IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.L.P..No. 1076 of 2008() --------------------------- CC.681/2000 of J.M.F.C.,SULTHANBATHERY .................... PETITIONER/COMPLAINANT: -------------------------------- SARASWATHI, D/O.KRISHNAN CHETTY, ALUMPURA VEEDU, PAZHOOR, CHEERAL, BATHERY. BY ADV. SRI.MATHEW KURIAKOSE RESPONDENTS: ACCUSED & STATE --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KAMALAKSHY, AGED 47, WIFE OF VELAYUDHAN, VALIYAVETTATH VEEDU, KARIMATH, NENMENI, BATHERY. 3. KELUCHETTY, AGED 81, S/O.KOLUMBANI CHEETTY, CHELAVARA VEEDU, EALEM MANNA, MANGO RANGE NILGIRI. R1 BY PUBLIC PROSECUTOR, SRI. P.A. SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.L.P. No. 1076 OF 2008 ----------------------------------------------- Dated this the 14th day of October, 2008 O R D E R This appeal is preferred by the complainant in a prosecution under Section 494 read with 109 IPC against the judgment rendered by the trial court under which accused 2 and 3 were found not guilty and acquitted. The first accused was found guilty, convicted and sentenced. 2. The complainant alleged that she was legally married to the first accused and while that marriage was in force, the first accused had entered matrimony with the second accused. The third accused who is the father of the second accused allegedly abetted the commission of the offence of bigamy by accused 1 and 2. 3. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7. Exts.D1 and D2 were marked on the side of the accused and DW1 was examined. 4. The learned Magistrate on an evaluation of all the relevant circumstances came to the conclusion that the complainant had succeeded in proving her marriage with the first accused and the later marriage between the first accused and second accused Crl.L.P. No. 1076 OF 2008 -:2:- while the earlier matrimony remained in force. Learned Magistrate on the basis of the materials placed before him came to the conclusion that the complainant had succeeded in proving the offence allegedly committed by the first accused. But, so far as accused Nos.2 and 3 were concerned, learned Magistrate took the view that there is nothing to show that accused 2 and 3 were aware of the subsistence of the earlier marriage between the complainant and the first accused. Accordingly, the benefit of doubt was conceded to accused 2 and 3. They were thus found not guilty and acquitted. 5. Learned counsel for the appellant/complainant assails the verdict of not guilty and acquittal in favour of accused 2 and 3. He prays that leave may be granted under Section 378(4) Cr.P.C to prefer an appeal against the acquittal of accused 2 and 3. 6. The crucial question is whether accused 2 and 3 had knowledge of the fact of subsistence of the earlier marriage between the complainant and the first accused when the marriage between the first and second accused was conducted. There is nothing to show that accused 2 and 3 knew the complainant or the Crl.L.P. No. 1076 OF 2008 -:3:- first accused earlier. There is nothing to show except the vague oral assertion of PW1, the complainant, to show that accused 2 and 3 had knowledge of the subsistence of the marriage between the first accused and the complainant. Of course, the complainant as PW1 had made that assertion on oath. The court below justifiably, according to me, was not prepared to accept and act upon the oral evidence of PW1 alone on that crucial aspect. There is total absence of any better material to conclude that second and third accused were aware of the subsistence of the earlier marriage between the first accused and the complainant. I find that the judgment of acquittal rendered in favour of accused 2 and 3 is absolutely justified and does not warrant interference. To consider that question, I am satisfied that leave does not deserve to be granted under Section 378(4) Cr.P.C. 7. In the result, this leave petition under Section 378(4) Cr.P.C is dismissed. R. BASANT, JUDGE ttb Crl.L.P. No. 1076 OF 2008 -:4:- Crl.L.P. No. 1076 OF 2008 -:5:- Crl.L.P. No. 1076 OF 2008 -:6:-