Whether accused can be convicted for bigamy if he has admitted performance of second marriage?

As far as conviction and sentenced of the appellant

under Section­ 494 of the Indian Penal Code is concerned,
there is no evidence on record to establish the fact that, the
second   marriage   of   appellant   with   Mrs.   Shyamal   was
solemnized that means he   celebrated the marriage with
proper ceremonies and in due form. The Supreme Court in
the case of  Baburao Shankar Lokhande and another vs. The
State of Maharashtra and another reported in AIR 1965 S.C.
1564  has   held   that,   for     application   of   Section   494,
marriage   must   come     within   'solemnized   marriage'.
'Solemnize' means   to celebrate the marriage with proper
ceremonies and in due form.  Mere going through  certain
ceremonies  with intention to marriage  will not make the
ceremonies  prescribed by law or approved by customs. It is
further held that, it is essential for the purpose of Section
17 of the Hindu Marriage Act,   the marriage   applies on
account   of   the     Act,   should   have   been   celebrated   with
proper ceremonies and in due form. It is further held that
merely going through certain ceremonies with the intention
that the parties be taken to be married will not make the

ceremonies   prescribed   by   law   or   approved   by   any
established   custom.       In   the   present   case   to   prove   the
second marriage of the appellant the prosecution has relied
upon the admissions given by the Mr. Pandit Kamble (P.W.1)
father   of   the   deceased   Shyamal   and   Smt.   Ujwala
Suryawanshi (D.W.2) sister of the appellant. The Supreme
Court  in  the  case  of  Kanwal  Ram   and  others  vs.     The
Himachal Pradesh Administration  reported in  1966 SC 614
while relying on the ratio laid down by the Supreme Court
in the case of Bhaurao Shankar Lokhande (supra)   has
further held that, in a bigamy case, the second marriage as
a fact, that is to say, the essential ceremonies constituting
it, must be proved. Admission of marriage by the accused is
not evidence of it for the purpose of proving marriage in an
adultery or bigamy case. As noted herein above, there is no
evidence on record to establish the fact beyond reasonable
doubt that the appellant in fact had solemnized marriage
with Mrs. Shyamal on 1.4.2012, the view expressed by the
Supreme Court in the case of   Baburao Shankar Lokhande

(supra) is followed by it in the case of Kanwal Ram (supra),
in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh reported
in   1971  (1) SCC 864 and in  Laxmi Devi  (Smt.) Satya
Narayan and ors. reported in (1994) 5 SCC 545.
9. There is no evidence on record to establish that, the
appellant   performed     second   marriage     by   following
necessary and essential ceremonies as per the mandate of
law. It is therefore, clear from the evidence on record that
the marriage between the appellant and the deceased Mrs.
Shyamal was not established beyond reasonable doubt by
the prosecution and consequently does not come within the
purview   of   Section   494   of   the   Indian   Penal   Code   even
though the first wife of the appellant Mrs. Sangeeta was
alive  when he married with Mrs. Shyamal in April, 2012.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL  APPELLATE JURISDICTION
         CRIMINAL APPEAL NO.672 OF 2016
WITH
               CRIMINAL APPLICATION NO.197 OF 2018

Vidyasagar  Irappa Mane, Vs The State of Maharashtra,

                                     CORAM: A.S.GADKARI, J. 
 DATE :13TH APRIL, 2018.

1. The Appellant is convicted  for the offence punishable
under   Section   417   of   the   Indian   Penal   Code   and   is
sentenced to suffer rigorous imprisonment for one year and
for the offence punishable under Section 494 of the Indian
Penal   Code   and   is   sentenced   to   suffer   rigorous

imprisonment   for   six   years   and   to   pay   a   total   fine   of
Rs.1000/­ by the learned District Judge ­9 and Additional
Sessions Judge,Thane in Sessions Case No.37 of 2015 by its
Judgment and Order dated 11.12.2015. The said Judgment
and Order dated 11.12.2015 is impugned herein.
2. The record indicates that in the present appeal, the
appellant was granted bail by this Court by an Order dated
4.10.2016   on   certain   conditions.   As   the   applicant   was
unable   to   furnish   surety   in   the   sum   of   Rs.20,000/­   he
preferred   Criminal   Application   No.197   of   2018   through
Jail, for reduction of the bail amount and for releasing him
on bail by furnishing PR bond. As the Advocate for the
appellant did not remain present on earlier occasion, this
Court by an order dated 23.2.2018 appointed Mrs. Farhana
Shah, the learned Advocate from the panel of High Court
Legal Services Committee to represent the applicant and to
espouse his  cause. 
        The   said   Application   No.197/2018   was   thereafter
adjourned and directed to be heard along with the present
appeal.

3. Heard   Mrs.   Farhana   Shah,   learned   Advocate
appointed to represent the applicant and the learned APP.
for the State. Perused the record.  
4. It is the prosecution case in brief  that, the appellant
was married with  Mrs. Sangeeta and is blessed with two
children i.e. one son and one daughter. As the said Mrs.
Sangeeta had left the applicant and was not traceable  for
about two years, the family members  and particularly the
elder   sister   of   the   appellant   Smt.   Ujwala   Suryawanshi
(D.W.1)   decided to perform the second marriage of the
appellant  and accordingly the alleged second marriage of
the appellant with Smt. Shyamal @ Sangeeta Mane was
performed   on   1.4.2012   at   Buddha   Vihar,   Near   Mumbai
Pune Highway At Pune. After the marriage Mrs. Shyamal
started   cohabiting   with   the   appellant   near   Bagade
Company, Turbhe, Navi Mumbai. It was informed to Smt.
Shyamal by the appellant that, his first wife Smt. Sangeeta
had died. It was also informed by the appellant to Smt.
Shyamal  that,  from his earlier  wedlock he has one son
and one daughter and they  are residing with his sister at

Turbhe Naka. That, his children used to reside with the
appellant and Mrs. Shyamal intermittently. After two years
of   marriage,   somewhere   in   the   month   of   April,   2014
Shyamal   realized   that   first   wife   of   the   appellant   Mrs.
Snageeta is also residing at Turbhe and accordingly she
informed the said fact to her father namely Pandit Kamble
(P.W.1). That, on 19.4.2014   Mrs. Shyamal informed the
fact to her father (P.W.1) that the appellant had kept his
children in the house of his first wife Mrs. Sangeeta at
Turbhe Naka and  has given wrong information that he had
sent his children to Pune for studies. When Mrs. Shyamal
saw the children at Turbhe Naka she went to bring the
children and at that time Mrs. Sangeeta abused  deceased
Shyamal.   Mrs.   Shyamal     had   telephoned   the   appellant
about the same whereupon, he threatened Mrs. Shyamal
that if she tells the said fact to her parents he will kill her
and   her   father   and   cut   her   into   pieces.   Mrs.   Shyamal
informed this fact to her father (P.W.1). The first informant
told   Mrs.   Shyamal   that   he   will   come   to   meet   her   on
20.4.2014 at her house.

                   On 20.4.2014 Ms. Poonam (P.W.2) i.e. sister of
deceased   Mrs.   Shyamal  informed   the   first   informant   on
telephone   that between 8.00 to 8.30 a.m. Mrs. Shyamal
had committed suicide by hanging with the help of a rope
to   ceiling   of   the   house.   The   first   information   report
(Exhibit­21) was accordingly  registered at the instance of
Shri. Pandit Kamble (P.W.1) the  father of the deceased Mrs.
Shyamal with Turbhe Police Station.
          Dr. Bhushan Jain(P.W.7) conducted autopsy on the
dead body of Mr. Shyamal and reported the  final cause of
death   as   'Asphyxia   due   to   hanging”.   He   accordingly
prepared post mortem report (Exh.18).
5.         After completion of investigation the investigating
agency   submitted   charge   sheet   in   the   Court   of   Judicial
Magistrate   First   Class,   Vashi.   As   the   offence   punishable
under Section 306 of the Indian Penal Code is exclusively
triable by the Court of Sessions, the learned Magistrate
committed   the   said   case   to   the   Court   of   Sessions   as
contemplated under Section 209 of the Cr.P.C. The learned
Additional Sessions Judge, at Thane framed  charge below

Exhibit­3  for the offence punishable  under  Section 306,
323, 420, 494 and 506 of the Indian Penal Code. The said
charge was read over and explained to the appellant   to
which he denied, pleaded not guilty and claimed to be
tried. That, by an     Order dated 7.11.2015 passed below
Exhibit­32 the   charge under Section 420 of the Indian
Penal Code was modified and charge under Section 417 of
the Indian Penal Code came to be framed. The said charge
was also read over and explained to the appellant to which
he  denied and claimed to be tried.
It   is   the   defence   of   the   appellant   that   he   had
informed to Mrs. Shyamal that his first wife left him and
was not traceable for about two years and therefore it was
construed   that   she   died.     The     family   members   of   the
appellant therefore arranged his present marriage with the
mediation   of   his   sister   namely     Ujwala     Suryawanshi
(D.W.1).
6. The prosecution in support of its case and with a view
to bring home the guilt of the appellant examined in all
eight witnesses. The learned Trial Court after recording the

evidence and after hearing the parties to the said case was
pleased to acquit the appellant from all other charges and
convicted the appellant for the offences punishable under
Section   417   and   494   of   the   Indian   Penal   Code   by   the
impugned   Judgment   and   Order   dated   11.12.2015   as
aforestated.
7. The evidence of Pandit Kamble (P.W.1),  Ms. Poonam
Kamble  (P.W.2) sister of deceased Shyamal,  Smt. Nandabai
P. Kamble (P.W.3) the mother of the deceased Shyamal, Mrs.
Asha G. Mane (P.W.4) sister­in­law of the appellant and Ms.
Ujwala Suryawanshi (D.W.1)     clearly establishes the fact
that   despite   the   first   wife   of   the   appellant       i.e.   Mrs.
Sangeeta was alive, he mis­represented to Mrs. Shyamal
and her family members that, she has left him and induced
them to perform his marriage with Mrs. Shyamal. Section­
417 of the Indian Penal Code therefore, clearly applies to
the present case  and the conviction and sentence  imposed
upon the appellant under Section­417 of the Indian Penal
Code by the Trial Court is proper and  fully justified.
8. As far as conviction and sentenced of the appellant

under Section­ 494 of the Indian Penal Code is concerned,
there is no evidence on record to establish the fact that, the
second   marriage   of   appellant   with   Mrs.   Shyamal   was
solemnized that means he   celebrated the marriage with
proper ceremonies and in due form. The Supreme Court in
the case of  Baburao Shankar Lokhande and another vs. The
State of Maharashtra and another reported in AIR 1965 S.C.
1564  has   held   that,   for     application   of   Section   494,
marriage   must   come     within   'solemnized   marriage'.
'Solemnize' means   to celebrate the marriage with proper
ceremonies and in due form.  Mere going through  certain
ceremonies  with intention to marriage  will not make the
ceremonies  prescribed by law or approved by customs. It is
further held that, it is essential for the purpose of Section
17 of the Hindu Marriage Act,   the marriage   applies on
account   of   the     Act,   should   have   been   celebrated   with
proper ceremonies and in due form. It is further held that
merely going through certain ceremonies with the intention
that the parties be taken to be married will not make the

ceremonies   prescribed   by   law   or   approved   by   any
established   custom.       In   the   present   case   to   prove   the
second marriage of the appellant the prosecution has relied
upon the admissions given by the Mr. Pandit Kamble (P.W.1)
father   of   the   deceased   Shyamal   and   Smt.   Ujwala
Suryawanshi (D.W.2) sister of the appellant. The Supreme
Court  in  the  case  of  Kanwal  Ram   and  others  vs.     The
Himachal Pradesh Administration  reported in  1966 SC 614
while relying on the ratio laid down by the Supreme Court
in the case of Bhaurao Shankar Lokhande (supra)   has
further held that, in a bigamy case, the second marriage as
a fact, that is to say, the essential ceremonies constituting
it, must be proved. Admission of marriage by the accused is
not evidence of it for the purpose of proving marriage in an
adultery or bigamy case. As noted herein above, there is no
evidence on record to establish the fact beyond reasonable
doubt that the appellant in fact had solemnized marriage
with Mrs. Shyamal on 1.4.2012, the view expressed by the
Supreme Court in the case of   Baburao Shankar Lokhande

(supra) is followed by it in the case of Kanwal Ram (supra),
in Smt. Priya Bala Ghosh vs. Suresh Chandra Ghosh reported
in   1971  (1) SCC 864 and in  Laxmi Devi  (Smt.) Satya
Narayan and ors. reported in (1994) 5 SCC 545.
9. There is no evidence on record to establish that, the
appellant   performed     second   marriage     by   following
necessary and essential ceremonies as per the mandate of
law. It is therefore, clear from the evidence on record that
the marriage between the appellant and the deceased Mrs.
Shyamal was not established beyond reasonable doubt by
the prosecution and consequently does not come within the
purview   of   Section   494   of   the   Indian   Penal   Code   even
though the first wife of the appellant Mrs. Sangeeta was
alive  when he married with Mrs. Shyamal in April, 2012.
10. In  view thereof   and  as  a  result,  the  conviction  of
appellant   under   Section   494   of   the   Indian   Penal   Code
cannot be sustained. Appeal is therefore, partly allowed by
setting aside the conviction of the appellant  under Section
494 of the Indian Penal Code.

           Hence, the following order.
a) The conviction and sentence of the appellant under
Section   417   of   the   Indian   Penal   Code   is   sustained   and
maintained. 
b) The conviction and sentence of the appellant under
Section 494 of the Indian Penal Code by the impugned
Judgment and Order, is hereby quashed and set aside and
the   appellant   is   acquitted   from   the   offences   punishable
under the said section. 
c) Appeal is partly allowed in the aforesaid terms.
d) In view of the above, Criminal Application No.197 of
2018 does not survive and is accordingly disposed off.
11)             Before partying with the Judgment, this Court
places on record the  efforts put in by Mrs. Farhana Shah,
learned Advocate appointed to represent the appellant in
ably  assisting this Court for espousing the cause of the
appellant. The professional fees of Smt. Shah is quantified
at Rs.5000/­.The said fees be paid by the High Court Legal
Aid Services Committee within four weeks from the date of
receipt of the present Judgment and Order.

12) It is submitted that the appellant is presently lodged
in Nashik   Road Central Prison, Nashik. The Registry is
hereby directed to communicate the present Judgment and
Order to the appellant accordingly expeditiously.  
       The learned APP. is also directed to communicate this
Judgment and Order  to the concerned expeditiously by all
possible modes. 
( A.S. GADKARI, J.)

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