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Delhi District Court

Brahm Dutt Sharma vs Smt. Nutan Sharma on 21 January, 2008

                                                     ­1­

IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE :               
                KARKARDOOMA COURTS : DELHI :


Cr.(A) No. 53/06
Date of Institution :­ 21.08.06
Date on which reserved for order :­ 18.01.08
Date of Delivery of Judgement :­ 21.01.08


Brahm Dutt Sharma
S/o Sh. Panna Lal Sharma,
R/o 19­20, Mansarovar Park,
Shahdara, Delhi.                                                                    .....Appellant.


         Vs.


1. Smt. Nutan Sharma
    D/o Sh. Narain Dass Sharma
    C/o Sh. Narain Dass Sharma,
    Clothes merchant, Gandhi Bazar,
    Mohalla Mughalpura, Distt. Bagpat, U.P.
2. Govt. of NCT of Delhi.                                                  .....Respodents.


J U D G E M E N T :

­ Marriage of Brahm Dutt Sharma was solemnized with Nutan Sharma on 08.02.87 at Bagpat U.P. After her marriage, Nutan Sharma came to her matrimonial home at Mansarovar Park, Delhi. She could not pull well and a matrimonial discord started. Since she was ill­ treated by her husband, she lodged a case bearing FIR No. 137/89 at police station Mansarovar Park, for offence punishable under section 498A of the Penal Code. She was deserted by Brahm Dutt Sharma and she went to reside with her parents. Case proceeds ahead that on 22.04.96, Brahm Dutt Sharma married Suman in village Garhi Kolahar, Distt. Mathura, U.P. Charge for an offence punishable under section 494 of the Penal Code was framed against Brahm Dutt Sharma and case was put to trial. Prosecution has examined Nutan Sharma (PW1), Narain Dutt Sharma (PW2), Nawab Singh (PW3) and Harish Kumar Sharma (PW4) in the case. Accused was examined under section 313 of the Code of Criminal Procedure, 1973 (in short the Code). He examined Raj Pal (DW1) and Rajbir (DW2) in the case. He was convicted vide judgment dated 19.05.05 for ­2­ offence punishable under section 494 of the Penal code and sentenced to undergo RI for two years and to pay a fine of Rs.1000/­, vide order dated 20.05.05, which conviction and sentence has been assailed by the appellant in present appeal.

2. Appellant agitates that findings arrived at by the Trial Court are not warranted by facts and are bad in law. The Trial Court has overlooked inherent improbabilities of the case projected by the prosecution. Trial Court erred in taking cognizance of the case, since it lacked territorial jurisdiction. As per the case, second marriage of the appellant took place at village Garhi Kolahar, District Mathura, U.P. The case could be tried by the Court within local limits of whose jurisdiction the offence was committed. The Trial Court misdirected itself by completely ignoring the fact that Pundit Keshav Prashad Sharma, Suman Sharma and her father Mahaveer Singh were not examined by prosecution. It has been agitated that facts testified by Nawab Singh and Harish Kumar Sharma are unnatural and highly improbable. He claims that none of these witnesses testified that at the time of second marriage, saptpadi ceremony was performed. According to him, testimony of Rajpal and Rajveer Sharma, who were examined in defence, was not given due weight. He claims that his conviction and sentence may be set­aside and he may be acquitted of the charge.

3. Arguments were heard at the bar. Sh. S.K. Raizada, Advocate, had advanced arguments on behalf of the appellant. Sh. R.K. Pandey, Ld. Prosecutor, presented facts on behalf of the State. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows.

4. In order to sustain conviction for an offence of bigamy, punishable under ­3­ section 494 of the Penal Code, the prosecution is under an obligation to establish the following counts :­ (i) that the accused had already been married, (ii) that such marriage was legal, (iii) that the person with whom he was married was still alive,

(iv) that the accused married another person, and (v) that such subsequent marriage was void by reason of its taking place during the life of the first consort.

5. Smt. Nutan Sharma had testified that she was married on 18.02.087 according to Hindu customs and rites. Tone and tenor of her testimony is that she was married to appellant Brahm Dutt. A son was born to her on 25.01.88 out of her wedlock with the appellant. During the course of her cross­examination, no efforts were made to probabilize that her marriage with the appellant was not according to Hindu customs and rites. It came over the record through testimony of Nutan Sharma that she was married to the appellant on 18.02.87 according to Hindu custom. He fatherNarain Dass Sharma gives confirmation to facts testified by Nutan Sharma. He deposes that Nutan Sharma was married to Brahm Dutt Sharma on 18.02.87 according to Hindu rites and ceremonies. Testimony of Narain Dass Sharma also remained unassailed on that count. Therefore, it is emerging that the appellant was married to Nutan Sharma on 18.02.87 according to Hindu customs and ceremony. It is not a disputed fact that Nutan Sharma and the appellant are Hindus and their marriage was solemnized according to Hindu customs and rites. Marriage of Nutan Sharma with the appellant, which was solemnized on 18.02.87, brings it over the record that in February, 1987 the appellant was married to the lady. Her marriage with the appellant was in consonance with provisions of the Hindu Marriage Act, 1955 (in short the Act), which law is applicable to the parties. It has not been the case of the appellant ­4­ that marriage of Nutan Sharma with him was in violation of the provisions of the Act and it was not a legal and valid marriage. Out of facts testified by Nutan Sharma and her father, it has been brought over the record that marriage between the appellant and the lady was legal and valid, which was solemnized on 18.02.87.

6. Prosecution was launched against the appellant by Smt. Nutan Sharma on th 04.02.1997. She entered the witness box to testify facts against him on 18 of January, 2000. She projects that the appellant had married one Suman Sharma. She had also detailed that the appellant had filed a divorce petition against her, wherein maintenance pendantelite was granted in her favour. When appellant had not made payment of maintenance amount, his divorce petition was dismissed. Out of these facts, it has been brought over the record that Nutan Sharma is alive, with whom the appellant was married.

7. Nutan Sharma tells that the appellant told her on 19.11.06 that he had married one lady named Suman, who was resident of village Garhi Kolahar, District Mathura, U.P. Facts unfolded by Smt. Nutan Sharma remained unassailed during the course of her cross­examination. No efforts were made by the appellant to castigate her testimony on that issue. Sh.Narain Dass Sharma also projects that Brahm Dutt and his father had disclosed that he (Brahm Dutt) had married a girl belonging to village Garhi Kolahar, District Mathura, U.P. Thereafter, he (witness) searched for the place and Nawab, who is his friend told him that Brahm Dutt had married Suman Sharma on 22.04.96. Nutan Sharma and Narain Dass Sharma are not the witnesses, in whose presence marriage of the appellant with Suman Sharma was solemnized. However, it came over ­5­ record through their depositions that the appellant had married Suman Sharma, during the life time of his legally wedded wife, namely, Nutan Sharma.

8. To hold appellant accountable for offence of bigamy, it has to be proved that the appellant married twice, his first marriage was duly solemnized and during the subsistence of his first marriage, his second marriage was also duly solemnized. In order to find out as to whether marriage is void for the purpose of section 494 of the Penal Code, it is necessary to refer to section 5 of the Act, which makes second marriage void in certain cases. Section 5 of the Act provides that a marriage may be solemnized between any two Hindus, if the conditions referred to in that section are fulfilled. The first condition referred to in the section is that neither party had a spouse living at the time of marriage. Section 11 of the Act declares marriage, which has been solemnized in contravention of sub­section (1) of section 5 of the Act shall be void. Section 17 of the Act, which is material in this respect, contemplates, "any marriage between two Hindus after the commencement of this Act is void, if on the date of such marriage, either party had a husband or wife living and provisions of section 494 and 495 of the Penal Code shall apply accordingly". Thus, it emerges that section 17 of the Act lays down two things: firstly, when a person remarries after the commencement of the Act, if on the date of the marriage he or she has a spouse living of the earlier marriage, such marriage is void and secondly, the provisions of section 494 and 495 of the Penal Code shall apply accordingly to such marriage.

9. Whether the prosecution has been able to show that the second marriage of the appellant with Suman Sharma was void by reason of its taking place during the life time of Smt. Nutan Sharma. To prove that fact, Nawab Singh was brought ­6­ in the witness box. Nawab Singh tells that on 22.04.96, he had gone to village Garhi Kolahar to attend a "Dasotan" ceremony. On that date at about 10am, a barat reached at the house of one Mahaveer Prasad Sharma from Delhi. The family, where he had gone to attend "Dasotan" ceremony, was invited in that marriage. On inquiry, it is revealed that Brahm Dutt Sharma was to be wedded with Suman Sharma, daughter of Mahaveer Prasad Sharma. Pundit Keshav Dutt Sharma performed wedding ceremony between Brahm Dutt Sharma and Suman Sharma at about 4pm that day. He knew Brahm Dutt Sharma, since he was wedded to daughter of Pundit Narain Das, who was residing in his neighbourhood. When facts testified by Nawab Singh were closely perused, it came to light that he is a procured witness. During the course of his cross­ examination, he tells that he had seen Brahm Dutt Sharma properly, when he came to marry Nutan Sharma. He further admits that he was not invited to attend marriage of Brahm Dutt Sharma with Suman Sharma. He also admits that he had not seen Suman Sharma with his own eyes. From facts projected by him, it emerges that Narain Dass Sharma was his neighbour, with whom he was having cordial relations. It also came to light of the day that the appellant was well known to witness, since the date when he came to marry Nutan Sharma. In such a situation, it was expected of him to inform Narain Dass Sharma about second marriage of the appellant with Suman Sharma. Narain Dass Sharma tells that Nawab Singh informed him about that marriage in December, 1996. When Nawab Singh was at visiting terms with Narain Dass Sharma, who was residing in his neighbourhood, his silence over the matter for about 7­8 months is not in consonance with ordinary human behaviour. Narain Dass is brahmin by ­7­ community, while Nawab Singh is a barber. Brahmin and barber used to play active roles in arranging marriages of their clients. Relations between a brahmin and a barber were socially well knit in old days. In countryside, there were harbinger of proposals for marriage of their clients. That relation coupled with nexus of the some locality ought have persuaded Nawab Singh to unfold facts before Narain Dass Sharma at the earliest. Long silence over the matter caused aspersions on veracity of facts testified by Nawab Singh. Consequently, I am constrained to conclude that Nawab Singh is a procured witness. Reliance on his testimony by the Trial Court has resulted into miscarriage of justice.

10. Harish Kumar Sharma unfolds that on 22.04.96, Suman, daughter of Mahaveer Prashad, was married to Brahm Dutt Sharma, son of Shri Panna Lal Sharma. He tells that marriage of Suman Sharma with Brahm Dutt Sharma was performed according to Hindu rites and ceremonies from 2pm to 4pm that day. He unfolds that he had seen Saptpadi being taken by them. When efforts were made to purify his testimony by an ordeal of cross­examination, he tells that he was not invited in that marriage. However, he adds that said marriage was solemnized in haste. He announces that he is having cordial relations with Mahaveer Prasad Sharma. According to him, he used to visit house of Mahaveer Prasad Sharma often and then. He visited his house on that day at about 12 noon and remained there till 4.30pm. According to him, Narain Dass was not known to him prior to that date. He met him 6­7 months thereafter, when he visited his village. Though the defence tried to castigate testimony of Harish Kumar Sharma, yet facts testified by him remained aboveboard. When facts unfolded by him were closely perused, it came to light that he had detailed facts ­8­ which are in consonance with ordinary human behaviour. It has emerged over the record that the defence failed to impeach credit of his testimony. Harish Kumar Sharma was not inimical qua the appellant. The defence could not probabilize the fact that Harish Kumar Sharma entered the witness box after accepting a bribe or some other corrupt inducement to give his evidence in the case. He was rightly found to be a man of veracity by the Trial Court. No inherent enmity was noticed in his testimony when facts projected by him were meticulously assessed. Consequently, I am of the considered opinion that the Trial Court was justified in placing reliance on his testimony. Out of facts testified by Harish Kumar Sharma, it has been brought over the record that on 22.04.96, between 2pm to 4pm, the appellant was married with Suman Sharma.

11. To establish a valid Hindu marriage, the prosecution has to establish invocation before sacred fire and saptpadi. Harish Kumar Sharma testified that marriage of appellant was performed by Pundit Keshav according to Hindu rites and ceremonies. He had seen saptpadi being taken by the bride and the groom. Therefore, facts projected by Harish Kumar Sharma bring it over the record that marriage of Brahm Dutt Sharma with Suman Sharma was solemnized according to Hindu cremonies and saptpadi was taken by them in the marriage. When his testimony was purified by way of cross­examination, no efforts were made to project that the said marriage was not performed according to Hindu rites and ceremonies and no saptpadi was taken by the bride and the groom. Consequently, it is clear that Harisht Kumar Sharma bring it over the record that marriage between the appellant and Suman Sharma was void by reason of its taking place during the life time of Nutan Sharma.

­9­

12. Question for consideration comes as to whether sole testimony of Harish Kumar Sharma can be made basis for fixing accountability of the appellant to the charge? Section 134 of the Evidence Act attaches importance to the quality than to the quantity of the evidence, by providing that no particular number of witness in any case, is required for the proof of any fact. Proof of a fact would depend upon the character of witness and his competency to speak to that fact. It is not enough to prove a fact that a number of witness should assert it. No fix number of witness is needed to prove a fact, even testimony of one witness is sufficient. Law to this effect was laid by the Apex Court in Valula Bhushan (AIR 1988 S.C.

236), Jayaram Shiva Tagore (AIR 1991 S.C. 1735) and Ramju Surja (1983 Cr.L.J. 1105). In view of the law laid above, it is clear that sole testimony of Harish Kumar Sharma can be made basis for the conviction of the appellant.

13. Rajpal and Rajbir Sharma were brought in the witness box by the appellant to project that Suman Sharma was married about 12­13 years ago with a boy of village Jatari, District Aligarh, U.P. None of these two witnesses testified that the said marriage of Suman still subsist. Rajpal and Rajbir Sharma nowhere project that thereafter Suman was never married to the appellant. However, these two witnesses tried to assert that marriage of suman, which was solemnized about 12­13 years ago, was not solemnized with the appellant. Rajpal Sharma and Rajbir Sharma looked at the appellant for a considerable time and testified that the appellant was not the said groom with whom Suman was married 12­13 years ago. Rajpal and Rajbir Sharma entered the witness box at the instance of the appellant. Their posture of looking at appellant for a considerable time to announce that he was not the groom with whom Suman was married about 12­13 ­10­ years ago, make it clear that they projected false facts. In countryside, son­in­law of one family it taken as relation (damad) of the entire village. All villagers respect him. He is known and recognized by all and sundry fo the village. Therefore, posture of Rajpal and Rajbir Sharma looking at the appellant for a considerable period, make it clear that they were procured witnesses. When facts unfolded by Rajpal and Rajbir Sharma were perused, it came to light that there is no grain of truth in their depositions. Trial Court has rightly discarded their evidences from consideration of guilt of the appellant.

14. Appellant agitates that the Trial Court lacked territorial jurisdiction to try the case. For jurisdiction to try an offence punishable under section 494 of the Penal Code, the provisions of sub­section (2) of section 182 of the Code are to be considered. For the sake of conveniecne, said provisions are reproduced herein under :­ "Any offence punishable under section 494 or section 495 of the Indian Penal Code, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by first marriage or the wife by the first marriage has taken up permanent residence after commission of the offence".

15. To confer jurisdiction on a Court, it has to be considered that the offence can be tried by the Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by first marriage or the wife of first marriage has taken up permanent residence after commission of the crime. Consequently, the Courts where the offence was committed or Nutan Sharma last resided with the appellant or where Nutan Sharma has taken up her permanent residence after the commission of the offence shall have jurisdiction to try the ­11­ offence. Nutan Sharma tells that barat went from Mansarovar Park to Baghpat, U.P. Thrust of her testimony is that she last resided with the appellant at Mansarovar Park, Delhi, where she gave birth to a male child on 25.01.88. The appellant filed divorce petition against her in Tis Hazari Court, Delhi. Narain Dass Sharma also speaks on the same lines when he narrates that maintenance petition filed by Nutan Sharma was pending adjudication before Ms. Mumta Tayal, Metropolitan Magistrate, Karkardooma Courts, Delhi. He also projects that a case for offences punishable under section 498A and 406 of the Penal Code was instituted against the appellant and he was convicted and sentenced by the Court of Ms. Shalinder Kaur, MM, Karkardooma Courts, Delhi. Out of these facts, it emerges that the appellant last resided with Nutan Sharma at Mansarovar Park, Shahdara, Delhi, hence Delhi Court had jurisdiction to entertain the case.

16. While using powers contained in section 391 of the Code, the Trial Court was directed to record additional evidence of Suman Sharma and her father Mahaveer Sharma, vide order dated 08.05.07. Trial Court took steps to procure attendance of Suman Sharma and Mahaveer Sharma. Coercive steps were taken against them. Proclamation was published against them, but they opted not to appear before the Court. That fact strengthens the proposition that in case Suman Sharma could have married some other man than the appellant, there was no hitch for her and her father to enter the witness box.

17. In view of foregoing reasons, it is evident that prosecution has been able to establish all ingredients for an offence punishable under section 494 of the Penal Code against the appellant. Precedents in Smt. Priya Bala Ghosh (1971 SCC (Cri.) 362), Manjit Kaur (V­1994 (2) Crimes 164), Ashraf Hussain Shah (1996 (2) ­12­ Crimes 309) and Ramesh (1998 (2) C.C. Cases 23) nowhere espouse the cause of the defence. Consequently, I hereby, confirm conviction of the appellant for an offence punishable under section 494 of the Penal Code.

18. Sh. S.K. Raizada, Advocate, argued that appellant is a man, aged about 44 years. He further presents that he is sole bread earner to support his old aged parents. According to him, facts and circumstances surrounding the appellant justify leniency in punishment. The appellant married again during life time of his first consortium. Taking into account all these factors and mitigating circumstances presented by Sh. Raizada, I am of the view that it is a fit case, where appellant be called upon to pay compensation to Smt. Nutan Sharma. Consequently, it is ordered that he shall pay a sum of Rs.1,00,000/­ as compensation to Smt. Nutan Sharma, besides undergoing RI for a period of six months for an offence punishable under section 494 of the Penal Code. In case amount of compensation is not paid, it shall be recovered as arrear of land revenue, in pursuance of provisions of section 421 of the Code. With this modification of sentence, appeal is disposed of. Trial Court record be sent back. File be consigned to Record Room.

Announced in the Open Court                                   (Dr. R.K. Yadav)
            st

On this 21 day of January, 2008. Additional Sessions Judge :

Karkardooma Courts, Delhi.