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Judgment
B.D. Agarwal, J.—This revision application is at the instance of the prosecutrix.
Heard Mr. R.C. Debnath, learned Counsel for the Petitioner. None appeared for the accused/Respondent No. 1 as well as for the Respondent No. 2/State of Tripura.
The Respondent No. 1 was initially convicted by the learned Judicial Magistrate Ist Class, Udaipur, South Tripura u/s 498A and 494 of the Indian Penal Code vide his judgment dated 03.01.2003 passed in C.R. Case No. 41 of 2003. The said judgment of conviction was challenged by the Respondent No. 1 and the learned Additional Sessions Judge, South Tripura, Udaipur has set aside the conviction vide his judgment dated 26.03.2003 passed in Criminal Appeal No. 5 (1)/2003. Being aggrieved with the reversal of the conviction, the complainant has preferred this revision application.
With regard to the offence u/s 494 of the IPC, learned Additional Sessions Judge has observed that the learned Trial Court committed error in convicting the Appellant/Respondent No. 1 on the basis of his admission u/s 313 of Code of Criminal Procedure According to the learned appellate Court, the prosecution did not produce any evidence for the second marriage. However, the evidence discloses that two witnesses, i.e., P.W.1 and P.W.3 have stated that when they visited the house of the accused-husband at Aralia on 6th Magh 1408 BS, they saw the accused living with his second wife and on being protested, the second wife, Smti. Chandana Chakraborty assaulted the complainant with her sandal. When this incriminating evidence was specifically put to the accused, at the time of recording his statement u/s 313 of Code of Criminal Procedure under Question No. 8, he admitted the fact without any explanation. Hence, it appears to me that the said admission of the accused can be considered u/s 21 of the Evidence Act.
To appreciate the contours of statements given u/s 313 Code of Criminal Procedure the learned appellate Court may consider the decision of the Gauhati High Court rendered in the case of State of Arunachal Pradesh Vs. Tai Ngomdir, and also the judgments of the Hon''ble Supreme Court rendered in the case of State of U.P. Vs. Lakhmi, and Bishnu Prasad Sinha and Anr. v. State of Assam, reported in 2008 (2) GLT 1. The learned appellate Court may also take into consideration Sub-section (4) of Section 313 of Code of Criminal Procedure while re-hearing the appeal.
With regard to the offence u/s 498A of the IPC also the learned Additional Sessions Judge has superficially discarded the testimony of the independent witnesses. The reasoning given for disbelieving the testimony of the complainant and her parents are also not very satisfactory. Since I am remanding the appeal for re-hearing, I refrain from discussing the evidence in detail, lest it would prejudice either side.
For the foregoing reasons, it is a fit case wherein the learned appellate Court is to re-hear the appeal and pass a fresh judgment.
In the result, the revision petition is allowed. The judgment dated 26.03.2003 passed by the learned Additional Sessions Judge, South Tripura, Udaipur is hereby set aside. The learned Judge is directed to re-hear the appeal and pass a fresh judgment upon hearing both the sides.
The Registry shall return the lower court records with a copy of this judgment to the learned appellate Court.