1

IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE : : : JORHAT.

PRESENT : Smt. S. Bhuyan, A.J.S.,

Chief Judicial Magistrate,
Jorhat.

For the prosecution .... Smt. P. Borgohain, A.P.P.

For the accused person .... Smt. Smritirekha Bora, Advocate.

Ref. : G.R. Case No. 2193 of 2013.

State of Assam

-vs-

Sri Narayan Ch. Bora ..... accused person.

Under section 494/498(A) I.P.C.

Charge framed on ..... 12.08.2015.

Evidence recorded on ..... 01.09.2015; 16.10.2015;
04.08.2016.
Statement recorded on …… 17.08.2016.
Arguments heard on ..... 17.08.2016
Judgment delivered on ..... 30.08.2016

JUDGMENT.

1] The prosecution initiated this case on receipt of an ejahar before

the Officer-in-charge, Jorhat Police station, Jorhat, filed by one Smti. Dipali Bora,

alleging therein that she got married with accused in the year 1981 as per social

rites and after the marriage accused used to torture mentally and physically and

the accused without having any divorce of their marriage, married another lady

named Mithu Das and she was forced to leave her matrimonial home.

2]. On receipt of the said ejahar, officer-in-charge, Jorhat P.S.,

 2

registered the case as Jorhat P.S. Case No. 1231/13, u/s 498(A)/494 of the

I.P.C. and caused investigation. After completion of the investigation, the

concerned I.O. submitted charge sheet against accused u/s 494/498(A) of the

I.P.C.

3]. On appearance of the accused person before the Court, necessary

copies of relevant documents were furnished to him as per section 207 Cr.P.C.

and having found sufficient materials u/s 494/498(A) I.P.C., charge under the

said section of law was framed by my learned predecessor against the accused

person. When the contents of the aforesaid charges were read over and

explained to the accused person, he pleaded not guilty and claimed to be tried.

4]. The prosecution, in support of its case, examined three witnesses

including the informant/victim. Thereafter, learned A. P.P. submitted to close the

prosecution. Statements of the accused u/s 313 of the Cr.P.C. has been

recorded. He admits that he married second time without divorcing his first wife,

the informant, of this case Smt. Dipali Bora but declined that he subjected any

torture on her as alleged in ejahar and evidence by Dipali Bora. Accused declined

to adduce any defence evidence. I have heard the arguments of the learned

counsel of both sides.

POINTS FOR DETERMINATION :

5]. i) Whether the accused person, being the husband of informant

Smti. Dipali Bor , subjected her to cruelty both physically and mentally with a

view to coerce her, and thereby committed offence u/s 498(A) of the I.P.C. ?

ii) Whether accused having his wife living, married another Smt.

Mithu das, in any case in which such marriage is void by reason of its taking

place during the life of his legally married wife, and thereby committed an

offence punishable u/s 494 of IPC?

 3

DISCUSSION, DECISION AND REASONS THEREOF :

EVIDENCE

6]. P.W.1 Smti. Dipali Bora, the complainant, deposed that she got

married with accused, they lived together as husband and wife and out of their

wedlock they had one son and two daughters. The accused married another lady

as second wife and while he wanted to take said lady to his house, her mother in

law(accused’s mother) did not allow to bring the lady. The accused used to stay

in rented house and did not pay any maintenance to her She filed a maintenance

case and learned court allowed maintenance of Rs.4000/- per month to her. She

lodged a case against the accused on 08.02.13. Ext.1 is the ejahar and Ext.1(1)

is her signature. Police produced her before the court to record her statement.

Ext.2 is her said statement before the Court and Ext.2(1) and Ext.2(2) is her

signatures. Her daughter had given in marriage and now she lives with her son.

7]. In her cross examination she deposed that she got married with

the accused in the year 1981 as per social rites and rituals. The age of the son

born from the second wife of her husband, is now more than 18 years. She came

to know about the second marriage of her husband(accused) when the said son

was born from his second wife. She lodged ejahar regarding second marriage of

accused after elapse of 16 years.

8]. PW.2 Smt. Bandita Dutta deposed that informant is her mother

and accused is her father. About fifteen years back she was given in marriage

and now she has been staying with her husband at her in laws house. When her

mother filed the instant case against her father(accused) she was not present at

her parents home. Her elder sister informed her that her father has been taken

by police due to torture done by him on her mother.

 4

9]. In cross she deposed that she came to know about the torture on

her mother by her father from her elder sister and her mother. But she did not

see any torture done by her father.

10]. PW.3 ASI Jiten Bora deposed that on 8.9.13 he was working as

ASI of police at Jorhat P.S. and on that day officer in charge, Jorhat P.S. on

receipt of an ejahar from informant entrusted him with the investigation of the

instant case. During investigation he went to the house of the informant ,

prepared sketch map and recorded statement of the witnesses . After completion

of investigation he handed over the case diary and on the basis of his

investigation ASI Nekibur Rahman submitted charge sheet against the accused

u/s 498A/494 IPC. Ext.4 is charge sheet and Ext.4(1) is his signature.

11]. In cross he deposed that he did not receive the ejahar. O/C,

Jorhat P.S. received the ejahr on 8.9.13. He recorded statement of informant,

her daughters Sangita Bora and Bandita Dutta and also prepared a sketch map of

the place of occurrence.

Analysis of Evidence.

12]. PW.1 Dipali Bora deposed she is the wife of accused Narayan

Bora. PW.2 deposed informant is her mother and accused is her father. PW.3

I.O. deposed he conducted the preliminary investigation , recorded statement of

witnesses. Case diary shown all the witnesses makes their statement before

police that informant and accused are husband and wife. In Ext.1 ejahar, PW.1

states she is the married wife of the accused. Accused in his statement u/s 313
 5

Cr P C. submits informant is his legally married wife and he has not divorced her.

That revealed and proved informant is the married wife of accused.

13]. PW.2 is the married daughter of informant and accused. She does

not whisper that accused subjected cruelty on her mother. She states she heard

from her sister that police taken her father as her mother filed case against him

because he torture her. What torture subjected on PW.1 by the accused has not

been uttered by PW.2 .

14]. PW.1 is the informant/victim. Her evidence is that accused married

again and did not looked after her and she stayed at her husband house with her

son who is unemployed and her daughter got married and accused lived in a

rented house with his second wife and in the maintenance case filed by her Court

granted her Rs.4000/- as monthly maintenance. Her evidence does not show a

single line that accused made illegal demand and subjected her with cruelty in

demand of dowry and or to fulfill his illegal dowry demand he subjected , inflicted

torture, injury on her or in demand of such illegal dowry accused forced her to

take steps to end her life or caused any kind of bodily injury.

15]. The evidence of I.O. pointed he did not take victim at hospital for

treatment as victim does not sustain injury. Evidence of PW.1 does not show a

single line or word that accused inflicted any injury on her body. Her evidence

not shown that accused beaten her and caused any bodily injury on her body or

made any demand of dowry. Her evidence clearly shown as accused married

again her mother in law did not allowed accused to bring his second wife hence,

this led to discord in between husband and wife and since after 2nd marriage

accused did not look after her and till life time of her in laws, they looked after

her but after their demise trouble started on her to maintain her and her
 6

unemployed son. But her evidence not bring a single evidence of torture on

account of dowry demand and ingredients of section 498A IPC not at all comes.

Therefore, I come to my considerate finding that prosecution has been miserably

failed to bring home its charge u/s 498A IPC against the accused and I hold

accused Narayan Bora not guilty U/S 498A IPC and he is acquitted from the

charge of Section 498A IPC.

16]. Now let’s us see whether prosecution able to establish its charge

u/s 494 IPC against the accused. In this case, prosecution adduced 3 witnesses

one is victim, other one is daughter of victim and accused and third witness is

I.O. of the case. One witness not found as per report on summon.

17]. Ext.1 is the ejahar. Ext.2 is the statement of informant/victim

recorded u/s 164 Cr P C. Evidence of PW.1 recorded on 01.09.2015. PW.1 in her

all statement made in her ejahar, in her statement recorded u/s 164 Cr P C and

during her evidence specifically and categorically stated she is the married wife

of accused and accused without legally divorcing her married again and in her

ejahar she states name of accused’s second wife Mithu Das. When accused was

put question while examining him u/s 313 Cr P C he admits informant is her wife

and he did not divorce her and married again for second time without legally

divorcing his 1st wife, informant. The statement of accused given u/s 313 Cr P C

makes it abundantly clear that informant is the legally wedded wife of accused

and still marriage between informant and accused not dissolved and they are still

husband and wife and accused married again without dissolving his first marriage

with informant.

18]. Section 494 IPC says, whoever , having a husband or wife living,

marries in any case in which such marriage is void by reason of its taking place
 7

during the life of such husband or wife, shall be punished of either description for

a term which may extended 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 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 fats so far as the same are within his or her knowledge.

19]. Plain reading of the section 494 IPC revealed marrying again

during life time of spouse is an offence. In the case in hand, marriage between

informant and accused still persists, no court has declared their marriage void

and accused has living wife and that informant is living known to all and accused

and marriage between informant and accused not dissolved, accused still regard

informant as his 1st wife but inspite of that he married again without lawfully

dissolving his 1st marriage with informant and therefore ingredients of section

494 IPC attracts clearly against the accused.

20]. Learned defence counsel made submission that informant for a

small pretext filed this case after 16 years of accused’s second marriage and

therefore section 494 IPC not attracted and accused is an innocent and entitled

acquittal.
 8

21]. The contention of the learned defence counsel again proved that

accused married again during life time of his first wife, informant. Learned

counsel submits that accused son from his second wife is 18 years which is

known to informant and therefore section 494 IPC not attracted against the

accused. PW.1 in her cross deposed her marriage with accused solemnized in

1981 socially.

22]. Section 468 Cr P C envisages Court power to take cognizance and

section 469 Cr P C says the commencement of the period of limitation and

section 472 is limitation for continuing offence.

Section 468 (2), the period of limitation shal be –

(a) Six months, if the offence is punishable with fine only;

(b) One year, if the offence is punishable with imprisonment for a

term not exceeding one year;

(c) Three years, if the offence is punishable with imprisonment for

a term exceeding one year but not exceeding three years.

Section 468(3):- For the purpose of this section, the period of limitation, in

relation to offences which may be tried together, shall be determined with

reference to the offence which is punishable with the more severe punishment,

or as the case me be, the most severe punishment.

23]. Punishment for section 494 IPC is imprisonment for a term which

may extend to 7 years, and shall also liable to fine. The offence is continuing one

and shows that there is not bar in filing the case and taking cognizance of

offence u/s 494 IPC where maximum punishment is seven years an fine and

therefore contention of learned defence counsel does not stand.

 9

24]. P.W.3 is the I.O. and based on his investigation charge sheet has

been filed by A.S.I. Nekibur Rahman.

25]. Section 134 Evidence Act says no particular number of witness

shall in any case be required for the proof of a fact. It is settled principle of law

that “Rule of quality of evidence not quantity decides the fate of the facts in

issue”. Section 134 Evidence Act clearly says no particular number of witness

required to establish a case. “Conviction can be based on the testimony of a

single witness if her evidence is wholly reliable. Corroboration may be necessary

when he is only partially reliable. If the evidence is unblemished and beyond all

possible criticism and the Court is satisfied that the witness was speaking the

truth then on his evidence alone conviction can be maintained State of UP Vs.

Krishna Master (2010) 12 SCC 324.”

26]. Here accused marrying during the life time of his first wife is

admitted by accused in his 313 Cr P C statement and same corroborated the

statement of PW.1, the informant/victim of the case, statement of victim always

stand on higher footing and hence evidence of PW.1 is unblemished and wholly

true. Learned accused counsel also during argument submit and admit accused’s

second marriage but learned counsel submits that fact of second marriage know

to informant long back before filing the case but this fact of prior knowledge has

no importance as it is a continuing offence. Informant in her ejahar, before police

while making statement u/s 161 Cr P C, before Court while making statement u/s

164 Cr PC on oath, while adducing evidence categorically states in her chief as

well as in cross that accused married again without lawfully divorcing her

marriage with accused. Cross evidence of PW.1 made it more strong and

established the fact in issue that accused married second time during life time of

his 1st wife, informant. Evidence of PW.1 further pointed accused married second
 10

time after birth of children from his 1st wife, informant. Cross and statement of

accused recorded u/s 313 Cr P C made prosecution case more strong and

confident. Defence failed to tarnish evidence of PW.1 with regard to accused

second marriage . Her evidence is fully reliable and unblemished and wholly

corroborated the prosecution charge u/s 494 IPC against the accused and I have

taken up her evidence which I find cogent, convincing, without any blemish,

strong and which is true and reliable and acceptable piece of evidence and I

come to my considerate finding that prosecution has been fairly able to establish

its charge u/s 494 IPC against accused Narayan Ch. Bora beyond all reasonable

doubt and he is found guilty u/s 494 IPC and convicted u/s 494 IPC.

R E S U L T.

27]. In view of the discussion made above, I come to my considerate

finding that accused person has committed an offence punishable u/s 494 of IPC

and I hold him guilty u/s 494 of IPC and is convicted. Considering the

nature of the offence committed by the accused, he is not considered under

Probation of Offenders Act. I have heard the accused persons on the point of

sentence.

O R D E R

28]. Accused Narayan Ch. Bora not found guilty u/s 498A IPC and he is

acquitted from the charge u/s 498A IPC. Accused Narayan Ch. Bora is found

guilty u/s 494 IPC and he is convicted u/s 494 IPC. Considering the nature of the

offence, committed by the accused, he is not considered under the probation of

offenders Act. Accordingly, I have heard the accused person on the point of

sentence. Accused pleaded for mercy.

 11

29] After hearing the accused on the point of sentence and after

perusal of record and nature of the offence committed by the accused, accused

Narayan Ch. Bora is sentenced to undergo 18 (Eighteen) months simple

imprisonment and to pay a fine of Rs.3000/- (Three thousand), in

default, 3(three) month simple imprisonment , under section 494 IPC.

The period of detention, if any, be set off. His bail bond stands cancelled.

30]. Let furnish free copy of the judgment to the accused person.

31]. Send copy of judgment to the District Magistrate, Jorhat, for

informant , as per procedure.

Signed, sealed and delivered in the open Court on this 30th day of
August, 2016, at Jorhat.

(Smt. S. Bhuyan)
Chief Judicial Magistrate,
Jorhat.
Dictated & corrected by me :-

(Smt. S. Bhuyan)
Chief Judicial Magistrate,
Jorhat.
Transcribed & typed by :
Lalit Hazarika, Stenographer.
 12

APPENDIX.

WITNESSES FOR THE PROSECUTION :

P.W.1 ... Smt. Dipali Bora, the informant.
P.W.2 … Smt. Bandita Dutta
P.W.3 … ASI Jiten Bora.

WITNESSES FOR THE DEFENCE :

NIL.

DOCUMENTS EXHIBITTED :
Ext.1 ... Ejahar.
Ext.2 … Statement of victim u/s 164 Cr P C.
Ext.3 … Sketch map.
Ext.4 … Charge sheet.

(Smt. S. Bhuyan)
Chief Judicial Magistrate,
Jorhat.