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2016 DIGILAW 840 (HP)

Suman Kumar S/o Sh. Achhar Kumar v. Asha Devi W/o Sh. Suman Kumar

2016-05-18

P.S.RANA

body2016
ORDER : P.S. Rana, Judge. Present criminal revision petition is filed against order passed by learned Additional Sessions Judge Ghumarwin District Bilaspur H.P. Camp at Bilaspur in Criminal Appeal No. 43-10 of 2011 whereby learned Appellate Court affirmed order of learned Judicial Magistrate Ghumarwin District Bilaspur H.P. dated 17.8.2011 announced in case No.3/3 of 2011/2010 under Section 12 of Protection of Women from Domestic Violence Act 2005. Brief facts of the case: 2. Asha Devi aggrieved person through Protection Officer filed application before Judicial Magistrate under Section 12 of Protection of Women from Domestic Violence Act 2005 against revisionists pleaded therein that non-revisionist was beaten in her matrimonial house. It is further pleaded that dowry was also demanded by revisionists from non-revisionist. Relief under Sections 18, 19, 20, 21 and 22 of Protection of Women from Domestic Violence Act 2005 sought. 3. Per contra response filed on behalf of revisionists pleaded therein that aggrieved person namely Smt. Asha Devi has number of time given beatings to revisionist No.1 and kept revisionist No.1 inside the room by bolting door from outside. It is further pleaded that non-revisionist brought dowry articles along with her to her parental house. It is further pleaded that nonrevisionist has no cause of action to file the application under Protection of Women from Domestic Violence Act 2005. It is further pleaded that non-revisionist is estopped to file application by her own acts, conducts, omissions and commissions. Prayer for dismissal of application sought. 4. Learned trial Court framed following points for determination:- 1) Whether Smt. Asha Devi is legally wedded wife of Suman Kumar as alleged? OPA. 2) Whether Smt. Asha Devi is entitled for the reliefs claimed under Sections 18 to 22 of the Act as alleged? OPA. 3) Whether application is not maintainable in the present form as alleged? OPR. 4) Final order. 5. Learned Trial Court decided points No. 1 and 2 in affirmative and decided point No.3 in negative. Learned Judicial Magistrate granted compensation to the tune of Rs. 3000/- (Rupees three thousand) and also granted maintenance allowance of Rs. 1000/- (Rupees one thousand) per month to aggrieved person Smt. Asha Devi from Suman Kumar co-revisionist. Learned Judicial Magistrate further directed that SHO Police Station Ghumarwin would implement the order of the Court. 6. Learned Judicial Magistrate granted compensation to the tune of Rs. 3000/- (Rupees three thousand) and also granted maintenance allowance of Rs. 1000/- (Rupees one thousand) per month to aggrieved person Smt. Asha Devi from Suman Kumar co-revisionist. Learned Judicial Magistrate further directed that SHO Police Station Ghumarwin would implement the order of the Court. 6. Feeling aggrieved against the order passed by learned Judicial Magistrate 1st Class Ghumarwin revisionists filed appeal under Section 29 of Protection of Women from Domestic Violence Act 2005 and learned Additional Sessions Judge Ghumarwin District Bilaspur camp at Bilaspur dismissed the appeal. 7. Feeling aggrieved against the order passed by learned Trial Court and affirmed by learned First Appellate Court revisionists filed present criminal revision petition. 8. Court heard learned Advocates appearing on behalf of revisionists and non-revisionist and Court also perused entire record carefully. 9. Following points arise for determination: 1) Whether criminal revision petition is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2. Final order. 10. Findings upon point No.1 with reasons: 10.1 CW-1 Asha Devi has stated that she was married with Suman Kumar in the month of November 2009. She has stated that she was kept properly for one month after marriage in her matrimonial house and thereafter revisionists namely Suman Kumar, Salochna and Satya Devi started beating her and also harassed her and demanded dowry. She has stated that she was not provided proper maintenance, proper food and clothes in her matrimonial house. She has stated that she informed her parents and complaint was filed in police station. She has stated that compromise was executed in police station and revisionists assured that they would not beat non-revisionist and would keep nonrevisionist in her matrimonial house in a proper manner. She has stated that thereafter she went to her matrimonial house but after 15-20 days again revisionists started misbehaving with her. She has stated that she was beaten in her matrimonial house and was turn out from her matrimonial house. She has stated that she would not go to her matrimonial house because there is eminent danger to her life. She has stated that her husband is mason by profession and used to earn Rs. 200-250 per day. She has stated that her dowry articles be returned to her from revisionists mentioned in list marked ‘X’. She has stated that she would not go to her matrimonial house because there is eminent danger to her life. She has stated that her husband is mason by profession and used to earn Rs. 200-250 per day. She has stated that her dowry articles be returned to her from revisionists mentioned in list marked ‘X’. She has stated that maintenance allowance to the tune of Rs. 3000/- (Rupees three thousand) be also provided to her. She has denied suggestion that she has voluntarily come to her parental house. She has denied suggestion that she has brought her Istridhan to her parental house. She has denied suggestion that she has filed wrong list of dowry articles. 10.2 CW-2 Deep Ram has stated that Smt. Asha Devi is his daughter. He has stated that Smt. Asha Devi was married with Suman Kumar on 29.11.2010. He has stated that revisionists beaten Smt. Asha Devi in her matrimonial house and also abused her in her matrimonial house. He has further stated that food and clothes were not provided to Smt. Asha Devi in her matrimonial house. He has stated that report was also filed in police station and compromise was executed. He has stated that case under Section 498-A is pending before competent Court. He has stated that Smt. Asha Devi has no source of income to maintain herself. He has stated that Suman Kumar is earning Rs. 200-250 per day. He has stated that dowry articles be returned back from revisionists. He has denied suggestion that Smt. Asha Devi has voluntarily left her matrimonial house. 10.3 RW-1 Suman Kumar has stated that Smt. Asha Devi is his wife and he has stated that marriage was solemnized on 29.11.2009. He has further stated that Smt. Asha Devi resided in her matrimonial house for two months and thereafter mother and father of Smt. Asha Devi came and insisted for separate residence for Smt. Asha Devi. He has stated that thereafter one room and one kitchen was allotted to Smt. Asha Devi. He has stated that Smt. Asha Devi quarrels in her matrimonial house. He has stated that on 2.6.2011 relatives of Smt. Asha Devi came and quarreled. He has denied suggestion that he had beaten Smt. Asha Devi in her matrimonial house. He has denied suggestion that he did not provide food and clothes to Smt. Asha Devi in her matrimonial house. He has stated that on 2.6.2011 relatives of Smt. Asha Devi came and quarreled. He has denied suggestion that he had beaten Smt. Asha Devi in her matrimonial house. He has denied suggestion that he did not provide food and clothes to Smt. Asha Devi in her matrimonial house. He has denied suggestion that dowry was demanded from Smt. Asha Devi. He has admitted that compromise was executed before police authorities. He has stated that compromise was executed under pressure. He has stated that Smt. Asha Devi has married with Babu Ram. 10.4 RW-2 Satya Devi has stated that Smt. Asha Devi is her daughter-in-law. She has stated that Smt. Asha Devi quarrelled with her in her matrimonial house and tried to cause injuries with bricks. She has stated that Smt. Asha Devi was allotted separate room. She has stated that parents of Smt. Asha Devi came and threatened that she would be implicated in false case. She has denied suggestion that food and clothes were not provided to Smt. Asha Devi in her matrimonial house. She has denied suggestion that dowry was demanded from Smt. Asha Devi. She has also denied suggestion that Smt. Asha Devi was beaten in her matrimonial house. She has denied suggestion that co-revisionist Suman Kumar used to consume wine. She has admitted that case was filed and compromise was executed before police authorities. She has denied suggestion that Smt. Asha Devi was threatened in her matrimonial house. 10.5 RW-3 Sher Singh has stated that parties are known to him. He has stated that parents of Smt. Asha Devi came and thereafter took Smt. Asha Devi in a vehicle to her parental house. He has admitted that parents of Smt. Asha Devi complained against co-revisionist Suman Kumar relating to harassment of Smt. Asha Devi. He has admitted that parents of Smt. Asha Sevi also complained about non providing of food and clothes and also complained about beating process to Smt. Asha Devi. 11. It is proved on record that application was filed by revisionists before learned Additional Sessions Judge Ghumarwin District Bilaspur H.P. to prove certificate issued by Gram Panchayat Binola placed on record wherein ward member of panchayat has acknowledged before Panchayat that Smt. Asha Devi is residing in the house of Babu Ram son of Sh. Pohlo Ram. 11. It is proved on record that application was filed by revisionists before learned Additional Sessions Judge Ghumarwin District Bilaspur H.P. to prove certificate issued by Gram Panchayat Binola placed on record wherein ward member of panchayat has acknowledged before Panchayat that Smt. Asha Devi is residing in the house of Babu Ram son of Sh. Pohlo Ram. Birth certificate also placed on record wherein it has been specifically mentioned that one male child was born on 30.6.2012 from the loins of Babu Ram and Smt. Asha Devi. Court is of the opinion that in the ends of justice proving of certificate issued by Gram Panchayat Binola and proving of birth certificate issued by Registrar Death and Birth are essential in the present case in the ends of justice and in order to decide the case properly and effectively and in order to impart substantial justice inter-se parties. 12. Submission of learned Advocate appearing on behalf of revisionists that (1) Babu Ram S/o Pohlo Ram (2) Pohlo Ram son of Ram Ditta (3) Hardai wife Pohlo Ram (4) Maya Devi wife of Prem Lal are necessary parties in the present case and they be impleaded as co-party in the present case is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that revisionists did not file any application for impleading above stated persons as coparty before learned Trial Court. It is held that if above stated persons are impleaded as co-party at the appellate stage the same would be de-novo trial. It is held that de-novo trial at appellate stage is not permissible under law. 13. Submission of learned Advocate appearing on behalf of revisionists that certificate issued by Gram Panchayat Binola and birth certificate issued by Registrar Death and Birth are material documents for the just decision of the case and learned First Appellate Court has illegally dismissed the application for placing and proving on record above stated documents is accepted for the reasons hereinafter mentioned. It is held that above stated documents are material documents for the just decision of the case because co-revisionist Suman Kumar when appeared in witness box before learned Trial Court has specifically stated that Smt. Asha Devi has remarried with Babu Ram and at present she is residing with Babu Ram as his wife and as per birth certificate placed on record there is recital that one male child was born from the loins of Smt. Asha Devi and Babu Ram on 30.6.2012. It is held that additional evidence under Section 391 Code of Criminal Procedure 1973 to prove certificate issued by Gram Panchayat Binola and to prove birth certificate issued by Registrar Death and Birth are essential in the present case in the ends of justice. It is well settled that Section 391 of Criminal Procedure Code 1973 avoids de-novo trial. Section 391 of Criminal Procedure code 1973 is not meant to fill up lacuna but to subserve ends of justice. It is akin to order XLI rule 27 CPC. See AIR 1965 Apex Court 1887 title Rajeshwar Prasad Misra vs. State of West Bengal and another. See AIR 1978 SC 59 title Bir Singh & other vs. State of U.P. Also see AIR 1971 Apex Court 1630 title Ratilal Bhanji Mithani vs. State of Maharashtra. 14. Submission of learned Advocate appearing on behalf of non-revisionist that certificate issued by Gram Panchayat Binola and birth certificate issued by Registrar Death and Birth are not essential documents for the just decision of the case is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that above stated documents are material documents in the ends of justice in present case. It is well settled law that as per Indian Evidence Act 1872 facts can be proved by way of oral evidence or by way of documentary evidence. Above stated documents are public documents and have been issued by public servant while discharging their official duties and are relevant facts under Section 35 of the Indian Evidence Act 1872. See AIR 2011 SC 1691 marugan vs. State of Tamil Nadu. Point No.1 is decided accordingly. Point No.2 Final Order: 15. In view of findings upon point No.1 above criminal revision petition is partly allowed. See AIR 2011 SC 1691 marugan vs. State of Tamil Nadu. Point No.1 is decided accordingly. Point No.2 Final Order: 15. In view of findings upon point No.1 above criminal revision petition is partly allowed. Order of learned Additional Sessions Judge Ghumarwin District Bilaspur H.P. dated 26.5.2014 announced in Criminal appeal No. 43-10 of 2011 is set aside and case is remitted back to learned Additional Sessions Judge Ghumarwin District Bilaspur H.P. for limited purpose only with order to take into evidence certificate issued by Gram Panchayat Binola and birth certificate issued by Registrar Death and Birth placed on record in accordance with law and thereafter decide appeal afresh in accordance with law. It is further directed that certificate issued by Gram Panchayat Binola and birth certificate issued by Registrar Death and Birth shall be taken into evidence subject to provision of Chapter XXIII of Cr.P.C. 1973 as an inquiry as mentioned under Section 391 (4) Code of Criminal Procedure 1973. Observation will not affect merits of case in any manner. Parties are directed to appear before learned Additional Sessions Judge Ghumarwin Bilaspur H.P. on 16.6.2016. File of learned Trial Court and file of learned first Appellate Court along with certified copy of order be sent back forthwith. Criminal revision petition is disposed of. Pending applications if any also disposed of.