Uttarakhand High Court
Kurban Ali vs State Of Uttarakhand And Another on 22 November, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 133 of 2020
Kurban Ali ....Revisionist
Vs.
State of Uttarakhand and Another ..... Respondents
Presents:-
Ms. Divya Jain, Advocate for the revisionist.
Mr. A.K. Shah, D.A.G. for the State.
Mr. B.S. Koranga, Advocate for the respondent no.2.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this revision is made to the judgment and order dated 20.12.2019, passed in Case No. 111 of 2018, Kamarjahan and Others Vs. Kurban Ali, by the court of Principal Judge, Family Court, Haridwar ("the case"). By it, an application filed under Section 125 of the Code of Criminal Procedure, 1973 ("the Code"), filed by the respondent no.2, has been allowed and the revisionist was directed to pay Rs. 5,000/- per month as interim maintenance to the respondent no.2.
2. Heard learned counsel for the parties and perused the record.
3. This is a revision. The scope is quite restricted to the extent of examining correctness, legality or propriety of the impugned judgment and order. 2 Appreciation of evidence is generally not done in a revision unless the finding is perverse or admissible evidence is ignored or inadmissible evidence is taken into consideration.
4. It appears from the record that the court on 23.09.2019, directed that notice be issued to Raju Aggarwal, J.P. Manaria and Aklakh Ahmed, with regard to a nikahnama. They all appeared as Court Witnesses on 09.10.2019. On that date, deposition of CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed was recorded. In the impugned judgment, the court has made reference to the statements given by CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed.
5. Learned counsel for the revisionist as well as for the respondent no.2 would submit that, in fact, both of them did not get any opportunity to cross- examine all these three witnesses. The statements of these three witnesses are on record. The statement of CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed are simply statements. It is examination-in-chief. If Court gathers this from the record that the court below examined these witnesses, in that situation also, parties before the Court should have been given an opportunity to cross-examine these witnesses, which was not done. Learned counsel for the revisionist and 3 the respondent no.2 would submit that they would like to cross-examine all these three witnesses, namely CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed.
6. In so far as the examination of a witness is concerned, it does not become complete without offering an opportunity of cross-examination to the parties. Section 138 of the Indian Evidence Act, 1872, makes provision with regard to order of examination. It is as hereunder:-
"138. Order of examinations. -- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re- examined.
The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in- chief."
7. In the instant case, CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed were not offered for cross-examination to the parties. It makes the statements of these three witnesses incomplete. It cannot be termed as an evidence, but the court below considered the statements given by these three witnesses as evidence. The statements were, in fact, inadmissible evidence without cross-examination. 4
8. In view of it, this Court is of the view that the court below did take into consideration inadmissible evidence for arriving at a conclusion. It vitiates the impugned judgment and order. Accordingly, this Court is of the view that the impugned judgment and order deserves to be set-aside with the direction to the court below.
9. The revision is allowed. The impugned judgment and order dated 20.12.2019, passed in the case, is set aside.
10. The court below is directed to summon these three witnesses, namely CW1 Raju Aggarwal, CW2 J.P. Manaria and CW3 Aklakh Ahmed, once again and offer an opportunity of cross-examination to the parties. For that purpose, the matter may not be adjourned.
11. It is told to the Court that the revisionist was directed to pay Rs. 5,000/- per month as interim maintenance to the respondent no.2. The revisionist shall continue paying that interim maintenance till the case is finally decided. The amount of interim maintenance, which has been deposited, shall be paid to the respondent no.2 within 15 days from today, on an application filed by her.
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12. Let the lower court record, along with a copy of this judgment be sent back to the court concerned.
(Ravindra Maithani, J.) 22.11.2022 Ravi Bisht