*1* appln.188.11.902.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.188 OF 2011 WITH CRIMINAL APPEAL NO.400 OF 2011 The State of Maharashtra. ..Applicant/Orig.Complainant -Versus- Sanjay Rajaram Kusalkar and others. ..Respondents/Orig.accused ........... Mrs.A.S.Pai, Additional Public Prosecutor, for the Applicant/State. Mr.Balasaheb Deshmukh, for the Respondents/ accused. .......... CORAM : B.H.MARLAPALLE & A.M.THIPSAY, JJ. Date : 03rd May, 2011. P.C. 1 Heard Mrs.Pai, the learned APP for the State and Mr.Balasaheb Deshmukh, the learned counsel for the Respondents/accused. 2 Leave to appeal under Section 378(3) of the Code of Criminal Procedure is hereby granted and the appeal is admitted. 3 The appeal is heard finally as it involves a limited issue regarding earlier marriage of the accused No.1-Sanjay Rajaram Kusalkar with Uma and whether that marriage was subsisting when he performed the second marriage with Sheela on 02.06.2005. 4 As per the prosecution case, the marriage of the accused No. 1 with Sheela was performed on 02.06.2005 and she gave birth to a male child. After her delivery, she noticed some change in the behaviour of the accused No.1 and when she returned to the matrimonial house, one unknown lady with her son of about 12 years of age was also *2* appln.188.11.902.sxw staying with the accused and on inquiries, she was informed that the other lady i.e. Uma is his first wife and the boy is his son from the first wife. Sheela, therefore, went to the Yerwada Police Station and filed a complaint for the offences punishable under Sections 420, 376, 495, 496, 323, 504 r/w 34 of the Indian Penal Code. 5 During the course of investigation, the accused No.1 was referred to DNA test and the report proved that the son born to Sheela was from the accused No.1. On completion of the investigation, the charge sheet was filed and the accused denied the charge. The prosecution examined five witnesses i.e. PW-1 Sheela, PW-2 Sanjay Raghunath Lashkare, the brother of Sheela, PW-3 Ashok Shamrao Mane, relative of Sheela, PW-4 Lata Ramesh Mohite, neighbour and PW-5 Ramchandra Shitole, PSI & Investigating Officer. The DNA test report was placed at Exhibit-23, the C.A. report was at Exhibit-25 and the C.A. report about DNA test was at Exhibit-26. The accused No.1 admitted the marriage with Sheela and paternity of son born to her. He denied the allegation that he had cheated Sheela by concealing his first marriage with Uma. 6 The Trial Court shifted the burden on the Complainant to prove her charge that the accused No.1 had a subsisting marriage on the date of his second marriage with Sheela on 02.06.2005. The Trial Court held that the prosecution failed to prove the first marriage of the accused No.1 by producing the documentary evidence. As nothing was brought on record to show that the accused No.1 was already married and had a son from his first wife, bare words of the prosecutrix that she had seen one lady and one boy in the house of the accused and the said lady was introduced as his wife and the boy as his son, could not establish the allegation that the accused No.1 was already married and he had cheated the Complainant. 7 On the face of the evidence as adduced before the Trial Court and considered by us, one could believe that the Trial Court did *3* appln.188.11.902.sxw not commit any error. However, the learned APP sought time and produced before us a copy of the judgment and order dated 12.03.2007 passed by the learned Judicial Magistrate, First Class, Khadki, Pune in Regular Criminal Case No.134/2003. In that case, Uma original resident of Nalasopara, Taluka : Vasai, District : Thane had lodged the complaint with the Vishrantwadi Police Station on 26.04.2003 and alleged that on 11.12.1993 her marriage was performed with the accused No.1 and from the said wedlock, a son was born in the year 1995. She further alleged that in September, 2002 she had seen the accused No.1 with another woman and when she inquired with him, he assaulted her. Consequently, she left the matrimonial house. Therefore, C.R. No.50/2003 came to be registered against the accused No.1 for the offences punishable under Sections 498(A) r/w 34 of the Indian Penal Code. The prosecution examined two witnesses i.e. Uma as PW-1 and Baijabai Anna Daundkar, mother of Uma, as PW-2. In the said complaint, the accused No.1 was acquitted by the judgment and order dated 12.03.2007. 8 We have noted that this judgment and order dated 12.03.2007 was material evidence in support of the prosecution’s case in Sessions Case No.17/2008 and the same, for some reasons or other, could not be placed before the learned Additional Sessions Judge, Pune. 9 It was submitted by Mr.Deshmukh that despite opportunities provided to the prosecution, a copy of the judgment and order dated 12.03.2007 rendered in Regular Criminal Case No.134/2003 was not placed before the learned Additional Sessions Judge, Pune during the trial of Sessions Case No.17/2008. 10 In our opinion, the judgment and order dated 12.03.2007 and the witnesses examined in the said case i.e. Regular Criminal Case No.134/2003 could not be considered by the Trial Court as the relevant witnesses and for some reason or other, the prosecution was handicapped. This additional evidence is relevant and it ought to be allowed to be brought on record so as to decide the Sessions Case No. *4* appln.188.11.902.sxw 17/2008 to meet the ends of justice. Whether, this additional evidence, by examining the witnesses by the prosecution, would support the case of the prosecution is not for us to decide at this stage and at the same time, even the defence will be at liberty to cross-examine the additional witnesses of the prosecution, if any. In short, the prosecution must be provided with additional opportunity to bring on record the further evidence regarding the alleged first marriage of the accused No.1 that had taken place on 11.12.1993 with Uma. 11 Hence, the appeal is allowed and the impugned order of acquittal dated 23.09.2010 passed by the learned Additional Sessions Judge, Pune in Sessions Case No.17/2008 is hereby quashed and set aside and the said Sessions Case is restored to the file of the Trial Court. 12 The parties shall appear before the Trial Court and submit the list of additional witnesses along with the documents, if any, including a copy of the judgment and order dated 12.03.2007 passed in Regular Criminal Case No.134/2003. Undoubtedly, the defence will be entitled to cross-examine the witnesses and examine any other witnesses in its defence. 13 The parties to appear before the Trial Court on 13th June, 2011 and we direct that a de-novo trial from the stage of recording additional evidence shall be completed as expeditiously as possible and in any case before 31st August, 2011. (A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)