MINABEN ISHWARBHAI BHANDARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant complainant has preferred the appeal under S.378 of the Code of Criminal Procedure and challenged the judgement and order of acquittal passed by learned Judicial Magistrate First Class, Gandevi, on 17.10.2001 in Criminal Case No. 2751 of 1999 acquitting the respondent-accused for the offence under Section 494 and 114 of the Indian Penal Code.

(2.) ACCORDING to the prosecution the complainant Minaben Ishwarbhai Bandari filed a complaint in the Court of learned Judicial Magistrate First Class, Gandevi, alleging that she is married to accused No. 1 and thereby she is legally wedded wife of accused No. 1. Provisions of Hindu Marriage Act apply to their marriage and accused No. 1 belongs to Hindu Bhandari Caste. Marriage of the complainant was solemnized on 29.5.1994 as per Hindu rites and according to Bhandari caste, custom and thereafter the complainant started staying with accused No. 1. Accused No. 2 is illegitimate wife of accused No. 1. Accused No. 3 is father of accused No. 1 and accused No. 4 is father of accused No. 2. Accused Nos. 5 and 6 are sons of accused No. 3. After about one month of the marriage, accused No. 1 and his family members changed their attitude towards the complainant and started picking up quarrels and inflicting her mental and physical cruelty. Accused No. 1 was serving at Damni Jhapa Pardi as turner-fitter and came into contact with accused No. 2 who was residing at Damni Jhapa Pardi. Therefore, accused No. 1 fell in love with her. When the complainant came to Pardi she saw accused No. 1 and accused No. 2 roaming around together. On inquiry with accused No. 1, he got enraged and picked up quarrel. Thereafter, accused No. 1 threw the complainant out of the house. Accused No. 1 married accused No. 2 on 8.10.1998 at Somnath Temple at Daman. Accused No. 3 to 6 were present in the said marriage. Accused Nos. 2 to 6 were aware that marriage of accused No. 1 with complainant was subsisting. Despite that, accused No. 1 contracted second marriage as per Hindu rites and customs of Bhandari caste and accused Nos. 3 to 6 have abetted their marriage. Therefore, complaint was filed. The complaint was registered as Criminal Case No. 2751 of 1999. The trial Court issued summons to the accused for the offences under Section 494 and 114 of the Indian Penal Code. The trial Court after considering the evidence, framed charge Exh. 136 for the aforesaid offence against the accused. Charge was read over and explained to the accused who pleaded not guilty to the charges and claimed to be tried. After recording of prosecution evidence, further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The accused in their further statement stated that false case is filed against them. After hearing learned advocate for the parties, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

(3.) LEARNED advocate Mr. Shah submitted that the parties are governed by provisions of the Hindu Marriage Act and no documentary evidence is produced with regard to the second marriage. He also submitted that birth certificate of a child allegedly born out of the second marriage cannot be considered to be cogent evidence to prove the second marriage. He also submitted that the complainant did not examine Priest who allegedly performed the second marriage. Therefore, the complainant has failed to prove the second marriage and hence the trial Court was justified in recording acquittal and no interference is required in the impugned judgement.