Delhi District Court
Shakumbari Devi vs Om Prakash on 19 September, 2015
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IN THE COURT OF DR. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
CC No.92/1
PS Palam Village
U/S : 200 Cr.P.C.
Shakumbari Devi v/s Om Prakash
U.ID No. 02405R0355952011
Date of Institution 24.12.2011
Name of the Complainant Smt. Sakumbhari Devi
W/o Sh. Om Prakash Bisht,
R/o RZF908/5, Raj Nagar,
PartII, Mahatama Gandhi Marg,
Palam Colony, New Delhi.
Name and address of accused Om Prakash Bisht
S/o Late Sh. Chander Singh,
R/o RZF908/5, Raj Nagar,
PartII, Mahatama Gandhi Marg,
Palam Colony, New Delhi.
Charge framed against accused U/S 494 IPC
Plea of accused Pleaded not guilty
Final Order Acquitted
Date of reserve for orders 10.09.2015
Date for announcing the orders 19.09.2015
Sakumbhari Devi v/s Om Prakash
CC No.92/1
UID No. 02405R0355952011
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JUDGMENT
The brief facts and pre trial procedure
1. The brief facts set out in the complaint are that the complainant got married to accused no. 1 on 12.03.1975 according to Hindu rites and ceremonies in Uttaranchal and out of their wedlock two female and one child were born. After the marriage the complainant and accused no. 1 came to Delhi and in the year 198384 the accused no. 1 purchased a plot bearing no. RZF 908/5, Raj Nagar, PartII, Gautam Budh Marg, Palam Colony, New Delhi. It is further stated in the complaint that accused no. 1 sold the gold jewjellary of the complainant for purchasing the said plot and thereafter accused no. 1 got employment in DDA. After some time accused no. 1 started torturing and beating the complainant and she was sent to her matrimonial home. The accused no. 1 thereafter stopped visiting the complainant and also stopped paying maintenance to her. The complainant filed a petition for maintenance in Podi Garhwal (Uttrakhand). The accused no. 1 used to visit the matrimonial home of the complainant 34 times in a year and used to stay with her and complainant also used to come to Delhi twice in a year and stayed with accused no. 1. The complainant while visited Delhi to accused no. 1, she found one lady Vidhata Devi living with accused no. 1 in the house. Later the complainant got to know that she has got married with accused no. 1. Thereafter the complainant and her son Mohan were beaten on 06.04.2011, 21.05.2011 and 13.09.2011 by the accused no. 1 for which the complaint was made to the police. The complainant was intimidated by all the accused persons. On 18.12.2011 the complainant was beaten and abused by all the accused persons.
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2. In pre summoning evidence, complainant examined herself as CW1 and filed certain documents where the children of Vidhata Devi bears the name of the accused no. 1 as father and also stated that ration card of accused no. 1 bears four children of him as Lalita, Sarita, Jyoti and one son Rahul.
3. CW2 Kiran Yadav testified before the court that the complainant is wife of accused no. 1 and has three children from her wedlock.
4. CW3 Mohan Singh Bhist the son of the complainant also reiterated the facts of the complaint.
5. CW4 Dr. Pawan Singh proved the MLC no. 25552.
6. CW5 Jagjiwan, Head Clerk, Sector 5, Central Nursery,DDA Dwarka has brought the service book of accused no. 1 and the record where wife of the accused is mentioned as Shakumbari Devi who is the complainant in this case.
3. Thereafter accused No.1 was summoned for offence u/s 494 IPC. On his appearance notice u/s 494 IPC was framed against the accused that accused got married with Vidhata Devi while already married to Shakumbari Devi.
4. Thereafter the matter was fixed for post charge evidence. In post charge evidence complainant has examined herself as CW1 and Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011 4 of 8 accepted her pre summoning evidence in her post charge evidence.
In cross examination, she stated that she got married with the accused in 1975. She denied that she left the matrimonial home in the year 1985. She stated that she never made a complaint to PS. She stated that she has not produced any document showing accused undergoing saptpadi with Vidhata Devi. She denied the suggestion that she willfully left the matrimonial home. She further denied the suggestion that the accused has not married Vidhata Devi and she is just a tenant in the premises of the accused. She stated that she had made complaint on 21.05.2011. She stated that she filed a petition for maintenance in the year 1987 in District Pauri Uttranchal. She affirmed that during the time she filed her maintenance petition she was staying with her in laws in Pauri Garhwal. She stated that accused Om Prakash was staying in Delhi at that time. She voluntarily stated that accused was doing his job in Delhi. She denied the suggestion that she was never interested in the matrimonial union with the accused. She affirmed that she does not know English. She stated that she had only put sign on the complaint and she has not read over the contents of the same. She denied the suggestion that accused has never got married to Vidhata Devi. She denied the suggestion that she filed false case on the basis of false and fabricated documents.
5. Smt. Kiran Yadav was examined as CW2 in post charge evidence.
In cross examination she stated that complainant is her neighbour. She further stated that her house is few meters away from the house of the complainant. She further stated that she has cordial relations with the complainant. She stated that the incident of quarrel took place in the morning of 18.12.2011. She further stated that she has no proof to show Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011 5 of 8 that Vidhata Devi had married to Om Prakash. She further stated that she was not present at the marriage of Vidhata Devi and Om Prakash. She denied the suggestion that Vidhata Devi never married to Om Prakash. She further denied the suggestion that she is deposing at the instance of complainant as she has good relations with her.
6. Mohan Singh Bisht was examined as CW3 in post charge evidence.
In cross examination he stated that he has filed the copies of the ration card of the accused as well as school records of his daughters born out of second marriage with the complaint filed by his mother. He denied the suggestion that the above documents are not the proof of second marriage of accused with Vidhata Devi. He stated that he has not filed any photograph showing marriage ceremony of accused with Vidhata Devi. He denied the suggestion that accused never married with Vidhata Devi at any point of time.
7. CW4 Sh. Desh Raj brought the MLC Register and stated that MLC no. 25550 was prepared for patient Shakumbari Devi on dated 18.12.2011. She was brought to the hospital with the alleged history of physical assault as told by her. She was examined by Dr. Awrender and nature of injury was simple and the weapon described as simple blunt. Copy of the MLC is Ex.CW4/1.
In cross examination, he affirmed that the said MLC was not prepared by him. He further affirmed that the name of assailant is not mentioned. He further affirmed that he has not brought any authorised letter by the concerned Dr. He denied the suggestion that he is not Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011 6 of 8 authorised to depose.
8. CW5 Ms. Sushila Sapra TGT Science from Sarvodaya Kanya Vidhyalaya, Raj Nagar brought the admission and withdrawal register of the school for the year 2005 and stated that at entry no. 2191 dated 15.04.2005, Jyoti was admitted to school having date of birth 17.07.1995 and father's name Om Prakash and mother's name Vidhata Devi, r/o RZF908/5, Raj NagarII, Palam Colony is recorded. The copy of the said page of the register with entry duly certified by Principal SKV Raj Nagar II, Palam Colony, New Delhi, is Ex.CW5/A. In cross examination, she affirmed that she has not brought any other document except this register. She further affirmed that she has not brought the birth certificate as she was not under such direction from Court. She denied the suggestion that there is no such birth certificate which has been retained in official record.
5. After recording of post charge evidence, statement of accused was recorded u/s 313 Cr.P.C, when all the incriminating evidence was put to the accused distinctly and separately to afford him an opportunity to explain the circumstances so put to him, where he stated that he is innocent and he has been falsely implicated in this case. He further submitted that he has not extended any threat to the complainant and his son. Further accused did not lead any evidence in his defence to prove his innocence.
7. During the course of arguments, it was argued on behalf of complainant that from the documents presented before the Court such Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011 7 of 8 as Ration Card, wherein Vidhata Devi was shown wife of Om Prakash and school records of Jyoti shown her mother as Vidhata Devi and father as Om Prakash and also service book of the accused showing name of the wife as Sakumbhari Devi and the property documents wherein Vidhata Devi is shown as wife of accused clearly show that accused was married to Sakumbhari Devi and thereafter, he married to Vidhata Devi and committed offence u/s 494 of IPC.
8. Per Contra, Ld. Counsel for the accused has submitted that the legal requirement for Section 494 IPC is solemnization of second marriage according to Hindu Rites and Ceremonies where necessary ceremonies must have been gone through by the parties and same are required to be proved before the Court. Some judicial precedents have also been filed on behalf of the accused. It is also submitted that second marriage must have been conducted between the parties according to Hindu Rites and Ceremonies.
9. Arguments heard. Record perused carefully.
Conclusion Section 494 of IPC requires performance of due ceremonies with the second wife of a person and unless same is proved by the prosecution the ingredients of the offence are not met out. Further, for proving the second marriage prosecution is required to prove the factum of second marriage by eye witnesses, which in this case has not been proved by prosecution. Neither the prosecution has adduced any evidence in the Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011 8 of 8 form of eye witness to prove the series of ceremonies which are essential in nature were undergone by accused with Vidhata Devi, nor marriage certificate of the fact of second marriage has been produced before the Court. The word "Solemnized" in Section 494 of IPC means that marriage is solemnized with proper ceremonies and this legal requirement with proof of ceremonies should be proved before the Court for the attraction of Section 494 of IPC.
The school register of a child showing accused to be a father or the ration card of a lady showing accused to be as her husband or the property documents of a lady showing accused to be as her husband are not sufficient to prove the offence u/s 494 IPC being committed by the accused. The prosecution has relied upon the documents such as school register of the children of Vidhata Devi, the ration card of Vidhata Devi to prove the factum of marriage between Vidhata Devi and accused which is insufficient proof in terms of the mandate of Section 494 IPC.
Accordingly, in the light of judgments filed on behalf of accused and material on record, this Court is of considered view that ingredients of offence u/s 494 of IPC are not made out qua accused. All it can be said that prosecution has not been able to prove its case beyond the shadows of doubt. Also legal requirement contained u/s 494 of IPC has not been met out. Accused is accordingly, accorded benefit of doubt and he is accordingly acquitted for the offence charged for. He is directed to furnish bail bonds in terms of Section 437A of Cr.P.C.
Announced in the Open Court on this 19th day of September 2015 (DR. PANKAJ SHARMA) MM : Dwarka : Delhi Sakumbhari Devi v/s Om Prakash CC No.92/1 UID No. 02405R0355952011