( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 333 OF 1999 Tukaram s/o. Nagoba Thakare .. Appellant Age. 52 years, Occ. Service, [original R/o. Kupti (Mahur), Tq. Kinwat, complainant] Dist. Nanded. Versus 1. Balaji Parshuram Raut .. Respondents Age. 30 years, Occ. Agri. [original accused] 2. Sadhana @ Bebi Balaji Raut Age. 20 years, Occ. Household 3. Umabai s/o. Parshuram Raut Age. 52 years, Occ. Household 4. Madhavrao Ladoba Raut Police Patil, Age. 50 yrs., Occ. Agri. 5. Anandrao Datta Raut Age. 50 years, Occ. Agri., 6. Chandrakala Taterao Jadhav, Age. 35 years, Occ. Household All resident of Kalgaon, Tq. Mahagaon, Dist. Yeotmal. 7. Kashinath Gangaram Bharwade (Dead) (Abated) ( 2 ) 8. Digamber Topaji Kadam (Bhamborkar), Age. 38 years, Occ. Agri., 9. Ratnamala Digamber Kadam (Bhamborkar) Age. 32 years, Occ. Household. 10. Motiram Tukaram Adkine Age. 35 years, Occ. Agri., 11. Yadav s/o. Tukaram Adkine, Age. 35 years, Occ. Agri., All resident of Varodi, Tq. Mahagaon, Dist. Yeotmal. 12. Vithalrao Ganpatrao Thote Age. 50 yrs., Occ. Agri., 13. Mangalabai @ Girjabai Vithalrao Thote, Age. 40 yrs., Occ. Household. 14. Tikaram Ganpatrao Thote (dead) (Abated) 15. Laxmibai Tikaram Thote Age. 50 yrs., Occ. Household 16. Ashok Tikaram Thote Age. 28 years, Occ. Agri., 17. Punjab Tikaram Thote, Age. 22 yrs., Occ. Agri., All resident of Chalgani, Post – Kharus (Bk) Tq. Umarkhed, Dist. Yeotmal. 18. The State of Maharashtra ( 3 ) Shri D.R. Shelke, Advocate for the appellant. Shri Rahul B. Bagul, Advocate for respondent Nos. 1 to 6, 8 to 13 & 15 to 17. Shri B.V. Wagh, A.P.P. for respondent No. 18. CORAM : P.R. BORKAR,J. DATED : 05.02.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the original complainant being aggrieved by the order of acquittal passed by the Judicial Magistrate, First Class, Kinwat, in R.C.C. No. 233 of 1994, decided on 07.06.1999, whereby the respondents were acquitted of offence punishable under section 494 read with section 109 of the Indian Penal Code. 2. Briefly stated facts giving rise to this appeal are that respondent No.1 Balaji had married Shantabai @ Baby, who is daughter of the appellant, on 12.05.1988 as per custom. Respondent No.1 and Shabtabai were blessed with son Devanand. However, subsequently, there was harassment to Shantabai. She started living with her father, who is appellant/complainant. It is further case of the appellant that on 27.05.1994 respondent No.1 married respondent No.2 in ( 4 ) Parmeshwar Temple at Himayatnagar. Respondent Nos. 3 to 17 took active part in the marriage. They assisted, participated and abetted performance of said marriage. Thus, all the respondents have committed offence punishable under section 494 read with section 109 of the Indian Penal Code. 3. Thereafter, present appellant filed private complaint. Summons was issued to the accused. The accused appeared in the matter. Pending the Trial accused Nos. 7 and 14 expired. The trial proceeded against rest of the accused. 4. Three witnesses are examined by the complainant. They are complainant P.W.1-Tukaram, P.W.2-Narayan, who was witness to second marriage and P.W.3-Shantabai. 5. Heard Adv. Shri D.R. Shelke for the appellant, Adv. Shri R.B. Bagul h/f. Adv. Shri U.S. Malte for respondent Nos. 1 to 6, 8 to 13 and 15 to 17 and A.P.P. Shri B.V. Wagh for respondent No.18 – State of Maharashtra. The advocates have taken me through the judgment of the Trial Court so also evidence on record. ( 5 ) 6. So far as marriage of Shantabai who is daughter of present appellant with respondent No.1 is concerned, said fact is admitted by even respondent No.1 while answering question Nos. 2 to 4 of statement recorded under section 313 of Cr.P.C. P.W.1-Tukaram, who is appellant, in his cross- examination has specifically stated that he belongs to Maratha community and in their community there is custom of performance of “Homa” and “Saptapadi” as essential ceremonies while performing marriage. P.W.2-Narayan stated that on 26.05.1994 he attended marriage of respondent Nos. 1 and 2. There was function of “Haldi” and “Gadi”. On the next day at about 6.30 p.m. he went to Himayatnagar to attend the marriage. First, respondent No.1 was taken to Hanuman Temple. He came back. Respondent No.13 Mangalbai, who is mother of respondent No.2 offered him milk. Thereafter, there were “Mangalashtak”. “Kanyadan” was also performed by respondent Nos. 12 and 13. It is stated that other respondents took active part in performance of marriage. It is not stated anywhere by P.W.2-Narayan that rites of “Saptapadi” and “Homa” were performed. 7. The law is now well settled. In the case of ( 6 ) Bhaurao Shankar Lokhande & Anr. V/s. State of Maharashtra & Anr., AIR 1965 S.C. 1564, it is well settled that in the prosecution under section 494 of the I.P.C., performance of essential rites in marriage have to be proved. In the case of Kanwal Ram V/s. The Himachal Pradesh, Administration, AIR 1966 S.C.614, even though there was admission in written statement regarding performance of marriage, it was held that offence of bigamy was not proved as there was no proof regarding performance of essential rites, “Homa” and “Saptapadi”. 8. In view of settled position of law laid down in catena of judgments, I my opinion, the reasons given by the Trial Court for acquittal are well merited and in the circumstances, this appeal deserves to be dismissed. [P.R. BORKAR,J.] snk/2010/FEB10/crap333.99