Delhi District Court
Tilak Raj vs . State on 22 September, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0394342011
CA No: 43/11
Tilak Raj Vs. State
FIR NO: 607/1994
U/S 498A/494 IPC
STATE vs TILAK RAJ
IN THE MATER OF
Tilak Raj
S/o Late Sh. Lakshmi Narain Gupta
R/o 711, Military Road,
Anand Parbat, Delhi ....... Appellant / Convict
vs.
The State ......... Respondent
Appeal against the impugned judgment dated
20.9.2010 and order on sentence dated 28.7.2011
Date of Institution : 30.08.2011
Date of final hearing : 22.09.2011
Date of final order : 22.09.2011
Judgment on Appeal
1. This appeal is preferred by the appellant / convict against the impugned
judgment dated 20.9.2010 and order on sentence dated 28.7.2011 whereby
Ld. CMM sentenced the appellant / convict with imprisonment for a period
of 7 years apart from fine of Rs.10,000/ I/D three months SI U/s 494 IPC.
He was also sentenced to undergo RI for a period of 3 yrs and fine of
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Rs.10,000/ I/D three months SI U/s 498 A IPC. He was also directed to
pay compensation of Rs.2 lacs to the complainant and her daughter I/D six
months SI. Although the judgment of conviction of Ld. CMM dated
10.5.2011 has not been mentioned in the title as well as prayer clause
of this appeal, but as now prayed, this appeal is being considered
qua that judgment as well.
2. I have heard arguments of Ld. Counsel for convict Sh. Manoj Gorkel
and Ld. Addl. PP Sh. G.S.Guraya for State . I have also carefully gone
through the entire appeal file as well as through Trial Court Record.
3. Brief facts necessary for disposal of this appeal are that an FIR Ex.PW1/B
U/s 498A/406/494/323 IPC was lodged by complainant Smt. Urmila Devi
with PS Patel Nagar on 8.9.94 on a plea that she was married to Tilak Raj
16 years ago . Out of the marriage they were blessed with two daughters .
Tilak Raj used to subject Urmila with cruelty since the beginning of their
marriage for bringing insufficient dowry. He even tried to burn her for the
same. He used consume liquor heavily and used to beat her . He married
another lady and subjected her to more cruelties. When she was unable to
bear the atrocities , she shifted to her parental house 10 years ago (prior to
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lodging of FIR) and subsequently shifted to Baljeet Nagar where Tilak Raj
was living with his second wife Kamlesh. Tilak Raj and his family members
tried to evict her forcibly by beating her. She was threatened with burning
acid and kidnapping of her daughters. Her 35 tola gold and other silver
jewelery were misappropriated by Tilak Raj. On the day before lodging of
the FIR when she came back after attending court hearing, she found her
house lock broken and household articles scattered. She was assaulted
by her brother in law and brother of father in law . After lodging of the FIR ,
investigation was carried out, during which list of stolen articles Ex.PW1/A
was prepared, photographs of the marriage were seized vide Ex.PW5/A,
complainant was medically examined , statements of witnesses were
recorded. Upon conclusion of investigation charge sheet was filed against
Devender Kumar, Devki Rani and Ganga Parsad. Convict was initially
named in the column no,2 of the charge sheet as he was absconding and
evading his arrest. However, he was summoned by Ld. Magistrate.
4. Accused Tilak Raj was charged with commission of offence punishable U/s
494/498A/406/323 IPC. Other accused were charged with Section
498A/323 IPC. During the course of trial prosecution examined 7 witnesses
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including complainant / victim Urmila as PW1, her father PW2 Kabool
Singh, PW3 her mother Smt. Indirawati, PW4 WSI Suresh who recorded
the FIR. PW5 SI Surender Kumar Golia was Investigating Officer of this
matter. PW6 N.K.Bhardwaj, Sub Registrar of Mandir Marg who proved
birth record of male child born to Tilak Raj and Kamlesh on 10.1.1987 as
nd
Ex.PW6/A and 2 child born to the same couple on 16.12.1988 as
Ex.PW6/B, another child was born to them on 7.2.1989 and their birth
certificates are also proved as PW6/C and D . PW7 Raj Raheja is a
Nursing Sister who attended the birth of child born to Tilak Raj and
Kamlesh as per record Ex.PW7/B. It was followed by recording of 313
Cr.P.C. statement of accused. No evidence was led by the convict in his
defence.
5. During the course of trial accused Devki Rani and accused Ganga Parsad
expired and proceedings qua them stood abated.
6. After hearing both the sides, Ld. MM (Mahila Court) passed the judgment
of conviction against convict Tilak Raj for offences 494/498A IPC while
acquitted coaccused Devender Kumar on 20.9.2010. However, instead of
proceeding to pass order on sentence, Ld. Mahila Court opined as per her
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order sheet dated 1.11.2010 that Convict Tilak Raj deserves higher
punishment and as such she referred the matter to Ld. CMM. Thereafter
proceedings continued in the Court of Ld. CMM for about 8 months before
Court of Ld. CMM passed another judgment of conviction on 10.5.2011.
7. At this juncture Ld. Counsel for convict had initially expressed
apprehension as to how two judgments could be passed against the same
person under the same charge sheet and offences by two different courts.
Attention of Ld. counsel was drawn to Section 325 Cr.P.C. which provides
procedure which has to be adopted when a Magistrate can not pass
sentence sufficiently severe. For ready reference Section 325 Cr.P.C. is
reproduced here under:
8. Section 325 Cr.P.C. : Procedure when Magistrate can not pass
sentence sufficient:
(1) Whenever a Magistrate is of opinion, after hearing the evidence for the
prosecution and the accused, that the accused is guilty, and that he
ought to receive a punishment different in kind from, or more severe
than, that which such Magistrate is empowered to inflict, or being a
Magistrate of the second class, is of opinion that the accused ought to
be required to execute a bond under Section 106, he may record the
opinion and submit his proceedings, and fo rward the accused, to
the Chief Judicial Magistrate to whom he is subordinate.
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(2) When more accused than one are being tried together, and the
Magistrate considers it necessary to proceed under subsection (1), in
regard to any of such accused, he shall forward all the accused, who
are in his opinion guilty, to the Chief Judicial Magistrate.
(3) The Chief Judicial Magistrate to whom the proceedings are submitted
may, if he thinks fit, examine the parties and recall and examine any
witness who has already given evidence in this case, and may call for
and take any further evidence, and shall pass such judgment, sentence
or order in the case as he thinks fit, and as is according to law.
In case titled Pankajbhai Vs. State (2001) 2 SCC 595 it has been held that :
"If a Magistrate of the First Class thinks that the fact
situation in a particular case warrants imposition of a
sentence more severe than the limit fixed under section 29 of
the Code, the legislature has taken care of such a situation by
including section 325 for the purpose."
9. Plain reading of the above statutory provision shows that in sub section 1
the words used qua the original Trial Court / Magistrate is " Magistrate is of
opinion" and the words " he may record the opinion". However, in the Sub
Section 3 referring to CJM / MM the words used are "shall pass such
judgment" . Meaning thereby that Magistrate is only supposed to record
the opinion about the case and refer case to CMM Court while formal
judgment has to be passed by the CMM's Court.
10.In the matter in hand Ld. Mahila Court ended up passing a judgment
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instead of expressing her opinion otherwise. Ld. Mahila Court , in my
considered view, at the most, has committed a trivial technical irregularity
vis a vis the language used by legislature U/s 325 Cr.P.C . It goes
without saying that when it comes to recording of opinion qua a criminal
case, primarily the Criminal Trial Court expresses opinion only by way of
judgment. As such Ld. Trial Court can not be faulted upon for passing the
judgment dated 20.09.2010.
11.However, attention of this court is drawn to an astonishing fact that even
though legislature provides that actual formal judgment has to be passed by
the Court of Ld. CMM and as per order sheets preceding the judgment
passed by Ld. CMM on 10.5.2011 the matter was heard at length, written
arguments were also received , still Ld. CMM has, instead of passing his
own judgment under his dictation and words, Ld. CMM has simply copied
and pasted the judgment passed by Ld. Mahila Court on 20.9.2010.
Huge amount of stress has been laid by Ld. Counsel for convict on this
score by claiming that it is an act of serious miscarriage of justice. It is
vehemently argued that upon comparison of judgment of Ld.Mahila Court
dated 20.9.2010 with judgment of Ld. CMM dated 10.5.2011, it is
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apparently evident that the entire judgment has been copied word to word
and para to para. It is argued that what is more disturbing is that as per
order sheet of Ld.CMM dated 10.5.2011, he has mentioned that the
judgment is typed on his dictation, which does not appear to be the case.
12.Although factually Ld. Counsel for convict is correct that it appears to be a
case of total non application of mind on the part of Ld. CMM in copy
pasting the entire judgment of Ld. Mahila Court but in my considered view
the essence of the judgment can not be faulted upon on this score alone. It
would have been appropriate for Ld. CMM to follow the finding of Ld,
Mahila Court in spirit but he should have been careful and diligent enough
in wording his judgment in his own words. I am not inclined to acquit the
convict on this technical flaw.
13.As far as merits of this appeal are concerned, First plea taken by Ld.
Counsel for appellant / convict is that out of the evidence available on
record, the offence of 498A IPC does not stand prove . It is argued that
convict lastly lived with his complainant wife and two girl children sometime
in the year 1982. For ready reference 498A IPC is reproduced hereunder:
498 A : Husband or relative of husband of a woman
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subjecting her to cruelty - Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall
also be liable to fine.
14.At this juncture it would be appropriate to refer to relevant judgments on
the ingredients of Section 498A IPC and word "Cruelty"
15.Ld. Counsel for convict has relied on case title , " Dharam Pal vs. State"
1997 (3) CCC Page 1 wherein Hon'ble High Court ruled:
" To attract the provisions of Section 498A and 304B
IPC , it must be shown that the husband or the relatives
of the husband of the woman has been subjected to
cruelty. For purposes of this Section, cruelty has been
defined to mean any willful conduct which is of such a
nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health
of the woman or harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet any unlawful
demand for any property or valuable security or is on
account of failure by her or any person related to her to
meet such demand.................... To attract the
provisions of Section 498A of the IPC, the allegations
made should be specific and not vague."
16.In another case titled , " Ravindra
Pyarelal Bidlan & Ors. Vs. State of
Maharashtra" 1993 Cr. L.J. 3019 it was held :
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" Section 498 A provides that when a husband or a relative
of the husband of a woman subjects such woman to cruelty
he shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
The term cruelty has been defined in the explanation in S.
498A. Hence, it is not any and every cruelty that it is made
punishable but only the cruelty as defined under the
explanation."
17.In another case titled , " Ram Singh Vs. State " 2008 (4) SCC 70 while
dealing with a 498 A IPC matter Hon'ble Supreme Court ruled:
" High Court has fallen in a grave error in appreciating
evidence. It is well settled that facts are to be proved and
no fact can be said to be proved merely by surmise or
conjuncture"
18.In case titled "Asokan Vs. State (2000) 4 SCC 68", Hon'ble Supreme
Court ruled that it is not every harassment or every type of cruelty that
would attract Section 498 A IPC. It is also ruled that it must be
established that beating and harassment was with a view to force the
wife to commit suicide or to fulfill illegal demands of husband and in
laws.
19.Coming to the merits of this case the accusations made by complainant
against the convict qua the cruelty are that she was beaten up badly for
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brining money form her parental house after 5 years i.e. around 1987.
There is a mention of an incident when she was allegedly partially burnt but
there is nothing on record to show that it was qua demand of any dowry but
this act in itself was sufficient to endanger the life of complainant. However,
it was not relied by Ld. Trial Court itself, since the incident was referred to
by the complainant herself as an accident though kerosene stove.
20.Even the allegation of bigamy pertains to the year 1986 and as such it was
8 years ago prior to lodging of FIR. Although Section 494 IPC is punishable
with imprisonment up to 7 years but as far as 498A IPC is concerned, the
maximum imposable sentence is 3 years. Even though the plea of
limitation has not been raised by the convict in this appeal, but it has to be
borne in mind that as per Section 468 Cr.P.C. , the period of taking
cognizance of such an offence like 498A IPC is only 3 years. IN the entire
FIR , as detailed supra, the allegations leveled against the convict are 810
years old. One incident of preceding day prior to lodging of FIR of
manhandling does not pertain to demand of dowry and also does not
qualify the requirement of 498A IPC. Moreover, it is not qua convict Tilak
Raj all.
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21.In another case titled, Smt.
Veena Kapoor Vs. The State of NCT of
Delhi" 2007 (4) CCC (HC) 209 Hon'ble High Court ruled:
" Needless to state, for an offence under Section 498 A IPC,
limitation is 3 years."
22.Same view was taken by Hon'ble High Court in 2003 (1) CCC (HC) 6 in
.
case titled Smt Basant Kaur Vs. State (NCT of Delhi)
23.In another case titled , V. Radhamanohri Vs. V. Venktareddy 1993 SCC Crl. 571 Hon'ble Supreme Court held that, " Dealing with 498 A IPC matter Courts can invoke 473 Cr.P.C. to overcome the power of 468 Cr.P.C as per the facts and circumstances of the case".
24.In view of the above case law it is evident that 498A IPC is technically not a continuing offence but Courts are advised to invoke section 473 Cr.P.C. for overcoming the bar in 468 Cr.P.C. In the initial order of taking of cognizance dated 11.5.1995 there is nothing to show that Ld. Magistrate was requested to invoke 473 Cr.P.C. or that Ld. Magistrate did so on its own. In the absence thereof, I have no hesitation in concluding that all the accusations of cruelty mentioned in the FIR as well as in the statements of witnesses are per se time barred and as such no finding of conviction U/s Page 12 / 17 of Appeal Tilak Raj Vs. State dt.22.9.2011 13 498A IPC could have been passed.
25.As far as 494 IPC is concerned, same is reproduced hereunder for ready reference:
494 IPC: Marrying against during lifetime of husband or wife
- Whoever, having a husband or wife living, marries in any case in which such marriage is void by 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 extent to seven years and shall also be liable to fine.
26.In this regard it has come in the deposition of PW1 complainant/victim Urmila Goel that convict Tilak Raj remarried with Smt. Kamlesh and started living with her in house No., C235, Baljeet Nagar, Delhi. Not only this convict also had three children out of his second bigamous illegal marriage. She was in personal knowledge of the fact as she too was living in the same house with her two minor girls. This fact has also specifically come on record in the deposition of PW2 Kabool Singh and PW3 Indirawati. As per these witnesses, convict was living with Smt. Kamlesh and they were received and treated by relatives and neighbours as husband and wife. Evidence further reveals that deposition of PW1 qua residing under the same roof with second wife Kamlesh has not been disputed by the defence Page 13 / 17 of Appeal Tilak Raj Vs. State dt.22.9.2011 14 in cross examination.
27.Further more, deposition of PW6 and 7 in the light of birth record documents Ex.PW6/A to D apart from Ex.PW7/A and B categorically show that convict and his second wife Kamlesh were blessed with three children and these documents contain specific name of the mother as Kamlesh and name of convict " Tilak Raj Aggarwal" as father. Also certain other documents like telephone bill, electoral roll details, ration card particulars have also been marked on record but they could not be duly proved. Prosecution has even examined PW7 Smt. Raj Raheja , one of the nurse who attended the birth of a girl child born to convict and his second wife Kamlesh.
28.Section 50 of the Evidence Act in this regard is of utmost relevance.
50.Opinion on relationship, when relevant When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such, relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Page 14 / 17 of Appeal Tilak Raj Vs. State dt.22.9.2011 15 Divorce Act, 1869 ( 4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code 1860 (45 of 1860).
Illustrations
(a)The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
29.In AIR 1952 SC 231 Hon'ble Supreme Court ruled that : Unless there is material to prove contrary, continuous cohabitation can lead to presumption of lawful marriage ."
30. In Reema Aggarwal Vs. Anupam AIR 2004 SC 1418 while dealing with the case 494 and 498A IPC and the issue of validity of marriage , Hon'ble Supreme Court observed :
"Where a man and woman have been proved to have lived together as husband and wife , the law will presume, until contrary be clearly proved , that they were living together in consequence of a valid marriage and not in a state of concubinage ....... where a marriage is accepted as valid by relations, friends and others for a long time, it can not be declared as invalid..... when the fact of celebration of marriage is established, it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through ."
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31.In Ratan Lal and Dhiraj Lal's Book on "Law on Crimes" it has been observed by the Author The true import of the proviso to section 50, Evidence Act, is that opinion evidence in a prosecution under section 494 shall not be sufficient by itself to prove a marriage. This proviso does not rule out other forms of admissible evidence to prove the marriage. Such other evidence may take the shape, or be of the nature, apart from direct evidence, of circumstantial evidence or even presumptive evidence. These two varieties of evidence for proving marriage are not shut out by two authorities of the Supreme court, namely Bhaurao Shankar and Kanwal Ram either expressly or by implication. Therefore, it is open to the Court to reach a finding about the factum of marriage on the basis of combined reading of all varieties of admissible evidence including the opinion evidence of the nature mentioned in the main body of section 50, Evidence Act. (p.2686)
32. As such while summarising the entire gamut of evidence brought by the prosecution on record, it is reiterated that convict stands acquitted U/s 498A IPC but qua 494 IPC, I have no hesitation in concluding that Ld. Magistrate has correctly convicted him for commission of offence punishable U/s 494 IPC as factum of contacting a second marriage during continuation of first marriage is duly proved . As such impugned judgment is upheld as far as Section 494 IPC is concerned.
33.So far as quantum of sentence is concerned, as detailed supra, after Page 16 / 17 of Appeal Tilak Raj Vs. State dt.22.9.2011 17 expressing its opinion, Ld, Mahila Court marked the matter to the Court of Ld.CMM for higher sentence. Vide impugned order on sentence dated 28.7.2011 convict was imposed a sentence of 7 years RI apart from fine of Rs.10,000/ in addition to Rs,2 lacs compensation. On the legality of the sentence, it is observed that as per Section 357 (3) Cr.P.C , no order on compensation can be passed when an sentence of imposition of fine has been passed. In the matter in hand, considering the totality of circumstances, the fine of Rs.10,000/ is waived , substantive RI of 7 years is reduced to RI of 5 years while compensation of Rs.2 lacs is enhanced to Rs.3 lacs I/D six months SI. Convict is granted benefit of Section 428 Cr.P.C. as convict is in jail since 28.7.2011 after this conviction. He is already in custody and he be now sent back to jail to undergo the modified sentence.
34.Appeal accordingly stands disposed of. Copy of the judgment be supplied to convict through his Ld. Counsel . Appeal file be consigned to RR. TCR be sent back with copy of this order. Warrants be prepared accordingly.
ANNOUNCED AND DICTATED IN
OPEN COURT ON : 22.09.2011 (SURINDER S. RATHI)
Addl. Sessions Judge02Central : Delhi
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