HIGH COURT OF TRIPURA AGARTALA Crl.A.No.03 of 2025 Shri Mangal Saha, S/O Late Uttam Saha, Resident of Joykatpur, P.S. – Belonia, District- South Tripura. …. Convict-Appellant. Versus The State of Tripura, (Represented by the Secretary, Home Department), Government of Tripura, Agartala. …….Respondent. For Appellant(s) : Mr. Janardhan Bhattacharjee, Adv. Mr. Sajib Ghosh, Adv. For Respondent(s) : Mr. Rajib Saha, Addl. P.P. Date of Hearing : 12.03.2025 Date of delivery of Judgment and Order : 26.03.2025 Whether fit for Reporting : YES HON‟BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order This appeal is preferred challenging the judgment and order of conviction of sentence dated 13.12.2024 delivered by Learned Additional Sessions Judge, South Tripura, Belonia in connection with case No.S.T. 18 (Type-1) of 2023 under Section 494/417 of IPC. By the said judgment and order of conviction and sentence, Learned Trial Court below sentenced the convict Mangal Saha to suffer RI for 3 years and to pay a fine of Rs.1,00,000/- ID to suffer SI for 2 months for the offence, punishable under Section 494 of IPC and also the convict was further sentenced to suffer RI for one year and to pay a fine of Rs.1,00,000/- ID to suffer SI for 2 months for the offence punishable under Section 417 of IPC. It was further ordered that both the sentences of imprisonment shall run concurrently. 02. Heard Learned Counsel Mr. J. Bhattacharjee assisted by Learned Counsel Mr. S. Ghosh appearing on behalf of the appellant-convict and also heard Learned Addl. P.P., Mr. R. Saha appearing on behalf the State-respondent. 03. Taking part in the hearing, Learned Counsel Mr. J. Bhattacharjee appearing on behalf of the appellant, first of all drawn the attention of the Court referring the contents of the FIR and the evidence on record submitted that although in this case initially charge under Section 494, 376(1), 417 of IPC was framed by the Learned Trial Court below but on conclusion of trial and at the time of delivery of judgment Learned Court below acquitted the appellant from the charge levelled against him under Section 376(1) of IPC for want of evidence. But according to the Learned Counsel, the Learned Court below also failed to appreciate the evidence on record adduced by the prosecution and although found him guilty for the offence punishable under Section 494/417 of IPC but the same cannot be sustained in the eye of law. Page 3 of 49 04. It was further submitted by Learned Counsel for the appellant that the evidence of the prosecution suffers from various infirmities which the prosecution has failed to explain before the Court at the time of hearing. It was also argued that from the version of the informant-cum-alleged victim, it appears that, she lodged complaint against the appellant in three occasions but prosecution failed to satisfy the Court what are the consequences of those complaints. It was also submitted that, the appellant accused thoroughly cross- examined the informant-cum-victim and other witnesses of the prosecution and from the evidence of the informant and some of the material witnesses it appears that, those witnesses during the course of their cross-examination deviated from their earlier statement made to IO during investigation rather for the first time they made / developed a new study before the Court. Prosecution in this case could not explain this. More interestingly, according to the Learned Counsel for the appellant to satisfy the ingredients of Section 494 of IPC, the prosecution before the Learned Trial Court could not place any cogent materials on record because to prove a charge under Section 494 of IPC certain parameters are there and if those parameters are not fulfilled in that case there is very least scope on the part of the Court to punish a person guilty for the offence punishable under Section 494 of IPC. 05. It was further submitted that although Learned Court below framed charge against the appellant under Section 417 of IPC but as the ingredients of Section 494 of IPC could not be established by the prosecution, so the prosecution also failed to establish the ingredients of the offence punishable under Section 417 of IPC. But Learned Court below misinterpreting/misappreciating the evidence on record found the appellant to be guilty for which the interference of the Court is required and urged for setting aside the judgment and order of conviction and sentence delivered by Learned Court below. In support of his contention, Learned Counsel for the appellant also referred few citations: In Sima Roy Vs. Mithu Roy and Ors. reported in (2025) 1TLR 35 the coordinate Bench of this High Court in Para Nos.16 to 18 observed as under :- “[16] To deal with the case, it is apposite to extract herein below section 494 of IPC which reads as under: 494. 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. [17] Hindu marriage cannot be performed without Saptapadi (i.e., the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), for which it is apposite to refer to the section 7(2) of the Hindu Marriage Act, 1955 which reads as follows: 7. Ceremonies for a Hindu Marriage.- ……… (2) Where such rites and ceremonies include the Saptapadi (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. [18] It is pertinent to note that to take the cognizance and punish the accused-persons herein, it is necessary that their relation of marriage and their marital status needs to be established as contemplated under section 7 of Hindu Marriage Act, 1955. Thereafter, an inference can be drawn under Section 494 of IPC and, if guilt is proved, punishment can be awarded. In view of the above in the present case to draw an adverse inference against the accused-person before the trial court (i.e., the petitioner and the husband) on the file of CR 72/2022 before the trial court to take cognizance under Section 494 of the IPC, it becomes necessary that allegation and the offence be proved beyond reasonable doubt. In the present case, since the allegation is above valid marriage, the requirement under section 7 of Hindu Marriage Act, 1955 needs to be established and thereafter cognizance under Section 494 of the IPC is to be taken.” Referring the same Learned Counsel for the appellant drawn the attention of the Court, prosecution in this case has failed to prove the charge punishable under Section 494 of IPC by adducing oral/ documentary evidence on record and, as such, according to Learned Counsel for the appellant on the basis of evidence on record, there is no scope to presume the appellant to be guilty and urged for acquitting the appellant from the charge of the same by allowing this appeal. Learned Counsel further referred another citation of this High Court in Gopal Debnath Vs. State of Tripura reported in (2014) 2TLR 1048 wherein in Para Nos.8, 9 this High Court observed as under:- 8. Mr. S. Sarkar, learned counsel appearing for the petitioner has submitted that for proving a marriage following the Hindu customs and rites it has to be demonstrated by the evidence that either the seventh step was taken or the customs were observed. In section 7 of Hindu Marriage Act, 1955 the ceremonies for a Hindu marriage has been provided. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Where such rites and ceremonies include the Saptapadi, the taking of „Seventh Step‟ by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the „Seventh Step‟ is taken. Mr. Sarkar, learned counsel to buttress his contention as regards the requirement to prove the offence punishable under Section 495 of the I.P.C. has relied on a decision of the Apex Court in Bhaurao Shankar Lokhande vs. State of Maharashtra and Another, 1965 (2) Crl.LJ 544; AIR 1995 SC 1564 where it has been held that: Section 494 of the I.P.C. provides that: „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 be liable to fine.‟ Prima facie the expression „whoever….. marries‟ must mean or whoever „marriage ….. marries validly‟ or „whoever … marries and whose marriage is a valid one, if the marriages is not a valid one. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriages were not valid marriage, it is no marriage in the eye of law. The bare fact of man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. Apart those considerations, as the Supreme Court has enunciated the law in Bhaurao Shankar Lokhande, there is nothing in Hindu law as applicable to marriages till the enactment of Hindu Marriage Act, 1955, which made a second marriage a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void, if at the date of such marriages either party has a husband and wife living. 9.The Apex Court has observed in that context as under: “…………that the provisions of sections 494 and 495, IPC shall apply accordingly. The marriage between two Hindus is void in view of section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be „solemnized‟, that marriage will not be void by virtue of section 17 of the Act and section 494, IPC will not apply to such parties to the marriage as had a spouse living. (5) The word „solemnize‟ means, in connection with a marriage, „to celebrate the marriage with proper ceremonies and in due form‟, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is „celebrated or performed with proper ceremonies and due form‟ it cannot be said to be „solemnized.‟ It is, therefore, essential, for the purpose of section 17 of the Act, that the marriage to which section 494, IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in the due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. (6) We are of opinion that unless the marriage which took place between appellant No.1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been „solemnized‟ and, therefore, appellant No.1 cannot be held to have committed the offence under section 494, IPC.” Further in Para Nos.16 and 17, this High Court observed as under:- “16. In Priya Bala Ghosh, the Apex Court on interpreting the word „solemnized‟ appearing in section 17 of the Hindu Marriage Act, 1955 whereby it has been provided that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or a wife living; and the provisions of sections 494 and 495 of the I.P.C. shall apply accordingly; has reiterated the law enunciated by Bhaurao Shankar Lokhande. It has been held in no uncertain term that it is essential for the purpose of section 17 of the Act that the marriage to which section 494, IPC applies on account of the provisions of the Act should have celebrated with proper ceremonies and in due form. Merely going through certain ceremonies if the intention that the parties to be taken to marriage, will not make the ceremonies prescribed by law or approved by any established custom. Thus, the law is made definite so far the requirement of proof of marriage is concerned. Mere statement that the marriage is solemnized as per Hindu rites and customs is not enough. It has to be proved that all the required ceremonies in due form had been observed. Even observance of certain ceremonies would not allow anyone to claim that the parties be taken to be married or partial observance of the rites or ceremonies will not complete the requirement of the ceremonies for a Hindu marriage as prescribed by section 7 of the Hindu Marriage Act. Thus it is essential that the second marriage has to be proved to have been celebrated with proper ceremonies with due form. 17. This Court further finds that even there is no proof of the fact as regards the petitioner‟s marriage with DW-2, Shipra Debnath. Page 8 of 49 Consequence of admission has been discussed in Priya Bala Ghosh and Morris. That apart, by the passage of time Kanwal Ram and Bhaurao Shankar Lokhande have been proved as the correct enunciation of the law. So has been observed in Lily Thomas vs. Union of India & Others: (2000) 6 SCC 224. Another feature that needs to be noticed is that no cognizance against the petitioner has been taken under section 494 of the IPC but cognizance under Section 495 of the IPC has been taken. Unless an offence is committed under section 494 of the IPC, no offence can be sustained under section 495 of the IPC. Section 495 provides that whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of former marriage, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Therefore, unless against someone it is proved that he has committed the offence punishable under section 494 of the IPC no charge can be maintainable under section 495 of the IPC. This provision has been engrafted for higher punishment for concealing from the person with whom the subsequent marriage is contracted the fact of the former marriage. The cognizance ought to have been taken both under sections 494 and 495 of the IPC for two distinct but intra related offences as alleged in the complaint. No attempt has been made by the complainant to prove that the petitioner has committed the offence provided in section 494 of the IPC. Apart that, this court does not find any proof of valid marriage contracted by the petitioner with the complainant Even the Hindu priest who conducted the marriage has been withheld by the complainant. From the testimonies of PWs, no description of the ceremonies is available and as such, this Court has to observe that there is no proof of valid marriage contracted by the petitioner with the complainant. As stated before, even such proof is not available for the former marriage. So far the former marriage is concerned, both the trial court and the appellate court have committed serious error of law having relied the testimonies of DWs 1 & 2 inasmuch as their testimonies as to the former marriage have been considered as „admission‟ contrary to what has been held by the Apex Court in Priya Bala Ghosh. What is required to be strictly proved is the fact as to the marriage and to prove that fact the ceremonies in due form has to be brought in the evidence and in absence thereof, no person can be convicted either under sections 494 or 495 of the IPC.” Referring the same Learned Counsel for the appellant submitted that prosecution in this case has failed to prove the charge punishable under Section 494 of IPC and urged for acquitting the appellant from the charge of this case by setting aside the judgment and order of conviction and sentence. Learned Counsel further referred another citation of the Hon’ble Apex Court of India in Santi Deb Berma Vs. Smt. Kanchan Prava Devi reported in AIR 1991 SC 816 wherein Para Nos.6 and 7, Hon’ble the Apex Court observed as under:- “6. Mr. Dutta, the learned counsel appearing on behalf of the appellant herein assailed the impugned judgment contending that in the absence of acceptable proof that the marriage of the appellant with Namita Ghosh was celebrated or performed with proper ceremonies and in due form, it cannot be said that the marriage had been solemnised within the ambit of the provisions of the Hindu marriage Act, 1955 (hereinafter referred to as the 'Act') and that the finding of the High Court based on the three letters and the oral evidence to the effect that the appellant and Namita Ghosh were living together as husband and wife cannot in any way serve as proof of a valid marriage as per the Act, especially when there is no plea that the marriage was solemnised in accordance with the customary rites and usage which do not include Saptapadi. In other words, it is not the case of the respondent that the marriage was celebrated in accordance with the customs, dispensing with the ceremony of Saptapadi and usage applicable to the parties. In fact, the courts have proceeded on the footing that according to the parties the ceremony of Saptapadi is one of the essential requirements for constituting a valid marriage. 7. 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.” Referring the same Learned Counsel has drawn the attention of the Court that Hon’ble the Apex Court also by the said judgment observed as to how the charge under Section 494 of IPC be proved but here, in the given case there is no such evidence on record to prove that requirements of Section 494 of IPC has been complied with. On similar issues Learned Counsel referred another citation of this High Court in Sanirai Kaloi Vs. State of Tripura reported in (2021) 1 TLR 169 wherein in Para Nos.48 to 56, this High Court observed as under:- “[48] It is to be noted that in the statement as recorded under Section 164(5) of the Cr.PC, the victim has replicated what she has stated in the complaint with a little bit elaboration. She has stated under section 164(5) of the Cr.PC that she had physical relation in their house and in the appellant‟s house. During their relation, the appellant had physical relations several times with her. In the year 2007, she asked him when he would marry her, at that time he told her after completion of studies, he would inform her when he would marry her. Thereafter, she had asked about their marriage several times and every time the appellant replied that he will marry her. This part of the statement is conspicuous in her deposition. [49] In the said statement, the victim has referred to the fact that she proposed to have an affair with the appellant. She has also stated that her parents asked the parents of the appellant when they would arrange their marriage. They had replied by saying that when the appellant would be ready, they will arrange their marriage. Neither the victim nor her parents has stated this fact in the trial. Thereafter, she had stated that on 24.11.2016 she came to know that the appellant is in relation with another girl, whom he was going to marry on 25.11.2016. During that time, on the complaint of the victim, the matter was taken to the village Chowdhury. In that meeting, the appellant refused to marry her and then she filed the complaint. [50] Without prejudice to the question of admissibility, we have looked into the medical examination report, which is not a public document. The said report was admitted in the trial being marked as Exbt -8. To our surprise in the order dated 22.11.2018 the trial judge has made the following observation: “At this state, Learned defence counsel Mr. Surata Roy has submitted that he does not deny the contents of Potency Test Report of accused- Sani Rai Kalai and the medical examination report of the victim of this case and the same may be admitted in the evidence. Accordingly, as per section 294 of Cr.PC the medical report of the victim is marked as Exhibit-8 and the Potency Test Report of the accused is marked as Exhibit-9.” [51] The said order has been passed after the evidence of prosecution was recorded. For that reason, it has been noted in the said order that the evidence of prosecution side was closed. From the medical examination report (Exbt-8), it is found that the victim stated her age to be 27 years on the day of examination, i.e., 21.11.2016 and she had named the appellant as the perpetrator to the medical officer. For obvious reason, there was no marks of physical violence. The medical officer found that the hymen of the victim was ruptured but the medical officer has given the opinion that there was no indication of recent sexual activities but it was possible that aggregate size penis could penetrate several times. The appellant was found potent to do the sexual intercourse by the report, Exbt-9. [52] Having appreciated the rival contentions and keenly assessed the evidence as recorded in the trial, in particular the testimony of the victim (PW 1), there cannot be any doubt that the appellant and the victim are first cousins, inasmuch as the father of the appellant and the victim‟s mother are full blood brother and sister. The victim has admitted that after January 2014, she did not meet appellant and the complaint was filed on 24.11.2016. In the village meeting, she had stated that the similar fact, but she had added in the trial that she used to talk to the appellant over her phone. Moreover, her complaint was that she had physical relation in her house. Her house, as stated by the victim, consists of one single room. In that room she has been residing with her parents and her elder sister. This fact offends the veracity of the victim‟s statement. PWs 2 and 3, the parents of the victim have stated that they were aware of the love relation being reported by their daughter. Even they were reported of physical relation between them. The mother of the victim (PW3) has stated that she was informed by her daughter about the affair sometime in 2016 that she had a love affair and physical relation with the appellant. According to the parents, the appellant admitted the said relation in the village meeting. Even, PW3 denied the incidence of marriage of the appellant which took place on 21.08.2015. [53] In the village meeting, the parents of the victim made a proposal, according to PW4 [the community head] that till the marriage of the appellant, the victim should reside with the appellant in their residence. PW4, the community head, has stated that marriage between “two persons who are distant brother and sister can take place, if they fall in love relation”. This statement of the community head is contrary to the statement made by PW2, father of the victim. PW2 has stated in their society brother and sister can tie nuptial knot. It appears to this court that the statement of PW4, in this regard, is acceptable inasmuch as he had clearly stated that marriage is only possible between the brother and sister who are distantly related. But, in the instant case, the appellant and the victim (PW1) are first cousins. Hence, it is very difficult to believe that there was any assurance of marriage. Even if it is assumed that there was a love relation or incestuous sexual relation. When we scanned the messages sent by the victim, it appears to us that the victim was ready to abandon the proposal of marriage with the appellant, had the appellant promised to bear the cost of her marriages and looked for a suitable boy for her. It appears that she threatened the appellant. The trial judge has not considered these pieces of evidence even though the victim (PW1) has admitted the content of the messages in the trial. The messages were also before the court in print. On admission, those message are fit to be read in evidence, but the trial judge did not do that. [54] The defence is quite satisfactorily proved that the appellant got married on 21.08.2015 in his house which is 500/300 meter away from the house of the victim. The victim has claimed that she did not know that the appellant married one Manorama Debbarma under Special Marriage Act by giving notice in advance. The certificate of marriage (Exbt-A) has been placed in the evidence. After marriage, the appellant had been leading his married life with Manaroma Debbarma in his house. The victim did not even allege that the sexual intercourse that took place between the appellant and her was without her consent. The only allegation that has been made by her that the appellant did promise to marry her. If the statement of the victim (PW1) is scrutinized threadbare, it will be apparent that having sexual intercourse on promise of marriage is a clear after-thought, if read the testimony as a whole. Her clear statement is that out of love affair, they had the physical relation. It would be appropriate to quote the statement that has been made by the victim in the trial, which reads as follows: “I have lodged a case against him alleging that I had a love relation with him since 2004 and he had promised to marry him, but did not fulfill his promise”. Page 13 of 49 [55] Immediately thereafter the victim has stated that on the assurance of marriage, a physical relation between them took place, but that statement even has not been corroborated by her father Debaranjan Kaloi (PW2) or by her mother Kirani Kaloi (PW3) to whom she had disclosed the relation after long years. When the entire family live in one single room, sexual intercourse in such sites is either improbable or rarity. It is improbable because they had allegedly sexual intercourse umpteen times. PWs 2 and 3 only stated that she had a love affair including physical relation with the accused-Sanirai but he had refused to marry her. PW4 the community head called Choudhury has also stated that the victim stated that “all these years she had been living with Sanirai (the appellant) as husband and wife but now he was avoiding her. Sanirai was inquired and he had accepted the existence of the love affair with the (the victim by name) but refused to marry her saying that he wanted to marry another girl or had already been married to another girl. This only demonstrates the nature of the victim girl to exaggerate. Aspect of sexual intercourse has not been vouched by her parents, even though both of whom testified in the trial. [56] Having considered the circumstances and revelation made in the evidence by the victim, we are of the view that prosecution has failed to persuade us to believe that on promise of marriage, the sexual intercourse, if any, had taken place. There is no evidence, to infer misconception of fact under section 90 of the IPC. Moreover, there cannot be any indictment for cheating when the victim girl had claimed money to leave the proposal of marriage at lurch. This is a clear case of consensual sex between two adult man and woman and as such the sexual intercourse as alleged cannot be brought as offence punishable under section 376(2)(n) of the IPC or under the definition of rape as provided by section 375 of the IPC. As we have already observed that the element of cheating is manifestly absent in the evidence and, hence, the charge as framed under section 417 of the IPC is bound to fail.” Referring the same Learned Counsel submitted that prosecution in this case has also failed to prove the charge levelled against the appellant under Section 417 of IPC. In Durjoy Chakraborty Vs. State of Tripura reported in (2013) 1 TLR 988 this High Court in Para Nos.12, 13 observed as under: “12. In the case in hand, the victim neither in the FIR nor in her deposition in the Court made an allegation that she was raped by the accused against her will or without her consent. She made a very simple statement that the accused with an assurance to marry her undergone intercourse with her frequently, and as a result, she got pregnant but the accused ultimately did not keep his promise and did not marry her. She delivered a female child and as already stated above on the date of her deposition before court, i.e., 19.6.1999, the female child, so born to her, was aged about seven years and now, obviously she is about nineteen/twenty years. The statement of fact inspires all confidence that she made a true statement all along before the police as well as the court that the accused undergone intercourse with her and as a result she got pregnant and delivered a female child. She made no allegation that she undergone intercourse without knowing the consequence of such act or that there was any sort of misconception in her mind that the accused did not really intend to marry her and made false promise to have intercourse with her. In her deposition she clearly stated that in the village meeting it was decided that the accused must marry her but the father of the accused did not agree and the accused was, thereafter, not available in the village. It might happen that because of the intervention of the parents of the accused, ultimately, could not marry her. In his examination under Section 313 of Cr.PC the accused simply denied the allegation made against him and stated nothing about character, chastity, etc., of the victim. 13. Under such circumstances, in view of the law laid down by the Apex Court as discussed above, the ingredients of offence under section 417 of IPC in the facts and circumstances and the evidence on records, as reproduced above, are not available, and hence, the accused is entitled to get an order of acquittal on benefit or doubt. “ Referring the same Learned Counsel submitted that prosecution in this case also has failed to prove the charge levelled against the appellant under Section 417 of IPC. Learned Counsel further referred another citation of this High Court in Bijoy Bhushan Das Vs. State of Tripura reported in (2018) 2 TLR 276 wherein for want of evidence this High Court acquitted the accused appellant from the charge of the prosecution punishable under Section 417 of IPC. Lastly, Learned Counsel drawn the attention of the Court that if on perusal of the evidence on record if it appears to the Learned Court that there are two sets of evidence in that case the benefit should be given to the accused he referred one citation of the Hon’ble Apex Court in Raghunath, Ram Kishan Vs. State of Haryana and Others reported in AIR 2003 Supreme Court 165 wherein in Para Nos.32 and 33, the Hon’ble Apex Court observed as under:- “32. In the fact and circumstances recited above, we are clearly of the view, that the prosecution has not come up with a true story. It has suppressed the facts. If that be the case, the whole prosecution story would stand on a quick sand. The prosecution has failed to establish its case beyond reasonable doubts. It is now well settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favoring the accused must be accepted. 33. In the result, these appeals are allowed, the convictions and sentences passed on the appellants are set aside and all the appellants are acquitted of the charges framed against them. The appellants are in jail. They are directed to be set at liberty forthwith, if not required in connection with any other case.” 06. On the other hand, Learned Additional P.P. appearing on behalf of the State-respondent submitted that in this case it is admitted position that the prosecution has failed to prove the charge levelled against the appellant under Section 376 (1) of IPC but the prosecution in this case has been able to prove the charge levelled against the appellant under Section 494 of IPC and also under Section 417 of IPC. 07. It is further submitted by Learned Addl. P.P. that to prove the charge of Section 494 of IPC that is the marriage in between the informant and the accused appellant, prosecution has produced the priest of marriage and other independent witnesses who supported the case of the informant-cum- victim. The appellant by the trend of cross-examination could not discredit/discard evidence. Thus according to Learned Addl. P.P., Learned Court below after considering the evidence on record rightly and reasonably found the appellant to be guilty punishable under Section 494 of IPC and accordingly convicted him. In respect of charge punishable under Section 417 of IPC, it was further submitted by Learned Addl. P.P. that, since the prosecution has been able to prove the charge levelled against the appellant under Section 494 of IPC and from the evidence on record of the prosecution it is also crystal clear that the prosecution also has been able to prove the charge levelled against the appellant under Section 417 of IPC and, as such, there is no infirmity in that judgment and order of conviction and sentence delivered by the Learned Trial Court below and urged for dismissal of this appeal by upholding the judgment and order of conviction and sentence delivered by Learned Trial Court. 08. Now before proceeding with the merit of the appeal, let us discuss the story of the prosecution including the evidence on record of the prosecution. In this case the prosecution was set into motion, on the basis of an FIR laid by the informant i.e. the alleged victim name withheld to O.C. Baikhora P.S. alleging inter alia that on 11.12.2019 her marriage was performed in the house of one Swapan Karmakar, in the village Julaibari under Baikhora P.S. with Mangal Saha as per Hindu rites. After the marriage, they lived in a rented house of one Sri Kanti Pal as husband and wife at Julaibari. That time, her husband was posted at Debdaru police out post. From there he was transferred to Santirbazar Police Station. They stayed in a rented House of one Bimal Das of Santirbazar for about 2 (two) years as husband and wife and due to cohabitation she became pregnant in the year 2020 and during the pregnancy stage of one and half month, her husband asked her to destroy the child and he brought medicines from the market and compelled her to take medicine against her will and destroyed her child. It was further mentioned in the FIR that, the accused told her that he is to attend training, so she should stay in her father’s house for some days and after that he will bring her. Thereafter, after waiting for some days she visited the rented house of Santirbazar with her old father when she could know that her husband had left that house. Thereafter the informant and her father visited the barrack of Santirbazar police station, that time the accused made abusive languages to her and pushed her out from there. Later on she could know that the accused has got his wife and child and in spite of his first wife he married her and deceived her and cohabited with her against her will. This is the contents of the FIR. 09. On the basis of FIR, Baikhora P.S. Case No.23/2022 under Section 494 of IPC was registered and the case was endorsed to I.O. for investigation. The I.O. after completion of investigation laid charge sheet before the Learned Jurisdictional Court and on commitment before Learned Trial Court, the appellant appeared when formal charge under Section 494, 376(1)/417 of IPC was framed against him and the same was explained to him in Bengali to which he pleaded not guilty and claimed to be tried. During trial to substantiate the charge prosecution in the case has adduced in total 21 numbers of witnesses and the prosecution also tendered and relied upon some documents which were marked as Exhibits in this case. For the sake of convenience, I would like to refer herein below the name of witnesses and the Exhibits of the prosecution which are as follows:- LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A. Prosecution RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) PW-1 Smt. Pinki Chowdhury (Saha) Informant PW-2 Sri Subhash Karmakar Other witness PW-3 Sri Babul Debnath Other witness PW-4 Sri Dilip Das Other witness PW-5 Smt. Baishakhi Saha Other witness PW-6 Sri Amal Debnath Police witness PW-7 Sri Pranab Kanti Biswas Police witness PW-8 Sri Asish Bhowmik Police witness PW-9 Sri Priyaranjan Chakraborty Other witness PW-10 Sri Gopal Sukladas Police witness PW-11 Sri Bimal Das Other witness PW-12 Sri Kamala Das Other witness PW-13 Sri Kanti Pal Other witness PW-14 Sri Shakti Choudhury Other witness PW-15 Smt. Tulurani Debnath Other witness PW-16 Sri Rajib Kumar Shil Other witness PW-17 Sri Shyamal Chakraborty Other witness PW-18 Sri Bhramar Ch. Das Police witness PW-19 Sri Swapan Das Police witness PW-20 WSI Ruma Noatia IO of the case PW-21 SI Satybrata Chatterjee IO of the case B. Defence Witnesses, if any: RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) Nil Nil C. Court Witnesses, if any: RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) Nil Nil LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS A. Prosecution: Sl. No. Exhibit Number Description 1. P-1/1 PW-1 Signature of PW-1 in the written report 2. P-2/1/PW-1 Signature of PW-4 in the statement of 164(5) of Cr.P.C. 3. P-3/1/PW-7 Signature of PW-7 in the seizure list 4. P-4(i) to 4 (vi)/PW- 17 Declaration certificate 5. P-3/2/PW-8 Signature of PW-8 in the seizure list 6. P-5/PW-10 Printer FIR form 7. P-5/1/PW-10 Signature of Printed form of FIR 8. P-1/2/PW-10 Signature of PW-10 in the written complaint 9. A/PW/12 Portion of 161 statement 10. A.5(i) to 5(ii)/PW-23 Medical report 11. P-6/PW-24 Medical report 12. P-6 (vi)/PW-13 Signature of PW-13 in the report 13. P-1(i) to 1(ii)/PW-17 Written complaint 14. P-1/3/PW/17 Signature of PW-17 in the written statement 15. P-5(i) to 5(ii) Medical report 16. P-6 Medical report 17. P-7/PW/20 Hand sketch map 18. P-8/PW/20 Index 19. P-9/PW/20 Hand sketch map 20. P-10/PW/20 Index 21. P-13/1/PW/20 Seizure list 22. P-13/1/PW/20 Signature of PW-20 in the seizure list 23. P-14(i) to 14(ii)/PW/20 ROR 24. P-15/PW/20 Seizure list 25. P-15/1/PW/20 Signature of PW-20 in the seizure list B. Defence: Sl. No. Exhibit Number Description Nil C. Court Exhibits: Sl. No. Exhibit Number Description Nil D. Material Objects: Sl. No. Exhibit Number Description Nil Defence adduced the oral/documentary evidence in support of his defence. 10. PW1 is the informant-cum-victim of this case. She deposed on oath that in the year 2019, she came in contact with the accused through social net working namely Facebook. Gradually their friendship developed into love affair. After that, the accused appellant made proposal to her for marriage and accordingly, her marriage was negotiated on discussion between her parents and her husband including one of his colleagues namely Amal Debnath. After negotiation, her marriage was held on 11.12.2019 according to Hindu rites and customs in the house of one Subhash Karmakar, at Jolaibari, Ashram para. During that time, her husband being a police constable was posted at Debdaru police outpost. After marriage, they stayed in a rented accommodation in the house of one Kanti Pal at Jolaibari as husband and wife. After about two and half months her husband was transferred to Santirbazar P.S. and accordingly they shifted at Santirbazar and stayed therein as husband and wife in another rented accommodation in the house of one Bimal Das near Central School. They stayed therein for about 18 months. During their stay at Santirbazar in 2020 she conceived. When she was at her pregnancy of one and half months, her husband on the pretext of having some problem fed her some medicines causing miscarriage. After few days, her mother was ailing and, as such, she went to her paternal house at Hrishyamukh, Krishnanagar, when her husband requested her to come back to their rented house at Santirbazar, accordingly she came back when her husband told her that he will be going to Agartala for training and thereby requested her to stay in her paternal house. Accordingly, he left for training and she was staying in her paternal house. The accused used to communicate with her over phone once in a day. In such a situation, she stayed in her paternal house for about one and half month. Thereafter she along with her father visited their rented house at Santirbazar when she came to know from the house owner that her husband had vacated the rented accommodation after few days of her leaving. Then she came to learn from the house owner that her husband is presently staying at Santirbazar police barrack. Accordingly, she went to police barrack and met him there when she called him out from the police barrack with help of one of his colleagues but her husband told that they were unknown to him and he also abused her father. Page 23 of 49 They left the place. After that the informant along with her father visited the house of the sister of her husband at Barpathari. But his sister refused to talk with her. After that they came back to her paternal house. She waited for few months and reported the matter to the SP Office and SDPO Office, Belonia in writing and Santirbazar PS orally. She had also lodged a written complaint in writing to Baikhora PS. The written complaint was prepared by one Shyamal Chakraborty as per her dictation. The witness has identified her signature at the bottom of second page of the written complaint and on identification the same was marked as Exbt.P-1/1. She further stated that she was produced before the court by police wherein her statement was recorded under Section 164(5) of Cr.P.C. marked as Exbt.P-2. She was also taken to Baikhora hospital for medical examination. During cross-examination by the defence that is the appellant herein she stated that when she came to be acquainted with Mangal Saha that time she was a divorcee. She tried to know the residential address of Mangal Saha since after her acquaintance with him till before filing this case. She further stated that she had no idea about the distance between her house and the house of Mangal Saha and she never visited his house. Again she stated that before lodging of the case she did not file any other complaint. Again she stated that she filed a complaint at Baikhora P.S. and she went to the PS for lodging the complaint. And she was examined by the police at the time of filing of the complaint. Page 24 of 49 She further stated that the date of her pregnancy was not mentioned in the written complaint. Her first husband is a resident of Hrishyamukh. Her marriage was solemnized with him in 2009 according to their Hindu social rites and customs and ceremonial function of their marriage was held in her paternal house at Hrishyamukh, Krishnanagar. And she had led conjugal life with him for a period of seven years and they have one son out of their wedlock with her first husband. She further stated that her son is a student of class-IX and he is staying with his father. Again she stated that he saw Mangal Saha physically for the first time when he visited her paternal house along with his family members. That time she was aged about 29 years. She again stated that she does not have any videograph or photograph or any documentary proof as to her marriage with Mangal Saha as per Hindu rites and custom. Again she stated that immediately after her divorce with Asish Choudhury, she used to stay in her paternal house. She lodged the written complaint of this case on 03.08.2022. Being cross-examined by the defence she further stated that she filed another complaint with Baikhora P.S. before filing of this case and after filing of that complaint police officials visited the rented accommodation and the house where her marriage was solemnized and later on she filed the case. She also stated, scribe, Shyamal Chakraborty was not known to her. She was sent to him by the police for preparation of written complaint being a clerk. After lodging of the case, a departmental proceeding against the accused was held by a superior official of the office of SP., South Tripura. She was confronted with the statement that she mentioned in her written complaint and also stated to the I.O. that she came to be acquainted with the husband in 2019 through social networking namely Facebook and gradually their relation developed into love affairs and thereafter he laid proposal for marriage and accordingly their marriage was negotiated on discussion between her parents and her husband including one of his colleagues and friend Amal Debnath but on drawing attention such statement was not found in the statement of witness recorded by I.O. under Section 161 of Cr.P.C. and also in the statement recorded by Learned Magistrate under Section 164(5) of Cr.P.C. She was further confronted with the statement that she mentioned in her written complaint and also stated to I.O. that they stayed for 18 months in the house of Bimal Das but on drawing attention such statement was not found in the complaint petition, 161 statement of the witness and also the statement of the witness recorded under Section 164(5) of Cr.P.C. Again she was confronted with the statement that in the written complaint and also in the statement of the witness recorded by I.O. under Section 161 of Cr.P.C., she stated that after few days her mother was ailing and as such she went to her paternal house at Hrishyamukh, Krishnanagar and that time her husband requested her over phone to come back to their rented house at Santirbazar and accordingly she came back when her husband told her that he will be going to Agartala for training and thereby requested her to stay in her paternal house and accordingly, he left for training and she was staying in her paternal house and that he used to communicate with her over phone once in a day and in such a situation, she stayed in her paternal house for about one and half months but when drawing attention, such statement was not found in the statement of the victim, in the complaint petition and 161 statement of the witness recorded by under Section 161 of Cr.P.C. Again she was confronted with the statement that she stated to I.O. that she made statement in the Court as well as in the FIR that she called him out from the police barrack with the help of one office colleague and that by her husband told that they were unknown to him and also abused her father and they left the place. But on drawing attention such statement was not found in the written complaint, 161 statement and also in the statement of witness recorded by I.O. under Section 164(5) of Cr.P.C. The informant further again confronted with the statement that she stated to police and also made statement in the Court as well as in the FIR that thereafter she came back to her paternal house and waited for few months and reported the matter SP office and SDPO office, Belonia in writing and Santirbazar P.S. and she lodged a written complaint in writing with Baikhora P.S. and that the written complaint was prepared by one Shyamal Chakraborty as per her dictation but on drawing attention such statement was not found in her written complaint, 161 statement as well as 164(5) statement recorded by Learned Magistrate. 11. PW-2 , Subhash Karmakar deposed that, he knows the informant. On 11.12.2019 marriage between Pinki Choudhury and Mangal Saha was solemnized in his house following the social rites and customs in presence of one priest, father of Pinki and brother-in-law (husband of Mangal Saha’s sister). There was feast on the occasion of marriage and thereafter they left his house. He did not have any contact with them thereafter. During cross-examination, he deposed that his house was not given on rent for marriage functions. He made statement to the police after about two and half years of the marriage. He was confronted with the statement that he stated to I.O. that brother–in-law of the accused was present during marriage but on drawing attention that such statement was not found to the statement of witness recorded by I.O. under Section 161 of Cr.P.C. He further stated that the parties were not known to him prior to 11.12.2019. Again being asked by the appellant stated that he was never called at the office of SP Belonia in any matter connected with the case. About one month back he received a letter from the O/o SP Belonia whereby he was asked to attend the office but subsequently he was informed over phone not to attend and that another letter will be sent to him. Prior to that letter, he received another letter about two and half months back. In that occasion too he was requested over phone not to attend the office. No stage/mandap for marriage was decorated in his house on 11.12.2019. 12. PW-3, Babul Debnath, deposed that he knows the informant. The informant in 2020 used to stay in the adjacent house of his neighbour Bimal Das in a rented accommodation along with her husband Mangal Saha. Once in the said year the informant went to her paternal house and after return therefrom she found that her husband has vacated the rented accommodation. Later on he heard from the informant that Mangal Saha earlier got another marriage and he had a son of that marriage. During cross-examination, he stated that there was no dispute between informant and Mangal Saha during their stay in the house of Bimal Das. He further stated that he also heard about the existence of wife and son of accused Mangal Saha after the informant left the house of Bimal Das. He came to know about the existence of wife and son of accused when police visited his house after six months accompanied with the informant. He again stated that he did not witness any ceremonial function of marriage being held in between Pinki and Mangal Saha. 13. PW-4, Dilip Das deposed that he knows both the parties. They used to stay as husband and wife in a rented accommodation in his nearby house of Bimal Das during the year 2020 onwards. They stayed therein for two years. All on a sudden, Mangal Saha vacated the rented house. As a result, informant was searching him. Later on he came to know from the informant that Mangal Saha earlier got another marriage. During cross-examination, he stated that he has talking terms with Bimal Das and he is having good relation with him. Bimal Das never laid any allegation or complaint against either Pinki or Mangal Saha. He did not make any statement to the police. 14. PW-5, Smt. Baishakhi Saha is the first wife of the present appellant. She deposed that she do not know the informant. The accused Mangal Saha is her husband who is a police constable. About one year back her husband was arrested by the police in connection with a rape case but she could not say anything about the case of the prosecution. During cross-examination, she stated that the marital tie with her husband is still in existence. They jointly have filed a mutual divorce suit. They are not staying under the same roof and living separately since 2019. Their marriage was solemnized in 2015. They have one son out their wed-lock. She further stated that she filed a case of maintenance against her husband for herself and for her son. But her husband filed an application in the maintenance case seeking their return to his society but she did not return. Order was passed by the Court directing her husband to pay maintenance @Rs.10,000/- per month towards maintenance of herself and her son. She again stated that her husband also lodged an RCR suit vide TS(RCR) 10 of 21 against her. The said suit has been disposed of ex-parte. At the time of marriage her husband was a police constable. 15. PW-6, Amal Debnath deposed that he is a police constable. He knows the accused Mangal Saha. They were posted together at Debdaru police outpost in the year 2019. During that time, Mangal Saha told him that he intends to marry as his mother was ailing and thereby requested him to arrange a place for marriage. He told him that guardian of both sides are required to meet together for discussion of marriage. He also told him that his brother-in-law (husband of his sister) is his guardian and father of the bride is the guardian on the other side. Thereafter, the house of Subhash Karmakar situated near Jolaibari market was selected as a place of marriage. Accordingly, marriage was solemnized therein according to Hindu rites and customs. Seven steps were taken by the bride. He attended the marriage ceremony as an invitee and he did not know the name of bride. During cross-examination, he stated that his house is at a distance of about one km from the house of Subhash Karmakar. The house of Subhash Karmakar was not given on rent for the purpose of marriage. He has not submitted any document regarding marriage being solemnized in the house of Subhash Karmakar. He again stated that later on he made statement to the IO on 23.08.2022 and later on he heard that Mangal has another wife. 16. PW-7, Pranab Kanti Biswas deposed that, on 31.10.2022 he was posted in the reserve section, office of SP, South Tripura. On that day as per requisition of WSI Ruma Noatia and permission being granted by SP on such requisition, WSI Ruma Noatia had seized one declaration form in six pages on being produced by Inspector, Surensen Tripura. He witnessed the seizure. The witness has identified his signature on the seizure list and signature of the witness is marked as Exbt.P-3/1. The witness has also identified the declaration form in six pages. Declaration form stands marked as Exbt.P-4(i) to 4(vi). During cross-examination, he stated that he did not make any statement to the I.O. of this case. 17. PW-8, Ashish Bhowmik deposed that on 31.10.2022 he was posted in the reserve section, office of SP, South Tripura. On that day as per requisition of WSI Ruma Noatia and permission being granted by SP, on such requisition, WSI Ruma Noatia had seized one service declaration form in six pages on being produced by Inspector, Surensen Tripura. He witnessed the seizure. The witness has identified his signature in the seizure list and signature of the witness is marked as Exbt.P-3/2. The witness has also identified the declaration certificate marked as Exbt.P-4(i) to P-4(vi). During cross-examination he stated that he did not make any statement to the I.O. 18. PW-9, Priyaranjan Chakraborty deposed that he is a priest by profession. On the previous day of 11.12.2019 accused Mangal Saha approached him in his house with a request to perform all the rituals in his marriage in the house of one Subhash Karmakar situated to a little distance from his house. Accordingly, on the following day i.e. on 11.12.2019 in the evening he went to the house of Subhash Karmakar. On the request of Mangal Saha he arranged some of the articles for performing rituals and other articles were arranged by Mangal Saha. On reaching there he found the bride Pinki and her father. Mangal Saha was also present there along with his two brothers-in-law. Marriage between Mangal Saha and Pinki was solemnized according to Hindu rites and customs. The bride has taken seven steps (saptapadi) to perform the rituals of marriage. After completion of all the formalities for marriage she returned back to his house. During cross-examination, he stated that he did not produce any certificate to show that he being a priest is qualified to solemnize marriage. No marriage certificate was also issued to the parties and the house in which the marriage was held was not decorated. He was confronted with the statement that on 11.12.2019 accused Mangal Saha approached him in his house with a request to perform all the rituals in his marriage in the house of one Subhash Karmakar but on drawing attention such statement was not found in the statement of witness recorded by I.O. 19. PW-10, Gopal Sukladas is officer-in-charge of Baikhora PS who received an FIR registered Baikhora PS case No.2022/BKR/023 under Section 494 of IPC. He identified his endorsement. He identified the printed FIR form marked Exbt.P-5 and his signature as witness on the endorsement marked Exbt.P-5/1. 20. PW-11, Bimal Das, deposed that in the year 2020 since before corona lock-down the informant along with her husband Mangal Saha used to stay in his house in a room on rent and they stayed in his house for a period of 17 to 18 months. During cross-examination, he stated that he did not have any documentary proof to show that Mangal Saha stayed in his house on rent. He was confronted with the statement that he stated to I.O. that he knows the informant and that in the year 2020 since before corona lock-down the informant along with her husband Mangal Saha used to stay in his house in a room on rent. But on drawing attention such statement was not found. He was further confronted with the statement that he stated to the I.O. that the informant and her husband stayed in his residence for a period of 17 to 18 months. On drawing attention such statement was not found in the statement of witness recorded by I.O. under Section 161 of Cr.P.C. 21. PW-12, Kamala Das deposed that in year 2020 the informant along with her husband Mangal Saha used to stay in her house in a room on rent. They stayed in her house for a period of 17 to 18 months and after that the informant went to her paternal house. After about one month Mangal Saha vacated the rented room and after about two months thereafter the informant came to her house in search of her husband but by this time her husband had already vacated her house. During cross-examination, she was confronted with the statement that she stated to I.O. that in the year 2020 the informant along with her husband Mangal Saha used to stay in her house in a room on rent and that they stayed in her house for period of 17 to 18 months. But on drawing attention such statement was not found in the statement recorded by I.O. under Section 161 of Cr.P.C. She was further confronted with the statement that after about two months of vacating the room, the informant came to her house in search of her husband, but her husband already vacated the room and left her house. But on drawing attention such statement was not found in the statement of witness recorded by I.O. under Section 161 of Cr.P.C. She was further confronted with the statement she did not make any statement to the Police inter alia that the accused Mangal Saha stayed in her house as a tenant in last 2021. But as that portion of statement was denied so that portion was marked as Exbt.-A subject to confirm by I.O. 22. PW-13, Kanti Pal deposed that he knows both the parties of this case. On and from 11.12.2019 Mangal Saha took a room on rent in his house and stayed in the said rented room along with his wife i.e. the informant for about two and half months. He did not observe any dispute or quarrel amongst them. He having been transferred to Santirbazar PS, vacated his room. In the year 2022, the informant met him and told him that she lodged a case against her husband. He was confronted with the statement that he stated to the police inter alia that on and from 11.12.2019 Mangal Saha took a room on rent in his house and stayed in the said rented room along with his wife i.e. the informant for a period of two and half months. On drawing attention such statement was not found in the statement of witness recorded by I.O. He was further confronted with the statement that Mangal Saha transferred to Santirbazar PS and vacated his room. But on drawing attention such statement was not also found in the statement of witness. He could not say as to with how many persons Pinki Choudhury got married. 23. PW-14, Shakti Choudhury is the father of the victim cum informant. He deposed that the accused Mangal Saha got his daughter married on 11.12.2019 according to social rites and custom. Ceremonial function of their marriage was held in the house of one Subhash Karmakar, at Jolaibari. Said Subhash Karmakar is one of the friends of Mangal Saha. At the time of marriage, he was present. One of the sisters and husband of said sister of the accused were also present at the time of marriage. He further deposed that the accused was a police constable and at the time of marriage he was posted at Debdaru police outpost. After marriage, they used to stay in a rented accommodation in the house of one Kanti Pal at Jolaibari. They stayed therein for a period of 3 to 4 months and thereafter, Mangal was transferred to Santirbazar PS. On transfer, they vacated the said house and Mangal took another room on rent to a house on the opposite of Santirbazar PS where they stayed for about two years. In the last part of 2021 accused Mangal Saha was to attend training at Agartala and accordingly he requested his daughter to stay in his house and he will take her back after some time on returning back from the training. Accordingly, his daughter went back to his house. During training accused used to have talk over phone with his daughter. Accused did not return from training even after completion of one month. Therefore, he accompanied with his daughter went to the rented house at Santirbazar in search of the accused, when house owner told them that accused had vacated the rented room and the accused has been staying at Santirbazar PS. Accordingly, they went to the Santirbazar PS. On repeated request accused came out of the PS and abused them with filthy languages saying that they were unknown to him. While they left the PS, some of the colleagues of Mangal Saha told them that the accused earlier got another marriage and again he got his daughter married. So they therefore asked them to think over the matter and finding no other way his daughter laid the case. During cross-examination, he stated that his daughter was married to Asish Choudhury about 14 years back. The marriage function was held in his house. Asish Choudhury is still alive. They have one son out of their wedlock. He never visited the house of Mangal Saha. Mangal Saha visited his house along with his sister, mother and husband of said sister. 24. PW-15, Tulurani Debnath deposed that he has got one tea stall in front of Santirbazar police station. He knows both the informant and the accused. They used to stay as husband and wife in a rented accommodation in the house of Sri Bimal Das situated at a little distance from his shop. Accordingly, this witness Mangal Saha on that point of time was posted at Santirbazar PS. During cross-examination, nothing came out relevant. 25. PW-16, Rajib Kumar Shil deposed that he knows the accused. On 15.02.2022 the victim had approached the Santirbazar police station claiming to be wife of Mangal Saha, but Mangal Saha refused to accept the informant victim as his married wife. At that time, Mangal Saha used to stay in the police barrack at Santirbazar PS. During cross-examination, he could not say as to whether any marriage between the informant and the accused took place or not. Further stated on that day, the informant did not lodge any case with Santirbazar PS. 26. PW-17, Shyamal Chakraborty, deposed that on 02.08.2022 the informant-cum-victim had approached him for preparation of the written complaint. Accordingly, he wrote the written complaint in two pages as per her version. After preparation he read over and explained the contents of the complaint and admitting the contents to have been correctly written. She put her signature. She also verified the written complaint. The written complaint in two pages is marked as Exbt.P-1(i) to 1(ii). Signature of the witness in the written complaint is also marked as Exbt.P-1/3. During cross-examination, he stated that he is not an Advocate’s clerk. He has been running a small business at Baikhora market. 27. PW-18, Constable Bhramar Ch. Das deposed that on 15.02.2022 being a constable of police was performing sentry duty at Santirbazar PS at around 7-7.30 am. At that time one Shakti Choudhury along with his daughter is the victim came to the police station and asked him about constable Mangal Saha. Being asked the victim told him that she is the second wife of Mangal Saha. He send them to GD officer. Accordingly, GD officer requested Mangal Saha to come but he did not come. After waiting for about half an hour at the police station both of them proceeded towards police barrack. But later on he heard that Mangal Saha refused to accept the victim as his wife. Page 39 of 49 During cross-examination, he stated that on 15.02.2022 neither Pinki Choudhury nor her father filed any written complaint. 28. PW-19, Constable Swapan Das deposed that on 15.02.2022 he was posted at Santirbazar PS as a constable of police. On that day, at around 7-7.30 am he was performing GD duty. At that time, Shakti Choudhury claiming to be the father-in-law of constable Mangal Saha appeared in search of Mangal Saha and accordingly, he requested Mangal Saha to come over phone but he replied that he did not know that person and he be asked to leave the PS. Accordingly they waited for some time and later on they heard that said Shakti Choudhury and his daughter is victim i.e. the wife of Mangal Saha went to police barrack and they met Mangal Saha when they had some hot altercation. During cross-examination, he stated that he did not make any GD Entry regarding the presence of Shakti Choudhury at PS and nor Shakti Choudhury laid any complaint either oral or in writing. 29. PW-20, WSI Ruma Noatia is the IO who conducted investigation of this case. She deposed that on 03.08.2022 she was posted at Baikhora police station as an SI of police and on that day this case was endorsed to her for investigation. She visited PO in the house of Subash Karmakar at Asram Para, Baikhora and prepared hand sketch map with the index examined the victim and arranged recording her statement before the Court under Section 164(5) of Cr.P.C. She also examined Subash Karmakar, his wife Ratna Karmakar, his son Palash Karmakar and their neighbours namely Sukanta Baidya, Sadhan Baidya, Smt. Sakti Baidya, Ranjit Roy, Shyamali Mitra Roy. She also prepared hand sketch map with the index she went to the residence of Bimal Das along with the victim wherein Mangal Saha stayed as husband and wife as a tenant. She prepared hand sketch map with index and identified the hand sketch map marked as Exbt.P-11 and Index as P-12. And on conclusion of investigation she laid charge-sheet. She also collected the medical examination report of the victim from Baikhora PHC. During examination of the victim her vaginal swab, cervical swab and blood sample were collected and those samples were seized under a seizure list which was marked as Exbt.P-15 and the signature of the witness in the seizure list is marked as Exbt. P-15/1. On 31.10.2022 he collected and seized the declaration certificate, nomination for retirement gratuity, nomination for provident fund, family details of accused and nomination under GI scheme from the service record of the accused from the Office of the SP, South Tripura on being furnished by Inspector Suransen Tripura and identified the seizure list marked as Exbt.P-3 and signature of the witness on the seizure list marked as Exbt.P-3/3. On 10.11.2022 she collected and seized family ROR of the accused from the Panchayat Secretary, Joykatpur Gram Panchayat under a seizure list. The seizure list is marked as Exbt.P-13. Signature of the witness on the seizure list is marked as Exbt.P-13/1 and Certified copy of ROR also stand marked as Exbt.P-14(i) to 14(ii). At the stage of investigation herself having been transferred to West Agartala Women PS, handed over the case record to the O/C for re-endorsement. During cross-examination, she stated that the case was registered under Section 494 of IPC. She did not find any documentary proof in regard to the marriage of the victim with the alleged accused. She also did not find any infrastructure relating to marriage in the house of Subash Karmakar. Except oral statements, she did not find any proof of marriage in the house of Subash Karmakar. She further stated that during investigation it was revealed that the mother of the informant and the sister, husband of sister and one Amal Debnath, friend of the accused including the priest were present at the time of solemnization of alleged marriage. Those facts were revealed from the statement of Amal Debnath and the victim. She further stated that she recorded the statement of the informant on 04.08.2022 and her 164(5) statement was recorded on 20.09.2022 and the reason for delay in recording 161 statement and the statement recorded under Section 164(5) was not explained. She also filed an application for adding Section 417/376 of IPC in this case and also confirmed the confronted portion made by the witness during cross- examination of the witness by the defence. Page 42 of 49 30. PW-21, I/c. SI Satyabrata Chatterjee, is the second IO who laid chargesheet against the appellant accused, deposed that on 29.12.2022 he was posted at Baikhora police station. On that day this case was re-endorsed to him for investigation on the transfer of previous IO WSI Ruma Noatia. On receipt of the case record, he after perusal of the case record visited the place of occurrence and verified all the hand sketch maps and indexes so prepared by previous IO. He also re-examined all the witnesses and since they made similar statements, he did not record their statement afresh. On 29.04.2023 he receipt the report from TSFSL. Finally, a prima facie case having been found he laid Baikhora PS C/S No.13 of 2023, dated 15.05.2023, under Section 494, 417, 376 of IPC against the appellant accused Mangal Saha. During cross-examination, he devoid that he did not visit the place of occurrence or that he also did not verify the place of occurrence or that he also did not re-examine any witnesses or that he laid a concocted charge sheet without having a prima facie case made out against the accused. 31. I have heard argument of both the sides and gone through the record of the Learned Court below and perused the citations referred by Learned Counsel for the appellant in course of hearing of argument. As already stated, prosecution in this case has failed to prove the charge levelled against the appellant accused under Section 376(1) of IPC. Now we are to see whether the conviction awarded by Learned Trial Court below suffers from any infirmity or not? The evidence of all the witnesses of the prosecution have been discussed above. 32. Learned Court below convicted the appellant under Section 494/417 of IPC. Now, let us examine what Section 494 of IPC is meant for. In this regard, I would like to mention herein below the provision of Section 494 of IPC which provides as under:- 494. 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.” From the aforesaid definition, it appears that, if any person during the subsistence of his earlier marriage marries another person then he shall be held guilty for the offence punishable under Section 494 of IPC. 33. Here from the evidence on record it appears that the present appellant had got married earlier and from the first wife he has got one son. It is also on record that, they have submitted a divorce petition by mutual consent before the Court but there is no such evidence on record as to whether the said marriage was dissolved by a decree of divorce or not. In the instant case, the allegation of the informant i.e. PW-1 was that she came in contact with the accused through Facebook, ultimately their relation developed into love affair and accordingly, the appellant made proposal for marriage and the marriage was solemnized in presence of the parents, her husband and one of his colleague Amal Debnath and marriage was held in the residence of one Subhash Karmakar at Julaibari. To substantiate that fact PW-1 i.e. the victim during her examination before the Court reiterated the said fact. 34. However, PW-2, Subhash Karmakar appeared before the Court on behalf of the prosecution, he in his examination-in-chief deposed that the marriage took place in his house in presence of one priest, father of the informant and brother-in-law of the appellant Mangal Saha and in the marriage there was a feast and after that the parties left his residence. During cross-examination, the witness was confronted with the statement that she stated to IO that the brother-in-law of the accused was present but on drawing attention such statement was not found. 35. PW-3, Babul Debnath deposed that the marriage between the informant and the alleged appellant took place in the residence of one Subhash Karmakar situated nearby Julaibari market and marriage was solemnized according to Hindu Rites and Customs. He also stated that seven steps were taken by the bride. Page 45 of 49 36. PW-9, Priyaranjan Chakraborty was the priest of the marriage. He stated that as a priest, he conducted marriage of the informant and the accused and according to him on that relevant point of time the father of the informant and the accused i.e. the appellant was present along with his two brothers-in-law. He also stated that the marriage was solemnized according to Hindu Rites and Customs and the bride has taken seven steps ‘Saptapadi’ to perform the rituals of marriage. The informant in course of her examination-in- chief tried to support her versions in the FIR but during cross- examination by the appellant it appears she deviated from her earlier statement made to IO in respect of some facts from facts that for the first time she stated the said fact before the Court. So legally there is very limited scope to place reliance into to upon the evidence of the informant-cum-victim. 37. From the judgment relied upon by the appellant in course of hearing of argument it appears that to prove the charge of Section 494 of IPC strict proof of marriage is required. In this regard I would like to refer herein below Section 7 of the Hindu Marriage Act which provides as under: “7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” From the above provision, it appears that to establish Hindu Marriage there must be evidence of Saptapadi that is taking of seven steps by the bride and groom jointly before the sacred fire. From the evidence on record, it appears that, the priest and independent witness Amal Debnath (PW6) and Babul Debnath (PW3), in course of their examination stated that the bride took seven steps to perform the rituals of marriage. But from the evidence of the informant- cum-victim and other witnesses it appears that there is no such evidence on record that both the appellant and the victim made seven bridal steps may ‘Saptapadi’ jointly before the sacred fire. Only there is evidence on record that the bride had taken seven steps. 38. Situated thus, it appears that the marriage as required under Section 7 of the Hindu Marriage Act could not have been proved and other witnesses are the hearsay witnesses and some others are police personnel. As relied upon by the Learned Counsel for the appellant, in the judgment of Hon’ble Supreme Court of India in Santi Deb Berma Vs. Smt. Kanchan Prava Devi reported in AIR 1991 SC 816 (supra) to prove the charge under Section 494 of IPC strict proof of marriage is very much required. But here in the case at hand, it appears that although there is evidence on record that both the informant and the appellant got married and they lived together as husband and wife for a considerable long period of time. But the prosecution could not prove the marriage in accordance with the provisions of Section 7 of the Hindu Marriage Act before the Learned Court to substantiate the charge levelled against the appellant under Section 494 of IPC. Page 47 of 49 39. Situated thus, on the face of evidence on record that both of them lived together as husband and wife cannot successfully establishes the charge levelled against the appellant under Section 494 of IPC for want of strict proof of marriage and from the evidence on record the same does not justify, the conviction imposed upon the appellant under Section 494 of IPC and in my considered view Learned Trial Court has failed to appreciate the evidence on record before convicting the appellant under Section 494 of IPC although there is evidence on record of having cohabitation for a considerable long period of time both by the informant as well as by the alleged appellant of this case. 40. Learned Trial Court below also found the appellant to be guilty under Section 417 of IPC. Section 417 of IPC makes punishable offence of cheating which is defined in Section 415 of IPC. For the sake of convenience I would like to mention herein below the relevant provision of Section 415 of IPC which provides as under:- “415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation. Explanation. – A dishonest concealment of facts is a deception within the meaning of this section.” From the aforesaid definition of law, it appears that dishonest concealment of facts is a deception within the meaning of that section. Here in the case at hand, it is the case of the prosecution that the informant came in contact with the appellant through Facebook when the appellant proposed to marry her and after their marriage was held although the same was not performed in accordance with the provisions of Hindu Marriage Act but the appellant during his stay with the informant never divulged the fact that he had got his first wife rather suppressed the said fact and out of their wedlock a son was begotten and thus deceived her. The informant being deceived by the appellant surrendered her chastity. She also believing the accused to be unmarried had consented for marriage and resumed conjugal life with the appellant as a husband and wife for a considerable period of more than 2 years. The informant only after visiting Santirbazar Police barrack could know the said that she was deceived by the appellant. 41. Thus, considering the act of the appellant, it appears, that the Learned Court below rightly found the appellant to be guilty for the offence punishable under Section 417 of IPC. The citations as referred by the Learned Counsel for the appellant in this regard are distinguishable in facts and as such the same cannot be applied in this case. In the result, the appeal filed by the appellant is hereby partly allowed with modification that the appellant is hereby acquitted from the charge levelled against him under Section 494 of IPC on benefit of doubt and he is accordingly hereby set at liberty from the said charge. But he is found guilty for the offence charged punishable under Section 417 of IPC and he is accordingly convicted under Section 417 of IPC and is sentenced under Section 417 of IPC to the extent that the convict shall suffer SI for one month in place of one year and he shall also pay Rs.2,00,000/- in place of Rs.1,00,000/- as compensation to the informant-cum-victim of this case. During investigation, he was in custody w.e.f. 14.10.2022 to 12.12.2022. So the period of imprisonment imposed by this Court today be set off in view of the provision provided under Section 428 of Cr.P.C. The convict is asked to deposit the fine money to the Learned Court below by 30.05.2025 and the fine money realized be given to the victim by the Learned Court below after obtaining proper receipt. 42. Thus, the appeal is disposed of. Send down the LCR alongwith a copy of judgment/order immediately. Also supply a copy of this judgment to the Learned Counsel for the appellant for information and compliance. Pending application, if any, stands disposed of. JUDGE Amrita MOUMITA DATTA Digitally signed by MOUMITA DATTA Date: 2025.03.29 15:33:37 +05'30'