IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 Crl.Rev.Pet.No. 233 of 2001() ----------------------------- CRA.253/1997 of ADDL.SESSIONS COURT, THRISSUR CC.284/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- BABU, S/O VELLAPARAMBIL KARAPPUNNI PADINJARAKARAYIL THAMASAM THIROOR TALUK BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 2. SARALA, D/O MANNAYATH KUMARAN ORUMANAYOOR AMSOM, DESOM CHAVAKKAD TALUK ADV. SRI.B.KRISHNA MANI FOR R2 SRI.V.PREMCHAND FOR R2 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.233 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of September, 2009 ORDER Revision petitioner is the first accused in C.C.No.284/1994 of Judicial First Class Magistrate Court, Chavakkad and appellant in Crl.Appeal No.253/1997 of Additional Sessions Court, Thrissur. He was convicted under Section 494 of IPC and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 2,000/- , in default, to undergo simple imprisonment for one month which is confirmed in appeal. Accused Nos. 2 to 10 were found not guilty and were acquitted by the trial court. 2. PW1, the complainant filed a private complaint against the revision petitioner and 9 others alleging that the revision petitioner married the complainant on 11/05/1990 observing Hindu customary rites, that a girl was born out of their wed lock, that on 10/11/1991 the revision petitioner manhandled her and sent her out of his house, that while the said marriage was in force, on 31/01/1994 the revision petitioner married 9th accused at Thrippamkode Siva Temple and that Crl.R.P.No.233/01 Page numbers thereby committed the offence punishable under Section 494 read with 109 of I.P.C. Accused 2 to 8 are the relatives of the first accused and 10th accused is the father of the 9th accused. 3. On receipt of the complaint, the trial court conducted a preliminary enquiry as contemplated under Section 202 of Cr.P.C. As the Magistrate found that there is sufficient ground for proceeding, he took the case on file. The accused persons on appearance before the trial court were furnished with all the relevant documents relied on by the complainant. PWs 1 to 3 were examined and Exts.P1 to P4 were marked on the side of the complainant. As the trial court found that a prima facie case has been made out against the accused persons, charge under Section 494 read with Section 109 IPC was framed. The accused persons pleaded not guilty. Thereafter PWs 1 to 3 were recalled and further cross examined. On questioning under Section 313 Cr.P.C., the accused persons denied the allegations. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the first accused/revision petitioner guilty of the offence punishable under Section 494 of IPC and sentenced him as aforesaid. The appellate Crl.R.P.No.233/01 Page numbers court on appeal confirmed the said conviction and sentence. Now the first accused has come up in revision challenging his conviction and sentence. Accused 2 to 10 were acquitted by the trial court. 5. The main points which arise for consideration are: 1) Whether the conviction of the revision petitioner by the trial court under Section 494 of IPC which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed by the trial court which is confirmed by the appellate court is excessive or unduly harsh ? 6. The case of the complainant as testified by her as PW1 before the trial court was that while her marriage with the revision petitioner was subsisting, the revision petitioner married 9th accused and that therefore he has committed an offence punishable under Section 494 of IPC. PW 2 is a witness to the marriage of revision petitioner with the complainant as well as with 9th accused. PW3 is the photographer who took the photographs of the second marriage of the revision petitioner. 7. The Apex Court has held in Lingari Obulamma v. L. Venkata Reddy and others (AIR 1978 SC 848) that to bring home an Crl.R.P.No.233/01 Page numbers offence under sec.494 of IPC, the prosoecution has to prove- a) that the complainant had been married to the accused; b) that the accused contracted a second marriage while the first marriage was still subsisting; c) that both the marriages were valid and strictly according to law governing the parties. 8. A Single Bench of this Court in Savithri v.Sankaran (1988 (1) KLT 423 ) has held that the validity of both the marriages should be proved and that the admission of the accused does not exonerate the complainant from the burden of proving both the marriages. 9. In the light of the principles laid down in the above decisions, in the present case the first question for consideration is whether the complainant has succeeded in proving the validity of the marriage between the revision petitioner and herself. The complainant relied mainly on the evidence of Pws.1 to 3. It is not disputed that the parties belong to Hindu Kanakka community and follows Hindu customary rites and ceremonies. Her marriage with the accused is not seriously disputed. Further, she spoke about the religious ceremonies performed at the time of her marriage. Her evidence is supported by PW.2 who attended their marriage. I have gone through their Crl.R.P.No.233/01 Page numbers evidence. I find no reason to disbelieve their evidence on this aspect. Therefore I am inclined to confirm the finding of both the courts below regarding the validity of the marriage between the complainant and the accused. 10. The next question for consideration is whether it is proved that the accused married the 9th accused and that the same is valid. Regarding the marriage between the revision petitioner and the 9th accused, PW.2, who has attended the marriage, testified regarding the religious rites and ceremonies performed in that marriage. Pw.3 at the instance of PW.1 took the photographs of that marriage, Exts.A2 to A4. The evidence of PW.2 coupled with Exts.A2 to A4 show that in that marriage also all the religious rites and ceremonies were observed. I have gone through his evidence. Nothing was seen brought out in cross-examination to discredit his evidence. The trial court as well as the lower appellate court has considered the evidence of Pws.1 to 3 in detail and chosen to believe their evidence. I find no reason to come to a different conclusion. Thus the complainant has succeeded in proving that the revision petitioner validly married the 9th accused on 31.1.1994. No other point is argued before me. I find no jurisdictional Crl.R.P.No.233/01 Page numbers error or any illegality in the judgments of both the courts below. For all these reasons I confirm the finding of the trial court which is confirmed in appeal that during the subsistence of a valid marriage of the revision petitioner with PW.1, the revision petitioner contracted a second marriage with the 9th accused which is an offence punishable under sec.494 of IPC. Thus I confirm the conviction of the revision petitioner by the trial court under sec.494 of IPC which is confirmed in appeal. As regards sentence the trial court sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs. 2,000/- and in default to undergo simple imprisonment for one month. The incident occurred during 1994 i.e. about 14 years ago. In view of such a long lapse of time, I feel that the substantive sentence imposed on the revision petitioner can be reduced to rigorous imprisonment for six months . The sentence of fine is maintained. The bail bonds of the revision petitioner are cancelled. The revision petitioner shall surrender before the trial court on or before 30/09/2009. P.Q.BARKATH ALI JUDGE Crl.R.P.No.233/01 Page numbers sv.