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2007(8) Supreme 141
Supreme Court of india
(From Himachal Pradesh High Court)
S.B. Sinha, H.S. Bedi, JJ.
Dimple Gupta (Minor) — Petitioner
versus
Rajiv Gupta — Respondent
Crl. Revision No. 62 of 2001
Decided on : 12-10-2007
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Grant of — Illegitimate child — Mother’s evidence — Admissibility — High Court reversing judgment of trial Magistrate — High Court not accepting statement of mother of appellant considering her accomplice — Hence appeal — Held, no reasons to justify a reversal of the findings recorded by trial Magistrate — Statement of Narain Dessi, mother of appellant was corroborated by several other witnesses — Hence liable to be accepted. (Para 6)
Criminal Procedure Code, 1973 — Section 125 — Maintenance — Grant of — Evidence, admissibility — Appellant illegitimate child of respondent — Her application for maintenance allowed by trial Magistrate — PW-3 Chandra Devi specifically deposed that Narain Dassi, mother of appellant and respondent Rajiv Gupta had stayed in her house several years earlier — High Court reversing the findings of trial Magistrate held that statement of PW-3 could not be retired upon as it appeared that she had been in Sri Lanka at the relevant time — Challenged — Held in such matters it is impossible to lay down with precision the chain of events more particularly when illiterate villagers with no sense of time are involved. (Para 6)
Facts of the case :
Appellant, Dimple Gupta, filed an application u/s 125 of Cr. P.C. through her mother claiiming maintenance at Rs. 500/- per month from the respondent Rajiv Gupta that he was her father as she had been born out of a relationship between him and her father, she had been conceived out of wedlock when her mother was a student of Xth Class in Government High School at Village Nagali. Mother was abondoned by her father and she was born on 8.7.1991 at Village Kalpa.
The trial Magistrate after recording evidence and in he course of an elaborate judgment held that appellant was indeed the illegitimate child of Rajiv Gupta born from Narain Dassi, PW-1. For arriving at this conclusion, the Magistrate relied on ocular evidence of several witnesses, including PW-1.
Aggrieved by the judgment of the trial judge, respondent Rajiv Gupta filed Criminal Revision in the High Court at Shimla. High Court reversed the judgment of trial Judge holding intere alia, that in a case of a child born out of an illicit relationship the mother was in the capacity of accomplice to the crime and as such it was essential that her statement be corroborated by other evidence to prove the case. High Court also disowned evidence of other PWs, on same ground or other. Hence this appeal.
Learned counsel for appellant submitted that finding recorded by trial Magistrate was based on correct appreciation of evidence and High Court was not justified in reversing the judgment. Respondent’s counsel opposed maintainability of appeal under Article 136 of the Constitution and submitted that findings recorded by High Court called for no interference.
Findings of the Court :
The petition was maintainable under Article 136 of the constitution. High Court was not justified in reversing the judgment of trial Magistrate. The statement of PW-1, Narain Dassi, was corroborated by other witnesses and was liable to be accepted – High Court wrongly disowned evidences of some other PWs.
Result : Appeal allowed.
JUDGMENT
HARJIT SINGH BEDI, J.—
1.This appeal by special leave arises out of the following facts.
2.The appellant herein, Dimple Gupta, filed an application under section 125 of the Code of Criminal Procedure through her mother Narain Dassi claiming maintenance at Rs.500/- per month from the respondent Rajiv Gupta alleging that he was her father as she had been born out of a relationship between him and her mother. It was alleged in the application that she was living with & her mother at village Nogali Tehsil Rampur, Himachal Pradesh at the time of the filing of the petition and that she had been conceived out of wedlock when her mother was a student in the Xth Class in the Government High School at village Nogali. It was further alleged that when the respondent got to know that Narain Dassi had conceived she had been taken by him to Chandigarh in order to get the foetus aborted but the Doctor advised that as the pregnancy was at an advanced stage it was not possible to undergo the procedure. It was further alleged that the respondent had then abandoned her mother whereafter she was born on 8.7.1991 at village Kalpa.
3.The Trial Magistrate after recording evidence and in the course of an elaborate judgment held that the appellant was indeed the illegitimate child of Rajiv Gupta born from Narain Dassi. For arriving at this conclusion the Magistrate relied on the ocular evidence of Narain Dassi PW1, Smt. Kanchuk Doma PW2, Smt. Chandra Devi PW3 and PW 4 Bhag Rath Pradhan of village Kalpa who proved an abstract (Ex.PW-4/A) of the Birth and Death Register showing Rajiv Gupta as the father of Dimple Gupta, and PW5 Devender Singh a Teacher who proved the admission forms filled in at the time of the appellant’s admission in school on 3.9.1996 showing her caste to, be Gupta. The attempt of the respondent on the other hand to show that Narain Dassi was a woman of loose character and had been available to several other male companions was sought to be proved by the evidence of RW-3 Hem Raj, the Manager of Gopal Guest House at Rampur who brought the record showing that a girl under the name of Kavita would often entertain guests in the Guest House and that Kavita was in fact Narain Dassi as he knew her personally.
4.Aggrieved by the judgment of the trial Judge, respondent Rajiv Gupta filed Criminal Revision No.62 of 2001 in the High Court at Shimla. The learned Single Judge of the High Court reversed the judgment of the trial Judge holding that in the light of several judgments of the High Court in identical matters it had been held that in a case of a child born out of an illicit relationship the mother was in the capacity of an accomplice to the crime and as such it was essential that her statement be corrborated by other evidence to prove the case. The High Court also observed that it was not sufficient for the applicant to show that the respondent was indeed her father but the court had also to give a finding that in all reasonableness no one else could have been the father and examining the evidence in the light of the above principles discarded the statement of PWI Narain Dassi as unworthy of credence and also rejected the evidence of PW2 Kanchuk Dolma on the ground that as she had disowned her initial statements in Court after she had been re-called for evidence and had supported the respondent’s case, whereas PW3 Chandra Devi was a liar as she had admitted that at the relevant time she may have been in Sri Lanka and thus could not have witnessed the presence of Narain Dassi and Rajeev Gupta in the Guest House. The court also observed that in the school admission form Ex.D.A. the column pertaining to the father’s name had been left blank whereas in the Birth entry Ex.PW4/A the father’s name had been entered as Rajiv Kumar and as such could not be connected with the respondent whose name was Rajiv Gupta. The High Court accordingly upset the judgn1ent of the triallVlagistrate, allowed the revision petition and dismissed the ap
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