JUDGMENT : Das, J. - This is a complainant's appeal against an order of the Sub-divisional Magistrate, Rairakhol, acquitting the accused Respondent Abdhut Biswal of a charge u/s 494, Indian Penal Code. 2. Complainant is the first wife of the accused. Prosecution case is that during the subsistence of the 1st marriage, the accused married for the second time one Ahalya Dei sometime in April, 1962 and thus committed an offence u/s 494, Indian Penal Code. 3. The accused admitted his marriage with the complainant, but according to the caste custom he divorced her on account of her immoral character. He denied his marriage with Ahalya, but admitted that he held kept her as his mistress. 4. In support of the prosecution case several witnesses were examined including the complainant (p. w. 1). The defence also examined one witness (d w. 1) to proved the alleged divorce according to the decision of the caste-Punchayat. 5. The essential question, however, is whether the complainant was the legally married wife of the accused and the marriage is still subsisting and whether during the subsistence of the said marriage, the accused took Ahalya as his second wife. As already stated, the marriage of the complainant with the accused is admitted though the accused put forth the story of divorce. No satisfactory materials have been placed before the Court to come to a decision that the said marriage was met with a divorce according to the caste-custom of the accused. u/s 13 of the Hindu Marriage Act (XXV of 1955) specific provision has been made to obtain a divorce on proof of certain facts as mentioned therein. There is nothing to show that the parties had taken recourse to that section of the Hindu Law which undoubtedly governs them. Therefore the only question is whether the prosecution has proved the factum of second marriage of the accused with Ahalya. 6. P.W. 1 is the complainant herself. According to her she has not seen the second marriage of the accused with Ahalya and she got information of this from her father, P.W. 3. P.W. 3 on the other hand admitted that he had not seen the actual marriage and he learnt it from p.ws. 5 and 6 and one Chaudhury Kheti. This Choudhury Kheti has not been examined, P.W. 4 is the brother-in-law of P.W. 3. P.W. 3 on the other hand admitted that he had not seen the actual marriage and he learnt it from p.ws. 5 and 6 and one Chaudhury Kheti. This Choudhury Kheti has not been examined, P.W. 4 is the brother-in-law of P.W. 3. He also does not claim to have seen the marriage himself. In cross-examination he said that he heard about the marriage somewhere at Ranpur. P.W. 6, who claims to have attended the second marriage; admitted in cross-examination that he had not seen any of the ceremonies connected with the same. The evidence of these witnesses does not establish conclusively that the accused married Ahalya for the second time. P.W. 2 came forward to depose that he is the priest and got the accused marriage on both the occasions. According to him the girl belongs to village Podabharad. The witness was unable to say who is the priest of that village though he claimed to have seen the said priest when he attended the second marriage. Nothing appears from the evidence of this witness what exactly were the rites and ceremonies performed in the said marriage. He was also unable to say if he attended any other marriage subsequent to the second marriage of the accused. When asked about the date of the marriage he gave it as 24th of April and stated that he verified and remembered the particular date apprehending that he might be asked about it by the defence lawyer. According to him P.W. 1's brother is a sworn friend of his grandson. Thus, it cannot be doubted that he is a friendly and interested witness apart from that merits of his evidence. Reliance was also placed on the evidence of P.W. 7. According to him he saw the accused returning with his new bride Ahalya from his village Podabharada. This witness also deposed in the previous maintenance case filed by the complainant against the accused. The witness admitted that he did not state the fact that he saw the accused returning with his bride in his deposition in the said proceedings, nor in his initial statement at the stage of enquiry u/s 202, Code of Criminal Procedure when also he was examined as a, witness. The uniform omission of such a material statement by the witness in his previous deposition is sufficient by itself to discard his evidence in this case. 7. The uniform omission of such a material statement by the witness in his previous deposition is sufficient by itself to discard his evidence in this case. 7. The learned trial court considered it unsafe to accept the evidence of such witnesses in support of the story of marriage of the accused with Ahalya. So far as P.W. 2 is concerned, he considered him to be an abettor as he performed both the Marriages of the accused and at the time of the performance of the second marriage he did not take any steps to satisfy himself that the previous marriage was no longer in force and had resulted in a divorce. Thus, on the basis of this unsatisfactory evidence, the learned trial Court was justified in holding that the second marriage was not proved. 8. Mrs. Padhi, learned Counsel for the Appellant, drew my attention to Section 50 of the Evidence Act, and contended that even though the formalities in the second marriage had not been proved, still the Court may form an opinion on the relationship of the parties as expressed by their conduct and whether they were treated as man and wife by the members of the society. On this point, however, there is no evidence to show that they were treated as such by any of the members of the family of the accused or by other members of the society. That a part Section 50 of the Evidence Act is also subject to the proviso that such opinion shall not be sufficient to prove a marriage in prosecutions u/s 494, Indian Penal Code. In "this connection, reliance was placed on the evidence of P.W. 7 when he stated that he saw the accused returning with his new bride Ahalya. But I have already given the reasons for discarding the evidence of this witness. It was contended that when the accused himself admitted that he has kept Ahalya as his mistress that by itself is sufficient indication that he had his second marriage with Ahalya. But the mere keeping of a concubine or a mistress is not sufficient to attract the provisions of Section 494, Indian Penal Code, which has application to cases where an actual marriage is performed. This contention cannot therefore be accepted. 9. But the mere keeping of a concubine or a mistress is not sufficient to attract the provisions of Section 494, Indian Penal Code, which has application to cases where an actual marriage is performed. This contention cannot therefore be accepted. 9. It appears from the evidence that there was a previous proceeding under, Section 488, Code of Criminal Procedure at the instance of the present complainant and in the said proceeding the accused admitted to have married for the second time. An application was filed on behalf of the Appellant u/s 428, Code of Criminal Procedure accompanied by the deposition of the witness (the accused in the present case to show that he had married Ahalya for the second time. It appears from the certified copy that it was delivered to the party on 7-12-1962 at a time when the evidence was still being record at by the trial court. No satisfactory reason has been given as to why the complainant having a copy of the said deposition of the accused did not utilise the same at the proper stage in the trial court. If the same document is to be admitted here, it will necessarily prejudice the accused since he was not in a position to answer to the statement said to have been made by him in the aforesaid deposition, and it would unnecessarily result in remanding the case for a retrial. In a case reported in Ukka. Kolke v. State of Maharashtra AIR 1963 S.C. 153, their Lordships held that if the evidence led at the trial is deficient in important respects that is not a sufficient ground for ordering retrial. If the appellate court thinks that additional evidence is necessary in the interests of justice and for a just and proper decision of the case, the appellate court should, in stead of directing a retrial, exercise its powers u/s 428(1), Code of Criminal Procedure. In another case reported in Ramachandra Agarwalla v. State AIR 1951 Cal. 128 it was held that additional evidence should only be admitted in exceptional cases and it should never be admitted and allowed merely to fill up gaps left by the prosecution authorities in the case. In the present case, necessary documents were in the hands of the complainant long before the close of the trial and when in fact the evidence was being recorded. In the present case, necessary documents were in the hands of the complainant long before the close of the trial and when in fact the evidence was being recorded. I do not think any exceptional ground has been made out to justify the admission of this document by way of additional evidence. In a Full Bench decision of the Calcutta High. Court reported in Emperor v. Pitamber Singh ILR Cal. 566 (F.B.), their Lordships held that where marriage is an ingredient of an offence as in bigamy, the fact of marriage must be strictly proved. In a case reported in Empress of India v. Kalu ILR 5 All 233, it was held that the marriage itself must be proved and admission of a party about such marriage is not enough. Thus even if the document is taken in as additional evidence, that would not prove the performance of marriage itself. 10. Similar application was also filed on behalf of the Respondent along with certain other documents to prove the previous admission of the complainant about her immoral character which was the cause of her divorce by the sanction of the caste Punchayat. But considering the view, I have taken above, I would also reject this application for the very same grounds stated above. I have already held that the Magistrate for good grounds has acquitted the Respondent. No doubt this Court has full powers to go into the question of fact, but it has to be borne in mind that the presumption of innocence of an accused is reinforced by an order of acquittal. I do not also think that the findings of the learned Magistrate is in any way unreasonable. In the result, the order of acquittal is maintained and the appeal dismissed. Final Result : Dismissed