In order to establish the offence of bigamy u/s 495 of the Indian Penal Code, the prosecution must prove both the marriages, and the concealment of the first marriage from the person with whom the subsequent marriage is contracted.

JUDGMENT :

R.N. Misra, J. - This is on appeal u/s 417(3) of the Code of Criminal Procedure against the judgment of acquittal of the Respondents of charges u/s 495 and 495/109 of the Indian Penal Code.

2. Prafulla Kumar Mohapatra (Respondent No. 1) is said to have been married to one Sailabala. Sailabala, the first wife is alive. By suppressing the fact of such marriage, Prafulla got married again to the Appellant Rajalaxmi. It was alleged by the Appellant that she and Prafulla lived together for some time, but it transpired that Prafulla had a previously married wife living and when the Appellant started making further enquiries, Prafulla, who works as on Advocate's clerk, came away from the village and started living within the town of cuttack along with the first wife. The Appellant and her father accosted Prafulla at Cuttack. A dispute followed and one Sri Sunakar Jena, on Advocate, with whom Prafulla is said to be working as a clerk, undertook to make a settlement. In the meantime, the Appellant gave birth to a child and as she found that Sri Jena was not taking any steps, she was forced to file the complaint. Prafulla was charged for the offence u/s 495 while the three others who,are respectively Prafulla's sister, brother and the Barakarta in the second marriage, were charged u/s 495/109 of the Indian Penal Code.

3. The defence was one of denial of both the marriages and the relations and Barakarta of Prafulla took the plea that they had been falsely implicated. In support of the prosecution case, both oral and documentary evidence were adduced. The complainant examined herself. Her father was examined as p.w. 5. Two co-villagers of Prafulla were examined as p.ws. 7 and 8. The voters list a letter by the Barakarta (Respondent No. 4) to the father of the complainant (p.w. 5) were also produced. Admissions of Prafulla and his brother (a CD-accused) in previous litigations were also exhibited. A brother of the alleged first wife was also examined to support the prosecution story.

4. The learned Trial Judge accepted the complainant's claim of marriage to Prafulla, but found that the prosecution had failed to establish the first marriage. In view of such finding he acquitted the Respondents.

5. The offence u/s 495 of the Indian Penal Code is on aggravated form of the offence u/s 494 thereof. Section 494 of the Code provides:

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 495 of the Code provides:

Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The point for consideration, therefore, is as to whether the prosecution has been able to establish the two marriages, that is marriage of Prafulla with Sailabala and marriage of Prafulla with the complainant during the life time of Sailabala. As has just been indicated, the learned Trial Judge accepted the prosecution case in regard to the second aspect. Counsel for the Respondents seriously disputes that finding and contends that the learned Trial Judge should have come to find that the prosecution had equally failed to establish that marriage. Mr. Mohapatra for the complainant-Appellant has contended that the first marriage had been established and I should record such a finding. Mr. Kar on the other side has taken the stand that the finding of the learned Trial Judge regarding the second marriage should be vacated.

6. Before dealing with the offence, I think it appropriate to indicate the law applicable to this case. Parties are admittedly Brahmins. There is no clear evidenc