Whether offence U/S 494 of IPC can be made out on the basis of birth certificate of child?

 Insofar as the birth certificates of daughters are concerned, the lower Appellate Court has rightly relied upon the decision of Orissa High Court in Smt. Dhara Dei v. Prafulla 1984 (2) Crim 397 to hold that birth certificate of a person does not prove a marriage between the persons named as father and mother in the birth certificate and birth could be attributed to illicit relationship between persons named in the birth certificate. Therefore, on this count also no legal infirmity could be found with the findings recorded by the lower Appellate Court.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 268 of 1996

Decided On: 22.02.2007

Appellants: Snehalata Kailash Ingale and Ors.
Vs.
Respondent: Kailash Rajaramji Ingale

Hon'ble Judges/Coram:
A.P. Lavande, J.

Citation: II(2007)DMC704,2008 ALLMR(CRI)131

1. By this appeal the appellant takes exception to the judgment and order dated 10.1.1996 passed by Sessions Judge, Akola in Criminal Appeal No. 18/1993 allowing the appeal filed by respondent No. 1 against the judgment and order dated 6.2.1993 passed by Judicial Magistrate, First Class, Akola in Regular Criminal Case No. 548/91.

2. The facts leading to filing of present appeal are as under:

The appellant who is original complainant and the wife of respondent No. 1 -original accused No. 1. According to the complainant, she got married with accused No. 1 on 6.6.1983. During the pendency of valid marriage accused No. 1 married one Rajkanya and the marriage was solemnised on 19.2.1986. The complainant filed the above criminal case against accused No. 1 and eight others alleging offence punishable under Section 494 of the Indian Penal Code. In the course of trial, the complainant examined four witnesses including herself as P.W. 1 Snehalata, P.W. 2 Devidas Belsare, P.W. 3 Kisan Bochare and P.W. 4 Vishwanath Adokar. The learned Magistrate relying upon the evidence led by the complainant convicted respondent No. 1, accused No. 1 for the offence punishable under Section 494 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs. 250 (Rs. two hundred fifty only) in default to undergo rigorous imprisonment for one month. The Magistrate acquitted all other accused of the offence charged. The appeal preferred by accused No. 1 was allowed by the Sessions Judge, Akola. Hence, the present appeal has been filed by the complainant after seeking special leave to appeal under Section 378(4) of the Code of Criminal Procedure.

3. Mr. Choube, learned Counsel appearing for the appellant submitted that the lower Appellate Court erred in allowing the appeal against the judgment and order of conviction passed by the learned Magistrate. He then urged that the evidence of P.W. 4 Vishwanath Adokar has been rejected on unsustainable grounds and the eye-witness to the second marriage was rightly believed by the Magistrate. He, therefore, urged that the appeal be allowed by maintaining the judgment and order passed by the learned Magistrate.

4. Per contra, Mr. Munshi, learned Counsel appointed for respondent No. 1 under Legal Aid Scheme submitted that the findings recorded by the lower Appellate Court are borne out from the evidence on record and the lower Appellate Court has rightly, disbelieved the evidence of Vishwanath (P.W. 4). She further submitted that the findings recorded by the lower Appellate Court cannot be said to be perverse and, therefore, no interference is called for. Mr. Sonare, learned APP for respondent No. 2 also supported the judgment passed by lower Appellate Court.

5. I have considered the submissions made by learned Counsel for the parties and learned APP and perused the records.

Since this is an appeal against the judgment and order of acquittal having regard to the ratio laid down by the Apex Court in catena of decisions, this Court will have to find out whether the findings recorded by the lower Appellate Court are perverse warranting interference in appeal against acquittal. In support of the prosecution case mainly reliance was placed on the evidence of P.W. 4 Vishwanath Adokar who claimed to be eye-witness to the marriage ceremony and secondly on birth certificates of daughters which disclosed that they were born out of relation from accused No. 1. Insofar as the evidence of P.W. 4 Vishwanath is concerned, the lower Appellate Court has chosen not to place reliance upon the same on the ground that his evidence does not dispose that essential ceremonies for a marriage which have been held to be mandatory to prove the offence of Bigamy were performed. The lower Appellate Court has also held that the evidence of Vishwanath is too vague and laconic on the point of second marriage of accused No. 1. Insofar as this finding is concerned, I find that this finding cannot be said to be perverse to warrant interference in the appeal against acquittal. The view taken by the lower Appellate Court is a possible view and, therefore, cannot be faulted. Insofar as the birth certificates of daughters are concerned, the lower Appellate Court has rightly relied upon the decision of Orissa High Court in Smt. Dhara Dei v. Prafulla 1984 (2) Crim 397 to hold that birth certificate of a person does not prove a marriage between the persons named as father and mother in the birth certificate and birth could be attributed to illicit relationship between persons named in the birth certificate. Therefore, on this count also no legal infirmity could be found with the findings recorded by the lower Appellate Court.

6. Upon re-appreciation of the evidence led by the parties, I find it difficult to hold that the findings recorded by the lower Appellate Court while acquitting accused No. 1 for offence punishable under Section 494 of the Indian Penal Code are perverse.

7. In the result, therefore, I do not find any infirmity in the impugned judgment passed by the Sessions Judge, Akola. Hence, the appeal is dismissed and the judgment and order of acquittal against accused No. 1 for the offence punishable under Section 494 of the Indian Penal Code is maintained. The fees payable to Advocate M.P. Munshi who has been appointed under Legal Aid Scheme are quantified at Rs. 1,000.

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