Judgment :- 1. In a warrant case instituted otherwise than on police report five persons were prosecuted for an offence punishable under S.494 Indian Penal Code. Three of them were discharged under S.245 after recording evidence under S.244 Cr.P.C. Charge was framed under S 246 only against the man and woman who allegedly contracted the bigamous marriage. They too were subsequently acquitted under S 248 (1) on the finding that both marriages were not proved. Complainant challenges the acquittal. 2. There cannot be any dispute that both marriages must be proved in order to constitute an offence under S.494 Indian Penal Cede. It is essential that at the time of the second marriage the accused was already a married man or woman and the previous marriage must be legal and subsisting. For the Subsistence of the marriage it is essential that both husband and wife should be living. Death of one will automatically put an end to the marriage. Even by act of parties or by orders of a competent court or otherwise the relationship could be terminated. Without any of these contingencies happening the first marriage should be subsisting at the time of the second marriage. The first marriage and its subsistence must be such that the second marriage is void by reason of its taking place during the life of such husband or wife. Therefore it is essential that the first marriage must be a valid one capable of creating a legal marital relationship. 3. In cur country marriage is mostly a matter of solemnisation rather than being a contract. Whatever that be proof of observance of all the legal formalities or solemnisation in accordance with the customary rites and ceremonies recognised by law governing the parties or by custom obtaining in the community to which the parties belong is absolutely necessary. Then only a legal marital relationship will come into being capable of nullifying a second marriage during its subsistence. It is essential that a second marriage during the subsistence of the first marriage is not legally permissible also. Therefore the primary and essential factor to be established is that there was a legal and valid first marriage which was subsisting at the time of the second marriage. In the absence of a valid marriage there is no question of the second marriage being void solely by reason of the first alliance. 4. Therefore the primary and essential factor to be established is that there was a legal and valid first marriage which was subsisting at the time of the second marriage. In the absence of a valid marriage there is no question of the second marriage being void solely by reason of the first alliance. 4. It may be noticed that S.494 would come into play only if the second marriage becomes void by virtue of the fact that it had taken place in the lifetime of one of the spouses. The person whose first marriage is subsisting alone could be prosecuted for an offence under S.494. In this case the second respondent had admittedly no first marriage and she could have been prosecuted only for abetting the bigamous marriage. Just like most of the crimes bigamy also requires mensra even though the section does not speak of intention, knowledge, fraud or deceit. But in the absence of words dispensing with proof of mensra it should be held that the crime can be committed only intentionally or recklessly. He must be conscious of the fact that a legally wedded spouse whose marital relationship with him is subsisting and for that reason he cannot have a second marriage. But mens rea by itself will not be sufficient. There must be actus reas also. A mere wrong belief that there is a first marriage is not sufficient. There must be proof on the part of the complainant that the accused had gene through a form of legal marriage observing all the requisite formalities. When that is established and the other spouse is proved to be living, proof of subsistence of the marriage is only a formality and the evidence of the complainant to that effect may be sufficient. If the accused pleads that the marriage is not subsisting it may be for him to establish so. Legal presumption will be in favour of continuance unless otherwise established. 5. Admission of the accused that there was a first marriage or that the second marriage was also conducted will not exonerate the complainant from the burden of proving those marriages. If the accused pleads that the marriage is not subsisting it may be for him to establish so. Legal presumption will be in favour of continuance unless otherwise established. 5. Admission of the accused that there was a first marriage or that the second marriage was also conducted will not exonerate the complainant from the burden of proving those marriages. In a prosecution under S.494 I.P.C. and some other cases it is incumbent upon the complainant to establish that both marriages pleaded by him or her were solemnised in accordance with the customary rites and ceremonies prescribed either under law governing them or recognised by custom prevailing in their community. Decision cannot be on the basis of admission. If the first marriage is not legal there is no question of legal marital status arising and hence there is no question of the second marriage becoming void for that reason and the observance of such second marriage becoming an offence. Both the marriages must strictly be proved by legal evidence independent of any admission on the part of the husband or wife as the case may be. Even the presumption arising on the basis of opinion expressed by conduct under the first part of S.50 of the Evidence Act as to relationship is excluded by the proviso in proving a marriage in cases in which the relationship of husband and wife is in issue and marriage is an ingredient of an offence as in bigamy, adultery and enticing away of a married woman. 6. That is because both the marriages must be complete in se far as the essential ceremonies have been performed. But while legality and the consequent marital status on the basis of the first marriage has to be established it is not necessary to prove that the second marriage is legal even though observance of all the formalities will have to be proved. That is because the essence of the offence itself is the void nature of the second marriage which ought to have been legal and valid but for the relationship under the first marriage which alone is the reason for invalidating the second marriage. The conscious act of entering into a second marriage which would otherwise have been legal is necessary to constitute and complete the offence. Proof of observance of the ceremonies for the second marriage is also thus an integral part of the burden. The conscious act of entering into a second marriage which would otherwise have been legal is necessary to constitute and complete the offence. Proof of observance of the ceremonies for the second marriage is also thus an integral part of the burden. 7. Presumptions have no part in proof of criminality in bringing an offender to justice except as aid in appreciation of evidence. Proof beyond shadow of doubt by the prosecution is the cardinal rule of criminal jurisprudence which places the accused in an enviable position by permitting him to keep silent or raise alternative defences. Unless the ingredients of the offence are established there is no question of convicting a person. Mens rea by itself will not constitute an offence even though it is integral part of most of the crimes. Actus reas also must be there. A man or woman may go under the wrong impression or belief that he or see is the husband or wife of another and may have cohabitation under that wrong belief giving rise to birth of children also. On that wrong belief an admission also may be made. That is not what is required. What is necessary is strict proof of the solemnisation of a legal and valid first marriage after observing all ceremonies and the subsistence of that relationship while contracting the second marriage. The second marriage also must be proved by cogent evidence to be a reality with the observance of all necessary ceremonies with the knowledge of the subsistence of the first legal marriage. Then only be ingredients of the offence could be taken as established and the offence taken as proved. It is for the court to assess from the materials whether the two marriages were solemnised legally and net to decide those facts on mere admissions which may be wrong. 8. In this case the first marriage between the appellant and first respondent was on 26-9-1976 and the second marriage between respondents 1 and 2 was on 8-6-1980. In the first marriage there is a child aged 11. Both marriages are denied by respondents. First respondent filed O.P. 159 of 1980 before the District Court, Kozhikode against the appellant for restitution of conjugal rights. It is said that the petition was dismissed. Appellant obtained an order for maintenance against the first respondent under S.125 Cr. P.C. for herself and the child. These records were not produced. Both marriages are denied by respondents. First respondent filed O.P. 159 of 1980 before the District Court, Kozhikode against the appellant for restitution of conjugal rights. It is said that the petition was dismissed. Appellant obtained an order for maintenance against the first respondent under S.125 Cr. P.C. for herself and the child. These records were not produced. Bat in view of these facts she went under the wrong impression that her marriage is admitted and proof is not necessary. Therefore she satisfied herself with her bald statement that first respondent is her husband and no other evidence was adduced in proof of the first marriage. The Magistrate rightly found that the first marriage is not proved. 9. The evidence of the appellant as P.W.1 is not sufficient to prove the second marriage of which she has no direct knowledge. To prove the second marriage she examined P.Ws. 2 and 3. Both of them attended the marriage and they have spoken to the observance of the entire requisite formalities also. But without any acceptable reason the Magistrate eschewed their evidence. The evidence of P.W.2 was rejected simply on the basis of a suggestive question in cross examination that he is enemical. P.W. 3 was disbelieved on the ground that while the parties belong to the Ezhava community he is a scheduled caste and hence his presence is improbable and he is incompetent to swear regarding the requisite ceremonies. Both the approaches are wrong. 10. Cross examination is a weapon to impeach the credit of the opponents' witnesses. In such an attempt wild suggestions far from truth may sometimes be put forward. If every suggestion in cross examination is accepted as the basis to discredit a witness it will be impossible to accept the evidence of any witness. In this case the suggestion of enmity was denied by P.W. 2 and there is not even a slight probability of the suggestion being true. There is no evidence or even grounds for probabilising the defence suggestion. Even the accused did net say so while questioned under S.313. Every witness who gives evidence on oath is presumed to speak the truth unless otherwise shown or appears to the court on the basis of sufficient grounds supported by materials and reasons. Appreciation of evidence must be in a judicial way based on reasons. Even the accused did net say so while questioned under S.313. Every witness who gives evidence on oath is presumed to speak the truth unless otherwise shown or appears to the court on the basis of sufficient grounds supported by materials and reasons. Appreciation of evidence must be in a judicial way based on reasons. The magistrate was wrong in discarding the evidence of P.W. 2 which established the second marriage by observance of all the requisite ceremonies. 11. It is true that P.W. 3 belongs to the schedule caste and respondents are Ezhavas. He said that second respondent is the class-mate of his daughter and both were invitees. He also said that he attended the marriage with his daughter who also gave a wrist watch as present. There is nothing to disbelieve his version which also disclosed observance of all the necessary ceremonies. We are living in a cosmopolitan society. Invitation for or attendance in marriages are not restricted in our society within the narrow limits of kinship or caste. It is only common knowledge that invitations and attendance go beyond these limits and extend to various other fields including friendship and association. Especially in view of the cogent explanation given by P.W.3 it was too much on the part of the magistrate to improbabilise his presence for the marriage. We are not living in the olden days when caste and community operated as barricades preventing entry and even sight of human beings in prohibited places. Now we are living in a modern society where ail men are considered equals irrespective of caste or creed. It is unrealistic and absurd now to think that a man belonging to the scheduled caste cannot attend a marriage in another community. Equally it is absurd to presume without any basis that persons belonging to a particular community alone could know that are the ceremonies required for a valid marriage in that community. Such a knowledge is not taboo for others and such a presumption has no factual or legal basis. Further the question whether P.W. 3 is aware of the requisite ceremonies is immaterial. The question is only whether the ceremonies mentioned by him were actually observed and whether they are sufficient for a valid marriage. P.Ws. 2 and 3 agreed in all respects and what they spake will constitute the formalities for a valid marriages. Further the question whether P.W. 3 is aware of the requisite ceremonies is immaterial. The question is only whether the ceremonies mentioned by him were actually observed and whether they are sufficient for a valid marriage. P.Ws. 2 and 3 agreed in all respects and what they spake will constitute the formalities for a valid marriages. Both of them ought to have been believed and the second marriage ought to have been found to be a reality. But that question is only of academic importance became in the absence of proof of the first marriage the offence cannot be found. The acquittal must therefore stand and the criminal appeal is dismissed. Dismissed.