Anil Kumar v. Preetha S.P. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939** **Crl.Rev.Pet.No. 14 of 2012** **AGAINST THE ORDER/JUDGMENT IN CRA 177/2011 of I ADL.D.C., TRIVANDRUM DATED 17-12-2011 AGAINST THE ORDER/JUDGMENT IN CC 824/2005 of J.M.F.C.-I, NEYYATINKARA** ## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:** **ANIL KUMAR** **S/O.KUMARAN NAIR, RAJI BHAVAN, V.K.K.NAGAR, PETTAH, THIRUVANANTHAPURAM.** **BY ADV.SRI.A.RAJASIMHAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** ## **1. PREETHA S.P.** **D/O.PRASANNAKUMARI, PRASANNAVILASOM, MELAMOODU, NEMOM VILLAGE, V.R.K.NAGAR, PERUNTHANNI, THIRUVANANTHAPURAM, PIN-695008.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **RR1 BY ADV. SRI.D.GANESH KUMAR RR1 BY ADV. SMT.K.I.KAVITHA** **BY PUBLIC PROSECUTOR:SMT M K PUSHPALATHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.02.2018, THE COURT ON 12-03-2018 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ## ================= ## **Crl.R.P.No.14 of 2012** ================= Dated this the 12[th] day of March, 2018 ## **ORDER** Revision petitioner is the first accused in C.C.No.824 of 2005 of the Judicial First Class Magistrate Court-I, Neyyattinkara. 2. First accused had married the first respondent herein on 31.03.2001. During the subsistence of marriage, there were allegations that, revision petitioner harassed the defacto complainant and misused her entire gold ornaments. It is alleged that, during the subsistence of the marriage, he married the second accused on 11.07.2004 in accordance with the religious rites and customs, at Guruvayoor temple. A male child was born to them on 14.06.2005. According to the first respondent herein, she came to know about this relationship on 14.05.2005, when a medical slip accidentally slipped from the pocket of the first accused, which was seen by the first respondent. She questioned the revision petitioner who admitted his relationship with the second accused. Hence, she laid a private complaint alleging offence punishable under section 494 r/w 34 of the Indian Penal Code. 3. Before the trial court, accused appeared and denied the charges. Evidence was let in by both sides. On the basis of the evidence let in, court below arrived at a conclusion that, Cr.R.P.14/12 2 prosecution has succeeded in proving the guilt against the first accused for offence under section 494 IPC. The first accused was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for six months. Aggrieved by the above, petitioner preferred an appeal before the Additional Sessions Court-I, Thiruvananthapuram, which by its judgment in Crl.Appeal.No.177 of 2011 dismissed the appeal confirming the conviction and sentence. This is under challenge in this proceeding. 4. It was vehemently contended by the learned counsel for the revision petitioner that, both the courts went wrong in finding that the petitioner was guilty of offence punishable under section 494 IPC and went wrong in evaluation of evidence and arrived at a conclusion that the first accused was guilty of offence under section 494 IPC. It was contended that, to arrive at a conclusion of offence under section 494 IPC, it should first be established that, accused has contracted a valid marriage with the first respondent herein. It should also be established that the alleged subsequent marriage was also in accordance with the religious rites and ceremonies. Only on establishing it with conclusive proof of solemnization of a second marriage, he could be prosecuted for offence under section Cr.R.P.14/12 3 494 IPC. It was contended that, in the above case, prosecution thoroughly failed to prove that the marriage of the first accused with the first respondent herein was valid and he had legally married the second accused. It was also contended that the court below went wrong in relying on the oral testimony of the witnesses. 5. It was vehemently contended by the learned counsel for the revision petitioner that, there was no evidence to show that there was a valid marriage with the first respondent. Both the Courts have on facts held that the marriage of the revision petitioner with the first respondent was valid. Mos.1, 3 and 4 are the documents evidencing a valid marriage between the revision petitioner and the first respondent. PW1 in her evidence had stated that revision petitioner married her in accordance with the religious rites and ceremonies. It is also pertinent to note that the wife had filed O.P.No.38 of 2006 before the Family Court, Thiruvananthapuram seeking dissolution of marriage. By decree dated 23.08.2007, the marriage stood dissolved. Revision petitioner remained absent. It leads to a definite conclusion that, on merits, Court had arrived at a finding regarding the existence of a valid matrimonial relationship before ordering the dissolution of marriage. That judgment has become final and binding on both Cr.R.P.14/12 4 sides. In the above circumstances, the available materials clearly show that revision petitioner had married the first respondent in accordance with the religious rites and ceremonies. 6. It was contended by the learned counsel for the petitioner that, to establish offence under section 494 IPC, strict proof of solemnization of second marriage should be adduced. Learned counsel relied on the decision of the Supreme Court in **Smt.Priya Bala Ghosh v. Suresh Chandra Ghosh (1971 KHC 511)** and the decision of the Chattisgarh High Court in **Rajesh Boyra v. State of M.P (2014 KHC 5136).** It was held that, all the witnesses of the prosecution simply stated that a second marriage has been solemnized by husband during subsistence of his first marriage, but the prosecution witnesses did not utter any word as to whether the second marriage has been solemnized by the husband by undergoing essential ceremonies in accordance with the customs. In **Lakshmi Devi v. Satya Narayan and Others (1994 KHC 1251)** it was held that it was essential to prove that the necessary ceremonies of marriage to be performed for solemnization of the marriage were followed by definite and cogent evidence. In the absence of such evidence, it cannot be held that there was a valid marriage. This view was earlier reiterated by the Cr.R.P.14/12 5 ## Supreme Court in **Kanwal Ram and Other v. Himachal Pradesh Administration (1966 KHC 471)** . 7. It was contended by the learned counsel for the revision petitioner that, there was absolutely no evidence to substantiate that, he had married the second accused in accordance with the religious rites and duties. It is pertinent to note that, according to the prosecution, first accused married the second accused at Guruvayoor temple on 11.07.2004. A male child was born to him on 14.06.2005. The marriage of the revision petitioner with the first accused was dissolved only on 23.08.2007. Hence, if the prosecution succeeds in proving it, by evidence, the marriage, as alleged on 17.11.2004, accused is liable for conviction. At the time of appeal, documents were pressed into service to show that the revision petitioner herein had married the second accused under the Special Marriage Act on 15.01.2008. However, it is seen that a child was born to the second accused during the subsistence of the matrimonial relationship with the first accused. To salvage from this position, it was contended by the learned counsel for the revision petitioner that, there was no legally enforceable marriage prior to the registration of marriage under Special Marriage Act on 15.01.2008. Cr.R.P.14/12 6 8. To substantiate the prosecution allegation, it relied on the oral testimony of PWs.1 to 3 who are the defacto complainant and her parents. PW1 asserted that revision petitioner confessed to her about the marriage. He also confessed that a child was born in the matrimonial relationship. According to him, revision petitioner offered to maintain both the wives. Defacto complainant did not agree for that. PWs.2 and 3 also asserted that, first and second accused were married on 11.07.2004, at Guruvayoor temple. All the three have no direct knowledge regarding the alleged marriage with the second accused. 9. To prove the marriage with the second accused, prosecution heavily relied on the oral testimony of PWs.4 and 5. Both are persons who claim to have seen first accused marrying the second accused at Guruvayoor temple on 11.07.2004. Both the witnesses deposed that, they were at the temple on that day and by chance, they saw the marriage ceremony. It is pertinent to note that, both claimed that, they are not related to PWs.1 to 3. They are persons of the same area as that of PWs.1 to 3. They also asserted that, they knew the family of PWs.1 to 3. They admitted that, they have attended the marriage of the defacto complainant with the first Cr.R.P.14/12 7 accused. PW4 asserted that, he had gone to Guruvayoor temple on that day and saw the first accused marrying the second accused. He asserted that, it was performed in accordance with the religious rites. However, he did not depose whether it was communicated to PWs.1 to 3, and if so, the actual date on which it was communicated. PW5 also asserted that, he had seen the marriage. Both could not explain in detail how they had a chance visit to Guruvayoor temple on that day and see the marriage between accused Nos.1 & 2. This aspect is hazy and is not explained. It is doubtful that, those two persons who belong to Thiruvananthapuram district accidentally saw the marriage at a far away place at Guruvayoor temple. They have not disclosed whether they know each other and whether on that day, they saw each other at Guruvayoor. Neither PW4 or PW5 nor PW1 asserted that the information was conveyed by PW4 or PW5. PW1 admitted in her cross examination that her uncle had told her about the second marriage. She did not say that PW4 and PW5 have informed that, they have witnessed the marriage. That uncle was not examined. According to PW3, one Vijayakumar and one Kochu Chandran had told him about the second marriage. Kochu Chandran was not examined. Vijaya Kumar is PW5. Definitely, without PW4 and PW5 Cr.R.P.14/12 8 informing PW1 to 3 that they have witnessed the marriage, prosecution would not have arrayed them as witnesses. If that was immediately communicated to any one among PW1 to PW3,, the version of PW1 that she came to know about the marriage only on 14.05.2005, when the medical slip accidentally fell from the pocket of the revision petitioner is unbelievable. In other words, PW1 did not have a case that prior to 14.05.2005, she got the information about the marriage from PWs.4 and 5. If the version that PW4 and PW5 have witnessed the marriage between the accused, it is quite natural to expect that PW4 or PW5 would have communicated it to PW1 to PW3, immediately, since they are persons who claimed that they have attended the marriage of defacto complainant with the first accused. Hence, the version of witnesses that they saw the marriage and communicated to PW1 to PW3 appears to be highly doubtful. Even if there are strong doubts regarding the conduct of first accused, it cannot be sustainable for lack of legal evidence. Hence, it is only to be concluded that, there was no sufficient evidence regarding the solemnization of the marriage of the first accused with the second accused and both courts went wrong in completely relying on two witnesses to convict the first accused. Hence, I feel that, petitioner herein is entitled for the benefit of doubt. Cr.R.P.14/12 9 Considering these facts, I feel that, evidence of the prosecution is insufficient to arrive at a safe conclusion regarding offence under section 494 IPC. Revision petitioner is entitled for the benefit of doubt and hence, acquitted. In the result, revision petition is allowed. Conviction and sentence imposed by the courts below stand set aside and the accused is acquitted. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge