Crl.A. 78/2004 BEFORE THE HON’BLE MR JUSTICE A.C. UPADHYAY. JUDGMENT AND ORDER (CAV) This is an appeal against acquittal in the judgment and order dated 22.1 2.2003 passed by the learned Addl. Chief Judicial Magistrate, Dibrugarh in Case No.99C/2002, whereby the accused-respondent was acquitted of the charges under S ection 494/420/406 I.P.C. 2. I have heard Mr. P. Borah, learned counsel appearing for the appellant a nd Mr. K. Agarwal, learned counsel representing the accused-respondent. 3. The fact leading to filing of this appeal be stated in brief as follows :- The appellant as complainant filed a complaint case before the Addl. Chief Judic ial Magistrate, Dibrugarh stating, inter alia, that she was married with the acc used-opposite party on 20.2.1994 as per Hindu rites and customs. However, after the marriage, as alleged by the appellant, the accused-respondent and his family members demanded dowry and ultimately, on 28.5.1995, the complainant-appellant was driven out from the house of the accused-respondent by retaining all such ar ticles given in gift to the appellant complainant as dowry. The appellant-compla inant lodged an F.I.R. in the local police station. The F.I.R. was registered un der Section 498(A) I.P.C by registering G.R. Case No.132 of 1998 and the investi gation was launched. 4. In the meantime, the accused-respondent filed a suit in the Court of th e District Judge, Dibrugarh seeking a decree of dissolution of his marriage with the complainant-appellant, which was registered as Title Suit (D) No.37/1996. T he aforesaid suit, however, was dismissed on 29.1.1998. 5. The complainant-appellant alleged in the complaint that the accused-res pondent re-married with Smti. Bondita Chetia and started living together as husb and and wife. The complainant-appellant also stated that those articles given wi th her as dowry were kept by the accused-respondent. On the basis of the complai nt lodged before the learned Addl. Chief Judicial Magistrate, Dibrugarh, the lea rned trial Court took cognizance of the offence under Section 494/420/406 I.P.C. and issued process against the accused respondent. The learned trial Court fram ed charges under Section 406/494 I.P.C. against the accused respondent. In order to establish the charges aforesaid, the prosecution side examined altogether 6 (six) witnesses. However, the accused respondent while giving his statement unde r Section 313 CrPC declined to adduce defence evidence. The learned trial Court took the following point for determination for just decision of the case :- i. Whether the accused person committed criminal breach of trust in respect of the dowry goods kept in his house by the complainant. ii. Whether the accused person having a wife (complainant) living married Sm ti. Bondita Chetia which marriage is void by reason of its taking place during t he life time of the complainant. 6. The learned trial Court, after careful scrutiny of the materials on reco rd, acquitted the accused person from the charges under Section 406/494 I.P.C. 7. This appeal has been preferred by the complainant- appellant against the order of acquittal of the learned trial Court. Admittedly, the matrimonial disc ord between the parties got triggered, immediately after lapse of one year from the date of marriage in 1994. During this period, the complainant-appellant as w ell as the accused respondent carried on several rounds of litigations in differ ent forums. Both the complainant-appellant as well as the accused- respondent h appened to be teachers by profession. Upon scrutiny of the evidence of P.W.1, it appears that on 28.5.1995, the accused opposite party by wiping vermilion fr om the forehead of the complainant-appellant (P.W.1) expressed his desire to re- marry another girl and forced P.W.1 to leave his house. Allegedly, while doing so, P.W.1 was beaten by the accused respondent. Accordingly, on 1.9.2000 P.W.1 c ame to know about the re-marriage of the accused respondent. P.W.1 approached th e Principal of the school, in which the accused respondent was teaching as subje ct teacher for clarification and on 14.9.2001, the accused opposite party execut ed one document Ext.1 in presence of the witnesses declaring that he remarried o ne Smti. Bondita Chetia in 1998 and one girl child was born out of the second we dlock. P.W.1 also stated that she had seen the accused living with the second w ife in the rented house. 8. P.W.2 Sri Manik Rajkonwar, Principal of Gorchariali Higher Secondary Sch ool also stated in his evidence that on 14.9.2001, the accused opposite party ha d written Ext.1 declaring that he remarried Smti. Bondita Chetia in 1998 and on e girl child was born in August, 1999. P.W.2 also proved the signature of the a ccused opposite party and his signature as attesting witness. 9. P.W.3 Sri Deba Kanta Gogoi, the elder brother of P.W.1, who also stated that he saw the accused person living with his second wife Smti. Bondita Chetia at Moran. 10. P.W. 4 Sri Nobin Dowrah has stated that he is the owner of the rented ho use, in which, the accused opposite party lived with his second wife, for 3 year s and P.W.5 Sri Ram Chandra Gogoi and P.W.6 Anil Gogoi are the employees of Gorc hariali Higher Secondary School and both of them had stated that the accused per son had written Ext.1 declaring his second marriage with Smti. Bondita Chetia, i n which they signed as witnesses. However, the accused opposite party, in his st atement under Section 313 CrPC denied the accusation of second marriage with Smt i. Bondita Chetia. In order to establish the charge under Section 494 I.P.C., t he prosecution is required to establish that the husband/accused opposite during the life time of his wife, had legally remarried Smti. Bondita Chetia. 11. On perusal of the document Ext.1, which is addressed to the Principal of the school, the accused opposite party has stated that since 1998, he had been cohabiting with Smti. Bondita Chetia and one child was born in August, 1999, at Moran Nursing Home out of their cohabitation. The document does not reflect any where that the accused opposite party had ever married Smti. Bondita Chetia as per social customs. 12. When the parties are governed by Hindu Law, in order to attract ingredie nts of Section 494 I.P.C, a valid marriage with sacrament of religious rites has to be established. A marriage, which is not accompanied by customary rites, can not be said to be legally valid marriage. In the instant case, it appears that the prosecution did not come forward to prove the performance of a valid marriag e by the accused opposite party with Smti. Bondita Chetia. The production of doc ument Ext.1, ipso facto, cannot be accepted as a proven document of valid marria ge between the accused opposite party and Smti. Bondita Chetia. Apparently, livi ng together would not amount to valid marriage, unless religious rites are perfo rmed by the parties with an intention to marry each other. 13. Upon a careful scrutiny of the materials on record, it appears that ther e is no proof of marriage between the accused opposite party with Smti. Bondita Chetia, within the meaning of Section 494 I.P.C. and mere living together cannot be interpreted as legally valid marriage between them. The ingredients of offen ce under Section 494 I.P.C. would be attracted only when a valid marriage is per formed by a person having a spouse living at the time of marriage ceremony. The second marriage has to be performed while the first marriage was subsisting and both the marriage will have to be valid marriage strictly in accordance with law governing the parties’ rights. 14. The decision of the Supreme Court in Sumitra Devi v. B. Choudhury repo rted in AIR 1985 SC 765, clearly depicts that in order to give sanctity of valid marriage, certain religious rites have to be performed attended by rites and r ituals of the parties and without it, the sanction of marriage between the part ies cannot be said to be valid marriage. Similarly, in P. Satyanarayan v. P. Mal laiah, SC 1997 Cr.L.J. 211, the Supreme Court held that even admission of living together as husband and wife would not amount to marriage unless the second wif e is taken by the husband after solemnizing the marriage in accordance with Hind u rites and rituals. 15. In view of the above discussion, the learned trial Court has rightly hel d that even if the accused opposite party was living together with Smti. Bondita Chetia, it would not attract the ingredients of offence of bigamy against the a ccused opposite party. Therefore, there is no reason to hold that the accused op posite party committed the offence of bigamy within the meaning of Section 494 I .P.C. 16. The next question relates to accusation of criminal breach of trust comm itted by the accused opposite party by retaining the property of the appellant w ife illegally and dishonestly. The complainant-appellant by adducing evidence in the Court deposed that as many as 158 items of dowry goods were given at the ti me of their marriage and all those articles were taken to her matrimonial home. P.W.1 stated that at the time of living matrimonial abode, she left all those ar ticles and the accused opposite party declined to return them, as demanded. The accusation of criminal breach of trust was supported by the brother of the compl ainant, P.W.3, Sri Deba Kanta Gogoi. However, the other prosecution witnesses d id not state anything about the criminal breach of trust. According to P.W.3, a t the time of marriage, many goods, such as, godrej, double bed, single bed, fou r V.I.Ps, steel case, five Aristocrats, five steel boxes three pressure cookers, two glasses, two racks, mischief, dressing table, two sofa sets, divan, stove, five wall clocks, gold ornaments weighing nine tolas described in the list were given as dowry goods and the accused opposite party had refused to return them w hen she demanded the items. 17. Very interestingly, as many as 158 different items including cash amount of Rs.11,000/- kept by P.W.1 were allegedly held back by the accused opposite p arty at the time of departure from the house of the accused-opposite party on 28 .5.1995. Surprisingly, the complainant lodged the complaint, for recovery of go ods on 28.1.2002. Meanwhile, the complainant-appellant admittedly lodged an F.I. R. on 28.1.1998, which was registered also as G.R. Case No.10/1998, against the accused person and on 30.12.2000, the accused was acquitted. In her cross exami nation, P.W.1 categorically admitted that she did not submit any document relati ng to purchase of the items kept in the house of the accused opposite party. Acc ording to P.W.1, those items were given in gift by her friends and relatives. Sh e further admitted in her cross examination that a list containing detail descri ption of names of the items given in gift to her was left by her inside the God rej almirah, which was kept at the residence of the accused opposite party. In h er cross examination, she further stated that she had submitted a list of 75 it ems as dowry items belonging to her. She admitted to have received the items me ntioned in the list, except Item No.52. She had admitted to have received all th ose items in List-B. However, she generally denied not to have received some of the dowry items from her husband accused opposite party. In her cross examinati on, P.W.1 denied to have received certain items shown in the list as dowry items . 18. Learned counsel for the appellant, by relying on the decision reported i n Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 submitted that a Hindu married woman to the husband is the absolute owner of the property given by her parents and close relatives at the time of marriage and the husband has no right of int eraction. The right over the property is purely personal right of the married wo man. She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The relevant extract of the decisi on reads as under :- 15. We are of the opinion that this view of the High Court is not legally susta inable because neither of the two Acts, referred to above, go to the extent of p roviding that the claim of a woman on the basis of stridhan is completely abolis hed. All that the two sections, mentioned above, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by properly constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal la w for breach of trust is taken away. 16. In a later decision in Bhai Sher Singh and Anr. v. Smt. Virinder Kaur MANU/P H/0172/1978, it was very rightly pointed out by the same High Court that Section 27 of the Marriage Act merely provides an alternate remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husba nd refused to return. Thus, it is clear that Section 27 merely provides for an a lternate remedy and does not touch or affect in any way the Criminal liability o f the husband in case it is proved that he has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from any textbook or the sastr ic law of the Hindus that the two Acts mentioned above take away the stridhan ri ght of a woman-at the most these Acts merely modify the concept of stridhan. It may be useful to refer to certain pertinent observations in the aforesaid case. The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes and even if her husband can take this property at the time of distress, this right is personal to him, The allegations made in the instant complaint are not that the husband of the respondent has placed her orn aments and jewellery etc. out of her way. What has been alleged therein is that the petitioners who are the parents-in-law of the respondent have converted the ornaments and clothes, etc. presented to the respondent at the time of her marri age to their own use. Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimoni al dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a crimi nal complaint if the property belonging to her is criminally misappropriated by her husband. 20. We are clearly of the opinion that the mere factum of the husband and wife l iving together does not entitle either of them to commit a breach of criminal la w and if one does then he/she will be liable for all the consequences of such br each. Criminal law and matrimonial home are not strangers. Crimes committed in m atrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possessio n of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they w ill be liable to punishment for the offence of criminal breach of trust under Se ctions 405 and 406 IPC. 21. Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to keep her personal property or belo ngings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how cou ld the High Court permit the husband to cast his covetous eyes on the absolute a nd personal property of his wife merely because it is kept in his custody, there by reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressl y or impliedly kept in the custody of the husband and if he dishonestly misappro priates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observati ons of the High Court at other places regarding the inapplicability of Section 4 06 do not appeal to us and are in fact not in consonance with the spirit and tre nd of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. Th e object of the criminal law is to punish an offender who commits an offence aga inst a person, property of the State for which the accused, on proof of the offe nce, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of action s are quite different in content, scope and import. It is not at all intelligibl e to us to take the stand that if the husband dishonestly misappropriates the st ridhan property of his wife, though kept in his custody, that would bar prosecut ion under Section 406 I.P.C. or render the ingredients of Section 405 IPC nugato ry or abortive. To say that because the stridhan of a married woman is kept in t he custody of her husband, no action against him can be taken as no offence is c ommitted is to override and distort the real intent of the law. 19. In a large number of cases, the Apex Court has held that the basic found ation of the offence of criminal breach of trust is that a property must be entr usted, and the dominion of the property should be given to the trustee. In the p resent case, even P.W.1 could not specifically indicate, which were the item s entrusted to the accused opposite party. There was confusion in the list of i tems. There has to be clear allegation of entrustment of specific items by the c omplainant against the accused. 20. In Avtar Singh v. Kirpal Kaur (Criminal Misc. No.2144-M of 1979 and Cri minal Misc. No.2145 of 1979, decided on August 16, 1979) made the following obse rvation : In my opinion, where certain thing is lying in trust with a person, offence of dishonest misappropriation would be committed on a date the demand for return of the entrusted articles is made and the same is declined & According to the compl aint, the first demand for the return of the articles was made on January 27, 19 76 and it was that date when the demand was declined. Hence, the offence of mi sappropriation of the dowry articles lying in trust was committed on January 27, 1976. 21. In yet another decision reported in (1997) 2 SCC 397 Rashmi Kumar (Smt) v. Mahesh Kumar Bhada, the Supreme Court once again by giving a fresh look to th e ratio of decision reported in Pratibha Rani v. Suraj Kumar (supra) held that - 10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her str idhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to re store the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof. 13. Thus when the wife entrusts her stridhana property with the dominion over th at property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his o wn use that property or wilfully suffers any other person to do so, he commits c riminal breach of trust. The essential ingredients for establishing an offence o f criminal breach of trust as defined in Section 405 and punishable under Sectio n 406 IPC with sentence for a period upto three years or with fine or with both, are: [i] entrusting any person with property or with any dominion over property ; [ii] the person entrusted dishonestly misappropriating or converting to his ow n use that property; or dishonestly using or disposing of that property or wilfu lly suffering any other person so to do so in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal co ntract made touching the discharge of such trust. The expression \entrustment\ c arries with it the implication that the person handing over any property or on w hose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is han ding over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the prope rty in respect of which criminal breach of trust is alleged to have been committ ed, must be hi some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In Pratibha Rani’s case, the majority has extensively considered the words \entrustment\ of and \dominio n\ over the property. All the case law in that behalf was exhaustively considere d obviating the necessity to tread once over the same. In order to establish ent rustment of dominion over the property, both the majority and minority relied on in particular the judgment of this Court in Velji Raghavji Patel v. State of Ma harashtra MANU/SC/0091/1964 : 1965CriLJ431 wherein it was held that in order to establish entrustment of dominion over the property to an accused person, mere e xistence of that person’s dominion over the property is not enough. It must be f urther shown that his dominion was the result of entrustment. The question there in pertained to the entrustment with the dominion over the partnership property by one partner to the other. It was held that the prosecution must establish tha t the dominion over the assets or particular assets of the partnership was by a special agreement between the parties. The property of the partnership being a p artnership asset, every partner has a right to or a dominion over it. It was hel d that special agreement was necessary to constitute an offence of criminal brea ch of trust defined under Section 405 IPC, In view of the finding that stridhana property is the exclusive property of the wife on proof that she entrusted the property of dominion over the stridhana property to her husband of any other mem ber of the family, there is