Bagdiram vs State of M.P.

K.L. Shrivastava, J.—This revision petition is directed against the appellate judgment dated 23-7-1985 passed by the Additional Sessions Judge, Garotb in Criminal Appeal No. 114 of 1983 whereby the petitioner''s conviction u/s 494 of the Indian Penal Code and the sentence of rigorous imprisonment for six months and a fine ofRs. 200/- and in default to undergo simple imprisonment for one month have been maintained.

According to the complaint filed on 24-12-80 by Kastunbai, the non-applicant No. 2, she was married to the petitioner about seven years back. After about six months she was turned out and the petitioner has again married one Yashodabai.

On the complaint aforesaid, the petitioner and Yashodabai were both prosecuted. The learned trial Magistrate acquitted Yashodabai holding that it has not been proved that she had knowledge that the petitioner was already married to the non-applicant Kasturibai. he, However, convicted the present petitioner.

The petitioner went up in appeal but was unsuccessful. Hence this revision petition.

The contention of the Learned Counsel for the petitioner is that there is not an iota of evidence to prove that the petitioner has married Mst. Yashodabai and the conviction is, therefore, unwarranted. In support of his submission he has placed reliance on the decision in Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, , Kanwal Ram and Others Vs. The Himachal Pradesh Admn., , Priya Bala''s case AIR 1971 SC 1153, Lingari Obulamma Vs. L. Venkata Reddy and Others, , Bhunda Vs. Chetram, and Gopal lal''s case 1979 Cr. LJ 652.

Learned Counsel for the State contends that on the material on record the concurrent finding that the petitioner has married Yashodabai is clearly sustainable and no interference is called for in revision.

The point for consideration is whether the revision petition deserves to be allowed.

In L. Obulamma''s case (supra) in paragraph 5, it has been pointed out that it is well-settled that before conviction can be recorded under S. 494 IPC the following ingredients must be proved :-

(1) that the complainant had been married to the accused;

(2) that the accused contracted a second marriage while the first marriage was still subsisting:

(3) that both he marriages were valid and strictly according to law governing the parties.

It may be stated that it is the validity of marriage which gives the spouses the status of husband and wife.

In matrimonial offences the burden of strict proof of marriage according to the personal law or the customer must be discharged by the prosecution and as pointed out in the decision in Bhunda Suktu''s case (supra) tacit admission ofsush relationship would not be sufficient to prove the marriage. In the decision in Gopal Lal Vs. State of Rajasthan, it has been pointed out that for the proof of the offence of bigamy punishable u/s 494 of the IPC it has to be proved that the second marriage was a valid one (for if it is not valid, it is no marriage in the eye of law) in the sense that the necessary ceremonies required by the personal law or custom governing the parties have been actually performed and that despite the fact that such a marriage is void u/s 17 of the Hindu Marriage Act, 1955, in addition to civil consequences, it also attracts the applicability of the penal provision in section 494 of the I. P.C.

In the decision in Gopal case (supra) in paragraph 6, the two essentials of the custom of Natra Marriage have been mentioned. They pertain to pitcher and Chura. In the decision in L. Obulamma''s case (supra) it has been pointed out that where there was absolutely no evidence to prove that any of the two essential ceremonies i. e. Datta Homa and Saptapadi had been performed at the time of second marriage and the existence of custom in the community to put the ''yarn thread'' instead of ''Mangal Sutra'' was neither in the complaint nor proved in the evidence, the conviction u/s 494 J. P.C. could not be sustained. In Kanwalram''s case (supra) it has been held that admission of marriage by the accused is not evidence for the purpose of proving marriage in an adultery or bigami case. As pointed out in Bhunda Sukru''s case (supra) two persons may feel that they are legally married and on that basis may be living together as husband and wife but they by itself cannot lead to an inference in a prosecution for matrimonial offences that they have been legally married. From the foregoing discussion, it is clear that the law insists on strict proof of a valid marriages for basing conviction u/s 494 of the I. P. C.

The Learned Counsel for the petitioner has taken me through the evidence of the witnesses examind on behalf of the complainant. None of them is an eye-witness to the alleged marriage between the petitioner and Mst. Yes-hodabai. None of them has deposed about the ceremonies performed in the alleged marriage between them.

In a criminal trial an accused is presumed to be innocent and the unshifting burden of proving nis guilt in all its ingredients beyond reasoBa-ble doubt lies on the prosecution. On the material placed on record, I am clearly of opinion that the prosecution has failed to discharge that burden and the petitioner''s conviction is, therefore, clearly ill-founded.

Before parting with the case, it has to be emphasised that so long as the law requires that despite admission, the marriage have to be strictly proved, the complainant and the trial court must both take care to ensure that the requisite material is placed on record so that the culprits do not escape the punishment they deserve. As for the structure of its decision, the resources of the Court are ultimately limited to the material made available on record, it can do precious little in the matter and its finding may not accord with reality.

In the ultimate analysis, the revision petition succeeds and is allowed. The petitioner''s conviction u/s 494 of the I. P. C. and the sentence passed thereunder are both set aside. He is acquitted of the offence. He is on bail. His bail bonds shall stand discharged. Fine, if paid, shall be refunded to him.