The Commissioner of Income Tax-I vs. Feno Plast Ltd.,

1 / 11 2024:CGHC:39853 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 85 of 2012 Judgment Reserved on 14.08.2024 Judgment Delivered on 08. 10.2024 • Smt. Satmeri Bai, W/o Shri Devi Prasad @ Devvrat Kaushik, aged about 27 years, Occupation- Housewife, through R/o Hetdham Patanwar, Village- Dhaniya, Police Station- Seepat, District- Bilaspur (C.G.)

---Appellant/complainant Versus 1. Devi Prasad @ Devvrat Kaushik, S/o Hemlal Kaushik, aged about 32 years, Occupation- Village, Secretary (Panchayat Karmi), R/o Village- Pendri, Tahsil & Police Station- Pamgarh, District- Janjgir-Champa (C.G.) (Accused) 2. Smt. Narayani Verma, D/o late Shri kanhiyalal Verma, aged about 25 years, R/o Korda Lawan, District- Raipur (C.G.) at present through Devi Prasad Kaushik, R/o Village- Pendri, Tasil & Police Station- Pamgarh, District- Janjgir- Champa (C.G.) (Accused) 3. State of Chhattisgarh, through the Police Station, Pamgarh, District- Janjgir- Champa (C.G.) --- Respondents For Appellant : Mr. Ratnesh Kumar Agrawal, Advocate. For Respondent No. 1 For Respondent No. 2 For Respondents/State : Mr. Anish Tiwari, Advocate. : Mr. Ishwar Jaiswal, Advocate. : Ms. Mukta Tripathi, PL.

Hon'ble Smt. Justice Rajani Dubey C A V Judgment 1. This acquittal appeal is filed against the judgment dated 20.03.2012

2 / 11 passed by the learned Sixth Additional Sessions Judge, Bilaspur (C.G.) in Criminal Appeal No. 235/2011, whereby the judgment of conviction & sentence dated 29.08.2011 passed by Judicial Magistrate- First Class, Bilaspur in Criminal Case No. 169/2011 has been set aside and the respondents/accused have been acquitted of the offence under Sections 494 & 494/109 of IPC. Hence, this acquittal appeal. 2. Brief facts of the case are that the complainant/appellant filed a complaint before the Judicial Magistrate, Bilaspur against the accused persons/respondents No. 1 and 2, whereby he submitted that she is legally wedded wife of respondent No. 1 and their marriage was solemnized on 28.06.1998 according to the Hindu rites and customs and on 11.08.1999 one daughter namely Dimple was born from their wedlock. It was alleged that after sometime of marriage, the appellant was subjected to both mental and physical harassment from respondent No. 1 and ultimately she was thrown from her matrimonial house. It was further alleged that the appellant had filed an application under Section 125 of Cr.P.C. for grant of maintenance against respondent No. 1, where the learned Family Court has directed the respondent No. 1 to pay Rs. 1,000/- per month towards maintenance of the appellant and her minor daughter Dimple. During the existence of first marriage with the appellant, the marriage of respondent No. 1 with respondent No. 2 on 05.05.2009 was solemnized as per Hindu rites and customs by taking seven steps (Saat Phere) before the holy fire, however till date no such decree is passed by any Court in respect to dissolution of marriage of respondent No. 1 and the appellant. It is also alleged by the appellant that a registered notice was sent to the respondent No. 2 prior to second

3 / 11 marriage, thereby warning the respondent No. 2 regarding consequences of second marriage, but the respondent No. 2 did not pay any heed to her suggestion. Before the second marriage complainant/appellant sent her father in the house of respondent No. 2, whereby he prayed to not to solemnize marriage with respondent No. 1 as he is already married with her daughter/appellant. After perusal of material facts as well as documents and evidence, the learned appellate Court convicted accused/respondent No. 1 for the offence under Section 494 of IPC for 06 months S.I. with fine amount of Rs. 2,000/-, in default of payment of fine, to undergo additional imprisonment for 15 days and respondent No. 2 was convicted for the offence under Section 494/109 of IPC for 06 months S.I. with fine amount of Rs. 2,000/-, in default of payment of fine, to undergo additional imprisonment for 15 days. Copy of the judgment dated 29.08.2011 is Annexure A/3. Being aggrieved by the judgment of conviction and sentence dated 29.08.2011 (Annexure A/3), the respondents No. 1 and 2 preferred an appeal before the Sixth Additional Sessions Judge, Bilaspur, which has been allowed vide impugned judgment dated 20.03.2012 and acquitted the respondents No. 1 and 2 of the said charges. Copy of Judgment dated 20.03.2012 is Annexure A/4. Hence, the present acquittal appeal. 3. Before the learnedappellate Court, the prosecution has examined as many as 03 witnesses and statement of accused/respondents No. 1 and 2 were also recorded under Section 313 of Cr.P.C. 4. The learned appellate Court after appreciation of oral and documentary evidence acquitted the accused/respondents No. 1 and 2 of charges

4 / 11 under Section 494 & 494/109 of IPC on the ground that the prosecution has failed to prove its case beyond reasonable doubt. Hence, this appeal filed by the complainant/appellant. 5. The learned counsel for the appellant submits that the finding recorded by the learned appellate Court is illegal, improper and erroneous and therefore, it is liable to be set aside. The learned appellate Court failed to appreciate that the complainant/appellant has duly proved that respondent no. 1 had performed second marriage with respondent no. 2 according to Hindu rites and customs by taking seven steps before holy fire, the learned appellate Court court has wrongly concluded that the second marriage has not been established according to requirement of Section 17 of Hindu Marriage Act 1955, despite the eye witness namely Manish Singh (C.W.-3) categorically stated in his primary evidence and evidence before charge that the marriage of respondents No. 1 and 2 was solemnized according to Hindu rites and customs after taking seven steps before holy fire, the complainant/appellant has completely proved that the second marriage was solemnized with seven steps before holy fire, without the consent of appellant and the appellant has also sent legal notice prior to marriage. The learned appellate Court failed to appreciate that the complainant/appellant had sent her father in the house of respondent no. 2 to not to perform marriage with respondent no. 1, but she did not pay any heed to his suggestion, and with her own free will performed second marriage with the respondent no. 1, this act comes within the purview of abatement for performing marriage. It is further argued by learned counsel for the appellant that the learned appellate Court has committed grave error of law in reversing the well founded

5 / 11 judgment of conviction and sentence passed by Trial Court and the learned appellate Court has wrongly acquitted the respondents No. 1 and 2, though the appellant/complainant has examined witnesses in support of her allegation. The learned appellate Court has not properly appreciated the evidence of Manish Singh (CW/3), who categorically deposed that before him, the respondents No. 1 and 2 performed second marriage according to Hindu rites and customes by taking seven steps (Saat Phere) before holy fire. The finding recorded by the learned appellate Court is perverse and liable to be set aside. 6. In support of his submission, learned counsel for the appellant placed reliance upon the decisions of the Hon’ble Apex Court in the matter of Gopal Lal Vs. State of Rajasthan, reported in (1979) 2 SCC 170, S. Nagalingam Vs. Sivagami, reported in (2001) 7 SCC 487, Koppisetti Subbharao @ Subramaniam Vs. State of A.P. reported in 2009 (3) Supreme 688 and Pashaura Singh Vs. State of Punjab and Another, reported in (2010) 11 SCC 749. 7. Learned counsel for the respective respondents supporting the impugned judgment submits that the learned appellate Court after minutely appreciating oral and documentary evidence finds that there is no evidence of “Saptapadi” and allowed the appeal of respondents No. 1 and 2, acquitted the respondents of the said charges levelled against them and it is well settled law that in appeal against acquittal, scope is very limited and therefore, this appeal is liable to dismissed. 8. Reliance has been placed on the decisions of Hon’ble Apex in the matter

6 / 11 of State of Rajasthan Vs. Shera Ram Alias Vishnu Dutta, reported in (2012) 1 SCC 60, State of Uttar Pradesh Vs. Mohd. Iqram and Another, reported in (2011) 8 SCC 80, State of Rajasthan Through Secretary, Home Department Vs. Abdul Mannan, reported in (2011) 8 SCC 65, Santi Deb Berma Vs. Kanchan Prava Devi (Smt), reported in 1991 Supp (2) SCC 616, Babulal Narottamdas and Others Vs. Commissioner of Income Tax Bombay, reported in 1991 Supp (2) SCC 618, Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, reported in 1971 (1) SCC 864, Delhi Administration Vs. S.N. Khosla, reported in 1971 (1) SCC 872 & on the decision of Hon’ble Madhya Pradesh High Court in the matter of Kailash Vs. Gordhan and Others, reported in 2022 SCC OnLine MP 1623 and on the decision of this Court in the matter of Rajesh Boyra Vs. State of M.P., reported in 2014 SCC OnLine Chh 150. 9. I have heard learned counsel for the respective parties and perused the entire material available on record annexed with this appeal. 10. It is clear from record of learned appellate Court that appellant/complainant had filed a complaint against the respondents No. 1 and 2 for offence under Section 494 of IPC before the Court of Judicial Magistrate- First Class, Bilaspur (C.G.) whereby, the learned Judicial Magistrate- First Class, Bilaspur vide judgment dated 29.08.2011 convicted and sentenced Devi Prasad/respondent No. 1 for offence under Section 494 of IPC and sentenced him for 06 months S.I. with fine amount of Rs. 2,000/-, in default of payment of fine, to undergo additional imprisonment for 15 days and Narayani/respondent No. 2 was convicted

7 / 11 for the offence under Section 494/109 of IPC for 06 months S.I. with fine amount of Rs. 2,000/-, in default of payment of fine, to undergo additional imprisonment for 15 days. Being aggrieved by the said judgment, respondents No. 1 and 2 filed an appeal before the Sixth Additional Sessions Judge, Bilaspur and vide judgment dated 20.03.2012 allowed the appeal of the respondents No. 1 and 2 and quashed the order dated 29.08.2011 which was passed by the said Judicial Magistrate. 11. It is clear that the appellant produced Manish Singh as CW-3, who is the photographer where he categorically stated that respondent No. 1 solemnized marriage with respondent No. 2 as per the Hindu rites and customs by performing seven steps (Saat Phere) in front of holy fire on 05.05.2009 at Village- Korda (Lavan), but it is vivid from statement of Manish Singh (CW/3) and he also stated in his examination-in-chief that marriage of the respondents No. 1 and 2 was solemnized by performing seven steps (Saat Phere) in front of fire, but, at that time there was no electricity, due to which, he was not able to capture photographs of seven steps (Saat Phere). In cross-examination also he admitted the same fact, though he admitted that he has light camera, but cannot capture photographs in darkness. 12. It is clear that learned appellate Court after minutely appreciating the evidence of Manish Singh (CW/3) found that Ex.P/2 and Ex. P/3 are not pictures of seven steps (Saat Phere). 13. It has been held by the Hon’ble Apex Court in the matter of Santi Deb Berma (supra) in para 8 as under:-

8 / 11 “ 8. The High Court in the instant case has drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. We, after going through the judgment of the High Court very carefully, are of the opinion that the High Court is not at all justified in drawing such an inference in the absence of any reliable and acceptable evidence, in regard to the performance of Saptapadi. The result will be that the alleged marriage between the appellant and Namita Ghosh, celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. Hence, the judgment of the High Court is not sustainable and consequently, we allow the appeal by setting aside the conviction and sentence awarded by the High Court and acquit the appellant.” 14. It has been held by the Hon’ble Apex Court in the matter of Smt. Priya Bala Ghosh (supra) in paras 23 and 25, which reads as under:- “23. Further, as pointed out by this Court in Kanwal Ram’s case (supra) the admission in Ex. 2 cannot in law be treated as evidence of the second marriage having taken place, in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies. 25. To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential rites for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2. For all the above reasons the contentions of Mr. Majumdar have to be rejected.” 15. It is vivid from record of learned appellate Court that two photographs i.e. Ex.P/2 and Ex. P/3 were produced by complainant/appellant, but there are no such valid pictures of any ceremonies which are essential for Hindu marriage. It has been held by Hon’ble High Court of Andhra Pradesh in the matter of B. Paravathi (supra) in para 28,, which reads as under:- “ 28. Therefore, it is evident that if a party to the marriage has a spouse living at the time of marriage, the said marriage cannot be held to be a valid marriage. This Section 5 has to be read with Section 17. Section 17 says that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or a wife living. So, the second marriage performed or solemnized while the party to the said marriage had a husband or a wife living at that time,

9 / 11 would not only be void under Section 17 of the Hindu Marriage Act, but also attracts the provisions of Sections 494 and 495 IPC punishable for commission of the offence of bigamy. Section 7 deals with ceremonies to be observed at the time of solemnization of a Hindu marriage. It says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and clause (2) thereof says that where such rites and ceremonies include the Saptapadi, the marriage becomes complete and binding when the 7th step is taken. This Section 7 assumes significance in the context which says that a Hindu marriage is to be solemnized in accordance with the customary rites and ceremonies of either party thereto. So, a Hindu marriage to be valid has to be solemnized in accordance with the customary rites and ceremonies of either party thereto. As per the settled law, even to prove a second marriage between two Hindus to prosecute them for the offence of bigamy punishable under Section 494 IPC, it shall be proved that the second marriage is also solemnized in accordance with the customary rites and ceremonies of either party thereto. In other words, both the marriages i.e. the first marriage and the second marriage must be valid marriages and must be proved that the second marriage was also performed or solemnized in accordance with the customary rites and ceremonies." 16. So, the learned appellate Court finds that, it cannot be presumed that all rituals were performed by respondents No. 1 and 2. Manish Singh (CW/3) also stated in his examination-in-chief that he saw seven steps (Sat Phere), in front of fire, but, at that time there was no electricity, due to which, he was not able to capture photographs of seven steps (Saat Phere), but in his cross- examination, he gave explanation in this regard that at that time, there was no electricity, but he also also stated that he had light camera, but he was not able to capture photographs in darkness. 17. Learned appellate Court rightly found that there is no photographs of any seven steps (Sat Phere) captured of respondents No. 1 and 2 and Manish Singh (CW/3) admitted that he went to Lavan for capturing their photographs on the saying of Satmeri (appellant) and Hetram (CW/2), as he is not an independent witness, his statement is not reliable, untrustworthy. complainant/appellant did not examine any independent witnesses in this regard. It is also vivid that this is appeal against acquittal. It has been held by Hon’ble Apex Court in the matter of State of Rajasthan (supra), in paras 12,

10 / 11 which reads as under:- "12. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with." 18. The Hon’ble Apex Court in its latest judgment dated 12.02.2024 passed in Mallappa and Ors. Versus State of Karnataka held in para 36 as under:- “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:- “(i) Appreciation of evidence is the core element of a criminalappellate and such appreciation must be comprehensive--inclusive of all evidence, oral and documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of theappellate Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If theappellate Court Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by theappellate Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the Trial Court Court must demonstrate an illegality,

11 / 11 perversity or error of law or fact in the decision of the Trial Court.” 19. In the light of above judgments, it is clear that there is no credible evidence of all rituals of marriage of proved by the appellant of Second marriage by respondent No. 1 with respondent No. 2, so, learned appellate Court rightly allowed the appeal of respondents No. 1 and 2 and acquitted of the said charges levelled against them. The findings recorded by learned appellate Court are based on proper appreciation of oral and documentary evidence and is according to law and guidelines of Hon’ble Apex Court. 20. As such, this acquittal appeal being devoid of merit is liable to be dismissed. Sd/- (Rajani Dubey)

JUDGE AMIT PATEL