S. K. SAHOO, J. The v. Rao faced trial in the Court of learned S.D.J.M., Panposh in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.598 of 2016 An appeal under section 378 of Cr.P.C. from the judgment and order dated 01.12.2009 passed by S.D.J.M., Panposh in 1.C.C. Case No.302 of 2005. ----------------------------- Rahil Lugun ……… Appellant -Versus- 1. Asean Lugun 2. John V. Rao ……… Respondents
Legal Reasoning
For Appellant: - Mr. Pabira Kumar Nayak For Respondent No.1 - Mr. Pravash Ch. Jena For Respondent No.2 - None ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing & Judgment: 08.04.2024 --------------------------------------------------------------------------------------------------- S. K. SAHOO, J. The respondents Asean Lugun and John V. Rao faced trial in the Court of learned S.D.J.M., Panposh in 1.C.C. Case No.302 of 2005 and the respondent no.1 Asean Lugun was charged under section 494 of the Indian Penal Code (hereinafter Page 1 of 6 8I.P.C.9) and the respondent no.2 John V. Rao was charged under sections 494/109 of the I.P.C. The appellant is the complainant in the said case. The learned trial Court acquitted the respondents as per impugned judgment and order dated 01.12.2009. 2. It is the case of the complainant that she got married to the respondent no.1 Asean Lugun on 16.04.1992 as per the Christian custom and the respondent no.2 John V. Rao was the priest and after the marriage, she stayed in the house of her husband in the State of Jharkhand where she led a happy conjugal life. The respondent no.1 was serving in the Border Security Force (BSF) and he went to his place of posting but did not turn up. The appellant waited for the respondent no.1 for about five years. During that period, she was subjected to torture by her in-laws in connection with demand of dowry for which she came back to her parents9 place and stayed there. The respondent no.1 initiated Civil Proceeding No.133 of 2004 against the appellant in the Family Court, Rourkela for dissolution of marriage and during the pendency of the proceeding, the appellant came to know that the respondent no.1 had already got married to another lady, namely, Sara Suna for the second time and the respondent no.2 John V. Rao Page 2 of 6 was the priest of the said second marriage. Since during subsistence of the first marriage, the respondent no.1 married another lady and respondent no.2 instigated such marriage, the complaint petition was filed. 3. In order to prove its case, the complainant-appellant examined herself as P.W.1 and proved some documents. 4. The learned trial Court after assessing the evidence on record came to hold that the appellant has admitted that she was not present when the respondent no.1 married Sara Suna and no document has been filed showing the marriage between respondent no.1 with Sara Suna. Though two witnesses were required to be present at the time of marriage as per Christian religion but the appellant has failed to say as to who were the witnesses present at the time of marriage between the respondent no.1 and Sara Suna. Learned trial Court further held that in order to prove an offence under section 494 of the I.P.C., the complainant has to prove second marriage to be a valid one and there is no evidence that the respondent no.1 had married to Sara Suna. The defence plea of the respondent no.1 was taken into account coupled with the averments taken in the Civil Proceeding No.133 of 2004 that after five to six days of marriage, the complainant-appellant left the matrimonial home Page 3 of 6 and thereafter, she did not return back for which C.P. was filed. The learned trial Court further held that the ingredients of the offence under section 494 of the I.P.C. are not attracted and accordingly, held both the respondents not guilty. 5. The ingredients of the offence under section 494 of the I.P.C. are as follows:- (i) that the accused spouse must have contracted the first marriage; (ii) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage and (iii) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed. (Ref.:- Gopal Lal -Vrs.- State of Rajasthan : A.I.R. 1979 S.C. 713) Thus, section 494 of the I.P.C. would come into play only if the second marriage becomes void by virtue of the fact that it had taken place in the life time of one of the spouses. If the first marriage is not a valid marriage, no offence will be committed by contracting a second marriage. The fact of second marriage being void is a sine qua non for the applicability of section 494 of the I.P.C. If the marriage is not a valid marriage, Page 4 of 6 it is no marriage in the eyes of law. The validity of the second marriage i.e. the essential ceremonies constituting it is to be proved by the prosecution by satisfactory evidence. The learned counsel for the appellant has failed to bring any illegality or perversity in the impugned judgment. 6. In case of Babu -Vrs.- State of Uttar Pradesh reported in A.I.R. 1983 Supreme Court 308, it is held that in appeal against acquittal, if two views are possible, the appellate Court should not interfere with the conclusion arrived at by the trial Court unless the said conclusion is not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible on the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. Page 5 of 6 7. Considering the materials available on record and after going through the impugned judgment, I am of the view that the findings arrived at by the learned trial Judge cannot be said to be unreasonable and there is no illegality or impropriety in the impugned judgment. The learned trial Court has come to a just conclusion and acquitted both the respondents of the charges. 8. In view of the foregoing discussions, I am not inclined to interfere with the impugned judgment passed by the learned trial Court in acquitting the respondent no.1 Asean Lugun of the charge under section 494 of the I.P.C. and the respondent no.2 John V. Rao of the charge under sections 494/109 of the I.P.C. Accordingly, the CRLA fails and stands dismissed. Orissa High Court, Cuttack The 8thApril 2024/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Apr-2024 15:14:27 ..………………………. S. K. Sahoo, J. Page 6 of 6