JUDGMENT : ( 1. ) THIS is an appeal by the accused directed against the judgment of the Sessions Judge, Gwalior, dated 18-9-1971 in Sessions Trial No. 49 /71, whereby the appellant who was charged and tried for offences under sections 417, 493, 494 and 495, Indian Penal Code was convicted for offences under sections 417 and 495, Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and three years respectively (sentences to run concurrently ). ( 2. ) THE case was initiated on a private complaint filed by one M. John, daughter of K. C. Thomas, r/o Deogarh Kothi, P. S. Madhoganj (P. W. 1) (hereinafter referred to as the Complainant ). Briefly stated, the case of the prosecution was as follows: That the complainant who was employed as a nurse in the J. A. Group of Hospitals, Gwalior had developed intimacy with the appellant in the year 1965; that the appellant proposed to marry her, which she accepted subject to his converting himself to Christianity ; that the appellant converted to Christianity on 30-5-1966, the certificate whereof is ex. P-1, and thereafter married the complainant on 16-6-1966 in Kerala in the morethon Church, Venemony (District Chenganur); the entry relating to marriage is Ex. P/2; that at the time of this marriage the appellant was having a legally married wife named Suman, but he concealed this fact from the complainant and fraudulently and dishonestly induced the complainant to marry him by making a false representation that he was a bachelor. ( 3. ) THE appellant abjured the guilt, denied the marriage with the complainant; his plea was that the complainant, though she was unmarried, had conceived by someone due to which there was an apprehension of her services being terminated, the appellant on account of his friendship with the complainant, to save her services, allowed her to name him as her husband and accordingly. an entry was also got recorded in the marriage register of the church. The appellant also denied that at the time of the alleged marriage with the complainant his legally married wife was living. His plea in this regard was that his married wife Suman had died in the year 1962 and thereafter he had a keep whose name was also Suman ( 4. The appellant also denied that at the time of the alleged marriage with the complainant his legally married wife was living. His plea in this regard was that his married wife Suman had died in the year 1962 and thereafter he had a keep whose name was also Suman ( 4. ) THE trial Court has founded the conviction on the evidence of the complainant Smt. M John (P. W. 1), Smt. Munnidevi (P. W. 2), Prem Narayan sinha (P W. 5), Narayansingh (P. W. 6), Father P. J. Jacob (P. W 7) and father Neenam Omen (P W 8) ( 5. ) SHRI M. N. Pendharkar, learned counsel for the appellant has assailed the finding of the trial Court mainly on the question that the appellant had a legally married wife living at the time of his alleged marriage, but had concealed that fact and represented to the complainant that he had no living spouse. The learned counsel had also contended that on complainants own showing, the complainant and the appellant were having co-habitation even prior to their marriage on 16-6 1966 and as such no offence under section 417, Indian Penal code is made out. ( 6. ) THUS, in the present appeal, the central point for decision is whether the appellant was having a legally married wife living at the time of his alleged marriage with the complainant ( 7. ) BEFORE I proceed to dwell upon the evidence on this question, it would be useful to discuss the legal position as to what are the essential requirements to bring an act within the mischief of section 495, Indian Penal Code. For an intelligent understanding of it, the best beginning is to reproduce that section. ) BEFORE I proceed to dwell upon the evidence on this question, it would be useful to discuss the legal position as to what are the essential requirements to bring an act within the mischief of section 495, Indian Penal Code. For an intelligent understanding of it, the best beginning is to reproduce that section. It runs thus : - "whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine" From the language of the section it is evident that it has to be read along with section 494, Indian Penal Code and thus recourse shall have to be made to the required ingredients of section 494, Indian Penal Code which runs thus: - "marrying again during lifetime of husband or wife.-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 bus-band 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, is 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. " On a plain reading of section 494, Indian Penal Code it is dear that for prosecution for bigamy, the following ingredients should be established: - (i) That the accused was already married to some person; proof of actual marriage is always necessary ; (ii) That the husband or wife to whom the person was married, as the case may be, was alive on the date of the second marriage and proof thereto satisfactory to the Court must be adduced; (iii) That the accused married another person, proof of celebration of second marriage must be in the same manner as that of the first; and (iv) That the second marriage was void by reason of its taking place during the life time of the first spouse; ( 8. ) ON the question that at the time of the marriage of the appellant with the complainant he had a legally married wife living, I would like to set out the holdings of the trial Court which would facilitate to get a hang of the controversy on this question. "the prosecution, in support of the first marriage of the accused, have examined one narayansingh (P. W. 6), who has stated that the accused was his friend, and, he attended his marriage at Nagpur about 12-13 years back. He named the wife as Shrimati Suman. His evidence has been attacked by the defence on different counts, alleging that the witness is a liar, and he has come forward to stand as a witness due to the influence of Shri Ishwar-singh Rathore. The witness failed to give the full description of the ceremonies that had taken place at the time of the first marriage. But, this fact cannot be ignored that his evidence is supported by the documentary evidence of J. A. Group of Hospitals, Gwalior, as proved by the evidence of Shri Prem Narayan Singh (P W 5), an employee of the j. A. Group of Hospitals, Gwalior, who brought the service record of Late Shrimati Suman musalgaonkar. The witness stated that Late Shrimati Suman Musalgaonkar entered the service of the Hospital on 6-11 1967; and, she gave the name of her husband as Gopal Rao musalgaonkar, living at Musalgaonkar Bhawan, Baxi-ki-Goth, Gwalior. He proved this fact "that Smt. Suman Musalgaonkar died on 31-5-1971. This evidence corroborates and supports the evidence of Mariam John (P W. 1 ). The witness stated that Late Shrimati Suman Musalgaonkar entered the service of the Hospital on 6-11 1967; and, she gave the name of her husband as Gopal Rao musalgaonkar, living at Musalgaonkar Bhawan, Baxi-ki-Goth, Gwalior. He proved this fact "that Smt. Suman Musalgaonkar died on 31-5-1971. This evidence corroborates and supports the evidence of Mariam John (P W. 1 ). Munni Devi (P. W. 3) and Narayansingh (P. W. 6), that the accused had a first wife, named Suman living, with whom, he was married, and late Suman named the accused as her husband. " (Para. 22 of the judgment of the trial Court ). "**** ** In the instant case, the accused has admitted that he had a first wife, named suman, and, she died in the year 1962; and, after that, he did not contract any marriage. This statement is belied by the evidence of Mariam John and Munni Devi (P. Ws 1 and 2), as well as, by Father Ninnan Oman (P. W. 8), that the accused told these witnesses that he was a bachelor, and was not married at all. ****the accused failed to prove the death of his first wife in the year 1962. Hence, it is fully proved by the admission of the accused that the accused was married with one lady named Suman, who was his first wife. He failed to prove her death in the year 1962. As a matter of fact, Shrimati Suman died on 31-51971, which is proved by the evidence of Shri Prem Narayan Sinha (P. W. 5); and the record of the j. A. Group of Hospitals, Gwalior, also proves this fact; and, the accused has also partly admitted; but, he styles this lady as his keep, which is unbelievable, and there is no record to prove the same. Hence, by the admission of the accused, this fact is fully proved thai soman was his wife, with whom, he was previously married; and, during the lifetime of his wife, he contracted the second marriage with Mariam John, and lived as husband and wife at Gwalior. The first wife, Shrimati Suman died on 31-5-1971, and not as stated by the accused, in the year 1062. " (Extract from para 24 of the judgment of the trial Court ). ( 9. The first wife, Shrimati Suman died on 31-5-1971, and not as stated by the accused, in the year 1062. " (Extract from para 24 of the judgment of the trial Court ). ( 9. ) FROM the fore-quoted portion of the impugned judgment, it is borne out that the trial Court in its conclusion has found that the appellant was married to one Suman who was living at the time of the complainants marriage and was known as Suman Musalgaonkar and was also employed in J. A. Group of Hospitals, Gwalior and died on 31-5 1971. ( 10. ) IT would be pertinent to mention here that the complainant has in paragraph 20 of her statement admitted that she was the third wife of the appellant, and that his first wife was dead at the time of her marriage. To quote "yeh SAHI HAIN KI SUMAN DESHPANDE, MULJIM KI PAHILl BFBEE thi. WOH VYAHATA THl YA NAHIN MAIN NAHI KAHA SAKTI,woh mar GAIN. USKE BAD DUSRI BIBEE SUMAN MUSALGAONKAR thi, WOH ABHI HAL HI MAHINA DEDH MAH1na PAHILE MAR gain. MAIN MULAZIM KI TISRl BIBEE HUN. " In view of the fore-quoted evidence of the complainant herself, the matter is clincher! to the question whether the appellant had legally married Samara musalgaonkar, who died on 31-5-1971, prior to his marriage with the complainant. ( 11. ) I would now turn to discuss the evidence of Narayansingh (P. W. 6)who is the arch witness of the prosecution. He has stated that 12 to 13 years before the date of his statement, he used to go for learning tailoring work to ore S. M. Tailor, at that time he came in contact with the appellant at Ranjeet hotel and through him the appellant had got some clothes stitched; that the appellant had taken him to Nagpur in his marriage party where the appellant was married with one Kumari Suman. It would be extremely rash to swallow without demur the version of this witness, which appears to artificial. In the cross-examination, his claim of having gone in the marriage party of the appellant has been blown to smithereens. When this witness was asked about the broad details of the marriage, he attempted to hide behind the smoke screen of failing memory. He did not remember the approximate month or date or year of the marriage. In the cross-examination, his claim of having gone in the marriage party of the appellant has been blown to smithereens. When this witness was asked about the broad details of the marriage, he attempted to hide behind the smoke screen of failing memory. He did not remember the approximate month or date or year of the marriage. He did not remember whether the Pandit who performed the marriage was from Gwalior or from Nagpur, who else were the persons in the marriage party and how many of them belonged to the caste of the appellant. He has deposed that in the marriage party, there were only 10 to 12 persons. Had it been a fact that this witness had attended the marriage. it is not possible that he would not have remembered any of the facts asked to him, more so when the marriage party was so small. This witness was examined on 20-9-1971. His apparent age recorded in the statement is 29 years, so at the time of marriage he would have been a boy aged only about 15 to 16 years. Bearing the common course of human affairs in mind, it is difficult to believe that this boy who was a lad of about 15 or 16 years and on his own showing having a mere acquaintance with the appellant and not even his caste fellow would be taken in marriage party consisting of only 10 to 12 persons. His evidence does not inspire confidence at all- ( 12. ) ACCORDING to the fore-quoted statement of the complainant (in paragraph 10 of this judgment) and the plea of the appellant, it is a common ground that the second Suman either as married wife or as keep-was living with the appellant after the death of the first Suman and the case of the complainant is that at the time of her marriage with the appellant this second suman was the married wife of the appellant who was living. In the back drop of these facts it was essential for the prosecution to have clearly brought out in the evidence of Narayansingh (P. W. 6) whether he was a witness of the first or the alleged second marriage with second Suman. In the back drop of these facts it was essential for the prosecution to have clearly brought out in the evidence of Narayansingh (P. W. 6) whether he was a witness of the first or the alleged second marriage with second Suman. For want of this clarification in the statement of this witness, the prosecution cannot draw any benefit out of his evidence even assuming him to be a witness of truth albeit he has been held to be an unreliable witness herein above. The golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one which is favourable to the accused should be adopted. Relying on this cardinal principle in absence of any specific assertion in the statement of witness Narayansingh (P. W. 6) it should be taken to have reference to the first marriage. This conclusion is justifiable from the material on record also as would be presently indicated. ( 13. ) THIS witness appears to have been deposing about the marriage which took place prior to 12 to 13 years before his statement and the appellant has also in answer to Question No. 35 has stated that his marriage which was the only marriage according to him took place before 12 to 13 years, it can therefore, reasonably be inferred that the witness Narayansingh (P. W. 6) is the witness for the first marriage. ( 14. ) THE upshot of the aforesaid discussion of the evidence of Narayansingh (P. W. 6) is that the prosecution can draw no support from his evidence; more particularly when admittedly the first wife (Suman) of the appellant was dead at the time of complainants marriage with the appellant. ( 15. ) I would now turn to the discussion of the evidence of Narayan Sinha (P. W. 5 ). Narayan Sinha is an employee of J. A Group of Hospitals, in which the complainant and one deceased Suman known as Shrimati Suman Musalgaonkar was also employed. This witness, as it appears from his evidence and from the finding of the trial Court, was called to prove an alleged entry in the service book of the deceased Suman Musalgaonkar in J. A. Hospital, Gwalior, that she had got recorded the name of her husband as "gopalrao Anand Rao Musalgaonkar. This witness, as it appears from his evidence and from the finding of the trial Court, was called to prove an alleged entry in the service book of the deceased Suman Musalgaonkar in J. A. Hospital, Gwalior, that she had got recorded the name of her husband as "gopalrao Anand Rao Musalgaonkar. Admittedly, the original entry or its copy is not on record; nor it has been marked as an exhibit in the statement of this witness. This Court has not, therefore, the advantage to look into this entry. The learned counsel Shri J. P. Shrivastava for the State has also not during the course of his argument requested to call for this entry. This apart, this witness does not prove the alleged entry as he has in his cross-examination deposed that neither the said entry was made by him, nor was it made in his presence, not he has deposed that the entry was made in the handwriting of a person with whose handwriting he was acquainted and whom he knew was incharge to make the?e entries in the regular course of his official duty. He has only said that the service book bears the signature of shri N. B. Dandagi with whose signature he is acquainted. This witness has also deposed that he had no personal knowledge whether the deceased Suman musalgaonkar was the keep, or the legally wedded wife of the appellant. He states that in the application, it is written, "meri SHADI GWALIOR MEN hui THI". This application either in original or its copy, is also not on record. He does not prove the said application. It would be most unsafe to act upon a document which is not before the Court, the verbatim reproduction of its contents is also not before the Court and have also not been proved by legal evidence. Had it been proved that the deceased Suman Musalgaonkar made a statement that she was married to the appellant or she was his married wife, it would have been relevant under section 32 (5) of the Evidence Act to prove the fact in issue. As it has not been proved, no assistance can be taken from the evidence of this witness. As it has not been proved, no assistance can be taken from the evidence of this witness. It is true that the appellant has, in his statement under section 342 of the Code of Criminal Procedure (Old) in answer to question No. 34, stated that Suman Musalgaonkar was the keep of the appellant and used to consider him as her husband ; she had, therefore, got his name recorded as her husband in her service book. The question and answer are reproduced below: ( 16. ) A question, therefore, arises: "can the aforesaid answer be not treated to be an admission of the appellant that the deceased Suman Musalgaonkar had got his name recorded as her husband and that she was his married wife. " ( 17. ) IT cannot be gainsaid that for prosecution for bigamy, to succeed, prosecution must show first of all that at the time of second marriage, there was first valid subsisting marriage; where proof of either marriage is unsatisfactory, there ought to be no conviction. The cardinal principle that a person is presumed to be innocent until he is proved to be guilty equally applies to cases of bigamy with same rigour and strictness as it applies to other criminal cases and, therefore, the burden of proof is on the prosecution to prove all the ingredients to bring the case in the ken of the section. ( 18. ) AT this state, I would advert to the decision of their Lordships of the supreme Court in Kanwal Ram v. H. P. Administration (A I R 1966 SC 614.) and in Priya Bala v. Suresh Chandra (A I R 1971 SC 1153.) wherein it has been held that on non-proof of essential ceremonies of second marriage conviction for bigamy is unjustified. Admission of second marriage by accused is not evidence of it for the purposes of proving marriage in adultery or a bigamy case. Though the holding in these cases was with reference to second marriage, but the same would be true with regard to the first marriage, because till it is proved that there was a subsisting valid marriage at the time of the second marriage, no offence is made out. Though the holding in these cases was with reference to second marriage, but the same would be true with regard to the first marriage, because till it is proved that there was a subsisting valid marriage at the time of the second marriage, no offence is made out. Thus, in the instant case when the appellant has denied that he had married the one suman who was employed in J. A. Group of Hospitals and was known as suman Musalgaonkar, it was obligatory on the prosecution to prove the same. In his fore-quoted statement what the appellant has admitted cannot be treated to be the admission of his marriage with Suman Musalgaonkar who was employed in the J. A. Group of Hospitals. He has on the contrary denied the marriage and given his explanation for the alleged entry in the hospital record deposed to by Narayan Sinha (P. W. 5) that because she was his keep, his name was recorded as her husband. It may be mentioned here that the explanation is reasonable. It is not uncommon that a keep also calls her paramour as her husband. ( 19. ) THE next result of the foregoing discussion is that the fore-quoted statement of the appellant is no admission of his marriage with the deceased suman Musalgaonkar, who is hereinafter and at some places before also has been referred to as second Suman ; it is no proof of the statement of the deceased second Suman about her marriage with the appellant having been allegedly recorded in her service book of the J. A. Group of Hospitals, Gwalior, and even if it so, this admission by itself in the absence of any other evidence does not prove the solemnisation of marriage between her and the appellant. ( 20. ) NOW, I will deal with the evidence of Munnibai (P. W. 2) and the complainant M. John (P. W. 1 ). Munnibai (P. W. 2) has in paragraph 3 of her statement deposed that the second Suman was employed in the J. A. Group of Hospitals, Gwalior and she was the first married wife of the appellant and that this was told to her by second Suman. This part of her statement is belied by complainants own statement contained in paragraph 20 which has been reproduced in the judgment vide paragraph 10. This part of her statement is belied by complainants own statement contained in paragraph 20 which has been reproduced in the judgment vide paragraph 10. According to that, Suman who was serving in the J. A. Group of Hospitals was not the first wife of the appellant but the second one. The version given by this witness appears to be an invented one. This witness has deposed that second Suman was in service in the J. A. Group of Hospitals; she knew that the appellant used to visit the complainant and the complainant was to marry the appellant. In this setting of the circumstances, had the second Suman told this witness that she was the married wife of the appellant, she would have positively communicated that fact to the complainant before her marriage with the appellant. ( 21. ) IN view of what has been discussed above, it would be hazardous to rely on the testimony of Munnibai (P. W. 2 ). The statement of the complainant does not assist the prosecution as she has deposed to have derived her knowledge from Munnidevi (P. W. 2) and one Mansingh Rao Shinde. Munnidevi (P. W 2)as already observed is not reliable and Mansingh Rao Shinde has not been examined. Thus, there is no legal reliable evidence to prove that the second Suman was the legally married wife of the appellant. ( 22. ) IT would be evident from the holdings of the trial Court quoted in paragraph 8 of this judgment that the trial Court ignored from consideration the statement of the complainant contained in paragraph 20 of her statement reproduced in this judgment vide paragraph 10 and has confused the second suman with the first Suman and it is because of this confusion that it has found that Suman Musalgaonkar who was in the service of the J. A. Group of Hospitals and died on 31-5-1971, i e. during the trial of the case was the appellants first married wife. The discussion of the trial Court is most desultry. It is based on an improper scrutiny of the evidence on record, and on an erroneous assumption that the appellant has in part admitted the prosecution case. ( 23. The discussion of the trial Court is most desultry. It is based on an improper scrutiny of the evidence on record, and on an erroneous assumption that the appellant has in part admitted the prosecution case. ( 23. ) FROM the foregoing discussion of the evidence on record, it is apparent that the evidence on which the prosecution have staked its case is too shaky, suspicious and fragile to furnish a sound foundation for conviction. Even if it is assumed that there was no other Suman with whom the appellant was married and who died in 1962 as contended by the appellant, still the prosecution does not succeed. From the foregoing discussion of the prosecution evidence it is evident that the prosecution has failed to prove the solemnisation of the appellants marriage with any Suman, much less with one Suman who was serving in the J. A. Group of Hospitals, Gwalior and who died on 31-5-1971. ( 24. ) I would now turn to the discussion about the conviction of the appellant under section 417, Indian Penal Code. The charge against the appellant in this respect was that he represented to the complainant that he was unmarried when in fact he was already married and married the complainant and thus induced the complainant to have sexual intercourse with him and which act caused harm to the complainant in body, mind and reputation. ( 25. ) IT has already been found herein above that the prosecution has failed to prove that the appellant had a wife with whom his marriage was solemnised living at the time of his marriage with the complainant. It has also appeared in the prosecution evidence much so in the evidence of the complainant herself that the complainant was having intimacy with the appellant since 1965, i. e , earlier to her marriage and she had a sexual intercourse with him. It has also appeared in the prosecution evidence that suman Musalgaonkar alleged to be the married wife of the appellant, the complainant and the prosecution witness Munni Devi (P. W. 2) were all employed in the J. A. Group of Hospitals and known to each other. It has also appeared in the evidence of Munni Devi (P. W. 2) that she knew that the complainant and the appellant were contemplating to marry each other. It has also appeared in the evidence of Munni Devi (P. W. 2) that she knew that the complainant and the appellant were contemplating to marry each other. In these circumstances, I cannot persuade myself to believe that the complainant would not have known about appellants relation whatever with the deceased Suman Musalgaonkar. It cannot, therefore, be indubitably held that the offence against at the appellant is made out under section 417, Indian Penal code. ( 26. ) IN the result the appeal is allowed, the conviction and sentence of the appellant by the trial Court under sections 495, and 417, Indian Penal Code are set aside and the appellant is acquitted of the charges under sections 495 and 417, Indian Penal Code. Appeal allowed.