Rajagopalan Nair v. State of Kerala and Sreelatha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 01ST DAY OF DECEMBER 2020/10TH AGRAHAYANA, 1942** **Crl.Rev.Pet.No.467 OF 2010** **AGAINST THE JUDGMENT IN CRA 33/2000 DATED 05-12-2009 OF III ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA** **CC 334/1997 DATED 31-01-2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:** **RAJAGOPALAN NAIR, S/O.NARAYANAN NAIR, NARAYANAVILASOM, THEERTHAPADAPURAM VAZHOOR, KOTTAYAM.** **BY ADVS. SRI.BINU PAUL SRI.SHAJI THOMAS SRI.T.V.VINU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 SREELATHA, LAKSHMIVILASOM, CHANNANIKKADU, PANACHIKKADU, KOTTAYAM.** **R1 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ R2 BY ADV. SRI.K.N.GOVINDANKUTTY MENON R2 BY ADV. SRI.V.B.PREMACHANDRAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 01-12-2020 PASSED THE FOLLOWING:** Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER [CR]** This criminal revision petition is directed against the judgment of conviction and sentence rendered by the third Additional Sessions Court, (Ad hoc-I), Thodupuzha in Crl.Appeal No.33/2000 dated 05.12.2009 whereby the learned third Additional Sessions Judge dismissed the appeal confirming the judgment of conviction and sentence imposed against the 1[st] accused by the Judicial First Class Magistrate Court-II, Thodupuzha in C.C.No.334/97 dated 31.1.2000 for the offences punishable under Sections 419 and 494 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC'). 2. The 2[nd] respondent (hereinafter referred to as 'PW1') lodged a complaint before the Chief Judicial Magistrate Court, Thodupuzha arraigning the revision petitioner (hereinafter referred to as 'the 1[st] accused') and Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** 5 other persons as accused. It is the case of PW1 that the 1[st] accused had married her in accordance with the customary rites on 10.9.1986 and a male child was born to them in the wedlock on 23.9.1991. It is averred that the marriage between the 1[st] accused and PW1 is still subsisting. While so, on 10.9.1994, the 1[st] accused had married the 2[nd] accused at Sreekrishnaswami Temple, Thodupuzha with the assistance of the accused 3 to 6. The further allegation is that the 1[st] accused for the purpose of concealing his identity to cheat PW1 caused to enter his fake address in the marriage register with the intention of screening him from legal punishment. Thus, the accused 1 to 6 have committed the offences punishable under Sections 201, 419 and 494 read with Section 34 of the IPC. 3. PW1 filed a private complaint before the Chief Judicial Magistrate Court, Thodupuzha against the 1[st] Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** accused and 5 others alleging the aforesaid offences. The learned Chief Judicial Magistrate, Thodupuzha after recording sworn statement of PWs.1 and 2 and after having heard the learned counsel for PW1, registered the case as C.C.No.9/95 and made over the case to the Judicial First Class Magistrate Court-II, Thodupuzha for trial and disposal. On receipt of the records, the learned Magistrate renumbered the case as C.C.No.334/97. 4. During the trial, the complainant was examined as PW1. Her brother who claimed to be an eye witness of the second marriage was examined as PW2. The Manager of Sreekrishnaswami Temple where the alleged second marriage was taken place was examined as PW3. Exts.P1 to P4 were marked. Ext.P1 is the marriage certificate showing the marriage of the accused with PW1. Ext.P2 is a certificate to prove the alleged second marriage. Ext.P3 is a certificate issued by Udumbannoor Grama Panchayat Crl.R.P.No.467 of 2010 ..5.. which would show that there is no one in the address of the person whose marriage has been shown to be held on 10.9.94 at Thodupuzha Sreekrishnaswami Temple as mentioned in Ext.P2. By judgment dated 31.1.2000, the learned Magistrate convicted the 1[st] accused of the offences punishable under Sections 419 and 494 read with Section 34 of the IPC. However, the learned Magistrate acquitted the 1[st] accused of the offence under Section 201 of the IPC and the accused 2 to 6 of all the charges levelled against them. Accordingly, the 1[st] accused was sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for three months more for the offence punishable under Section 494 of the IPC. Further, the 1[st] accused was sentenced to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months for the Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** offence under Section 419 of the IPC. 5. The 1[st] accused preferred Criminal Appeal No.33/2000 before the Sessions Court, Thodupuzha which was later made over to the Additional Sessions Court, Ad hoc-I. By its judgment dated 14.11.2002, the appeal was allowed and the 1[st] accused was acquitted of all the charges. The reason for the acquittal is that there is no valid proof so far as the first marriage was concerned. PW1 challenged the order of acquittal under Section 378 of the Cr.P.C. before this Court in Crl.Appeal No.888/2003. By judgment dated 03.08.2009, a learned Single Judge of this Court made it clear that the question of marriage between the 1[st] accused and PW1 is proved beyond doubt and it does not require any further consideration. Hence, the order of acquittal was set aside to analyse the evidence in this case regarding the second marriage. The learned Single Judge directed the appellate court to Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** consider the evidence of PWs.1 to 3 independently and pass appropriate orders. By judgment dated 05.12.2009, the appellate court dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the 1[st] accused has preferred this revision before this Court. 6. Heard Sri.Binu Paul, the learned counsel for the revision petitioner, Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1[st] respondent-State and Sri.K.N.Govindankutty Menon, the learned counsel for the 2[nd] respondent. 7. The learned counsel for the revision petitioner contended that PW1 had not been validly married to the 1[st] accused; that there is no reliable evidence to prove the alleged second marriage during the subsistence of the first marriage and that both the marriages were invalid according to the customary law governing the parties. It is Crl.R.P.No.467 of 2010 ..8.. further contended that admission is a formidable evidence in civil proceedings unless explained or shown to be erroneous. But similar is not the case with a criminal prosecution for the offence under Section 494 of the IPC. Elaborating on the submission, the learned counsel for the revision petitioner contended that the appellate court relied on mere admission to prove the essential ceremony constituting the solemnization of the marriage between PW1 and the 1[st] accused. It is further contended that in a bigamy case, the essential ceremonies constituting the second marriage must be proved just like that of the first marriage. Relying on **Kanwal Ram & others v. The Himachal Pradesh Administration** [AIR 1966 SC 614] and **P.Satyanarayana and another v. P.Mallaiah and others** [(1996) 6 SCC 122], the learned counsel for the revision petitioner contended that admission of marriage by the accused is not an evidence for the purpose of Crl.R.P.No.467 of 2010 **==> picture [22 x 8] intentionally omitted <==** proving marriage in a bigamy case. Hence, it is contended that in exercise of powers under Section 401 of the Cr.P.C, this Court has power to analyse legal evidence regarding the first marriage also. 8. Per contra, the learned Senior Public Prosecutor submitted that in Crl.Appeal No.888/2003, this Court entered a finding that the marriage between the 1[st] accused and PW1 is proved beyond doubt and it does not require any further consideration. The learned Senior Public Prosecutor further submitted that the finding has become final between the parties and the same cannot be re-agitated before the court of co-ordinate jurisdiction. So far as the second marriage is concerned, Sri.K.N.Govindankutty Menon, the learned counsel for the 2[nd] respondent, submitted that the 1[st] accused contracted a second marriage during the subsistence of the first marriage and both the marriages were valid according to Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** the customary law governing the parties. Hence, it is submitted that the offences under Sections 419 and 494 of the IPC are clearly made out. 9. The principal question arising for consideration is as to whether a court of co-ordinate jurisdiction, can go beyond the final decision of its predecessor on the ground that the earlier direction issued is illegal. In order to determine the legal effect and scope of the first marriage in question, the learned Single Judge who heard the appeal against acquittal finally decided that the first marriage between the 1[st] accused and PW1 is valid. The contention of the learned counsel for the revision petitioner is that the earlier finding of this Court regarding the first marriage based on admission is illegal in the eye of law and hence this Court has jurisdiction to go into every aspect in this revision. So far as this contention is concerned, it is clear that the earlier order remanding the Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** case has become final as the revision petitioner has not challenged the said order in accordance with law. In the light of the aforesaid legal position, this Court cannot go beyond the final decision taken by a court of co-ordinate jurisdiction by remanding the case and, as such, the first contention put forward by the learned counsel for the revision petitioner regarding the validity of the first marriage must fail. 10. To bring home a charge of bigamy, it must be established that the alleged prior marriage had been solemnized after due observance of rites and ceremonies. In view of the remand order issued by a court of coordinate jurisdiction, the first marriage of the 1[st] accused and PW1 is established. The finding has become final. The main allegation against the 1[st] accused is that during the subsistence of a valid marriage between the 1[st] accused and PW1, the 1[st] accused married the 2[nd] accused at 8 am. Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** on 10.9.94 at Sreekrishnaswami Temple, Thodupuzha. PW1 had no occasion to witness the alleged second marriage. PW2 is the brother of the complainant. According to him, he received reliable information that the 1[st] accused had arranged a second marriage with the 2[nd] accused on 10.9.94 at 8 am at Sreekrishnaswami Temple, Thodupuzha. According to him, he went to the residence of the 1[st] accused on 09.09.94 and secretly collected information regarding the marriage. He would say that he came to the Sreekrishnaswami temple, Thodpuzha at 8 am on 10.9.94 and found the 1[st] accused tying the knot with the 2[nd] accused in accordance with customary rites. He also stated that he saw the 1[st] and 2[nd] accused signing the marriage register in token of their consent. He further stated that after the marriage, he met the Manager of the temple and requested him to show the marriage register. To his surprise, when the register was shown to him as Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** requested, he found the name of the 1[st] accused is written as Goplakrishnan Nair and the name of the 2[nd] accused is written as Mini. 11. To prove the marriage, PW3 Radhakrishnan, the then Manager of the Temple was examined. He stated that as per the marriage register maintained at the temple, the marriage between Gopalakrishnan, S/o.Narayanan Nair, Thulasi Bhavanam, Udumpannoor, Idukki and Mini.P.K., D/o.Kuttappan Nair, Puthenpurackal, Chambakkara, Kalkoonthal, Udumpanchola, Idukki was conducted on 10.9.94 at 8 am. on payment of Rs.101/- before the Devaswom as per receipt dated 5.9.94. He also admitted Ext.P2 marriage certificate issued by him containing the name and address of the bride and bride groom. Ext.P1 is the certificate relating to the first marriage. PW3 identified the first and second accused before court. 12. True, during the subsistence of the first Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** marriage, the second marriage will generally be done in secrecy. When the second marriage is performed in secrecy knowing fully well that it is an offence and if the court insists on strict proof, it may not be possible. However, the court is obliged to find out the real truth if there is a real second marriage. In view of Section 198 of the Cr.P.C., except upon a complaint by a person aggrieved, no court can take cognizance of an offence under Section 494 of the IPC. This is subject to clauses (a) to (c) of Section 198(1) of the Cr.P.C. A complaint of bigamy by the person aggrieved must consist of details as to the place, date, type of second marriage, name and address of the person who witnessed the occurrence of second marriage before the court. 13. PW2 is none other than the brother of PW1. It is very difficult to believe that PW2 went to the residence of the 1[st] accused on the previous day of the second Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** marriage, collected details, went to the wedding place and attended the marriage ceremony between the 1[st] accused and 2[nd] accused at the Sreekrishnaswami Temple, Thodupuzha. PW2 stated before court that immediately after the marriage, he contacted the Manager of the Temple and demanded the marriage register. He stated that the Manager was magnanimous enough to show him the marriage register and he verified the fictitious name of the 1[st] and 2[nd] accused therein. When PW3, the Manager of Sreekrishnaswami Temple, was examined, no question was asked regarding the presence of PW2 at the temple on the date of the alleged marriage. PW3 had not stated that PW2 had met him on 10.9.94 immediately after the second marriage as spoken by PW2. Strange as it may sound, PW2 did not file any complaint before PW3 for marriage registration without proof of identity on 10.09.1994. Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** 14. Bigamy, in common parlance, means, marrying again even though one's spouse is still alive. Bigamy is punishable under Section 494 of the IPC. However, where partners in live-in relationship or similar to marriage without performing customary rites are not answerable for the offence of bigamy for the very reason that such relationships have been kept outside the realm of the law relating to bigamy. PW1 filed a complaint against the 1[st] accused presumably for the reason that the 1[st] accused married her and had fathered a child with her. The 1[st] accused, for some personal reasons, left her and the child and married the 2[nd] accused by conducting a secret marriage ceremony. The 1[st] accused is currently residing with the 2[nd] accused. Hence, she filed a complaint under Sections 201, 419 and 494 of the IPC. She has every right to think that the 1[st] accused, who committed infidelity in marriage, is liable to be punished for the offences Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** committed by him. However, the legal position in this regard is that unless the marriage which took place between the 2[nd] accused and the 1[st] accused was performed in accordance with the requirements of law applicable to a marriage between the parties, the marriage cannot be said to have been solemnized and the relationship in the nature of marriage is not coming under the category of 'customary marriage' between the parties. Hence, the burden is on the prosecution to prove that the second marriage between the 1[st] and 2[nd] accused took place on 10.9.94 at Sreekrishnaswami Temple, Thodupuzha as per the Hindu Religious rites and ceremonies. PW3 stated that the accused 1 and 2 were not previously known to him. PW3 identified the 1[st] accused before the trial court. The dock identification made by PW3 after a long lapse of time is taken as a ground to prove the identity of the 1[st] and 2[nd] accused. Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** However, the signatures of the accused 1 and 2 in Ext.P2 marriage certificate were not proved. A person, who had attended the marriage of the parties and put his signature as a witness in Ext.P2, was not examined. The 'Poojari' who conducted the marriage is an important witness to prove the marriage. However, he was not examined for the reasons better known to the prosecution. 15. In order to attract Section 17 of the Hindu Marriage Act, the alleged second marriage should be a valid marriage under the Hindu Law. Merely because PW2 stated that the accused 1 and 2 clandestinely underwent some forms of marriage and are living together, it is not enough to prove the alleged second marriage. In fact, the evidence tendered by PW2 is not sufficient to prove the second marriage in accordance with customary rites. 16. In view of Section 7 of the Hindu Marriage Act, a Hindu Marriage may be solemnized in accordance with the Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** customary rites and ceremonies of either party thereto. For conviction on a charge of bigamy, there must be a specific finding as to the performance of customary marriage based on specific evidence. The vital features of the ceremonies must be proved. When in support of the charge of bigamy, if the second marriage certificate is produced to prove the marriage, it is certainly a valid piece of evidence. In this case, the marriage certificate does not indicate the names of the 1[st] and 2[nd] accused. When the prosecution relies upon customary rites and ceremonies, then the ceremony which validates and completes such marriage must be proved. PW2's evidence is not sufficient to prove the customary marriage between the 1[st] and 2[nd] accused. The factum of the second marriage is not established in this case and it does not indicate, in any manner, that an offence under Section 494 of the IPC has been committed. In case PW1 is turned Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** out or ill-treated so as to make her impossible to live together with the 1[st] accused, or in case the breach between PW1 and the 1[st] accused is irremediable, she is entitled to seek divorce and maintenance by living separate from him. Criminal prosecution under Section 494 of the IPC is not a substitute for other civil remedies. 17. Coming to Section 419 of the IPC, it is essential on the part of the prosecution to prove that the accused had cheated someone and that he did so by impersonation. To personate means, to pretend to be a particular person or an imposture. Personation is defined under Section 416 of the IPC. The penal provision is Section 419 of the IPC. To bring home an offence under Section 419 of the IPC, the elements of Section 416 of the IPC are to be proved. In view of Explanation to Section 416 of the IPC, it is not necessary for the prosecution to make out the original person, whom the accused has been Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** personating, for the one personated may be imaginary or non-existing or unknown. It is the case of PW1 that the 1[st] accused personated himself as Gopalakrishnan and the 2[nd] accused personated herself as Mini. PW3, the Manager of the Temple, had no case that the accused 1 and 2 had cheated by personation and by pretending to be some other person and had conducted the said marriage in the temple on 10.9.94. PW3 had not stated any specific reason to remember accused Nos.1 and 2 after a long lapse of time although several marriages were conducted in the temple during the relevant period. 18. To attract Section 419 of the IPC, there must be cheating in addition to personation and the personation must be for the purpose of cheating. Thus, cheating is an essential ingredient of the offence. Under the Explanation to Section 415 of the IPC, a dishonest concealment of facts is a deception within the meaning of Section 419 of Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** the IPC, but deception by itself does not amount to cheating unless the person so deceived is induced to do any of the acts specified in the Section, which he would not have done if he were not so deceived. It was necessary for the prosecution to prove that the accused 1 and 2 managed to conduct a customary marriage by giving out their fake names and would not have conducted such a marriage if they had given out their real name and status. In the instant case, there was, however, no evidence on this point. In the absence of any doubt or reason to show that they are suppressing their identity, the accused 1 and 2, scrupulously, induced the temple authorities concerned to conduct a customary marriage. Hence, the offence of cheating by personation is not made out against the 1[st] accused. It is pertinent to note that the 2[nd] accused was acquitted by the trial court and her name is stated as P.K.Mohini @ Mini. Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** 19. Sitting in revision, the court in the appropriate cases can go into the question of facts to see the legality and propriety of the proceedings. In the case on hand, the two courts below have decided the case on inadmissible evidence and have been swayed away by consideration not relevant for the purpose of deciding the relevant questions touching customary marriage between the 1[st] and 2[nd] accused. The facts, circumstances and the background of the case would reveal that the concurrent findings are grossly erroneous permitting manifest errors and glaring infirmities. Both the trial court and the appellate court gravely mis-appreciated the evidence on record. Hence the concurrent findings of facts of the two courts below are liable to be interfered with. 20. In the result, the criminal revision petition is allowed. The revision petitioner/1[st] accused is found not guilty of the offences punishable under Sections 419 and Crl.R.P.No.467 of 2010 **==> picture [28 x 8] intentionally omitted <==** 494 read with Section 34 of the IPC and accordingly he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited by the revision petitioner/1[st] accused during the pendency of the revision, pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioner/1[st] accused in accordance with rules. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj