Kh Ningol Ibetombi Devi v. Pukharambam Ibomcha Dr.
1992-03-13
H.K.SEMA
body1992
DigiLaw.ai
This revision is directed against the order dated 31.1.1984 passed by the learned Additional Sessions Judge, Manipur in Criminal Revision No. 2 (1)/80/7 (1) 80/8/83/25/1983. 2. Briefly stated the material facts giving rise to this revision petition are as follows :- The petitioners filed a criminal complaint under section 125 of the CrPC before the learned Judicial Magistrate 1st Class, Imphal West, Manipur for maintenance allowances which was registered as (Complaint) Case No. 55/1978. In the petition it is stated inter alia, that the petitioner No. 1 and the respondent who is a Doctor in the Regional Medical College, Lamphelpat were in love and the opposite party made a false promise that he had no wife and was willing to marry her. On this false promise the opposite party had illicit inter course with the petitioner No. 1 who was then a maiden. It was further stated that out of the union, the petitioner No. 2 was born in the night between 18.10.77 and 19.10.77. The opposite party respondent herein, denied the allegation and contested the case. The learned Magistrate after recording the evidence from both sides and after hearing the parties gave its findings that the respondent was the father of the illegitimate child and ordered to pay maintenance to the petitioner No. 2 at the rate of Rs. 150 PM vide his order dated 29.11.1979. Against the said judgment and order the opposite party-respondent preferred a revision application before the learned Additional Sessions Judge, Manipur who after hearing the parties allowed the revision petition and set aside the order of the trial Court. Hence, this petition. 3. I have heard Mr. C. Komol Singh, learned counsel for revisionist and also Mr. N. Kumarjit Singh, learned counsel for the respondent. 4. Mr. C. Komol Singh, learned counsel for the revisionist submits that in exercise of its revisional jurisdiction the learned Additional Sessions Judge, Manipur has no jurisdiction to re-appreciate the evidence and set aside the findings of fact of the learned trial Court and substituted its own findings inasmuch as, the revisional powers cannot be equated with the appellate powers and jurisdiction. Next, it is submitted even assuming the appellate Court below had such power, in the instant case the findings of the appellate Court below are contrary to the evidence on record. On the otherhand, Mr.
Next, it is submitted even assuming the appellate Court below had such power, in the instant case the findings of the appellate Court below are contrary to the evidence on record. On the otherhand, Mr. Kumarjit Singh, learned counsel for the respondent submits that the evidence on record does not establish the paternity of illegitimate child. 5. With regard to the first submission of the learned counsel for the petitioner, sub-section (1) of section 397 of the CrPC provides :- "The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any findings, sentence or order, recorded or passes, and as to the regularity of any such proceedings of such inferior court and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or his own bond pending the examination of the record." Sub-section (1) of section 399 provides Sessions Judge's power of revision. "(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401." Sub-section (1) of section 401 provides High Court's powers of revision - "(1) In the case of any proceeding the record of which has been called for by it self or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391." In view of these provisions, the Sessions Judge may in the case of any proceedings the record of which has been called for by himself in its discretion, exercise any of the powers conferred on a Court of appeal. The same view was taken by this Court in Kanesh Malakar vs. Mustt. Protiva Rani Malakar, 1988 (2) GLJ 112. 6. The next submission of the learned counsel for the petitioner is that the findings of the appellate Court below is contrary to the evidence on record is also not acceptable because of the following reasons.
The same view was taken by this Court in Kanesh Malakar vs. Mustt. Protiva Rani Malakar, 1988 (2) GLJ 112. 6. The next submission of the learned counsel for the petitioner is that the findings of the appellate Court below is contrary to the evidence on record is also not acceptable because of the following reasons. The crux of the petitioner's case rests on the evidence of petitioner (PW 2) Khumanthem Ningol Ibetombi Devi, Keithellakpam Amu Singh (PW 1), Khumanthem Mangol Devi (PW 3) and Oinam Ibobi Singh (PW 4) and a prescription slip purported to have been issued by the respondent which has been made Exhibit P 1. In her examination-in-chief PW 2 has stated that she used to go to hospital for her treatment some times accompanied by her maternal uncle (PW 1) and some other times by her mother PW 3. She further stated that on the fateful day she went to check up with her maternal uncle PW 1. Further, she stated that some times her mother PW 3 used to accompany her. However, this statement was not corroborated by PW 3 and PW 1. PW 3 never stated that she used to accompany her daughter PW 2 to hospital for treatment. PW 1 also never stated that he accompanied the petitioner No. 2 to hospital. On the otherhand, PW 3 has stated in her deposition that the opposite party used to visit her house and stayed in the company of her daughter every Sunday which was not stated by PW 2. Again the petitioner stated that the prescription slip was issued by the opposite party-respondent which has been made Exhibit P1 is disproved by the evidence of Dr. Potsangbam Ongbi Ibetombi Devi DW 3. DW 3 stated that the prescription slip Ext. P 1 was issued by her and bear her initial. This statement of DW 3 thus disproved the statement of the petitioner that the prescription slip was issued by the respondent Dr. Kh. Ibomcha Singh.
Potsangbam Ongbi Ibetombi Devi DW 3. DW 3 stated that the prescription slip Ext. P 1 was issued by her and bear her initial. This statement of DW 3 thus disproved the statement of the petitioner that the prescription slip was issued by the respondent Dr. Kh. Ibomcha Singh. In view of the material contradiction appearing in the prosecution witnesses, the statement of petitioner PW 2 that she went to hospital accompanied by her maternal uncle PW 1 and she was checked up and treated in a room near TB Hospital at Lamphelpat and when she visited the room the respondent closed the door for about half an hour and during that period they had illicit intercourse and as a result of such union she gave birth to a female child. Petitioner No. 2 is too risky to act upon. It is true that the proceeding under section 125 of the CrPC is a quasi civil in nature but the paternity of the child must be established by the claimants convincingly. Mr. C. Komol Singh has strenuously urged before me that in course of cross-examination the respondent opposite party Dr. Kh. Ibomcha Singh DW 1 in answer to a pointed question that the petitioner No.2 (daughter) is the child of the respondent-opposite party the answer was - "also I do not know whether the petitioner No.2 is my daughter, or not", and submits that the paternity of the child had been admitted by the opposite party while it is true that this answer can be taken to be quite suggestive and in an involved manner this cannot be taken to be admission of the paternity of the child by the respondent opposite party. 7. There is yet another startling factor which makes petitioner's story with regard to the paternity of the child doubtlul. The petitioner was examined on 5.3.78. She stated that their first illicit inter course took place in the month of March about three years ago i.e. March 1975 and they continued such relationship for 1 year i.e. up to February-March, 1976. The petitioner gave birth to a female child, petitioner No.2, on 18.10.77 i.e. after a gap of about 20 months after March, 1976. This story makes the paternity of the child even more doubtful. 8. In the case in hand the paternity of the illegitimate child is in question.
The petitioner gave birth to a female child, petitioner No.2, on 18.10.77 i.e. after a gap of about 20 months after March, 1976. This story makes the paternity of the child even more doubtful. 8. In the case in hand the paternity of the illegitimate child is in question. It is not a case that the child was born out of their wedlock. Therefore, in order to award maintenance the paternity of the illegitimate child must be established with convincing evidence. In such a case, it is unsafe to award maintenance on the uncorroborated evidence of a woman. In this regard several High Courts has held that to establish a paternity of the illegitimate child it is unsafe to act upon uncorroborated evidence of a woman. In Thakur Prasad vs. Godavari, AIR 1951 Patna 514, it was held that it would be improper to accept without corroboration the mere statement on oath of the woman who asserts the paternity of the child. The same view was taken in Baskaran vs. Kunhipanu in AIR 1960 Kerala 110. In Mahammad vs. Snlekha, 1981 Crl Law Journal NOC 40 (Ker) the question whether a particular person is the father of an illegitimate child was considered. In that case it was held that it would not be proper to accept without corroboration the mere statement on oath of the mother who asserts it. It was further held that the evidence of mother can only be regarded as interested with a view to secure a father for her child who will relieve her of the burden of providing for the upkeep of the child and as a matter of prudence the Courts must seek corroboration of the oral testimony of the mother. 9. In view of what has been stated above, I hold that the statements of the petitioner regarding the paternity of the petitioner No. 2 was not corroborated by any other independent evidence and it is unsafe to act upon the uncorroborated evidence of the petitioner. The learned Additional Sessions Judge was justified in setting aside the trial Court's order and the same does not require any interference from this Court. This revision petition, therefore, stands dismissed. No order as to costs.