The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO. 346 of 1993 (In the matter of application under Section 378(4) of the Code of Criminal Procedure, 1973.) Smt. Ahalya Pradhan …. Appellant -versus- Balaram @ Sabyasachi Pradhan and another …. Respondents For Appellant : Mr. A.R. Panda, Amicus Curiae For Respondents : None CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT: 10.08.2023 (ORAL) G. Satapathy, J. 1. This is an appeal against the acquittal of Respondents in 1C.C. Case No. 38 of 1887 (TR No. 415 of 1889) wherein the learned J.M.F.C., CRA No.346 of 1993 Page 1 of 11 Sambalpur by a judgment dated 14.08.1990 acquitted the Respondents. 2. It stands clarified that the initially the appellant as the petitioner had applied for leave to appeal against the impugned judgment acquitting the present respondents and one Siria Pradhan as O.Ps. in CRL.MC No. 927 of 1990, but the leave to appeal against Siria Pradhan was dismissed being not pressed vide Order No.5 dated 04.10.1993, while leave was granted to appeal against the judgment acquitting present respondents only in the appeal. Accordingly, the appellant filed the appeal memo only against the respondents. 3. An over view of prosecution case was like, the appellant had married to Respondent No.1(R-1) and they were blessed with a female child out of their wedlock while staying at Lalpanga. After birth of the child, dissention developed between them and R-1 CRA No.346 of 1993 Page 2 of 11 left the appellant in her parental home for treatment with a promise to take her back after sometime, but before she could be taken back by R-1, she got information from P.W.2 that R-1 got married to one lady namely Subasini Pradhan. This is how the complaint came to be instituted by the appellant against the respondents and others (in total six persons) including the so called second wife Subhasini Padhan. 4. On receipt of the complaint, the learned JMFC, after recording initial statement of complainant and on being satisfied, took cognizance of offences and whereafter the appellant and four more witnesses were examined before charge. On consideration of the evidence upon hearing the parties before charge, the learned J.MF.C., Sambalpur finding sufficient materials, framed charge against R-1 for offence U/Ss. 494 of IPC and Section 494/109 of IPC CRA No.346 of 1993 Page 3 of 11 against R-2 while discharging the second wife of R-1 and her parents. Accordingly, the appellant and witnesses were cross-examined by the defence after charge as against one witness D.W.1 Ujagar Pradhan was examined by the defence in support of its plea of false implication. 5. After appreciating the evidence upon hearing the parties, the learned J.M.F.C., Sambalpur acquitted the respondents of charges by the impugned judgment which is assailed by the appellant. 6. Since, the appeal was of the year 1993, and nobody was appearing for the appellant on some dates after 13.01.2023, learned Govt. Counsel was requested to intimate the appellant to appear either in person or through her counsel, but the effort remains in vain as none appears for the appellant
Legal Reasoning
and therefore, Mr. A.R. Panda, learned counsel CRA No.346 of 1993 Page 4 of 11 having more than fifteen years of practice experience, was appointed as Amicus Curiae for the appellant, who argued in the matter by filing a written note of submission. Mr. A.R. Panda, learned Amicus Curiae in his written notes of submission has contended that the evidence of witnesses were very clear, but the learned trial Court has failed to appreciate the evidence on record in proper perspective and acquitted the respondents by erroneous consideration of the entire evidence. On the other hand, none appears for the respondents. 7. Adverting to the contention of learned Amicus Curiae, it appears that the learned J.M.F.C, Sambalpur although had appreciated the evidence to return with a finding that the appellant was the legal married wife of R-1, but at the same time, the learned trial Court considered the second marriage of R-1 with Subasini Pradhan not established. CRA No.346 of 1993 Page 5 of 11 8. At the outset it cannot be forgotten that the learned J.M.F.C., Sambalpur by an order passed on 02.11.1989 had discharged the so called second wife Subasini Pradhan and her parents namely Achyuta Barik and Mecha Barik U/S 245(1) of Cr.P.C. by holding that there is no evidence against these accused persons, but the said order was never challenged by the appellant in any forum which ultimately attained finality. It is also not in dispute that the learned trial Court had discharged the aforesaid accused persons by considering the evidence adduced by the complainant-appellant before charge. It is, therefore, very clear that the marriage of R-1 with discharged accused Subasini Pradhan was disbelieved by the learned trial Court before framing of charge. Once the marriage of R-1 with Subasini Pradhan was disbelieved by way of discharge of Subasini Pradhan, the complainant- CRA No.346 of 1993 Page 6 of 11 appellant had an uphill task of establishing the second marriage of R-1 with any other lady during the subsistence of his marriage with the appellant. 9. Be that as it may, the evidence of appellant transpired that she heard from P.W.2 that R-1 had married another lady and then their caste member Mohan Bhoi (P.W.3) was deputed to village Khuntabandha to enquire as to whether the second marriage of R-1 was really performed or not and P.W.3 accordingly, went and enquired about this aspect and he came to know that R-1 had married again to discharged accused Subasini. What is the most significant was that P.W.1 had admitted in cross-examination that she had not seen the discharged accused Subasini, the so called second wife of R-1 prior to the marriage. When this Court perused the evidence of P.W2, it transpired that he also heard that R-1 had married for the second time CRA No.346 of 1993 Page 7 of 11 to discharge accused Subasini of village Khuntabandha in Rengali weekly market and thereafter, informed the same to the father of P.W.1 (appellant). It is, therefore, very clear that the evidence of important witness like P.Ws.1 and 2 were hearsay in nature in respect of allegation of second marriage of R-1 with discharged accused Subasini. At this juncture, this Court considers it apposite to reiterate that Court owes a duty to look into many other attending circumstance emerging from the complaint with due care and circumspection because once complainant decides to proceed against accused with some ulterior motive, he/she would ensure that the complaint is very well drafted with all the necessary ingredients of the offence and he or she would accordingly, lead evidence in the Court. Thus, in such situation the Court is, however, required to be very careful at the CRA No.346 of 1993 Page 8 of 11 time of appreciating the evidence, especially in a private complaint which in most cases are directed to harass the other sides now a days. 10. Finding the evidence of P.Ws.1 and 2 to be of no avail, this Court now advert to the evidence of rest of the witnesses, out of whom P.W.3 was another witness who appears to be a interested witness as his evidence transpired that he had deposed in a case U/S 125 of Cr.P.C. filed by the appellant. It also transpired from his evidence that on being requested by the father of P.W1, he enquired and ascertained about the marriage of R-1 with discharged accused Subasini, but the father of P.W.1 was never examined in this case. The complainant had also examined P.W.4 to prove the marriage of R-1 with Subasini, but he had admitted in cross-examination that he was not invited to the marriage by the father of Subasini in writing and he CRA No.346 of 1993 Page 9 of 11 could not say the name of priest and conchman, who attended the marriage. Further, P.W.5 was examined to prove the marriage, but he stated in cross-examination the name of mother Subasini as Gouri, which was incorrect. 11. On careful scrutiny of above evidence on the face of the impugned judgment, it appears that the learned trial Court had rightly directed itself in appreciating the evidence by observing that the witnesses had failed to depose about performance of <homo= which was lit on the altar as a essential condition for performance of marriage as admitted by P.W.1 and thereby, the learned trial Court had disbelieved the performance of marriage. In the circumstance, this Court does not find any error apparent in the appreciation of evidence by the learned trial Court. A careful scrutiny of evidence on record with the assistance of learned Amicus Curiae, CRA No.346 of 1993 Page 10 of 11 this Court does not find any illegality or perversity in the impugned judgment of acquittal of respondents. This Court places on record the appreciation for Mr.A.R.Panda, learned Amicus Curiae for the meaningful assistance provided by him in this appeal. In the result, the appeal stands dismissed, but in the circumstance without any costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 10th day of August, 2023/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 18:31:09 CRA No.346 of 1993 Page 11 of 11