- (1.) AFTER hearing learned counsel for the applicant and for the reasons stated in the application, which is supported by an affidavit, delay of 317 days in filing the application for grant of leave to appeal is condoned.
(2.) ACCORDINGLY , the application is allowed. Crl. Misc. No. A -976 -MA of 2013 ( O&M ) Sudesh Rani has filed this application under Section 378 (4) Cr.P.C for grant of leave to appeal against the judgment dated 1.11.2012 passed by the court of Judicial Magistrate Ist Class, Sonepat, whereby the complaint filed by her under Sections 109 and 494 IPC against her husband and his other family members was dismissed and all the accused were acquitted of the charges framed against them.
(3.) THE marriage between the applicant and respondent No.1 Anil Kumar was solemnised on 8.2.1998 as per Hindu rites and ceremonies. They lived together upto 1.1.1999. As per allegations of the applicant, her husband and parents -in -law (respondents No.1 to 3 herein) along with other family members started harassing her for not bringing sufficient dowry and she was compelled to leave her matrimonial home on 1.1.1999. In this regard, an FIR No. 355 dated 14.12.2000 under Sections 498 -A and 406 IPC was got registered against the respondents at Police Station Ganaur, wherein respondents No.1 to 3 were arrested and some dowry articles were recovered from their possession. It is further the case of the applicant that subsequently, in the year 2003, her husband (respondent No.1) performed the second marriage with Meena (respondent No.4). It has been further alleged by the applicant that from the second marriage, there are two issues. The learned trial court summoned accused No.2, 3, 9 and 10 for the commission of offence punishable under Section 109 IPC, whereas accused No.1 was summoned for the commission of offence punishable under Section 494 IPC. After conclusion of the pre -charge evidence, the above named accused were charge sheeted for the aforesaid offences. After considering the evidence led by the parties and after hearing counsel for the parties, the trial court dismissed the complaint, while coming to the following conclusion : - "Firstly, as per the evidence led on record, no offence under section 494 IPC is made out against the accused No.1 and 9 as the second marriage between them has not been proved as admittedly, there is no documentary evidence available on record to prove the same. Secondly, the two birth certificates placed on record have not been proved as per the provisions of Evidence Act by exhibited them by summoning the legal authority/officials who prepared them and by calling the concerned official, who issued them (who could proved the same with the register in his possession) and there is not evidence to show that these documents belongs to the said spouse/ accused no.1 and 9 and hence, the above said documents have not relevancy under the law and could not be read in evidence. Thirdly, the above said report referred by learned counsel for complainant on the summons issued by the court has no authenticity as the process server is not authorised to record findings regarding someone's marriage. Fourthly, the second summoning report served/effected, upon accused No.9/Meena through her father -in -law is also vague, irrelevant and not according to law. Moreover, the said process server has not been called/examined who made the said report and therefore the same could not be referred being irrelevant. Fifthly, the report under Section 202 Cr.P.C also remains unproved as while conducting the above said investigation, the statement of the Rati Ram and Mehar Singh were recorded but both the above said persons had appeared in the court as witnesses of defence/DWs and have disapproved their statement recorded under Section 202 Cr.P.C. Sixthly, no documentary evidence has been led to prove the said marriage for example any certificate of marriage etc. (its registration) showing the names of accused No.1/Anil and accused No.9/Meena as husband and wife. Seventhly, the case of complainant is base only on the oral evidence of complainant herself and her father who are interested witnesses and their statement have not been corroborated either by any independent witness or by way of any document and therefore, their statements have no authenticity. Eighthly, there are material contradictions in the statement of complainant/Sudesh, CW2 and her father/Satpal/CW3 (in precharge evidence) as the complainant has stated that Ved Parkash had not gone on 8.12.2003, rather had only gone on 9.12.2003 whereas her father started otherwise. Ninthly, the IO of this case/ ASI Om Parkash while appearing as PW5 (in after -charge evidence on 17.9.2004) has also admitted that in his cross -examination, that there is no document regarding the above said second marriage. He also stated (on 22.9.2012 in pre -charge evidence) that during the investigation of this case he had recorded the statement of accused No.1 and 9 and the witnesses, but both of the said witnesses had appeared as DW1 and DW2, who had denied their statement recorded by ASI Om Parkash, while conducting the investigation and preparing his report under Section 202 Cr.P.C and hence, the statement of the said witnesses has not relevancy. 13. Hence, the above said material contradictions falsifies the version of the complainant and the alleged commission of offence committed by the accused is not proved beyond the shadow of reasonable doubt. Accordingly, the complainant has failed to prove the charges levelled against the accused and as such, the accused persons are hereby acquitted of the charges framed against them." Learned counsel for the applicant argued that while acquitting the accused, the learned trial court neither properly considered the evidence nor gave due weightage to the summoning order and the report submitted by the police, which was sought under Section 202 Cr.P.C. According to the learned counsel, these two types of evidence go to the root of the matter, which should not have been ignored by the trial court. We are of the opinion that the summoning order as well as the report submitted by the police to the court under Section 202 Cr.P.C., itself are no evidence. The complainant has to establish the guilt of the accused beyond reasonable doubt by leading cogent evidence. In this case, the trial court has rightly examined the entire evidence led by the complainant and thereafter came to the conclusion that the complainant has failed to prove the charges against the accused. In our opinion, in the given facts and circumstances of the case, the trial court has rightly acquitted the accused. We do not find any illegality or perversity in the appreciation of evidence by the trial court. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, 2008 2 SCC(Cri) 53that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. In view of this, we do not find any ground to grant leave to appeal to the applicant. Dismissed.;