Rajasthan High Court - Jodhpur
Bhagirath & Anr vs Bhalli Devi on 19 January, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1407 / 2015
1. Bhagirath S/o Sh. Ramu Ram,
2. Shanti Devi D/o Sh. Anaram,
Both residents of Village Udasar, Tehsil and District: Bikaner
(Raj.)
----Petitioners
Versus
Balli Devi W/o Sh. Bhagirath, by caste Meghwal, Resident of
Government Secondary School, Loonkaransar, District: Bikaner
(Raj.)
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.K.S.Lodha.
For Respondent(s) : Mr.Kaushal Gautam.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Pronouncement : 19/01/2018 By way of this revision, the accused petitioners have approached this Court for challenging the order dated 31.10.2015 passed by learned Additional Sessions Judge No.3, Bikaner accepting the revision filed by the respondent Balli Devi and setting aside the order dated 28.11.2014 passed by learned Special Chief Judicial Magistrate (PCPNDT Act Cases), Bikaner in Cr.Case No.133/2014 whereby the learned trial Judge had discharged the petitioners from the offence under Section 494 I.P.C.
Shri K.S.Lodha learned counsel representing the petitioners urged that the respondent complainant did not lead any evidence (2 of 5) [CRLR-1407/2015] whatsoever so as to even prima-facie establish that the petitioners contracted a valid second marriage by following the essential Hindu rituals and ceremonies. He urged that the complainant who was married to the petitioner Bhagirath about 40 years ago, lodged the complaint before the trial court on 5.8.2016 with a bald allegation that the accused petitioners had married each other during the subsisting marriage of petitioner No.1 Bhagirath with the complainant. He contended that the complainant Balli Devi examined only herself in support of the complaint. When cross- examined at the pre-charge stage, she admitted not having personally witnessed the alleged second marriage being solemnised between the petitioners. She categorically admitted that she did not see the accused Bhagirath bringing Shanti Devi into his home. He urged that the aspersion of second marriage made by the complainant against the petitioners was merely based on voter list entry, ration card and some court proceedings which purportedly portrayed Shanti Devi as the wife of Bhagirath. Shri Lodha relied upon the decisions rendered by Hon'ble Supreme Court in the cases of Smt.Priya Bala Ghosh Vs. Suresh Chandra Ghosh reported in 1971 SCC (Cri) 362 and S.Nagalingam Vs. Sivagami reported in 2001 SCC (Cri) 1273 and urged that as the complainant failed to lead any evidence whatsoever regarding performance of the essential hindu rites and ceremonies for substantiating the allegation of the so- called second marriage between the accused petitioners, they cannot be tried for the offence of bigamy punishable under Section 494 I.P.C. He thus implored the Court to set aside the impugned (3 of 5) [CRLR-1407/2015] order passed by the revisional court and to restore the trial court's order.
Per contra learned counsel Shri Kaushal Gautam representing the respondent complainant vehemently opposed the submissions advanced by Shri Lodha and urged that entry of the names of the present petitioners as spouses in the voter list and in the Ration Card is sufficient proof of the fact that they are married to each other. He further submitted that when the summons were issued to Bhagirath in proceedings of maintenance by the competent trial court, Shri Pradeep S/o Bhagirath and Smt.Shanti accepted the notice and marked a reply that his father Bhagirath was posted as a Patwari and was presently serving at Gharsana. He urged that this categoric admission as recorded in the contemporary proceedings between the parties is also sufficient to draw an inference regarding the second marriage of Bhagirath and Smt.Shanti. He thus craved dismissal of the instant revision.
I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and have gone through the impugned order as well as the record.
Law is well settled by a catena of decisions rendered by Hon'ble Supreme Court including those relied upon (supra) by learned counsel for the petitioners that in order to bring home the charge of bigamy, the complainant has to prove by positive evidence that the accused performed the necessary rites and ceremonies essential for solemnising a hindu marriage viz. Satpadi etc. A bald allegation/aspersion that the accused had married each other is not sufficient to satisfy this test. Even the admission of (4 of 5) [CRLR-1407/2015] second marriage by the accused in any contemporary document will not absolve the complainant of this burden. Mere bringing on record, the entries made in the voter list/Ration Cards cannot be accepted as conclusive proof of second marriage in absence of evidence to show that such marriage was solemnised after performing the requisite rites and ceremonies etc. It is an admitted position as reflected from record that the complainant Balli Devi, who was the only witness examined in support of the complaint, did not even claim to have seen the marriage of the present petitioners with each other. The entire bulk of the prosecution allegations is based on inferences sought to be drawn from the ration card, voter list entries and reports made on summons of other proceedings instituted inter-se between the parties portraying the petitioners to be spouses. Suffice it to say that these documents may give indication about presence of another woman (Smt.Shanti Devi) in Bhagirath's household but by no stretch of imagination can the same be used to draw an inference that she is legally wedded to Bhagirath. Since the complainant failed to lead any evidence whatsoever so as to prove that the petitioners had married each other by performing the necessary rites and ceremonies as per hindu customs, manifestly the prosecution of the petitioners for the offence of bigamy is impermissible.
As a consequence of the above discussion, this Court is of the firm opinion that the revisional court was not at all justified in setting aside the well reasoned order dated 28.11.2014 passed by the trial court discharging the accused from the offence under (5 of 5) [CRLR-1407/2015] Section 494 I.P.C.
Accordingly, the revision succeeds and is hereby allowed. The impugned order dated 31.10.2015 passed by learned Additional Sessions Judge No.3, Bikaner in revision is set aside and consequently, the order dated 28.11.2014 passed by learned Special Chief Judicial Magistrate (PCPNDT Act Cases), Bikaner in Cr.Case No.133/2014 is restored. The accused petitioners are discharged from the offence under Section 494 I.P.C.
Stay petition is disposed of.
Record be returned forthwith.
(SANDEEP MEHTA),J.
/tarun goyal/