STATE OF GUJARAT Vs. BHAGBATI PRASAD GANPATRAM UPADHYAYA

JUDGEMENT

(1.) COMPLAINANT Arvindaben Zaverlal Pandya had filed a complaint against the respondents for the offences punishable under section 494 read with section 114 of the Indian Penal Code. It is her say that on 12th May, 1963 she had married with respondent No. 1 according to Hindu rites at Village Lunsavada, District Panchmahals. Subsequently respondent No. 1 had filed a suit before the District Judge, Ujjain, for taking divorce which was dismissed by the Court. Thereafter respondent No. 1 married respondent No. 2. Respondents Nos. 3 and 4 are the parents of respondent No. 2. Respondent No. 5 is a friend of respondent No. 3. Two other respondents were also joined as parties to the complaint but the Court has discharged them. It is her say that on 4th March, 1979 at Maninager the marriage ceremony between respondents Nos. 1 and 2 was performed according to Hindu rites. Respondents Nos. 2 to 5 were knowing that respondent No. 1 was married, yet the marriage ceremony was performed and, therefore, respondents have committed an offence punishable under section 494 read with section 114 of the Indian Penal Code.

(2.) THE Metropolitan Magistrate, Court No. 15, Ahmedabad, had issued the summons on 30th May, 1979 and registered the case as Criminal Case No. 397/79. On 3rd December, 1979 charge Ex. 8 was framed. After recording the necessary evidence, the learned Metropolitan Magistrate held that the prosecution has failed to prove that the marriage was performed according to Hindu rites as there was no evidence to prove 'Homo' (the sacred fire) and that 'Saptapadi' was performed before the sacred fire. He has discarded the evidence of Nagindas Bhavanishanker Dave, who is alleged to have per - formed the marriage ceremony, and the witnesses Hirabhai, Ramjibhai and Ratilal. He, therefore, acquitted the respondents. Being aggrieved by the said order of acquittal, the State has filed this appeal. It is an admitted fact that there is no evidence on record to show that respondents Nos. 2 to 5 were knowing that respondent No. 1 was married with complainant Arvindaben Zaverlal Pandya. For proving the marriage of respondent No. 1 with respondent No. 2 the complainant has examined herself at Ex. 2. It is her say that her marriage with respondent No. 1 took place on 12 -5 -63 according to Hindu rites, on 4 -3 -79 respondent No. 1 performed marriage ceremony with respondent No. 2 according to Hindu rites at Maninagar, Ahmedabad; with regard to this marriage she was informed by one Bhikhabhai at Dunavada; thereafter she inquired from other relatives whether respondents Nos. 1 and 2 were married. Nowhere it is stated that Bhikhabhai had attended the marriage ceremony of respondents Nos. 1 and 2. The s id Bhikhabhai is not examined by the complainant. One Hirabhai is examined at Ex. 3. It is his say that 4 -3 -79 was Sunday. On that day one Atulbhai come to his house and both of them went to Bhikhabhai's house. Bhikhabhai asked them to go to Jagdishbhai's house as he was having some work with Jagdishbhai. At about 6.00 to 6.30 p.m. they went there. They were welcome. At that time marriage ceremony of respondents Nos. 1 and 2 was performed by one Brahmin Nagendrahhai according to Hindu rites. Jagdishhhai asked Bhikhabhai to sit there and ice -cream was offered to them. This witness nowhere states what talk took place between Bhikhabhai and Jagdishbhai for the work for which they had gone there. No reason is stated by him why Bhikhabhai took him to Jagdishbhai's hcuse. In the cross -examination lie admits that he was not knowing Jagdishbhai. The learned Magistrate, therefore, has rightly appreciated the evidence of the witness and has arrived at the conclusion that this witness is a got up witness.

(3.) SAME is the position with regard to the evidence of Ramjibhai Ranchhoubhai who is examined at Ex. 4. It is his say that on 4 -3 -79 he went to Hirabhai's house for some work. Both of them went to Bhikhabhai's house. As Bhikhabhai was having some work of Jagdishbhai, all of them went to the house of Jagdishbhai at about 6 00 p.m. At that time the marriage of respondents Nos. 1 and 2 was being performed. He admits that lie was not knowing respondents Nos. 1 and 2 prior to 4th March, 1979. In my view, the learned Magistrate has rightly held that the evidence of this witness cannot be relied upon because there was no reason for him to go at the house of Jagdishbhai. He has also considering other details which I am not referring to. The other witness Ratilal Maganlal, who is examined at Ex. 11, has stated that on 4 -3 -79 the respondent No. 5 met him near Maninagar Railway Crossing. He inquired where he was going. Respondent No. 5 replied that he was going at the place where marriage ceremony of his maternal aunt's daughter was to be performed as the marriage was arranged by him. He, therefore, went along with at Jagdish Bhuvan where marriage was to be performed. It is his say that in the presence of 36 to 40 persons marriage ceremony of respondents Nos. 1 and 2 was performed. It is his say in the cross -examination that accidentally on 4 -3 -79 he met respondent No. 5. He admits that he resides in the Village Dehvas, Taluka Halol, and the previously he was working as P.S I. and after retirement he was staying at Village Dehvas. He admits that at the instance of one Sumaben Kantilal Gor lie had come to depose in my view, no reliance can be placed upon the evidence of this witness because as such there was no reason for him to attend the marriage ceremony of respondents Nos. 1 and 2 with whom he had no connection.