Laleshwar Tilakchand Bopche vs Tilakchand Balaram Bopche & ...
2017 Latest Caselaw 6553 Bom

                                                                                             CRI.APPEAL.324.01
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                             CRIMINAL APPEAL NO. 324/2001

          Laleshwar s/o Tilakchand Bopche
          Aged about 29 years, 
          R/o Ramnagar, Gondia, Dist.Gondia.                                         ..   APPELLANT 

                     v e r s u s

1)        Tilakchand s/o Balaram  Bopche 
          Aged about 52 years, occu: cultivator 
          & Medical practitioner 
          R/o Sitepar, Po: Pandhri, 
          Police Station : Duggipar 
          Tah.Sakoli,  Dist. Bhandara. 

2)        State of Maharashtra                                                       .. RESPONDENTS

...........................................................................................................................
           Mr. R.M. Daga,  Advocate for appellant 
           Ms.Ratna Singh Adv.h/for Mr. Amol Mardikar,  Advocate for 
           respondent no.1  
............................................................................................................................

                                                     CORAM: MRS.SWAPNA JOSHI, J.

                                                     DATED:     28th August, 2017

ORAL  JUDGMENT: 

This Appeal has been directed against the judgment and order

dated 28th September, 2001 in Regular Criminal Complaint No.216/1989

delivered by the learned Judicial Magistrate, First Class, Gondia, thereby

acquitting the accused /(respondent no.1 herein) of the offence punishable

under section 494 of the Indian Penal Code.

2. The brief facts of the complainant's case are that, the father of

CRI.APPEAL.324.01

the complainant-Tilakchand Bopche (respondent no.1/accused) ( hereinafter

referred to as 'the accused') was married with one Amritabai (mother of the

complainant) in the year 1961. The complainant-Laleshwar is the child out of

the said wedlock. It is the case of the complainant that the marriage of

Amritabai with Tilakchand was performed at Pandhri village, Tahsil Sakoli,

Dist.Bhandara, as per the Hindu religious rites and caste customs. Out of the

said wedlock they have two sons, by name, Khomendrakumar and

Narendrakumar. It is alleged that in the 1967-68 the accused has performed

another marriage with one Kusum Parasram Harikhede, R/o Hanuman nagar

and they have cohabited together for a period of two years. It is further

alleged that on 23rd May 1980, the accused again got married with one

Harshabala @Rekhabai, daughter of Chunnilal Kumar R/o Gondia and has

an issue out of the said wedlock. Thus, it is the case of the complainant that

the accused has committed an offence punishable u/s. 494 of the IPC. The

learned JMFC has issued process against the accused for the said offence.

The complainant adduced his evidence before framing the charge. On hearing

both the sides and after recording the evidence adduced by the complainant,

the learned Magistrate has framed the charge against the accused for offence

punishable u/s 494 IPC. After appreciating the evidence on record, the learned

Magistrate has acquitted the accused, as aforesaid. Hence the present Appeal.

3. Mr.R.M.Daga, the learned counsel for the appellant contended

that it is not disputed by the accused that his marriage with Amritabai is a

CRI.APPEAL.324.01

legal marriage, however his contention is that the learned Magistrate has

committed an error by not considering the factum of the alleged second

marriage of respondent no.1 with Rekha during the subsistence of the first

marriage. He vehemently argued that during the subsistence of the first

marriage the accused married with Rekha and thus deceived the mother of the

complainant. He further contended that the judgment passed by the learned

Magistrate is illegal and perverse inasmuch as the learned Magistrate has

failed to consider the testimony of near relatives of the accused who had

specifically stated about the factum of the alleged marriage of respondent

with Rekha.

4. Ms. Ratna Singh, learned Advocate h/for Mr. Amol Mardikar

for the accused, vociferously argued that the learned Magistrate has properly

evaluated the evidence adduced by the accused and has come to the

conclusion that the appellant has failed to prove that the accused has

performed the second marriage with Rekha.

5. I have carefully gone through the evidence led by the

complainant/appellant. The complainant has examined in all four witnesses.

The complainant-Laleshwar has examined himself as CW1, the complainant's

mother Amritabai is examined as CW2, the brother of the accused Dr.

Yadaorao Bopche as CW-3 and, after framing of the charge, the complainant

has examined father of the accused-Wamanrao Pardhi as CW4.

6. On careful scrutiny of testimony of all these witnesses, it is

CRI.APPEAL.324.01

noticed that all the witnesses have stated about the accused marrying with

Amritabai. The complainant/appellant has filed an affidavit to the effect that

Amritabai is his mother,whereas Tilakchand is his father. CW2 Amritabai

has stated on oath at Exh.32 that her marriage took place with the accused at

Pandhri village about 30 years ago and about 400 people had attended the

said marriage. Ceremonies, such as, sacred fire (homa) and Saptapadi (seven

steps) also took place. They were blessed with three children including the

complainant. Significantly, the learned Magistrate has come to the conclusion

that Amritabai is the legally wedded wife of the accused. Even CW3 Dr

Yadaorao Bopche, who is the real brother of the accused has stated that he

had attended the marriage of accused with Amritabai which was performed at

Pandhri village. CW4-Wamanrao Pardhi, who is the father-in-law of

complainant's brother and an independent witness has deposed that he had

attended the marriage of Tilakchand with Amritabai which was performed

some forty years back. CW2-Amritabai as well as CW4-Wamanrao have

deposed that one Ratandas Pandit was the priest who performed the said

marriage and has recited the necessary hymns (shloka) and in his presence

Saptapadi had taken place around the sacred fire (homa).

7. Now, on the point of marriage of the accused with Rekha, it is to

be tested whether the said marriage was performed in similar manner by

observing customs and traditions as is performed in 'Powar' caste. On this

aspect, CW3-Dr. Bopche stated that in March/April 1980, the accused secretly

CRI.APPEAL.324.01

got married in Court with one Rekha d/o Chunnilal Kumar and they are living

as husband and wife and on 15.12.1980 has given birth to one male child.

The testimony of this witness does not make out as to when exactly the

accused got married with Rekha. As regards the testimony of CW1/

complainant Laleshwar Tilakchand is concerned, according to him, after

marriage with his mother the accused got married with one Rekha in the year

1980 and it was a Court marriage. CW1 submitted the xerox copy of the

said marriage. Mr. Daga, learned counsel for the appellant contended that

although it is a xerox copy it is admissible u/s 80 of the Evidence Act.

Section 80 of the Evidence Act reads as under :

"80. Presumption as to documents produced as record of evidence - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the court shall presume-

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. "

On plain reading of the Section 80, it is clear that it nowhere

CRI.APPEAL.324.01

indicates that the xerox copy of the marriage certificate can be read in

evidence. As such, it cannot be considered in evidence. In view thereof, the

testimony of CW 1-Laleshwar is not of any assistance to this case, with regard

to the fact that the accused got married with Rekha on 15.12.1980.

8. As far as testimony of complainant witness no.2-Amritabai

who is the legally wedded wife of the accused is concerned, she stated that the

accused married with one Punjabi girl by performing Court marriage in the

year 1980. She stated that she had seen Rekha. She resides at Kosumtondi

with the accused. She begot a boy and a girl from the accused. CW2-Amritabai

however admitted in her cross-examination that she had not seen the place

where the accused married with Rekha. According to her, on the auspicious

occasion of Diwali festival after the said marriage, the accused brought

Rekha home, at that time she stayed for eight days. The testimony of CW 2

Amritabai indicates that Rekha stayed with the accused only for eight days.

It is not clear as to why CW2 has not lodged the complaint against Rekha at

the relevant point of time. CW2 failed to give the exact date of marriage of

accused with Rekha. As such, the testimony of CW2 does not inspire

confidence at all.

9. Complainant witness No.3 Dr. Yadaorao Bopche stated that in the

year 1980 the accused got married with Rekha. It was a court marriage.

Rekha stayed with the accused and she begot one daughter and one son

from the accused. The testimony of CW3 does not make it clear as to when

CRI.APPEAL.324.01

exactly the respondent got married with Rekha and as regards Rekha

performing the court marriage with the accused, as already discussed above,

there is no document on record to show that the accused performed the court

marriage with Rekha. The testimony of CW4- Wamanrao, who is the father of

the accused, indicates that about 20-years ago, Rekha resident of Gondia came

to Sitepar and started residing with the accused as his wife. She resided for

eight days thereafter Rekha and accused went to reside at Kusumtondi and

are residing there. They have one son and one daughter. CW4 stated that at

Sitepar, Rekha and accused have performed 'katha' and he was invited for

food,therefore, he knew that they had performed marriage at Bhandara and at

that time Amritabai was also present at Sitepar. The testimony of CW 4

does not in any manner indicate that he had knowledge about the court

marriage of accused with Rekha.

10. On careful scrutiny of testimony of the witnesses examined by

the complainant as well as the complainant himself it is noticed that there is

no convincing, cogent and coherent evidence on record with regard to the

marriage of accused with Rekha. None of these witnesses had attended the

alleged marriage of accused with Rekha.

11. In the case of Smt.Kerabai Nakhate vs. Ramrao Nakhate and

others reported in 2013 ALL MR (Cri) 3515 it is held by this Court that in

order to prove bigamy both the marriages must be proved in accordance with

the legal requirements, caste and customs of a particular community. In the

CRI.APPEAL.324.01

instant case, the appellant has utterly failed to prove that the accused

performed second marriage with Rekha during the subsistence of the first

marriage. As already discussed above, the marriage certificate tendered by the

appellant has not been proved and, as such, it cannot be said that Rekha is

the legally wedded wife of the accused.

12. The learned Magistrate has rightly reached to the conclusion

that the complainant has failed to prove the second marriage of accused with

Rekha during the subsistence of first marriage with Amritabai.

13. As regards the certificate with regard to the marriage is

concerned, the learned Magistrate has observed that the marriage certificate

(Exh.224) indicates that one Tilakchand Bopche has married with one Rekha

Chunilalal Kumar. However, the burden lies on the complainant to show that

the person whose name is entered in the certificate and the accused is one

and the same person and it was the accused-Tilakchand only and none else

who has appeared before the Marriage Officer and made the declaration u/s

11 of the Hindu Marriage Act. The complainant has not examined Rekha

although she was cited as a witness. The complainant/appellant has not

discharged the burden that the accused has undergone the solemnization of

the marriage with Rekha on 23.5.1980. The identity of the accused and

Rekha in the marriage certificate has to be established by the complainant.

The complainant has failed to prove the signature of the accused on the

declaration made u/s 11 of the Hindu Marriage Act. The learned Magistrate

CRI.APPEAL.324.01

has rightly reached to the conclusion that no legal inference can be drawn

that the identity of the accused and the bridegroom named in the marriage

certificate at Exh.224 as the accused -Tilakchand and, therefore the benefit

goes in favour of the accused. The complainant/appellant has failed to prove

beyond reasonable doubt that the accused is the groom whose name appears

in Exh.224. In the backdrop of the above-referred facts and law, it is held

that the learned Magistrate has rightly acquitted the accused of the offence

punishable u/s 494 IPC. I find no perversity or illegality in the impugned order.

14. By now, the law is well-settled in respect of the appeal against

acquittal. Merely because, the other view is possible that itself is not sufficient

for the Appellate Court to record a different finding though the Appellate

Court has full power to re-appreciate the entire prosecution case. For

exercising the appellate power in the Appeal against acquittal the judgment

appealed against, has to be perverse one or the view taken by the Court below

is impermissible on the basis of the evidence that is brought on record. In my

view, the learned Magistrate has correctly appreciated the facts brought on

record by the complainant. Further, the learned APP has fairly stated that

there is no perversity in the judgment of acquittal. On re-appreciation of the

entire prosecution case, I am of the view that, nothing is brought on record to

upset the finding and order of acquittal passed by the learned Magistrate.

Consequently, the Appeal fails and is dismissed.

sahare                                                                         JUDGE