JUDGMENT : R.N. Biswal, J. - This appeal is directed against the judgment and order dtd. 30.10.1989 passed by learned Sessions Judge, Ganjam, Berhampur wherein he allowed the appeal and set aside the judgment and order of conviction passed by the learned J.M.F.C, Chhatrapur in I.C.C. No. 26 of 1982 (T.R. No. 143/89). 2. Succinctly stated, the case of the prosecution is that Appellant married Respondent No. 1 in the year 1978 in accordance with Hindu rites and their caste custom. While the marriage was in subsistence, Respondent No. 1 married Susila in February, 1982. So, the Appellant filed I.C.C. Case No. 26/1982 before the learned S.D.J.M., Chhatrapur against Respondent No. 1, Susila the second wife and their fathers on accusation of commission of offence under Sections 494 and 494/109 of I.P.C. Respondent No. 1 admitted that Appellant was his first wife and after she was divorced in a Punch in accordance with their caste custom, he married Susila for the second time. In order to establish her case, Appellant examined 4 witnesses including herself as P.W.1, whereas Respondent No. 1 examined 3 witnesses, including himself to prove the divorce. After assessing the evidence on record, the trial Court while acquitting three other accused persons convicted the Respondent alone of the offence u/s 494 of IPC, holding inter alia that Respondent No. 1 admitted the marriage with Susila during the life time of the Appellant and accordingly sentenced him there under to undergo imprisonment for two years. Being dissatisfied with the said judgment and order of conviction, Respondent No. 1 preferred Criminal Appeal No. 41 of 1989 before the learned Sessions Judge, Ganjam, Berhampur who after hearing the counsel of both sides allowed the appeal and set aside the judgment and order of conviction holding that even though the deed of divorce was not signed by Appellant and Respondent No. 1, still then the latter being under the impression that the divorce was lawful he married for the second time, as such he had no mens rea and that performance of the essential ceremonies of a valid Hindu marriage was not proved by the prosecution. 3. Calling in question the said order of acquittal, the present Appeal has been filed. 3. Calling in question the said order of acquittal, the present Appeal has been filed. Learned Counsel appearing for the Appellant submits that when the Respondent No. 1 admitted to have married Susila for the second time during the life time of his first wife (Appellant), the Appellate Court ought not have held that the second marriage was not proved since admission is not required to be proved. Per contra learned Counsel appearing for the Respondent No. 1 submits that burden lies on the prosecution to prove that both the marriages were performed in accordance with the Hindu rites and as per the caste custom of the parties to the marriage. In support of his submission, he relied on the decision Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, wherein it has been hold that proof of solemnization of second marriage in accordance with essential religious rites applicable to the parties is a must to attract the offence u/s 494 of IPC. Mere admission of the accused that he contracted second marriage during the life time of his first wife is not enough. In the case at hand, the Appellant was examined as P.W.1. During her cross-examination, she admitted to have not seen the second marriage. Even though P.W.2 in his examination in chief stated that he saw the marriage of Respondent No. 1 with Susila, during the cross-examination after charge, he denied to have seen it. According to P.W.3, he was requested by the Respondent No. 1 to perform his second marriage, but he refused to do that. The evidence of P.W.4 is silent with regard to the second marriage of Respondent No. 1. So practically, there is no evidence from the side of the prosecution with regard to the performance of the essential ceremonies in the second marriage. So even though, Respondent No. 1 admitted that he married Susila during the life time of Appellant, still then it cannot be presumed that the essential ceremonies were performed in the said marriage as held by the apex Court in the decision Smt Priyabala Ghosh (supra). Moreover, D.W.1 (Respondent No. 1) deposed that he married Ahalya (Appellant) during his childhood and after attaining the age of discretion as he could not pull on well with her he convened a meeting of the Bhadralok of both the Kulas where it was decided that the Respondent No. 1 would give Rs. Moreover, D.W.1 (Respondent No. 1) deposed that he married Ahalya (Appellant) during his childhood and after attaining the age of discretion as he could not pull on well with her he convened a meeting of the Bhadralok of both the Kulas where it was decided that the Respondent No. 1 would give Rs. 501/- to the Appellant and return all her articles and the marriage would be dissolved. Accordingly Respondent No. 1 paid her Rs. 501/- and returned all her articles. D.Ws.2 and 3 corroborated the evidence of D.W.1 in this regard. D.W.1 proved Annexure-1, the divorce deed dated 21.4.1981 showing the marriage between the parties to have been dissolved. He further deposed that such divorce was prevalent in his caste and after divorce either of the parties is at liberty to marry again. As per the case of prosecution, the marriage between Respondent No. 1 and Susila was performed in the month of February, 1982 i.e. after Annexure-A was executed. Even if Annexure-A is not considered to be a valid one, because of absence of the signature of Appellant and Respondent No. 1 thereon, still then as it appears, Respondent No. 1 was under impression that the marriage between him and the Appellant was dissolved on 21.4.1981, whereafter he married for the second time. In that view also, the offence u/s 494 of IPC cannot be attracted against him since he had no mens rea, as rightly held by the lower Appellate Court. 4. Furthermore, the complaint case was filed 1982, the Respondent No. 1 faced the ordeal trial for 7 years when the judgment was pronounced. The present appeal is pending before the Court since last 18 years. At this stage, if the order of the lower Appellate Court is reversed and an order of conviction is recorded, there would be travesty of justice. Taking all these facts into consideration, I am of the view that it is not a fit case where the order passed by the lower Appellate Court should be interfered with. 5. In the result, the Criminal Appeal stands dismissed, the judgment and order of the lower Appellate Court is hereby confirmed and the Respondent No. 1 is discharged of his bail bonds. Final Result : Dismissed