TRILOCHAN SAHOO Vs. SRIMALI SARALA SAHOO

JUDGEMENT

(1.) THIS revision is directed against the judgment dated 21-3-1996 passed by the learned 1st Additional Sessions judge, Cuttack dismissing the Criminal appeal No. 51 of 1993 preferred against judgment dated 17-3-1993 passed by the learned J. M. F. C. , Jagatsinghpur in I. C. C. No. 94 of 1986 (Trial No. 22 of 1993) convicting the petitioner under Section 494 of the I. P. C. and sentencing him to undergo ri. for one year and to pay fine of Rs. 500/-, in default to undergo S. I. for two months with further direction to pay Rs. 400/- to opposite party as compensation if the fine amount is realized.

(2.) OPPOSITE party-complainant is the petitioner's legally married wife. It appears that I. C. C. No. 94 of 1986 (Trial No. 22 of 1993) was instituted by the opposite party against the petitioner and some co-accused persons for commission of offence under section 494 read with S. 109 of the I. P. C. It was alleged that the marriage between the petitioner and opposite party was solemnized in 1971. They were blessed with two children. However, as the petitioner deserted the opposite parry she took shelter in her parents' house and instituted the proceeding for award of maintenance under Section 125 of the Cr. P. C. During subsistence of marriage between the petitioner and the opposite party, the petitioner took the one Tuni dei alias Yoshna as his second wife on 14-7-1983 by getting married to her. The petitioner did not dispute regarding status of opposite party is his legally married wife. However, defence plea was denial of petitioner's marriage for the second time with above said Tuni Dei alias Yoshna. In order to substantiate her allegations the complainant examined three witnesses including herself as P. W. 2 and also relied upon documents marked Exts. 1 to 5. Two defence witnesses including the petitioner, examined as D. W. 2, were examined on behalf of the petitioner. One Dr. Sampat Kumar mohanty was examined by the Court as c. W. 1. Considering the evidence on record learned Magistrate convicted and sentence the petitioner as stated supra while acquitting the co-accused persons.

(3.) IN assailing the impugned order it was contended by the learned counsel for the petitioner that in view of inordinate delay in lodging the complaint till 27-6-1986, though the petitioner is alleged to have got married for the second time on 14-7-1983, the complaint petition should have been dismissed in limine. It was further contended that in order to substantiate the allegations under section 494 of the I. P. C. the factum as well as validity of both the marriages are to be cogently established. It was argued that the evidence of P. Ws. 1, 2 and 3 is too vague to conclude that the petitioner got married for the second time as alleged. It was also argued that as C. W. 1, examined as Court witness, has not proved the contents of Birth certificates Exts. 1 and 2, there is no basis to record any finding on the basis of the two documents. Learned counsel for the petitioner relied upon the decisions of the hon'ble Supreme Court in Kanwal Ram and others v. The Himachal Pradesh Administration, air 1996 SC 614 : (1966 Cri LJ 472)and this Court in Patra Mirgan, v. The State, (1993) 6 OCR 540; Manjula Nayak v. Rama chandra Nayak, (1994) 7 OCR 576 : (1995 aihc 2913) and Bira Dang v. Dhyana Dang, (1995) 8 OCR 481. Though the learned counsel appearing for the opposite party initially participated in the hearing, none appeared on behalf of the opposite party at later stage in course of further hearing. Learned counsel for the opposite party supported the findings and conclusion of the learned Courts below and argued that there is no compelling reason to disturb the concurrent findings.