Amar Singh vs Manki and Others

P.N. Goel, J.—This appeal by Amar Singh complainant is directed against the order dated 18-10-1976 passed by Judicial Magistrate, Bulandshahr acquitting Manki and Smt. Kela of the offence punishable u/s 494 Indian Penal Code and Hukma and Kishori of the offence punishable u/s 494 read with Section 109 Indian Penal Code .

Very briefly stated the case of Amar Singh Appellant was that he was first married with one Naniya about 25 years before 1969, that Smt. Naniya died about 10 years after the marriage, that then he married Smt. Kela, Respondent No. 3, daughter of Gopali and Smt. Khajano alias Khudia of Village Mahmoodpur, that Smt. Kela lived with him for about 13 years and gave birth to four children from him, that in the middle of June 1968 Smt. Kela was taken away by her father, that he filed a complaint u/s 498 Indian Penal Code that consequently Smt. Kela was arrested but she refused to go with the complainant, that on 6-11-1969 Gopali and Khajano settled her Karao with Manki, Respondent No. 1 and that on 9-11-1969 her Karao was actually performed with Manki inside the house of Gopali in village Mahmoodpur. Hukma and Kishori are said to be the mediators (Bicholia) in the Karao.

Hukma and Kishori denied to have mediated. Manki denied to have married Smt. Kela. He showed ignorance of the marriage of Amar Singh with Smt. Kela. Smt. Kela denied to have been married with Amar Singh and later on with Manki. She, however, stated that the village people were troubling her and that, therefore, she had gone to live with Manki in village Katiyari.

Amar Singh complainant examined himself, Pop Singh, Babu Singh and Tej Singh. On an examination of their statements the Magistrate found that the complainant failed to prove his marriage with Smt. Kela and that the complainant failed to prove the marriage of Smt. Kela with Manki. Therefore, the Magistrate acquitted the Respondents.

In the complaint, Amar Singh had arrayed Gopali, Smt. Khajano, Brijpal, Ganeshi and Binnami also. Gopali died after the filing of the complaint. Brijpal, Smt. Khajano, Ganeshi and Binnami were discharged. The order of discharge has become final.

The Respondents did not engage any counsel to appear on their behalf in this Court.

Sri S.A. Shah, counsel for the complainant and the learned State counsel have been heard and record has been examined with their assistance. Statements of all the complainant''s witnesses have been carefully perused.

Tej Singh was declared hostile by the complainant. His name was not mentioned amongst the witnesses in the complaint. In this way there remained the statements of Amar Singh, Pop Singh and Babu Singh. These three witnesses fully proved that Smt. Kela was married to Amar Singh about 14 years before the filing of the complaint. The complaint was filed on 27-11-1979. These witnesses clearly stated that the marriage party of Amar Singh came to village Mahmoodpur, that then the marriage of Amar Singh with Smt. Kela was performed, that thereafter Smt. Kela lived with Amar Singh for several years and gave birth to four children. These statements were, precisely speaking, not challenged in the cross-examination, nor they were assailed by leading evidence to the contrary. The learned Magistrate has taken a technical view of the ceremonies of marriage. He has pointed out that pandit or barber were not produced, that it was not stated by the witnesses that fire was burnt and the Saptpadi took place around it. In my opinion, taking into account the statements of Amar Singh, Pop Singh and Babu Singh coupled with the fact that Amar Singh and Smt. Kela lived together for several years as husband and wife and Smt. Kela gave birth to four children, it is amply proved that there took place marriage of Amar Singh with Smt. Kela.

With regard to the second marriage of Smt. Kela with Manki in the life time of her first husband Amar Singh, there is evidence of Pop Singh and Babu Singh only. Amar Singh was not present at the time of this marriage. He heard about it from Pop Singh and Babu Singh. These two witnesses have no doubt state that there took place Karao of Smt. Kela with Manki inside the house of Gopali in village Mahamoodpur at about 5 P.M. on 9-11-1969. At the time of Karao some clothes and ornaments were given to Smt. Kela. After the Karao Amar Singh lived at the house of Gopali as Ghar Jamai. A few days later Amar Singh went away because of some dispute with his father-in-law Gopali.

The question for consideration is whether the Karao amounted to a valid marriage. It will be noticed that in the instant case the first marriage of Smt. Kela with Amar Singh took place with the ceremony of Saptpadi. No such ceremony took place at the time of her alleged second marriage with Manki. Karao form of marriage is not permissible in twice-born classes i.e. Brahmins, Kshatri and Vaish. This form of marriage is permissible in the class other than twice born classes, namely, Shudras. In the complaint it has been alleged that the Karao form of marriage is prevalent in the caste of parties. In the complaint Amar Singh has been shown as Lodh Rajput. Similarly, Manki and Smt. Kela have been shown as Lodh Rajput. But there is absolutely no evidence worth the name that Amar Singh, Manki and Smt. Kela are Lodh Rajput. There is no evidence that Karao form of marriage is prevalent in the caste of the parties.

Sri S.A. Shah urged that the Court can take judicial notice of the fact that Karao form of marriage is prevalent and valid in the classes other than twice born classes. It is true but the Court cannot take judicial notice of the caste of the parties. It was the duty of the complainant to prove in the present case the casts of the parties and the customary form of marriage, namely, Karao. But the complainant led no evidence whatosever on these two points.

Sri S.A. Shah urged that Additional evidence be taken u/s 391 of the Code of Criminal Procedure. This Section lays down that in dealing with any appeal, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate. It will be noticed that under this provision additional evidence can be taken if the appellate court considers it necessary. It is a primary rule that no appellate court should take additional evidence to remove the lacuna left by the complainant. In this case the complainant led no evidence worth the name about the caste of the parties and the validity of the Karao form of marriage.

It will further be noticed that the occurrence took place in November, 1969 i.e. 12 years ago. The evidence in the case was recorded in April 1972. By this time Smt. Kela has given birth to two children perhaps from Manki. In April 1972 Amar Singh was aged 42 years. He is now aged about 52 years. The Respondents have suffered enough harassment in the case. The case remained pending before the magistrate for about 4 years. In all these circumstances no good purpose will be served by taking additional evidence and then punish Smt. Kela and Manki. In these circumstances, I am of the opinion that it is not at all a fit case for taking additional evidence.

Taking into account the material on record, the order of acquittal cannot be interfered with by this Court in appeal.

In the result the appeal is dismissed.