Karnataka High Court
Sridhar G. Jindgade Alias S.G. Jingade ... vs Smt. Satyavathi on 21 January, 2000
Equivalent citations: 2000CRILJ2862, II(2000)DMC541, 2000(4)KARLJ156
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
ORDER
1. In this revision under Section 397 of Cr. P.C. A-1, 3 and 4 in C.C. No. 102 of 1985 in the Court of Additional Civil Judge and C.J.M., Shimoga and appellants in Cr. A. 49 of 1988 in the Court of Additional Sessions Judge at Shimoga have called in question the legality and correctness of their conviction under Section 494 read with Section 109 of the IPC. Respondent in the revision is the complainant. Another lady Mukta Bai, who was A-2 was acquitted by the Trial Court. I shall hereinafter refer to the parties as they are arrayed in the complaint.
Learned Trial Judge convicted A-1 under Section 494 of the IPC and sentenced him to suffer R.I. for one year and to pay a fine of Rs. 1,000/-and in default of payment of fine to suffer R.I. for two months, further convicted A-3 and 4 parents of A-1 under Section 494 and 109 of the IPC but released them under Section 4 of the Probation of Offenders Act after taking bond from each one of them undertaking to keep good behaviour for a period of 2 years and to receive sentence when they are called upon to do so. A-2 Mukta Bai was acquitted. Complainant Satyavati also filed Cr. A. 54 of 1988 for enhancement of sentence. Learned District Judge who took up the Appeal Nos. 48 of 1988 and 54 of 1988 together, by judgment dated 7-4-1992 dismissed both the appeals. Accused-revision petitioners have called in question the correctness of the said conviction and sentence.
2. Briefly stated the facts are:
A-1 Sridhar G. Jingade, A-2 Mukta Bai, A-3 Gangadhar S. Jingade and A-4 Susheela Bai are Hindus and belong to the community called Bavasara Kshatriya. A-3 and 4 are the parents of A-1. Complainant Satyavati and A-1 Sridhar were married on 5-11-1981 at Shimoga and their marriage was solemnised as per the custom prevailing in their community. Thereafter they lived together for sometime and Satyavati gave birth to a female child on 24-7-1983 by the said wedlock. In the meantime, differences arose between the husband and wife, husband wanted the complainant to go in for abortion, but she declined and as a result they fell apart and lived separately. A-1 was working as Senior Assistant in the Secretariat of the State Government and the complainant was working as a lecturer being a postgraduate.
Further case of the prosecution is that the things as they stood on 7-6-1984 A-1 Sridhar married A-2 Mukta Bai (acquitted) and their marriage was solemnised at Sri Narasimhaswamy Devasthanam, Sree Sibi in the District of Tumkur according to the customs prevailing in their community, all essential religious ceremonies were performed at the time of their marriage and the marriage between A-1 and 2 was celebrated clandestinely in collusion with A-3 and 4. Complainant's case is that her marriage with A-1 and as well the marriage of A-1 with Mukta Bai were celebrated as per the custom prevailing in their community, all essential religious ceremonies were performed and as such both the marriages were valid. Though the marriage between her and A-1 was subsisting A-1 has married A-2 for the second time and thus he has committed an offence punishable under Section 494 of the IPC. A-3 and 4 knowing that the marriage between A-1 and the complainant is subsisting, consciously took part in the second marriage of A-1, therefore, they are liable for punishment under Section 494 read with Section 109 of the IPC.
3. It may be noted that on 7-8-1995 complainant Satyavati filed complaint under Section 200 of the Cr. P.C. before the Prl. Civil Judge and C.J.M., Shimoga against the above named 4 persons and also two others viz., Gujjar Gangoji Rao and Tara Bai, it is stated that those A-5 and 6 are the parents of A-2 Mukta Bai. The Court on 12-8-1985 after recording the sworn statement of the complainant took cognizance of the offence only against A-1 to 4 for offences under Sections 494, 495 read with Section 34 of the IPC. Thereafter, recorded the statement of the complainant and few witnesses and by order dated 30-6-1987 Chief Judicial Magistrate, Shimoga was of the opinion that there is prima facie case to frame charge against A-1 and 2 under Section 494 of the IPC and against A-3 and 4 under Section 494 read with Section 34 of the IPC and accordingly, on 12-7-1987 framed the charge, read and explained the charge to each one of 4 accused persons, they pleaded not guilty. Thereafter, the complainant and the witnesses who had been examined earlier were recalled for further examination, in all the complainant examined 14 witnesses including herself and produced documents Exs. P. 1 to 19, accused got marked Exs. D. 1 to 16. The Court recorded the statement of the accused under Section 313 of the Cr. P.C. Learned Trial Judge after hearing both the parties and by considering the evidence both oral and documentary, by judgment dated 22-6-1988 found A-1, 3 and 4 guilty as indicated above and acquitted A-2. Further, they were sentenced as mentioned hereinabove.
4. Sri Ravi Naik, learned Counsel for the accused vehemently contended that the Courts below erred in recording a finding of guilt against three accused persons, there being no evidence establishing second marriage between A-1 and 2. In elaborating his arguments, he strongly contended that to sustain conviction under Section 494 of the IPC, complainant-first wife is required to prove not only'that her marriage with A-1 was valid in law, but also establish that the alleged second marriage is valid. But the evidence is totally absent and the Courts below have not properly appreciated the evidence and that has lead them to wrong conclusions. There is neither the plea nor evidence establishing that the second marriage was celebrated duly observing the religious ceremonies in accordance with the custom prevailing in their community, undisputably datta homa and saptapadi were not performed at the time of alleged marriage and therefore the marriage even if any between A-1 and 2, it is no marriage in the eye of law. Therefore, conviction of A-1 under Section 494 of the IPC and conviction of A-3 and 4 under Section 494 read with Section 34 of the IPC are not sustainable. In support of his arguments he relied on certain decisions which I would refer to a little later.
5. Sri Kittoor, learned Counsel for the complainant per contra contended that in revision under Section 397 of the Cr. P.C. re-appraisal of the whole of evidence is not permitted. There is overwhelming evidence establishing that both the marriages viz., marriage between the complainant and A-1 and the marriage between A-1 and A-2 were celebrated in accordance with the custom prevailing in their community and all essential ceremonies were performed validating the marriages. The second marriage being performed with due observance of all the religious ceremonies during the subsistance of the first marriage of the accused with the complainant, A-1 is liable for punishment under Section 494 of the IPC and A-3 and 4 for having abated the commission of the said offence punishable under Section 494 read with Section 34 of the IPC, there is absolutely no grounds whatsoever to interfere with the concurrent finding recorded by both the Courts below nor there is irregularity in the procedure warranting interference by this Court in exercise of its revisional powers. He also relied on two decisions to which I would advert at appropriate stage.
6. Before adverting to the rival contentions in regard to the appreciation of evidence, it would be appropriate to dispose of the question of law raised by the learned Counsel Sri Kittoor. Sub-section (1) of Section 397 reads as follows:
"Section 397. Calling for records to exercise of powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the execution of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 393".
7. A plain reading of Section 397 of the Cr. P.C. makes it clear that this Court in order to satisfy itself whether the finding recorded by the Court below is based on proper appreciation of the evidence on record has to consider the evidence. Though this Court on reading the evidence comes to a different conclusion, that cannot be substituted so long as the finding of the Court below is based on proper appreciation of the evidence and there is no mis-reading or omission in considering any part of the evidence. The power of revisional Court may not be as large or as wide as that of the Appellate Court, but for limited purpose of satisfying as to the correctness of the finding of the Court below, this Court will have to look into the evidence.
8. In order to sustain a conviction under Section 494 of the IPC, the complainant is required to prove (1) that there is marriage between her and the accused on 5-11-1981; (2) that A-1 contracted second marriage with A-2 while her marriage with him was still subsisting; and (3) that both the marriages were solemnised strictly in accordance with law or according to the customary rites and ceremonies that prevailed in their community.
9. In the instant case, parties are Hindus. Section 5 of the Hindu Marriage Act, 1955 permits solemnisation of the marriage between two Hindus provided the conditions stipulated therein are fulfilled. One of the conditions viz., contained in Section 5(i) of the Hindu Marraige Act prohibits solemnisation of a marriage if either party to the marriage has a spouse living at the time of second marriage. Section 7 of the Act provides for solemnisation of marriage between the two Hindus in accordance with the customary rites and ceremonies of either party to the marriage. However, it stipulates that if such rites and ceremonies include saptapadi, vis., taking of 7 steps by the bridegroom and the bride jointly before the sacred fire, marriage becomes complete and binding only when 7th step is taken. It is thus clear that performing saptapadi is required and a must if that ceremony is followed as a custom by the people in the community to which parties belong. In other words, marriage between two Hindus without the performance of saptapadi would be valid if the custom to which the parties belong do not observe that ceremony during marriages. According to Section 17 of the Act, second marriage would be void if on the date of such marriage either parties had a husband or wife living, and to such cases provisions of Sections 494 and 495 of the IPC. would accordingly apply.
10. Substance of the case of the complainant is that she and the accused belong to Bavasara Kshatriya and in their community saptapadi is not one of the ceremonies to be performed at the time of marriage. Further, it is stated that the ceremonies observed at the time of marriage in their community are Ganesh Pooja, Mangalya Pooja, tieing of tali and invitees putting Akshata on the head of both bride and bridegroom. It is also stated that there would be exchange of garlands by the bride and the bridegroom and after these formalities are observed marriage is completed and the invitees would be fed.
11. In order to prove the marriage between the complainant and A-1 on 5-11-1981 complainant has examined herself, her brother K.M. Sathyanarayana, P.W. 13, Sridhara Murthy and P.W. 14-S. Nagaraja, P.W. 13-Sreedhara Murthy also belongs to the community to which the parties belong and he states that in their community neither Datta Homa nor Saptapadi is being observed at the time of marriage. He only speaks to the observance of the ceremonies which I have indicated above. It would appear that the complainant Satyavati lived as a tenant in the outhouse of this person for sometime and this witness states that in the year 1983 certain documents were obtained by A-1 from the complainant by force. P.W. 14-S. Nagaraj is a purohit by profession. He states that he officiated the marriage of the complainant and the accused and their marriage was solemnised with due observance of all the religious ceremonies that are prevailing in the community to which they belong and their marriage was celebrated at Gowdasaraswata Kalyana Mantapa, Shimoga. He further states that he has officiated innumerable marriages exceeding 500 of the persons belonging to Bavasara Kshatriya Community and in those marriages saptapadi was never observed nor it was a ceremony that was a must amongst the persons belonging to that community. Nothing substantial is elicited in his evidence to discard his evidence as unworthy of credence. K.M. Satyanarayana, brother of the complainant also speaks to the marriage. It is necessary to note that on 5-11-1981 there was a marriage by exchange, complainant's brother Satyanarayana marries Leelavathi, sister of the accused and both the marriages were celebrated at Gowdasaraswata Kalyana Mantapa, Shimoga. P.W. 14 has officiated marriage of Satyanarayana and Leelavathi. The evidence reveals that unfortunately even that marriage is broken and both Satyanarayana and Leelavathi lived separately. It is submitted at the hearing that recently Leelavathi died. Learned appellate Judge has considered the evidence of P.Ws. 11, 12, 13 and 14 elaborately and only thereafter concludes that their evidence establishes beyond a ray of doubt that the marriage between the complainant and A-1 was solemnised on 5-11-1981 at Gowdasaraswata Kalyana Mantapa at Shi-moga with due observance of all the rites and religious ceremonies that prevailed amongst the people belonging to the community of Bavasara Kshatriya. The fact that the parties to the proceeding belong to Bavasara Kshatriya community is not in dispute.
12. Added to this, learned Judge has also taken into consideration the other circumstances that emerge from the evidence on record as corroborating piece of evidence to establish the marriage between the complainant and A-1. Ex. P. 10, 11 and 12 are the postal inland letters and they are written by the accused to the complainant. In one of those three letters, accused finds fault with the complainant for having not gone into abortion after conceiving for the first time. It has also come in evidence that in the year 1984 complainant filed a petition under Section 125 of the Cr. P.C. in the Court of J.M.F.C., Shimoga claiming maintenance. A-1 also filed a petition under Section 13 of the Hindu Marriage Act during the same year in the Court of City Civil Judge, Bangalore seeking divorce. Ex. P. 13 is the copy of the petition under Section 13 of the Hindu Marriage Act. It is significant to note that in para 2 of the petition accused has said that the marriage between him and the complainant was solemnised on 5-11-1981 at Gowdasaraswata Kalyana Mantapa, Shimoga as per the Hindu marriage rites and customs prevailing in their community. An admission in a case of this nature may not be sufficient to consider a marriage between the parties as a valid marriage but all the more admission requires to be considered along with other evidence and on such consideration if it establishes that the marriage between the complainant and the accused was performed according to the ceremonies prevailed in the community to which they belong, that admission has to be accepted and acted upon. In the instant case, there is overwhelming oral evidence establishing that the marriage between the complainant and the accused was solemnised according to the religious ceremonies that prevail in their community, Saptapadi was not one of the ceremonies observed at the time of marriage. Therefore, in the circumstances, this another piece of evidence coupled with what is stated in Exs. P. 10, 11 and 12 would support and establish that there was a valid marriage between the complainant and A-1. An attempt was also made in the earlier proceedings to show that the complainant divorced voluntarily by making a deed on 26-5-1983. Ex. P. 17 is the document. P.W. 13-Sreedhara Murthy states that certain documents were obtained from the complainant by the accused by force. Whatever that may be, suffice it to say that a marriage between two Hindus cannot be dissolved by either party either by unregistered document or by a registered document, without the intervention of the Court. Section 13 provides for the dissolution of a marriage between two Hindus in certain circumstances, Section 13-B provides for dissolution by mutual consent. It is not shown that the parties viz., the complainant and A-1 approached the Court under Section 13-B of the Act and there was a dissolution of their marriage by the Court. Ex. P. 17 can be looked into for a limited purpose viz., to read whether there was a valid marriage between the complainant and A-1. In fact, in para 6 of the petition under Section 13 (Ex. P. 13) A-1 has clearly said that such a document was executed though in fact he states that it was a voluntary act on the part of the complainant.
13. Divorce proceedings in the year 1984 is not disputed. In paras 4 and 6 of the said petition Ex. P. 13, A-1 states that the complainant suffered from skin disease. Complainant has examined P.W. 5-Dr. K. Lakshmana Rao, a Dermatologist who states that the complainant had been treated earlier but she had no such skin disease. Complainant (P.W. 11) states that the accused had taken her to a doctor by force for certain treatment, she developed some irritation and therefore she went to P.W. 5 and took treatment, thereafter she had no problem. Reading Exs. P. 10 to 13 and 17 together would demonstrate that there was a serious attempt by the accused to part ways with the complainant before he went for second marriage on 7-6-1984. This would strengthen the oral evidence of P.W. 11 to 14. Therefore, in the circumstances, finding of the Court below that there was valid marriage between the complainant and A-1 cannot be faulted.
14. It is not shown that the marriage between the complainant and the accused was dissolved in accordance with the provisions contained in the Hindu Marriage Act, 1955 at anytime after the marriage and before the complaint. Complainant's case is that though her marriage with A-1 was subsisting he contracted second marriage with Mukta Bai (A-2) on 7-6-1984 at Sri Narasimhaswamy Devasthanam at Sibi in Tumkur District. Suffice it to say that when second marriage is contracted during the subsistence of first marriage, second marriage would normally be celebrated clandestinely. Therefore, there is nothing surprising if the marriage of A-1 with one Mukta Bai was celebrated in a temple situated away from their native place or from the place where they lived.
15. In order to prove the marriage between A-1 and the said Mukta Bai, complainant has examined P.W. 1-T.K. Nallappa, P.W. 2-Satish, P.W. 8-Lakshmi Narasimha Murthy and P.W. 9-Narasanna. Complainant has also tried to show that subsequent to 7-6-1984 accused and Mukta Bai lived as husband and wife and in fact Mukta Bai gave birth to a female child on 6-3-1985 at Civil Hospital, Chitradurga, He has examined P.W. 3- Keshavamurthy, P.W. 4-Vishwanatha, P.W. 6-Dr. P.H. Komala, P.W. 7-Smt. Anthoniamma and P.W. 10-Jayarama. Documents Exs. P. 1, 2 to 5 and 7 are produced to substantiate the evidence of the above mentioned witnesses.
16. P.W. 1-T.K. Nallappa is the Dharmadarshi of the temple Sri Narasimhaswamy Devasthana, P.W. 8-Laxminarasimha Murthy is the archak in the said temple, P.W. 9-Narasanna is his assistant. Sri Nallappa states that few days earlier to 7-6-1984 father of Mukta Bai approached him and settled the date of her marriage on 7-6-1984, he collected the marriage kanike and issued receipt. Ex. P. 1 is the receipt book and Ex. P. J(a) is the relevant receipt. Further he states that on 7-6-1984 about 20-25 persons went to the temple, A-3 and 4 were also amongst them and the marriage between A-1 and Mukta Bai was solemnised in accordance with the rites and ceremonies prevailed amongst their community. P.W. 8-archak in the temple states that the parties belong to darji community and the marriage of accused was solemnised with Mukta Bai between 10 to 11 a.m. about 20 to 25 persons attended the wedding, marriage was solemnised by performing Ganesha Pooja, Mangalya Pooja and putting of akshata by the persons present. P.W. 9-Narasanna supports the statements of P.Ws. 1 and 8. Suffice it to say that nothing substantial is brought out in their evidence indicating that performance of saptapadi was a must in marriages between two Hindus belonging to Bavasara Kshatriya. Except a bare suggestion to one of them, nothing substantial is elicited to indicate that saptapadi is one of the ceremonies which required to be performed at the time of wedding nor there is evidence worth the name to show that performance of homa was also a must. P.W. 2-Satish states that he attended the marriage and took part in the proceedings. He states that he is a tailor by profession and friend of one Gnaneshwara, elder brother of Mukta Bai, therefore he attended the marriage. Learned Counsel for the accused inviting my attention to his evidence argued that his evidence cannot be believed for the reason that he is totally a stranger or at least he is interested. If he was interested and a friend of Gnaneshwar, elder brother of accused Mukta Bai, he would not have volunteered to say that there was a marriage between Mukta Bai and A-1. It is not even suggested to him that he did not know Gnaneshwar. On the other hand, he states in cross-examination, Gnaneshwar married 3 months before. Whatever that may be his evidence finds corroboration as rightly pointed out by the Courts below from the evidence of P.Ws. 1, 8 and 9.
17. It is also the case of the complainant that after the marriage they lived at Bangalore for sometime. Mukta Bai, having conceived was sent to her parents place. P.W. 4-Vishwanatha speaks to the fact that accused and Mukta Bai lived together in the house belonging to him. No doubt, it is brought out in cross-examination that he had filed an eviction petition against A-1 but that does not in the circumstances of the case sufficient to reject his evidence as unworthy of credence and more importantly for the reason that his evidence is corroborated by the evidence of P.Ws. 1, 2, 8 and 9.
18. In order to show that Mukta Bai was admitted to Civil Hospital for delivery at Chitradurga, complainant has examined P. Ws. 3, 6, 7 and 10. P.W. 7-Anthoniamma is the nurse who attended on the lady, P.W. 6 is the doctor on duty at that relevant time, P.W. 3 was a clerk in the Civil Hospital who has maintained register Ex. P. 2, Ex. P. 3 is the case sheet and Ex. P. 7 is another case sheet. Their evidence substantially establishes that Mukta Bai had been admitted to hospital and on 6-3-1985 at 6-30 p.m. she gave birth to a female child. True some of them were not able to identify as to who Mukta Bai was, but the entries in the documents referred to above reflects that it refers to A-2 Mukta Bai. There are certain corrections in one of the documents. The Court has said that they are not serious corrections which would destroy the cumulative effect of evidence of P.Ws. 3, 7 and 9 particularly when their evidence find corroboration from other attending circumstances and the evidence of other witnesses. On a careful scrutiny of the evidence of the above mentioned witnesses, I hardly find any ground to fault the finding of the Court below nor to say that appreciation of evidence is perverse and the finding is not based on proper appreciation.
19. Sri Ravi B. Naik, learned Counsel, submitted that there being no plea in the complaint that the marriage between A-1 and 2 was performed as per custom dispensing with saptapadi, it cannot be said that their marriage is a valid marriage. In support of his arguments, he invited my attention to two decisions of Supreme Court in Lingari Obu-lamma v L. Venkata Reddy and Others and Santi Deb Berma v Smt. Kanchan Prava Devi. In Lingari Obulamma's case, supra, the Apex Court on facts found that there was no proof of valid marriage and further said that there is no evidence to prove that any of the two essential ceremonies have been performed at the time of alleged second marriage. Further, it also noticed that there was no mention in the complaint as to whether the parties were governed by custom in derogation of Hindu Law. In Santi Deb Berma's case, supra, the Supreme Court said that in the absence of plea that the marriage was performed as per custom, oral evidence and letters to the effect that accused and his alleged second wife were living as husband and wife would not be sufficient to draw inference as to the performance of ceremonies essential for valid marriage. But in the instant case, circumstances are different, in para 6 of the complaint, complainant has clearly stated that the marriage between A-1 and 2 was celebrated on 7-6-1984 at Sibi Narasimhaswamy Devasthana in Tumkur District as per the customs and reiigious ceremonies followed by the parties. No doubt, apart from the plea the complainant has also adduced evidence to which I have referred to above. The witnesses categorically stated that saptapadi and homa are not observed during the marriage by the people belonging to Bavasara Kshatriya to which the parties belong.
20. Learned Counsel further submitted that it is necessary for the complainant to prove that both the marriages were valid marriages, viz., that they were celebrated with due observance of the ceremonies. In support, he relied on the decision of the Supreme Court in Kanwal Ram and Others v Himachal Pradesh Administration, and of the Bombay High Court in Godawari v State of Maharashtra and Others. This proposition of law cannot be disputed. In fact, in the case on hand, the Courts have considered the evidence and only thereafter conclude that both the marriages viz., the marriage between the complainant and A-1 and the marriage between A-1 and 2 were celebrated by observing all the religious ceremonies and on a second look at the evidence I have said that finding cannot be faulted. He further contended that mere presence of a priest at the time of alleged marriage is not sufficient to make a marriage complete and binding, observance of ceremonies such as sapta-padi must be established. He relied on the decision of the High Court of Jammu and Kashmir in Tej Kaur v Hakim Singh . In the instant case, complainant has not only shown the presence of a priest but the two priests viz., P. Ws. 8 and 9 speak that the marriage was solemnised by observing religious ceremonies that prevailed amongst the people to which the parties belong. Their evidence also discloses that in the marriages amongst the persons belong to Bavasara Kshatriya Community saptapadi is not observed. Law requires the observance of saptapadi if the custom provides for it. In the instant case, oral evidence coupled with the attending circumstances and certain documents establish the marriage between the parties, not only it proves the marriage but the witnesses very clearly and unmistakably speak about the religious ceremonies that were observed at the time of the marriage of the complainant and as well at the marriage of the accused with Mukta Bai. In such circumstances, evidence cannot be brushed aside unless the evidence to the contrary is adduced by the party who disputes the marriage. In the instant case, except few suggestions nothing more is made out by the accused to show that in the marriages of the people belong to Bavasara Kshatriya Community observance of saptapadi is a must nor the accused have shown that all the religious ceremonies that were required to be performed were not performed either in the case of first or second marriage.
21. Sri Kittor, on the other hand, inviting my attention to the decision of Kerala High Court in Chakki v Ayyappan, submitted that non-observance of certain ceremonies either ancient and definite or obligatory do not invalidate the marriage. Learned Counsel for the accused further relied on the decision of the Madras High Court in Prasanna Kumar v Dharmlaxmi and Others, and submitted that in the absence of details as to the place, date and form of second marriage not mentioned in the complaint, names of witnesses who are alleged to have witnessed the second marriage not given in the complaint, the Court cannot say that the marriage was proved beyond doubt. In para 6 of the complaint, complainant gives particulars as to the place, time, day and date of the second marriage, secondly it is also stated that the marriage was celebrated according to the religious ceremonies followed by the parties. P.W. 2 claims to have attended the marriage, P.W. 1 speaks of his presence at the time of marriage, P.Ws. 8 and 9 are the purohits in the temple and they also speak about the second marriage, we find the names of these 4 persons in the complaint. Thus, the complainant has not only given the particulars as to the place, day, date and time of the marriage but also gives the names of persons who attended the marriage in the list of witnesses. Therefore, accused cannot seek any assistance from this decision.
22. In view of the reasons hereinabove stated, I am of the considered opinion that the revisions petitioners-accused have failed to make out substantial grounds warranting interference with any of the findings recorded by the Courts below.
It is submitted at the hearing that 3rd revision petitioner Smt. Susheela Bai (A-4 before Trial Court) died during the pendency of this revision. Therefore, revision petition as far as 3rd revision petitioner is concerned, it abates. A-3 and 4 are the parents of A-1. It is in evidence of P.Ws. 1, 2, 8 and 9 that these two were present at the time of second marriage of the accused. Though an attempt is made to introduce the theory of divorce by an unregistered document Ex. P. 17, it is no divorce in the eye of law. Therefore, the presence of A-3 and 4'at the time of second marriage would establish that they knowing that first marriage between the complainant and the accused was subsisting, assisted A-1 in going for the second marriage. Therefore, in the circumstances, conviction of either A-1 or A-3 (revision petitioners 1 and 2) cannot be disturbed.
23. Lastly, Sri Ravi Naik contends that having regard to the peculiar facts and circumstances of the case, sentence imposed on A-1 is severe and needs to be modified. In elaborating, he contended that the litigation is pending for nearly 15 years, A-l is aged about 55 years, he was a Senior Assistant in the Finance Department, Government of Karnataka, and but for this conviction he would have been promoted as an officer. On the other hand, because of this conviction, he lost his job and today he is unemployed and he is living at the mercy of his brothers. The agony he suffered during these 15 years cannot be compensated either in terms of money or otherwise. A-1 under the bona fide belief that the complainant was suffering from skin disease parted ways with her and that is exactly the reason as to why he wanted her to go in for abortion. In these circumstances A-1 deserves sympathy and the sentence needs to be modified.
Sentence provided for an offence under -Section 494 of the IPC, is seven years imprisonment and also fine. Trial Judge sentenced the accused to suffer R.I. for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to suffer R.I. for two months. Sri Kittor, learned Counsel submits that A-1, being a Government Servant has gone in for second marriage, complainant with the small child was deserted immediately after the marriage and she has equally suffered mental agony. Therefore, the circumstances do not call for any leniency in the matter.
On a careful scrutiny of the rival contentions and the peculiar circumstances of the case, I find considerable merit in the arguments of Sri Ravi Naik and there are certain mitigating circumstances warranting interference in the matter of sentence. Here there are two unfortunate ladies who suffered at the hands of A-1. Complainant being married was deserted, second one is A-2 in the case who has been married and after the marriage accused looses his job. It is in evidence that the complainant and A-2 each have a female child. Complainant is gainfully employed and therefore economically capable of maintaining her daughter. On the other hand, A-2 is in difficulties for the reason that A-1 is thrown out of the job. Secondly, and as rightly pointed out by Mr. Ravi Naik, learned Counsel that the litigation has dragged on for 14 to 15 years and obviously both the accused and the complainant have suffered mental agony. It is submitted that during these 14 years, A-1 has also lost his mother, not only mother but his sister Leelavathi, who married the brother of the complainant on the same day of his marriage. It is stated that Leelavathi died recently. These factors, in my humble view calls for leniency in the matter of sentence as far as A-1 is concerned. There is no need for interference with the discretion exercised in the case of A-3 (2nd revision petitioner herein) for the reason that he was released on probation of good behaviour for a period of two years which has now expired.
24. In the result, this revision is partly allowed. While confirming the conviction of both revision petitioners 1 and 2 A-1 and 3 respectively in the Trial Court), sentence in the case of 1st revision petitioner is modified, he is sentenced to suffer simple imprisonment for one month and to pay a fine of Rs. 5,000/- and in default to suffer further simple imprisonment for 2 months. If the fine amount is recovered, whole of it shall be paid to the complainant P.W. 11-Satyavati.