J.M. Sheth, J.
1. This appeal was filed by original complainant Muktaben after obtaining special leave of the Court as required under Section 417(3) of the Criminal Procedure Code. This appeal is directed against the order of acquittal passed in favour of respondents Nos. 1 to 4 by the learned Additional Sessions Judge, Junagadh at Porbandar in Criminal Appeal No, 6 of 1971. Respondents Nos. 1 to 4 were convicted in Criminal Case No. 846 of 1969 by the learned Judicial Magistrate. First Class. Porbandar. Respondent No. 1 was convicted of an offence punish-able under Section 494 of the Indian Penal Code and respondents Nos. 2 to 4 were convicted of an offence punishable under Section 494 read with Section 114 of the Indian Penal Code. Respondent No. 1 was sentenced to suffer one month's rigorous imprisonment and to pay a fine of Rs. 200/- and in default of payment of fine to undergo one week's further rigorous imprisonment. Respondents Nos. 2 to 4 were sentenced to suffer one day's rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to undergo seven days' further rigorous imprisonment.
2. The admitted facts are that complainant Muktaben, who has died during the pendency of this appeal was the legally married wife of respondent No. 1. Their marriage had taken place according to Hindu religious rites and caste customs. There was some difference of opinion between them, which ultimately culminated in filing of Civil Suit No. 180 of 1965 by respondent No. 1 against Muktaben for restitution of conjugal rights. A consent decree for restitution of conjugal rights came to be passed against Muktaben. On 9-12-19.67, respondent No. 1 filed Civil Suit No. 392 of 1967 for a decree of divorce on the ground that Muktaben had not complied with the decree for restitution for a period over two years. That suit was challenged. Ultimately, a decree for divorce came to be passed on merits in favour of respondent No. 1 on 20-9-1968. Muktaben preferred Regular Civil Appeal No. 34 of 1968 on 26-11-1968 against the trial Court's decree for divorce. That appeal came to be dismissed by the appellate Court on 10-4-1970. It was during the period of the pendency of that appeal, between 26-11-1968 and 10-4-1970, it is alleged by complainant Muktaben that respondent No. 1 performed second marriage with respondent No. 2 and respondents Nos. 3 and 4 who are the relations of respondent No. 2, abetted the commission of the aforesaid offence of bigamy, punishable under Section 494 of the Indian Penal Code. That marriage is alleged to have taken place on 13-5-1969. Admittedly, the parties are Hindus. They are of Lohana caste.
3. The learned trial Judge found that when marriage between complainant Muktaben and respondent No. 1 was subsisting, second marriage was contracted knowing fully well that there was a valid subsisting marriage. He. therefore, passed the order of conviction and sentence, as said earlier.
4. The learned appellate Judge found that what was necessary to prove was not only a belief of the factum of the marriage. What was to be proved was that, but for the provisions of Section 17 of the Hindu Marriage Act, 1955. which declares such second marriage to be void, there was a valid marriage between respondent No. 1 and respondent No. 2. For the proof of such a marriage complainant must prove that the marriage was performed according to the Hindu rites and customs. Even if it was a case of second marriage, i. e. Natra marriage, it must be established that particular ceremonies were prescribed by the custom of the caste and there was such a long standing custom and as a matter of fact, those ceremonies were performed and consequently, a valid marriage had come into existence and that marriage would have been a. valid marriage, but for the provisions of Section 17 of the Hindu Marriage Act, 1955. On scrutiny of the evidence he found that such evidence was lacking. Mere registration of the marriage by the parties, i. e. respondents, at the caste organisation, where the practice was registration of such marriages of Lohana caste people, would not be sufficient. Even the admission made by one of these respondents, viz. respondent No. 2 Jasumati, in her statement recorded under Section 342 of the Criminal Procedure Code, that she married respondent No. 1 would not he sufficient. In support of his conclusion, he has referred to a few decisions of the Supreme Court.
5. The first question that was agitated before us on behalf of respondents Nos. 1 to 4, was that this appeal abates as the complainant who filed this appeal with special leave of the Court, has died during the pendency of this appeal. In our opinion, this submission is not well founded. Section 431 of the Criminal Procedure Code reads:
Every appeal under Section 411-A Sub-section (2), or Section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.
A plain reading of this section indicates that in case of an appeal filed under Section 417 of the Criminal Procedure Code, the appeal shall abate finally on the death of the accused. It does not state that such an appeal filed under Section 417 of the Criminal Procedure Code will abate on the death of the appellant, i. e. the complainant. The conclusion reached by us is clearly supported by the decision of the Supreme Court in Khedu Mohton v. State of Bihar : 1971CriLJ20 . At page 69. after referring to the provisions of Section 431 of the Criminal Procedure Code, it is observed:
From this section it is clear that an appeal under Section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. The argument that while introducing Sub-section (3) to Section. 417, Criminal P. C. the Parliament overlooked the provisions contained in Section 431, does not deserve consideration. The language of Section 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises.
The Supreme Court has in terms stated that the view taken by the Madras High Court in Thothan v. Murugan AIR 1958 Mad 624 : 1958 Cri LJ 1488 wherein the contrary view was taken, is clearly wrong. We, therefore, reject this submission made on behalf of respondents Nos. 1 to 4.
6. Coming now to the merits of the appeal, we find that, the learned appellate Judge has rightly made the observations referred to by us earlier. In Bhaurao v. State of Maharashtra : 1965CriLJ544 the Supreme Court has made the following material observations:
Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act : and (ii) at the date of such marriage, either party had a spouse living. The word 'solemnize' means in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form'. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore essential, for the purpose of Section 17 of the Act. that the marriage to which Section 494. I. P. C.. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.
7. In a later decision of the Supreme Court in Kanwal Ram v. The Himachal Pradesh Administration : 1966CriLJ472 the Supreme Court has observed:
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, therefore, in prosecution for offences under Sections 494/109, I. P. C., the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed the conviction of the accused persons on the statement of the alleged bridegroom that he had sexual relationship with the alleged bride and on admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified,'
8. In Smt. Priya Bala Khosh v. Suresh Chandra Ghosh AIR 1971 SC 1153 : 1971 Cri LJ 939 the Supreme Court has observed:
Proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough.
9. In view of these latest decisions of the Supreme Court, the appellate Court was quite justified in coming to the conclusion that mere proof of the fact that respondent No. 1 and respondent No. 4, a relation of respondent No. 2. who got this marriage registered at their caste organisation by payment of necessary fees, the receipt of which has been produced at Ex. 16, which indicates such registration, is not sufficient to prove that such marriage was contracted between the parties which could be termed as 'a valid marriage', but for the provisions of Section 17 of the Hindu Act, 1955. It is significant to note that Gopaldas Bavaji. Ex. 29 who is working with the said caste organisation, does not depose in terms that such a registration of marriage is the only formality to be gone through for such marriage in the community to which the parties belong. Evidence of Popatlal Vasanji Ex. 34, a relation of respondent No. 1. does not in terms state as to what are the ceremonies to be gone through for solemnizing such marriage in their community and also does not speak that Prabhudas Gor who had celebrated the marriage, performed those ceremonies for solemnizing such marriage. It is thus evident that there is no evidence led by the complainant who had no personal knowledge about the marriage in question that certain ceremonies were the ceremonies prescribed in this community for solemnizing the marriage and those ceremonies were performed in solemnizing the marriage in question. Mere statement made by respondent No. 2 Jasumati in her statement. Ex. 23, recorded under Section 342 of the Criminal Procedure Code, in an answer to the question, what she had to state about the evidence of Gopaldas Odhavji, was that on 13-5-1969. accused No. 1 re-married with accused No. 2 and there is Nondh of the same in Luhana Mahajan Vandi and also there are signatures of accused Nos. 1 and 4 in the said Nondh, Ex. 19, that it was true, would not be sufficient for the proof of solemnization of the marriage in question as required under law. It will be only an admission about her belief. That would not be sufficient as has been held by the Supreme Court in the aforesaid decisions. The learned appellate Judge has, therefore, rightly come to the conclusion that the complainant has not led sufficient evidence to prove that such a valid marriage had been solemnized. Consequently, therefore, he was quite right in coming to the conclusion that the offences in question are not established against any of respondents Nos. 1 to 4. The appeal, therefore, fails.
10. The appeal is dismissed confirming the order of acquittal passed in favour of respondents Nos. 1 to 4.