SUNANDA GAJANAN JADHAV Vs. GAJANAN MAHADEO JADHAV

JUDGEMENT

(1.) This is an appeal filed by the complainant, with the leave of the Court, against the acquittal of the original first accused of the offence of bigamy under section 494 of the Indian Penal Code by Mr., V.D. Mehta, Additional Chief Presidency Magistrate, 5th Court, Dadar, Bombay. The complainants case was that she was married to the accused in 1951 and has five children by him, and that the said marriage is a subsisting marriage. The complainant has been living for some years with her own father, and some time around the Diwali of the year 1971, she came to know that the first accused has married again. She, therefore, filed the complaint out of which this appeal arises. The second accused was alleged to have been the person at whose house the second marriage of the first accused was performed, but he has been acquitted, by the trial Court and no appeal has been preferred against that order of acquittal.

(2.) It is true that in a case relating to a criminal offence under section 494, both the first marriage as well as the second marriage must be strictly proved, but, in my opinion, there is abundant evidence in the present case to prove both those marriages. Indeed, in the light of that evidence. I consider it to be shameful conduct on the part of the first accused to have denied the first marriage with the complainant which would entail the necessary consequence of bastardizing his five children by her. In his examination under section 342 I.P.C. he has admitted that they are his children. With regard to the first marriage, there is not only the evidence, of the complainant herself, but their is the evidence of the complainants sister Latika who states that she was herself responsible for arranging that marriage and was present at the marriage ceremony, and she has produced a marriage invitation which has been tendered without objection and marked Ex. A. It is most important to bear in mind that there is no cross-examination of Latika questioning her evidence in regard to the marriage of the first accused with the complainant which, therefore, remains unchallenged. The position is the same in regard to the evidence of the complainants brother Suresh who also has not been cross-examined in regard to the first marriage of the accused. It is true that a bare suggestion was put to the complainant herself in cross-examination denying her marriage with the first accused, but in view of the absence of any cross-examination in respect of Latika as well as Suresh, and the actual production of the Marriage invitation Ex. A, in my opinion , the first marriage is amply proved.

(3.) As far as the second marriage of the first accused in concerned the most important witness is the Priest who actually performed that marriage ceremony. His name is Gajanan Joshi. He has deposed in detail to the first accused having come to him about 8 days prior to 9th October, 1971 for the fixation of an auspicious day for his marriage, to the said Gajanan having given the 9th of October, 1971 at 10.53 a.m as an auspicious time for the same, and to the said Gajanan having gone to the house of the second accused Morvekar on the 9th of October, 1971 and performed that marriage there. He has deposed to the actual ceremonies which he performed and has given the name of Gulab Shevde as the bride of the first accused at that ceremony. He has stated that there were about 50 persons present for the marriage. The evidence of the Priest Gajanan has not been shaken at all in the course of cross-examination. A suggestion in the nature of alibi was, however, put to him in cross-examination which was denied by him. The onus of providing an alibi is on the accused. The plea of alibi was sought to be substantiated not by any evidence led by the first accused in his defence, but merely by the statement made by him in the course of his examination under section 342 of the Code of Criminal Procedure, 1898, as well as the statements contained in the Written Statement filed by him , and the production of certain documents along with that Written Statement which have remained unproved. In his examination under section 342 the first accused denied his marriage with the complainant though he admitted that five children borne by the complainant were by him. He has further denied his marriage with Gulab on the 9th of October, 1971 and had made a categorical assertion that he was not in Bombay on that day. In paragraph 6 of his Written Statement he has stated that on 9th October, 1971 he had actually attended the Court of the Tenancy Mamlatdar at Dapoli which is at a distance of more than 200 miles from Bombay and he has produced a certificate from the Tenancy Mamlatdar to that effect. In paragraph 7 of that Written Statement he has further stated that he owned Madi shops in villages Kolathare and Vakoli in Dapoli taluka and that he used to transport Madi for sale, and he has produced the transport passes which he alleges were duly signed by him in the presence of the Superintendent of Excise for the period between 1st October, 1971 to 12th October, 1971 (both days inclusive) to show that he was not in Bombay between those dates. The mere production of documents by an accused person, either during the course of his examination under section 342 or along with the Written Statement filed by him does not get rid of the requirement of the Evidence Act in regard to proof of documents. In my opinion, though an accused person is entitled to produce documents along with his Written Statement, or in the course of his examination under section 342 Cri.P.C., unless he leads satisfactory evidence for the proof of those documents, all that the Court can do is to allow those documents to be filed, but it cannot admit it as documentary evidence on which it can base its findings. In my opinion, the learned Additional Chief Presidency Magistrate was, therefore wrong in relying on those unproved documents and disbelieving the evidence of the Priest Gajanan Joshi by reason thereof. Moreover, in my opinion, those documents themselves do not disprove Gajanans evidence or establish the plea of alibi set up by the first accused. As far as the certificate issued by the Tenancy Mamlatdar is concerned, first of all, no roznama or any record of the Tenancy Mamlatdar has been produced, and the mere production of a certificate from the Tenancy Mamlatdar is, therefore inadequate to establish the presence of the first accused on the day in question. What is more, there in nothing to show that the first accused could not have been present both in Bombay as well as at Dapoli on the same day. As far as the transport passes are concerned, they are not signed by the Superintendent of Excise and have, in my opinion, therefore, no sanctity or probative value. For all these reasons, apart from the fact that this documentary evidence produced by the first accused has remained unproved, the same does not, in my opinion, establish the plea of alibi set up by the first accused.