1 HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 525 of 2003 Decided on: 24.9.2010 Nanda Sahi ..............Appellant Versus Anil Kumar ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellant: Mr. Ajay Chandel, Advocate For respondent No. 1 Mr. V.S.Rathore,Advocate. For respondent No. 2 Mr. J.S Guleria, Assistant Advocate General V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment of the Court of Learned Sessions Judge Kangra at Dharamshala dated 1.9.2003 vide which the appeal filed by the respondent against his conviction under Section 494 IPC imposed by the Chief Judicial Magistrate Kangra at Dharamshala and sentenced for one year under Section 494 IPC and took a fine of Rs. 2000/- was set aside and the appeal filed by the respondent was allowed. 2. Briefly stated the facts of the case are that the appellant (hereinafter also referred to as complainant) filed a complaint under Section 494/498 IPC against her husband Anil Kumar, respondent No.1. It was alleged by the complainant that she is legally wedded wife of the accused and one son was also born from this wed lock. The accused was allegedly Government employee in Health Department. It was alleged that the accused during life time of the complainant has performed second marriage with one Sangeeta and they are living as husband and wife and a son was also born from this wed lock. The complainant filed the complaint that the respondent should be tried and punished under Section 494 and 498 IPC. The learned Chief Judicial Magistrate, Kangra at Dharamshala tried the respondent for the offence under Section 494 IPC only and on conclusion 2 of the trial, he was held guilty and was sentenced under Section 494 IPC as detailed above. 3. On appeal, the said findings were set aside by the learned Sessions Judge, Kangra at Dharamshala vide his impugned Judgment dated 1.9.2003 and the respondent was acquitted of the charge framed against him. 4. I have heard the learned counsel appearing for the parties and have also gone through the record of the case. 5. The submissions made by the learned counsel for the appellant were that the guilt of the respondent stands proved on the basis of the evidence under Section 494 IPC and he was rightly convicted by the learned Trial court which findings were wrongly set aside by the learned Sessions Judge. Thus, it was submitted that the appeal deserves to be allowed and the sentence imposed upon the respondent by learned Trial Court should be maintained. In the alternative, it was also submitted that the complainant is entitled to the grant of compensation in her favour which should be awarded and as such, the appeal deserves to be allowed. 6. On the other hand learned counsel for the respondent No.1 had supported the impugned judgment for the reasons recorded therein. 7. On appraisal of the record of the case, it is clear that to substantiate her case the complainant has stepped into the witness box as CW-1 Nanda Shahi and stated that respondent has performed second marriage with Sangeeta and they are living as husband and wife and one son has also been born from this alleged marriage and she has stated that the date of birth of the son is 12.03.1997. The name of the parents is also mentioned as Anil Kumar and Sangeeta. She also stated that she procured certificate from Municipal Committee, Nahan in regard to the names of the parents of the child EX.CW1/A. She stated that she is the legally wedded wife of the respondent and no divorce has taken place in between them. CW-2 Smt. Sunita, is the sister of the complainant, who has supported the statement of the complainant on all material particulars. She has stated that she had seen respondents No. 1 and 2 living together as husband and wife and her sister has not been divorced so far. CW-3 R.R Sharma, Executive Engineer has brought the record and proved the certificate EX.CW1/A which 3 shows that the certificate was issued in regard to the birth from the Government hospital and as per the certificate EX.CW1/A, the name of the parents has been mentioned as Sangeeta and Anil Kumar. CW-4 Tarsem Kumar, Jr. Assistant from the Zonal Hospital has also proved that according to the record maintained by them that there is an entry dated 12.3.1997 in the name of Sangeeta, wife of Anil Kumar regarding the birth of the child. No evidence was led by the respondent to rebut the evidence produced by the complainant. 8. On the basis of the above evidence, it can be said that this fact stood established that the respondent No.1 has performed second marriage with one Sangeeta and they had been living together as husband and wife and one child was also born from this marriage. The learned Sessions Judge in its impugned judgment had also concluded that the second marriage has been proved in between respondent No.1 and one Sangeeta . However, learned Sessions Judge had concluded that the ingredients of Section 494 IPC have not been proved since the complainant had failed to prove that the ceremonies necessary for performance of valid Hindu Marriage were also performed. There is not even a whisper in the evidence led by the complainant that such ceremonies were performed which is necessary requirement of Section 494 IPC and in the absence of such evidence, it can not be proved that ceremonies were duly performed. The husband can not be held guilty under Section 494 IPC and as such, I am in the agreement with the finding recorded by the learned Sessions Judge in this regard. No decision was cited to show that such ceremonies were not necessary to prove ingredients of the Section. 9. The learned counsel for the appellant had relied upon the decision of the Apex Court in Laxmi Devi Versus Satya Narayan and others 1994 (4)S.L.J.3461 wherein their Lordships on similar facts had observed that undoubtedly the respondent No.4 was living with Vimla as husband but the factum of second marriage was not proved under Section 494 IPC. However, their Lordships in exercise of their powers under article 142 of the Constitution of India awarded a compensation of Rs. 25,000/- in favour of the wife. These powers are vested only on the Apex Court and this power can not be exercised by this 4 Court and, as such, this plea of learned counsel for the appellant can not be accepted. 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. Copy of the order along with record be sent back to the learned Trial Court. September 24, 2010. (V.K. Ahuja), Judge. ( veena ) 5