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2001 DIGILAW 394 (ORI)

GANGARAM GOUDA v. MUKTA GOUDUNI

2001-09-10

B.PANIGRAHI

body2001
JUDGMENT : B. Panigrahi, J. - This is an application for leave to appeal against the judgment of acquittal passed by the Judicial Magistrate First Class, Umerkote, in ICC Case No. 11/96 (Tr. No. 1219/96) under Sections 494/497/498/109, Indian Penal Code. 2. The complainant's case as revealed from the trial Court's judgment is as follows: The Petitioner who is the complainant had married opposite party No. 1 Mukta Gouduni in the year 1992 as per their caste custom. After a year of marriage when she became pregnant for seven months, her father gave some herbal medicine to terminate the pregnancy and ultimately a dead child was born. It is the further case that soon thereafter, the father of Mukta took her back to his house and during her stay in the parental house, she came in association with Dalu Gouda (opp, party No. 1). Mukta remained with Dalu Gouda as wife for a pretty long time and a female child was born to them. Since Mukta and Dalu had married during the subsistence of the first marriage, therefore, they were allegedly liable to be prosecuted u/s 494, Indian penal Code along with the other associates who conncived to have the said marriage arranged. 3. The trial Court on appraisal of evidence and relying upon the decisions of the Apex Court reported in AIR 1971 SC 1153 (Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh) and AIR 1965 SC 1964 (Bhaurao Shankar Lokhande and Anr. v. The State of Maharashtra and Anr. came to hold that since the complainant had significantly failed in proving the second marriage as a fact and also the essential ceremony constituting such marriage, the admission of the accused, if any, will not constitute such evidence and accordingly recorded an order of acquittal of the accused persons in the complaint case. 4. Learned Advocate appearing for the Petitioner has relied upon the evidence of the defence witnesses in proving the marriage of Mukta with Dalu. I have carefully gone through the evidence of the complainant as well as his witnesses. They have not uttered a single word about the marriage of Mukta with Dalu. Therefore, in this context the prosecution cannot rely upon the statement of the accused without itself proving the factum of second marriage. I have carefully gone through the evidence of the complainant as well as his witnesses. They have not uttered a single word about the marriage of Mukta with Dalu. Therefore, in this context the prosecution cannot rely upon the statement of the accused without itself proving the factum of second marriage. Added to it, it is also noticed that the complainant had in the meanwhile married with the daughter of Chaitan Gouda of village Aurmunda. If the Petitioner's marriage was subsisting, it is not understood how the complainant married the daughter of Chaitanya Gouda. But, however, it is unnecessary to go into that question in this application. Accordingly, I find that there is no ground to interfere with the order of acquittal passed by the Court below. 5. In the result, the prayer for leave to appeal is refused and the Criminal Misc. Case is dismissed order 'passed by the High Court of Delhi in Criminal Misc. (main) No. 1818 of 2000 and T.C. (Crt.) No. 1 of 2001, originally filed by J. Rajmohan Pillai before the High Court ofKerala would not survive at this stage and stand disposed of accordingly. 6. The trial Court to proceed with the matter in accordance with law.