URMILA NAYAK Vs. PADMA CHARAN NAYAK AND ORS.

JUDGEMENT

(1.) THE Appellant, Urmila was married to Respondent No. 1 Padmacharan, son of Respondents 2 and 3 in the year 1971. There was discord and so Respondent No. 1 abandoned the Appellant. During subsistence of the marriage, Respondent No. 1 contracted a second marriage with Respondent No. 5 Mini, daughter of Respondent No. 4 in connivance with Respondent No. 6 on 21 -3 -1973. Since then, Respondents 1 and 5 are living together as husband and wife. On the above allegations made in the complaint petition filed by the Appellant, the learned Sub Divisional Judicial Magistrate, Bhanjanagar, framed charge against Respondents 1 and 5 under Section 494 and against the other Respondents under Section 109 of the Indian Penal Code 'I. P. C' for short). During trial, Respondent No. 1 admitted his marriage with the Appellant, but denied that he had contracted a second marriage with Respondent No. 5. The other Respondents similarly denied the second marriage between Respondents Nos. 1 and 5. The Appellant examined herself, although she was not present when the second marriage between Respondents 1 and 5 was performed. She also examined P.Ws. 2 and 3 who, according to their evidence, participated in the marriage solemnised between Respondents 1 and 5 and also protested, because of subsistence of the first marriage between the Appellant and Respondent No. 1. The learned Sub -Divisional Judicial Magistrate disbelieved the evidence of P.Ws. 2 and 3 mainly on the grounds that they were not consistent in their evidence with regard to the second marriage and the Purohit and the barber who took part in the second marriage were not examined. Therefore, he acquitted the Respondents of the charges framed against them.

(2.) THE essential ingredients of the offence under Section 494, I.P.C. are:

(3.) THE second and the third ingredients of the offence are, however, very important and should be established by reliable and cogent evidence because, the offence of bigamy is a serious one prescribing maximum punishment of imprisonment for seven years with fine ( : A.I.R. 1979 S.C. 713 Gopal Lal v. State of Rajasthan). The Appellant ( P. W. 1 ) was not present when the alleged marriage ceremony was performed between Respondents 1 and 5 On 21 -3 -1973. She was informed about the marriage two days thereafter by P.Ws. 2 and 3 It is, however, interesting to learn from her evidence that Respondent No. 5 had earlier lived with her own brother Gopal Nayak as sister -in -law. There was a feast when his brother and sister -in -law began to live together. But she avoided to say whether marriage was performed between the two or not. P. W. 2 stated that Respondent No. 1 married Respondent No. 5 after performance of religious ceremonies. He attended the marriage ceremony despite the fact that Respondent No. 1 and his father Respondent No. 2 had earlier been ostracised by the villagers. He also stated that Respondent No. 5 was living with Gopal Nahak, brother of the Appellant. It is also interesting to learn from his evidence that Respondent No. 5 stays in Kesbapur, the village of her patents and came to the village of Respondent No. 1 once or twice. According to him Narasingh Pati was the Purohit and Mahadev Dakus was the barber who participated in the marriage. P. W. 3 stated that the alleged marriage between Respondent No. 1 and Respondent No. 5 was performed according to the religious ceremonies. He attended the marriage, participated in the feast and then raised objection as to the second marriage contracted by Respondent No. 1 with Respondent No. 5. According to him, Respondent No. 5 resided with Respondent No. 1 after the marriage. The evidence of both these witnesses belonging to the same village as Respondent No. 1 is not at all convincing and trustworthy. Both of them were aware that Respondent No. 1 had earlier married the Appellant and was contracting a second marriage with Respondent No. 5 who was earlier living either as wife or mistress of Gopal Nahak, brother of the Appellant. They participated in the feast despite the fact that Respondent Nos. 1 and 2 had been ostracised by their caste men because they disobeyed a panch decision with regard to payment of cash and return of the dowry to the Appellant. Usually, marriage is performed in the house of the bride but the evidence of these witnesses show that the marriage was performed in the house of Respondent No. 1. No explanation was offered as to why ritual contrary to the usual custom of marriage was performed. Above all, the Purohit who is alive and the barber who participated in the marriage were not examined and were withheld from the Court. It is too well -known that in marriage ceremonies in this part of the country, presence of a Purohit and a barber is must and they are the most competent witnesses to prove performance of marriages according to religious ceremonies. It is true that for a deserted wife, it is too difficult to establish her husband's second marriage with Anr. woman, because she suffers from several handicaps, such as, she resides away from her husband, may not have the means to fight out a litigation which is costly according to common standards on account of penury, non -availability or reluctance of persons to support her case although there may be witnesses to the second marriage and above all, the attempt of the husband and his close relations, as well as, the close relations of the second wife to perform the second marriage in secrecy being fully conscious not only of the penal consequences of bigamy, but also Of the possible liability to pay maintenance to the first wife. In the contest of illiteracy and ignorance of people in rural and semi -urban areas particularly the woman folk, it is too hard for a deserted wife to support herself and while depending on her parents and brothers it is still more difficult to fight out litigations with her husband either for bigamy or for maintenance. The above state of affairs stare coldly at the face, but law has to be interpreted as it is in the statute book and evidence in a criminal case should have to be appreciated in such a manner so that unless the charge is proved to the hilt, an accused cannot be punished. Being fully conscious of this position and on consideration of the law and the evidence of this case, I am unable to convince myself that the learned Sub -Divisional Judicial Magistrate took an unreasonable, erroneous or perverse view. By a series of decisions law has been settled that a judgment of acquittal should not be interfered with unless the assessment of evidence and conclusion drawn by the trial Court are unreasonable, erroneous and perverse, Reversal of a judgment of acquittal will not be justified merely on the ground that the appellate Court's view on the evidence on record is different from that of the trial Court or on the same set of evidence two views are reasonably possible : 58 (1984) C. L. T. 101 : 1984 (I) OLR 621 Smt. Dhara Del v. Prafulla Swain and Ors.