SHIBSANKAR SAMANTA Vs. SOBHANA SAMANTA

JUDGEMENT

(1.) This criminal revision is directed against, the judgment and order dated the 14/02/1990 passed by the Additional Sessions Judge, Midnapore in Criminal Motion No. 150 of 1989 whereby the learned Judge granted maintenance to the opposite party, Smt. Sobhana under S. 125, Cr. P. C. at the rate of Rs. 400/- per month for herself and a further sum of Rs. 400/- for her minor son from the date of filing of the, application after setting aside the order of the learned Judicial Magistrate, 1st Court, Contai passed in Misc. Case No. 171 of 1987 dismissing the application under Section 125, Cr. P.C. The case of the opposite party is t at she is the married wife of the petitioner Shibsankar Samanta and after marriage they resided together as husband and wife and a male child was born to them. It is alleged by her that Shibsankar used to ill treat her and even to assault her and ultimately she was driven away by him along with her son and since then she and her son are staying at the residence of her father. It is the further case of Sobhana that Shibsankar earns Rs. 5000/- to 6000/- per month from his bus business and landed property and is wilfully neglecting her and her minor child. The proceedings under Section 125, Cr.P.C. started by Sobhana was contested by the present petitioner Shibsankar. He denies that there was any marriage between him and the opposite party or that they resided together as husband and wife or any child was born to them or that he was the father of her child. The Learned Magistrate after hearing and after considering the evidence on record held that Smt. Sobhana failed to prove that there was any marriage as alleged or that they lived together as husband and wife or the child born to her was begotten by Shibsankar. Accordingly he dismissed the petition for maintenance. Against that a petition was filed before the Learned Sessions judge, which was heard by the Learned Additional Sessions Judge. The Learned Additional Sessions Judge reversed the findings of the Learned Magistrate and held that there was marriage between the parties and they resided together as husband and wife and a child was born to them in the wedlock. Accordingly he granted maintenance to Smt. Sobhana both for herself and her minor son as stated above. Being aggrieved by the said order of the Learned Additional Sessions Judge, the present criminal revision has been filed by Shibsankar.

(2.) The Learned Additional Sessions Judge, I must say, has taken a wholly incorrect and untenable approach in deciding the criminal petition filed before him against the order of the Learned Magistrate. He has, I find, set aside the order of the Learned Magistrate by taking a very superficial approach. He has not only ignored the necessity of examining whether and where, if at all, the Learned Magistrate was wrong in his approach in dealing with the evidence on record, but he has also wholly avoided to embark upon any critical study of the evidence for testing the acceptability of the same. It is a cardinal principle of law that in a revision, the revisional court will not interfere with the order of the Court below, unless there is some compelling reason for doing so such as where the judgment or order of the Court below is vitiated by perversity or gross illegality. The Learned Additional Sessions Judge accepted the evidence of PW-1, Smt. Sobhana that she was married with Shibsankar on 28th Falgoon 1385 B. S. and at the time of marriage Horn and Saptapadi were performed and that PW-2 Durga Pada Ponda acted as priest in that marriage. He also relied upon her further evidence that after marriage she went to reside with Shibsankar in a room of the bus garage of Shibsankar and they lived there as husband and wife and a mala child was born of that weldlock on 5th Baisak 1388 B.S. and she had been staying in her father's house since Baisak 1394 B.S. when Shibsankar drove her out. The Learned Additional Sessions Judge observed that she had been cross examined at length, but had not been shaken in her cross-examination and there was nothing in her cross-examination which tended in any way to weaken her evidence. Such obsevation of the Learned Additional Sessions Judge, I must say, is very superficial and the Learned Additional Sessions Judge, it appears, even did not take the trouble of going through the judgment of the Learned Magistrate, far less dealing with the categorical analysis of the facts, circumstances and evidence by reason of which the Learned Magistrate found it diffucult to believe or accept the case of Smt. Sobhana. The Larned Magistrate found that while in the petition Sobhana stated that her marriage with Shibsankar took place in a Shiva temple by exchanging garlands, in her evidence she wanted to state that besides exchange of garlands there was observance of essential ceremonies like Hom and Saptapadi in that marriage and the priest of the Shiva temple PW-2 acted as a priest in that marriage, although in the petition nothing was stated about such ceremonies of marriage or about priest. Again the Learned Magistrate also took note that even in her cross-examination Sobhana stated categorically that the marriage was performed by exchanging garlands at the temple and not by priest. These inconsistencies and discrepancies between the case stated in the petition and the deposition of PW-1 which were considered by the Learned Magistrate in detail while examining the credibility of the PW- 1 and the acceptability of her case have been totally ignored by the Learned Additional Sessions Judge. The Learned Magistrate also took note of the fact that while in the petition no date of marriage was mentioned, in evidence the PW-1 stated specific date of the marriage. The Learned Magistrate was inclined to think that had there been really any marriage as alleged the date of the performance of the same would have been stated in the petition itself which, however, was not done in this case. Surely all those points noted by the Learned Magistrate are relevant for consideration in deciding whether a consistent and acceptable case has been made out by the petitioner before him. The Learned Additional Sessions Judge in his revisional jurisdiction could have shown where the Learned Magistrate had gone wrong or perverse in his assessment of the evidence. But instead of doing that the Learned Additional Sessions Judge, totally ignored those points as well as the discussion made by the Learned Magistrate on those points. The observation of the Learned Additional Sessions Judge that PW-1 had not been taken in her cross-examination, without taking notice of the points which, according to the Learned Magistrate, had taken the credibility of PW-1 is worse than mere window dressing.

(3.) PW-2 Durgapada Ponda claimed to be the priest of the marriage and also the priest of the temple in which the alleged marriage had taken place. He said that marriage had been solemnized according to Hindu rites and customs, and Hom, Saptapadi and Mala badal (exchange of garlands) had been observed in that marriage. As regards the evidence of PW-2 the Learned Additional Sessions Judge observed that there was nothing in his cross-examination to put it at a discount what he had testified in his examination-in-chief. The Learned Magistrate, how- ever, had discussed the evidence of the PW-2 and found that this witness had no idea as to what Mantras are required to be uttered in a marriage ceremony. Along with the discrepancies between the petition and the evidence as to whether essential ceremonies were at all performed the Learned Magistrate had also taken into consideration the ignorance of the PW-2 about the required Mantras in considering the reliability of this witness who claimed to have acted as priest in that marriage. The learned Additional Sessions Judge did not at all care to take even a note of the analysis of the evidence made by the Learned Magistrate and instead observed mechanically that the PW-2 had not been shaken in his cross-examination. PW-3 claimed to be a witness to the alleged marriage. The Learned Additional Sessions Judge observed that it transpired from his evidence that after marriage the petitioner went to live with the O.P. in his garage and thereafter she was driven out by the O.P. with her child who was born of the wedlock. The Learned Magistrate took note of the fact that while PW-3 stated in his examination-in-chief that PW-2 Durgapada Ponda acted as priest yet in his cross-examination he stated that the priest of that temple acted as priest in that marriage and also gave the name of that priest of the temple as Dukhishyam Ponda. The evidence of PW-3 thus casts a very serious doubt as to whether PW-2 Durgapada Ponda at all acted as priest in the alleged marriage. These aspects which were considered by the Learned Magistrate with appropriate seriousness were totally ignored by the Learn- ed Additional Sessions Judge, not to speak at showing how the assessment of the Learned Magistrate was wrong. PW-3 stated that he had seen PW-1 giving birth to a male child at the garage house of the O. P. and he had als6 stated that he had seen her there with the O. P. But PW-1 stated in her cross-examination, that she delivered the child at her father's house and since then she did not go back to the O. P.'s house. This is also a discrepancy which the learned Magistrate took note of but the Learned Additional Sessions Judge totally ignored the same without any discussion whatsoever. PW-4 claimed to be a witness to the marriage and also said in cross-examination that 2/3 years after marriage O. P. drove out PW-1. But PW-1 stated that she was driven out about 8 years aftter marriage. While considering the evidence of PW-4 the Learned, Magistrate took note of the said discrepancy but the Learned Additional Sessions Judge did not at all take any note of the same in assessing the credibility of the concerned witness.