AHALYA PANTHEI Vs. GANDHIA PANTHEI AND ANR.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dtd. 30.10.1989 passed by learned Sessions Judge, Ganjam, Berhampur wherein he allowed the appeal and set aside the judgment and order of conviction passed by the learned J.M.F.C, Chhatrapur in I.C.C. No. 26 of 1982 (T.R. No. 143/89).

(2.) SUCCINCTLY stated, the case of the prosecution is that Appellant married Respondent No. 1 in the year 1978 in accordance with Hindu rites and their caste custom. While the marriage was in subsistence, Respondent No. 1 married Susila in February, 1982. So, the Appellant filed I.C.C. Case No. 26/1982 before the learned S.D.J.M., Chhatrapur against Respondent No. 1, Susila the second wife and their fathers on accusation of commission of offence under Sections 494 and 494/109 of I.P.C. Respondent No. 1 admitted that Appellant was his first wife and after she was divorced in a Punch in accordance with their caste custom, he married Susila for the second time. In order to establish her case, Appellant examined 4 witnesses including herself as P.W.1, whereas Respondent No. 1 examined 3 witnesses, including himself to prove the divorce. After assessing the evidence on record, the trial Court while acquitting three other accused persons convicted the Respondent alone of the offence under Section 494 of IPC, holding inter alia that Respondent No. 1 admitted the marriage with Susila during the life time of the Appellant and accordingly sentenced him there under to undergo imprisonment for two years. Being dissatisfied with the said judgment and order of conviction, Respondent No. 1 preferred Criminal Appeal No. 41 of 1989 before the learned Sessions Judge, Ganjam, Berhampur who after hearing the counsel of both sides allowed the appeal and set aside the judgment and order of conviction holding that even though the deed of divorce was not signed by Appellant and Respondent No. 1, still then the latter being under the impression that the divorce was lawful he married for the second time, as such he had no mens rea and that performance of the essential ceremonies of a valid Hindu marriage was not proved by the prosecution.

(3.) FURTHERMORE , the complaint case was filed 1982, the Respondent No. 1 faced the ordeal trial for 7 years when the judgment was pronounced. The present appeal is pending before the Court since last 18 years. At this stage, if the order of the lower Appellate Court is reversed and an order of conviction is recorded, there would be travesty of justice. Taking all these facts into consideration, I am of the view that it is not a fit case where the order passed by the lower Appellate Court should be interfered with.