Crl.Appeal No. 135-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.135-SB of 1999 Date of decision: 25.3.2011 Sant Kaur ... Appellant versus Surinder Paul Kaur and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Naresh Parbhakar, Advocate, for the appellant. Mr.F.S.Virk, Advocate, for respondent-complainant. ... JORA SINGH, J. This is an appeal by Sant Kaur to challenge the judgment dated 16.12.1998 passed by Additional Sessions Judge, Fatehgarh Sahib. By the said judgment, appeal of the appellant against the judgment and order dated 21.8.1995 by JMIC, Fatehgarh Sahib, was dismissed. Prosecution story, in brief, is that Surinder Pal Kaur filed private complaint against Ranjit Singh and others on the allegation that Chuhar Singh and Mohinder Kaur approached father of the complainant in the month of May, 1988, for her marriage with Ranjit Singh. All the accused had assured father of the complainant that Ranjit Singh was unmarried and carrying good reputation. As per assurance of the accused, father of the complainant agreed to marry the complainant with Ranjit Singh and their marriage was performed on 26.6.1988 at Village Raille by Anand Karaj ceremony. Dowry articles mentioned in Annexure-A were given to Crl.Appeal No. 135-SB of 1999 2 the accused party at the time of marriage in the presence of relations and friends of father of the complainant including Bahadur Singh, Atma Singh, Ram Singh, Shingara Singh and Darbara Singh. Complainant stayed at the house of Ranjit Singh for about one week and during this period, she came to know that Ranjit Singh was already married with Bimal Kaur @ Satvinder Kaur. Bimal Kaur is still alive. Marriage of the complainant with Ranjit Singh was procured by all the accused to defraud her and her family members by concealing the factum of first marriage of Ranjit Singh with Bimal Kaur. Ranjit Singh also used to abuse and insult the complainant for want of dowry. On receipt of letter from the complainant, father of the complainant had gone to the house of the accused and requested to return the dowry articles, but they refused to return the dowry articles. Preliminary evidence was led and vide order dated 12.9.1988, Ranjit Singh and Sant Kaur were summoned to face trial under Sections 406/495 IPC. After appearance of the accused, evidence was led. Vide judgment dated 22.1.1990, Ranjit Singh and Sant Kaur were discharged. Against the judgment dated 22.1.1990, revision was preferred and vide judgment dated 14.5.1993, revision was accepted. As per judgment of Revisional Court, Ranjit Singh and Sant Kaur had appeared before the Court of SDJM, Fatehgarh Sahib. Charge was framed under Sections 495/109 IPC. After charge, witnesses were further cross-examined. After close of the evidence, accused were examined under Section 313 Cr.P.C. Allegation of the accused was that witnesses are related to the complainant and they were falsely implicated. Ranjit Singh Crl.Appeal No. 135-SB of 1999 3 was not married. No dowry was given by the father of the complainant. Complainant was married with Manmohan Singh and there is one issue from this wedlock. In defence, DW1Raj Kaur, Staff Nurse, was examined. After hearing learned counsel for the complainant, learned counsel for the accused and from the perusal of evidence on the file, Ranjit Singh and Sant Kaur were convicted under Sections 495/109 IPC. Under Section 495 IPC, Ranjit Singh was sentenced to undergo RI for 2 years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 6 months. Under Sections 495/109 IPC, Sant Kaur was sentenced to undergo RI for 2 years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 6 months. Against the judgment of conviction and order of sentence dated 21.8.1995, appeal was preferred by Ranjit Singh and Sant Kaur but appeal was dismissed by the Court of Additional Sessions Judge, Fatehgarh Sahib, vide judgment dated 16.12.1998. Sant Kaur was ordered to be released on probation. Against the judgment dated 16.12.1998, revision was preferred by Ranjit Singh but vide judgment dated 22.12.1998, revision was dismissed. Sentence was reduced from two years to one year. Against the judgment dated 16.12.1998 vide which present appellant was ordered to be released on probation, appeal was preferred. I have heard learned counsel for the appellant, learned counsel for respondent No.2 and have gone through the evidence on the file. Learned counsel for the appellant argued that appellant did not attend the marriage of Ranjit Singh with respondent-complainant. Crl.Appeal No. 135-SB of 1999 4 Respondent-complainant failed to lead cogent and convincing evidence as to what were the essential ceremonies performed to perform marriage of Ranjit Singh with her. Admission of marriage by the accused is no evidence in the eyes of law to prove the marriage for conviction under Section 495 IPC. Parties are Sikhs by caste and are governed by the Anand Marriage Act (VII of 1909). No witness stated that Marriage of Ranjit Singh with Bimal Kaur was performed according to specific requirement of the Act. No Granthi was examined, who performed the ceremonies qua first marriage or the alleged second marriage. Respondent-complainant did not state a word that appellant was present at the time of marriage and what religious rites/ceremonies applicable to the parties were performed to perform the second marriage of Ranjit Singh. Learned counsel for respondent-complainant argued that conviction of appellant is under Sections 495/109 IPC and not under Section 494 IPC. Appeal of the present appellant and Ranjit Singh was dismissed by the First Appellate Court. Against the judgment of First Appellate Court, revision filed by Ranjit Singh was also dismissed. Ranjit Singh is the son of present appellant. By concealing first marriage of Ranjit Singh with Bimal Kaur, respondent-complainant was induced to contract marriage with Ranjit Singh. Respondent-complainant had stayed for about one week with Ranjit Singh, then she came to know about first marriage of Ranjit Singh. Two concurrent findings, one by trial Court and second by first Appellate Court. With the dismissal of revision by Ranjit Singh against the impugned judgment dated 16.3.1998, appeal is also liable to be dismissed. Undisputedly, Ranjit Singh is the son of the appellant. Crl.Appeal No. 135-SB of 1999 5 Private complaint was instituted by Surinder Pal Kaur on the allegation that appellant, Ranjit Singh and their family members approached her father to perform her (Surinder Pal Kaur) marriage with Ranjit Singh. As per assurance of the appellant and her other family members, father of respondent-complainant agreed to perform marriage of Surinder Pal Kaur with Ranjit Singh. Allegation of Surinder Pal Kaur is that sufficient dowry was given but Ranjit Singh and his family members used to maltreat and misbehave her for want of dowry. During stay of about one week at her in- laws house, Surinider Pal Kaur came to know that Ranjit Singh was already married. Now allegation of respondent-complainant is that appellant had concealed first marriage of Ranjit Singh with Bimal Kaur, whereas allegation of the appellant is that she was not present at the time of marriage. No dowry was given. No ceremony was performed in her presence. Learned counsel for the appellant argued that appellant was not present at the time of marriage of Ranjit Singh with Surinder Pal Kaur. No ceremony was performed in the presence of appellant. No dowry article was given. Mere admission of the accused regarding second marriage is not sufficient to convict the appellant. Respondent-complainant was required to lead cogent and convincing evidence as to what were the religious ceremonies/rites performed to perform marriage of Ranjit Singh with her. No Granthi was examined, who had performed marriage of Ranjit Singh with Surinder Pal Kaur. Learned counsel for the respondent-complainant argued that no Crl.Appeal No. 135-SB of 1999 6 dispute about first marriage of Ranjit Singh with Bimal Kaur. Dispute is regarding second marriage. If no evidence on the file that second marriage was valid one, even then appellant is liable because first marriage of Ranjit Singh was concealed at the time of second marriage of Surinder Pal Kaur with Ranjit Singh. After going through the evidence on the file, I am of the opinion that submission of learned counsel for the appellant is not correct one. Evidence on file shows that Ranjit Singh was married with Bimal Kaur. Defence version of the appellant was that after marriage of Ranjit Singh with Bimal Kaur, there was a divorce and this fact was in the knowledge of respondent-complainant prior to her marriage with Ranjit Singh. Respondent-complainant appeared as her own witness and examined Sadhu Singh. Sadhu Singh categorically stated that Bimal Kaur was married with Ranjit Singh on 15.6.1983 by way of Anand Karaj ceremony. Photographs of first marriage are also on the file. Suggestion was given to Sadhu Singh that Ranjit Singh was married with Bimal Kaur but there was a divorce and after divorce, Bimal Kaur is residing in the house of Swaran Singh. Writing regarding divorce (Mark-R) is on the file. Writing was put to the witness that Bimal Kaur obtained divorce through writing. PW2 Ram Singh appeared and supported the version of respondent-complainant but suggestion was given to him that Surinder Pal Kaur was having knowledge about the marriage of Ranjit Singh with Bimal Kaur and about the divorce at the time of marriage. Surinder Pal Kaur appeared as PW3. Then she was cross- examined that she knew about the first marriage of Ranjit Singh and his Crl.Appeal No. 135-SB of 1999 7 divorce prior to her marriage with Ranjit Singh. Another suggestion was given to her that her brother Hardev Singh had knowledge about the first marriage of Ranjit Singh with Bimal Kaur and his divorce. Jeet Singh, father of respondent-complainant, also appeared in Court and he was also cross-examined on the same line that Surinder Pal Kaur had the knowledge about the first marriage of Ranjit Singh with Bimal Kaur and their divorce. If respondent-complainant failed to lead cogent and convincing evidence to prove the second marriage of Ranjit Singh with her, even then appellant is liable under Sections 495/109 IPC. Evidence on the file shows that Ranjit Singh was already married with Bimal Kaur and there was a divorce as per writing. According to respondent-complainant, first marriage was not brought to her notice, whereas allegation of appellant is that divorce with Bimal Kaur was in the knowledge of respondent-complainant. Mark-R is the document on file and allegation of appellant is that as per Mark R, there was a divorce amongst Ranjit Singh and Bimal Kaur. Suppose, respondent-complainant failed to lead cogent and convincing evidence that there was a valid marriage of Ranjit Singh with her as per Anand Marriage Act (VII of 1909), then question is whether there was a valid divorce as per Mark R amongst Ranjit Singh and his first wife Bimal Kaur. No authority was cited that there was a custom amongst the parties to divorce as per writing before Panchayat. Legally under the Act, there cannot be divorce as per writing (Mark-R). To convict the appellant under Sections 495/109 IPC, ceremonies of second marriage need not to be proved. Allegation of respondent-complainant is that there was concealment of first marriage of Ranjit Singh with Bimal Kaur. Within one week, when respondent- Crl.Appeal No. 135-SB of 1999 8 complainant came to know about first marriage of Ranjit Singh, then she wrote letter to her father on 30.6.1988 that fraud was committed by the appellant and her family members and about the concealment of first marriage. On 28.7.1988, within a month, private complaint was instituted. In AIR 1966 SC 614, Kanwal Ram and others vs. Himachal Pradesh Administration, conviction under Sections 494/109 IPC- Court held that second marriage must be proved- Failure to prove essential ceremonies- Conviction for bigamy is not justified- Conviction cannot be on the basis of statement of the bridegroom that he had sexual relationship with the bride and on admission of the accused that parties married after first marriage was dissolved, was not justified. In 1981 Crl. L.J. 325(1), Shankarlal Gyarasilal Dixit vs. State of Maharashtra, Hon'ble Supreme Court opined that falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea by defence can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused. No dispute about the law laid down in the above cited authorities but in the present case, as per evidence on the file, Ranjit Singh was married with Bimal Kaur but defence version of the appellant was that there was a divorce as per writing (Mark-R). No decree of divorce by competent Court. Second allegation of the appellant was that Surinder Pal Kaur had the knowledge of first marriage of Ranjit Singh and his divorce. But as discussed earlier, Ranjit Singh was not legally divorced. In the absence of legal divorce by the competent authority, appellant and her family members assured father of Surinder Pal Kaur to marry her with Crl.Appeal No. 135-SB of 1999 9 Ranjit Singh. Relying upon assurance of the appellant and her family members, father of Surinder Pal Kaur had agreed to marry her with Ranjit Singh. That means, by concealing the first marriage of Ranjit Singh, Ranjit Singh was married with Surinder Pal Kaur. In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court as well as first Appellate Court. Concurrent findings by trial Court and first Appellate Court. No reason to differ. Appeal without merit is dismissed. 25.3.2011 ( JORA SINGH ) pk JUDGE