AMAR SINGH Vs. MANKI

JUDGEMENT

(1.) THIS appeal by Amar Singh complainant is directed against the order dated October 18, 1976 passed by Ju dicial Magistrate Bulandshahr acquitting Manki and Smt. Kela of the offence punish able under Section 494 I. P. C. and Hukma and Kishori of the offence punishable under 'section 494 read with Section 109 I. P. C. Very briefly stated the case of Amar Singh appellant was that he was first marri ed with one Naniya about 25 years before 1969, that Smt. Naniya died about 10 years after tho marriage, that then he married Smt. Kela, respondent No. 3, daughter of Gopali and Smt. Khajano alis 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 mid dle of June, 1968 Smt. Kela was taken away by her father, that he filed a complaint un der Section 498 I. P. C. , that consequently Smt. Kela was arrested but she refused to go with the complainant, that on November 6, 1969 Gopali and Khajano settled her Karao with Manki, respondent No. 1 and that on November 9, 1969 her Karao was actually performed with Manki inside the house of Gopali in village Mahmoodpur. Hukma and Kishori are said to be the medi ators (Bieholia) in the Karao. Hukma and Kishori denied to have me diated. Manki denied to have married Smt. Kela. He showed ignorance of the marri age 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, sha had gone to live with Manki in village Kariyari. Amar Singh complainant examined him self, 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. There fore, the magistrate acquitted the respon dents. In the complaint, Amar Singh had ar rayed Gopali, Smt. Khajano, Brijpal, Ganeshi 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 complain ant 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 November 27, 1979. These witnesses clearly stated that the marriage party of Amar Singh came to village Mahmoodpur, that then the marri age of Amar Singh with Smt. Kela was per formed, that thereafter Smt. Kela lived with Amar Singh for several years and gave birth to four children. These state ments were, precisely speaking, not challeng ed in the cross- examination, nor they were assailed by leading evidence to the contrary. The learned magistrate has taken a techni cal view of the ceremonies of marriage. He has pointed of that Pandit or barber were not produced, that it was not stated by the witnesses that fire was burnt and the Sattpati took place around it. In my opinion taking into account the statements of Amar Singh and Babu Singh coupled with the fact that Amar Singh and Smt. Kela lived together for several years as husband and wife find Smt. Kela gave birth to four child ren, 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 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 wit nesses have no doubt stated that there took place Karao of Smt. Kela with Manki inside the house of Gopali in village Mahmoodpur at about 5 P. M. on November 9, 1969. At the time of Karao some clothes and orna ments 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 whe ther the Karao amounted to a valid marri age. It will be noticed that in the instant case the first marriage of Smt. Kela with Amar Singh took place with the ceremony of Sattpati. No such ceremony took place the time of her alleged second marriage with Manki. Karao form of marriage is not per missible 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 com plaint 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 caste of the parties and the customary form of marriage, namely, Karao. But the complainant led no evid ence whatsoever on these two points. Sri S. A. Shah urged that additional evi dence be taken under Section 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 Magis trate. It will be noticed that under this pro vision additional evidence can be taken it 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 per haps from Manki. In April 1972 Arnar Singh was aged 42 years. He is now aged about 52 years. The respondents have suffered enough harassment in the case. The case re manded pending before the magistrate for about 4 years. In all these circumstances no good purpose will be served by taking addi tional 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 re cord, the order of acquittal cannot be inter fered with by this Court in appeal. In the result the appeal is dismissed. .