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2017 DIGILAW 847 (MP)

Girrja Devi v. Shiv Singh Tomar

2017-07-20

S.K.AWASTHI

body2017
ORDER 1. This is an appeal under section 378 (4) of the Code of Criminal Procedure, 1973 (for brevity, 'CrPC') by the appellant challenging the order of acquittal of respondent for the offence under section 494 of Indian Penal Code, 1860 (for short, 'IPC'). Special leave to appeal was granted to the appellant by this Court by order dated 3.4.2006. 2. It is not disputed that complainant Smt. Girrja Devi was married to respondent/accused Shiv Singh Tomar on 30.4.1974. The marriage was solemnized in accordance with Hindu customary rites and ceremonies. The prosecution case in nutshell is that the respondent/accused Shiv Singh Tomar remarried Mitthan Bai, resident of Village Bansi District Oraiya (U.P.). On 24.3.2001, when complainant went to the house of her husband, she knew about the existence of marriage of Shiv Singh Tomar with Mitthan Bai then she filed a private complainat against the respondent/accused. 3. In due course, charge under section 494 of IPC was framed against the respondent/accused Shiv Singh Tomar. He abjured his guilt. His defence is that he is innocent and he has not married with Mitthan Bai. After recording the evidence, the trial Court held that the second marriage has not been proved as required by law and acquitted the accused Shiv Singh Tomar. 4. In this appeal, it has been argued on behalf of appellant that there is sufficient evidence available on record which proves beyond reasonable doubt the performance of second marriage of the respondent Shiv Singh Tomar with Mitthan Bai. 5. To the contrary, it is contended by the respondent/accused that the complainant has failed to prove the second marriage according to the standard of proof required in a criminal case. 6. The point of determination is that whether respondent/accused Shiv Singh Tomar has remarried Mitthan Bai according to customary rites and ceremonies observed by Hindus ? 7. Complainant Girrja Devi (PW1), Suresh Babu Sharma (PW2), Balveer Singh (PW3) and Ramendra Singh (PW4) deposed that the accused Shiv Singh Tomar has remarried Mitthan Bai. Girrja Devi (PW1) and Suresh Babu Sharma (PW2) also narrated that they came to know about the second marriage from Balveer (PW3). 7. Complainant Girrja Devi (PW1), Suresh Babu Sharma (PW2), Balveer Singh (PW3) and Ramendra Singh (PW4) deposed that the accused Shiv Singh Tomar has remarried Mitthan Bai. Girrja Devi (PW1) and Suresh Babu Sharma (PW2) also narrated that they came to know about the second marriage from Balveer (PW3). Balveer Singh (PW3) stated that Narayan Singh and Ramavtar, Residents of Village Bansi, had informed that Shiv Singh Tomar has performed the second marriage, but the complainant has not examined Narayan Singh and Ramavatar to establish that Shiv Singh Tomar performed second marriage with Mitthan Bai. 8. Complainant Girrja Devi (PW1) contended in her complaint that when in the year 2001 she went to the house of her husband Shiv Singh Tomar, then she saw Mitthan Bai in the house of accused but this fact does not find place in her examination-in-chief. She admitted in her cross-examination that her father died in 1980 and after his death, she never visited the house of her husband. In these circumstances, the trial Court has rightly observed that it cannot be believed that the complainant saw Mitthan Bai in the house of accused Shiv Singh Tomar. None of the witnesses examined on behalf of complainant has stated that the marriage between the accused Shiv Singh Tomar and Mitthan Bai was performed in their presence. Complainant has not produced any witness who was present at the time of alleged second marriage of Shiv Singh Tomar. In this state of evidence, it is difficult to hold that the second marriage is proved as a fact as required by law. 9. In the cases of Bhaurao Shankar Lokhande and another v. State of Maharashtra and another, reported in AIR 1965 SC 1564 , Kanwal Ram and others v. H.P. Administration, reported in AIR 1996 SC 614, Priya Bala Ghosh v. Suresh Chandra Ghosh, reported in (1971)1 SCC 864 , it has been laid down by the Hon'ble Supreme Court that in a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it must be proved. It has also 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. It has also 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. The same view has been taken in P. Satyanarayan v. P. Mallaiah [ (1996)6 SCC 122 ], wherein it has been reiterated that the prosecution must prove that the marriage was performed in a regular way after observance of due ceremonies for the marriage. 10. In the decision of State of M.P. v. Ramcharan and others [ 1985 MPLJ 714 ], it was held that even in appeal, the trial Court's finding of acquittal is not to be interfered with and even if two views are reasonably possible, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. 11. In the state of material on record, this Court is of the view that in the present case, the complainant has failed to prove the charge under section 494 of IPC against the respondent. Therefore, the trial Court has not committed any error in acquitting the respondent from the said charge. 12. In view of aforesaid discussion, this appeal sans substance and is hereby dismissed. The respondent is on bail, his bail bonds shall stand discharged.