V.B. Raju, J.
1. The appellant was convicted of the offence of bigamy under Section 494 of the Indian Penal Code. The oral evidence led on behalf of the complainant, namely the evidence of Somalal was not relied on by the learned Magistrate. But he relied on two statements Articles C, and D. Article D was a statement made by the co-accused, namely, accused No. 2. The learned Magistrate thought that Article D was admissible under Section 32(5) of the Indian Evidence Act, because the co-accused was incapable of giving evidence in view of the provisions of Section 342 of the Cri. Pro. Code. Section 32 of the Evidence Act does not refer to such incapacity. The statement does not say that the mother, who made the statement, had special knowledge of the marriage.
2. The view taken by the learned Magistrate in considering Article D is, therefore, incorrect. Article D must be excluded from consideration. Article C is an affidavit of the woman Bai Babi. It is an affidavit, which admits the marriage of Bai Babi with accused No. 1 and supports the case of the prosecution for bigamy. But as held by the Supreme Court in Kanwal Ram v. H.P. Administration : 1966CriLJ472 , 'in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admissions of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. ' The admission of marriage by the woman herself would also not be sufficient. The appeal is, therefore, allowed and the conviction and sentence of the appellant are set aside.