Trilochan Sahoo vs Srimati Sarala Sahoo

B.K. Patel, J.—This revision is directed against the judgment dated 21.03.1996 passed by the learned 1st Additional Sessions Judge, Cuttack dismissing the Criminal Appeal No. 51 of 1993 preferred against judgment dated 17.3.1993 passed by the learned J.M.F.C, Jagatsinghpur in I.C.C. No. 94 of 1986 (Trial No. 22 of 1993) convicting the petitioner u/s 494 of the I.P.C. and sentencing him to undergo R.I. for one year and to pay fine of Rs. 500/-, in default to undergo S.I. for two months with further direction to pay Rs. 400/- to opposite party as compensation if the fine amount is realized.

Opposite party-complainant is the petitioner''s legally married wife. It appears that I.C.C. No. 94 of 1986 (Trial No. 22) of 1993) was instituted by the opposite party against the petitioner and some co-accused persons for commission of offence u/s 494 read with 109 of the I.P.C. It was alleged that the marriage between the petitioner and opposite party was solemnized in 1971. They were blessed with two children. However as the petitioner deserted the opposite party she took shelter in her parent''s house and instituted the proceeding for award of maintenance u/s 125 of the Cr.P.C. During subsistence of marriage between the petitioner and the opposite party, the petitioner took one Tuni Dei '' Yoshna as his second wife on 14.7.1983 by getting married to her.

The petitioner did not dispute regarding status of opposite party as his legal married wife. However, defence plea was denial of petitioner''s marriage for the second time with above said Tuni Dei '' Yoshna.

In order to substantiate her allegations the complainant examined three witnesses including herself as P.W.2 and also relied upon documents marked Exts.1 to 5. Two defence witnesses including the petitioner, examined as D.W.2, were examined on behalf of the petitioner. One Dr. Sampat Kumar Mohanty was examined by the Court as C.W.1. Considering the evidence on record learned Magistrate convicted and sentenced the petitioner as stated supra while acquitting the co-accused persons.

In assailing the impugned order it was contended by the learned Counsel for the petitioner that in view of inordinate delay in lodging the complaint till 27.06.1986, though the petitioner is alleged to have got married for the second time on 14.07.1983, the complaint petition should have been dismissed in limine. It was further contended that in order to substantiate the allegations u/s 494 of the I.P.C. the factum as well as validity of both the marriages are to be cogently established. It was argued that the evidence of P.Ws. 1, 2 and 3 is too vague to conclude that the petitioner got married for the second time as alleged. It was also argued that as C.W.1, examined as Court witness, has not proved the contents of Birth Certificates Exts.1 and 2, there is no basis to record any finding on the basis of the two documents. Learned Counsel for the petitioner relied upon the decisions of the Hon''ble Supreme Court in Kanwal Ram and Others Vs. The Himachal Pradesh Admn., , and this Court in Patra Mirgan Vs. The State, , Manjula Nayak Vs. Rama Chandra Nayak, and Bira Dang v. Dhyana Dang (1995) 8 OCR 481.

Though the learned Counsel appearing for the opposite party initially participated in the hearing, none appeared on behalf of the opposite party at later stage in course of further hearing. Learned Counsel for the opposite party supported the findings and conclusion of the learned Courts below and argued that there is no compelling reasons to disturb the concurrent findings.

In the present case there has admittedly been substantial delay in filing the complaint. The second marriage was alleged to have been solemnized on 14.07.1983. However, the complaint petition was presented in Court on 27.06.1986. P.W.2-opposite party-complainant neither in her evidence nor in complaint petition assigned any reason for delay in lodging the complaint in Court. In Patra Mirgan (supra) it has been held that if there is delay in either coming before the police or before the Courts, the Courts always view the allegations with suspicion and look for satisfactory explanation. In the present case, the inordinate delay in filing the complaint has remained unexplained.

Learned Courts below have recorded the findings that during the subsistence of marriage between the petitioner and opposite party, the marriage between the petitioner and Tuni Dei was solemnized. Though both the Courts below have come to such finding, such finding being strenuously challenged as having no basis, the evidence on record requires to be closely scrutinized in view of the settled proposition of law that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. Where, in prosecution for offences under Sections 494 of the I.P.C., the evidence of the witnesses called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused is not justified. In this connection, Kanwal Ram and others (supra) and Manjula Nayak (supra) may be referred to.

In Bira Dang (supra) it has been held:

In a case of bigamy u/s 494, I.P.C., the prosecution, in order to succeed must prove not only the factum of both the marriages but also their validity. In Shantimanl Dei Vs. Lingaraj Moharana and Others, it has been held by this Court relying on Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153 and Lingari Obulamma Vs. L. Venkata Reddy and Others, that in order to convict a person for the offence of bigamy u/s 494 of the I.P.C. the second marriage must be proved to have been performed in accordance with law and customary rites. In Subir Kumar Kundu alias Sambhu Vs. State of West Bengal, the Calcutta High Court has held as under:

In a trial for Bigamy u/s 494, Penal Code the Court will presume due performance of all requisite ceremonies from the circumstances of a marriage in fact, however, a conviction for bigamy cannot be sustained on such presumption alone and must fail unless the observance of the requisite form and performance of the necessary ceremonies are affirmatively proved....

In the present case complainant-P.W.2 admitted that she had not seen the second marriage. P.Ws.1 and 3 deposed to have witnessed marriage between the petitioner and Tuni Dei. P. W. 1 happens to be complainant''s sister''s husband. He deposed that on 14.07.1983, hearing about marriage of petitioner, he alongwith three others went to the petitioner''s house. When they reached there they saw that the second marriage of petitioner was being performed and that there were "Hastaganthi, Homa and Saptapadi". He deposed to have raised protest against performance of second marriage. P.W.3 deposed that he along with P.W.1 and others went to the house of the petitioner and in their presence "Hastaganthi and Saptapadi" were performed. This witness also said that they raised protest against the second marriage. P.W.3 deposed that one Bishnu Rath performed the marriage ceremony as priest. Said priest has not been examined. P.W.3 categorically deposed that they reached the house of the petitioner when Hastaganthi was performed, and that Saptapadi was performed after Hastaganthi and the Homa. Such sequence of rites as deposed by P.W.3 is not consistent with the version of P.W.1 who, testified in cross-examination that Home was performed first and thereafter Khai were spread and then Hastaganthi was performed. In case P.W.3 is to be believed, none of the witnesses including P.W.1 could not have witnessed Homa. P.W.3 also testified that they stayed for two hours in the house of the petitioner. Such an assertion is not capable on being accepted on the face of assertion of P.Ws.1 and 3 that they raised protest against the second marriage. Thus, scrutiny of evidence of P.Ws.1 and 3 reveals that their evidence as to the actual rites and ceremonies performed in their presence is not consistent and is rather vague and sketchy. In view of well-settled position of law that the alleged second marriage has to be established by adducing proof of essential ceremonies constituting such marriage, any amount of other evidence indicating nexus between the petitioner and another woman including birth of children is inconsequential.

Therefore, there is no scope to hold that prosecution has established beyond reasonable doubt that the second marriage was validly solemnized so as to sustain conviction of the petitioner u/s 494 of the I.P.C.

Consequently, the revision is allowed. Impugned judgments passed by the learned 1 st Additional Sessions Judge, Cuttack in Criminal Appeal No. 51 of 1993 and learned J.M.F.C., Jagatsinghpur in I.C.C. No. 94 of 1986 are set aside.