SUDHANSUBALA PANDA Vs. MAKUNDA ALIAS MAKUNDADEBA PANDA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 11.11.1988 passed by learned J.M.F.C., Chatrapur in I.C.C. No. 6 of 1985 (T.R. No. 257 of 1988) acquitting the accused -respondents from the charges.

(2.) CASE of the appellant is that accused Makunda Panda married her in 1974 according to Hindu rites. Both of them lived as husband and wife till 1979 and during that period they were blessed with a child on 20.9.1976. Thereafter, misunderstanding developed between them and it is alleged by the complainant, that she was driven out from her matrimonial house some time in the year 1976 and she started living with her parents. It is further alleged by the complainant -appellant that her husband accused -Makunda married for the second time to one Chabirani on 3.2.1982 in village Hundata according to Hindu rites and customs. It is also alleged that other accused persons abetted the second marriage (sic). The complainant also alleged in the complaint that a son has been born out of the second marriage. On the basis of such allegations charge was framed against accused Makunda for commission of offence under Section 494 of the Penal Code for bigamy and other accused persons were charged under Sections 494/114 of the Penal Code for abetting the second marriage and for remaining present in the said second marriage.

(3.) MR . Panda, learned Counsel appearing for the appellant drew attention of the Court to the evidence adduced before the Trial Court and submitted that the evidence available on record clearly prove second marriage of accused Makunda and therefore the order of acquittal should be set aside. The claimant examined herself as P.W. 1. She has stated before the Trial Court that after marriage with Makunda she stayed with him for about four years and during that period they were blessed with a son. Thereafter, the accused Makunda started misbehaving with her and demanded dowry and ultimately drove her out from the house and kept the son with him. For the aforesaid conduct of the accused Makunda the complainant had filed a petition under Section 125, Cr.P.C. claiming maintenance. She had stated in her evidence that three years prior to the date she deposed in the Court that, accused Makunda got married to another girl namely Chabirani @ Sabita for the second time and the marriage took place in village Hundata. She also stated that other accused persons attended the marriage and supported the same. She also stated that out of the second marriage a child was borne (sic). In cross -examination, however, she stated that she had not gone to her matrimonial house for last three years and she also admitted in cross -examination that she was not in a position to say where the second marriage took place and who attended the marriage. In para -8 of her deposition during cross -examination she has also admitted that she heard about the marriage from a milkman and she could not disclose the name of the person from whom he heard about the marriage. P.W. 2 is the father of the complainant. In his deposition he has stated that after marriage with Makunda his daughter lived happily for about four years and thereafter his daughter was driven out from the house for non -fulfilment of demand of dowry. Though in examination -in -chief he stated that Makunda got married for second time in February, 1982, in cross -examination he admitted that he heard about the marriage from others. Though both the witnesses have stated that they heard about the second marriage of accused Makunda from others, those people from whom they heard about the marriage were not examined. In view of such nature of evidence, the Trial Court was justified in holding that second marriage alleged by the complainant -appellant has not been proved. The only other evidence available is birth of a son from out of the second marriage. One marriage has not been proved it is difficult to accept the contention of the learned Counsel for the appellant that a child was born out of the second marriage.