The second wife is entitled to maintain a complaint under Sections 494 and 495 IPC, and the prosecution must prove the first marriage of the accused beyond reasonable doubt.

JUDGMENT

K R Shriram, J. - This is an appeal impugning the judgment and order dated 4-9-2001 passed by the Additional Sessions Judge, Pune, setting aside the order of conviction passed by JMFC Kirkee, Pune, against respondent under Sections 494 (Marrying again during lifetime of husband or wife), 495 (Same offence with concealment of former marriage from person with whom subsequent marriage is contracted) and 496 (Marriage ceremony fraudulently gone through without lawful marriage) of Indian Penal Code. Originally, there were 4 accused. Accused no.1 was respondent herein, accused no.2 was the mother of accused no.1, accused no.3 was the sister of accused no.2 and accused no.4 was the colleague of accused no.1. Initially charge framed was for the offence punishable under Section 420 read with Section 494 and 495 of IPC. Subsequently, fresh charge was framed by JMFC and it also included Sections 417, 419, 493, 495, 496 read with Sections 109, 114 and 34 of IPC. Trial Court acquitted accused nos.2, 3 and 4 and convicted accused no.1, who is respondent in the present appeal. Accused no.1 challenged the order of conviction and the Sessions Court by the impugned judgment and order allowed the appeal.

2. With the assistance of Learned APP Ms Malhotra, I have considered the records and proceedings and the impugned judgment.

3. Respondent who was accused no.1 had married original complainant Kumudini Gaikwad on 19-10-1995. On 20-10-1995, the said complainant alongwith accused no.1 went on a religious trip and returned by 4.00 p.m. same day. On 20-10-1995, in the evening Satyanarayan Puja was arranged in the house of accused no.1 where the relatives and friends of accused as well as complainant were present. After puja was over, a lady by name Priti Pabalkar came to the house of accused at about 8.00 p.m. and announced that she was already legally wedded wife of accused no.1 and that she had two children from the said marriage and she would also commit suicide by consuming poison. At that time complainant and her relatives came to know for the first time that accused no.1 was already married and accused nos.1, 2, 3 and 4 have suppressed that fact. On 22-10-1995, complainant lodged a complaint with the police. In the course of investigation of the said complaint, statement of Priti was also recorded on 27-10-1995 and Priti also lodged an FIR against accused nos.1 to 3 under Section 498A of IPC on 27- 10-1995. Some documents were seized by Investigating Officer from Priti and complainant also produced some documents before police. What happened to the complaint filed by Priti, nobody knows. While trial was in progress before JMFC, Priti has filed an affidavit stating that she was not married to accused no.1 and she was instigated by others to break the marriage of accused no.1 with complainant.

4. Trial Court came to conclusion that accused no.1 was married to Priti based on marriage certificate, which was produced before the Trial Court by prosecution. Priti, however, has not been examined and the warrants which were issued, could not be executed as she was not traced. Trial Court came to conclusion that non-examination of Priti, though would have been very material to the case, does not affect the case of prosecution. Without production of Priti, Trial Court came to a conclusion that accused no.1 was already married to Priti.

5. Sessions Court allowed the appeal on two main grounds: a) complainant would not come under the definition of aggrieved party mentioned under Section 198 of CrPC because performing second marriage itself is not legal and the second wife will not come under the meaning of wife; and b) prosecution has not proved beyond reasonable doubt that accused no.1 was already married to Priti.

6. As regards first ground is concerned, Sessions Court is not correct in as much as a complaint by second wife under Section 494 of IPC is maintainable. Essential ingredients for the offence under Section 494 is, (i) accused must have c