Roja P.K. v. R1 to R10 (CRL.A. No. 487 of 2012 (A))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 18TH DAY OF MARCH 2014/27TH PHALGUNA, 1935** **CRL.A.No. 487 of 2012 (A) -------------------------CC 292/2004 of J.M.F.C., PAYYANNUR -----------** ## **APPELLANT/COMPLAINANT :-** **--------------------------** ## **ROJA.P.K., D/O.GOPALAN NAMBIAR, VELLOR, TALIPARAMBA.** **BY ADVS.SMT.VIDHYA. A.C SRI.A.C.VENUGOPAL** **RESPONDENT(S)/ACCUSED No.1 TO 10 :-** **------------------------------------** **1. R.K. MOHANAN, S/O.KARUNAKARAN NAMBIAR, THIMIRI P.O., PIN - 670 581.** **2. RADHAMANI, D/O.CHATHU NAMBIAR, CHENGALAYI - 670 631.** **3. N.K.KARUNAKARAN NAMBIAR, S/O.KRISHNAN NAMBIAR, PALAKEEL HOUSE, THIMIRI P.O.-670581** **4. PARVATHI AMMA, D/O.KANNAN NAMBIAR, THIMIRI P.O.-670 581.** **5. KARUNAKARAN, D/O.CHATHU NAMBIAR, CHENGALAYI - 670 631.** **6. LAKSHMI AMMA, D/O.CHATHU NAMBIAR, CHENGALAYI -670 631.** **7. KAMALA, D/O.CHATHU NAMBIAR, CHENGALAYI - 670 631.** **8. ROHINI, D/O.CHATHU NAMBIAR, MALAPPALLI - 670 632.** **9. RUGMINI, D/O.CHATHU NAMBIAR, ERUVASSERY - 670 632.** **10. OMANA, D/O.CHATHU NAMBIAR, CHENGALAYI - 670 631.** **R1, R3 & 4 BY ADV. SRI.P.VIJAYA BHANU (SR.) SRI.V.N.RAMESAN NAMBISAN R2 & R5-R10 BY ADV. SRI.G.SANTHOSH KUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.487 of 2012 -----------------------------Dated this the 18[th] day of March 2014** ## **J U D G M E N T** Complainant is the appellant. She filed a complaint before the learned Magistrate against the accused persons alleging that first accused committed bigamy (first accused married the second accused) during the subsistence of the marriage between the complainant and the first accused. It is contended that accused Nos.2 to 10 abetted the commission of bigamy. Thus, according to the complainant, respondents 2 to 10 are to be held liable for the offence punishable under Sec.494 r/w 34 of IPC. 2. After pre-charge evidence, charges were framed against the accused persons. Thereafter further evidence was adduced. The prosecution evidence consisted of oral testimonies of PW1 to PW3 and Ext.P1, the documentary evidence. No evidence was adduced on the side of the defence. 3. Learned Magistrate acquitted the accused persons holding that there is nothing on record to substantiate the allegation that there was a valid marriage between the Crl.A. No.487 of 2012 -: 2 :- complainant and the first accused. It was also held that there was nothing in the evidence of PW1 to show that the marriage between the complainant and the first accused was solemnized as per the customary rites. The trial court also found fault with the evidence given by the independent witnesses with regard to the marriage between the first accused and the 2[nd] accused and held that their evidence is unsatisfactory and thus, all the accused were acquitted. 4. Learned counsel for the appellant/complainant submits that there was total non-consideration of the evidence given by PW1 regarding the first marriage. Similarly, the evidence given by PW2 and PW3 was simply rejected by the courts below finding some minor contradictions and inconsistencies which usually do occur when witnesses are summoned to give evidence after one or two years of the incident with respect to which they were asked to give evidence. 5. The following points arise for consideration :- - (i) Was there a valid marriage between PW1 (the complainant) and the first accused ? - (ii) Whether during the subsistence of the said marriage, the first accused married the second accused in accordance with the customary rites ? - (iii) Whether accused Nos.2 to 10 abetted the conduct of the Crl.A. No.487 of 2012 -: 3 :- second marriage between the first accused and the second accused knowing the subsistence of the first marriage ? 6. It is submitted by the learned counsel for the appellant that there was earlier proceedings under Sec.125 of Cr.P.C. where the complainant (PW1) claimed maintenance for herself and for her child. That was filed against the first accused. In that MC (M.C.No.20/1999 of JFMC, Payyannur) the first accused herein, who was the respondent in that case filed a counter statement. That counter statement was not produced or marked before the trial court. Learned counsel for the appellant submits that the complainant was not properly instructed of the necessity to produce those documents before the learned Magistrate. In fact the documents were available to be produced. All those documents have been now produced before this Court as per Crl.M.A.No.1417/2014. In the peculiar circumstances of this case, those documents have been formally received in this case for the purpose of disposing this appeal. Three documents have been produced. 7. The counter statement in M.C.No.20/99 is the first and foremost document relied upon by the learned counsel for the appellant to substantiate his submission that there was a valid Crl.A. No.487 of 2012 -: 4 :- marriage between the complainant and the first accused. In paragraph 3 of the counter statement, it was admitted by the first accused : “It is true that the marriage between the 1[st] petitioner and respondent was solemnized on 8.11.1997 at her house as per customary rites.” Though a contention was raised by the first accused that the said marriage was solemnized by cheating, no such evidence was adduced and no plea was also raised by him regarding that aspect. In paragraph 4 also, the fact that the complainant was married by the first accused was admitted. It was stated that the marriage between the first petitioner and the respondent has taken place by cheating the respondent and her relatives. Unless and until it is proved that the marriage is null and void or got declared by a competent court by resorting to the provisions contained in the Hindu Marriage Act, raising plea of cheating or anything of that sort cannot come to the rescue of the first accused. Therefore, in the teeth of such unambiguous admission contained in the counter statement there was no necessity to produce any other evidence to prove the factum of first marriage. 8. Learned counsel submits that the admission contained in the pleading is admissible under Secs.17 or 18 of the Indian Crl.A. No.487 of 2012 -: 5 :- Evidence Act and as such, the burden is on the accused to prove that the admission contained therein is not true. The further fact is that the first accused had in fact filed a petition before the Family Court, Kannur under Secs.13(1)(ia) and (ib) of the Hindu Marriage Act against the complainant herein for divorce. That petition was in fact dismissed by the learned Judge, Family Court, Kannur on 31.1.2005. These two documents would scuttle the plea raised by the accused that there was no legal marriage. 9. If the first marriage between the complainant and the first accused is proved then, the only other question that would fall for consideration is whether there was a customary marriage between the first accused and the 2[nd] accused during the subsistence of the first marriage because the first marriage was not got dissolved in accordance with law. Learned counsel for the appellant submits that the evidence given by PWs.2 and 3 that they had occasion to witness the second marriage between the first accused and the second accused was improperly rejected by the learned Magistrate presumably because the court was of the view that the first marriage between the complainant and the first accused could not be proved. 10. The learned senior counsel appearing for the Crl.A. No.487 of 2012 -: 6 :- respondents relies upon the decision of this court in **Govindan Nair v. State, (1971 KLT 614)** in support of his submission that it is essential that both the marriages should be valid and in accordance with the essential religious rites of the parties thereto. In that case the marriage which was to be performed was under the Travancore Nair Act. It was held therein that the fact that some ceremonies were performed at a temple will not make it a valid marriage recognised by the community unless the vital features of the function are proved by evidence. The learned counsel for the appellant submits that the aforesaid decision has no application to the facts of this case, since the first respondent husband has admitted in clear terms that there was a customary marriage between himself and the complainant. 11. Admissions made by the parties are substantive evidence by themselves in view of section 17 and 21 of the Indian evidence Act. If those admissions have been duly proved they can be relied upon. See the decision in **Bharat Singh** v. **Bhagirathi** (AIR 1966 SC 405) and **Priya Bala Ghosh** v. **Suresh Chandra Gosh** (AIR 1971 SC 1153). But the learned senior counsel would submit that such admissions cannot be relied upon in a prosecution for bigamy under section 494 IPC. Crl.A. No.487 of 2012 -: 7 :- No doubt, even if the factum of first marriage, according to the customary rights is proved still the complainant has to prove the factum of the second marriage. It should be proved to the hilt that it was performed in accordance with the customary rites. 12. The decision in **Savithri** v. **Sankaran** (1988 (1) KLT 423) has also been relied upon by the learned senior counsel appearing for the respondents in support of the submission that proof of observation of all the legal formalities or solemnisation in accordance with the customary rites and ceremonies recognised by law governing the parties is absolutely necessary. The aforesaid decision has also been relied upon by the learned senior counsel for the respondents in support of the submission that admission of the accused that there was a first marriage or that the second marriage was also conducted will not exonerate the complainant from the burden of proving those marriages. As in any other case, it is obligatory on the part of the complainant to establish that both marriages were solemnised in accordance with the customary rites and ceremonies prescribed either in law governing them or recognized by custom prevailing in their community. 13. The decision of the Hon'ble Supreme Court in **Laxmi** Crl.A. No.487 of 2012 -: 8 :- **Devi v. Satya Narayan and others (1994) 5 SCC 545** has also been relied upon in this case. That was a case where the prosecution was bound to prove 'saptapadi' to establish the factum of marriage. In that case, it was found that the only argument advanced for the Hon'ble Supreme Court was that the factum of 'saptapadi' was not proved and there is no enough evidence to establish the factum of second marriage. It was held in the decision in **Bhaurao Shankar Lokhande** v. **State of Maharashtra** (AIR 1965 SC 1564) that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed. The aforesaid decision was followed by the Apex court in Laxmi Devi's case cited supra and held in the absence of proof of such a ceremony the factum of second marriage cannot be held to have been made out. 14. The learned senior counsel has also relied upon the decision of the apex court in **Dhanapal** v. **State** (2009(10) SCC 401), and **State of Madhya Pradesh** v. **Munshi Singh and others** (2009(14) SCC 170) in support of the submission that if a view taken by the trial court is a possible view then acquittal cannot be set aside by merely substituting its reason by the High Court. It is vehemently argued that the trial court has Crl.A. No.487 of 2012 -: 9 :- considered the evidence already on record and has come to the conclusion that the factum of first marriage as well as the second marriage could not be proved and so this court should not upset that finding nor will this court be justified in ordering a remand. 15. The learned counsel for the respondent submits that the trial court did not properly consider the evidence given by the prosecution witnesses regarding the second marriage since that court was persuaded to hold that there is no evidence regarding the first marriage. Since there is an admission regarding the first marriage and since grievance of the complainant woman has not been properly addressed, an opportunity has to be given to the complainant/appellant, the learned counsel submits. 16. The two important documents namely; the counter statement and the judgment in O.P.No.502/2013 were not produced before the trial court. The better course would be to remand the matter to the trial court so as to enable the complainant to let in evidence pertaining to all those documents so that the accused persons get an opportunity to raise all the contentions before the trial court. It is true that usually, the appellate court should be slow to interfere in a case of acquittal Crl.A. No.487 of 2012 -: 10 :- substituting its own view but in the case on hand, the vital admissions made by the first accused could not be considered by the learned Magistrate, may be because, these two documents were not produced. It cannot be said that these documents were produced to fill up the lacuna. In fact the documents were available and the first accused was aware of these documents as he himself had filed the counter statement and also the petition for dissolution of marriage. Therefore, it cannot be said that the accused persons were taken by surprise by producing these documents at the appellate stage. Hence, considering all the aspects, I find that the judgment under challenge is to be set aside. In the result, this Crl.A. is allowed. The verdict of acquittal passed by the learned Magistrate is set aside. The matter is remanded to the trial court for fresh disposal in accordance with law. Annexures A5 to A7 produced by the appellant before this Court shall be sent back to the trial court (JFMC, Payyannur). The learned Magistrate will dispose of the matter afresh after giving opportunity to both sides to give evidence pertaining to the same. Personal attendance of A2 to A10 shall be dispensed with except for recording their statement Crl.A. No.487 of 2012 -: 11 :- under Sec.313 of Cr.P.C. and on the date of pronouncement of judgment (if actually their presence is required). The complainant will appear before the learned Magistrate on **11.4.2014.** **Sd/N.K.BALAKRISHNAN, J UDGE.** //True Copy// P.A. To Judge Jvt/das