ORDER
1. First accused for an offence under Section 495 I.P.C. and accused 2 to 7 for an offence under Section 495 read with Section 109 I.P.C. faced trial before the Judicial First Class Magistrate I, Madurai. The learned Magistrate acquitted accused 5 to 7 and convicted accused 1 to 4 as charged and sentenced them to six months rigorous imprisonment. Against the conviction and sentence, accused 1 to 4 filed an appeal before the learned Additional Sessions Judge at Madurai in Crl. A.P. 13 of 1979, The learned Sessions Judge dismissed the appeal, confirming the conviction and sentence passed by the trial court. The present petition is by accused 1 to 4 against the conviction and sentence confirmed by the lower appellate court.
2. The case of the prosecution is briefly as follows : Accused 1 and 4 are the sons of accused 2 and 3. The complainant, P.W. 1, was living with her maternal uncle, P.W. 2. Accused 2 to 4 negotiated marriage alliance for the first accused and P.W. 1 and negotiations were successful and P.W. 1 and the first accused were married on 27-3-1978, in Tiruparankundram Murugan temple. After a few days of the marriage, P.W. 1 came to know that the first accused had already married one Rakkammal, examined as P.W. 3 in the case and that marriage is still subsisting when her marriage with the first accused took place on 27-3-1978. When she enquired about the first marriage with Rakkammal, the first accused could not reply her properly and instead taking her thali he went away. After enquiry, P.W. 1 came to know that the present petitioners (accused 1 to 4) along with accused 5 to 7, in the trial court, were alone responsible for her marriage with the first accused on 27-3-1978, concealing the fact that the first accused was already married to Rakkammal. In support of her case P.W. 2, her maternal uncle and P.W. 3, the first wife of the first accused, were examined. P.W. 4, is also a witness on her behalf, who is a clerk in Thirupparankundram Subramaniaswami Koil temple, who speaks to the fact that on 27-3-1978, the first accused and P.W. 1 got married in the temple, after the first accused producing Ex. P.4 to the effect that the first accused was not married previously.
3. The petitioners admit the fact that the first accused was married to P.W. 1 on 27-3-1978. They also admit to the fact that the first accused was married to Rakkammal previously. But their defence is that the marriage of the first accused with Rakkammal was dissolved by a divorce. On their behalf, they examined D. Ws. 1 and 2 to prove to the fact of divorce.
4. On 27-3-1978, the first accused got married to P.W. 1, is spoken to by P.Ws. 1, 2 and 4 and proved by Ex. D. 1, the invitation. This has been admitted by the accused. The fact that the first accused was married to P.W. 3 was also admitted by the accused. The defence of the accused that there was a divorce between first accused and P.W. 3 is spoken to by D.Ws. 1 and 2. They rely on Ex. D. 2, the divorce deed. In Ex. D. 2, P.W. 3's alleged thumb impression and signature are there. But PW. 3 states in her evidence that she cannot write. It is very suspicious why Ex. D. 2 should contain the signature as well as the thumb impression. Even though attempts were made in the lower court to send the thumb impression for Finger Prints expert, the counsel for the accused withdrew the petition. The copy of Ex. D. 2 is alleged to be Ex. P. 5 and claimed by D.W. 2 to have been written by him. Even in Ex. P. 5 Rakkammal's name is there and the thumb impression is also there. There are some witnesses mentioned in Ex. P. 5. But the number of witnesses in Ex. P. 5 and Ex. D. 2 do not tally. That Exs. D. 2 and P. 5 were simultaneous documents, as claimed by the accused at the time of the divorce, cannot be accepted.
5. In Ex. D. 2, four witnesses are mentioned, out of which only D.W. 1 has been examined. D.W. 1's evidence is unsatisfactory. Even though he claims that in the Panchayat for the divorce between the first accused that in the Panchayat for the divorce between the first accused and P.W. 3, there were ten persons present, nobody has signed in Ex. D. 2 as a witness and he admits that he has not taken part in any previous dissolution of marriage proceedings and he also does not know who has written Ex. D. 2. The lower court is correct in rejecting the evidence of D.W. 1 D.W. 2's evidence is also not satisfactory. Even though he claims to have written Ex. D. 2, he is not able to explain the difference between Exs. D. 2 and P. 5. There is no evidence to show that divorce is allowed in the community of the accused and P.W. 1 Merely because a document like Ex. D. 2 says 'divorce deed' that does not mean a divorce has come into force. Curiously enough, the important party to the divorce. P.W. 3, the wife of the first accused, was not present during the divorce proceedings; what is more she claims she has not been divorced by the first accused. Under these circumstances, I have no hesitation to hold that there was no divorce between the first accused and P.W. 3.
6. It is clear that when P.W. 1 was married to the first accused, the fact of the first accused having already got a wife, P.W. 3, has been concealed from the knowledge of P.W. 1 and her relations. Ex. P. 4 alone is sufficient to prove that deception has been practised by the accused on P.W. 1 and her relations. Ex. P. 4 is a document, which was produced from the village Munsif before the marriage of P.W. 1 by the first accused. Ex. P. 1 clearly mentions that the first accused has not been married before. On Ex. P. 4, alone it is sufficient to hold that the accused had concealed the former marriage of A. 1 so that he could contract the subsequent marriage with P.W. 1.
7. The learned counsel for the petitioners cited before me a decision of the Supreme Court reported in Kanwal Ram v. Himachal Pradesh Administration, : 1966CriLJ472 , wherein it is held -
'In a bigamy case, the second marriage as a fact that is to say, the ceremonies constituting it must be proved. Admission of marriage by accused is not evidence of it for the purpose of proving marriage in adultery and bigamy case.'
8. The learned counsel, argued that admission of marriage by the petitioners, in the present case, cannot be acted upon, relying on the decision of the Supreme Court, cited above. In the Supreme Court decision, it was an admission in some other proceedings wherein the accused has made a statement. But, in this case, the admission is in the same proceeding against an offence under Section 495 read with S. 109 I.P.C. So, the aforesaid decision is not of help to the learned counsel for the petitioner.
9. The learned counsel for the petitioner relied on the decision reported in Kakarala Purunahandrarao v. Kakarla Sita Devi, 1980 Cri LJ 118 wherein it is held that an admission of either the first or the second marriage by the accused is no evidence of the marriage. We do not know the entire facts of the case. That is a case under Section 404 I.P.C. where both the marriages should be strictly proved. But the present case is under Section 495 I.P.C. where the accused have, after admitting the first and the second marriage, put up a plea that the first marriage was dissolved. This case is also not of any help to the learned counsel for the petitioners. He also relied on another Supreme Court decision reported in L. Obulamma v. L. Venkata Reddy, : 1979CriLJ849 , wherein it was held that essential ceremonies have to be proved to have a valid marriage. These are all cases where the fact of marriage is disputed. Where there is an admission of both the marriages by the accused, the above three cases referred are not, in my view, applicable. Lastly, the learned counsel for the petitioners relied on the decision reported in Muthammal v. Maruthathal, wherein Sathar Sayeed J. has held, regarding Section 107 I.P.C. and Section 494 I.P.C. that by mere association of the accused persons who are charged for an offence of abetment of the principal offender in the absence of any material to show that there was an instigation by the petitioners or that there was any intention either in aiding or in commission of the offence, it cannot be said that they have committed an offence of abetment. Applying the principle laid down by Sathar Sayeed J., in the above case, I feel that conviction of the petitioners 3 and 4, that is accused 3 and 4, cannot be sustained. The third accused is the mother of the first accused and the fourth accused is the brother of the first accused in all probability they would have been passive witnesses to what A. 1 and A. 2 were doing. I set aside the conviction and sentence passed on accused 3 and 4 i.e. petitioners 3 and 4.
10. It is in evidence that the second accused the father of first accused, has been taken a prominent part in the second marriage. He was the man, who produced Ex. P. 4 from the village munsif, before P.W. 4, showing that the first accused was not married previously. On the evidence of P.W. 4, it is clear that it was the second accused, who produced Ex. P. 4, before him. The conviction for an offence under Section 495 I.P.C. against the first accused is correct and it is confirmed and the conviction for an offence under Section 495 read with Section 109 I.P.C. as far as the second accused is concerned is correct and it is confirmed. Under the circumstances, of the case, it cannot be said that the sentence of six months rigorous imprisonment passed on them by the lower court is excessive.
11. In the result, the petition in so far as it relates to accused 3 and 4 are concerned is allowed, they are acquitted and their bail bonds are cancelled and the petition in so far as it relates to accused 1 and 2 are concerned is dismissed
12. Petition partly allowed.