The burden of proof lies upon the prosecution to establish the legality of the second marriage, and lack of strict proof of bigamy alleged to have been committed by the respondent No. 2.

JUDGMENT : – The appellant has preferred this appeal under section 378 of Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) being aggrieved by the judgment of acquittal dated 31-3-1997 passed by Judicial Magistrate First Class, Sardarpur, District Dhar, whereby the respondents/accused persons were acquitted from the charges under section 494 and 143 of Indian Penal Code, 1860 (in short ‘IPC’).

2. As per the prosecution story, the marriage of the appellant Kailash was solemnized with the respondent No. 2 Jani Bai as per the Hindu rites and rituals and they lived together as husband and wife. But thereafter, the respondent No. 2 Jani Bai got second marriage with the respondent No. 1 Gordhan with the active help of the other accused persons/respondents No. 3 to 5 knowing very well that first marriage of Jani Bai is still in existence and without obtaining divorce from the appellant, respondent No. 2 had performed the second marriage with the respondent No. 1.

3. Appellant had filed a complaint against the respondents before the trial Court. The trial Court took the statement of various witnesses under section 200 and 202 of the Criminal Procedure Code and the complaint was registered. Thereafter, the respondents were summoned. The trial Court examined various witnesses and an opportunity of cross-examination was given to the appellant and thereafter, charges under section 494 and 143 of Indian Penal Code were framed and trial was proceeded. After completion of the trial and appreciating the evidence available on record, the trial Court acquitted all the respondents from all the charges, therefore, after obtaining the special leave to appeal, this criminal appeal has been filed before this Court.

4. Learned counsel for the appellant submits that the judgment passed by the trial Court is erroneous on the facts and law. The trial Court has failed to appreciate the evidence available on record. The complainant has proved his case with the evidence of his father. The trial Court has committed illegality in counting the number of witnesses, instead of valuing their evidences. The complaint is based on the customs prevailed in their community, therefore, it is not required to prove ceremony of Saptpadi. The judgment passed by the trial Court is illegal, erroneous and without jurisdiction. Hence, he prayed that the impugned judgment of acquittal dated 31-3-1997 be set aside and the respondents be convicted accordingly.

5. Per contra, learned counsel for the respondents opposed the appeal and prays for its rejection by submitting that the trial Court has appreciated the evidence available on record. The appellant failed to prove is case, therefore, there is no need of interference in the findings of the trial Court.

6. Learned counsel for both the parties are heard at length and perused the entire record.

7. Short question arises for consideration of this Court is whether the second marriage entered into by the respondent No. 2 with respondent No. 1 was a valid marriage under Hindu Law so as to constitute an offence under section 494 of Indian Penal Code. The essential ingredients of the offence under section 494 of Indian Penal Code are: (i) the accused must have contracted the first marriage; (ii) she must have married again; (iii) first marriage must be subsisting and no divorce has taken place; and (iv) the first spouse must be living.

8. In the instant case, Jani Bai (PW-2) in her statement recorded under section 313 of Criminal Procedure Code has categorically denied her marriage with the appellant. Other respondents have also denied the same fact in their statements under section 313 of Criminal Procedure Code, therefore, burden of proof to prove first marriage of the appellant with the respondent No. 2 lies upon the appellant.

9. In order to bring home the charges, the appellant/complainant has examined Gangaram (PW-1), Kailash (PW-2), Kashiram (PW-3) and Balchand (PW-4) before the trial Court under section 244 of Criminal Proc