- (1.) M. K. Mittal, J. This appeal has been filed by Smt. Usha Devi against the judgment and order dated 20. 3. 2002 passed by Sri Mehtab Ahmad. A. C. J. M. , Court No. 10 Ballia in criminal case No. 1746 of 2001 whereby he acquitted the accused Surendra Singh, opposite party No. 2 under sections 495 and 498-A IPC as he did not find him guilty thereunder.
(2.) BRIEF facts of the case are that Smt. Usha Devi claiming herself to be legally weded second wife of the accused filed a first information report on 17. 3. 1987 against the accused Surendra Nath Singh and his bhabhi Smt. Savitri Devi. In the first information report she alleged that she was married with the accused Surendra Kumar Singh resident of Piprakalan on 30. 5. 1983. After marriage she went with the accused and then she came to know that accused had earlier married Smt. Shail Kumari who was turned out of the house and was alive. Accused was also having illicit relation with his bhabhi Smt. Savitri Devi and had concealed the fact of first marriage. She also gave birth to a daughter in November 1984 but after 15 days her daughter was taken by the accused and was killed and she was also turned out of the house. After some time the accused came to her house and accepted his mistake and prayed for forgiveness and then her brother and mother allowed her to go. She lived with the accused and gave birth to a son Raju. But again in collusion with Smt. Savitri Devi accused planned to kill her by giving some poisonous injection. However she overheard that accused had been planning to take her to District Hospital, Ballia for this purpose. When she was asked to go to hospital she refused but she was beaten and her clothes were also set on fire. However, the neighbourers came and saved her and thereafter she came to her Maika. A case was registered at crime No. 435 of 1987 under sections 498 and 506 IPC and after investigation charge-sheet was submitted against the accused under sections 494, 495 and 506 IPC. But a prayer was made to cancel the charge-sheet and the same was cancelled on 11. 2. 1988. However, the complainant was legally advised that she should have filed a complaint under section 495 IPC and thereafter she filed a complaint in the Court of C. J. M. on 25. 8. 1988. She made the allegation as referred above and prayed that accused be punished. The complainant was examined under section 200 Cr. P. C. and her witness was also examined and thereafter the accused and his bhabhi were summoned. It appears that Smt. Savitri Devi filed a revision against her summoning order and the same was allowed and the case proceeded against the accused Surendra Kumar Singh and the charge was framed against him on 3. 7. 1995 by the learned Magistrate. The accused pleaded not guilty and claimed trial. In support of its case the prosecution examined Smt. Usha Devi, the complainant as P. W-1 and her brother Balkeshwar Nath Singh, P. W.-2, witness Indradeo as PW.-3, witness Moti Lal Mishra as P. W.-4 and constable Bajranj Prasad P. W.-5. Constable Bajranj Prasad proved the fact that the case was registered in the general diary at crime No. 435 of 1987. Check report Ex-Ka-1 was prepared. Case was registered in the general diary and its copy is Ex-Ka-2. Prosecution also filed documentary evidence in support of its case.
(3.) ACCUSED was examined under section 313 Cr. P. C and he denied that Shail Kumari was his wife. He also denied having married Smt. Usha Devi. According to him he had given an application against the complainant and her brother and mother under sections 323, 324 and 332 IPC and in order to avoid that case this complaint was filed. He also stated that the witnesses had wrongly deposed against him. After the complainant filed the documentary evidence including the certified copy of the divorce suit filed by the accused, against Smt. Shail Kumari, he was again examined under section 313 Cr. P. C. and specific, question was put to him that in the Court of Civil Judge, Ballia Suit No. 35 of 1983 Surendra Kumar Singh v. Shail Kumari was filed by him for divorce where in the divorce petition he had seated that his marriage with Shail Kumari was performed according to Hindu rites in May 1971 and that case was dismissed by the Addl. Sessions Judge on 7. 12. 1983. In reply to this question the accused stated that the marriage with Shail Kumari was not according to and method. But he did not remember about the case. A further question was put to him that in the marriage petition he had mentioned that marriage had taken place according to Hindu rites and what he had to say in that regard. He replied that he had to say nothing. ACCUSED did not adduce any evidence. Learned Trial Court after considering the evidence of the parties came to the conclusion that the prosecution had failed to establish that the first marriage was performed according to Hindu rites and that the admission as made by the accused were not sufficient, in view of the judgements as rendered in the case of Smt. Priya Bala Ghosh v. Surendra Chandra Ghosh, AIR 1971 SC 1153. Kaivalram v. State of Himachal Pradesh, AIR 1966 SC 614. and also a judgement in the case of Godawari v. State of Maharashtra, 1985 Cr. LJ 1972. as given by the Bombay High Court and on that basis concluded that the accused was not liable to be punished under section 495 IPC. He also held that the prosecution had failed to show that the accused had concealed the fact of the first marriage. Learned Magistrate also held that the complainant had failed to establish that the accused had given any harassment to her and that any offence was committed by the accused under section 498-A IPC. Consequently he acquitted the accused of the two charges as framed against him. Feeling aggrieved this appeal has been filed by the complainant.;