H.H.MEHTA - (1.) The Original Complainant Bai Sukhiben wife of Patel Hirabhai, who was a complainant in Criminal Case No.1012/85, which was pending on the file of the learned J.M.F.C., Lunawada, District Panchmahals (who will be referred to hereinafter as `the learned Magistrate') has, by seeking permission of this Court under Section 378(4) of the Criminal Procedure Code, 1973, (In short `Cr.P.C.') filed this present Criminal Appeal under Sec.371 read with Sec. 378 of the Cr.P.C. and challenged the legality and validity of the judgment Exh.84 of acquittal rendered by the learned Magistrate in Criminal Case No.1012/85 on 16th January, 1990.
(2.) Here in this appeal, the appellant was a complainant while respondents No.1 to 5 were accused respectively in aforesaid Criminal Case No.1012/85, and therefore, parties will be referred to hereinafter as complainant and respective accused respectively at appropriate places.
(3.) The facts leading to this present Criminal Appeal in a nutshell are as follows: 3.1 On or about 6.11.1985, the complainant lodged her private complaint against five accused who are respondents in this appeal, in the Court of the learned Magistrate, and as per that complaint the case of the complainant can be summarised as follows: 3.2 The complainant is a legally wedded wife of accused No.1 who is her husband. As per her case, she married to accused No.1 as per Hindu Rites and Rituals and Customery Religious Ceremony, before many years. After marriage, she was staying with accused No.1 as his wife. It is the case of the complainant that, some years after the marriage, accused No.1 wanted to marry with another lady and therefore he was giving mental and physical tortures to the complainant and many times she was driven out from the house. It is the case of complainant that accused No.1 is serving as Professor in Lunawada College. He is also a President of Lunawada Taluka Panchayat. She has come with a specific case that, on or about 2.11.1985, the complainant solemnised a second marriage with accused No.2, who is a daughter of accused No.3 and 4 and sister of accused No.5. Before accused No.1 solemnised second marriage with accused No.2, when complainant came to know about an intention of accused No.1 to marry with another lady, she immediately filed one Regular Civil Suit No.166/85 against the accused in the Civil Court at Lunawada and she had prayed for a perpetual prohibitory injunction restraining accused No.1 from marrying with accused No.2. The Civil Court had granted an interim injunction pending the suit. It is the case of the complainant that, all the accused deliberately avoided to get the summons of the Civil Court, served upon them and anyhow accused No.1 solemnised his second marriage with accused No.2 on 2.11.85 by changing date which was already fixed for marriage on 3.11.85 and thus before an interim injunction could be served on accused No.1, he solemnised his second marriage with accused No.2 though first marriage with complainant is still subsisting. Thereafter, on 6.11.85, the complainant lodged her private complaint against all the accused for offences punishable under Secs.494 and 114 of IPC. The learned Magistrate took cognizance against all the accused and issued summons returnable on 19.11.85. Thereafter, after following due procedure before framing of charge, the learned Magistrate by passing an order dated 1st September, 1988, below that private complaint lodged by the complainant framed charge against all the accused. That charge framed against accused on 1st September, 1998, is at Exh.42. The accused have not pleaded guilty to the charge and they have claim to be tried for the said case. The complainant has led following oral evidence. ( 1) P.W.No.1 Sukhiben Hirabhai Patel (Exh.23) (Complainant herself). (2) P.W.No.2 Shivabhai Motibhai Patel Exh.27. (3) P.W.No.3 Jayantibhai Khusalbhai Patel Exh.73. 3.3 Main case of complainant against accused No.1 against whom it is alleged that accused No.1 being her husband has solemnised another marriage with accused No.2 though his first marriage with complainant is still subsisting and therefore accused No.1 has committed an offence punishable under Sec.494 of IPC whereas accused No.2 to 5 have abetted accused No.1 in committing that offence by accused No.1 and therefore it is the case of complainant that accused No.2 to 5 have committed offences punishable under Secs.494, 114 of IPC. A specific question was put to accused No.1 that complainant Sukhiben has deposed in her evidence Exh.23 that her marriage was solemnised with accused No.1 and that she was staying with him as his wife. Thus, there is a relation of husband and wife in between accused No.1 and complainant. To this question, accused No.1 has not denied that facts but he has only stated that he does not know that facts. In the last question put to accused No.1, he has stated that complainant and her witnesses are keeping enimical relation with accused No.1 and his family members and the persons of rival political parties have instigated the complainant and therefore by stating false facts, a false complaint has been lodged by complainant with a view to only harass accused No.1. The accused No.2 is, as alleged by complainant, a lady who illegally married with accused No.1 on or about 2.11.85. She has denied an entire case of the complainant. She has advanced her case in answers to last question put to her that a betrothal ceremony of daughter of her uncle was performed with son of brother of complainant and that engagement was, later on, broken and, therefore, due to social enmity the complainant has involved her falsely in the case. Thereafter, the learned Magistrate heard the arguments of the learned advocates of both the parties. The complainant's advocate submitted a written arguments at Exh.83, and thereafter, after analysing and appreciating the evidence of the witnesses and examining a documentary evidence led by the complainant, the learned Magistrate by rendering his judgment Exh.84 dated 16.1.1990, in aforesaid Criminal Case No.1012/85 came to a conclusion that complainant has failed to prove the case stated in her complaint for which a charge has been framed against the accused and therefore by said judgment he acquitted all the accused under Sec.248(1) of Cr.P.C. for offences punishable under Secs.494, 114 of IPC. 3.4 Being aggrieved against and dissatisfied with the said judgment of acquittal, the complainant filed one Misc. Criminal Application No.721 of 1990 (Leave to appeal) for seeking permission to prefer an appeal against the judgment. It appears from record that this Court (Coram: J.U.Mehta, J.) order dated 18.4.91 granted a permission and pursuant to that leave to appeal the complainant has filed this Criminal Appeal which is challenged before this Court.;