IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.175 of 2009. Date of decision: 22.03.2010. State of H.P. ….Petitioner Versus Kuldeep Chand ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Ms.Ruma Kaushik, Additional Advocate General. For the Respondents: None. Dev Darshan Sud,J. 1. The State has preferred this revision against the concurrent findings of the two Courts below acquitting the respondent for offences under Sections 494 and 498-A of the Indian Penal Code. 2. The prosecution case in brief is that respondent Kuldeep Chand was charged for offences under Sections 494 and 498-A of the Indian Penal Code on the allegations that marriage between the respondent and Smt.Anjana Kumari was solemnized on 16.6.1995 according to Hindu rites and customs and three children were born out of this wedlock. The allegations are that for 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 sometime he treated his wife with care and affection, however, after the birth of his son Chirag on 22.2.2003 the accused started torturing and beating the complainant. In that year she met with an accident near Darlaghat where she was working. The accused went to stay with her there and developed illicit relations with another lady. On 17.7.2005 at about 11.13 A.M. the accused came home and went to rest in the room where his daughter was sleeping. There a quarrel ensued between him and the complainant who consumed poison due to the harassment and mental cruelty to which she had been subjected to. She was taken to the Thakur Nursing Home by the accused who informed the police vide Ex.PW- 9/A, on the basis of which First Information Report Ex.PW-9/B was registered. Police recorded the statement of the complainant Anjana Kumari Ex.PW-2/A under Section 154 of the Code of Criminal Procedure and took into custody the marriage certificate etc. The accused was charged with having solemnized another marriage with one Suman Jambal. 3. On the two points for determination before the learned trial Court, as to whether the accused is guilty of having committed adultery and was, therefore, liable to be punished under Section 494 of the Indian Penal Code and as to whether on 17.7.2005 at about 11.30 A.M. he subjected his wife to mental and physical cruelty driving to consume poison which was actionable in law, held in favour of the respondent. 3 4. PW-1 Dr.Mohinder stated on oath that on 17.7.2005 Anjana Kumari was brought to his Nursing Home with history of having purportedly consumed poison. He proved on record Ex.PW-1/A the OPD Slip and Ex.PW-1/B which is the purported description of the poison. However, in cross-examination he was unable to say about the nature of poison unless he examined the report of the Chemical Examiner. 5. PW-2 Anjana Kumari reiterated the averments which she had made against her husband. She stated that she came to know in 2005 that her husband, the accused in this case, was having illicit relations with one other lady and it was because of the harassment/cruelty to which she was subjected to that she consumed poison when her husband rushed her to the hospital for saving her life. However, in cross- examination she states that her relations with her husband are cordial. It is only when she suspected that he was having illicit relations with another lady that she started feeling the strain. The other evidence consists of PW-3 Ashwani Kumar, brother of the complainant, PW-4, father of the complainant. PW-5 Nitya Nand Sharma, Administrator, Sood Sabha, Ram Mandir, Shimla, who states that according to Ex.PW-5/A and Ex.PW-5/B the accused had married one Suman Jamwal daughter of Shri Kartar Singh. However, he admitted that he prepared Ex.PW-5/B at that time when the police demanded it from him and in Ex.PW-5/A he had not filled 4 up the columns of the marriage of Suman and Kuldeep. On the entirety of the evidence as examined, the learned Court holds that no second marriage has been proved to have been contracted by the accused. The evidence on record was absolutely insufficient to establish the offences of bigamy and adultery. In appeal, the learned Fast Track Court has analyzed these findings and held:- “18. Now turning to the case in hand, a scrutiny of the prosecution evidence reveals that there is no iota of oral evidence on record to say that in whose presence, the second marriage had taken place and the necessary ceremonies of Saptapadi or customary one were performed. The prosecution evidence is silent on this point of fact. Therefore, as per law the second marriage of the respondent with Mrs.Suman is not proved to establish the offence of bigamy”. 6. On the question of cruelty, the learned Court holds that no act on the part of the respondent which could constitute cruelty has been established on record. 7. Learned Additional Advocate General submits that the second marriage performed by the accused was established from the evidence on record of the case. This submission needs to be rejected. There is no 5 piece of evidence on the record to even remotely establish a valid and subsisting second marriage. The evidence of PW-5 Nitya Nand Sharma cannot be relied upon. His evidence nowhere establishes that a valid marriage was solemnized. Similarly, there is no evidence of cruelty. There is nothing on the record to show that the complainant was maltreated by the accused-respondent or was at any particular point of time subjected to mental cruelty. 8. In revisional jurisdiction I cannot re- appreciate the entire evidence on record to come to a different conclusion unless perversity is established which is lacking in this case. 9. This revision petition is, therefore, dismissed. March 22, 2010. (Dev Darshan Sud) (aks) Judge.