Crl. Revision No. 1381 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1381 of 2001 (O&M) Date of decision: December 11, 2009 Joginder Singh and another ...Petitioners Versus State of Punjab and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: None for the petitioners. Mr. Abhishek Chautala, AAG, Punjab. GURDEV SINGH, J. This revision petition has been preferred by the petitioners/accused Joginder Singh and Inderjit Kaur against the judgment dated 6.9.2001 passed by learned Additional Sessions Judge, Ludhiana, dismissing the appeal filed by them against the judgment dated 7.1.2000 passed by learned Judicial Magistrate Ist Class, Ludhiana, vide which he convicted Joginder Singh under Section 494 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2,000/- and in default thereof, to further undergo simple imprisonment for a period of four months and convicted Inderjit Crl. Revision No. 1381 of 2001 2 Kaur-petitioner under Section 109 IPC and sentenced her to undergo the same sentence of imprisonment and fine. Briefly, the facts are that Gurdev Kaur complainant- respondent No.2 was married to Joginder Singh-petitioner in the year 1976, whose behaviour towards her was not cordial and he treated her with cruelty. She was kicked out of the matrimonial home in the year 1990 and thereafter Joginder Singh-petitioner performed second marriage with Inderjit Kaur-petitioner. They performed the second marriage in connivance with each other without consent of the complainant. The complainant filed a private complaint against both the petitioners and on the basis of pre-charge evidence produced by her, learned Judicial Magistrate Ist Class, Ludhiana, found sufficient grounds for proceeding against Joginder Singh and Inderjit Kaur under Sections 494 and 109 IPC respectively. After they put in appearance in the court, pre-charge evidence was recorded and thereafter they were charged for the said offences, respectively. To prove their guilt, the complainant herself entered the witness box as PW-1 and examined Harbans Singh as PW-2. Thereafter statements of the petitioners were recorded under Section 313 Cr.P.C. in which all the incriminating circumstances appearing against them in the evidence of the complainant were put to them to enable them to explain the same. They denied all Crl. Revision No. 1381 of 2001 3 those circumstances and pleaded their false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence. Notice of the revision was given to the respondents. At the time of arguments, none appeared on behalf of the petitioners and Shri Abhishek Chautala, Assistant Advocate General, Punjab, appeared on behalf of the State. As the revision was ordered to be heard on merit, so the same is required to be disposed of on merits. I have heard learned Assistant Advocate General, Punjab, and carefully gone through the records of the case. The complainant PW-1 came out with a statement that Joginder Singh-petitioner is keeping Inderjit Kaur-petitioner in his house and has performed the marriage with her in the year 1990 without obtaining any divorce from her and they are residing together as husband and wife. However, according to Harbans Singh, PW-2, both the petitioners performed marriage in the year 1991. None of them stated that any ceremonies were performed at the time of marriage of the petitioners or that a valid marriage was performed in accordance with the custom or usage. Learned trial court concluded the factum of the second marriage on the basis of a suggestion put to the complainant during her cross-examination that second marriage was performed by the petitioners without her Crl. Revision No. 1381 of 2001 4 consent and on the basis of the admission made by them during the statements under Section 313 Cr.P.C. On appeal, learned Additional Sessions Judge upheld the finding recorded by learned trial Court, in view of the evidence produced and by relying upon judgments in Smt. Indu Bhagya Natekar vs Bhagya 1992 (3) RCR 57, Rattan Singh vs State of Himachal Pradesh 1997 (1) Criminal Courts Judgments, 97 and Om Parkash Vs. State of Punjab 1998 (3) RCR (Criminal) 821. For the decision of this revision, the question to be determined is, whether the petitioners could have been convicted without proof of their marriage in accordance with the essential religious rites and ceremonies and merely on the basis of their admission ? Learned Additional Sessions Judge referred to the three rulings in the judgments Manu Khullar vs. Vijay Kumar 2000 (1) RCR (Criminal) 76, Rajathi vs. C. Ganesan 1999 (3) RCR (Criminal) 581 and Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh AIR 1971 Supreme Court, 1153. In all those cases it was held that to prove the second marriage essential ceremonies must be proved and in case the same is not proved to have been validly performed by observing essential ceremonies and customs in the community, conviction cannot be recorded under Section 494 IPC. However, those rulings were ignored, in view of the admission Crl. Revision No. 1381 of 2001 5 made by the petitioners. The admission of the petitioners could not have been substituted for the positive evidence to be produced by the complainant for proving essential ceremonies of the second marriage. In the case P.Satyanarayana vs. P. Mallaiah 1996 (2) Apex Court Journal 395 (SC), the husband was standing trial for having committed offence of bigamy under Section 494 IPC. He admitted that he performed the second marriage 10 years after his first wife deserted him and went away. In those circumstances, it was held by the Hon'ble Supreme Court that the same does not absolve the prosecution to otherwise prove its case. It is to be proved that second marriage was performed with due ceremonies for the marriage. Like the present case, in Kulwant Singh Vs. Surjit Kaur 2002 (2) RCR (Criminal) 261, husband was living with another woman and their names were entered in the voters list. It was held that it was not proof of marriage. Performance of essential ceremonies of Anand Karaj marriage has to be proved as the parties were professing Sikh religion. In the present case, the complainant has tried to produce evidence that both the petitioners had been living together as husband and wife. In Hari Singh vs. Chander Parkash & Ors 2007 (2) Criminal Court Cases 87, it was held by this Court that no presumption can be drawn that a man and woman were living as husband and wife, even if they hold Crl. Revision No. 1381 of 2001 6 themselves before the society as such or if society treats them as such. It was incumbent on the part of the complainant to prove that second marriage of the petitioners, during the subsistence of her marriage with petitioner No.1, was performed validly by observing essential ceremonies of marriage. In the absence of that evidence, the conviction of the petitioners could not have been recorded merely on the basis of their admission. Therefore, the above posed question is decided in favour of the petitioners. Inderjit Kaur-petitioner has been convicted under Section 109 IPC on the ground that she committed the offence of abetment. It was held in Sangita d/o Natthulal Labhane vs. Yashodhara w/o Krishna Bhitre and another 2008 (4) Criminal Court Cases 824 (Bombay), that it is either husband or the wife who marries during the life time of husband or wife who can be punished. The woman who marries a man while his wife is living cannot be prosecuted. Therefore, Inderjit Kaur could not have been prosecuted or convicted under Section 109 IPC. As a result of the above discussion, this revision is accepted. The judgment of learned Additional Sessions Judge is set aside and the petitioners are acquitted of the offences under Section 494 and 109 IPC, respectively. The fine, if deposited, be Crl. Revision No. 1381 of 2001 7 refunded to them. December 11, 2009 (GURDEV SINGH ) prem JUDGE