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2006 DIGILAW 211 (JK)

Nirmal Sharma v. Sham Lal

2006-09-29

MANSOOR AHMAD MIR

body2006
1. This Criminal Acquittal Appeal is directed against the judgment /order dated 17.7.2000 passed by the learned Sessions Judge Jammu in File No.252/Sessions titled as Smt Nirmala Sharma vs. Sham Lal & Ors. (Complaint under sections 494/109 RPC) whereby and where under complaint came to be dismissed and accused came to be acquitted, which shall be hereinafter referred as impugned judgment. 2. Briefly put the case of the prosecution-complainant-appellant is as follows:- Complainant Smt. Nirmal Sharma claimed that she had contracted marriage with accused Sham Lal as far as back as on 14.7.1980 and thereafter lived with the accused-rrespondent No 1 in his house. They have one son out of their wedlock. In the months of May and June 1995 accused-respondents No. 1 to 3 started beating her and ultimately turned her out of residence of accused No.1 alongwith her son, namely Master Milap Sharma and is residing with her sister. Accused-respondent No.1 Sham Lal has contracted 2nd marriage with Smt. Rama Sharma accused-respondent No.4 on 2.7.1995 without knowledge and consent of the complainant-appellant. The other accused-respondents abetted accused-respondents No. 1 and 4. 3. Complaint came to be filed before Chief Judicial Magistrate, Jammu who after taking cognizance issued process and committed the complaint to the trial court i.e. Sessions Court, Jammu. The learned Sessions Judge after hearing the arguments framed charge against accused Respondents No. 1 to 6 and discharged the accused-respondents No. 7 to 12 vide order dated 27.7.1996. 4. Complainant-appellant examined PWs Vishwa Mitter, Sham Lal, Girdhari Lal and Prem Sharma as her witnesses and also her statement was recorded. Feeling aggrieved of the impugned judgment the complainant/appellant has preferred this appeal. It is profitable to give brief resume of the prosecution evidence herein. 5. PW Vishwa Mitter stated that complainant married with accused Sham Lal in the year 1980. Accused respondent No.1 had filed a suit for divorce against the complainant-appellant which was withdrawn. Accused Sham Lal had contracted second marriage in the year 1995 but he has specifically stated that he does not know which Pandit had performed the marriage of complainant in the year 1980 and the second marriage had not taken place in his presence. Respondent-1 Sham Lal is husband of the complainant. They got married in the month of October 1980. He had participated in the marriage ceremony. Respondent-1 Sham Lal is husband of the complainant. They got married in the month of October 1980. He had participated in the marriage ceremony. Accused Sham Lal has contacted 2nd marriage with Smt. Rama Sharma accused-respondent No.4, but he was informed about it by some woman whose name he does not know. 6. PW Girdhari Lal has stated that complainant was married to accused Sham Lal in the year 1980 in the month of July at New Plot, Jammu and they have a child out of the wedlock. In the year 1995 accused Sham Lal contracted second marriage. He came to know about the second marriage on 3.7.1995 when Sham Lal had come to his shop and told him that he had contracted second marriage. 7. PW Prem Sharma has deposed that complainant is his mothers sister and that she had married with the accused Sham Lal and a son was born to them out of their wedlock. She lived with accused Sham Lal till 1995. The complainant was turned out from the residence of accused No.1 in the month of June 1995. She had come to know that accused No. 1 had contracted second marriage with Smt. Rama Sharma accused respondent No.4. 8. Complainant-appellant has stated that she was married to accused No in the month of July 1980 and they lived together till 1995 and thereafter accused No. 1 turned her out of his house after beating her. Accused Sham Lal has contracted 2nd marriage with Smt. Rama Sharma on 2.7.1995 and this marriage took place at Bhagwati Nagar and accused Rattan Lal and Madan Lal had arranged the second marriage and are responsible for the second marriage and the other accused Ram Lal, Sansaro Devi, Sham Lal, Vishnu Dutt, Madan Lal and Lajwanti had participated in the marriage with the common intention despite of the fact that they were knowing fully well that the complainant was married to accused No.1 and their marriage was subsisting at that point of time. She was told by some boys of her neighborhood about the second marriage of accused Sham Lal with accused Smt. Rama Sharma. Further she has stated that she was already married to one Ram Saran but claimed that she was divorced by the said Ram Saran and a divorce deed came to be executed. Ram Saran was alive when she contracted marriage with accused No.1. 9. Further she has stated that she was already married to one Ram Saran but claimed that she was divorced by the said Ram Saran and a divorce deed came to be executed. Ram Saran was alive when she contracted marriage with accused No.1. 9. This is the nutshell evidence on the file. It is profitable to notice herein section 494 Ranbir Penal Code (in short RPC):-- "494. 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 husband 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 if 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. 10. Keeping in view the mandate of above referred provisions of law the prosecution has to prove the following ingredients:-- (i) that the accused had gone through form of 2nd marriage which is recognized by law, that means that 2nd marriage must be complete and binding; (ii) that the accused must now that at the time when he contacted second marriage, the first spouse was still living and the first marriage was subsisting. (iii) Both the marriages must be proved as a fact. 11. While going through the evidence of the prosecution it is crystal clear that none of the witnesses has deposed that second marriage was performed in their presence and all the ceremonies were performed and marriage was in accordance with law. (iii) Both the marriages must be proved as a fact. 11. While going through the evidence of the prosecution it is crystal clear that none of the witnesses has deposed that second marriage was performed in their presence and all the ceremonies were performed and marriage was in accordance with law. The argument of learned counsel for the appellant that the impugned judgment is illegal because accused had made admission is devoid of any force for the reason that admission made by the parties will not be sufficient to prove the existence of marriage as contemplated by section 494 RPC and even presumption cannot be drawn in terms of section 50 of Evidence Act. The prosecution-complainant was under legal obligation to prove that second marriage was not void in terms of provisions of Hindu Marriage Act and necessary ceremonies in terms of mandate of Hindu Marriage Act were actually performed. 12. As per the evidence, complainant was married to one Ram Saran. But complainant stated that marriage had come to an end by mutual divorce. Whether the mutual divorce was recognized by law has not been proved by the complainant. The trial court has rightly held that complainant has failed to prove that she was divorced by Ram Saran and even had not produced divorce deed which she claimed to have been executed by Ram Saran. 13. In the given circumstances, prosecution has failed to prove that the alleged second marriage in between Accused Sham Lal and Smt. Rama Sharma was performed and was valid one and came to be performed strictly according to law governing the parties. The apex court in case titled as Lingari Obulamma v. L. Venkata Reddy & Ors. (AIR 1979 SC 848) held as under:-- "...In our opinion when the witness has frankly admitted that he does not know the custom of the accused he was incompetent to depose about the existence of any custom in the family of accused. It is well settled that before conviction can be recorded under section 494 the following ingredients be proved:-- (1) That the complainant had married to the accused; (2) That the accused contract second marriage while the first marriage was still subsisting; (3) That both the marriages are valid and strictly according to law concerning the parties. 14. A Division Bench of this court in case titled as Phankari & Ors. Vs. 14. A Division Bench of this court in case titled as Phankari & Ors. Vs. State (1965 KLJ 125) held that it is the duty of the prosecution to prove that 2nd marriage was valid and was recognized by law and came to be performed after going through all the ceremonies. It is profitable to reproduce relevant portion as under:-- After a consideration of these authorities and the law on the subject we are clearly of the opinion that before an offence under section 494 RPC is proved, the following conditions must be proved affirmatively by the prosecution:-- (a) That the accused had gone through a form of second marriage which is recognized by law. In other words, the marriage must be complete and binding in so far as the essential ceremonies have been performed. It may not be necessary for the prosecution to prove further that the marriage was in fact legal. (b) That the accused must know that at the time when he contracted the second marriage, the first spouse was still living and first marriage was subsisting. (c) Both the marriages must be proved as a fact. (d) That the marriage of the husband or the wife or the admission made by the parties or any presumption under Section 50 of the Evidence Act will not be sufficient to prove the existence of marriage contemplated by Section 494 RPC. (e) Where a person is prosecuted for having contracted a second marriage which is void under the provisions of Hindu Marriage, it must prove at least that the necessary ceremonies mentioned in Section 7 of the Hindu Marriage Act have been actually performed. 15. Applying these tests to the facts of the present case, we find that there is no evidence to prove that any ceremonies essential to the marriage of the petitioner No.1 Phankari with Mst. Surmun were actually performed. In this view of the matter, the marriage was not a complete marriage much less a valid marriage. 16. The apex court further in case titled as Santi Deb Berma v. Smt. Kanchan Prava Devi (AIR 1991 SC 816) held as under:-- "The High Court in the instant case has drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. 16. The apex court further in case titled as Santi Deb Berma v. Smt. Kanchan Prava Devi (AIR 1991 SC 816) held as under:-- "The High Court in the instant case has drawn an inference that all the ceremonies essential for a valid marriage had been performed on the strength of the three letters and the oral evidence as aforementioned. We, after going through the judgment of the High court very carefully are of the opinion that the High Court is not at all justified in drowsing such an inference in the absence of any reliable and acceptable evidence, in regard to the performance of Saptapadi. The result will be that the alleged marriage between the appellant and Namita Ghosh, celebrated in defiance of the law applicable to the parties is held to be a marriage not valid in law. Hence the judgment of the High Court is not sustainable and consequently we allow the appeal by setting aside the conviction and sentence awarded by the High court and acquit the appellant. 17. The apex court in case titled as Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh, (AIR 1971 SC 1153) held that proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough. It is profitable to reproduce relevant portions of paras 16 and 18 of the judgment as under:-- "...16. The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties. 18. It was contended that an admission made by the accused regarding the second marriage is conclusive of the fact of a second marriage having taken place and that without any other evidence a conviction could be based on such admission. This Court rejected the said contention stating: "....it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. This Court rejected the said contention stating: "....it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved: Empress v. Pitambur singh, (1880) ILR 5 Cal 566 (FB), Empress v. Kallu,(1882) ILR 5 All 233, Archbold Criminal Pleading Evidence and Practice (35th Ed. Article 3796). In Kallus case (1882) ILR 5 All 233 and in Morris v. Miller, (1767) 4 Burr 2057 = 98 ER 73, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case...." 18. This court in case titled as Mst. Hanifa Begum vs. State through Pirzada Ab.Kabir S.L.J. 1980 J&K (NOHC) 168 held that if the first marriage is not valid, second marriage cannot be said to be a bigamy. It is profitable to reproduce relevant para as under:-- "In disagreement with the trial court I hold that the marriage with the complainant took place within the period of Iddat. The learned Government Advocate did not argue that if the marriage took place within the period of Iddat even then under the circumstances a criminal charge could be brought on the basis that the marriage was only irregular and not really void I need not therefore, discuss this question whether the marriage was irregular or void. In the result I set aside the conviction and sentence and order that the woman shall be released. Her bail bond shall be cancelled. The fine, if any, recovered, shall be refunded." 19. Applying the test in the instant case the prosecution has failed to prove that the alleged second marriage came to be performed in terms of Hindu Marriage Act and was recognized by law . All the ingredients which are required to be proved in order to bring guilt punishable under section 494/109 RPC home to the accused are lacking. Thus the trial court has rightly dismissed the complaint. 20. All the ingredients which are required to be proved in order to bring guilt punishable under section 494/109 RPC home to the accused are lacking. Thus the trial court has rightly dismissed the complaint. 20. The second argument of learned counsel for the appellant that trial court has committed an error while recording acquittal in terms of section 273 of Cr.P.C. without asking the accused to enter on his defence in terms of sections 273 and 274 of the Code, is also devoid of force for the following reasons. It is profitable to reproduce sections 273 and 274 of the Code herein:- "273. Acquittal.. If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. 274. Entering upon defence...(1) Where the accused is not acquitted under section 273, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the produce of any document or thing the Judge shall issue such process unless he considers for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." 21. This provisions of law mandates that the Sessions court can record acquittal after recording the evidence of prosecution, hearing the prosecution and defence. If the trial court is of the opinion that accused could be acquitted at this stage, there is no need to ask the accused to enter upon the defence. 22. In the given circumstances I am of the considered view that there was no need to ask the accused to enter upon the defence in terms of section 273 read with section 274 of the Code. Having glance of the above discussion, the appeal fails and the impugned judgment is upheld. The accused respondents are discharged from their bail bonds.