Smt. Ahalya Pradhan vs Balaram @ Sabyasachi
2023 Latest Caselaw 8991 Ori

    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                            ....    Respondents
  Pradhan and another


  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.,

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

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

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

and therefore, Mr. A.R. Panda, learned counsel

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.

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-

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

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

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

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,

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