IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2011 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI CRL.A.No.604 of 2000 Tamizhselvi ...Appellant /Vs/ 1.Ramasamy Gounder 2.Rajammal 3.Karunanidhi 4.Jayabalan 5.Chokkalingam ...Respondents Prayer : Criminal Appeal filed under Section 378 r/w 382 of the Code of Criminal Procedure against the Judgment dated 24.04.2000 made in C.A.No.23 of 1999 on the file of the learned First Additional Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri and to confirm the Judgment dated 14.05.1999 made in C.C.No.150 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Oothangarai. For appellant : Mr. G.M.Ramasubramanian for M/s.Ram & Ram For Respondents : Dr.R.Gopinath J U D G M E N T This criminal appeal is filed by the complainant against the Judgment of acquittal of the accused 3 to 7 / respondents herein dated 24.04.2000 made in C.A.No.23 of 1999 on the file of the learned First Additional Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri reversing the Judgment dated 14.05.1999 made in C.C.No.150 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Oothangarai. 2. The appellant herein as the private complainant had filed a complaint against her husband Subramani, Ponni / second wife and the respondents 1 to 5 herein arraying them as A1 to A7. According to her, she was given in marriage to the first accused nine years back and the first accused was totally in in-different attitude with the complainant and he frequently harassed her by beating her and by https://hcservices.ecourts.gov.in/hcservices/ compelling her to give permission for his second marriage. As a result, the complainant was compelled to leave her from the matrimonial home and started to live alone. In the course of which, she came forward with maintenance case against her husband and pending the same, she received a reliable information that her husband/A1 is making arrangements to marry Ponni/A2 during the existence of the first marriage and on receiving such information, the complainant along with her father and uncle had been to the house of A7 at Papanaiken Valasai Village where they saw A1 married A2 by tying Thali around her neck in the presence of A3 to A7 and also assisted by A3 to A7, thereby, the accused committed the act constituting offence punishable under Section 494 r/w Section 109 I.P.C. 3. The complainant, in order to establish her case, examined herself, her father and uncle as P.W.1 to P.W.3 and produced the extract of the Hindu Marriage Register relating to the registration of the marriage between A1 and A2 on 03.07.1999 and the counter filed by the husband in the maintenance case as Exs.P1 and P2. The accused examined their witnesses as D.W.1 to D.W.3 and produced the deed of dissolution of marriage entered into between the complainant and A1 as Ex.D1. 4. The Trial Court, on the basis of the available evidence, accepted the complainant's case that A1 married A2 by tying Thali around her neck in the house of A7 in the presence of A3 to A7 and others and A3 to A7 thus abetted the act of bigamy by A1 with A2 and found them guilty for the offences under Section 494 r/w Section 109 I.P.C. and convicted and sentenced them for the same. Aggrieved against the same, A1 to A7 filed appeal before the lower appellate court. The lower appellate court, while confirming the finding of conviction passed by the Trial Court against A1 and A2, reversed the finding of conviction against A3 to A7 on the ground that the presence of P.W.1 to P.W.4 and A3 to A7 in the scene of occurrence is quite unbelievable. Hence, this appeal by the private complainant against the order of acquittal of A3 to A7 who is the respondents 1 to 5 herein. 5. The learned counsel for the appellant has seriously questioned the finding of acquittal recorded by the lower appellate court by contending that the lower appellate court overlooked the veracity of the statement of P.W.1 to P.W.4. It is also contended by the learned counsel for the appellant that the Trial Court has duly appreciated the oral evidence in the conduct of the parties and rightly convicted all the accused and the Judgment of conviction reversed by the lower appellate court in respect of A3 to A7 is on flimsy grounds. 6. Heard the rival submissions made on both sides and perused the materials available on records. https://hcservices.ecourts.gov.in/hcservices/ 7. The facts that the complainant is the first wife of A1 and the complainant and A1 have during the relevant point of time been separately living and the maintenance case filed by the wife was pending and pending the same, A1 married A2 and the marriage was registered on 03.07.1998 in the office of the Registrar are not seriously disputed. Both the Courts below, on the basis of the documentary evidence, accepted the prosecution theory about the second marriage between A1 and A2 during the subsistence of first marriage of the complainant and A1 and as the marriage is found to be without the consent of the complainant and without obtaining any order for dissolution of marriage between them, the same is held to be illegal and amounts to bigamy and convicted A1 and A2 are hence convicted for the offences under Section 494 I.P.C. In sofar as A3 to A7 are concerned, the case was sought to be established by the prosecution through the oral evidence of her father and uncles as P.W.1 to P.W.4 and though the same was believed by the Trial Court, their evidence was disbelieved by the lower appellate Court. The learned counsel for the appellant/complainant would make an attempt to convince this Court that the oral evidence of P.W.1 to P.W.4 is clear cogent, natural and acceptable. However, such contention, in my considered view, deserves no merits and acceptance for the following reasons. 8. The date of the second marriage was on 02.07.1998 at Papanaikenvalasai Village. P.W.1 to P.W.4 have been admittedly residing elsewhere. Though P.W.1 to P.W.4 had uniformly deposed that the complainant received a reliable information about the proposed marriage between A1 and A2 and they had been to the house of A7 at Papanaikenvalasai Village and to verify the same, where they saw A1 and A2 and A3 to A7 and few others gathered for conducting marriage and the same was objected to P.W.1 to P.W.4. But, A1 to A7 and others ignored the same and decided to proceed with the marriage ceremony and the marriage was held by A1 tying Thali around the neck of A2 with the assistance of A3 to A7. P.W.5 would further state that P.W.1 to P.W.4 except raising initial objection, do not make any other efforts to prevent the marriage process being proceeded with. Such conduct on the part of P.W.1 to P.W.4, particularly P.W.1 and her father / P.W.4 appear to be unnatural. 9. P.W.1 is the person, who is seriously affected by the second marriage. Whereas, P.W.1 and her father did not make any attempt to prevent the marriage. Even otherwise, they did not think fit to lodge police complaint immediately, on the same day or on the very next day. Whereas, the police complaint was lodged only on 27.07.1998 i.e. more than 20 days after the second marriage. Though an explanation is put forth that the matter was taken to Panchayathars, no further evidence is available on the side of the complainant as to whether any such Panchayath is held in this regard. There is absolutely no evidence to prove that P.W.1 to P.W.4 made any https://hcservices.ecourts.gov.in/hcservices/ other effort against the second marriage. Had it been true that P.W.1 to P.W.4 had actually eye witnessed the occurrence, the marriage could not have been solemnized in such a peaceful manner and the complaint could not have been lodged so belatedly. Thus, the failure on the part of the prosecution to offer any explanation for the same would render the evidence of P.W.1 to P.W.4 about their presence in the scene of occurrence at the time of second marriage to be highly doubtful. The finding regarding the second marriage between A1 and A2 is based on Ex.P1 marriage registration certificate. It may be true that the respondents 3 to 5/accused 5 to 7 are cited as witnesses for the registration of the marriage. But, there is absolutely no evidence, except the oral evidences of P.W.1 to P.W.4 to show that either the respondents / A3 and A4 or the respondents A5 to A7 are aware of the first marriage. As a matter of fact, a suggestion is put to P.W.3 in the course of his cross- examination that they are not aware of the subsistence of the first marriage. In the absence of any evidence to that effect, the prosecution theory as if A3 to A7 participated in the second marriage knowing fully well about the subsistence of the first marriage, appears to be doubtful. 10. Thus, for the discussion held there is no serious infirmity or perversity in the finding of acquittal recorded by the lower appellate Court in respect of A3 to A7/ respondents 1 to 5 herein and the appellant has not made out any ground much less valid found to disagree with the view of the lower appellate court. Even otherwise, when two views are possible and one is in favour of the innocence of the accused, the same shall be adopted by the Court of law as such the finding of acquittal of A3 to A7 based on sufficient reason does not warrant interference by this Court. 11. In the result, the appeal is dismissed by confirming the Judgment dated 24.04.2000 made in C.A.No.23 of 1999 on the file of the learned First Additional Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri. Sd/- Assistant Registrar(CS-II) Dated : 09.04.2014 //True Copy// Sub Assistant Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1. The First Additional Sessions Judge -cum-Chief Judicial Magistrate, Krishnagiri. 2. The District Munsif-cum-Judicial Magistrate, Oothangarai. 3. The Section Officer, Criminal Section, High Court, Madras. 4. The Public Prosecutor, High Court, Madras. 1 CC to M/s.Ram & Ram, Advocate, S.R.No. 66536 CRL.A.604 of 2000 KJI (CO) PSI (09/04/2014) https://hcservices.ecourts.gov.in/hcservices/