Bombay High Court
Ramabai Wife Of Nivrutti Chavan vs Nivrutti Nimbhaji Chavan And Ors. on 18 August, 1987
Equivalent citations: 1988(2)BOMCR161
JUDGMENT M.S. Ratnaparkhi, J.
1. An order of acquittal passed by the Judicial Magistrate, First class, Mehkar on 3-8-1982 acquitting the accused Nos. 1 and 7 of the offence punishable under section 494 of the Indian Penal Code and the accused Nos. 3,4,5,6 and 9 of the offence punishable under section 494 read with section 109 or in the alternative read with section 34 of the Indian Penal Code in Criminal Case No. 502 of 1977 has been challenged in this appeal.
2. Nivrutti Nimbha Chavan is a resident of village Nimbha in Mehkar Tahsil of Buldana district. He married the complainant-appellant Ramabai about 7 or 8 years prior to the initiation of these proceedings. After the said marriage, Ramabai was staying with Nivrutti at the matrimonial house. Thereafter, according to the complainant she was ill-treated and ultimately driven out. Since then she is staying with her parents at the village Shelgaon-Kakda in the same Tahsil and District.
3. On 22nd April, 1977, according to the complainant, respondent No. 1 Nivrutti married respondent No. 7 Viju at the village Kalpira in Mehkar Tahsil. All the ceremonies essential for the marriage were performed. Since then Viju is staying with Nivrutti as his wife. Accused No. 2 Nimbha was the father of Nivrutti, accused No. 5 Sugandhabai is the mother of Nivrutti. Accused Nos. 3 and 4, husband and wife, are close relations of Nivrutti. Original accused No. 6, Kashinath and respondent No. 7, Janabai are the parents of accused No. 7, Viju. It is the complainant's case that accused Nos. 2, 3, 4, 5, 6 and 8 abetted in the completion of that marriage. The complainant has come before the Court with the case that the marriage was performed while the first wife of accused No. 1 Nivrutti was still living and their marriage still continued. Therefore, accused abetted that offence.
4. During the pendency of the trial original accused No. 2 Nimbha died and the trial abatted against him. On recording the verification the accused were summoned. Evidence was recorded before charge and accordingly a charge under section 494 of the Indian Penal Code came to be framed against the accused no. 1, whereas charge under section 494 read with section 109 or in the alternative read with section 34 of the India Penal Code came to be framed against all the other accused. The defence of the accused is purely of denial.
5. The complainant examined herself and three other witnesses. On examining the accused and on hearing the arguments on both sides the learned Magistrate came to the conclusion that the charge was proved against none of the accused and acquitted them. It is this order of acquittal which has been challenged in this Court.
6. Mr. Khapre the learned advocate for the appellant, Mr. V.M. Kulkarni, the learned Advocate for the respondents No. 1 and 6 and Mr. Habibuddin, the learned additional Public Prosecutor for the respondent State have taken us extensively through the evidence adduced before the lower Court. It was the contention of Mr. Khapre that the evidence has not at all been properly appreciated and as such there has been miscarriage of justice. There is considerable force in the argument advanced by Mr. Khapre. We do not find that the trial Court has only reproduced the synopsis of the evidence in its judgement. There has been no process of marshalling the evidence and consequently no finding has been recorded on any of the points involved in this controversy. It will, therefore, be necessary to appreciate the whole evidence.
7. Ramabai has been examined as P.W. 1 at Exh-19. She deposed that she was married to the accused No. 1 about 7 or 8 years prior to her entering the witness box. According to her, the sacred fire was kindled, seven steps were taken by her and her husband round the sacred fire and both of them garlanded each other. After the marriage she stayed with the accused No. 1 at Nimbha. She further states that while she was staying with her husband, he was unnecessary beating her and thereafter reached her to her parents residence at Shelgaon-Kakda. She is thus staying with her parents since the last 2 or 3 years. This is about the first marriage between her and the accused Nivrutti. She also states in her evidence that accused No. 7 is the relation of accused No. 1 and she used to come to Nimbha quiet often along with her father. They knew about her marriage since before. She has been cross-examined on this point. No question has been asked regarding the validity or otherwise of the first marriage. She has been generally cross-examined about the so called ill-treatment. She admits that she did not lodge any complaint with the police about the ill-treatment at the hands of accused No. 1. She admits that she did not serve any notice on her husband. She has not filed any maintenance proceedings against her husband. She also states that they belonged to the Mahar community initially and they have embraced Buddhism of late. But according to her, there is not much difference between the ceremonies of marriage in the former system and the latter system. On the other hand she states that the ceremonies are similar in both the systems. In her cross-examination a question was put to her that the accused No. 1 published a notice in Daily Shiv Shakti of 16-11-1976. According to her, after the publishing of this notice, she went to stay with the accused Nivrutti, but thereafter she was driven out. This is in short the testimony of this witness.
8. Bhika has been examined as P.W. 2. According to him the complainant was married to accused No. 1 about 7 or 8 years back. New clothes was offered to them, turmeric powder was applied, their clothes was knotted and the bride and bridegroom garlanded each other. Steps before the nuptial fire were taken. Thereafter the complainant started staying with her husband, but soon she was driven out of the house. The cross-examination is directed not upon the factum of the first marriage, but about the ill-treatment following the first marriage. In fact we are not much concerned with the ill-treatment in the present case. Enough to point out the factum and legality of the first marriage has not at all been challenged.
9. Dharu Mohanaji is P.W. 3. He knows the accused as well as the complainant. He states that the complainant and the accused no. 1 were married according to the Mahar customs about 7 or 8 years back. Mangalastakas were chanted and seven steps were taken around the sacred fire. After the marriage the complainant was staying with the accused no. 1, but the accused no. 1 drove her out. He further states that the marriage ties between the complainant and the accused no. 1 are subsisting and there has been no divorce between them. He states that he is a distant uncle of the complainant and he has embraced Buddhism about 3 or 4 years back. There is no cross-examination on the factum and legality of the first marriage.
10. Janu Ananda Kankal is the last witness (P.W. 4) examined by the complainant. He states that the accused no. 1 is his relation. According to him the marriage between the complainant and the accused no. 1 was celebrated about 12 or 13 years back at Shelgaon-Kakde. He attended that marriage. According to him there was Hom and seven steps were taken around the sacred fire.
11. Thus as far as the evidence regarding the marriage between the complainant and the accused no. 1 is concerned there is believable evidence from the witnesses that this marriage was celebrated and it was valid. In fact the accused No. 1 has admitted the factum of marriage between him and the complainant in his examination under section 313 of the Code of Criminal Procedure. It may be pointed out at this stage that the trial Court examined the accused but the questions were very complicated and the grievance was made before us that one question contained more than 4 or 5 question together and, therefore the accused could not tender the explanation. We, therefore, examined the respondents No. 1 and respondent-original accused no. 7 in this Court and each incriminating circumstance was put to the respective accused and they have given the necessary explanation to each circumstance. In his examination under section 313 of the Code of Criminal Procedure, the accused-respondent No. 1 has admitted the factum of marriage between him and the complainant. To that extent the credibility is added to the testimony of the complainant and her witnesses as far as the first marriage is concerned. Once the factum of marriage is established, the continuity thereof is presumed under law unless there is some positive case made out that the marriage does not subsist. In the present case, the accused no. 1 does not say that the marriage does not continue. Even in his examination under section 313 of the Code of Criminal Procedure the accused no. 1 admits that the marriage is still subsisting. While the complainant was under cross-examination, a question was put to her that the accused No.1 published a notice in Daily Shiv Shakti. We have gone through the whole record, but we do not find any such notice in the record. Looking to the evidence as it stands, we have absolutely no hesitation in our mind that the appellant and the respondent No. 1 were married together long before 1977 and their marital ties still subsists.
12. The question which assumes importance at this stage is about the so called second marriage between the accused No.1 and accused No. 7. Ramabai (P.W. 1) has no personal knowledge about the second marriage as she was not present then. She states that she learnt about this marriage from her witnesses. The evidence of the complainant is, therefore, not direct as far as this point is concerned. Bhika Tukaram (P.W. 2) at Exh-30, however, deposed a paragraph 2 of his deposition that while the first marriage between the complainant and the accused No. 1 was in subsistence the accused No. 1 married accused No. 7. The witness had been to the village Kalpira as his cousin brother is staying there and he personally attended that marriage. He also states that Janu, Kisan and one person from Shelgaon were present at the time of the second marriage. He has given the details of the second marriage. In paragraph 3 of his deposition he states that the accused Nos. 2 and 9 gave new clothes to the accused Nos. 1 and 7 respectively. Third accused applied turmeric powder to the bride and the bridegroom. Sacred rice grains were showered on the couple; Manglastekas were chanted and the clothes of the bride and bridegroom were knotted. According to him, the sacred fire was kindled and the bride and the bridegroom had taken steps round this sacred fire. The witness further deposes that he questioned the accused as to how the accused No. 1 could marry when his first marriage was subsisting. The reply was rather surprising inasmuch as the accused No.1 replied that it was their discretion. He deposes that he returned and informed the father of the complainant regarding the second marriage on the next day. He further states that the accused No. 7 is staying with the accused No. 1 since this marriage.
13. In his cross-examination, he states that he was sitting in the door when the ceremonies were going on. According to him, Janabai Sugandha and the sister of accused No. 1 were applying turmeric powder to the accused No. 7. The time was about 5 p.m. He was not knowing about the marriage before he come to Kalpina. When he went to Kalpina the accused No. 3 told him about the marriage to be celebrated and hence he attended that marriage. He also states that about a week prior to this marriage, accused No. 3, Waman told him about this marriage at the Mehkar Bazar, but he did not inform about this fact to the father of the complainant. The explanation tendered by him for not disclosing this fact was that he was not knowing either the complainant or the father prior to that. A suggestion has been made that there was no second marriage at all and he never attended the second marriage, but he has denied this suggestion.
14. Dharu Mohanaji is a person who knows the accused as well as the complainant. He states that he attended the second marriage. All the accused were present there. He states that the witness had knowledge of the first marriage of the accused No. 1. According to him, the second marriage was celebrated according to the prevailing customs in the Mahar community. He has also given the details. According to him Sangalastekas were chanted. Scented sticks were kindled. Sacred fire was kindled and the bride and the bridegroom took steps round the sacred fire. Since then, according to him, the accused Nos. 1 and 7 are staying together.. In his cross-examination, he states that he does not know the names of all the accused. There was no photograph. He did not raise any objections to the marriage. A suggestion was to put to him that he was not present at the time of second marriage. He has denied this suggestion.
15. Janu Ananda (P.W. 4) has been examined as a witness. He states that he was invited for the marriage by accused No. 2. This second marriage, according to him, was celebrated according to the customs of the community. The sacred fire was kindled and seven steps were taken around the sacred fire. A curtain was held between the bride and the bridegroom and Manglatakas were chanted. According to him, after the marriage he returned back to Nimbha along with accused Nos. 1& 7 as his sister was staying at Nimbha. He further states that since then the accused No. 7 was staying with accused No. 1 as his wife. In his cross examination the witness states that he does not know whether performing second marriage during the life time of the first wife is a crime or not. But he does state that he got the invitation of the second marriage 2 or 3 days prior to the marriage. He did not convey this fact to the complainant. According to him, though the Mahars have been converted to Buddhism, the marriage customs are the same. He has denied the suggestion that he is deposing falsely. In his cross-examination he states that he does not remember the date of the second marriage. A suggestion was given to him that he was not present at the time of the second marriage, but he has denied the suggestion. This is in all the evidence of the witnesses regarding the factum of the second marriage.
16. It is true that no material has been brought on record to suggest as to what is the custom prevailing in the community and what ceremonies are required to be performed for the marriage. But there is evidence to show that the parties initially Mahars and they have embraced Buddhism. There is also evidence to show that the customs of marriage prevailing in the Mahar community and the customs prevailing in the Buddhist community were the same. There is also positive evidence of the witnesses to the effect that some ceremonies such as applying turmeric powder, chanting Mangalastakas, kindling of nuptial fire and taking steps round the fire were performed and these ceremonies are definitely ceremonies in the marriage and in no other celebrations. Mr. V.M. Kulkarni, the learned Advocate for the respondents 1 and 6 did not enlighten us as to whether there were different ceremonies essential for the marriage and which were not performed.
17. The evidence, taken as a whole, it must be admitted, does not establish that all the ceremonies that were necessary for the marriage were performed. But taking into the consideration the examination and cross examination of the witnesses, one thing can be said with good deal of certainty, that on the fateful day the accused No. 1, accused No. 7, their respective relatives and the invitees did assemble at the village Kalpina and they did go through some ceremonies which are the ceremonies necessary for the marriage (though they cannot be exhaustive). This much inference is possible from the evidence that has been brought on record. The evidence of the prosecution witnesses came to be commented on behalf of the respondent Nos. 1 and 6 and particularly, the conduct of the witnesses in attending the marriage which is barred by the law and the failure of the witnesses to inform this fact to the aggrieved party were pressed. We cannot ignore that the witnesses in this case are coming from a rustic community where they may not be conscious of the fact that such marriage is barred by law. Their subsequent conduct is thus not very relevant or material for the purpose of this controversy, nor can this conduct be called as unnatural.
18. Thus what can be said with good deal of certainty is that some ceremonies essential for the performance of the marriage were gone through and since then accused No. 7 and accused No. 1 are staying together as husband and wife. Not only that but it is an admitted position that the accused no. 7 gave birth to two children after this wedlock. We are not taking this fact as an admission of the factum of marriage. But the fact does lead us to the conclusion that since the so called marriage the accused No. 1 and accused no. 7 are posing themselves to the society as husband and wife.
19. The charge against the accused No. 1 is of a bigamy punishable under section 494 of the Indian Penal Code. This charge consists of marrying a second wife when the first marriage is still subsisting and first wife is still in existence. To sustain a charge under section 494 of the Indian Penal Code the prosecution has to prove beyond any reasonable doubt that the second marriage is complete and valid in all the respects. It is not enough to prove merely the factum of marriage but is equally necessary to prove even the validity of the marriage and can only be proved by establishing that all the requisite necessary ceremonies for the marriage were properly performed. In Bhaurao Shankar Lokhande v. State of Maharashtra, , the Supreme Court observed :
"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 bear fact of a man and a woman living as husband and wife does 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".
In paragraph 5, the Supreme Court observed :
"The word 'solemnize' means in connection with the 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 'solemnized'. It is, therefore, essential, for the purpose of section 17 of the Act, that the marriage to which section 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Mere 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."
20. In view of the observations of the Supreme Court, it cannot be said with any degree of certainty, that the requisites of a valid marriage according to law has been established in the present case. The marriage thus cannot be called a valid marriage within the meaning of section 494 of the Indian Penal Code. The marriage in order to be one under section 494 I.P.C. require to be a valid marriage. There being no proof that there was a valid marriage between the accused Nos. 1 and 7 it cannot be said that the offence under section 494 of the Indian Penal Code has been made out.
21. What was urged before us was rather an interesting question. Mr. Khapre, the learned Advocate for the appellant was conscious of the fact that his client could not successfully establish the validity of the marriage because of the discrepant evidence. What he urged before us was that this marriage was not a valid marriage within the meaning of section 494 I.P.C. Still there is good evidence on record to show that some ceremonies essential for the marriage were performed and as such there being no proof of performance of all ceremonies necessary for the marriage it can be held without any difficulty that there was an attempt to commit a bigamous marriage and this attempt in itself is punishable under section 511 read with the section 494 of the Indian Penal Code. The argument is no doubt ingenious. We tried to find out whether any precedents were available on this subject. The learned Advocates for the respective parties could not point out any precedents on that subject. As this point was argued before us, it will be necessary to decide whether this case comes within the four corners of the 'attempt' defined in section 511 of the Indian Penal Code.
22. Mr. Kulkarni, the learned Advocate for the respondents Nos. 1 and 6 urged before us that no specific charge has been framed under section 511 I.P.C. and hence that case cannot be considered at this stage. On the other hand Mr. Khapre, the learned Advocate for the appellant urged before us that there was no need to frame a separate charge under section 511 of the Indian Penal Code. He invited our attention to sub-section (3) of section 222 of the Code of Criminal Procedure which reads as follows :
"(1) When a person is charged with an offence consisting of several particulars, a combination of some of which constitutes a complete minor offence, as such combination is proved, he may be convicted of the minor offence though he was not charged with it.
(2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence, although the attempt is not separately charged.
(4) Nothing of this section shall be deemed to authorise a conviction of any minor offence, where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
Sub-section (3) of section 222 of the Code of Criminal Procedure thus permits a Court to convict an accused of an attempt to commit offence even though no separate charge of attempt is framed. This is a complete answer to the objection raised by Mr. Kulkarni. The omission to frame charge for the attempt thus need not detain us.
23. Before we proceed the discussion on the subject, let us recapitulate the facts which are established on record.
(1) The factum of marriage between the appellant and the respondent No. 1 prior to 1977 has been established beyond any reasonable doubt. The answer to questions 1 & 4 by respondent No. 1 adds to the credibility of the evidence regarding not only the factum but also to the validity of the marriage. In fact validity of the first marriage has not been challenged. Attempt was made to show that the first marriage has been dissolved, but this fact has not at all been established. The very fact that the accused No. 1 accepts the position that the first marriage still subsists is a good circumstance to establish that the first marriage was there as a fact and that marriage still continues.
(2) Though it cannot be said with any degree of certainty that the second marriage has been established, still the evidence on record establishes the fact that there was a congregation at the village Kalpira in which the accused No.1, accused No. 7, their relations and the invitees were present. In this congregation new clothes were supplied to the accused Nos. 1 & 7, turmeric powder was applied to both of them; nuptial fire was kindled; bride and bridegroom took steps around the nuptital fire; Mangalastakas were chanted and the sacred rice grains were showered on the couple. These are the facts which can be safely be inferred from the evidence that has been brought. Though we cannot say with certainty that all these facts taken together complete the marriage, it can be said with good deal of certainty that these are two requisites in the marriage and marriage only. No other ceremony except the marriage requires the observance of all these facts together. Mr. V.M. Kulkarni urged before us that some people do perform the ceremonies before they keep a girl as a keep, but except for the arguments coming from Mr. Kulkarni, we did not find any evidence justifying the performing all these ceremonies merely for the purpose of keeping a girl as a keep. In fact no ceremonies are required for that purpose. The ceremonies are required only for celebrations like marriage, birth, naming etc. etc. It can, therefore, be reasonably held that though the second marriage is not proved according to the requirements of section 7 of the Hindu Marriage Act, still some ceremonies required for that marriage were infact performed.
(3) Since then the accused No.1 and accused No. 7 are living together and they are showing to the whole world that they are husband and wife and actually two children have been begotten to them after the so-called second marriage.
24. It is on the background of these well established circumstances that we are required to consider whether an offence of attempt to commit a bigamous marriage has been established in this case. Mr. Habibuddin, the learned Additional Public Prosecutor who represented the State, strenuously urged before us that the offence of a bigamy defined in section 494 of the Indian Penal Code is a specific offence which does not admit of 'attempt'. His main argument was that it is only the bigamous marriage which has been made penal under section 494 IPC. According to him, in view of the Supreme Court decision in Bhaurao Lokhande's case (cited supra) a marriage in order to come within the four corners of section 494 IPC has necessarily to be a valid and complete marriage and as long as it is not complete and valid marriage, there can be no attempt to commit the offence within the meaning of section 494 IPC. What we found from the arguments of Mr. Habibuddin is that there are categories of offences, some of which admits the offence of attempt and some of which do not admit the offence of attempt. When we examined section 511 IPC we did not find that such artificial classification was justified. In order to appreciate the arguments of Mr. Habibudin, it would be beneficial to reproduce section 511 of the Indian Penal Code. It reads as follows :
" Whoever attempts to commit an offence punishable by this Code with imprisonment for life or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall, where no express provision is made by this Code, for the punishment of such attempt be punished with imprisonment for any description provided for the offence, for a term which may extend to one and a half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence or with both."
What we get from section 511 IPC is not the artificial classification contemplated by Mr. Habibuddin. On the other hand, section conveys that the IPC itself classifies attempt to commit an offence as the substantive offence, for example, attempt to commit murder, attempt to commit suicide. Sections 121,124,125,130 etc. etc. are such offences, though they are treated as substantive offences by the Code itself. Leaving the categories of such offences aside, we have to consider the offence of attempt envisaged by section 511 of the Indian Penal Code. The ingredients of this section, as are evident from the section itself, are (1) that an offence is punishable by this Code with imprisonment for life or imprisonment, (2) or to cause such an offence to be committed. (3) in attempting so, does any act towards the commission of the offence and (4) where no express provision is made by this Code for the punishment of such an attempt. It is only in view of this fourth ingredient that categories of offences defined in sections 121, 124, 125, 130, 161, 162, 163, 196, 198, 200, 307, 308 and 309 IPC are to be left outside as they do not fall within the category of the attempts. Attempts under section 511 IPC are separately provided by the Code itself. There is no scope for further categorisation as contemplated by Mr. Habibuddin. We have only to see whether the offences are punishable with imprisonment for life or imprisonment or whether there is an attempt to cause such offences to be committed and whether in pursuance of this attempt, the accused does any act towards the commission of any offence. From this point of view the arguments of Mr. Habibuddin that the offence of bigamous marriage is a special category of offence not admitting the offence of 'attempt' within its fold cannot be accepted.
25. Offence under section 494 IPC is an offence punishable with imprisonment for seven years. The first ingredient of this section is thus satisfied. Now if the prosecution establishes in this case that the accused have done any act towards the commission of the offence, then the offence of attempt would be there. It is only from this point of view that we have to scrutinise this case. We need not go in the legislative history. Enough at this stage, to refer to Abhayanand Mishra v. State of Bihar, where the Supreme Court has described different stages in the commission of offence and then explained as to what an attempt exactly means. In paragraph 11 the Supreme Court observed :
"There is thus a this line between the preparation for and an attempt to commit an offence. Undoubtedly a culprit first intends to commit offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of section 511 IPC requires. "
In paragraph 12, the Supreme Court observed :
"It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what amount to an attempt to commit an offence is possible."
26. The concept underline 'attempt' has undergone change from time to time. The Supreme Court, however, in the above referred case has established that concept. In paragraph 26 the Supreme Court observed :
"We may summarise our views about the construction of section 511 IPC thus : A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
27. The law now does not require a nexus between the penultimate act and the final result. On the other hand it merely requires that the act must be towards the commission of that offence. Whether the offence is complete or not, it is not very material. The old concept that the act must necessarily achieve the result but for the intervening circumstances beyond the control of the accused has no longer remained good law in view of the above pronouncement of the Supreme Court. What is required under the law now is the intention, preparation and taking further steps towards the commission of the offence. As observed by the Supreme Court in paragraph 11 of the judgement, " the moment he commences to do an act with the necessary intention he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and that is exactly what the provisions of section 511 of the Indian Penal Code requires. Thus the requirements of law are well-defined by the pronouncement of the Supreme Court. What we have to find at this stage is (1) whether the accused intended the second marriage (2) whether he made preparations for the second marriage and (3) whether on making preparations they took some steps towards the completion of the second marriage. Even taking steps towards the completion of the second marriage is enough irrespective of the fact whether the second marriage is complete or not.
28. From this point of view, the evidence of the complainant that she was married to the accused No. 1 about 7 or 8 years back and that she has been deserted and driven out is a circumstance which is relevant. She is staying with her parents since before the second marriage is another circumstance. The accused, in going through the ceremonies of the so-called second marriage conveys that he wanted to have a second wife which will give a legitimacy to their stay together and also to the progeny. The circumstance conveys that the accused intended the second marriage. The ceremonies which are necessary in the marriage were performed in these celebrations. It is true that at the stage of arguments Mr. V.M.Kulkarni urged that the accused had gone into the second marriage but he has only kept this accused No. 7 as his keep. This argument of Mr. Kulkarni lacks in substance because the electoral roll which has been filed on record shows that the accused No. 1 and accused No. 7 want legitimacy in their stay together by mentioning themselves as husband and wife. They also want legitimacy to their progeny by contributing parentage to the accused No. 1 as a father. The intention is therefore clear. The intention do not disclose that they wanted to stay together merely as friends and nothing else. The intention is thus well established in this case. As far as the preparation is concerned extension of invitations, collection of gathering or a congregation of friends and guests, arrangement for their food all fall within the sphere of 'preparations'. Now starts the third stage when the bride and bride groom are brought into the congregation, turmeric powder is applied to them, nuptial fire is lighted, Mangalastakas are chanted, sacred rice grains are showered, there clothes are knotted and they go around the nuptial fire. All this comes within the sphere of attempts. Thus what we find in the present case is that there was an initial intention of the accused Nos. 1 & 7 not merely of living together as friends, but showering legitimacy by recognised ceremony. This constitutes an intention. The intention was of marriage and marriage only and not of anything else. Preparations were made thereafter and in pursuance there of further steps were taken to achieve the final object. The final object may or may not be achieved. The failure may be due to the circumstances beyond the control of the accused or it may be due to other circumstances. But it is not relevant for the purpose. What is relevant is to see whether after pin pointing an intention and after making preparations whether the accused have taken steps towards then achievement of the final object. The ceremonies that has been well established by cogent evidence do show that they did not take actual steps in furtherance of their ultimate object and that object was marriage and marriage only.
29. From this point of view an offence under section 511 read with section 494 of the Indian Penal Code has been well established. We have now to see which of the respondents are liable for this offence. Accused No. 1 is definitely a person who has undergone the first marriage and whose first marriage is continuing. With that knowledge he attempted to go through the second marriage. He is definitely guilty of the offence. Accused No. 3 to 6 and 9 did not put in their appearance in this Court though they were noticed. What we found from the record was that the material circumstances which were incriminating and which we also think as incriminating were not put to these accused by the trial Court and no opportunity was afforded to them to explain these circumstances. Their conviction for this offence is, therefore, not possible. They cannot be easily called before the Court and they cannot be asked to explain the circumstances immediately. They cannot be convicted of this offence.
30. Then remains the question of accused Nos. 7. Though there is evidence of the complainant that she was knowing about the first marriage, we do not feel that evidence convincing enough. It is in her testimony that the accused No. 7 used to come to the village Nimbha quite often along with her father and she knew that accused No.1 was married to the complainant. The accused No. 7 may be very young in her teens at that stage and it is impossible to believe that she was knowing all the intricacies of bigamy. We are not prepared to hold that she has entered into the second marriage with the necessary consciousness that the first marriage of the accused No. 1 with the complainant was still subsisting. She, therefore, can not be held guilty.
31. Thus in the result, we do hold respondent-accused No.1 guilty of the offence punishable under section 511 read with section 494 of the Indian Penal Code. His wholesale acquittal is wrong. That order of acquittal needs to be quashed.
32. The only question which arises at this stage is regarding the sentence. The respondent No.1 is held guilty of the offence punishable under section 511 read with section 494 of the Indian Penal Code. Punishment for an offence of attempt is half of that for the substantive offence. Offence under section 494 IPC is punishable with the sentence of seven years rigorous imprisonment and is also liable to be punished with fine. The sentence of imprisonment is thus a must.
33. Mr. Kulkarni the learned Advocate for the respondents 1 & 6 urged before us that the respondent No.1 deserves leniency , as the sword of prosecution is hanging over his head for the last to years. It was urged that the respondent No.1 had to pass all these years under tremendous tensions. We have no mind detector with us to measure the tensions. But other facet is before us. The respondent No.1 is happily living with the second wife and the family has an addition of two, during the intervening period. It means that he has been enjoying all the family pleasures in company of his new wife and at the cost of appellant. The poor woman has been deprived of all that she legitimately would have claim. He has thus deprived the woman, of all that she could have enjoyed during the period. This circumstances would make leniency unjustified.
34. Two considerations are relevant in this respect. A codified law for the welfare of the society requires all the respects from the society. But what we find now a days is that such legislation is being flouted with immunity and this is in all layers of the society. It should be the policy of law to check this tendency of flouting the statute; and from this point of view a sentence of imprisonment has to be considered so that it will act as deterrent to others. On the other hand, we have also to take into consideration that his second marriage was gone into in the year 1977 i.e. about 10 years back and since then the accused Nos. 1 & 7 are living and they have also given birth to two children. If the accused No.1 is sent to jail, a pinch will definitely be felt by the children also. We have now to find out an equilibrium so that it will not be too harsh to the children nor it will be too easy for the others similarly positioned in the society to flout the law with immunity. In these circumstances, on considering all these points together, we think that a sentence of rigorous imprisonment for 1 year, with a fine of Rs. 500/- or in default further rigorous imprisonment for two months would be enough.
35. The appeal is, therefore, allowed though partly. The acquittal recorded by the trial Court is quashed. The respondent No. 1 is held guilty of offence punishable under section 511 read with section 494 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for one year. In addition, he shall also pay a fine of Rs. 500/- or in default to undergo rigorous imprisonment for two months. The appeal against the other respondents-accused is dismissed. Respondent No. 1 shall surrender to his bail.