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2014 DIGILAW 278 (CHH)

Rajesh Boyra v. State of M. P.

2014-07-23

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth 'Cr.P.C.), applicant Rajesh Boyra has filed the instant revision questioning the judgment by which he stands convicted for offence under Section 494 of the Indian Penal Code, 1860 (henceforth 'IPC') and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500 with default sentence of simple imprisonment for one month. The core facts required for judging the correctness of the impugned judgment, are as under: 1.1 The prosecution case is that applicant Rajesh Boyra was married with Smt. Asha six years prior to the date of the offence. It is the further case of the prosecution that the applicant had solemnised second marriage with one Anshu daughter of Ghasiya and thereafter started harassing Smt. Asha by demanding dowry for which the father of Smt. Asha, namely, Janak Ram (PW-2) had convened a meeting of the community members to resolve the dispute, but it could not be settled leading to lodging of First Information Report (Ex. P-1) against applicant Rajesh and his mother Kusum for offence under Sections 498A and 494, IPC. 1.2 After investigation, statements of seven witnesses were recorded under Section 161, Cr.P.C. and thereafter a charge-sheet was filed in the jurisdictional criminal Court against the applicant for offence under Sections 498A and 494, IPC and his mother for offence under Section 498A, IPC. 1.3 The applicant and his mother did not accept the guilt and entered into defence by stating that the prosecution case is out and out false. 1.4 To bring home the offence against the applicant and his mother, the prosecution examined seven witnesses and brought on record and exhibited four documents. Whereas, the defence examined one witness but did not brought any document on record. 1.5 The trial Magistrate, upon appreciation of the oral and documentary evidence on record, convicted the applicant only for the offence under Section 494, IPC. Whereas the applicant and his mother were discharged from the offence under Section 498A, IPC. 1.6 Being dissatisfied with the judgment of conviction recorded and sentence awarded for the offence under Section 494, IPC, the applicant filed an appeal before the Court of Session. Whereas the applicant and his mother were discharged from the offence under Section 498A, IPC. 1.6 Being dissatisfied with the judgment of conviction recorded and sentence awarded for the offence under Section 494, IPC, the applicant filed an appeal before the Court of Session. By the impugned judgment, the learned Additional Sessions Judge dismissed the appeal affirming the findings recorded by the trial Magistrate finding the applicant guilty for the offence under Section 494, IPC. 1.7 Against the impugned judgment affirming the applicant's conviction and sentence for the offence under Section 494, IPC, the instant revision has been filed by him. 2. Shri Goutam Khetrapal, learned counsel appearing for the applicant would submit that the conviction of the applicant for the offence under Section 494, IPC is, absolutely illegal as the prosecution has miserably failed to prove the fact of second marriage of the applicant with Anshu strictly in accordance with Section 7 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955') and the prosecution has also failed to prove contravention of Section 17 of the Act, 1955 which relates to voidness of marriages. 3. Opposing the above submission, Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non-applicant would submit that the conviction recorded by the trial Court and affirmed by the appellate Court is based on the evidence available on record and, particularly, in view of the admission of the present applicant that he has entered into a second marriage in customary Churl form the judgment of conviction recorded and sentence awarded needs no interference by this Court in its revisional jurisdiction. 4. I have heard and considered the rival contentions raised on behalf of the parties and have perused the record with utmost circumspection. 5. In order to have comprehension of the challenge made to the judgment of conviction and sentence, it would be profitable to notice Section 494, IPC, which runs thus: "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." 6. A bare 'and close perusal of Section 494, IPC would reveal the following essential ingredients of the offence under Section 494, IPC: (i) The accused spouse must have contracted the first marriage, (ii) While the first marriage was subsisting, the spouse concerned must have contracted a second marriage, and (iii) Both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had duly been performed. 7. At this stage, it would be pertinent to mention that the offence under Section 494 IPC would be attracted only if the second marriage becomes void by reason that it had taken place during the subsistence of the first marriage and in the lifetime of one of the spouse. 8. At this stage, it is profitable to notice Section 17 of the Act, 1955, which reads thus: "17. Punishment of bigamy.--Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly." 9. Section 17 of the Act, 1955 clearly provides that the second marriage must be according to ceremonies required by law and if the marriage is void, its voidness will only lead to the consequence from such marriage. Section 17 of the Act, 1955 clearly provides that the second marriage must be according to ceremonies required by law and if the marriage is void, its voidness will only lead to the consequence from such marriage. The combined effect of Section 17 of the Act, 1955 and Section 494, IPC has been considered by their Lordships of the Supreme Court in Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another, AIR 1965 SC 1564 , and has been held as under: "4...... Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Ss. 494 and 495, I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of S. 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be 'solemnized', that marriage will not be void by virtue of S. 17 of the Act and S. 494, I.P.C. will not apply to such parties to the marriage as had a spouse living. 5. The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore, essential, for the purpose of S. 17 of the Act, that the marriage to which S. 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom." 10. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom." 10. Thereafter, in Kanwal Ram and others v. The Himachal Pradesh Administration, AIR 1966 SC 614 , their Lordships of the Supreme Court clearly held that the essential ceremonies of the second marriage must be constituted and proved and admission of the marriage by the accused is not an evidence of it for the purpose of proving the marriage, and held as under: "7. The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was other evidence which would prove the second marriage. He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner relied on a statement filed by Kubja, Hira Nand and Hiroo in answer to an application for restitution of conjugal rights filed by Sadh Ram against Kubja and others, in which it was stated that Kubja married Kanwal Ram after her marriage with Sadh Ram had been dissolved. Now the statement admitting the second marriage by these persons is certainly not evidence of the marriage so far as Kanwal Ram and Seesia are concerned; they did not make it. Nor do we think, it is evidence of the marriage even as against Kubja. First, treated as an admission, the entire document has to be read as a whole and that would prove the dissolution of the first marriage of Kubja which would make the second marriage innocent. Secondly, 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, ILR 5 Cal 566 (FB); Empress of India v. Kallu, ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art. 3796. 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, ILR 5 Cal 566 (FB); Empress of India v. Kallu, ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art. 3796. In Kallu's case, 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: see also Archbold, Criminal Pleading Evidence and Practice 35th Ed.) Art. 3781. We are unable, therefore, to think that the written statement of Kubja affords any assistance towards proving her marriage with Kanwal Ram." 11. In Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971 (1) SCC 864 : ( AIR 1971 SC 1153 ), their Lordships of the Supreme Court clearly held that it is essential that the second marriage should have been celebrated with proper ceremonies and in due form and the prosecution has to prove that the alleged second marriage has been duly performed in accordance with religious rites available to the form of marriage gone through by the parties and the admission of the accused cannot be in law treated as an evidence of the second marriage having been taken place. It has been held as under: "16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties," it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494, I.P.C. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. 17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. 17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. At page 615 dealing with the essential ceremonies which have to be performed for a valid marriage, this Court on the evidence held that the prosecution had neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been performed in accordance with the requirement of Section 7 of the Act. 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 the marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties. 23. Further, as pointed out by this Court in Kanwal Ram's case ( AIR 1966 SC 614 ) (supra) the admission in Ex. 2 cannot in law be treated as evidence of the second marriage having taken place, in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies." 12. Thereafter,' their Lordships of the Supreme Court, following the decision of Bhaurao Shankar case ( AIR 1965 SC 1564 ) (supra), Kanwal Ram case ( AIR 1966 SC 614 ) (supra) and Smt. Priya Bala case ( AIR 1971 SC 1153 ) (supra) in Gopal Lal v. State of Rajasthan (1979) 2 SCC 170 : ( AIR 1979 SC 713 ), clearly held that where a spouse contracts a second marriage while the first marriage subsists, the spouse will be held guilty of bigamy under Section 494, IPC if it is proved in the sense that the necessary ceremony, required by law or custom, has been actually performed. In Laxmi Devi (Smt.) v. Satya Narayan and others (1994) 5 SCC 545 : (1994 AIR SCW 3408) also, their Lordships of the Supreme Court held that in the absence of proof of such a ceremony, the factum of second marriage cannot be held to have been made out. 13. Thus, it has clearly been held that in order to prove the offence of bigamy under Section 494, IPC, the prosecution is required to prove the fact of second marriage strictly and unless the prosecution is able to prove the fact of second marriage, as required under the law, the accused, in view of the authoritative pronouncements laid down by their Lordships of the Supreme Court in above-noted cases, cannot be held guilty for the offence under Section 494, IPC. 14. After having examined the essential ingredients of the offence under Section 494, IPC, falling back to the facts of the instant case, I find that the prosecution has examined seven witnesses to prove the fact of second marriage. 15. Smt. Asha (PW-1), who is the applicant's first wife, deposed in paragraph 2 that the applicant has entered into a second marriage with one Anshu, daughter of Ghasiya. 16. Janak Ram (PW-2), the father of Smt. Asha (PW-1), in paragraph 7, simply stated that his son-in-law/applicant Rajesh has entered into a second marriage. 17. Thandaram (PW-3), who is a person belonging to the complainant's community, has also stated that applicant Rajesh has kept some second woman with him. 18. Chhatelal Angare (PW-7), who is a teacher by profession, stated that applicant Rajesh has solemnised a second marriage. 19. Thus, a brief survey of the testimony of the aforesaid witnesses of the prosecution simply states that a second marriage has been solemnised by the applicant during subsistence of his first marriage with Smt. Asha, but the prosecution witnesses did not utter any word as to whether the second marriage has been solemnised by the applicant by undergoing the essential ceremonies in accordance with the customs prevalent in his caste/community. Not only this, as laid down by their Lordships of the Supreme Court in the above-noted cases, the prosecution was required to show that the second marriage, which is alleged to be solemnised by the applicant in Churl form, was actually performed. Not only this, as laid down by their Lordships of the Supreme Court in the above-noted cases, the prosecution was required to show that the second marriage, which is alleged to be solemnised by the applicant in Churl form, was actually performed. The prosecution was further required to bring legal evidence on record that what are the essential ceremonies of a marriage by Churl form. But, no such evidence of the essential ceremonies of Churl form, alleged to be prevalent in the caste/community of the applicant, nor any evidence of actual performance of the second marriage by undergoing those ceremonies, was brought on record. Therefore, there is no legal evidence on record that the applicant ever performed a second marriage with Anshu in accordance with the customary rites so as to attract Section 17 of the Act, 1955, offence of which is punishable under Section 494, IPC. 20. At this stage, Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non-applicant would submit that in the statement recorded under Section 313, Cr.P.C., the applicant has clearly admitted that he has entered into a second marriage, therefore, his admission itself is a sufficient evidence in view of Section 50 of the Indian Evidence Act, 1872 (henceforth 'the Act, 1872'). In order to answer the contention raised, it would be profitable to notice Section 50 of the Act, 1872, which provides as under: "50. Opinion on relationship, when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)." 21. A bare and close perusal of Section 50 of the Act, 1872, especially the proviso thereto, would reveal that the proviso is an exception to mean Section 50 of the Act, 1872, which provides that such an opinion of relationship shall not be an evidence to prove a marriage in a proceeding under Section 494, IPC. A bare and close perusal of Section 50 of the Act, 1872, especially the proviso thereto, would reveal that the proviso is an exception to mean Section 50 of the Act, 1872, which provides that such an opinion of relationship shall not be an evidence to prove a marriage in a proceeding under Section 494, IPC. Not only this, in Kanwal Ram case ( AIR 1966 SC 614 ) (supra), their Lordships of the Supreme Court has clearly held that in a bigamy case, 'second marriage, as a' fact, that is to say, ceremonies constituting it, must be proved and the admission is not certainly an evidence of the second marriage. This view has been followed by the Supreme Court in Smt. Priya Bala case ( AIR 1971 SC 1153 ) (supra) by holding that a second marriage, as a fact, has to be proved that it has taken place after performance of the essential ceremonies. Thus, the submission of Shri Raj Kumar Gupta, learned Deputy Advocate General deserves to be rejected. 22. In sum and substance, the prosecution has failed to establish by adducing appropriate legal evidence that the applicant has performed a second marriage during the lifetime of his first wife Smt. Asha so as to attract his conviction for the offence under Section 494, IPC. Concludingly, the revision is allowed. The conviction recorded and the sentence awarded to the applicant for the offence under Section 494, IPC are hereby set aside. The applicant is acquitted of the charge framed under Section 494, IPC. However, the bail bonds executed by him shall remain in operation for a further period of six months from today in view of the provision contained in Section 437A, Cr.P.C.