B.C. Chakraborti, J.
1. On the complaint of the appellant a case being Case No. 13 of 1966 in the Court of the Judicial Magistrate, First Class, Purulia, was started against the accused respondent Ajit Banerjee alias Ajit Kumar Banerjee and several others under Sections 494/109 of the I.P.C. After the prosecution witnesses were examined in Chief, the learned Magistrate framed charge under Section 494 I.P.C. against the accused respondent and discharged the other accused persons.
2. The case of the complainant appellant, in brief, is as follows:-
The complainant and the accused opposite party respondent were married in Baisakh, 1361 B. S. Thereafter she lived with the accused respondent at her father-in-law's place for about 21/2 years and a daughter was born to her. Subsequently, she was driven out of her father-in-law's house on the failure of the mother of the complainant to give some more landed properties by way of dowry. It is also her case that the accused used to visit the complainant while she was staying with her mother up to Baisakh, 1372 B. S. Thereafter, the accused respondent contacted a second marriage with one Manorama, daughter of puma Chandra Chatterjee of Garh Jaipur in the district of Purulia. It is further her case that the accused respondent has been living with the said Manorama and a child has been born unto them.
3. The defence is one of complete denial of the prosecution case. In fact the accused appears to have denied even the marriage with the complainant appellant.
4. Five witnesses were examined for the prosecution, including the complainant herself. Besides the oral evidence, some documentary evidence in the shape of a letter written by the father-in-law of the complainant to her mother (Exhibit 1), a letter written by the accused opposite party respondent to the complainant herself (Exhibit 2) and three money order coupons (Exhibit 3 series) in the writting of the accused opposite party showing occasional remittance of money by the respondent to the complainant have also been proved. Of the five witnesses, P. W. 1 is the complainant herself, P. Ws. 2 and 3 sperk mainly, about the marriage between the complainant and the accused respondent, P. Ws. 4 and 5 are witnesses to the second marriage.
5. The learned Magistrate upon a consideration of the evidence on record found that the marriage between the complainant and the accused has been well established by the evidence and he further found that even though the evidence of P. W. 4 was a bit doubtful, yet the fact of marriage between the accused and Manorma has been proved by the witness of P. W. 5. Upon such findings the learned Magistrate found the accused guilty under Section 494, I.P.C. and convicted and sentenced him to suffer rigorous imprisonment for 2 years. He was further sentenced to pay a fine of Rs. 1,000/-.
6. On an appeal being preferred the learned Sessions Judge, Purulia, reversed the finding upon a view that neither the first marriage between the complainant and the accused nor the second marriage between the accused and Manorama has been proved. He observed that there was no evidence to indicate that the essential ceremonies necessary for a valid Hindu marriage were proved to have been performed, so far as the first marriage was concerned. In particular, he referred to the absence of any evidence as to the Homa being performed at the marriage; in regard to the second marriage he felt that since the learned Magistrate himself was disinclined-to place any reliance on the evidence of P. W. 4, he should not have on the sole testimony of P, W. 5 found that a valid marriage between the accused and Manorama was proved to have taken place. In such a view of the matter the learned trial Court allowed the appeal and set aside the order of conviction and sentence.
7. Being aggrieved, the complainant appellant filed the present appeal with the special leave under Section 378(4) of the Cr. P.C. 1973. (Vide Order dt. February 21, 1977). The application for special leave was filed beyond time and was accompanied by an application under Section 5, Limitation Act. A Rule was issued on the application under Section 5, Limitation Act and the accused respondent though served did not appear to oppose the Rule and the delay was accordingly condoned. The application under Section 378(4) of the Cr. P.C. was thereafter allowed and by a subsequent order the appeal was admitted for hearing.
8. Mr. Biman Kanti Basu appearing on behalf of the complainant appellant argued that there is enough evidence on record to indicate that there was a valid marriage performed between the complainant and the accused and also that there is sufficient evidence to show that the accused thereafter contacted a second marriage and has now been living with his second wife. Incidentally, it may be stated that the accused respondent even after the admission of the appeal and service of notice thereof did not appear to contest the appeal.
9. P. W. 1 is the complainant herself She says that she was married with the accused on the 4th Baisakh, 1361 B. S. Her uncle did the Sampradan ceremony. He is now dead. It is also her evidence that ceremonies like Kusundika, Saptapadi and Sindurdan were performed. She has said that after the marriage she lived in her husband's house for 21/2 years. a document was executed in favour of her father-in-law in respect of three bighas of land. The father-in-law asked for more which the mother of the complainant was unable to satisfy. As a result, she was driven out of the house. She says that she has a, daughter and that her husband used to visit her mother's place up to Baisakh, 1372 B. S. Her further evidence is that her husband viz. the accused married Manorama on the 21st Jaistha, 1372 B. S. at Garh Jaipur and has been living with her. She has proved a letter (Exh. 1) written by her father-in-law to her mother, a letter (Exhibit 2) written by the accused to her and some M.O. coupons (Exhibit 3 series) indicating remittance of money to her by the accused husband. In cross-examination there was no suggestion that the complainant never lived in the house of the accused or that a child was born to her by the accused. It was also not disputed that at the time of ceremony of marriage as alleged by the complainant Kusundika, Saptapadi etc. were performed. There was, however, a bald suggestion that there was no marriage between them.
10. The next witness is p. W. 2 Dilip Kumar Chatterjee who is a co-villager of the complainant and also his evidence is that the marriage between the complainant and Ajit took place according to the Hindu rites in which the essential ceremonies were performed. He says that P. W. 1 lived with her husband in her father-in-law's house and she has a daughter. It is also his evidence that he learnt from the accused himself that he had married again for the second time at Garh Jaipur in the District of Purulia and has got a child by the seccond wife.
11. P. W. 3 Baidyanath Banerjee is another witness to the first marriage between the complainant and the accused. He also says that he heard from the accused himself about the second marriage. He saw the wife (second wife) and their child.
12. P. W. 4 claims to have attended the second marriage of the accused at Garh Jaipur on the invitation of one Rabindra Nath Chatterjee, a brother of Manorama. He came to know Rabindra Nath Chatterjee as he was a medical practitioner in the village where they reside in the District of Murshidabad. In cross-examination he was questioned at length as to the journey required for going from his village to the village namely, Garh Jaipur where the marriage allegedly took place. So far as that is concerned, he seems to have passed the test creditably but the learned Magistrate wag disinclined to place any reliance on him on the ground that this witness being admittedly aged about 57/58 years could not possibly be invited by Rabindra Nath Chatterjee who was aged only 27/28 years. A friendship between the persons of these two age groups may certainly appear to be unusual and one may reasonably doubt whether P. W. 4 could at all have been invited. But then there is evidence of P. W. 5 Mahadeb Mookerjee who is a resident of Garh Jaipur, He is a Brahmin by caste and he claims that he was invited by Purna Chandra Chatterjee, father of Manorama, to attend the marriage. In regard to this marriage, the evidence of P. W. 5 is also that the essential ceremonies viz. Saptapadi and Homa were performed.
13. Exhibits 1 and 2 have been proved by P.W. 1 to have been written by her father-in-law and her husband respectively. We find no reasons to disbelieve her testimony on the point. In fact, the learned trial Court and the Sessions Judge also did not disbelieve the authenticity of these documents. These two letters clearly indicate that the father-in-law of the complainant was demanding for more lands and the accused was also after some more properties from his mother-in-law. In the context of these letters the evidence of P. W. 1 that she was driven out of the house seems quite consistent and probable and we find no reason to disbelieve the same.
14. The learned Sessions Judge disbelieved the first marriage as in his view there was no evidence of the performance of the essential rites, namely, Homa necessary for the purpose of a valid Hindu marriage. It is true that P. Ws. 1, 2 and 3 have not used the expression 'homa' but they have nevertheless said that Kusundika and Saptapadi were performed. We may refer to a decision of this Court in the case of Rabindra Nath Dutta v. State reported in : AIR1969Cal55 In this decision it has been held upon a reference to the word 'Kushandika' as defined in the well-known dictionary known as 'Chalantika' to mean a ceremony connected with the nuptial homa. Kusundika is associated with Homa and the performance of Kusundika implies that there was Homa. Therefore, even though the witnesses did not use the expression 'Homa', in the evidence their statement that Kusundika was performed is sufficient to indicate that the essential ceremony, namely, oblation to the sacred fire was performed.
15. So far as the second marriage is concerned, P. W. 5 has positively said that the Homa and Saptapadi were performed. These apart, there is the evidence coming from P. Ws. 1 to 3 that the complainant used to reside in the house of her father-in-law at least for 21/2 years, that a child was born to her by the wedlock and that the accused visited her at her mother's place up to Baisakh, 1372 B. S. Then again, the evidence of P. Ws, 2 and 3 also indicates that the accused has been living with the second wife at Calcutta and that a child has been born unto them. The evidence given by these witnesses on these points, in particular, were not challenged in cross-examination even though the veracity of the witness was sought to be questioned upon a reference to other point. Upon the evidence on record we are satisfied that there is clear evidence of marriage validly performed between the complainant and the accused and also of a second marriage between the accused and Manorama. This apart, we are further satisfied from the evidence that the accused and the complainant lived together as husband and wife for a considerable time at the house of the father-in-law of the complainant and that the accused is now living with Manorama at Calcutta who is being passed off as his second wife. There is the evidence of marriage ceremonies being performed and when the marriage is performed in fact there is a presumption of marriage in law. In the instant case, apart from the presumption, there is the evidence of the performance of the essential rites to constitute the marriage valid in law. Apart from the direct -evidence on the point, there is the evidence that the complainant and the accused lived together as husband and -wife and that the accused and Manorama are now living as husband and wife. Where the factum of celebration of some form of marriage is established the Court is justified in the circumstances of the case in raising a legal presumption of legal marriage arising out of long cohabitation and in the instant case there is evidence of cohabitation between the complainant and the accused as also 6f the accused and Manorama and there is further evidence that they have the reputation of being related as husband and wife. Such being the circumstances, we have no hesitation in coming to the conclusion that the marriage between the complainant and the accused has been established and further that the marriage between the accused and Manorama in 1372 B. S. has also been established. The evidence is strengthened by the legal presumption, referred to above. Presumption could be rebutted by materials on record but there are none. The presumption could again be rebutted by evidence affirmatively adduced by the accused to the contrary. In his examination under Section 342 of the Cr. P.C. the accused stated in answer to the question as to whether he intended to adduce any evidence he said that he would adduce evidence. Eventually, however, he preferred not to examine any witnesses or to adduce any evidence whatsoever. Such being the position, we are unable to agree with the findings of the learned Sessions Judge. We find the accused to have contacted the second marriage with Manorama while the first marriage between him and the complainant was still subsisting. This brings his case within the mischief of Section 494, I.P.C. The order of acquittal passes by the learned Sessions Judge therefore cannot be supported on the evidence on record and is accordingly set aside. The accused respondent is found guilty under Section 494, I.P.C. The order of conviction and sentence passed by the learned trial Magistrate is affirmed and the accused respondent is sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 1,000/-, in default to suffer further R. I. for 2 months.
16. The appeal is therefore allowed.
17. The learned Sub-divisional Judicial Magistrate of Purulia is directed to cause the accused respondent to be produced before him under arrest to serve out the remainder of the sentences of imprisonment imposed upon him.
18. Let the records be sent down to the court below at once.
J.N. Chaudhuri, J.