JALAM SINGH Vs. BASANTI BAI

JUDGEMENT

(1.) This is an application under section 482 Cr. P.C. and is directed against the judgment and finding, dated 9.4.85 passed by Shri R.P. Awasthy, Sessions Judge, Damoh in Criminal Revision No. 8 of 1985 whereby the learned Judie has upheld the order of Shri R.S. Tripathy, Judicial Magistrate, Class-I, Damoh in Criminal Case No. 25 or 1984.

(2.) The learned trial Magistrate by his order had held that non-applicant Basantibai is, the illegitimate child of applicant and had therefore, ordered payment of Rs. 100/- per month as maintenance with effect from 1-5-82. The learned Magistrate, on the basis of evidence on record, held that Basantibai was the Illegitimate child of applicant Jalamsingh born of Ratibai, who was his kept. The learned Sessions Judge, on reappreciation of evidence, found that the finding is correct. Section 482 Cr. P.C. does not intend to provide an appeal against the concurrent finding of two Courts. Under the circumstances, these findings must be accepted and given a finality. In view of this finding, the impugned-order is the only order that could have been passed in the case. This by itself would be sufficient to dismiss the application.

(3.) The learned counsel for the applicant, however, submitted that Ratibai was married and her husband was alive. Since the non applicant was born to Ratibai during the continuance of her marriage with Hukumsingh, legal presumption would be that Basantibai was the daughter of Hukumsingh and not of the applicant. Relying on evidence of Premlal (A.W. 4), the learned counsel submitted that Ratibais husband Hukumsingh was on visiting terms with her and, therefore, the presumption will fully operate. Even if it was to be held that this Court could re-examine the evidence, there is no substance in the submission. The applicant as D.W. 1 had stated that Ratibai was married to Hukumsingh about nine years before. In para-5 he admitted that he had kept Ratibai as his wife in the year 1978, but had later on driven her out. His statement was being recorded on 23-9-1983 when he stated as aforesaid. Since the statement was not completed, it was adjourned to 14-12-1983. On 14-12-1983, the applicant was re-examined when he denied having kept Ratibai as his kept. He also denied having given such a statement on 14-12-1983. He has, however, not given any explanation as to why his evidence on 23-9-1983 as aforesaid was recorded. The applicant was represented by his Advocate Shri Tandon. If the trial Court was not correctly recording his deposition, his Advocate would have certainly complained about it. It is therefore, not possible to believe his statement on 14-12-1983, which obviously is an afterthought. Then, in para-8, he has admitted that a panchayat was held in the matter. Evidence of Rajaram Kotwar (A.W. 5) fully supports the version of Ratibai that she had got pregnant from the applicant, who was there after refusing to keep her. Other witnesses also fully support the version of Ratibai. Under the circumstances, the finding that non-applicant Basantibai is the daughter of Ratibai born from applicant Jalamsingh cannot be said to be a perverse or unreasonable finding.