Delhi District Court
State vs Anil Kumar Garg on 30 October, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.3/15
FIR No. 75/13
PS Naraina
U/s 376/323/406/420/493/494/495/496 IPC
State vs Anil Kumar Garg
ORDER ON CHARGE
1. By this order, it is proposed to decide the point of charge.
2. Succinctly, the facts of the case are that upon the reminder complaint dated
27.02.2013 of the prosecutrix/complainant, present FIR dated 24.03.2013 was
registered against the accused u/s 376, 406, 420, 467, 468, 471, 493, 494, 495
and 496 of IPC.
3. In the complaint, the complainant has stated that she is a widow with two grown
up children, she came into contact with the accused, with an online matrimonial
website named www.jeevansathi.com, who was also registered with the same
website, around November, 2006. In a very short period of time, accused started
showing a lot of inclination towards the complainant through e-mails.
Complainant met the accused at his house in Naraina at the request of accused.
During this meeting, and previous conversations, accused deliberatly concealed
true facts about his marital status stating that he has already obtained divorce
decree on 21.12.2006 and he was desirous of marrying the complainant. Under
the said inducement, the complainant agreed to marry accused. Since accused
stated that he is believer of Lord Krishana and insisted the complainant to
perform marriage at Mansi Ganga Temple at Goverdhan, Mathur in very simple
manner. Thereafter, she got married on 16.01.2007 at the said temple in
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 1 of 18
accordance with Hindu rites and ceremony. Immediately after the marriage, the
prosecutrix and accused went to meet Shanti Devi (Mataji) who was the wife of
Pujari Babu Lal of Radha Ban Bihari Temple at Kusum Sarovar, Vrindavan, UP
where he disclosed the factum of marriage to her and sought her blessings and
stayed overnight at the said place. Thus, accused by concealing the factum of
earlier marriage fraudulently and deliberately performed the marriage with the
prosecutrix. By causing the prosecutrix to believe that she is lawfully married to
him and to cohabit with him in that belief she started cohabiting and having
sexual intercourse with the accused at the residence of accused at Naraina.
4. It was further alleged that since the intention of the accused was to commit
various cognizable offences including cheating and having sexual intercourse
etc., he had been persuading the complainant to invest her hard earned money
in the joint as well as in the exclusive business of the accused. Since the
complainant was under bonafide belief that she is legally wedded wife of the
accused, she reposed full faith on him and trusted the words of the accused
regarding financial investments which he had made with the fraudulent intention
from very inception and thus, he had cheated and caused wrong full loss of one
and a half crores to the complainant and wrongful gain to himself.
5. It is further alleged that in or around My, 2007, the complainant was shocked to
catch the accused in a compromising position with their house maid Balbir Kaur
@ Seema. Since there was no reasonable explanation with the accused for
such perverted act, complainant left with no other option and immediately
decided to move out of her matrimonial home whereupon the accused instantly
apologized and said that it was a mistake and further requested her not to leave
him. He further promised to mend his ways in future. However, complainant
could not trust him any more and started investigating his past record and
conduct and it was revealed that the accused had criminal intention in marrying
the complainant. During the personal investigation, the complainant came to
know that a petition u/s 13B of Hindu Marriage Act was filed by the accused
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 2 of 18
against Abha Rani on 10.04.2007 ie after about three months of the marriage of
the complainant with the accused. Thus, accused has, since inception of
meeting with the complainant at Naraina, deceived the complainant and induced
her by making false representation of his marital status to believe that she was
his legally wedded wife and took marital liberty with her inspite of knowing well
that he was still married to Abha Rani. Accused divorced Abha Rani only on
10.10.2007. The accused from the inception has deliberately caused irreparable
loss to the person, body, mind and reputation as well as dishonestly concealed
the factum of his previous marriage to deceive the complainant. Thus, he has
committed offences punishable u/s 376/420/493 IPC.
6. It is further alleged that when the complainant requested the accused on
meeting at Naraina to return the money entrusted to him by the complainant, the
accused refused to return the same and the said money was dishonestly and
fraudulently misappropriated by the accused for his own use. The said money
has not been returned till date and thus accused has also committed an offence
punishable u/s 420 of IPC. It was further alleged that in the complaint that earlier
also, a similar complaint was made by the complainant but no action was taken.
7. During the investigating, IO collected the copy of the e-mail exchanged between
the accused and the prosecutrix, copy of the petitions of the divorce filed by the
accused against his wife Abha Rani. IO got recorded the statement of the
prosecutrix u/s 164 Cr.P.C. IO also seized the copy of the marriage papers from
Radha Ban Bihari Mandir, other records and photographs of marriage. Accused
was arrested on 16.04.2013. After completion of investigation, present challan
was filed with the observations that there was no offence of cheating made out.
It was also recorded in the charge sheet that the complainant/prosecutrix had
already got registered two FIR No.632/09 u/s 323/324/452/492/504/506/34 IPC
in PS Indrapuram, Ghaziabad, UP and FIR No.358/10 u/s
419/420/468/471/120B IPC PS Sihani Gate, Ghaziabad, UP and in both FIRs
there was order of 'no arrest' of the accused by the Hon'ble Allahabad High
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 3 of 18
Court.
8. Arguments heard on the point of charge on behalf of the parties. I have perused
the records as well as written submissions and case laws filed on behalf of the
parties.
9. (I) It was submitted on behalf of the State that at the time of marriage with the
complainant/prosecutrix, accused was having a legally subsisting marriage and
this fact was concealed by the accused. Thus, from the inception of relationship,
the accused was having knowledge that he is legally wedded with Abha Rani
and during her life time, he cannot marry the prosecutrix. However, with a view
to cheat the prosecutrix, he has entered into another marriage on 16.01.2007
with prosecutrix. This marriage took place at Mansi Ganga Temple, Mathura, UP
and in her statement u/s 161 Cr.P.C witness Smt. shanti Devi had confirmed the
marriage of the prosecutrix with the accused. Accused got divorce from his
earlier wife Abha Rani only on 10.10.2007.
(II) It was further submitted that in the present case, the charge u/s 376 IPC as well
as u/s 406, 420, 467, 471, 493, 494, 495 and 496 of IPC can be framed
simultaneously as the intention of the accused from very beginning was to
deceive the prosecutrix both mentally, physically and financially, thereby causing
her to part away and deliver her property to the accused under the false belief
and deception of the accused, by which the accused has made a wrongful gain
to himself and wrongful loss to the prosecutrix. Since inception of meeting with
the complainant, the accused was having knowledge of his existing marriage
with Abha Rani and despite that he got married with the prosecutrix by
concealing the factum of his earlier marriage and therefore, he has committed
offences under the aforesaid sections. It was further submitted that earlier FIR
registered against the accused at Ghaziabad was not primarily for the offence
u/s 376 IPC and bigamy and other related offences and therefore, in the present
case, accused cannot be discharged on the ground of double jeopardy as
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 4 of 18
contemplated u/s 300 Cr.P.C. Earlier complaint was restricted to the facts and
allegations made in both the complaints and in earlier complaint there was no
complaint of rape and therefore continuation of present trial is not barred under
any law of the land. It was further submitted that from the act alleged if it
constitutes an offence falling within two or more separate definitions of any law
in force for the time being, the accused can be charged with and tried at one trial
for each of such offences. In support of its claim and contentions, reliance is
placed upon the judgments reported in (i) Ashok Chawla vs State (NCT of Delhi)
Crl. Rev. P.No. 623/2014 (ii) Kartick Kundu vs State (1967 CrLJ 1411 (Cal) and
(iii) Pankaj Malhotra vs State (Crl. Rev. P.311/2005) dated 24.04.2007 (iv) Crl.
Rev. P. 413/2013 dated 26.07.2013 titled as Jagdish Nautiyal vs State (v) Cr.
M.C. No.3877 of 2009 dated 29.07.2010 titled as Harish Kumar vs State.
10. (I) On the other hand, it was argued on behalf of the accused that accused has
been falsely implicated in the present case. He is innocent. No marriage ever
was sermonized between accused and prosecutrix. In the earlier FIR No.632
dated 06.04.2009 PS Indrapuram, the prosecutrix has made clearcut allegations
against the accused as to how the accused managed to marry her by getting her
in dark inspite of having two wives and thus, the factum of two wives was
already disclosed by the prosecutrix in her earlier complaint in the said FIR. No
second FIR can be allowed to be lodged upon the same allegations for the same
offence as there cannot be double jeopardy upon the accused for for single
offence in two different cases.
(II) It was further argued that in earlier complaint in case FIR No.632 dated
06.04.2009, the complainant has made an application of investing Rs.30 lacs in
the company of the accused while in the present case, she has made allegation
of cheating of Rs.one and half crore. It was further pointed out that though the
prosecutrix has alleged that after she came to know the factum of illicit relation
of the accused with housemaid in the month of May, 2007, she moved out of
matrimonial house but on the other hand she was forming a company named
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 5 of 18
Suntech Infratech Pvt. Ltd. It was further submitted that in her statement u/s 164
Cr.P.C, the complainant has alleged that since February, 2007 to January, 2008,
she had given Rs.30 lacs through cheque as well as in cash for investment in
the company but contrary to that in complaint dated 21.02.2010 to PS Naraina,
the complainant stated that somewhere around May, 2007, she decided to move
out of her matrimonial home. Further, the allegation of the complainant belies
from her own statement. From the stand taken in the present case as well as in
FIR No.632 dated 06.04.2009 of PS Indrapuram wherein she alleged that the
accused has concealed relationship with the housemaid Balbir Kaur @ Seema
for the last about 4 years when there was no relationship between the parties.
(III) It was further argued that when the earlier complaint dated 21.02.2010 made to
PS Nraina was dismissed by the police finding no truth, there cannot be any
reminder for the same in 2013 upon which present FIR was registered. It was
further argued that offence u/s 376, 493, 494, 495 and 496 IPC cannot be
charged simultaneously. Further, this court has no jurisdiction to try the present
matter as all the incident had happened outside Delhi. It was further submitted
that no case u/s 420, 406, 468, 471 of IPC is made out from the allegation as
leveled in the present case. It was further submitted that accused has already
filed a complaint u/s 499 and 500 IPC against the complainant for defamation for
claiming to be the husband of the complainant. Thus, it was prayed that accused
may be discharged from this case.
11. Before discussing the arguments advanced on behalf of the parties, I would like
to deal with the case laws on the point of arguments raised on behalf of the
parties. The Hon'ble Supreme Court while discussing the issue of second
marriage during the life time of the spouse by the accused, categorically held in
para 12 and 16 in case titled as Bhupender Singh vs. UT of Chandigarh (2008) 8
Supreme Court Cases 531, as under:-
12.The High Court found that the case at hand was covered by
clause "Fourthly" of section 375 IPC and, therefore, was guilty of
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 6 of 18
the offence and was liable for punishment u/s 376 IPC.
Accordingly, the conviction, as done, was upheld. But taking into
account the fact that the complainant had knowledge about his
marriage, and had yet surrendered to him for sexual intercourse,
held this to be a fit case for reduction of sentence and award of
adequate compensation. Accordingly, custodial sentence of three
years' rigorous imprisonment was imposed in place of seven years'
rigorous imprisonment as was done by the trial court. The
compensation was fixed at Rs.1,00,000/- which was directed to be
paid within three months. It was indicated that in case the
compensation amount was not paid, the reduction in sentence
would not be given effect to.
16.Though it is urged with some amount of vehemence that when
the complainant knew that he was a married man, clause
"Fourthly" of Section 375 IPC has no application, the stand is
clearly without substance. Even though the complainant claimed to
have married the accused, which fact is established from several
documents, that does not improve the situation so far as the
appellant-accused is concerned. Since he was already married, the
subsequent marriage, if any, has no sanctity in law and is void ab
initio. In any event, the appellant-accused could not have lawfully
married the complainant. A bare reading of clause "Fourthly" of
section 375 IPC makes this position clear.
12. Further, while discussing the issue on framing of charge for bigamy as well as
for the offence of rape upon the single allegation u/s 376, 493, 494 and 495, the
Hon'ble Punjab High Court in case titled as Ranpreet Singh vs. State of Punjab,
Cril. Appeal No.2528-SB of 2011 vide order dated 17.12.2012, has held as
under:-
The appellant has advanced an argument that he did not marry the
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 7 of 18
prosecutrix and never had any relationship with her. But in the
opinion of this Court, in view of the categoric assertion of PW1
Amandeep Kaur supported by the testimony of her mother PW4
Surjit Kaur, duly corroborated by PW11 Joginder Singh
photographer, who has proved the photographs Ex. P1 to P15,
taken by him at the time of the marriage and their negatives, which
depict the complainant in wedding attire beside the appellant,
prove beyond any iota of doubt that the appellant had contracted
marriage with the complainant according to Sikh rites and
ceremonies which fulfilled the requirements of Section 5 of the
Hindu Marriage Act. The appellant could not assail the veracity of
these photographs and could not impute any ill motive on the part
of the photographer Joginder Singh who had taken those
photographs. Lot many people were present in the photographs a
the time of alleged marriage. After perusing the photographs, there
is no doubt in the mind of this Court as regards the marriage of the
parties, who have solemnized the marriage according to the sikh
rites and ceremonies. Even if for the sake of argument, as has
been pronounced by learned counsel for the appellant, it is
presumed that there is no valid marriage between the parties
and hence offence under Section 376 IPC is not made out and
the offiece, if any, will be made out under Section 494, IPC ie,
bigamy, is concerned, and given some credence, even then
the appellant cannot escape his liability for the offence under
Section 376 IPC ainasmuch, as the ingredients of Section 375
Fourthly IPC and Section 493 IPC are akin to each other.
Section 376 fourthly IPC fastens the liability for the offence of rape
upon the accused if he knows that he is not her husband and that
her consent is given because she believes that he is another man
to whom she is or believes herself to be lawfully married. Similarly,
the essential ingredients of Section 493 IPC are that the accused
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 8 of 18
caused the woman in question to believe that she was lawfully
married to him and that the accused induced that woman to
cohabit with him under that belief. Another, additional ingredient of
Section 493 is that he caused that belief in that woman by deceit.
Therefore, in these circumstances, even if the appellant
denies to be the husband of the complainant, still he is liable
under Clause Fourthly of Section 375 IPC as well as under
Section 493 IPC because the consent given by the prosecutrix
to have sexual intercourse with her was only under the belief
that he was her husband whereas, under the provisions of law
it being a second marriage of the appellant with the
prosecutrix, was void ab initio. But the prosecutrix consented to
have sexual intercourse with the appellant under misconception of
fact that she was legally wedded wife of the appellant. Therefore,
the argument of the appellant that the offence under Section 376
IPC is not made out as there was no valid marriage between the
parties, is misconceived and untenable. The fact that the appellant
perpetrated deceit upon the prosecutrix in order to make her
cohabit with him is writ large from the document Ex.D1 produced
by him in his defence based upon which he took plea that the
prosecutrix knew about his marital status, which essentially means
that there was deceitful intention in his mind since inception. The
element of 'consent' pales into obscurity in the peculiar
circumstances of the case wherein the prosecutrix had no occasion
or reason to exercise consent when she was under the belief that
she was the legally wedded wife of the appellant.
Another argument which was advanced by learned counsel for the
appellant was that though there were many other people in the
alleged marriage but none of them, except the prosecutrix and her
mother, have been examined. In the opinion of this Court, this
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 9 of 18
argument of learned counsel for the appellant is devoid of any
merit. This Court reminds itself of the principles pronounced by the
Apex Court in a catena of judgments wherein it has been
categorically held that conviction even on uncorroborated solitary
statement of the prosecutrix is legal. The findings of the Hon'ble
Supreme Court in State of U.P.v. Chhoteylal, 2011(2) SCC 550 are
relevant in this contex. The Court in para 19 of the judgment has
observed as follows:-
"19. In the backdrop of the above legal position, with which
we are in respectful agreement, the evidence of the
prosecutrix needs to be analysed and examined carefully.
But, before we do that, we state, as has been repeatedly
stated by this court, that a woman who is victim of sexual
assault is not an accomplice to the crime. Her evidence
cannot be tested with suspicion as that of an accomplice. As
a matter of fact, the evidence of the prosecutrix is similar to
the evidence of an injured complainant or witness. The
testimony of prosecutrix, if found to be reliable, by itself, may
be sufficient to convict the culprit and no corroboration of her
evidence is necessary. In prosecutions of rape, the law does
not require corroboration. The evidence of the prosecustrix
may sustain a conviction. It is only by way of abundant
caution that court may look for some corroboration so as to
satisfy its conscience and rule out any false accusations.."
13. Further, the issue of framing of charge for bigamy and for the offence of rape
has been discussed by our own Hon'ble High Court and it has been held in case
titled as Chanchal vs. State & Anr, in Crl. Rev. P. No. 366/2008 vide order dated
05.01. 2012 in para no.6 to 9 as under:-
6. I have heard counsels for the parties. It may be noted at this stage
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 10 of 18
that Respondent no.2 has not disputed the fact that there were
sexual relations between him and the Petitioner. The said sexual relations are supported by the medical certificate dated 2nd May, 2007 confirming the abortion and the medical examination which was conducted on 18th June, 2007. the allegations of rape in this case are twofold. The first allegation which is covered under the second description prescribed in Section 375 r/w 90 IPC arises when the Respondent no.2 obtained the consent of the Petitioner for sexual relations in lieu of marriage till 9th May, 2007 and the second allegation which is covered under the fourth description prescribed in Section 375 IPC wherein the Petitioner had sexual relations with the Respondent no.2 after 16th May, 2007 thinking him to be her lawfully wedded husband.
7. Learned counsel for the Respondent no.2 has relied upon Pradeep (supra). In the said case the Hon'ble Supreme court had remitted the case back to the High Court to deal with the matter more elaborately. Their Lordships observed that in a case where the accused had no intention to marry the prosecutrix from very inception an offence under Section 376 IPC is made out. Even in the present case, from the statements of the witnesses recorded during investigation, prima facie it is apparent that Respondent no.2 had no intention to marry the Petitioner and married the Petitioner only after marrying someone else.
8. The learned counsel for the respondent no.2 argues that since he actually married the Petitioner, it cannot be said that he did not intend to marry her, to constitute misconception of facts. Since the Respondent No.2 had married one Nirmala before marrying the Petitioner, the marriage of the Petitioner and Respondent no.2 was not lawful. The fourth explanation to FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 11 of 18 Section 375 IPC contemplates a situation where the consent of the woman is taken on her believing to be lawfully married.
9. Reliance on Uday (supra) is also misconceived as the said decision was rendered in an appeal when the evidence had been led. The present case however is at the stage of framing of charge. At this stage the Court is only to see whether on the uncontroverted facts, there is a strong suspicion against the accused for having committed the offence.
14. Similar finding was given by our own Hon'ble High Court in case titled as Divya Oram Kujur vs State & Anr, Crl. Rev. P. No.193/2012 vide order dated 27.02.2013, that if the marriage is void ab initio since inception, the charge must be framed u/s 375.
15. While dealing with the issue of framing of charge u/s 376, 493, 494 and 406 IPC simultaneously the Hon'ble High Court of Delhi, in criminal revision No.720/2007 in case titled as Vinod Sharma vs State vide order dated 11.07.2011 as well as dealing with the issue of earlier complaints filed by the same complainant without making any allegation of commission of rape, it was held as under:-
8. The next set of allegations against the Petitioner is that at Nanital Petitioner and she performed marriage in their room and thereafter lived as husband and wife though this wedding was not recognized by anybody and thus, had physical relations. These allegations will not fall within the ambit of an offence punishable under Section 493 IPC which reads as under:-
"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage-Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 12 of 18 to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9. Section 493 IPC contemplates that a man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual relations with him shall be punished with an imprisonment of either description for a term which may extend to ten years. In this case both the parties were well aware of the f a ct that the wedding performed in the room at a hotel in Nainital was not a legal wedding. This is a case which falls within the ambit of Section 375 thirdly IPC where the consent of the woman has been sought by putting her in fear. Section 90 of the Indian Penal Code provides that a consent known to be given under fear or misconception is not a consent as envisaged in the Code. In this case initially sexual intercourse was performed with the complainant by putting her in a fear of injury to her and her brothers and thereafter on misconception of fact that he would marry her. She states that he refused to marry her as marriage offers Rs.10-12 lakhs were being received by him. Thus the present case falls within the ambit of Section 375 thirdly IPC punishable under Section 376 IPC. In view of these findings the contention that since it is a case under Section 493 and the same being non-cognizable the present charge sheet is liable to be quashed does not survive.
10. The reliance of the learned counsel for the Petitioner on the decision in Pradeep Kumar Verma (supra) is wholly misconceived. The allegations as set out therein were that the consent of the prosecutrix was taken on the promise of marriage. In the present FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 13 of 18 case the offence of rape was committed on the prosecutrix and when she protested, it is thereafter that a promise to marry her was made. Their Lordships of the Hon'ble Supreme court while discussing the element of consent held that reading the judgment in Uday's cae as a whole it did not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact and, thus, remanded back the matter for fresh consideration. Their Lordships laid emphasis on the fact that the stage of analyzing the factual material was yet to be undertaken and it is in cases where a bare reading of the FIR shows that no offence has been made out for proceeding the situation would be different. Thus, the law laid down by the Hon'ble Supreme Court in Pradeep Kumar Verma, Uday and Deelip Sing (supra) clearly laid down that misconception of fact which has an impact on the consent given by the prosecutrix is a question to be determined on the analysis of evidence adduced during trial.
11. I also do not find any merit in the contention of the learned counsel for the Petitioner that since the earlier complaints filed before the Magistrate and withdrawn did not make such an allegation leveled in the FIR now, are an afterthought and, thus, the Petitioner should be discharged on the said count. The scope of each petition is different. Even if the consent or the promise to marry rather asserted that she was married to the Petitioner, the same would be a question to be determined during the trial after confronting the witness with her previous statements. The law is well settled that if two views are possible at the stage of framing of charge and the facts alleged raise a strong suspicion, then the view in favour of the prosecution should be taken.
16. Now coming to the arguments raised on behalf of the parties. The first argument FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 14 of 18 on behalf of the accused is that no charge u/s 493, 494, 495 and 496 of IPC as well as 376 of IPC can be framed simultaneously is without any merit as it has been held in Bhupender Singh case (supra) that even if the complainant/prosecutrix was aware about the previous marriage of the accused, that cannot be a ground for lesser sentence but it cannot be ground absolving him from criminal liability of getting married again during the life time of the spouse. It was also held by the Hon'ble Supreme Court that in such case conviction of the accused u/s 376 of IPC is proper and in accordance with law.
17. In the present case, though, it has been argued on behalf of the accused that accused never married with the prosecutrix. However, the documents filed on record speaks for volumes about the marriage of the prosecutrix with accused. Further, the e-mail conversation dated 18.01.2007 and greeting card are on record wherein accused had addressed the prosecutrix to be his wife. There is statement of Smt. Shanti Devi u/s 161 Cr.P.C wherein she has categorically stated that after marriage, the accused and the prosecutrix returned to her Ashram and accused himself told her that he has married the prosecutrix. She further stated that she has seen the prosecutrix applying virmilian (Sindoor) on her forehead after returning from Goverdhan after marriage. Further, it is pointed out in arguments that in her statement u/s 164 Cr.P.C, the prosecutrix has categorically stated that she did not initiate proceeding for divorce against the accused as she was having no photographs but in her statement u/s 161 Cr.P.C she has improved her statement and stated that at the time of marriage, she took 2-3 photographs. Thus, there is material contradiction in her statement as well as improvement and therefore, it cannot be said that there was marriage between the parties. However, at the stage of framing of charge, the court has to see prima facie case and minor contradiction here and there in the statement of prosecutrix u/s 161 Cr.P.C and 164 Cr.P.C are consequential. Veracity of the statement of prosecutrix made before the police cannot be appreciated at the stage of framing of charge.
FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 15 of 18
18. From the statement of the prosecutrix along with statement of other witnesses placed on record, prima faice, it is clear that a marriage was performed between the parties. There was no denial on behalf of the accused that accused was legally divorced at the time of marriage with prosecutrix on 17.01.2007 and therefore, prima faice, it is established on record that at the time of contracting marriage with the prosecutrix, his spouse was alive and he was already married.
19. Next contention is that there are two previous FIRs registered against the accused by the complainant in Ghaziabad and in one of the complaint, she has disclosed that she came to know that accused is already having two wives. Thus, it has been argued on behalf of the accused that the accused cannot be tried and convicted for the same offence twice. The prosecutrix, if , has any grievance, she may approach to the court of Ghaziabad and file appropriate petition before the court and accused may be summoned by the court at the appropriate stage. However, this argument is having no merit. There is provision u/s 300 Cr.P.C which makes it clear that the principles of double jeopardy, contemplates that accused once has been tried by the court of competent jurisdiction for an offence and convicted or acquitted of such offence shall and till such conviction or acquittal remains in force, cannot be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made or for which he might have been convicted. However, in the present case, there was no conviction or acquittal of the accused in the FIRs registered in Ghaziabad. Moreover, those offences have been registered under the sections different from the sections in the present charge sheet. There was no charge sheet against the accused u/s 376, 493, 494, 495 and 496 of IPC in earlier FIRs and therefore, registration of the FIRs in Ghaziabad, is no bar for trial in the present matter. Moreover, as discussed herein above that making no allegation in the earlier complaint about the commission of rape and bigamy does not make any difference.
20. Other arguments advanced on behalf of the accused regarding jurisdiction etc FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 16 of 18 can be better appreciated only after trial and it is settled principle of law that once the complaint has been filed disclosing cognizable offence, police is bound to register the FIR and documents relied upon by accused cannot be considred at this stage.
21. Moresoever, at the stage of framing of a charge, probative value of the materials on records cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which has prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the provable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter u/s 227 or u/s 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the Investigating Agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. n this regard this court is supported with law laid down by the Hon'ble Apex Court and Hon'ble High Court reported as "UOI vs Prafulla Kumar, AIR 1979 FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 17 of 18 SC 366, State of Maharashtra and others vs Som Nath Thapa and other JT 1996 (4) SC 615, State of Bihar vs Ramesh Singh, AIR 1997 SC 2018: (1997 CRI LJ 1606), Umar Abdula Sakoor Sorathia vs. Intelligence Officer Narcotic Control Bureau JT 1999 (5) SC 394, Kalu Mal Gupta vs. State 2000 I AD Delhi 107".
22. From the statement of prosecutrix and statements of other witnesses as well as documents available on record, prima facie, there is sufficient ground to frame charge against the accused for the offences punishable u/s 493, 494, 495 and 376 of IPC. However, there is no material available on record to frame charge against the accused for the offences punishable u/s 323, 406, 420 and 496 IPC. Let charge be framed against the accused separately on 16.11.2015.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/30.10.15 FIR No.75/13 PS Naraina U/s 323/376/406/420/493/494/495/496 IPC State vs Anil Kr. Garg 18 of 18