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1999 DIGILAW 664 (PAT)

Laxmi Devi v. Kaushal Kumar

1999-07-28

P.K.SARKAR

body1999
Judgment P.K.Sarkar, J. 1. This complaint appeal has been filed for setting aside judgment and order dated 15.2.1993 passed by Sri Chandra Bhusan Dewedi, Judicial Magistrate, 1st Class, Jamshed-pur, East Singhbhum in Crl. case No. 119/90, T.R. No. 623/93 whereby he acquitted the accused-respondents. Earlier, SLA was granted bv a Bench of this Court on 21.7.1993 in SLA No.5/99 (R) and thereafter, this appeal has been filed. 2. The brief facts leading to this appeal appears to be as follows. The petitioner-appellant Laxmi Devi filed a complainant against the respondents. OPs before the ACJM, Jamshedpur stating inter alia that she was married to Kaushal Kumar Respondent No. 1 on 15.5.1981. The marriage was solemnised, according to the, Hindu rites and customs at the residence of the complainant-appellant. After the marriage, she came to the residence of respondent No.1 Kaushal Kumar and started residing with him as husband and wife. After two months of marriage, the respondents started torturing the complaninant-appellant to fetch dowry from her parents which was turned down by her as a result the respondents started abusing her. The husband of the complainant-appellant namely respondent No. 1 got an illicit connection with another lady Chunnu Kumari. The complainant-appellant protested but there was not only any impact on her husband (respondent No. 1) but he also subjected her (appellant) to physical and mental torture. Subsequently, the complainant gave birth to a female child and this created more complication and the complainant-appellant was subjected to humiliation by the respondents. They also drove her out from their residence. The complainant-appellant, thereafter, filed a maintenance case in the Court of Magistrate which was subsequently allowed. The respondent No. 1 paid three monthly instalments and subsequently stopped payment. A compromise was arrived at wherein respondent No. 1 took her back in his house and the complainant-appellant again started living in the house of respondent No. 1. The plainant-appellant again gave birth to a female child. So, she was again driven out from her in-laws house. Subsequently, the respondent No. 1, husband of the complainant- appellant again married Chunnu Kumari, respondent No. 4 On 15.1.1989 at village Chaura Chouri in the district of Gorakhpur. This fact was suppressed by respondent No. 1 before the complainant-appellant. Subsequently, the respondent No. 1 confessed this fact in writing before the Panchayat. Subsequently, the respondent No. 1, husband of the complainant- appellant again married Chunnu Kumari, respondent No. 4 On 15.1.1989 at village Chaura Chouri in the district of Gorakhpur. This fact was suppressed by respondent No. 1 before the complainant-appellant. Subsequently, the respondent No. 1 confessed this fact in writing before the Panchayat. Hence, the complainant-appellant filed the instant complaint- petition before the Chief Judicial Magistrate who took cognizance of the offence after examining the complainant-petitioner on solemn affirmation and issued notice to the respondent for facing trial. Subsequently, the case was tried under Sections 494 and 498/A, IPC. Charges were framed against the respondent No. 1 Kaushal Kumar under Sections 494 and 498/34, IPC and against the respondent No. 4 Chunnu Kumari under Sections 494/109, IPC and the rest of the accused-respondents under Sections 498/A/34, IPC. On trial the Magistrate found the accused-persons not guilty for the respective charges framed against them and they were, accordingly, acquitted. 3. Being aggrieved and dissatisfied with the aforesaid order the complainant-appellant filed SLA No. 5/93 (R) which was allowed by a Bench of this Court as mentioned above and, thereafter, this appeal has been filed. 4. In spite of valid service of notice, the respondents did not appear before this Court. The main contention of the complainant-appellant is that the charge under Section 494, IPC has been established against respondent No. 1 Kaushal Kumar and the charge under Sections 494/109, IPC has also been established against respondent No. 4 Chunnu Kumari on admitted facts. There is no dispute on the point that the complainant is the married wife of respondent No. 1 Kaushal Kumar. There is ample evidence on the fact that Kaushal Kumar, Respondent No. 1 married respondent No. 4 Chunnu Kumari while the marriage of Kaushal Kumar still existed with the complainant-appellant. 5. It is further submitted that respondent No. 4 Chunnu Kumari has mentioned herself as wife of Kaushal Kumar, respondent No. 1 which is apparent from the bail-bond filed by her in the Court below. Similarly, from the agreement marked Ext. 1, it will appear that Kaushal Kumar has given an undertaking that he will maintain his two daughters through the first wife and he has also stated that he has married Chunnu Kumari of village Chaura Chori. This Ext. 1 has been proved by PW 1 Kanhai Pandey. Similarly, from the agreement marked Ext. 1, it will appear that Kaushal Kumar has given an undertaking that he will maintain his two daughters through the first wife and he has also stated that he has married Chunnu Kumari of village Chaura Chori. This Ext. 1 has been proved by PW 1 Kanhai Pandey. There is no suggestion to that effect that the agreement Ext. 1 is not genuine. PW 4 is Laxmi Devi, the complainant-appellant who has also fully corroborated the entire case and also the execution of the agreement Ext. 1. The accused-persons suggested to PW 3 in the cross-examination that the signature of Kaushal Kumar was taken by force on the agreement. This clearly shows that the opposite parties indirectly admitted the execution of the agreement but say that the signature of Kaushal Kumar was taken by force. In his statement under Section 313, Cr PC, Kaushal Kumar has stated that he has been falsely implicated in this case. He does not know Chunnu Kumari. He saw her for the first time (in the Court) but subsequently stated that she resides in his house. This statement clearly shows that he knew Chunnu Kumari from before and she lives with him. Similarly, Chunnu Kumari in her statement under Section 313, Cr PC has stated that she was married with Basantlal four years before and used to live with him. But for the last four months, she is residing in the house of Kaushal Kumar. No explanation has been given as to how she is living in the house of Kaushal Kumar. 6. In view of the facts and evidences stated above, it appear that there are evidence against the respondent No. 1 Kaushal Kumar and respondent No. 4 Chunnu Kumari under Sections 494 and 494/109, IPC respectively. Moreover, the evidence of PW 5 coupled with the execution of the agreement also shows that there are sufficient evidence under Section 498, IPC also against the accused-respondent No. 1 Kaushal Kumar. 7. In this view of the matter, Sri P.K. Bhaumik, learned counsel for the complainant-appellant submits that he is aware that interference of the High Court against an order of acquittal can be made in rare of rarest-cases, but he submits that this case is one of them for which admitted evidence have not been taken into consideration. 8. 7. In this view of the matter, Sri P.K. Bhaumik, learned counsel for the complainant-appellant submits that he is aware that interference of the High Court against an order of acquittal can be made in rare of rarest-cases, but he submits that this case is one of them for which admitted evidence have not been taken into consideration. 8. It is true that ordinarily, the High Court should not interfere in a case of acquittal. However, in a recent decision of the Supreme Court 1998 2 EastCrC 1098 (SC) Vimal Singh V/s. Khuman Singh and another, it has been observed as follows: "The interference with the order of acquittal passed by the Trial Court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or/when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegaly shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. However, the High Court would not be justified in substituting order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left the High Court in such exceptional cases is to order retrial." Thus, the Supreme Court is also of the view that the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. 9 In view of the facts stated above, I feel that the evidence which would have clinched the entire case has been overlooked by the trial Court which deserves to be considered. Similarly, some important evidence on record have also been overlooked. Accordingly, this appeal is allowed. The impugned Judgment and order dated 15.2.1993 passed by Sri Chandra Bhusan Dewedi, Judicial Magistrate Ist Class, Jamshedpur, East Singhbhum, in Crl. case No. 119/90 is set aside. Similarly, some important evidence on record have also been overlooked. Accordingly, this appeal is allowed. The impugned Judgment and order dated 15.2.1993 passed by Sri Chandra Bhusan Dewedi, Judicial Magistrate Ist Class, Jamshedpur, East Singhbhum, in Crl. case No. 119/90 is set aside. The case is remanded back to the Court below who will hear the parties afresh, consider the evidence on record and will pass an order in accordance with law.