Smt. Dhara Dei vs Prafulla Swain And Ors.

on 29 June, 1984

Orissa High Court

Smt. Dhara Dei vs Prafulla Swain And Ors. on 29 June, 1984
Equivalent citations: 1984 II OLR 621
Author: K Mohapatra
Bench: K Mohapatra
JUDGMENT K.P. Mohapatra, J.

1. This appeal is directed against the order passed by the Judicial Magistrate, Baramba, acquitting
respondents 1 and 3 from charges under Section 494 and 494/109 I. P. C. respectively. The
complainant is the appellent.

2. Stated in brief the case of the appellant, Dhara Dei (P. W. 1), was that she was legally married to
respondent No. 1, Prafulla Swain and both of them led a conjugal life. There was misunderstanding
between her father (P.W. 2) and father-in-law, respondent No. 3 relating to dowry at the time of her
marriage. She came to the house of her father according to custom, but on account of the aforesaid
misunderstanding, she was not taken back to her matrimonial home. On the other hand, on 3. 12.
1979, respondent No. 1, Prafulla married respondent No 2, Tava Dei daughter of Mana Naik of
Salijanga. During the subsistence of her marriage with respondent No. 1, Prafulla, the second
marriage having been contracted was void according to law. Respondents 1 and 2, therefore,
committed an offence under Section 494 and respondent No. 3 having abeted the same, committed
an offence under Section 494/109 of the I.P.C.

3. The learned trial Court framed charge against respondent No. 1 under Section 494 and further
framed charge against respondent No. 3 under Section 494/109 of the I. P. C. On account of absence
of respondent No. 2 the case was split up against her. The plea of the respondents 1 and 3 was a
complete denial of the charges brought against them. On consideration of the prosecution evidence
the learned trial Court came to hold that the appellant failed to establish the factum of the second
marriage between respondents 1 and 2. Therefore, be recorded an order of acquittal.

4. Learned counsel appearing for the appellant urged that the learned Judicial Magistrate failed to
appreciate the evidence adduced by the appellant in a sound manner and so he arrived at the
erroneous conclusion to the effect that the second marriage between respondents 1 and 2 could not
be established. On the other hand, there is ample evidence, both oral and documentary, to establish
the factum of the second marriage between them beyond reasonable doubt. Learned counsel for the
respondents on the other hand urged that appreciation of evidence by the learned Court below was
proper and having regard to the weak and incredible nature of the prosecution evidence he came to
the correct conclusion to hold that the factum of the second marriage between respondents 1 and 2
had not been established, He further urged that in the facts and circumstances of the case, this Court
should loathe to interfere with the order of acquittal. The contentions require careful examination.

5. The appellant examined in all six witnesses in order to establish her case. She (P. W. 1) stated in
her evidence that she was legally married to respondent No 1, Prafulla, and lived in the house of her
father-in-law for more than a year. This fact, however, is admitted on both sides. She was obviously
not present when the alleged marriage between respondent No. 1, Prafulla, and respondent No. 2,

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 Smt. Dhara Dei vs Prafulla Swain And Ors. on 29 June, 1984

Tava Dei was performed on 3. 12. 1979, in so far as she was living in the house of her father (P. W. 2)
at a distance of about 20 kilo-metres. P. W. 2, father of the appellant was also not an eye-witness to
the alleged marriage between respondents 1 and 2. He stated in his evidence that he heard that
respondent No. 1, Prafulla, married respondent No. 2, Tava Dei, daughter of Mana Naik of Salijanga.
Obviously, therefore, he could not speak about the date and month of the aforesaid marriage as well
as the performance of religious ceremonies during solemnisation of the marriage. P. W. 4 admitted
in his evidence that he did not see the alleged marriage between respondents 1 and 2. Therefore, he
also could not speak about the performance of the ceremonies at the time of the marriage. He
admitted that he heard about the marriage. P. W. 5 stated in his evidence that in the month of
Margasira about two years ago respondent No. 1, Prafulla, married the daughter of one Mana Naik.
He had come to the Durga temple r.t Baudala where he saw that there was exchange of flowers
between the couple. He also saw both of them sitting in a car. When asked about the performance of
religious ceremony at the time of marriage and the parsons who took part in the said ceremony,
estated that he could not give the names of the priest as well as the barber. Homa Saptapadi and
Hastagranthi were not performed. His evidence will show that he departed from the substratum of
the prosecution case which was to the effect that the alleged marriage was performed at Salijanga in
the house of Mana Naik. Simply because he saw respondents 1 and 2 in a car, it will not give rise to
the inference for drawing a conclusion that they had been married according to law. P. W. 6 stated
that he saw respondents 1 and 2 sitting inside a car at a road crossing near village Bindhanima. He
did not speak about performance of the marriage between respondents 1 and 2. His evidence suffers
from the same defect as that of P. W. 5. Now coming to the evidence of P. W. 3 it will appear that he
was an Assistant Sub-Inspector of Police attached to Baramba Police Station. He produced the birth
register, Ext. 1, and proved an entry, Ext 1/1 dated 28.4.1931. According to the appellant's case the
entry Ext. 1/1 shows birth of a son to respondents 1 and 2 on 30. 3. 81. A reference to Ext. 1/1 will
show that there is mention of names of Prafulla Swain and Tava Dei to whom a son was born. This
document as well as the evidence of P. W. 3 suffers from to infirmities. First, P. W. 3 was unable to
co-relate the entries with respondents 1 and 2, because, he had no personal know- ledge about birth
of a son to them and secondly the document did not prove a valid marriage between respondents 1
and 2. The document, Ext. 1/1 is, therefore, of no help for proof of the prosecution case. The
respondents examined two witnesses for defence who denied the alleged marriage between
respondents 1 and 2. A discussion of the evidence adduced before the learned trial Court will show
that it was mostly hearsay. There was no direct proof to the effect that a legal and valid marriage
between respondent No. 1, Prafulla, and respondent No. 2, Tava Dei, was solemnised.

6. In A. I. R. 1965 Supreme Court, 1564, Bhaurao Shankar Lokhande and Anr. v. The State of
Maharastra and Anr., arising out of a case under Section 494 of the I. P. C. it was held ;

"(3) Section 494, I. P. C. reads :

"Whoever, having a husband or wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine."

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 Smt. Dhara Dei vs Prafulla Swain And Ors. on 29 June, 1984

Prima facie, the expression 'whoever marries' 'must mean 'whoever.....marries validly' or whoever
marries and whose marriage is a valid one.' If the marriage is not a valid one, according to the law
applicable to the parties, no question of its being void by reason of its taking place during the life of
the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no
marriage in the eye of law. The bare fact of a man and a woman living as husband and wife docs not,
at any rate, normally give them the status of husband and wife even though they may hold
themselves out before society as husband and wife and the society treats them as husband and wife."

x x x x (5) The word 'solemnise' means, in connection with a marriage, 'to celebrate the marriage
with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows,
therefore, that unless the marriage is 'celebrated' or performed with proper ceremonies and due
form it cannot be said to be 'solemnised'. It is, therefore, essential, for the purpose of S. 17 of the Act,
that the marriage to which S. 494, I. P. C. applies on account of the provisions of the Act, should
have been celebrated with proper ceremonies and in due form. Merely going through certain
ceremonies with the intention that the parties be taken to be married, will not make the ceremonies
prescribed by law or approved by any established custom."

It was accordingly laid down that unless there is proof of solemnisation of a valid subsequent
marriage during the subsistence of an earlier marriage, a case of adultery under Section 494 of the I.
P. C. could not be made out. The principles laid down in the aforesaid decision were followed in A. I.
R. 1966 S. C. 614, Kanwal Ram and Ors. v. The Himachal Pradesh Administration, and it was held
that in a case of bigamy the evidence of the witnesses called to prove the marriage must show that
the essential ceremonies connected with the subsequent marriage were duly performed. The
principles laid down in A. I. R. 1965 S. C. 1964 and A. I. R. 1966 S. C. 614 were further followed in A.
I. R. 1971 S. C. 1153, Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, and it was held that if the
alleged second marriage is not a valid one according to law or custom applicable to the parties, it will
not be void by reason of its taking place during the life of the husband or the wife of the person
marrying so as to attract Section 494 of the I. P. C. In a prosecution for bigamy the second marriage
has to be proved as a fact and it must also be proved that the necessary ceremonies connected
therewith have been performed. On the ratio of the aforesaid decisions and applying the principles
laid down there to the facts of the present case, there is least doubt that the appellant failed to
establish, as already alluded to above, the subsequent marriage between respondent No. 1, Prafulla,
with respondent No. 2, Tava Dei, after due performance of religious ceremonies according to
custom. Therefore, I have no hesitation to hold in agreement with the learned Court below that the
appellant could not establish a case of bigamy and abetument thereof against the respondents.

7. 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 [see 1982 C. L. R. (Cr.) 20,
1983 C. L. R. ( Cr.) 9 and 1983 C. L. R. (Cr.) 207]. The assessment of the prosecution evidence by the
learned, trial Court was proper and so interference therewith is unwarranted. Therefore, the order of
acquittal passed on proper appreciation of evidence cannot be reversed on the basis of the principles

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 Smt. Dhara Dei vs Prafulla Swain And Ors. on 29 June, 1984

referred to above.

8. For the foregoing reasons, I agree with the conclusion arrived at by the trial Court that the
prosecution failed to establish the charges of adultery and abetment thereof against respondents 1
and 3. The order of acquittal is, therefore, affirmed. The appeal is dismissed.

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