Court No. - 41
Reserved on 9.7.2018 Delivered on 31.7.2018 Case :- CRIMINAL REVISION No. - 1487 of 1990 Revisionist :- Smt. Kalawati Opposite Party :- Santosh And Others Counsel for Revisionist :- R.K. Pandey Counsel for Opposite Party :- G.P. Dikshit,A.G.A.
Hon'ble Aniruddha Singh,J.
1. This Criminal revision has been preferred by complainant Smt. Kalawati against order dated 29.5.1990 passed by Munsif Magistrate, Banda in Complaint Case No. 194/ IX/90(Smt. Kalawati vs. Santosh and others) acquitting opposite party No.1 to 3 namely, Santosh, Babu & Smt. Jogiya under Section 494 and 498-A IPC.
2. Ground of revision are that impugned order is against fact and law and has been passed without consideration of evidence on record; P.W.-2 Sadashiv has corroborated the case of complainant.
3. In brief, facts of the case are that one complaint was filed by Smt. Kalawati alleging that she was married to Santosh on 2.6.1981. Her husband Santosh and his family members tortured the complainant and on 18.2.1987 Santosh solemnized second marriage with Smt. Pushpa in her life time without her consent.
4. After evidence recorded under Section 244 Cr.P.C., charges were framed under Section 494 and 498-A IPC against opposite parties no. 1 to 3 only and not against opposite party No.4 Smt.Pushpa.
5. After recording evidence of witnesses of P.W.-1 Kalawati, P.W.- 2 Sadashiv, P.W.-3 Munna Lal, P.W.-4 Ganga Ram, P.W.-5 Gaya Prasad, P.W.-6 Shiv Badan, C.W.1 Rama Shankar and C.W.-2 Prem Narain Tiwari and after recording statement under Section 313 Cr.P.C., hearing learned counsel for parties, perusal of record, accused persons Santosh, Babu and Smt. Jogiya have been acquitted under Section 494 and 498-A IPC. Hence this revision.
6. Heard Sri Himanshu Pandey, Advocate holding brief of Sri R.K.
Pandey, learned counsel for the revisionist, Sri Vikas Goswami, learned AGA and perused the record.
7. Learned A.G.A submitted that there is no illegality or impropriety in the judgment and order under challenge acquitting opposite parties No. 1 to 3.
8. We have considered rival submissions made by the learned counsel for the revisionist and learned A.G.A. for the State and gone through entire record.
9. It is admitted fact that complainant/revisionist is the wife of Santosh. The question is that whether during marital life time of Kalawati, Santosh has solemnized second marriage with Pushpa or not. From perusal of record, it transpires that only one witness Sadashiv has been examined on this issue. It is admitted to him that he was not resident of village of Santosh. The statement of this witness is not corroborated by any other evidence and he is also not a natural witness. He stated that he had attended the marriage of Pushpa and Santosh.
10. From perusal of documentary evidence annexed with the record of lower court in the case No. 192/ix/88 Santosh has filed written statement dated 20.12.1988 in the Court of Munsif Magistrate, Banda. He clearly narrated that Kalawati is his wife and the marriage was solemnized on 18.4.1986 with the consent of his family members. Before marriage with Kalawati, he was married with Pushpa Devi and that was solemnized on 1.6.1977. This fact was not in knowledge of complainant and with local custom she was got marriage with Santosh. When Kalawati came in his house and knew this fact, she refused to live with him. She went to his parental house and made several frivolous complaints against Santosh and his family members. Local marriage of Kalawati is not legal marriage because marriage with Kalawati was second marriage in the life time of Pushpa.
11. There is no clinching and believable evidence that marriage of Pushpa was not solemnized with Santosh before the marriage of Kalawati. Since marriage of Santosh with Pushpa was first marriage, marriage of Kalawati solemnized during the life time of Pushpa would be second marriage. Hence no offence is made out against acquitted opposite party Nos.1 to 3 namely, Santosh, Babu and Smt. Jogiya as well as opposite party no. 4 Smt. Pushpa.
12. So far as offence under Section 498-A IPC is concerned, it is also pertinent to mention here that P.W.5 Gaya Prasad stated that no complaint was made to him by the complainant about torture from the side of opposite parties no. 1 to 4. He received information of torture first time in the year 1986-87. All prosecution witnesses including P.W.-3 Munna Lal accepted in their cross-examination that complainant was not tortured before them by accused opposite parties. At this point, it is also pertinent to mention here that marriage of Kalawati, complainant was second marriage during life time of Pushpa, hence, offence under Section 498-A IPC will not attract against opposite party nos. 1 to 4. It is also pertinent to mention here that no State appeal has been filed. Hence offence under Section 498-A is also not proved against opposite party Nos. 1 to 4 beyond reasonable doubt.
13. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned judgment & order. The present revision lacks merit and is liable to be dismissed.
14. The revision is dismissed. Judgment and order 29.5.1990 passed by Munsif Magistrate, Banda in Case No. 194/ IX/90(Smt. Kalawati vs. Santosh and others) acquitting opposite party No.1 to 3 namely, Santosh, Babu and Smt. Jogiya under Section 494 and 498- A IPC is confirmed.
15. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. Order Date :- 31.7.2018 P.P.