CRIMINAL APPEAL(U/S) No.2 OF 2007 (Against the Judgment and order dated 31.01.2006, passed by Sri. Shahab Kausar, Judicial Magistrate Ist Class, Civil Court, Patna in Complaint Case No. 441©/98.) SUJATA DEVI, wife of Sri. Narendra Kumar, Daughter of Sri. Raghuwansh Mani, resident of Mohalla-Salimpur Ahra, P.S.-Gandhi Maidan, District-Patna. -------------------(Appellant) Versus 1. The State Of Bihar 2. Naredndra Kumar, son of Sri. Sohan Lal. 3. Kalawati Devi-2nd wife of Narendra Kumar. 4. Sohan Lal, son of late Chhathan sao. 5. Shyama Devi, wife of Sohan Lal. All Respondent Nos. 2 to 5 are residents of Digha Ghat, P.S.-Digha, District-Patna. 6. Pancham Sao, son of late Doma sao, resident of Mohalla-Bari Machhuatoli, P.S.- Danapur, District-Patna. (2 to 4 accused in the Court below) -----------------(Respondents) For the Appellant : Mr. Sachchidanand Chaudhary : Mr. Lovekush Kumar For the Respondents : Smt. Anjana Prakash, Sr. Adv. : Mr. Sunil Kumar Chaudhary P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN *********** S.A. Khan, J. This appeal arises out of a judgment acquitting the Opposite Party No. 2 and 3 for offences allegedly committed under Section 494 of the Indian Penal Code. The Complaint Case was filed by Smt. Sujata 2 Devi in which she stated that she had married with Sri. Narendra Kumar in February 1981 and had a son from the wedlock on 1st October, 1982. On 22nd of May, 1984 the husband of Sujata Devi Sri. Narendra Kumar filed matrimonial case being Matrimonial Case No. 18 of 1984 for divorcing the appellant which was allowed on 21.04.1987. Against the order granting divorce, First Appeal No. 206 of 1987 was filed on behalf of the Sujata Devi and the same was allowed on 02.12.1988 with a direction of this Court that Narendra Kumar should live with his wife Sujata Devi and in case they are not living together then Narendra Kumar should pay her Rs. 500/- by way of maintenance and further pay Rs. 200/- for maintenance of their son Mukund. It is alleged that during her stay with her husband in her matrimonial house, on 02.02.1989 she was surprised to see that her “husband was entangled with a lady namely Kalawati Devi and wanted to marry with her”. It is further alleged that on the same very day her husband came along with Kalawati Devi to the house and told that they had married and began to live with her. It is said that thereafter Sujata Devi and her parents were pressurizing her to withdraw the Dowry Case instituted by the appellant against her husband and in-laws. Sujata Devi‟s husband and in-laws then began to misbehave with her and one day 3 the said Narendra Kumar, husband of the appellant along with his father turned her out from her matrimonial home. At Paragraph-22 of the complaint petition, it has been stated that Narendra Kumar has admitted in G.R. Case No. 1889 of 1986 that he had remarried. It is also stated that in the order dated 10.07.1990 passed by the Principal Judge, Family Court, Patna, Narendra Kumar admitted that he had already married another lady. On the basis of the aforesaid allegations, the trial in this case commenced. Five witnesses have been examined in this case. Learned counsel for the appellant has referred to the evidence of only two witnesses i.e. P.W. 4, Sujata Devi and P.W. 5, Manju Devi. In the complaint petition the name of P.W.I Mukund Kumar has been cited as a witness, rest of the witnesses are not cited as witness in the complaint petition. P.W. 4 the complainant has supported the case as made out in the complaint petition and has stated that Narendra Kumar has remarried and after the second marriage she was forced to leave her husband‟s house at the behest of her father-in-law and husband. P.W. 4 admits that she had earlier filed the complaint petition but does not remember that the allegation made in the said complaint petition is related to under Section 498 A of the 4 Indian Penal Code. In cross-examination she admits that there is no document which would prove that Narendra Kumar has remarried and further states that she did not make a complaint before any Officer because her husband was willing to take care of their son. P.W. 5, Manju Devi according to the appellant is witness in this case. Manju Devi has stated that she had gone to Birla Mandir situated at Patna for the „Cheka‟ of her sister-in-law (Nanad) where she saw that Narendra Kumar and another lady in the mandir, it is said that a priest was performing their marriage. She claims that they took „seven pheras‟ and „Gatbandhan‟ also took place and a elderly man was performing „Kanyadan‟ and he had put the hand of the lady in the hand of Narendra Kumar indicating the ritual of „Kanyadan‟. But in cross-examination she said that she could not produce her sister-in-law or the husband of the sister-in-law to give evidence in the Court. This witness does not remember the date of her sister-in-law‟s marriage nor does she remember the date of her own father‟s death. After considering the evidence of P.W.4 and P.W.5, the Trial Court had come to the conclusion that the evidence produced is insufficient for convicting Narendra Kumar for the offence punishable under Section 494 of the Indian Penal Code. The Court Below has rightly found that there is 5 insufficient evidence led by P.W. 4 to show that the remarriage of her husband had taken place. It has been submitted on behalf of the Opposite Party that the decree of divorce was granted on 22.05.1984 and the First Appeal was allowed on 24.01.1987. Therefore the appellant has introduced an imaginary date claiming that the marriage took place in the year 1989 i.e. after the grant of decree of divorce. It has been submitted on behalf of the Opposite Party that even presuming that the said Narendra Kumar had married Kalawati Devi, the marriage could have only taken place between 22.05.1984 to 24.01.1987, as the Opposite Parties knew that the decree of divorce has been set aside by the High Court and as such it can not be believed that he would have entered into a relationship with another lady after the decree of divorce was set aside by this Court as he was very much aware of the decree of divorce. Learned counsel for the Opposite Parties has contended that Sujata Devi has been introduced as a witness for the first time before the Court below during trial. It is submitted that she was not cited as a witness either in the complaint case filed earlier by the appellant or in the present complaint case. Above all she was not examined before framing of charge in this case and as such her evidence ought not to be considered at all by the Court. 6 The contention of the appellant is acceptable for the reason because in a criminal proceeding, the Court lays great emphasis on witnesses who have been cited as a witness in the complaint petition or in the First Information Report or have been examined at same stage in the case. Introduction of a witness during trial is to say the least highly suspicious. Even otherwise, after considering the evidence that has been led by P.W. 5, the Court can not place reliance on the evidence led by her. P.W. 5 has forgotten the important events that took place in her family and yet remember with clarity about Cheka on her sister-in-law and date of marriage of Narendra Kumar, which in my opinion is totally unacceptable. So in any event, the evidence of P.W. 5 has to be rejected. Learned counsel appearing on behalf of the appellant has placed much emphasis on Exhibits 2 and 3. Exhibit-2 is an order of the Family Court dated 07.09.1990 passed in Matrimonial Case No. 18 of 1984 after the matter went up for implementation of the order of the First Appeal to the Family Court in which it is stated-: vkosfndk vius ifr ds lkFk jgus ds fy, rS;kj gS] ysfdu foi{kh mls ugha j[kuk pkgrs gSA fdlh Hkh gkyr esa dgrs gS fd ,d nqljh 'kknh djuk gSA On the basis of this statement, it has been argued on behalf of the appellant that it amounts to 7 admission. Similarly Exhibit 3 has been referred to by the counsel appearing on behalf of the appellant. Exhibit-3 is the evidence of Narendra Kumar in G.R. Case No. 1899 of 2006 which has been recorded on 02.03.1989. At paragraph-6 Narendra Kumar states:- ;s QSlyk mPp U;k;ky; ls 2 flrEcj 1988 dks gqvkA 31-11-1988 ls lqtkrk gekjs ;gkW jg jgh gSA eSaus nqljh 'kknh Hkh dj yhA It is submitted that this submission also amounts to an admission by the appellant. On perusal of Exhibit-2 and Exhibit-3, the only conclusion that can be reached by this Court is that the appellant admits that he had remarried but the date of remarriage is not disclosed by the appellant. It is submitted by the learned counsel appearing on behalf of the Opposite Party that mere admission of the accused that he has contracted second marriage is not enough. The prosecution has to prove that essential judicial rights applicable to the parties were performed in order to convict the person for the offence he committed and also had to prove that the marriage took place after the decree of divorce was granted. Above, proposition placed before this Court is based on a judgment of the Supreme Court in the case of Smt. Priya Bala Ghosh Versus Suresh Chandra Ghosh reported in 1971 S.C.-1153. While discussing this aspect, learned counsel has referred several judgments of the 8 Supreme Court including the judgment reported in A.I.R. 1966 page-614, 1938(1) 307, A.I.R. 1966 SC-614. In the case referred to above, it had been argued on the basis of Exhibit-2 that the husband has admitted that he had contracted the second marriage in which he had stated that due to bad behavior of his first wife he had remarried. The Supreme Court held that Exhibit- 2 is really be a confessional statement and declined to act on the same on the ground firstly because the statement was not put to the accused under Section 313 of the Code of Criminal Procedure and secondly because even if the statement is taken into account, it would not prove by itself that the essential ceremony necessary for the marriage had been performed. Similarly in the present case, Exhibit-2 and 3 are merely confessional statement that the appellant had married second time the date of marriage has not been stated. The date of marriage is very relevant in this case as between the period 24.01.1987 to 02.12.1988 Narendra Kumar Opposite Party No. 2 had status of a single man. Besides which the admissions in Exhibit-2 and 3 had admittedly not been put to Opposite Party No. 2 under Section 313 and as such he did not have the opportunity to explain the meaning of so called admissions made by him in Exhibits 2 and 3. 9 As far as the case of Opposite Party No. 3 is concerned, I find that there is no material against her and she would not be covered by Section 494 of the Indian Penal Code. In the result, I do not find any infirmity in the reasoning of the Trial Court. This appeal is dismissed for the reasons stated above. Patna High Court Dated the 6th of May, 2009 Shageer/ A.F.R (Sheema Ali Khan, J.)