1 2025:CGHC:1565 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 803 of 2014 Sharda Upadhyay W/o. Kamal Narayan Upadhyay Aged About 49 Years R/o. Behind Ganga Medical, Shukrvari Bazar, Gudiyari, Qtr. No. 10/810, P.S. Gudiyari, Raipur C.G. ... Petitioner(s) versus 1 - Kamal Narayan Upadhyay S/o . Late Rajnarayan Upadhyay Aged About 48 Years R/o. Vinoba Bhave Nagar, Near Durga Mandir, Kushalpur, P.S. Purani Basti, Raipur C.G. 2 - State Of Chhattisgarh Through The Distt. Magistrate Raipur C.G. ... Respondent(s) For Petitioner(s) : Mr. Sahdev Yadav, holding the brief of Mr. Pallav Mishra, Advocate. For Respondent(s) : Mr. S.S. Baghel, Deputy G.A. Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board 09 .01.2025 1. Heard Mr. Sahdev Yadav, holding the brief of Mr. Pallav Mishra, learned counsel for the petitioner. Also heard Mr. S.S. Baghel, AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN Date: 2025.01.10 19:23:50 +0530 2 learned Deputy Government Advocate, appearing for respondent No.2/State. 2. The petitioner has sought leave to appeal against the impugned judgment of acquittal dated 30.04.2014 passed by the learned Additional Sessions Judge, Raipur, District – Raipur (C.G.) in Criminal Appeal No. 03/2014 and Counter Appeal No.23/2014, whereby the learned Appellate Court allowed the Criminal Appeal while dismissing the Counter Appeal setting the respondent No.1/accused acquitted from the charges punishable under Sections 495 and 496 of Indian Penal Code (for short ‘IPC’). 3. The prosecution story, in brief, is that the applicant alleged that the respondent No.1 (shall be referred as accused hereinafter) taking the benefit of the circumstances, solemnized the marriage with the applicant having the first wife living and by deceitfully caused to cohabit with her. Thus, he committed the crime dishonestly and with fraudulent intention as mentioned under Section 493, 494, 495, 496 and 201 of IPC. Alleging the crimes as abovementioned the applicant filed complaint before the Court of Judicial Magistrate First Class, Raipur against the accused. The complaint case was registered as Complaint Criminal Case No. 372/2013. The accused was tried under the above sections and charges under Section 495 and 496 of IPC only were found proved. Hence, he was convicted and sentenced for simple imprisonment for 2 years under section 495 and one year under 3 Section 496 of IPC. Further, he was imposed fine of Rs. 2000/- under each sections. Both the sentences were ordered to be run concurrently. 4. Being aggrieved by the order and judgment passed by the learned JMFC, Raipur, the accused filed an appeal which was registered as Criminal Appeal No. 03/2014 and concurrently an appeal was also filed by the applicant herein which was registered as Counter Appeal No. 23/2014. After hearing, the counter appeal filed by the applicant herein was dismissed and the appeal of the accused/husband stood allowed and the accused was acquitted from the charges levelled against him. Hence, the petition. 5. Learned counsel for the petitioner submits that the learned appellate Court erred in acquitting the accused particularly in the circumstances under which, the accused failed to rebut the charges leveled against him, the learned appellate Court has opined that Section 495 and 496 can only be given effect to only when the victim was kept ignorant about the previous marriage of the accused. In the present case, the Court had to see that the marriage as stated to have been taken place in the year 1997 was done to cover the crime of second marriage thus, the appellate Court has erred in believing that the applicant had been knowing about the former marriage of the accused. He further submits that the appellate Court has erred in disbelieving the statement of applicant that the accused suppressed the fact and hide 4 photographs and certificate of his marriage, which had taken place in the year 1994, the learned appellate Court in its para No.19 of impugned order has relied upon the fact that the accused had admitted before the Family Court, Raipur the applicant as his wife, hence the Court ought to have held that the marriage was solemnized between them. He also submits that the on the one hand it admitted that the accused has a living former spouse and on the other hand the whole case of the applicant was turned down on the sole basis that the applicant issued the affidavit in support of marriage held in the year 1997, therefore, the impugned judgment and order of acquittal dated 30.04.2014, is not based on criminal jurisprudence, hence it is bad in law and liable to be set-aside. 6. I have heard learned counsel for the petitioner, considered his rival submission and gone through the records filed alongwith this petition. 7. Learned trial Court has acquitted the respondent No.1/accused observing the facts and circumstances of the case, oral and documentary evidence of the complainant, it transpires that the complainant was aware of the previous marriage of accused. Despite this, the complainant went ahead and married the accused on 25.02.1997. The evidence does not suggest that the accused had fraudulently or deceitfully concealed his previous marriage from the complainant, or that he had not fulfilled the necessary rituals of marriage with the complainant. In this case, the petitioner/ 5 complainant had to prove her case beyond a reasonable doubt, but she failed to do so based on the oral and documentary evidence presented. The trial court's conclusion that the accused was guilty under Sections 495 and 496 of the Indian Penal Code is therefore erroneous. 8. The complainant's failure to prove her case is evident from the fact that she was aware of the previous marriage of accused and yet chose to marry him. This raises questions about her credibility and the validity of her claims. The court's decision should be based on the evidence presented, and in this case, the evidence does not support the complainant's allegations. Therefore, the appeal should be allowed, and the accused should be acquitted of the charges under Sections 495 and 496 of the Indian Penal Code. The complainant's failure to prove her case beyond a reasonable doubt means that the accused is entitled to the benefit of doubt, and his acquittal is the only just and fair outcome in this case. 9. Taking into consideration the findings recorded by the learned appellate Court, acquitting the respondent No.1/accused from aforesaid offences, I do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 10. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC OnLine SC 984, has held as follows:- 6 "8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all." 11. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition, seeking for leave to appeal being totally devoid of merits, is rejected. Consequently, the acquittal appeal also stands dismissed. Sd/- (Ramesh Sinha) Chief Justice Akhil