KUSUM DADARAO KHANDAGALE Vs. DADARAO BAJIRAO KHANDAGALE

JUDGEMENT

(1.) HEARD respective Counsel. Rule. By consent, Rule is made returnable forthwith.

(2.) PRESENT revision is filed by original complainant, challenging the judgment and order dated-9.9.1999, delivered by the learned Additional Sessions Judge, Aurangabad in Criminal Revision No. 34 of 1999. The learned Sessions Judge was pleased to allow the revision filed by four, out of eight accused, i. e. original accused Nos. 1,3,5 and 6, against the order passed by learned Judicial Magistrate First Class, Sillod, in Regular Criminal Case No. 9 of 1997, on24.2.1999, arriving at a decision that charge under Section494 of Indian Penal Code, against accused No. 1 and under Section494 read with Section109 of Indian Penal Code as against accused Nos. 2 to 8 was required to be framed.

(3.) IT appears that the learned Magistrate was satisfied of prima facie case, on the basis of evidence of only two witnesses examined by the complainant under Section244 of the Code i. e. complainant herself and her father Bhaurao. As can be seen from the order of the Magistrate, complainant deposed to have visited the house of accused No. 1, to have seen accused No. 2 present in the house and according to her, accused Nos. 1 and 2 discloses to her that they had solemnized their marriage. Complainant's father Bhaurao rendered corroboration to her deposition by stating that complainant had been to the place of accused No. 1 and she had heard both husband and alleged second wife, having admitted solemnization of their marriage. Apart from this oral evidence, letter purportedly written by husband to the complaint dated17.7.1988 appears to have been produced before the trial Court, which was also relied upon by the learned Magistrate. He consequently arrived at a conclusion that this was not a case, wherein it could be said that, No case against accused has been made out, which, if un-rebutted, would warrant their conviction. Thus, according to learned Magistrate, the evidence led before charge was sufficient to warrant conviction of accused persons, if that was not subsequently rebutted. Learned Sessions Judge, upheld both the contentions of petitioners / accused persons, that earlier complaint having been dismissed under Section249 of the Code, fresh complaint cannot be entertained and that whatever evidence was led by the prosecutrix was hearsay, inadmissible and therefore, incapable of establishing any guilt on the part of accused.