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Shantimanl Dei Vs. Lingaraj Moharana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ1567
AppellantShantimanl Dei
RespondentLingaraj Moharana and ors.
Cases ReferredMagistrate and Lingari Obulamma v. L. Venkata Reddy
Excerpt:
.....130 overruled]. - the learned counsel for the respondents have submitted that the findings recorded by the learned magistrate holding the respondents not guilty of the charges framed against them are well-founded and no interference is called for. state of punjab air1962sc439 in deciding an appeal against acquittal, the court of appeal must examine the reasons on which the order of acquittal was based with particular care and should interfere with the order only when it is satisfied that the view taken by the acquitting judge is clearly unreasonable. 8. as can clearly be seen from the evidence, p. 3, would clearly show that his evidence was not worthy of credence and his own statements would bring about his condemnation. the findings recorded by the learned magistrate are..........penal code and the other respondents being charged under section 494 read with section 109 of the penal code. the case of the appellant was that she married the respondent no. 1 in 1970, but during the subsistence of her marriage, the respondent no. 1 married the respondent no. 3 in the month of magh of the year 1975 and the other respondents had abetted the commission of the offence of bigamy punishable under section 494 of the penal code. at the trial besides examining herself as p. w. 1, the appellant had placed reliance on the evidence of four other witnesses. the case of the respondents was one of denial and false implication. they had not examined any witness on their behalf. on a consideration of the evidence, the trial court came to find that the charges had not been established.....
Judgment:

B.K. Behera, J.

1. The appellant was the complainant and the respondent were the accused persons in the trial court, the respondent No. 1 Lingarai being charged under Section 494 of the Penal Code and the other respondents being charged under Section 494 read with Section 109 of the Penal Code. The case of the appellant was that she married the respondent No. 1 in 1970, but during the subsistence of her marriage, the respondent No. 1 married the respondent No. 3 in the month of Magh of the year 1975 and the other respondents had abetted the commission of the offence of bigamy punishable under Section 494 of the Penal Code. At the trial besides examining herself as P. W. 1, the appellant had placed reliance on the evidence of four other witnesses. The case of the respondents was one of denial and false implication. They had not examined any witness on their behalf. On a consideration of the evidence, the trial court came to find that the charges had not been established against the respondents and accordingly an order of acquittal was recorded.

2. Mr. Praharaj, the learned Counsel for the appellant, has taken me through the evidence and has submitted that the finding of acquittal recorded by the court below is unreasonable and perverse calling for interference by this Court in revision. The certified copy of the judgment dated the 24th April, 1982 passed by the learned Subordinate Judge, Puri, in a suit for maintenance instituted by the appellant against the respondents, besides others, wherein a finding has been recorded that the respondent No. 1 has married the respondent No. 3 is sought to be admitted as additional evidence in this Court and I have heard both the sides on this question. The learned Counsel for the respondents have submitted that the findings recorded by the learned Magistrate holding the respondents not guilty of the charges framed against them are well-founded and no interference is called for. It has been submitted that there is no case for reception of additional evidence in this Court.

3. While in a case under Section 494 of the Penal Code, the second marriage during the subsistence of the first one must be established strictly in accordance with the provisions of law, the considerations in a case or suit for maintenance are quite different. As a matter of fact, the learned Subordinate Judge has noticed this aspect in para 5 of the judgment wherein he has observed thus:

The learned Counsel for the contesting defendant next contends that following the ratio in 'Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh' AIR 1971 SC 1153 : 1971 Cri LJ 939, the alleged marriage ought to be held as invalid. Opinion is, however, unanimous that the standard of proof required for a conviction under Section 494 of the Penal Code is found to be rigorous compared with that required for the purpose of claiming maintenance if the broad facts and circumstances justify separate residence.

4. The criminal case against the respondents was decided long prior to the decision in the civil suit. The finding recorded by the learned Subordinate Judge is not binding on the criminal court. As earlier indicated, the considerations in a case under Section 494 of the Penal Code and in a case of maintenance are distinct and different, it would not, therefore, be just, reasonable and proper, in my view, to admit at this stage the certified copy of the judgment passed by the learned Subordinate Judge as additional evidence. I would accordingly reject the application made for reception of additional evidence.

5. As laid down by the Supreme Court in the case of Harbans Singh v. State of Punjab : AIR1962SC439 in deciding an appeal against acquittal, the Court of appeal must examine the reasons on which the order of acquittal was based with particular care and should interfere with the order only when it is satisfied that the view taken by the acquitting Judge is clearly unreasonable. If the view taken by the lower court is not perverse but borne out by evidence on record and reasonably possible, the High Court ought not to reverse the order of acquittal by taking a different view on the evidence. If two views are possible on the evidence on record, the order of acquittal is not to be interfered with (See the cases of Harijan Megha Jesha v. State of Gujarat : 1979CriLJ1137 and Ajit Singh Thakur Singh v. State of Gujarat : 1981CriLJ293 .) Keeping these principles in mind, this Court is to see as to whether the order of acquittal recorded by the trial court in the instant case was a reasonable one and could be arrived at on the evidence on record:

6. It is admitted on all hands that the respondent No. 1 had married the appellant in the year 1970. The question for consideration is as to whether during the subsistence of that marriage, the respondent No. 1 did marry the respondent No. 3 and as to whether the other respondents had abetted the commission of the offence of bigamy. Section 494 of the Penal Code reads:

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

This section requires the existence of the first wife or husband when the second marriage is celebrated and in the instant case, the first marriage had been admitted. The second marriage, if established, would be rendered void and the act of the respondent No. 1 or any of the persons abetting the commission of the offence would then be culpable.

7. Section 7 of the Hindu Marriage Act describes the ceremonies for Hindu marriage and it reads as follows:

Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

8. As can clearly be seen from the evidence, P. Ws. 1, 2 and 4 had not witnessed the second marriage. The persons who had informed P. W. 1 about the second marriage of the respondent No. 1 with the respondent No. 3 had not been examined. P. W. 2 had claimed to have been informed about the marriage of the respondent No. 1 with the respondent No. 3 by Somanath Mohanty (P. W. 4). But P. W. 4 had a different story to tell and according to him, he had no actual idea about this marriage, but had been informed by P. W. 2 about it. a perusal of the evidence of P. W- 3, who was said to be the priest at the marriage of the respondent No. 1 with the respondent No. 3, would clearly show that his evidence was not worthy of credence and his own statements would bring about his condemnation. The learned Magistrate has, on a careful consideration of the evidence of P. W. 3 in paragraph 7 of the judgments observed thus:.P. W. 3 was the priest in the marriage. He in his sworn statement in examination-in-chief states that the marriage of accused Lingarai and the accused Phula Dei was ceremonised by him, the bride and the bridegroom jointly taken three steps before the sacred fire. He in cross-examination before charge states that he followed the Hindu custom at first instance the bride and the bridegroom were tied and they then went round the marriage altar and then he started Homa. Curiously he denied to recite any of the marriage slokas. Further he also denied his knowledge about Saptapadi. Further he also denied his knowledge the ceremonies performed by him in Batabarani or Saptapadi. It is also significant in his evidence that although he conducted the marriage of accused Lingarai with Phula Dei but he denied his knowledge about the family custom of Maharana caste. Besides the evidence discussed above, I do not find any other materials on record as regards: marriage. The evidence of P. W. 3 the; priest inspires no confidence at all that he solemnized the marriage in accordance: with the customary rites and ceremonies of either party thereof....

It cannot be said that the learned Magistrate went wrong in discarding the evidence of this witness for the reasons recorded by him in the body of the judgment. That apart on his own showing, P, W. 3 was not the priest from the side of the bride from before and that he had been deputed by the priest who had been functioning from the side of the bride. That priest had not been examined. The barber named by P. W. 3 to have been present at the ceremony had not been examined either. No co-villager of the place where the second marriage had been solemnised, as sought to be established by the prosecution, had been examined for the prosecution.

9. Mr. Praharai has placed reliance on Exts. l to 3 and has submitted that there had been an admission in Ext. 1, the bail bond that the respondent No. 3 was the married wife of the respondent No. 1. The bail bond had been executed by the respondent No. 3 and had been scribed by P. W. 5. But as has rightly been submitted on behalf of the respondents, such an admission in a bail bond could not, in the absence of other evidence establishing the second marriage, point to a reasonable conclusion that the respondent No. 3 was the legally married wife of the respondent No. 1. Exts. 2 and 3 would not be of much avail to the prosecution.

10. Reliance has been placed by the learned Counsel for the respondents on the principles laid down in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153 : 1971 Cri LJ 939. to which reference had been made by the learned Magistrate and Lingari Obulamma v. L. Venkata Reddy : 1979CriLJ849 and it has been submitted that unless the second marriage is proved to have been performed in accordance with law and customary rites, no conviction under Section 494 of the Penal Code can lie. It has been observed in the first-mentioned decision that mere admission by an accused that he had contracted a second marriage is not enough. Judged in the light of the principles laid down in these two decisions of the Supreme Court, I must hold, agreeing with the learned Magistrate, that the evidence on which reliance had been placed by the prosecution was far short of the mark. The findings recorded by the learned Magistrate are reasonable and well-founded and do not call for interference.

11. In the result, the appeal fails and is dismissed.


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