The appellant was the complainant before the trial Court namely, theCourt of Judicial Magistrate No.II, Madurai and Calender Case No.1123 of 1997came to be instituted on a complaint preferred by the appellant/complainantherein alleging that the respondents herein committed an offence punishableunder Section 494 of the Indian Penal Code.The trial ended in conviction ofboth the respondents herein who figured as accused Nos.1 and 2 for theoffence of bigamy punishable under Section 494 IPC and both of them weresentenced to undergo three years rigorous imprisonment and to pay a fine ofRs.100/- with a direction to undergo rigorous imprisonment for one week incase of default in payment of fine.On an appeal preferred before theSessions Court in C.A.No.48 of 2002, the learned Appellate Judge (IIIAdditional District and Sessions Judge) Madurai set aside the conviction andacquitted the respondents herein holding that the appellant herein had notproved that the respondents had committed the offence punishable underSection 494 IPC.2.As against the judgment of the lower appellate Court reversingjudgment of conviction passed by the trial Court and acquitting therespondents herein, the appellant herein (complainant) has preferred thepresent Criminal Appeal under Section 378 (4) of the Code of CriminalProcedure, 1973 along with a petition under Section 378(5) of Cr.P.C seekingspecial leave to prefer such an appeal.The said petition filed under Section378 (5) Cr.P.C, which was numbered as Crl.O.P.(MD)No.205 of 2004, standsallowed and the numbering of the appeal even before the grant of specialleave stands ratified by the order granting special leave under Section378(5) of the Criminal Procedure Code.3.The case of the appellant/complainant is that she is the legallywedded wife of the first respondent-Thirupathi (A-1) and that the firstrespondent, during the subsistence of his marriage with theappellant/complainant, married the second respondent-Dhanalakhsmi on18.06.1997 and thereby committed an offence punishable under Section 494 IPC.The further case of the appellant/complainant is that the second respondent-Dhanalakshmi (A2) did marry the first respondent knowing fully well that thefirst respondent was already married and the appellant herein/complainant washis legally wedded wife and that the marriage between theappellant/complainant and the first respondent was subsisting at the time ofher marriage with the first respondent and that thereby she also hadcommitted the offence punishable under Section 494 IPC.The respondents, who appeared on summons before the trial Court,denied having committed any offence, pursuant to which a charge was framedagainst the respondents 1 and 2 herein for an offence punishable underSection 494 IPC.After having a charge read over and explained, they deniedhaving committed the offence and they wanted the case to be tried.Accordingly, a trial was conducted in which including the appellantherein/complainant three witnesses were examined as P.Ws.1 to 3 and onedocument was marked as Ex.P.1 in order to prove the charge framed against therespondents herein.On the side of the respondents herein, who faced thetrial as accused persons, no witness was examined and no document was marked.After affording them an opportunity under Section 313(1)(b) of theCode of Criminal Procedure, to explain the incriminating materials found inthe evidence adduced on the side of the appellant herein/complainant,arguments were heard by the trial Court.Keeping in mind the points canvassedin the arguments advanced on both sides, the learned trial Judge consideredthe evidence and after such consideration, pronounced a judgment, holding therespondents herein accused Nos. 1 and 2 guilty of the offence punishableunder Section 494 IPC with which they stood charged and convicted them forthe said offences.After giving an opportunity under Section 248(2) Cr.P.C tomake their representation regarding the punishment to be imposed, the learnedtrial Judge imposed a punishment on each one of the respondents herein toundergo rigorous imprisonment for three years and to pay a fine of Rs.100/-with a further direction that in default of payment of fine, he/she shouldundergo rigorous imprisonment for one week as a default sentence.The findingof the trial Court is based on the oral testimonies of P.Ws.1 to 3 and thedocumentary evidence, namely Ex.The finding of the trial Court holding the respondentsherein/accused 1 and 2 guilty of the offence punishable under Section 494 IPCwas found fault with by the lower appellate Judge, on the sole ground thatthere was no direct evidence as to the marriage between the first respondentand the second respondent, which is said to be bigamous.The learned lowerappellate Judge also disbelieved the oral testimony of P.W.2, who wasexamined as the sole eye witness to have seen the marriage performed at theentrance of Samayapuram Mariyamman Temple.The judgments ofthe Courts below and the materials available on record summoned from theCourts below for reference in this appeal are also perused and taken intoconsideration.10.The respondents 1 and 2 herein were prosecuted for having committedan alleged offence punishable under Section 494 IPC in the Court of JudicialMagistrate No.II, Madurai in Calender Case No.1123 of 1997, a case wasinstituted on complaint.14.Here is a case in which the order of acquittal impugned in thisappeal was passed by the learned Sessions Judge in an appeal.Hence, it is anappellate order of acquittal which is made appealable to the High Court underSection 378 of Cr.P.C. The case having been instituted on complaint,attracts sub-section (4) and the only condition for entertaining the appealis that a special leave should be granted on an application filed within thetime stipulated in sub-section (5).It is not in dispute that such anapplication was filed within the time stipulated in sub-section (5) and theappeal has also been preferred within such time, even though the appeal couldhave been preferred within 30 days from the date of grant of special leave toappeal.15.It is an admitted fact that and it has also been proved beyondreasonable doubt that the first respondent is the husband of theappellant/complaint and their marriage took place on 18.06.1972 in accordancewith the provisions of the Hindu Marriage Act, 1955 as applicable to TamilNadu.P.W.1 has given a categorical statement in her chief examination thather marriage with the first respondent was solemnised at RamalingaSowdambigai Sannathi within Panjavarnaswamy Temple, Uraiyoor, Trichy andthat due to the cohabitation they were gifted with three daughters by names,Akilandeeswari, Priya and Prema and a son by name, Shanmugam.These factsspoken to by P.W.1 in her evidence was not challenged by therespondents/accused in their cross examination.It has also been stated inclear terms by P.W.1 that the marriage was not dissolved as on the date ofalleged occurrence and also as on the date of her examination before thetrial Court.16.When the incriminating parts of the evidence adduced on the side ofthe complainant were culled out and formulated as a questionnaire underSection 313(1)(b) of Cr.P.C, the respondents did not deny the same and on theother hand they simply stated that they were not guilty of the offence.Therefore, the factthat the marriage between the appellant herein/complainant and the firstrespondent/first accused was subsisting as on the date of the allegedoccurrence, namely on 18.06.1997, stands proved beyond reasonable doubt.17.Then the next question that arises for consideration is whether themarriage alleged to have been performed on 18.06.1997 stands proved by theappellant/complainant.In this regard, though P.W.1's evidence is not adirect evidence regarding the factum of marriage, she has given a clear andcogent evidence to the effect that she was informed of the marriage of herhusband namely, the first respondent with the second respondent and that thesaid marriage came to be registered on the very same day in the Office of theRegistrar situated near the Court in Trichy.The same has beenmarked as Ex.The said copy is a certified xerox copy of the document andhence, it contains the signatures of the first respondent as well as thesecond respondent.It is pertinent to note that the same is not a marriagecertificate evidencing the registration of marriage under any of the lawsrelating to the registration of the marriage.It was titled and styledas an agreement of a domestic relationship to live together (thH;f;ifcld;gof;if gj;jpuk;).The execution of the said document and registration ofthe said document have not been denied or disputed, on the other hand standadmitted by the respondents/accused persons.It contains a recital that theygot married to each other on the date of the document itself in SamayapuramMariyamman Temple.18.Apart from the production and proof of the above said document as anevidence to prove the case of the appellant/complainant herein regarding theperformance of the alleged marriage between the respondents herein on18.06.1997 at Samayapuram Mariyamman Temple, one Sivaji was examined as awitness to the said marriage.According to his version,on 18.06.1997, he along with one Ravikumar, had gone to Samayapuram MariammanTemple near Trichy to offer worship to the deity therein and at that point oftime, at about 7.00 to 7.30 a.m, he saw the respondents with garlands at theentrance of the temple.He has further stated that he also saw the firstrespondent tying a Thali to the second respondent and the respondentsexchanging garlands.It is his furtherevidence that when the appellant/complainant approached the police, theyasked her to approach the Court.19.P.W.2, during cross examination, has asserted that he was an eyewitness to the marriage of the first respondent with the second respondentand he actually saw the first respondent tying a Thali around the neck of thesecond respondent at the entrance of the above said temple.It is also hisevidence during the cross examination that there were about 15 to 20 persons,who attended the marriage, but he did not inform those persons that the firstrespondent was already married and that however, he asked the firstrespondent as to how he could venture to marry the second respondent when hisfirst wife Saraswathi was alive, for which the first respondent replied thathis second marriage with the second respondent was performed with the consentof his first wife.The section also provides for validation of marriages performedprior to the introduction of Section 7-A of the Hindu Marriage Act, 1955 andseveral such marriages were saved from being held void for non observance ofany of the customary rituals provided the conditions found in Section 7-Awere present.After the amendment in Tamil Nadu, for convicting a personprofessing Hindu religion for bigamy, it shall be enough to show that heunderwent a form of marriage which complies with the above condition namely,acknowledgment by words or symbolic representation of acknowledgement byexchanging garlands or exchanging of rings or tying of thali provided themarriage is with a woman professing Hindu religion.P1 isstyled as an agreement for having a domestic relationship.But the same hasbeen used for proving an admission made therein that the respondentsunderwent a form of marriage in the morning on the date on which the saidagreement came to be executed and registered.Here is a case in which the marriage has taken place andhence, if the second respondent is proved to have got the knowledge of thefirst marriage of the first respondent with the appellant/complainant, thenshe shall be liable to be punished with the punishment prescribed underSection 494 IPC.However, when a person is to be punished for abetment of anoffence, separate charge stating that she is prosecuted for abetting such anoffence and that the act abetted has been committed should have been framed.The charge against the second respondent ought to have been framed as one foran offence punishable under Section 494 IPC read with Section 109 IPC.27.P.W.1, in her evidence in chief examination, has not asserted thatthe second respondent did have the knowledge of the subsistence of themarriage between the appellant/complainant and the first respondent.On theother hand, she has simply stated that one Banumathi, younger sister of thefirst respondent and one Subbu @ Subbulakshmi, the elder sister of the secondrespondent had attested Ex.P.1 document and that both of them knew thesubsistence of marriage between the appellant/complainant and the firstrespondent.However, learned counsel for the appellant drew the attention ofthe Court to the other part of her evidence wherein she has stated that thesecond respondent resided in the street next to the street in which P.W.1 wasliving in Trichy and that hence, she knew the marriage of the firstrespondent with the appellant/complainant.A person living in the next streetin a town cannot be said to have direct knowledge regarding the maritalstatus of a person living in the other street.Regarding the sentence, the submissions made on both sides are alsotaken into consideration.The maximum punishment prescribed under the saidpenal provision, namely 494 IPC is imprisonment of either description for 7years and also fine.The trial Judge seems to have imposed a sentence ofrigorous imprisonment for three years and a fine of Rs.100/- with a defaultsentence of rigorous imprisonment for one week.So far as the fine amount isconcerned, the trial Court seems to have shown leniency.Theexcess fine amount shall be collected from the first respondent and the firstrespondent shall surrender before the trial Court within two weeks, whereuponhe shall be committed to jail for undergoing the unexpired portion of thesentence.The trial Magistrate shall issue necessary warrant.Theimprisonment, if any, already undergone shall be set off under Section 248Cr.1.The III Additional District and Sessions Court, Madurai.2.The Judicial Magistrate No.2 Madurai

Cited provisions: Section 494 in The Indian Penal Code; Section 109 in The Indian Penal Code