IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.115 OF 2000 CRIMINAL REVISION APPLICATION NO.115 OF 2000 CRIMINAL REVISION APPLICATION NO.115 OF 2000 Rajendra Shamrao Yesugade & Another ..Applicants versus The State of Maharashtra & Another ..Respondent Mr.K.S.Patil for the Applicant Mr.K.V.Saste for the Respondent State None for the respondent No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 28th April, 2008. DATED : 28th April, 2008. DATED : 28th April, 2008. JUDGMENT. JUDGMENT. JUDGMENT. 1. The respondent No.1 filed a private complaint under Section 494 r/w. Section 109 of I.P.C. against the applicants alleging therein that the applicant No.1 entered into matrimony with the applicant No.2 on 18th November 1977 at Village Bahe. According to the respondent No.1 as the marriage between the respondent and the applicant No.1 was subsisting on the day when the applicant No.1 and the applicant No.2 entered into matrimony, the said marriage was illegal and the applicant No.1 and applicant No.2 have committed offence under Section 494 r/w. 109 of the Indian Penal Code. The learned JMFC, Islampur who conducted the -2- regular Criminal Case No. 8 of 1983 convicted the applicant No.1 under Section 494 of I.P.C. and sentenced him to suffer rigorous imprisonment for six months and to pay fine of Rs.500/- and further ordered that the applicant should suffer simple imprisonment for a period of one month in default of payment of fine. So far as the applicant No.2 is concerned, the learned JMFC convicted the applicant No.2 under Section 494 r/w. 109 if I.P.C. and sentenced her to suffer Rigorous imprisonment for a period of one month and to pay fine of Rs.100/- and further directed that the applicant No.2 should undergo simple imprisonment for 10 days in default of payment of fine. 2. The applicant Nos.1 and 2 filed criminal appeal No.2 of 1999 in the Court of the learned Addl. Sessions Judge, Islampur. The said appeal was decided by order dated 6.4.2000 and the learned Addl. Sessions Judge, Islampur dismissed the said appeal. Being aggrieved by the order passed by the learned JMFC and confirmed by the learned Addl. Sessions Judge, as stated above the applicants have preferred this criminal revision. -3- 3. The revision is dismissed so far as the respondent No.2 is concerned. I have heard Mr Patil on behalf of the applicants and Mr. Saste on behalf of the State. Learned Advocate Mr. Patil preferred to argue the case of the applicant no.2. in the first instance. He submitted that the evidence placed before the learned trial Judge does not show that the applicant No.2 was aware of the fact that the applicant No.1 is already married and therefore holding the applicant No.2 guilty under Section 109 as also under Section 494 of I.P.C. was improper and the conviction of the applicant No.2 under those two sections was illegal. He had drawn my attention to the judgment delivered by the learned trial Judge as also the judgment delivered by the learned Addl. Sessions Judge and he submitted that nowhere the courts have indicated as regards the knowledge of the earlier marriage of the applicant No.1 with the respondent No.2. He therefore submitted that the conviction of the applicant No.2 under Section 494 r/w. 109 of I.P.C. is required to be set aside. 4. Learned Advocate Mr. Saste appearing on behalf of the State tried to justify the order as -4- regards conviction of the applicant No.2 by contending that the applicant No.2 had entered into a process of matrimony with the applicant No.1 who was already married with the respondent No.2 and as such the judgment was delivered by the learned trial Judge. As already argued by learned Advocate Mr. Patil there is nothing to suggest through the evidence of Shankar as well as Hanumanthrao that the applicant No.2 was aware of the subsistence of the marriage between the applicant No.1 and the respondent No.2. As a result of this there was no evidence before the learned trial Judge to hold that the ingredients of Section 109 of IPC are made out and if that is so it was wrong on the part of the learned trial judge to convict the applicant No.2 under Section 494 r/w. 109 if I.P.C. and to that extent the application will have to be allowed. 5. In so far as the conviction of the applicant No.1 under Section 494, I have perused the evidence of Shankar and Hanumanthrao. These two persons have given detailed evidence as to how they had seen the applicant No.1 and the applicant No.2 undergoing the ceremony of marriage and both -5- of them have stated that the parties underwent the marriage ceremony including Saptapadi. This evidence was considered by the learned trial judge as sufficient to show that the marriage was solemnized between the applicant No.1 and the applicant No.2. The learned trial Judge had rightly considered the evidence of these two witnesses. Objection to the evidence of these two witnesses was raised before this Court by contending that said Shankar and Hanumanthrao were relatives of the respondent No.2 and therefore they will have to be styled as interested witnesses. It may be that these two persons are the relatives of respondent No.2. However, merely on that count the evidence cannot be disbelieved when the evidence in clear terms makes out a case for the marriage between the applicant No.1 and the applicant No.2. The learned trial judge has specifically observed that no specific material was brought on record in the cross examination of these two witnesses so as to discard their evidence. If this be so, the evidence given by Shankar and Hanumanthrao will have to be accepted as one on the basis of which the marriage between the applicant No.1 and applicant No.2 can be said to have been proved. -6- The argument that because they were relatives their evidence should be discarded, cannot be accepted. If this be so, the arguments advanced by Mr. Patil so as to put up the challenge to the judgment of the learned trial Judge as also the judgment of the learned Addl. Sessions Judge cannot be accepted. 6. Having gone through the judgement delivered by the learned trial Judge, as well as the learned Additional Sessions Judge, I am inclined to observe that both the courts have rightly observed that the applicant No.1 went in marriage ceremony with applicant No.2. Sufficient material was placed before the learned trial Judge so as to say that on the date of the marriage of applicant No.1 with applicant No.2, the marriage between applicant No.1 with respondent No.2 was subsisting. If that be so, the learned trial Judge and the learned Addl. Sessions Judge were right in holding that offence under Section 494 of I.P.C. was proved beyond the shadow of reasonable doubt against the applicant No.1 As a result of this impugned judgment delivered by the trial judge and confirmed by the learned Sessions Judge cannot be faulted upon. As such the order of conviction will have to be -7- confirmed. 7. So far as the question of punishment is concerned, the learned trial Judge has convicted the applicant No.1 under Section 494 and has sentenced him to suffer r.i. for six months and to pay fine of Rs.500/-. As it is, the learned trial Judge has taken lenient view and no interference is required in the quantum of sentence. As such, I proceed to pass the following order: ORDER . Application is dismissed so far as the applicant No.1 is concerned. His conviction under Section 494 of IPC and sentence imposed upon him pursuant to the judgment dated 20.11.1989 passed by the learned JMFC, Islampur in Criminal Case No.8 of 1983 and confirmed by the learned Addl. Sessions Judge, Islampur in Criminal Appeal No.2 of 1999 is confirmed . . As of today the applicant is on bail. His bail bond stands cancelled. -8- . Applicant to surrender to his bail on or before 5.6.2008. . The conviction of applicant No.2 under Section 494 r/w. Section 109 of IPC is set aside. Accordingly the sentence imposed upon the applicant No.2 is also set aside. The applicant No.2 is acquitted of the charge under Section 494 r/w.109 of I.P.C. To that extent the order passed by the learned JMFC in Cri. Case No.8 of 1993 and confirmed by the learned Addl. Sessions Judge, Islampur in Criminal Appeal No.2 of 1999 is set aside. Bail bond of applicant No.2 is cancelled. Fine amount, if deposited, by the applicant No.2 be returned to the applicant No.2. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)