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(6) We shall first deal with the appeal filed by Sarup Chand against his conviction under section 494 Indian Penal Code . Section 494 Indian Penal Code reads as follows:- "WHOEVER,having a husband or wife living, married 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."

(7) The rest of the section is not relevant. Prior to the passing of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), there was nothing in the Hindu law which made a second marriage of a male Hindu during the life-time of his previous wife void. But the position is different after the coming into force of the Act. Under section 5 of the Act ;- "Amarriage may be solemnized between any two Hindus, if the following conditions are fulfillled, namely,- (i) neither party has a spouse living at the time of the marriage."

(8) The scope of sections 5, 7 and 17 of the Act with reference to an offence under section 494 Indian Penal Code was considered by the Supreme Court in Bhaurao Shankar Lokhande and another v. The State of 'Maharashtra and another , Raghubar Dayal,J., who spoke for the Court after referring to section 494 Indian Penal Code , observed as follows :- "PRIMAfacie, the expression 'whoever xx. xx. xx. marries' must mean 'whoever xx. xx. xx. marries validly' or 'whoever xx. xx. xx. 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 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."

(16) In Venkata Subbarayudu Chetty v. Tanguturu Venkatiah Shresti and others , it was held that where there was no evidence to prove that the two ceremonies esstential to the validity of .a marriage, namely,- (I)invocation before the sacred fire, and (ii) Saptapadi. that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, had been performed and where the only evidence was that Tali was tied by the husband around the neck of the wife, it was not a valid marriage and that the conviction for an offence under section 494 Ipc was bad. In Boloram Baruati v. Mt. Surja Baruati (AIR 1969 Assam and Nagaland 90) , it was held that the prosecution was under an obligation to satisfactorily establish by evidence that the second marriage had been solemnized in accordance with law or custom which was applicable to the parties and that where there was no evidence to show that any of the material ceremonies which were necessary to be performed had been observed, mere admission by the accused that he married a second time would not satisfy the ingredients which were necessary to be established by me prosecution for an offence under section 494 Indian Penal Code . In Ram Singh v. R. Susila Bai and another (AIR 1970 Mysore 201), it was held that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved and that admission of marriage by the accused was not evidence of it for the purpose of proving marriage in an adultery or bigamy case and that where, therefore, in prosecution for offences under sections 494/109 Indian Penal Code the evidence of the witnesses called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons could not be sustained.

(26) The prosecution has also not proved that the marriage between Sarup Chand and Raj Kumari Suri was performed in accordance with any special custom and it has also not been proved that the rites and ceremonies which such custom required were preformed at the marriage. On the other hand, the evidence of Public Witness 5 as well as the documentary evidence adduced by the prosecution, namely, Exs. P/C, P/D, P/E, and P/F, merely indicate that Sarup Chand and Raj Kumari Suri were not governed by any special custom nor were they married according to any special custom. But, on the other hand, they were married according to the Vedic rites. We have, therefore, to hold that the prosecution has failed to prove that the marriage between Sarup Chand and Raj Kumari Suri was a valid marriage in accordance with law. Although the prosecution has proved that the marriage of Sarup Chand and Janak Rani was a valid marriage and that the said marriage was subsisting on the date of the alleged marriage of Sarup Chand with Raj Kumari Suri, the prosecution has failed to prove that the marriage of Sarup Chand with Raj Kumari .Suri was a valid marriage. One of the necessary ingredients of an offence under section 494 Indian Penal Code has, thus, not been proved. The conviction of the appellant under section 494 Indian Penal Code cannot, therefore, be sustained and his conviction and the sentence passed against him under section 494 Indian Penal Code are set aside.