Smt. Kajodi vs Rishi Raj

R.S. Chauhan, J.—Aggrieved by the judgment dated 13-5-2009, passed by Additional Chief Judicial Magistrate Gangapur City, whereby the learned Magistrate has acquitted the Respondent Rishi Raj for the offence u/s 494 IPC, the complainant wife has approached this Court.

Briefly the facts of the case are that the complainant had filed a complaint against the Respondent and eight other persons before the court of Additional Chief Judicial Magistrate, Deeg. According to her, she was married to the Respondent about thirteen years ago. However, as she was unable to bear a child, the Respondent decided to contract a second marriage. According to her, the Respondent contracted a second marriage with one Kalawati and fathered three children from her. The learned Magistrate recorded the statement of the complainant and took cognizance of an offence u/s 494 IPC. In order to buttress its case, the complainant examined two other witnesses. In defence, the Respondent did not examine any witness. After going through the evidence, the learned Magistrate vide judgment dated 13-5-2009, acquitted the Respondent. Hence, this petition.

The learned Counsel for the Petitioner has vehemently contended that the Petitioner Kajodi (P.W.1) in her examination-in-chief has clearly stated that her husband re-married with Kalawati and has fathered three children. However, without assigning any reason her testimony has been disbelieved by the learned Magistrate. Moreover, her testimony was corroborated by the testimony of her father Badri (P.W.2), but even his testimony has been disbelieved. Therefore, the impugned judgment is unsustainable.

Heard learned Counsel for the Petitioner, perused the impugned judgment, and considered the testimony of Kajodi (PW.1) and Badri (PW.2), as produced by the learned Counsel for the Petitioner.

A bare perusal of the testimony of Kajodi (P.W.1) clearly reveals that in her cross-examination she has admitted that she cannot tell the date when her husband got re-married with Kalawati; she cannot tell the correct date as to when the second marriage was solemnised; she could not produce the ration-card or the voter-list of her husband and Kalawati. She could not produce any documentary evidence to prove that three children were fathered by Respondent, Rishi Raj from Kalawati. Most importantly, she has admitted that she has alleged the adultery against her husband only on the basis of information received from her cousin brother, Prem Raj, that her husband has re-married with Kalawati. Considering the testimony of the complainant, the learned Magistrate was certainly justified in concluding that the evidence of the complainant is nothing but hearsay evidence, which is inadmissible.

The learned Counsel has contended that in her examination-in-chief, the complainant has clearly stated that Respondent Rishi Raj has re-married with Kalawati. However, there is a distinction between a fact and proof thereof. The complainant Kajodi has not been able to prove the fact of re-marriage as told to her by her cousin.

Similarly, Badri (PW.2) has also admitted in his cross examination that the fact of re-marriage by his son-in-law was told by Prem. Therefore, his evidence is also hearsay. Moreover, he has also admitted that he cannot produce the school record of the three children who are studying. Therefore, the learned Magistrate was certainly justified in concluding that the evidence of the witness is hearsay.

Therefore, this Court does not find any perversity or illegality in the impugned judgment. The revision petition, being devoid of merit, stands dismissed.