecution or complainant’s evidenc e pointed to the guilt of the accused and the judgment of acquittal is, on the f ace of it, perverse, interference is permissible. 17. Broadly in tune with the proposition of law, which have been laid down, in Bhajan Singh alias Harbhajan Singh (supra), are the decisions, which Mr. AK B hattacharyya, learned Senior counsel, has also referred to and relied upon. In S heo Swarup (supra), which Mr. Bhattacharyya, relies upon, the Privy Council has made it clear that an appellate Court shall be slow in disturbing a finding of f act arrived at by the judge, who had the advantage of seeing the witnesses 18. In the case of Pabitar Singh -vs- State of Bihar (AIR 1972 SC 1899), the Supreme Court has made it clear that great care and attention should be devoted by the Courts to all questions of law and fact, while dealing with a case of ac quittal if the reversal thereof may have an impact on the service career of the acquitted accused. The relevant observations are reproduced below: (cid:28)12. Lastly it cannot be over-emphasised that in cases of the present nature wh ere not only the liberty of a citizen is involved but also his whole career on - conviction a person in service is bound to be dismissed - great care and attent ion should be devoted by the courts to all questions of law and fact which unfor tunately has not been done in the present case. That has led to miscarriage of j ustice. The appellant is entitled to the benefit of doubt and he is hereby acqui tted. (cid:29) 19. In the case of Tota Singh and another -vs- State of Punjab, reported in (1987) 2 SCC 529, the Supreme Court has pointed out that when the High Court doe s not find that the reasons given by the trial Court, while discussing the testi mony of some witnesses, unreasonable or perverse, the High Court cannot, on inde pendent re-appraisal of evidence, interfere with an order of acquittal, because of the mere fact that the appellate court is inclined, on a re-appreciation of t he evidence, to reach a conclusion, which is at variance with the one recorded i n the order of acquittal passed by the court below. The jurisdiction of the appe llate court, in dealing with an appeal against an order of acquittal, is circums cribed by the limitation that no interference is permissible with the order of a cquittal unless the consideration of the evidence by the trial Court is vitiated by some manifest illegality or the conclusion, recorded by the court below, is such, which could not have been possibly arrived at by any court acting reasonab ly and judiciously and is, therefore, liable to be characterised as perverse. Th e Supreme Court, in Tota Singh (supra), has also emphasized that where two views are possible on an appraisal of the evidence adduced in a case and the court be low has taken a view, which is a plausible one, the appellate court cannot legal ly interfere with such an order of acquittal even if it is of the opinion that t he view, taken by the court below, is erroneous. 20. The Supreme Court has reiterated, in its later decision, in Ram Swaroop v. State of Rajasthan, reported in (2004) 13 SCC 134, that if two views are reas onably possible on the basis of the evidence on record, the view, which favours the accused, must be preferred. Similarly, it is well settled, points out the Su preme Court in Ram Swaroop (supra), that if the view, taken by the trial Court, while acquitting an accused, is a possible and reasonable view on the evidence b rought on record, the High Court ought not to interfere with such an order of ac quittal merely because it is possible to take a contrary view. 21. Bearing in mind the scope and ambit of the appellate Court’s power to in terfere with an order of acquittal, it may, now, be noted that Mr. P Kataki, lea rned counsel for the complainant-appellant, has submitted that the learned appel late Court has seriously fallen in error by taking into consideration two docume ntary pieces of evidence, namely, Ext. A and Ext. B, Ext. A being a photocopy of an affidavit sworn by Madhab Sarma, who is claimed to have acted as a priest at the time of the second marriage of the accused-respondent, and Ext. B, is claim ed to be a certificate given by Madhab Sarma that he had solemnized the marriage between the accused-respondent and Bina Sarma. 22. Thus, the said two documents, points out Mr. Kataki, learned counsel, we re inadmissible in law and could not have been taken into account by the learned appellate Court for the purpose of reaching a decision of acquittal on the grou nd that none of these two documents reflect that while solemnizing the marriage between the respondent and Bina Sarma, Spatapadi, which is essential for a valid Hindu marriage, was performed. This apart, points out Mr. Kataki, the learned a ppellate Court has also fallen in error in taking the view that Madhab Sarma has been examined as the sole eye witness to the alleged performance of marriage be tween the accused-respondent and Bina Sarma and since his evidence, in the light of the other evidence on record, cannot be described as evidence of a wholly re liable witness, particularly, when PW1, Madhab Sarma, had, admittedly, acted as a priest in the marriages of the members of the family of the complainant, no cr edence can be given to the evidence of Madhab Sarma. 23. Thus, Madhab Sarma’s evidence, according to the learned appellate Court, was not the evidence of a disinterested witness and his evidence, being not who lly reliable, no implicit reliance can be placed on his evidence. These conclusi ons, reached by the learned appellate Court, were, according to Mr. Kataki, lear ned counsel, wholly against the materials on record. While considering the above aspect of the case, what needs to be noted i 24. s that the witnesses, generally, fall into three distinctly different categories , namely, (i) a witness, who is wholly reliable: (ii) a witness, who is wholly u nreliable; and (iii) a witness, who is neither wholly reliable nor wholly unreli able. In the case of a witness, who is wholly reliable, there is no difficulty i n placing reliance on the evidence of such a witness and even one wholly reliabl e witness’s evidence can become foundation for conviction of an accused. When, h owever, a witness is wholly unreliable, no reliance can at all be placed on such a witness’s evidence and his evidence has to be rejected by Court. Difficulty, however, arises in the case of the third category of witnesses, who are neither wholly reliable nor wholly unreliable. In the case of appreciation of evidence o f a witness, who is neither wholly reliable nor wholly unreliable, the Court can not readily accept his evidence nor can his evidence be rejected outright. The r emedy, in such a case, lies in looking for corroboration and if the evidence of such a witness is corroborated by independent and credible evidence, direct or c ircumstantial, the evidence of the witness, who is neither wholly reliable nor w holly unreliable, can be placed reliance upon. In the light of the law, which I have discussed above, when I turn to th 25. e submissions, which have been made on behalf of the accused-respondent, I notic e that the complainant, in the very complaint (which she had filed), had stated that Madhab Sarma was the priest, who had performed the marriage between the acc used-respondent and Bina Sarma and that Madhab Sarma had given an affidavit and also a certificate about his having solemnized the marriage between the said two persons, but the photocopy of the affidavit and the certificate, which were fil ed, along with the complaint, had not been brought into the evidence on record b y the complainant and it was in this background of facts that the accused had to bring the said affidavit and the said certificate to the evidence on record in order to draw attention of PW1, Madhab Sarma, to the fact that neither in his af fidavit nor in his certificate, he had stated, contrary to the evidence given by him, at the trial, that Saptapadi and hom were performed in the marriage, which was solemnized between the accused-respondent and Bina Sarma. Coupled with the above, the factum of not bringing on record, the affida 26. vit and the certificate aforementioned given by the complainant and appellant, g ives, in the facts and attending circumstances of the present case, rise to an a dverse inference against the complainant-appellant, the inference been that had these documents being produced on record, they would have weakened or even destr oyed the case of the complainant-appellant and were, therefore, withheld and not brought on record. 27. Mr. Bhattacharyya, learned Senior counsel, has also pointed out that pre sent one is not a case, where there was no witness available inasmuch as Madhab Sarma, who is claimed to have acted as a priest has deposed that the complainant and Balin Bordoloi had gone to Dibrugarh to meet him (PW1) and made inquiry abo ut the marriage and that in the said marriage, Durlabh Sarma was also present, w ho was known to him. Thus, in the light of the evidence of Madhab Sarma, at leas t, Durlav Sarma was present, but he has not been examined and no reason has been assigned for not examining him. 28. Similarly, points out Mr. Bhattacharyya, learned Senior counsel and righ tly so, that the complainant (PW2) has deposed that it was not she (complainant) , but her brother, Hira Chang Kakoti, who had gone to Dibrugarh and made inquiry and came to learn about the fact that the accused had solemnized his marriage w ith Bina Sarma, at Dibrugarh, on 11-03-2003. There is, thus, glaring inconsisten cy between the evidence of PW1 and PW3 inasmuch as while PW1 claims that the com plainant and Balin Bardoloi went to Dibrugarh and made inquiry from him about th e marriage, in question, the complainant claims that it was her brother, Hira Ch ang Kakoti, who went to Dibrugarh and made inquiry about the said marriage. 29. It is also in the evidence of the complainant (PW2) that Sri Kamini Baru a, a professor of Kanai College, informed them about the name of the priest, but even Kamini Barua has not been examined as a witness to support this assertion of the complainant. 30. It is further in the evidence of the complainant that her uncle, Jatin B hagabati, informed them about the marriage of Bine Sarma with the accused, but a lso told them not to reveal his name. No such restriction was imposed by Kamini Barua, Yet Kamini Barua was not examined. Similarly, the complainant has deposed that she reported, in her colony, about the second marriage of her husband to h er neighbours, namely, Dr. Ahmed, Chief Surgeon, Dr. Mahem, Dr. Hangsdhar Choudh ury; but before they could come, the accused fled away. However, none of the com plainant’s neighbours, in the colony aforementioned, was examined as a witness. The complainant further claims that the Vice Chancellor, Agricultural University , and the Principal of the College were informed, but none of these two persons was examined either. 31. While considering the submissions of Mr. Bhattacharyya that the contents of the photocopy of the affidavit (Ext.A)as well as the photocopy of the certif icate (Ext.B) could have been treated as secondary pieces of evidence, it needs to be noted that Section 65 of the Evidence Act, 1872, makes it abundantly clear that secondary evidence may be given as regards existence or contents of a docu ment, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved and when, after noti ce has been given, in terms of the provisions of Section 66 of the Evidence Act, 1872, to the possessor to produce the document, in question, the possessor does not produce the document. 32. In the case at hand too, therefore, the accused-respondent ought to have given notice, under Section 66 of the Evidence Act, 1872, for production of Ext . A and Ext. B in original and had the original affidavit and the certificate, i n question, were not produced on record, the accused-respondent could have prove d the contents of Ext. A and Ext. B as secondary pieces of evidence. This has, a dmittedly, not been done. 33. Notwithstanding, however, the fact that the contents of Ext. A and Ext. B were not proved in accordance with law, the fact remains that PW3 is ex facie a witness, who could not have been described as a disinterested witness inasmuch as PW3 has been, admittedly, a priest for the family of the complainant. The so le testimony of PW3 was, therefore, not sufficient to prove the factum of marria ge between accused-respondent and the said Bina Sarma, particularly, when the ev idence, adduced by the complainant, as to who made inquiry from him (PW3), with regard to the solemnization of marriage, in question, has not been proved satisf actorily and convincingly. Far from this, the evidence, adduced by the complaina nt, in this regard, is, as already pointed out above, contradictory and irreconc ilable. 34. Under no circumstances, therefore, the evidence of PW3, as rightly concl uded by the learned trial Court, could have been treated as evidence of a wholly reliable witness. At best, the evidence of PW3 can be treated as evidence of a witness, who is neither wholly reliable nor wholly unreliable. 35. Implicit reliance cannot be placed on the evidence of a witness, such as , PW3 unless his evidence is corroborated by credible evidence, direct or circum stantial. However, though a large number of witnesses had attended the alleged s olemnization of marriage between the accused and the said Bina Sarma, no witness was examined and no explanation has been offered, in this regard, by the compla inant for their non-examination nor is there any explanation, plausible and conv incing, discernible, in this regard, from the evidence on record. Situated thus, the finding of acquittal, reached by the learned appellat 36. e Court, cannot be said to be so irrational that no rational person could have r eached such a conclusion. 37. e to interfere with the acquittal of the accused-respondent. 38. ails and the same shall accordingly stand dismissed. 39. In the circumstances indicated above, it would not be legally permissibl Because of what have been discussed and pointed out above, this appeal f Send back the LCR.