KASHI BAI Vs. HIMMAT SINGH

JUDGEMENT

(1.) APPELLANT Kashibai is the legally married wife of Bhagwansingh. There are two issues born of this wedlock. Kashibai filed a complaint Under Section 494/494 read with Section 114 IPC against the respondents and two others in the Court of Judicial Magistrate First Class, Udaipura District Raisen on the ground that during her absence her husband Bhagwansingh has contracted second marriage with Binibai daughter of respondent Himmatsingh on 1-2-1980. One of the accused namely Parmenand who has officiated as priest at the second marriage though pleaded not guilty admitted the fact that Bhagwansingh had contracted marriage with Binnibai at her parents village Timravan. Vide judgment dated 5. 12. 1984, the learned trial Magistrate held on facts that neither the first nor second marriage was proved and acquitted the accused persons. The complainant then filed this appeal against the said order of acquittal and leave to appeal was granted only against the respondents.

(2.) APPELLANT's learned Counsel has argued that the learned trial magistrate construed the laid down in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, A. I. R. 1971 S. C. 1153 and misinterpreted the evidence to record the perverse finding that neither of the two marriages could be proved. In fact appellant's marriage having beena admitted by respondent Bhagwansingh proceeding Under Section 125 Criminal Procedure Code resulting in a final order against him and having again admitted the same in his statement Under Section 313 Criminal Procedure Code appellant's valid marriage with respondent Bhagwansingh ought to have been held duly proved. Similarly, in view of the evidence of Shri Khillu (PW 2), Gokul (PW 3) Prakashbai (PW 4) Jasman (PW 6) of the second marriage, the same should also have been held duly proved. In reply it was contended that the evidence has been rightly evaluate and the law has been correctly applied to arrive at the impugned finding. Moreover, even if this Court is inclined to take a different view of the evidence that would not justify interference with the impugned finding of acquittal which under no circumstances is liable to be characterised perverse.

(3.) IN the case of Priya Bala Ghosh (supra) in view of the admitted position that homa' and 'sapta Padi' were essential ceremonies to constitute valid marriage and there was no specific evidence to prove that these ceremonies were gone through the question arose whether it was necessary to establish by specific evidence performance of the above ceremonies and rites in relation to second marriage before the respondent could be convicted Under Section 494 IPC.