Delhi District Court
Amarjeet Kaur vs ) Harjeet Singh on 21 March, 2018
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
CC No. : 2688/2016
P.S. : Tilak Nagar
Unique Case ID No. 2688/2016
Amarjeet Kaur, W/o Sh. Harjeet Singh,
R/o 2100/3H, Street No. 14, Prem Nagar, West Patel Nagar,
New Delhi.
Vs.
1) Harjeet Singh, S/o Sh. Sardar Santokh Singh,
R/o H. No. WZ-624, Shiv Nagar, Jail Road,
New Delhi-110058.
2) Gurmeet Kaur, D/o Sh. Sardar Amarjeet Singh,
R/o H. No. WZ-G-52, Sant Nagar Extension, near Tilak Nagar,
New Delhi.
Date of institution of case : 10.09.2005
Date of reserving the judgment : 15.03.2018
Date of pronouncement of judgment : 21.03.2018
JUDGMENT
1. S. No. of the Case: 2688/2016
2. Date of Commission of Offence: 01.02.2003
3. Date of institution of the case: 10.09.2005
4. Name of the complainant: Amarjeet Kaur
5. Name of the accused: 1) Harjeet Singh and
CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 1 of 17
PS Tilak Nagar
2) Gurmeet Kaur
6. Offence complained or proved: 494/109 IPC
7. Plea of Accused: "Not Guilty"
8. Final Order: Convicted
9. Date of Final Order: 21.03.2018
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this order, I shall dispose of the complaint filed under section 494/109 IPC against the accused Sh. Harjeet singh & Ms. Gurmeet Kaur by the Complainant Ms. Amarjeet Kaur.
2. The present complaint was filed by the complainant on 23.08.2005 alongwith the application under section 156(3) CrPC seeking registration of FIR against the accused persons. The directions for the registration of the FIR were also given on 27.11.2006. Thereafter, vide order dated 21.04.2008, the report of the SHO concerned was accepted that the congnizance of the offence can only be taken on the complaint of the aggreived in view of the provision of section 198 CrPC as offence is a non congnizable offence. Thus, congnizance of the offence was taken on 21.04.2008 and the matter was kept for the pre -summoning evidence. The complainant examined seven witnesses and closed the pre- summoning evidence on 24.05.2008. The summoning order was passed on 04.08.2008 vide which the accused Harjeet Singh, Gurmeet kaur alongwith accused persons from serial no. 3 to 16 were summoned under CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 2 of 17 PS Tilak Nagar section 494/109/34 IPC.
3. After the accused persons appeared before the court, the matter was kept for the pre-charge evidence. The complainant adopted her testimony given in the pre-summoning evidence and she was duly cross examined by the accused persons. The complainant did not examine the witness from CW2 to CW4 and CW6 who were examined in the pre-summoning evidence in her pre-charge evidence. The witness CW5 namely Sardar Rish Pal Singh adopted his pre-summoning evidence and was duly cross examined on 05.03.2011. The witness CW7 Sh Hem Kumar, Sh. Harnek Singh & Sh. Lakhwinder Singh were also examined and duly cross examined by the accused persons. The pre-charge evidence was closed by the complainant on 17.07.2012.
4. After recording of the Pre-charge evidence, the matter was kept for orders on charge. The order on charge was passed on 25.02.2016 and prima facie case was found to be made out against accused Harjeet Singh under section 494 IPC & Gurmeet Kaur under Section 494/109 IPC. Rest of the accused persons were discharged from the case due to lack of evidence against them. The charge was framed against the accused persons separately to which they pleaded not guilty and claimed trial. Thereafter, the matter was kept for post charge complainant evidence. The complainant adopted her pre- charge evidence in the post charge evidence and the accused also adopted the cross examination of the complainant conducted in the pre-charge evidence during post charge CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 3 of 17 PS Tilak Nagar evidence. Thereafter, the complainant failed to lead post charge evidence despite last and final opportunity which resluted into the closure of her right to lead post charge evidence. Then, the statement of the accused persons were recorded on 19.09.2017. The accused persons did not lead defence evidence and the same was closed on 26.10.2017. The final arguments were heard from both the parties and the matter was kept for orders.
5. In order to decide the present case, it will be pertinent to refer to the provisions of section 494 and 109 IPC which are as follows:
Section 494 : Marrying again 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 extend to seven years, and shall also be liable to fine.
(Exception) - This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 4 of 17 PS Tilak Nagar subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Section 109 :
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.
--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
6. In order to establish the offence under section 494 and 109 IPC, the complainant had to prove the following ingredients:
(i) that the accused Harjeet Singh was already married to the complainant Amarjeet Kaur.
(ii) that while his marriage with complainant Amarjeet Kaur was subsisting, the accused Harjeet Singh contracted the second marriage CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 5 of 17 PS Tilak Nagar with the accused Gurmeet Kaur.
(iii) that both the marriages have been valid in the sense that the essential ceremonies were performed as required by the personal laws which in the present case will be sikh customary rights i.e performance of Ananad Karaj.
(iv) that the accused Gurmeet kaur abetted the commission of above offence despite knowing about the first marriage of accused Harjeet Singh.
7. Before I advert to examine the testimony of the witnesses, the question which requires deteremination is that whether the evidence of the witnesses conducted in the pre charge evidence can be relied by this court, even if the same witnesses were not called again for examination in the post charge evidence. It will be pertinent to refer to the judgement of hon'ble apex court in case titled as State of Goa v. Jose Maria in criminal appeal no. 1427-1428 of 2017 held as follows:
"...27. With regard to cases instituted otherwise than on police report, the procedure is outlined in Sections 244 to 247 of the Code. In terms of Section 244, when in any warrant case, instituted otherwise than on police report, the accused appears or is brought before the Magistrate, the latter shall proceed to hear the prosecution and take all such evidence as may be produced, in CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 6 of 17 PS Tilak Nagar support of the prosecution. It is subsequent thereto, as per Section 245, that if upon taking all the evidence so produced, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the Magistrate would discharge him. Section 245(2)empowers the Magistrate to discharge the accused at any previous stage of the case, if, for reasons to be recorded by such magistrate, he considers the charge to be groundless. In case, however, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under the Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing, a charge against the accused, as ordained by Section 246(1). Thereafter, the charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. However, if the accused refuses to plead guilty or does not plead so or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether, he wishes to cross-examine any, and if so, which of the witnesses for the prosecution, whose evidence has been taken and if he elects to do so, the witnesses named by him, would be recalled CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 7 of 17 PS Tilak Nagar and, after cross-examination and re-examination (if any), they would be discharged. As per Section 246(6), the evidence of the remaining witnesses for the prosecution would next be taken and after cross- examination and re-examination, if any, they shall also be discharged. It is subsequent thereto, that in terms of Section 247, the accused would then be called upon to enter upon his defence and produce his evidence; and thereafter the provisions of Section 243, applicable for cases instituted on a police report, would apply. Eventually, however, depending upon whether the accused has been found guilty or not, the order of conviction or acquittal would follow.
28. The strikingly distinguishable feature in the procedures to be adopted for cases instituted on a police report and those instituted otherwise than on a police report, lies in the fact that whereas in the former, there is no scope for the prosecution to examine any witness at the stage where the Magistrate is to consider whether a charge is to be framed or not, in cases instituted otherwise than on a police report, after the accused appears or is brought before the Magistrate, the prosecution is required to adduce all such evidence in support of his case, whereupon the Magistrate may discharge the accused, if he is of the view, for reasons to be recorded on the basis of such evidence, that no case had been made out against him, which if unrebutted, would warrant his conviction. However, if the Magistrate is of the opinion, in view of such evidence, or also at any previous stage of the case, that there is ground for presuming that the accused has committed an offence triable under the Chapter and CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 8 of 17 PS Tilak Nagar which he is competent to try and adequately punish, he shall frame a charge against the accused. Subsequent thereto, if the accused refuses to plead guilty or does not plead so or claims to be tried, vis- a-vis the charge, he would be offered an opportunity to cross- examine any of the witnesses of the prosecution, whose evidence had been taken and on which the charge is founded and if the accused elects to avail this opportunity, the witnesses named by him would be recalled and after cross-examination and re-examination, they shall be discharged. Thus, not only the prosecution, in the cases instituted otherwise than on a police report, would have an opportunity to adduce all such evidence in support of its case on which, on a consideration whereof, the accused may be charged or discharged, as the case may be, the latter can avail the opportunity of cross- examining the witnesses only after the charge is framed. As Section 246(6) would authenticate, the prosecution would thereafter have another chance of examining the remaining witnesses, who understandably, if examined, would be subjected to cross- examination and re-examination before their discharge."
Thus, it can be inferred from the above stated judgement that the evidence lead during pre charge evidence can be relied and prosecution gets further opportunity to examine any other witness in the post charge evidence. The accused can call any witness again to cross examine him/her. The accused adopted his pre charge evidence of the cross examination of the complainant and no further request was made to cross CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 9 of 17 PS Tilak Nagar examine any witness again.
8. In order to decide the present complaint, i will scrtuinize the testimony of each witness and will also give conclusion with regard to fact proved by the said witness. Therafter, on the basis of the said conclusion, it will be decided whether all the ingredients as mentioned in para 6 of the order stands established or not. The testimonies of the witnesses are as follows:
(a) CW1 Amarjeet Kaur : The witness is the complainant in the present complaint. She deposed that she married accused Harjeet Singh on 20.11.96 at Gurdwara Mansarovar Garden, Kirti Nagar. She was also blessed with one son Prabjot singh out of wedlock. Thereafter, she was harrased for dowry articles. She further deposed that accused Harjeet Singh soleminsed his marriage with accused Gurmeet Kaur @ Neetu on 01.01.2003 at WZ G 52 Sant nagar Ext. without getting divorce from her at the residence of accused Gurmeet Kaur. She also named the relatives of the accused Harjeet Singh who were discharged later on. She also filed complaint before CAW cell and accused no 1 also filed divorce petition which was dismmised in default. The witness during the cross examination admitted that she did not witness the marriage between accused Harjeet Singh and Gurmeet Kaur @ Neetu and did not see the relatives of the accused Harjeet Singh attending the marriage. She also stated that she cannot recall who had told her about their marriage and she came to know about the marriage after 25 th april, 2003. The CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 10 of 17 PS Tilak Nagar suggestions put to the witness by the accused clearly shows that he did not dispute his marriage with the witness. There is a suggestion put to the witness denied by her that she is getting maintenance as per court directions is one of the example.
Facts proved: The witness has been able to prove her marriage with the accused Harjeet Singh as the same was never denied by the accused Harjeet Singh which can be ascertained from the suggestions and questions put to the witness. Thus, the fact of the first marriage of accused Harjeet Singh with the witness stands proved.
(b) CW5 Sardar Rish Pal Singh : The witness deposed that he was doing the work of Granthi( priest) on 01.01.2003. The accused Harjeet Singh called him for performing a marriage work by sikh rituals. The marriage was between Harjeet Singh and Gurmeet kaur. The witness completed all the rituals from 8:00 am to 10:00 am on 01.01.2003. The witness had completed 'ardas', ' Four pheras' and taking some sweets & lunch. He further stated that the marriage was soleminsed at G-42/WZ, Sant Nagar, Tilak Nagar, New Delhi. The witness was duly cross examined by the accused persons. The witness stated in the cross examination that he does not know the address of accused harjeet singh who had called him on 01.01.2003 and number of persons were present when the marriage was going on. The witness also stated that he cannot tell the number of house where he was called. He reached when the CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 11 of 17 PS Tilak Nagar marriage was going on and he did ardas and four pheras between the accused persons. The witness correctly identified the accused Harjeet Singh. The witness stated that he does not have any I card relating to granthi from any gurdwara. The marriage was solemnized in a gali and he does not remember the number of the gali. There was no photograph taken in his presence by any photographer or by any person. The accused persons were not taken to any gurudwara for marriage. The witness did not bring guru granth sahib and the same was brought by the accused persons themselves. The witness stated that no signatures of the accused persons were taken on any register or there is any entry in the gurduwara of the marriage. The witness also stated that he has seen in other marriages about the photographs being taken.
Facts proved: The witness has been able to prove that he performed the marriage as per customary rituals prevailing in sikh ceremony by completing ardas and four pheras. The witness also stated that for performing marriage, the Guru Granth Sahib was brought by the accused. The witness also correctly identified the accused. The witness has not stated that he was affilaited to any gurdwara at the time of performing the marriage and simply stated that he was working as a granthi on 01.01.2003, therefore, the question of taking any signatures on any register or entry in the gurdwara does not arise. It is not essential that to perform a marriage as per sikh rites, the Granthi had to be affilaited to any gurudwara. He should have the knowledge of essential ceremonies CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 12 of 17 PS Tilak Nagar which he has been able to clearly tell in his evidence. The testimony of the witness shows that the essential ceremonies as per sikh rites and rituals were performed by him. The fact that no photographer had taken the photos of the marriage is not sufficient to doubt the soleminsiation of the marriage as the accused could have deliberaltely not called the photographer to take the photos.
(c) CW7 Hem Kumar: The witness deposed that he had attended the marriage of Amarjeet Kaur and Harjeet Singh which was soleminsed at Mansarovar Gurdwara. Therafter, he had visiting terms with the family of the complainant Amarjeet Kaur and Harjeet Singh. Witness further deposed that the accused Harjeet Singh had solemnised his second marriage with accused Gurmeet Kaur on 01.01.2003 at the residence of accused Gurmeet Kaur at G-52, Sant Nagar, Tilak Nagar, New Delhi. He also stated that both the parties had taken pheras in his presence and there were sixty to hundred people present. He stated that Harjeet Singh had invited him to the marriage. He also advised the accused not to enter into second marriage. The marriage ceremony was concluded around 10:30 AM. The witness in his cross examination stated that he has not seen the phera ceremony and he attended the second marriage from 11:30 AM to 12:30 PM. He did not count the pheras. The witness could not tell the address of the accused Harjit Singh. The witness admitted that in the first marriage of accused Harjeet Singh, he was invited by one person Iqbal singh whom he know as both are in the transport business. The witness admitted that he told Iqbal Singh about second marriage of CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 13 of 17 PS Tilak Nagar accused to iqbal singh over telephone but did not tell the same to the complainant. The witness denied that he does not have any friendly relationship with the accused Gurmeet kaur. The witness stated that he know accused from the year 1996 and used to meet him occasionally till 2003 and thereafter he did not meet him.
Facts proved: The witness had stated that he was there at the time of the second marriage and just because he had not seen the phera ceremony is not sufficient to doubt his testimony. The witness had been able to corroborate the testimony of CW5 that marriage had taken place on 01.01.2003 at the residence of the accused Gurmeet Kaur. The minor contradiction with regard to the address and time of the place where the second marriage took place cannot be regarded as material due to the lapse of the time. However, the witness has been able to stand by his testimony and no material contradiction could come out during his cross examination.
(d) CW8 Harnek Singh: The witness deposed that he has visiting terms with the family of the complainant and the accused. The accused Harjeet Singh got married to the complainant 15-16 years ago and they also have a son out of the wedlock of marriage. The marriage between the accused Harjeet Singh had solemnised on 01.01.2003 which took place at the house of Gurmeet Kaur and he attended the same. He was told by the accused Harjeet Singh that he had taken divorce from the complainant. He came to know about the fact that no divorce had taken place between CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 14 of 17 PS Tilak Nagar accused Harjeet Singh and Amarjeet Kaur, when he had visited the house of the complainant after 5-6 days from the date of second marriage. The witness during his cross examination stated that he does not know the address of the accused Gurmeet Kaur. He further stated that phera ceremony took place in the house whereas the tent was fixed outside the house. He stated that he was not present at the side where phera ceremony had taken place. The witness also stated that he recieved the invitaion card from Harjeet Singh for the second marriage but he cannot produce the card as he destroyed the same. The witness stated that he cannot tell the name of the persons who attended the marriage.
Facts proved: The witness had been able to prove the date on which he attended the second marriage of accused Harjeet Singh with Gurmeet Kaur. The witness had categorically stated that phera ceremony had taken inside the house and he was outside the house in the tent. Generally, the people do not keep the marriage cards intact and it will be highly expected out of the witness to produce the card after such long time when he had deposed before the court. Further, the witness had told that he destroyed the card. The witness had been able to corroborate the testimony of CW5 that marriage had taken place on 01.01.2003 at the residence of the accused Gurmeet Kaur. No material contradiction could come out in the cross examination with regard to the material aspects of the case.
(e) CW9 Lakhvinder Singh: The witness deposed that he was doing the CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 15 of 17 PS Tilak Nagar wooden work and he has also worked at the house of the complainant. He had attended the first marriage of accused Harjeet Singh with complainant in the year 1995. The accused told him about his planning of second marriage and he advised him not to enter into the second marriage without taking the divorce. He had attended the second marriage of the accused Harjeet Singh with Gurmeet Kaur in the year 2003. The witness during the cross examination had stated that the second marriage took place at the house of Gurmeet Kaur. The witness also attended the phera ceremony.
Facts proved: The witness had been able to prove that he had attended the second marriage of the accused Harjeet Singh at the house of accused Gurmeet Kaur and also seen the pheras ceremony. No material contradiction could come out in the cross examination with regard to the material aspects of the case.
9. The fact of marriage between the complainant and accused Harjeet Singh stands amply proved by the testimony of the above witnesses. Further, the accused in his statement under section 313 CrPC had clearly categorically stated that the complainant is still not divorced by him. The witnesses had been able to prove that they had attended the second marriage of the accused Harjeet Singh with the accused Gurmeet Kaur. The witness CW5 has been able to prove that essential ceremonies as per sikh rites which were performed during the second marriage of the accused Harjeet Singh with the accused Gurmeet Kaur. The accused CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 16 of 17 PS Tilak Nagar could not establish any motive on the part of these witnesses to have deposed against the accused Harjeet Singh or that they were interested witnesses, deposing in the favour of the complainant. Thus, the fact that accused Harjeet Singh had married the accused Gurmeet Kaur as per proper ceremonies during the subsistence of his marriage with the complainant Amarjeet Kaur stands established. The fact that the accused Gurmeet Kaur had abetted the commission of crime as she had facilitated the second marriage of accused Harjeet Singh at her residence also stands established. No explanation or evidence whatsoever has come on behalf of the accused Gurmeet Kaur that she was not aware about the first marriage of the accused Harjeet Singh with Amarjeet Kaur. The accused Gurmeet Kaur had simply denied the marriage with accused Harjeet Singh during the statement under section 313 CrPC which cannot be believed in view of the testimony of the witnesses who had been able to prove the second marriage of the accused Harjeet Singh with Gurmeet Kaur.
10. The complainant had been able to establish all the ingredients of the offences beyond reasonable doubt. Hence, the accused Harjeet Singh stands convicted for the offence under section 494 IPC and accused Gurmeet Kaur under section 494 readwith section 109 IPC.
Announced in open Court (ABHISHEK KUMAR)
on 21st day of March 2018 Metropolitan Magistrate
West-05, Delhi
CC No. 2688/16 Amarjeet Kaur v. Harjeet Singh & Anr. 17 of 17
PS Tilak Nagar