IMPORTANT POINT
Accused could be convicted under section 511 IPC for attempt to commit offence of bigamy under section 494 IPC though only charged for offence, under section 494 IPC.

JUDGMENT

Ratnaparkhi. J -An order of acquittal passed' by the Judicial Magistrate, First Class, Mehkar on 3-8-1982 acquitting the accused Nos. 1 and 7 of the offence punishable under section 494 of the Indian Penal Code and the accused Nos. 3, 4, 5, 6 and 9 of the offence punishable under section 494 read with section 109 or in the alternative read with section 34 of the Indian Penal Code in Criminal Case No. 502 of 1977 has been challenged in this appeal.

2. Nivrutti Nimbha Chavan is a resident of village Nimbha in Mehkar Tahsil of Buldana district. He married the complainant-appellant Ramabai about 7 or 8 years prior to the initiation of these proceeding. After the said marriage, Ramabai was staying with Nivrutti at the matrimonial house. Thereafter, according, to the complainant, she was ill-treated, and ultimately driven out. Since then she is staying with her parents at the village Shelgon Kakda in the same Tahsil add District.

3. On 22nd April 1977, according to the complainant, respondent No.1 Nivrutti married respondent No.7 Viju at the village Kalpira in Mehkar Tahsil. All the ceremonies essential' for the marriage were performed. Since then' Viju is staying with Nivrutti as his wife. Accused No.2 Nimbha was the father of Nivnitti, accused No.5 Sugandhabai is the mol her of Nivrutti. Accused Nos. 3 and 4, husband and wife, are close relations of Nivrutti. Original accused No.6 Kashinath and respondent No.7 Janabai are the parents of accused No.7 Viju. It is the complainant's case that accused Nos. 2, 3, 4, 5, 6 and 8 abetted in the completion of that marriage. The complainant has come before the, Court with the case that the marriage was performed, while first wife of accused No.1 Nivrutti was still living and their marriage still continued. Therefore, accused abetted that offence.

4. During the pendency of die trial original accused No.2 Nimbha died and the trial abetted against him. On recording the verification, the accused were summoned. Evidence was recorded before charge and accordingly a charge under section 494 of the Indian Penal Code came to be framed against the accused No.1; whereas charge under section 494 read with section 109 or in the alternative read with section 34 of the Indian Penal Code came to be framed against all the other accused. The defence of the accused is purely of denial.

5. The complainant examined herself 'and three other witnesses. On examining the accused and on hearing the' arguments on both sides the learned Magistrate came to the conclusion that the charge was proved against none of the accused and acquitted them. It is this order of acquittal, which has been challenged in this Court.

6. Mr. Khapre the learned advocate for the appellant, Mr. V.M. Kulkarni, the learned advocate for the respondents Nos. 1 and 6 and Mr. Habibuddin, the learned Additional Public Prosecutor for tile respondent State have taken us extensively through the evidence adduced, before the lower Court. -It was the contention of Mr. Khapre that the evidence has not at all been properly appreciated and as such there has been miscarriage of justice. There is considerable force in the argument advanced by Mr. Khapre. We do not find that the trial Court has only reproduced the synopsis of the evidence in its judgment. There has been no process of marshalling the evidence and consequently no finding has been recorded on any of the points involved in this controversy. It will, therefore, be necessary to appreciate the whole evidence.

7. Ramabai has been examined as P.W. 1 at Exh. 19. She deposed that she was married to the accused No.1 about 7 or 8 years prior to her entering the witness box. According to her, the sacred fire was kindled, seven steps were taken by her and her husband round the sacred fire and both of them garlanded each other. After the marriage she stayed with the accused No. 1 at Nimbha She further states that while she was staying with her husband, he was unnecessarily beating her and thereafter h