The duty of the trial court to properly evaluate the testimony of the witnesses and the accused's explanation given before another court influenced the court's decision to set aside the acquittal and remit the case for re-examination.

1. -The petition seeking leave to appeal under section 378 (4) Cr.PC. was allowed by this court vide order dated Jan. 24, 1990 and the petition was ordered to be registered as appeal. The complainant - appellant (for short the complainant) has filed the instant appeal impugning the judgment dated September 23, 1989 of Judicial Magistrate No.2 Ajmer whereby the accused respondent Amrish Kumar Jain (for short the accused) was acquitted for the charge under section 494 IPC and the learned Magistrate also directed to issue notice under section 193 IPC to the complainant as well as her witness Satya Prakash Shastri.

2. Brief resume of the case is that the complainant instituted a complaint on July 18, 1984 against the accused and two other persons namely. Manju Devi and Inder Chand Jain in the Court of Judicial Magistrate No.2 Ajmer. After recording the statements under section 200 and 202 Cr.PC., the learned Magistrate took cognisance under section 494 IPC The complainant examined herself as PW.1. Harlal Gupta as PW.2, Satya Prakash Shastri as PW.3, Jeneual Pw.4 and Immamudin Khan as PW.5. and thereafter charge under section 494 IPC was framed. The accused was allowed to recross the witnesses already examined. All the witnesses were produced by the complainant but PW.4 Jenual Avedin was not produced for re-examination Thereafter the statements of PW.G Smt. Lalita Khana and PW.7 Mustak Ahmed were also recorded. The accused was examined under section 313 CrPC. In the statement the accused stated that she was a bachelor and neither tie entered into first marriage nor he entered into second marriage. The learned trial court after discussing the evidence, acquitted the accused from the charge under section 494 IPC and directed that notice under section 193 be issued against the complainant as well as her witnesses.

3. I have given my anxious consideration to the rival contentions and carefully perused the record. Mr Ashok Verma, learned counsel appearing for the complainant has drawn my attention towards the judgment dated January 23, 1995 of the Family Coun, Ajmer, whereby the application under section 125 Cr.PC. moved by Amita through complainant Shanti with the allegation that accused Amrish Kumar Jain was his father and she was entitled to be maintained by him. In that proceedings the accused Amrish Kumar Jain was examined. The Family Court Ajmer observed that Shanti Gupta was married to the accused on 6.7.1983 and his statement under section 313 Cr.PC. recorded by the learned Magistrate, the accused clarified that he made a wrong statement before the learned Judicial Magistrate. The relevant observations of the Family Court in its judgment read as under:

"tgka rd vizkFkhZ ,u0,0 MCY;w0 1 vejs'k dqekj ds 'kiFk ij lR; cksyus ds vknj djus dk lacU/k gS] izfrijh{k.k esa mlus ;g Lohdkj fd;k gS fd iwoZ izdj.k dzekad 142@87 esa mlls iwNs tkus ij fd mlus ekpZ 84 esa mlus eatw nsoh ls nwljk fookg dj fy;k Fkk] U;k;ky; ds le{k mlus vius mRrj esa ;g dgk Fkk fd mlus dksbZ 'kknh ugha dh rFkk og rRle; Hkh dqaokjk gSA bl lEcU/k esa bl U;k;ky; esa mlls iwNs tkus ij mlus ekpZ 84 esa eatw nsoh ls nwljk fookg djus ds rF; ds ckcr Lohd`fr nh gS o bl laca/k esa mlus Lo;a us gh ;g Li"V ekuk gS fd mlus iwoZ U;k;ky; esa fnukad 26-8-89 dk c;ku eqfYte ds iz'u la[;k 7 ds laca/k esa >waB cksyk Fkk fd mlus ekpZ 84 esa eatw tSu ls 'kknh ugha dh rFkk og ml le; Hkh dqaokjk gSA"
The judgment of the Family Court Ajmer was confirmed by this court in S.B.Cr. Revision Petition No. 149 of 1995 vide the order of this Court dated 31.3.1995 When a query was made by this court to the learned counsel for the accused in respect of the explanation of the accused that he made wrong statement under section 313 Cr.PC before the Judicial Magistrate, the learned counsel replied that statement under section 313 Cr.PC. was given without taking oath.

4. In view of the explanation of the accused given before the Family Court Ajmer in respect of his statement under Section 313 Cr.PC.