Calcutta High Court
Mantu Malik And Ors. vs Kamala Malik And Ors. on 30 July, 2002
Equivalent citations: 2002(4)CHN738
JUDGMENT Malay Kumar Basu, J.
1. This revisional application is directed against the judgment and order dated 18th December, 1995 passed by the learned Additional Sessions Judge, Hooghly in Criminal Appeal No. 60 of 1991 of that court thereby dismissing the appeal and affirming the judgment and order of conviction and sentence dated 20th September, 1991 passed by the learned S. D. J. M, Chandannagore in G. R. Case No. 394 of 1988 of that court. This G. R. Case was filed by one Smt. Kamala Malik against the accused persons (the present petitioners) on the ground that the accused Mantu Malik having married her according to Hindu rites in Baisakh, 1394 B. S. left her in Falgoon, 1394 B. S. in her parent's house, when she got pregnant out of that wedlock, never to take her back. Thereafter, she came to know that her husband, Mantu Malik was going to marry for the second time on 11th Ashin, 1395 B. S. and then on that stipulated date she along with her father and brother went to the house of her husband but seeing none of the inmates present there, they enquired and came to know that the members of that family had gone to attend the marriage ceremony at the house of one Lakshmi Malik at Dakshinpore, Bandipore. Then the complainant with her father and brother went to that place and reaching there they found that the marriage ceremony between Mantu and China was going on. She protested against such marriage between Mantu and China and drew the notice of the people who assembled there pointing out that she was the married wife of Mantu, when the accused persons other than Mantu told that they had been already in the know of such facts. In this way, the second marriage was performed.
2. Hence the said Kamala Malik, the first married wife of the accused Mantu, filed the complaint before the court of the learned S.D.J.M, Chandannagore in view of the provisions of Section 198 of the Cr. P. C.
3. After considering the evidence of the P.Ws. that was adduced before the framing of the charge, the learned Magistrate framed charge against the accused persons including the accused China, the alleged second wife of Mantu under Sections 494/109 of the Cr. P. C. when the charge was read over and explained to them, all of them pleaded not guilty and claimed trial. Thereafter, the witnesses of the complainant were further cross-examined and the accused persons were examined under Section 313 of the Cr. P. C. Defence did not adduce any evidence. After hearing the arguments of both sides, the leaned Magistrate came to the finding that the charge against all the accused except the accused China had been established from the materials on record and accordingly he found the accused China not guilty and all the other accused persons guilty of the offence under Section 494 of the I. P. C., convicted them thereunder and sentenced the main accused, Mantu Malik to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default, further rigorous imprisonment for five months and sentenced the other convicts to suffer rigorous imprisonment for one year each and to pay a fine Rs. 200/- each, in default, to suffer further rigorous imprisonment for two months each. As the charge was not proved against the accused China, the learned Magistrate acquitted her of the charge.
4. Being aggrieved by this judgment and order of conviction and sentence the convicts preferred an appeal before the court of the learned Additional Sessions Judge, Hooghly, who after hearing the arguments of all the learned advocates for the parties passed the impugned judgment affirming the Order of conviction and sentence of the learned trial court and dismissing the appeal.
5. Being aggrieved thereby, again the convicts have preferred the present revisional application challenging the order of the learned court below as erroneous, illegal, improper and unsustainable.
6. Mr. Roy, learned advocate appearing on behalf of the petitioner, has argued that the prosecution has miserably failed to prove the alleged first marriage between the convict Mantu and the de facto complainant Kamala. He points to the depositions and contends that the witnesses are only three in number consisting of the complainant herself, her father and her brother and neither a single disinterested person of the locality nor the professional people whose presence might have been required during the performance of the alleged marriage ceremony, are coming to the witness box to corroborate the statements of these three interested witnesses regarding the alleged first marriage and, from this stand point, it should be taken by the court that such alleged marriage has not been proved satisfactorily and if that be so, the question of conviction goes.
7. Mr. Bagchi, learned advocate appearing on behalf of the opposite parties, on the other hand, has opposed this contention of Mr. Roy and has submitted that this court being the revisional court cannot interfere with a finding of fact which has been arrived at by both the courts below concurrently. According to him, the question whether a particular person married another particular person is a question of fact altogether and when both the courts below, namely, the trial court and the appellate court have given their identical verdict on such a question of fact, then it will be against the well-established position of law if this court embarks on an exercise interfering with such finding of both the courts below. In support of his argument, Mr. Bagchi has cited a number of reported decisions, namely, 1985 Cr. L. J. 1948 (Sashi Kumar Das's case), 1977 Cr. L. J. 1101 (S. P. S. Jayam v. Nehru Sadan) and 1982 Cr. L. J. 1397 (State of Karnataka v. Mari Howda).
8. Mr. Roy does not dispute this position of law but according to him the question whether there has been a marriage according to Hindu rites between two persons should be treated as a question of law and not a question of fact. According to him in order to judge whether there has been such a marriage the court is to take resort to certain legal principles and from that point of view it becomes a question of law as opposed to a question of fact and judged from this angle this court has enough scope and justification for inteferring with the concurrent findings of both the courts below. But I am not impressed by this argument of Mr. Roy. I cannot understand how in order to determine such a point the question of determination of any legal principles will come into play, The question is out and out a question of fact, since it is to be determined by taking into account the materials on record, the evidence adduced by the parties on the question of fact, namely, whether the marriage was performed as alleged according to certain rules and practices or certain rites and rituals being observed in case of a Hindu marriage. For the purpose of determination of such a point the court is not to be bothered with the niceties of law. On the other hand, what will govern the court in such a respect is to see whether from the evidence it has been proved that there was such a marriage between the parties. So, for all intents and purposes, this question is a question of fact and not a question of law. Therefore, with such a finding of fact arrived at by both the courts below concurrently, I am afraid, I have no scope for poking my nose. The only exception to this well-acknowledged principle is when there is an exigency like that there has been a gross error or a flagrant miscarriage of justice which is so patent and palpable that this court's intervention is required even though it is a concurrent finding of fact. But in the present case, I do not find the existence of any such exceptional exigency or any scope for saying that there has been any gross error in the finding of fact arrived at by the courts below.
9. On a careful examination of the depositions of the prosecution witnesses, I find that the statements of P.W. 2 and P.W. 3, the father and brother respectively of the complainant, to the effect that they gave the complainant in marriage with the accused, Mantu Malik, remained totally unchallenged in the cross-examination. They also have said that the marriage was according to Hindu rites and that has also been not assailed in the cross- examination. Practically, their entire cross-examination appears to be devoted to questioning on the alleged second marriage and regarding the alleged first marriage the defence is totally silent in the cross-examination of these witnesses. If any statement made by the witnesses remain totally unchallenged and untouched in their cross-examination, then the legal effect is that they are to be taken as admitted and further proof of marriage will not be required. From this angle of vision both the courts below appear to have approached the issues under consideration and such findings of the courts appears to be perfectly in order and I have absolutely nothing to interfere with the same. Therefore, Mr. Roy's argument that the first marriage has not been proved has no legs to stand upon and I am unable to accept such a contention.
10. So far as the other convicts are concerned, namely, the convicts Smt. Lakshmi Malik, Smt. Astha Malik, Sidha Puil and Basudeb Malik--it is found that the learned trial Magistrate considered the evidence adduced by the prosecution against them and he has observed that this part of the evidence of the P. Ws. has not been challenged when they say that the accused Astha Malik arranged the said marriage, the accused Basudeb Malik made the Sampradan, that the accused Lakshmi Malik abused them when they went to her house to make an appeal and that the accused Sidha Puil acted as the Ghatak of the marriage. This finding of the learned trial court has also been upheld by the learned appellate court and this being also in the nature of finding of fact, I would take the same view and consider it not the fit a domain wherein I can have any encroachment while dwelling upon this revisional application.
11. If the first marriage is proved, the next question will be whether the alleged second marriage has also been proved. As I find from the evidence, there has been abundant evidence in support of this allegation. All the three witnesses have not stopped saying only that such a marriage took place according to Hindu rites for the second time but they have spelt out all the details of such second marriage as alleged and in the cross-examination in respect of this point also I do not find anything substantial to say that the testimony is falsified. So, I have no doubt to hold that both the courts below have committed no error in coming to the conclusion that both the alleged marriages have been proved by the prosecution.
12. According to Section 494 of the Cr. P. C., whoever having a husband or a wife living marries again of such marriage is void of 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. In the present case, the learned trial Magistrate after arriving at his finding of guilt and after convicting the accused persons thereunder appear to have taken a reasonably liberal view by inflicting a sentence of imprisonment for two years as regards the main convict, namely, Mantu Malik, the husband of the complainant and imprisonment for a period of one year each in respect of other accused persons who abetted the commission of the offence.
13. Accordingly, I do not find anything illegal, unjust or improper in such orders passed by the learned trial courts and hence I uphold the same and dismiss this revisional application.
14. The directions as given by the appellate court below upon the convicts in his impugned order be complied with forthwith, and the Id. SDJM, Chandannagore, is directed to ensure such compliance and to take appropriate action as per the said order in case of default on the part of the convicts.
The L. C. R. be sent down to the court below forthwith.