Kerala High Court
Satheesan vs Anitha on 20 August, 2014
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936
Crl.Rev.Pet.No. 3349 of 2009
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CRL.A.NO. 384/2008 OF ADDITIONAL SESSIONS COURT (FAST TRACK I), ALAPPUZHA
C.C.NO. 441/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,AMBALAPUZHA
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REVISION PETITIONER / APPELLANT / ACCUSED :
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SATHEESAN, S/O.MINNAN,
PONKANTAM CHIRAYIL, EZHUPUNNA P.O., CHERTHALA.
BY ADV. SRI.C.K.SAJEEV
RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE :
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1. ANITHA, D/O.NARAYANAN,
LEKSHMANAN PARAMBU, PURAKKADU P.O., AMBALAPPUZHA.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
R1 BY ADVS. SRI.ANIL SIVARAMAN
SMT.APARNA RAJAN
R2 BY PUBLIC PROSECUTOR SMT.R.REMA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 20-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
P.UBAID, J.
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Crl.R.P.No.3349 of 2009
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Dated this the 20thday of August, 2014
ORDER
The first respondent herein is the legally wedded wife of the revision petitioner. He married her on 2/2/1997 at Sree Venugopala Devaswom Temple at Purakkad. The said marriage was solemnized in accordance with the customary rites and ceremonies. In September 2006, the parties fell apart and started residing separately. In 2007, the respondent brought complaint against the revision petitioner before the Judicial First Class Magistrate Court, Ambalappuzha alleging that the revision petitioner married one Sreedevi daughter of Savithri on 01/02/2007 at Sree Narayanapuram Temple, Ezhupunna. After necessary enquiry, the learned Magistrate took cognizance under Section 494 of the Indian Penal Code (for short the 'IPC') against the revision petitioner, and the prosecution Crl.R.P.No.3349 of 2009 2 proceeded. The revision petitioner entered appearance in the trial court and pleaded not guilty to the charge framed against him by the learned Magistrate. During trial the complainant examined herself, and four witnesses, and also marked Exts.P1 and P2 documents. The accused did not adduce any evidence in defence. Accepting the evidence adduced by the complainant, the trial court found the revision petitioner guilty, and accordingly convicted him under Section 494 IPC. On conviction he was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.10,000/-.
2. Aggrieved by the conviction and sentence the revision petitioner approached the Court of Sessions, Alappuzha with Crl.Appeal No.384/2008. In appeal the learned Sessions Judge confirmed the findings of the trial court regarding proof of the two marriages, and accordingly confirmed the conviction. However the sentence was modified in appeal. Accordingly, the jail Crl.R.P.No.3349 of 2009 3 sentence was reduced to simple imprisonment for three months, but the fine sentence with default sentence thereon was maintained. Now the accused is before this Court in revision challenging the legality and propriety of the conviction and sentence on the ground that a valid marriage as alleged by the complainant stands not proved to attract Section 494 IPC.
3. On hearing both sides, and on a perusal of the entire case records, I find that the conviction and sentence in this case will have to be set aside because the alleged second marriage stands not properly and legally proved. Of course, the complainant has well proved her marriage with the revision petitioner in 1997. Regarding proof of that marriage there is no dispute or doubt, and the witnesses including the complainant are definite. But for a successful prosecution under Section 494 IPC, the complainant must also prove the alleged second marriage, that it was validly solemnized, in accordance with the customs and ceremonies prescribed by the Crl.R.P.No.3349 of 2009 4 personal law applicable to the parties.
4. The only evidence to prove the alleged second marriage in this case is that of PW5 and the Ext.P2 certificate issued by him. PW5 is the secretary of Sree Narayanapuram Temple committee, and he issued the Ext.P2 certificate only in his capacity as secretary, and not as the person who had witnessed the alleged second marriage. He has no case that he had seen the complainant and the accused undergoing any ceremony of marriage, or that he had witnessed the solemnization of the alleged marriage. He issued the certificate on the basis of the entries made in the register kept in the temple. A marriage certificate by itself will not prove a valid marriage as meant and required under Section 494 IPC. The learned counsel for the revision petitioner cited the decision of the Honourable Supreme Court in A.Subash Babu V. State of Andhra Pradesh and Another, reported in [(2011) 7 Supreme Court Cases 616] wherein the Honourable Supreme Court re-iterated Crl.R.P.No.3349 of 2009 5 the necessity of proof of solemnization of both the marriages in accordance with the customs and ceremonies prescribed under the personal law governing the parties. Of course it is well settled by Judicial pronouncements of this Court, various other High Courts, and the Honourable Supreme Court, that for a prosecution under Section 494 IPC, the complainant who initiated prosecution must prove solemnization of both the marriages. What is required to be proved as regards second marriage is the fact of a legal marriage or a valid marriage which would otherwise be void due to the subsistence of the first marriage. In this case the complainant has well proved the first marriage, but the second marriage stands not properly and legally proved.
In the result this revision petition is allowed. The revision petitioner is found not guilty of the offence punishable under Section 494 IPC, the conviction and sentence against him under Section 494 IPC in C.C.No.441/2007 of the Judicial First Class Magistrate Crl.R.P.No.3349 of 2009 6 Court, Ambalappuzha are set aside, and the revision petitioner is acquitted in revision. The bail bond executed by him will stand discharged.
Sd/-P.UBAID JUDGE MJL