Paresh Nath Gupta vs The State of West Bengal

Toufique Uddin, J.—This appeal arose out of judgment and order of conviction dated 29.04.1988 passed by learned Additional Sessions Judge, Fourth Court, Burdwan in Sessions Trial No. 8 of 1988 arising out of Sessions Case No. 61 of 1988 convicting the appellant for commission of offence u/s 494 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for two years and to pay fine of Rs. 2,000/- with default clause. In the background of this appeal, the fact in a nutshell is as follows:-

One Kalpan Gupta was married was on 14th Ashar, 1392 BS to one Paresh Gupta at her father''s place at Debagram. After marriage she came to her matrimonial home and there she came to know about the first marriage of Paresh with one Ranu Gupta of Khrigram. The fact of his marriage was not disclosed to Kalpana before her marriage. After marriage in her matrimonial home all the accused persons used to torture her physically and mentally. It was alleged that the accused persons made a conspiracy on 01.09.1985 in order to commit murder of Kalpana Gupta wife of Paresh Gupta and in pursuance thereof on 02.09.1985 they attempted to commit murder to Kalpana Gupta by forcibly trying to administer poison. On 01.09.1985 at about 09.00 p.m. Kalpana heard that all the accused except her husband were conspiring to administer poison with Snanjal (sacred water) in order to kill her. In pursuance thereof on 02.09.1985 at about 10.00 am. Her mother-in-law tried to feed her Snanjal (sacred water) but she refused. Then the accused persons together began to force her to take sacred water and inspite of that when she refused they began to beat her and as a result she became senseless. She regained consciousness and took shelter in a house within the same locality. The women folk of that house where she took shelter persuaded her to return to her matrimonial home.

The same day i.e. on 02.09.1985, Arun Chowdhury informed her brother Sunil Sain. Accordingly, Sunil Sain came to the house of Paresh and took Kalpana to her father''s house and she lodged a complaint.

The learned magistrate committed the case to the learned Court of Sessions. Thereafter the learned Trial Court on hearing both sides framed charge under Sections 307/120B/34 of the Indian Penal Code against all the accused persons and the accused Paresh Gupta was further charged for commission of offence u/s 495 of the Indian Penal Code. The contents of the charge were read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

To contest this case, the prosecution examined as many as 7 witnesses while none was examined on the side of the defence.

The accused persons were examined u/s 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given by the accused person at the time of examination u/s 313 of the Code of Criminal Procedure is denial of offence with a plea of innocence.

On conclusion of trial the learned Court below convicted the present appellant/convict by the impugned judgment whereas he acquitted the other accused persons.

Now the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not.

Section 494 of the Indian Penal Code reads as under:-

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 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.

Days together none appeared on behalf of the appellant. Therefore, Mr. Anjan Dutta, learned lawyer was appointed as Amicus Curiae. He argued on the following points:-

i) Charge was framed against the present appellant u/s 495 of IPC but the learned Court below convicted the present appellant u/s 494 of IPC without framing charge u/s 494. In this regard I like to put on record that sliding of charge is possible in terms of Section 221 of the Code of Criminal Procedure. Here in this case, the accused Paresh Gupta was charged for commission of offence u/s 495 of IPC. But he was convicted u/s 494 of the IPC. Therefore, I find no infirmity in the framing of charge.

ii) He further argued that the first wife did not came to lodge any complaint Therefore, Section 494 of the IPC is not attracted because the complaint was filed by the second wife.

In this regard, learned lawyer of the State submitted that in terms of section 198C of the Code of Criminal procedure any aggrieved party can complain. Here in this case, the second wife is the aggrieved person. So she can very well lodge complaint. In this regard Section 198C of the Cr.P.C. is reproduced here.

Section 198C of the Code of Criminal Procedure.

198C. Where the person aggrieved by an offence punishable u/s 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father''s or mother''s, brother or sister, or, with the leave of the court, by any other person related to her by blood, marriage or adoption.

The second wife can very well be terms as aggrieved person even if we look into the definition of wife. It is clear that second wife is wife while she was not in the knowledge that her husband already married another lady earlier as the first wife. Therefore, till that stage the second wife can very well be entitled to lodge the complaint.

For better appreciation of the case, some relevant pieces of evidence are required to be taken up for consideration.

Kalpana Gupta is the de facto complainant. She stated that Paresh Gupta was her husband. She was married to Paresh on 14th Asar 1392 B.S. according to Hindu rites at Debogram. It was a negotiated marriage. Some days after her return to matrimonial home after ''Astamongla'', she learnt that her husband have first wife. When she enquired, her husband stated "Ami biye korechi kintu ami to takey nebo na. Tomar chintar ki ache, tomake niyei ami ghar sansar korbo".

The accused did not make any cross-examination to PW-1 explicitly on this matter nor he denied that he had first wife. Rather at the time of examination u/s 313 Cr.P.C., the accused admitted that Runu Gupta is his first wife. This is enough to nab the accused person and to convict him accordingly.

PW-2, her brother, PW-3, an independent witness and other witnesses, corroborated the evidence of PW-1.

Considering the materials on record, the learned Trial Court held that the charge u/s 495 of IPC could not be proved.

However, he found the accused person guilty for commission of offence u/s 494 of the Indian Penal Code. The judgment of the learned Court below appears to be speaking.

I find no infirmity in the findings of the learned Court below so far as offence u/s 494 of the IPC is concerned. Sliding of Section 495 IPC to Section 494 IPC is not fatal to the accused. No prejudice is caused. Accordingly, I find no merit in the appeal and hence the same stands dismissed.

Let the copy of the judgment and the Lower Court Record be sent back to the Lower Court immediately. Urgent Xerox Certified copy of this order be given to the parties, if applied for, upon compliance of necessary formalities.