1
IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT
VISAKHAPATNAM
Present:- Sri K.V.L.Harinath I Addl. Chief Metropolitan Magistrate FAC Chief Metropolitan Magistrate
Monday, this the 22 nd day of August, 2016
CC.NO.385/2010
Between:
Pasumarthi Satya Rao, S/o Late Venkata Ramana Murthy, Aged 48 years, working in Naval Dockyard, Visakhapatnam, Residing at D.No.6-85-74, Near Market, Tagarapuvalasa, Village, Bheemunipatnam Mandal, Visakhapatnam District ….Complainant And:
1. Pasumarthi Udaya Gowri @ Udaya, D/o Late Lakshmi Narayana, W/o Late Lakshmi Narayana, W/o Pasumarthi Satya Rao, Hindu, Aged 41 years, r/at.Q.No.217BN1, TN Colony (Drivers Colony), Dharma Nagar, Kancharapalem, Visakhapatnam and also care of Rajagiri Narasimha Murthy, S/o Appala Raju, D.NO.45-30-5, Near Sangam Office, Visakhapatnam
2. Rajagiri Narasimha Murthy, S/o Appala Raju, Hindu, aged 32 years, Business, D.No.45-30-5, Near Sangam Office, Akkayyapalem, also at Quarter No.217 BN1, T.N. Colony, (Drivers Colony), Railway Quarters, Kancharapalem, Visakhapatnam-530 008
3. S. Dharma Raju, full surname and father's name are not known to the Complainant, Hindu, aged 40 years, Vegetable Vendor, Near Sangam Office, Akkayyapalem, Visakhapatnam and C/o Rajagiri Narasimha Murthy, 45-30-5, Near Sangam Office, Akkayyapalem, also at Quarter No.217 BN1, T.N.Colony, (Drivers Colony), Railway Quarters, Kancharapalem, Visakhapatnam-530 008
4. Valluri Tulasi Rao, father's name not know to the complainant, Hindu, aged about 35 years, RTA Agent, D.No.45-10-19, Akkayyapalem, Visakhapatnam-530 016
5. R. Venkata Rao, full surname and father's name not known to the complainant, Hindu, aged about 35 years, Cable TV Operator, Santhipuram, Tatichetlapalem, Visakhapatnam and also at C/o Rajagiri Narasimha Murthy, D.No.45-30-5, Near Sangam Office, Akkayyapalem, Visakhapatnam
6. P.N.S. Sairam, S/o P.S.N.Rao, full surname and father's name not known to the complainant, Hindu, aged about 35 years, business, r/at C/o P. Vijaya Lakshmi, Primary School Teacher, Bendapudi Village, East Godavari District ….Accused (This Court has taken cognizance of the offence under Section 494 of Indian Penal Code only against A.1 and A.2 alone and the case was not taken on file against A.3 to A.6)
This case coming on 1-06-2016 for final hearing before me in the presence of Sri T.V. Sastry, Advocate for the complainantand Sri A.N.M. Krishna, Advocate for the accused, the same having stood over for consideration and this Court delivered the following:- 2
JUDGMENT
1.This is a private complaint filed by the complainant ‘Pasumarthi
Satya Rao’ against A.1 to A.6 for the offences under Sections 494 r/w 109 of
Indian Penal Code.
2.The gist of the complaint is that, the marriage between the complainant and the first accused was taken place on 24-04-1983 at
Vizianagaram, as per Hindu Rites and Customs and immediately after the marriage the first accused joined complainant and they lived at ‘Tagarapuvalasa’ for about three months and thereafter they shifted to complainant's own house situated at Jagannadhapuram of Visakhapatnam and out of their wedlock the first accused gave birth to two sons i.e., in the years 1996 and 1997 respectively and thereby the marriage was consummated. It is further contended that while things were going on happily and peacefully, suddenly on 15-08-2002 some village elders and ‘Mahila Sangam’ members came to the house of the complainant and informed him about the illegal contact between his wife/A.1 and the A.2, who is the ‘husband of one Kamala’ and on hearing such news, the complainant became shocked and questioned the A.1 and A.2 and they also clearly conceded about their illegal contact and
A.1 also expressed her intention to go away with the A.2 and then some altercation was also taken place and it led to rival complaints before IV Town
Police Station, Visakhapatnam, but the said police, instead of registering any case, chastised A.1 and A.2 and send them away. In view of such insult and shame that was mounted upon him i.e., because of conduct of his wife, the complainant shifted his residence to Tagarapuvalasa, but even there also the
A.1 continued her adulterous life with A.2, because, the complainant caught them red handed on 11-11-2002 while they were in compromising position and on that he also reported the matter to S.H.O, Bheemunipatnam police station and they in turn registered a case under section 290 of Indian Penal Code and filed charge sheet in S.T.C.No.119/2002 on the file of Metropolitan Magistrate,
Bheemunipatnam and the A.2 also admitted his guilt and paid the fine of
Rs.200/-. Since the police did not register the case under Section 497 of Indian 3
Penal Code and as they simply closed the same by registering the case under section 290 of Indian Penal Code, he filed the private complaint under section 497 of Indian Penal Code on the file of Metropolitan Magistrate,
Bheemunipatnam and the same was registered as C.C.No. 216/2004. While so on 09-12-2002, the complainant and A.1 were arrested by Alamur Police on the allegation that they cheated one Acharyulu, but subsequently it came to light that the A.1 and A.2 cheated the said Acharyulu by impersonating him and the same is also pending as C.C.No. 210/2003 on the file of Judicial First Class
Magistrate, Alamur. The first accused also filed M.C.No.149/2003 under section
125 of Cr.P.C for grant of maintenance, and the Hon'ble Judge of Family Court,
Visakhapatnam was pleased to dismiss the same, after elaborate trial on 11-12- 2006 and during the pendency of the said Maintenance Case only he came to know that his wife /A.1 gave birth to a female child on 24-08-2004, through her paramour Narasimha Murthy / A.2, at ‘Sevasadan’ Hospital, Kancharapalem,
Vizag. Subsequently, he came to know that the A.1 and A.2 were married as per
Hindu Rites and Customs at Simhachalam Temple on 21.03.2003 with active support and connivance of A.3 to A.6 and he also confirmed himself about such marriage, which was registered as Reg. No.4666 in the said temple and the same was performed by one ‘Pudipeddi Sarma’ / P.W.2 by observing all the rituals of Hindu Marriage. Since the A.1 married A.2 during the life time of the complainant and while the marriage between them is in subsistence, it amounts to an offence under section 494 of Indian Penal Code and since A.3 to A.6 have joined their hands in performing the second marriage of A1 with A2, having knowledge about the valid first marriage between the A1 and the complainant much earlier, they are also equally liable for the offence under section 109 of
Indian Penal Code. As a matter of fact, the complainant herein lodged a report
before the S.H.O, Gopalapatnam Police Station on 28-09-2006 and the same
was registered as a case in Cr.No.179/2006 under Section 494 r/w 109 of Indian
Penal Code and the police also examined and recorded the statements of four witnesses and they also arrested A.1 to A.5 and produced them before the I 4
Additional Chief Metropolitan Magistrate, Visakhapatnam and they were also
enlarged on bail, but the police could not file the charge sheet since there is a bar under Section 198-A of Cr.P.C. Therefore he is constrained to file the present private complaint.
3.After recording the sworn statements of the complainant and other witnesses and examining material on record, this Court has taken cognizance of the offence under Section 494 of Indian Penal Code only against A.1 and A.2 and the case was not taken on file against A.3 to A.6.
4. On appearance of the accused, copies of documents were furnished to them as required U/sec. 207 Cr.P.C.
5. On their examination U/sec.239 Cr.P.C, the accused have denied the offence alleged, read over and explained to them in Telugu and for which, they pleaded not guilty and claimed to be tried.
6. Heard both.
7.Now the point for consideration is that:
Whether the A.1 being the wife of the complainant and the A.2 being husband of one Kamala, had the second marriage as per Hindu Rites and Customs, during the subsistence of the valid first marriage with their spouses and if so whether they have committed offences as alleged?
POINT:
8.To substantiate his case and to prove accusation against the accused, the complainant was examined himself as P.W.1, the purohit for the second marriage between A.1 and A.2 as P.W.2, the official from Simhachalam Temple as P.W.4 and independent witnesses as P.Ws.3 and 5.
9. P.W.1 deposed that the marriage between him and the A.1 / Udaya Gowri was taken place on 24-04-1983 as per the Hindu Rites and Customs at
Bodduvari Chowltry, Vizianagaram and during their wed-lock she also gave birth to two sons i.e., on 24-06-1986 and 12-12-1987 respectively and they lived happily till 15-08-2002 and on that day at about 10-30 pm, the village elders and wife of A.2 and her relations came to their house and made a galata questioning A.1 about her illegal contact with A.2 and in such context they also 5 man-handled him and when the report was given to S.H.O, IV Town Police
Station, Visakhapatnam, they simply chastised both the parties and no action was taken and the matter was also settled at that juncture and thereby he shifted his family to Tagarapuvalasa. But the A.1 and A.2 have continued their illegal contact even at Tagarapuvalasa also, because he caught them red handed on 11.11.2002 i.e., while they were in compromising position and the neighbours were very much present when he caught the A.1 and A.2 red handed and handed over them in Bheemunipatnam Police Station and they in turn registered a case in S.T.C.No.119/2002 against A.2 and he also paid fine of
Rs.200/- in the Court by admitting his guilt. Since the police have not prosecuted him for the correct offence and as they simply washed out their hands by registering the STC, he filed the private complaint and the same was also forwarded to S.H.O, Bheemunipatnam Police Station, under Section 497 of
Indian Penal Code and registered it as C.C.No. 216/2004 and the same was disposed off on 29-06-2009, wherein A.2 was convicted. While so, on 09.12.2002 the police of Alamur came to their house and arrested him and his wife and took them to Alamur police station on the allegation that they cheated one K.V.N.Acharyulu by impersonating and this is the character of A.1 and A.2 and subsequently the said case in C.C.No.210/2003 was ended in acquittal.
When the A.1 filed the maintenance case against him, the same was also dismissed on merits and during the pendency of the said Maintenance Case, he came to know that A.1 gave birth to a female child through A2 and then he produced the evidence before the Family Court, Visakhapatnam and he also examined the doctor in the said case and he also procured the evidence from
Simhachalam Devasthanam about the second marriage between A.1 and A.2 and he also approached the S.H.O, Gopalapatnam Police Station,
Visakhapatnam and got registered the crime, but subsequently they could not file the charge sheet because of bar under section 198-A of Cr.P.C. Since A.1 and A.2 had the second marriage during the subsistence of the first valid marriage that is during the life time of their earlier spouses and as it amounts 6 to offence under section 494 of Indian Penal Code, he filed the present complaint.
10.The P.W.2, who is the Purohit at Simhachalam Temple, deposed that, on 21.03.2003, he performed the marriage of one ‘Rajagiri Narasimha Murthy’, S/o
Rajagiri Appala Raju and ‘Udaya’ at Udyanavana Mandapam, Pushkarini Satram at Simhachalam down, but he cannot identify those persons to whom he performed the marriage, since it was happened around ten years back. He further deposed that he had good acquaintance with Rajagiri Appala Raju, who is the father of the A.2. He also categorically deposed about the rituals that were performed during the marriage between Rajagiri Narasimha Murthy and
Udaya Gowri. He further deposed that temple authorities have collected
Rs.200/- from the said Narasimha Murthy and Udaya Gowri and the said marriage was also entered in the register maintained by Simhachalam
Devasthanam and both the bride and bridegroom have signed in the said register, besides the witnesses and himself etc., and thereby supported the case of the prosecution.
11.The P.W.3, who is none other than the elder brother of the complainant deposed that, the marriage between P.W.1 and A.1 was taken place on 24-04- 1983 at Gadduvari Chowltry, Vizianagaram and it was an arranged marriage and they stayed at his native place Tagarapuvalasa for about ten years and thereafter they shifted to Visakhapatnam by purchasing one house and they were also blessed with two sons and subsequently it came to light about the illegal contact between A.1 and A.2 and they also tried to convince A.1 not to spoil future of the children but still she went further and married A.2.
12.P.W.4 is the Superintendent of Simhachalam Devasthanam. He deposed that previously he worked as Junior Assistant in Simhachalam Devasthanam from 1990 to 1996 and again from 2002 to 2005 and the Executive Officer has deputed him to give evidence before the Court and he also brought the marriage register in original to the Court and as per the said register, the 7 marriage between bridegroom Rajagiri Narasimha Murthy, S/o Appala Raju and bride Kantamsetti Udaya, D/o Lakshminarayana was taken place on 21-03-2003 and the said marriage was performed by the P.W.2 by name Sri Pudipeddi
Sarma etc.
13.P.W.5 is the Independent witness, who said to have witnessed the second marriage between A.1 and A.2. He deposed that he has been working as cable technician and A.2 is his class-mate. He further deposed that the A.1 married
A.2 at Simhachalam Kalyana Mandapam and he also attended the said marriage and it was taken place as per the Hindu Rites and Customs by following the rituals like tying Tali bottu, putting Jeelakarra-bellam and exchanging of Talambralu etc., and he also went to the office room of Temple and singed as one of the witnesses and whereas A.1 and A.2 also signed in the said register being bride and bridegroom and the P.W.2, who performed the marriage of A.1 and A.2, also signed in the said register and the same is identified by him and it is marked as Ex.P.6.
14.The Learned Counsel for the complainant submitted during the course of his arguments that, the A.1, who is the wife of P.W.1/Complainant, married the second accused as per Hindu Rites and Customs on 21-03-2003 at
Simhachalam Temple, i.e., during the subsistence of valid first marriage with the P.W.1, and the rituals of marriage were also substantially proved before the
Court by examining the Purohit who conducted the said marriage and so also one of the attestors to the said marriage as P.W.5. Of course, it is true that the
Learned Counsel for the accused has cited the Judgments of Hon'ble Apex Court reported in:
1. 1975 Crl. L J 836 in between Smt. Baby Kar Roy Vs. Ram Rati Devi and another.
2. 1979 0 AIR (SC) 848 in between Lingari Obulamma Vs. L.Venkata Reddy and others.
3. 1982 0 Crl. L J 1567 in between B.K.Behra, J.Shantimani Dei Vs. Lingaraj Moharana and others.
15.But their Lordships were pleased to observe in the said Judgments that the prosecution has to prove all the rituals of the marriage for proving the 8 offence under Section 494 of Indian Penal Code and here in this case also the complainant proved such rituals that have been followed during the second marriage by examining the purohit of the marriage and so also by placing the marriage register extract before the Court and the said marriage register extract was also marked as Ex.P.5 and the temple Officer concerned was also examined as P.W.4. The Complainant also filed the Order copy of the
M.C.149/2003 on the file of Family Court, Visakhapatnam and so also the
Judgment in C.C.216/2004 on the file of IV Metropolitan Magistrate,
Bheemunipatnam and in both the said cases, the said Hon'ble Courts were pleased to consider the material filed by this Complainant to show that A.1 gave birth to a female child on 24.08.2004 in Seva Sadan Hospital of
Kancharapalem, Visakhapatnam and the doctor concerned by name Ms. Sasi
Kumari was also examined as witness before the said Family Court and keeping in view of such evidence only, the prosecution could successfully prove the accusation under Section 497 of Indian Penal Code and therefore A.1 and A.2 may be convicted.
16.Per contra, the Learned counsel for A.1 argued that there was no marriage at all between A.1 and A.2 as alleged and the P.W.1 is not at all a witness for the so called second marriage between A.1 and A.2 and so called purohit who alleged to have performed the marriage between A.1 and A.2 is also not a reliable witness, because a criminal case is also pending against him on the file of II Additional Chief Metropolitan Magistrate's Court, Visakhapatnam, where he allegedly collected the amounts from the candidates for getting them passed in the examinations. More over the said purohit did not identify A.1 and
A.2 at all. Marriage Register was also concocted by P.W.1 with the help of the said purohit. Therefore the said temple register also cannot be relied upon. The only witness who was examined by the prosecution to prove the particular rituals that were said to have been followed during the said marriage is P.W.5.
But the said P.W.5 did not support the case of the prosecution at all during his cross-examination and he simply deposed only out of fear and on being 9 threatened by P.W.1, he deposed so in his chief examination etc. The Hon'ble
Apex Court clearly observed even in the Judgment reported in 1975 Crl. L J 836 that even the Marriage Registration Certificate issued by the Competent
Authority i.e., Registrar of Marriages is also not sufficient to prove the rituals of marriage or to believe the said marriage because the said registration would naturally be made on the declaration of the parties.
17.Coming to the Judgment of the Hon'ble Apex Court reported in 1982 (0)
Supreme (Ori) 87, their Lordships were pleased to clearly observe that unless the second marriage is proved to have been performed in accordance with law and customary rites and rituals, no conviction under section 494 of Indian Penal
Code can lie. It was further observed by their Lordships that, mere admission by the accused that he had contracted a second marriage is also not enough. But here in this case, the prosecution has not examined the actual witnesses to the said marriage and the only witness is examined as P.W.5. P.W.5 also did not support the case of prosecution, because he resiled from his evidence in chief, during his cross-examination stating that he does not know the A.1 and A.2 at all and he never attended the marriage of A.1 and A.2 and he had not signed in any register. Therefore, the prosecution is utterly failed to prove the accusation against the accused beyond all reasonable doubt and therefore the accused may be acquitted.
DISCUSSION:
18.It is an admitted fact that the marriage between complainant / P.W.1 by name Pasumarthi Satya Rao and the first accused by name Pasumarthi Udaya
Gowri, D/o Lakshminarayana was taken place on 24-04-1983 at Bodduvari
Chowltry, Vizianagaram as per the Hindu Rites and Customs and during their wed-lock she also gave birth to two sons i.e., on 24-06-1986 and 12-12-1987 respectively and thereby the marriage was consummated. To that extent there is no dispute between the parties. However, the P.W.3 who is none other than elder brother to P.W.1, also categorically deposed about the marriage between 10 the P.W.1 and A.1 on 24-04-1983 at Vizianagaram, as per the Hindu Rites and
Customs. Despite such specific version from the P.W.1 and P.W.3, the Learned
Counsel for either A.1 or A.2 never put any question or suggestion denying the marriage between P.W.1 and A.1. Therefore, for all practical purposes it is not only admitted but also proved.
19.While so, the specific case of the complainant is that, his wife/A.1 and A.2 who is also a married person, maintained illegal contact for sometime and they were also caught red handed while they were at Tagarapuvalasa and when they were handed over to the police they also registered a case against A.2 in
S.T.C.119/2002 and the Hon'ble Metropolitan Magistrate, Bheemunipatnam was also pleased to impose fine of Rs.200/- and the same was also paid by A.2 and as he was not satisfied with the said simple S.T.C, since the A.2 was supposed to be prosecuted under Section 494 of I.P.C, he also filed a private complaint on the file of Bheemunipatnam Court and same was registered as C.C.No.216/2004 and the said case was also disposed off on 29-06-2009 and where he was convicted and sentenced and during the pendency of Maintenance Case filed by the A.1, he came to know about the second marriage between A.1 and A.2 on 21-03-2003 at Sri Lakshmi Narasimha Swamy Temple at Simhachalam
Devasthanam and she also gave birth to a female child through A.2 on 24-08- 2004 and therefore both A.1 and A.2 are liable for conviction under Section 494 of Indian Penal Code.
20.Therefore for the purpose of convenience it is just and necessary to extract Section 494 of Indian Penal Code.
Section 494 of Indian Penal Code reads as follows:
“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.
Exception: This Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court 11 of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall,
before such marriage takes place, inform the person with whom such
marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
21.On perusal of the above section, it requires the existence of the 1st wife or husband when the second marriage is celebrated. In view of the citations of the Hon'ble Apex Court given by the Learned Counsel for the accused, it is the duty on the part of the prosecution to establish the rituals that are being performed or followed during the so called second marriage between A.1 and
A.2.
22.Coming to the factual aspects on record, the fact which cannot be disputed is that, the A.1 is the wife of P.W.1 and where as A.2 is the husband of one Kamala. Admittedly, there was no divorce or Judicial separation in between
A.1 and P.W.1 by the date of the complaint or by the date of so called second marriage. So also it is not the case of A.2 as if he had taken any divorce from his wife Kamala. Therefore for all practical purposes, the spouse of A.1 and spouse of A.2 were living and their marriages are in subsistence by the date of so called second marriage between A.1 and A.2.
23.The specific averment in the complaint and also the evidence of P.W.1 during his cross-examination is that, on 15-08-2002 some of the village elders, wife of A.2, her relations and Mahila Sangham people came to their house bearing D.No.45-35-15/1 of Akkayyapalem, Visakhapatnam and made a galata stating that the wife of P.W.1 i.e., A.1 and A.2 are maintaining illegal contact and they also warned the P.W.1 to keep his wife in control. The P.W.1 also deposed that they were taken to IV Town Police Station to give a complaint against P.W.1 and A.1 on that day but police have not registered any crime but simply gave counseling and send them away and therefore on being ashamed 12 of situation, he migrated along with his family, to Tagarapuvalasa and there also his wife continued her illegal contact with A.2, because they caught them red handed in a compromising position on 11.11.2002 and same was reported to S.H.O, a case was registered against A.2 in S.T.C.119/2002 on the file of
Metropolitan Magistrate, Bheemili and a fine of Rs.200/- was imposed against
A.2. In spite of cross-examination at length by the Learned Counsel for A.1 and
A.2, they did not put any question either denying or disputing the factum of imposing fine Rs.200/- to A.2 under Section 290 of Indian Penal Code and payment of the same by A2. P.W.1 also filed a case in C.C.No.216/2004 in
Bheemili Court in which the A.2 herein was convicted on 19-06-2009 and he also filed certified copy of such Judgment as Ex.P.2, but still even the said
Judgment was not either denied or disputed and there is not even a single question in the cross-examination from the Learned Counsel for the defence as if any Appeal was preferred against the said Judgment. Therefore in view of this particular Judgment and payment of fine under S.T.C, it is proved that there was illegal contact between A.1 and A.2.
24.Coming to the factum of second marriage between A.1 and A.2 during the subsistence of valid marriages with their spouses, the P.W.1 has examined the purohit as P.W.2, who said to have conducted the said marriage. He categorically deposed that he performed the marriage of one ‘Rajagiri
Narasimha Murthy’, S/o Rajagiri Appala Raju and one ‘Udaya’ at Udyanavana
Mandapam, Pushkarini Satram at Simhachalam down, but he cannot identify the persons to whom he performed the marriage, since it was so happened more than 10 years back. Of course it is true, as argued by the Learned Counsel for the defence that the said purohit, who is examined as P.W.2 did not identify the bride and bridegroom i.e., A.1 and A.2, but the P.W.2 further deposed that when the said Narasimha Murthy/A.2 approached him and asked him to perform his marriage stating that he is resident of Akkayyapalem, Visakhapatnam and he belongs to Gavara caste etc., he simply questioned whether he knows ‘Appala Raju or not’, and on that the said A.2 replied as if he doesn’t know the 13 said Appala Raju, but while signing in the marriage register, he/P.W.2 noticed that A.2/Narasimha Murthy clearly mentioned that he is the son of Appala Raju and thereby he clearly kept in mind that aspect etc. While so, as argued by the
Learned Counsel for the defence, the P.W.2/purohit clearly admitted that a criminal case is pending against him on the file of II Additional Chief
Metropolitan Magistrate, Visakhapatnam, which was registered by IV Town
Police Station, Visakhapatnam, where in he allegedly collected the amounts from the candidates for getting them passed in examinations etc. Therefore, now the question is that whether Court is supposed to simply ignore the evidence of P.W.2 only because the criminal case is pending against him? But for that the answer of the Court is “not necessary”. Because it is an established
Principal of Law that the accused shall be presumed as innocent till the guilt is
proved. Merely because as the case is registered against him and pending
before the Court, he cannot be treated as untruthful witness or as if he
committed such offence. Of course at the same time it is just and necessary to look into other supporting material available on record, before taking the evidence of this PW2 into consideration. Therefore, it is just and necessary to look into the rituals said to have been followed by the said P.W.2 while conducting the marriage between A.1 and A.2. On that aspect he categorically deposed that the marriage was performed as per Hindu Rites and Customs by performing ‘Vigneswara Pooja, Raksha Bandhanam, Gowri Pooja,
Sumuhurthum, Jeelakarra bellam, Mangala Suthra Dharana, Exchange of garlands, Saptha Pathi and Arundhati Nakshatra Darshanam’ etc. He also clearly deposed that bride and bridegroom by name Udaya Gowri and
Narasimha Murthy paid Rs.200/- to the temple i.e., Rs.50/- towards Mandapam and Rs.150/- towards marriage fees and their names were entered in the
Register and bride and bridegroom signed and he also signed in the capacity of purohit. Such evidence deposed to by the P.W.2 could not be shattered in any way despite the cross-examination at length.
25.The prosecution has also examined the employee of the temple 14 /Simhachalam Devasthanam as P.W.4 by sending summons to the Executive
Officer concerned. The said P.W.4/ Junior Assistant in Simhachalam Temple clearly deposed before the Court that their Executive Officer, having received summons, authorized him to give the evidence before the Court and thereby he brought the marriage register and so also the attested copy of the marriage register to the Hon'ble Court etc. By showing the original to the Court, he has filed the attested copy of the relevant entry of the marriage register and the same is marked as Ex.P.6 and where as the first page of marriage register is marked as Ex.P.5(by comparing the original with copy by the court). He also categorically deposed that as per the said marriage register, on 21-03-2003 the
Registration No.4666 shows, that the marriage was taken place between bridegroom Rajagiri Narasimha Murthy, S/o Appala Raju and bride Kantamsetti
Udaya, D/o Lakshminarayana and the name of Purohit is Pudipeddi Sarma. In spite of that much evidence in chief, the Learned Counsel for the defence simply put a question stating that whether he can identify them or not and for that he simply deposed that he was not working in the Marriage Section of
Simhachalam Devasthanam as on the date of the said marriage and therefore he cannot identify A.1 and A.2. Merely because the A.4 could not identify A.1 and A.2, his evidence cannot be either brushed aside or ignore, because he gave evidence from out of official record maintained by Endowment
Department. Keeping in view of such analogy the evidence of P.W.2/purohit also can be taken into consideration as valid evidence, even though he did not identify A.1 and A.2, because the said marriage register i.e., relevant page under Ex.P.6 clearly contains the signatures of bride and bridegroom and P.W.2 and it was never suggested as if the said signatures do not belong to A1 and
A.2 and also Purohit. Therefore, by examining the purohit who performed marriage as P.W.2 and also by producing marriage register from Endowment
Department i.e., Sri Lakshmi Narasimha Swamy Temple, Simhachalam under
Exs.P.5 and P.6, the prosecution has sufficiently proved the rituals that have been followed during the said second marriage.
15
26.Of course it is true that prosecution has made another attempt to prove second marriage between A.1 and A.2 by examining P.W.5, who stated to be one of the witnesses for the second marriage between A.1 and A.2. But he resiled from his version during his cross-examination i.e., when the Learned
Counsel for the complainant alone cross-examined the P.W.5 by taking the permission of the Court and by treating the said witness as hostile. He categorically admitted and identified his signature on Ex.P.6 document and he also deposed in his chief-examination about his attendance to the said marriage and signing in the marriage register. The Ex.P.6 i.e., the attested copy of the marriage register also clearly shows the signature of this P.W.5 by mentioning as the brother of bride Udaya. Therefore the deviated version of this PW5 need not be given any weight, keeping in view of his signature as a witness for the said marriage.
27.Added to this, to strengthen his case, the complainant/P.W.1 has filed the certified copy of order in M.C.No.149/2003 also, which was given by Family
Court, Visakhapatnam and it clearly shows that the complainant herein being the respondent in the said Maintenance Case has filed all the relevant evidence
before the said Court, to establish that A.1 gave the birth to a female child on
24-08-2004 in Seva Sadan Hospital, Kancharapalem, Visakhapatnam. The doctor concerned by name Ms. Seshu Kumari was also examined before the said Court. The Hon’ble Family Court Judge, Visakhapatnam was also pleased to clearly observe in his Judgment that the petitioner and respondent there in were living separately from 31-12-2002 onwards and as per the marriage register extract filed as Ex.R.22, the petitioner therein and one Narasimha
Murthy had married at Simhachalam Temple on 21-03-2003 and the said marriage register also contains the signatures of the petitioner Udaya and
Rajagiri Narasimha Murthy and the P.W.1 also admitted that she was also called as Udaya and the birth registration extract also shows that the petitioner delivered a female child through one Narasimha Murthy on 24-08-2004 at 16 7.40 p.m., and Dr. Seshu Kumari who was examined as R.W.3 also signed in
Ex.X.1 i.e., birth registration extract and thereby the respondent could establish with abundant evidence on record that the petitioner, having deserted the respondent, eloped with her paramour Narasimha Murthy and she also begot a female child through him.
28.Coming to the C.C.216/2004, the Learned Magistrate also clearly observed in para 19 of the said Judgment that, the respondent therein who is
P.W.1 herein, filed Exs.P.8 to P.11 which belongs to the A.1, A.2 and their daughter and the A.1 who gave evidence in such a case as D.W.1, said to have categorically admitted about all the said documents. The Certified copies of order in M.C.No.149/2003 on the file of Hon'ble Family Court, Visakhapatnam, medical report relating to Udaya Gowri issued by Doctor, K.G.H,
Visakhapatnam, extract of the marriage register of Simhachalam Devasthanam showing the marriage took place between accused and D.W.1 besides birth certificate of a female child born to accused No.1 herein through A2 herein and (4) Photographs showing the accused and Udaya Gowri (D.W.1) and a female child. The Learned Magistrate also observed in para 19 of the said Judgment that, “she categorically admitted that she has not received any summons from the Court to give evidence and at the request of accused she attended to Court to give evidence and the accused knows her present address”. This part of evidence itself clearly shows that she is residing with the accused in adultery at
Tatichetlapalem, Visakhapatnam.
29.Therefore keeping in view of the observations given by various witnesses and because of marriage extract produced before the Court by the competent official in his official capacity and that too on being summoned by the Court and as the said register also clearly shows the signatures of the A.1 and A.2 besides the signatures of the purohit/P.W.2 and one of the attestors/P.W.5, there is no chance at all to disbelieve the second marriage between A.1 and A.2. Thereby the complainant could successfully prove that the A.1 and A.2 have entered 17 into second marriage by following all the rituals as deposed by the purohit concerned, who is examined as P.W.2, during the subsistence of their valid marriage with their respective spouses and during their life time and thereby said second marriage clearly coming under the ambit of Section 494 of Indian
Penal Code and therefore both the A.1 and A.2 are found guilty.
30.Of course, it is true the Learned Counsel for the accused put a question to the P.W.1 about the referred notice said to have been issued by the S.H.O,
Gopalapatnam Police Station, Visakhapatnam, on the private complaint filed by the P.W.1. The P.W.1 deposed as if the police have asked him to approach the
Court directly and to file the private complaint and the police case is not maintainable etc. Of course it is true that the said P.W.1 deposed as if he filed the said referred notice before the Court, but it is not available. On that aspect, the learned counsel for the accused invited the attention to this Court as if he put the suggestion to the P.W.1 that the police had referred the said complaint as false. Had it been true, the accused ought to have referred such copy of referred notice that shows endorsement as false before the Court. Since the referred notice or proceedings are not available before the Court, the same need not be taken into consideration. The principle of ‘double Jeopardy’ applies only when there is trial of a case on two occasions, but not investigation.
Therefore, even the said non-filing of the referred notice before the Court is not coming in the way of Court to find the accused as guilty and therefore, prosecution/Complainant has proved the guilt against the accused 1 and 2 beyond all reasonable doubt for the offence under section 494 of Indian Penal
Code.
31. In the result, the accused 1 and 2 are found guilty for the offence punishable under Section 494 of Indian Penal Code and consequently the A.1 and A.2 are convicted under Section 248(2) Cr.P.C.
Dictated to Personal Assistant, corrected and pronounced by me in open Court, this the
22nd day of August, 2016 xx Sd/- Sri. K.V.L. Harinath 18
I Addl. Chief Metropolitan Magistrate,
(FAC) Chief Metropolitan
Magistrate,
Visakhapatnam 14-09-2016 : Hearing on quantum of sentence and sentence:
32.When the A.1 is questioned with regard to the submissions if any in respect of quantum of sentence, she submitted that because of severe beating by the Complainant she sustained head injury and she is also suffering from
Low BP and Sugar and so that she would fell down all of a sudden and she is also physically weak and therefore a lenient view may be taken. While so, the
A2 submitted that his father is dependant on him, since his mother is also no more and he is only the bread winner of his family and therefore a lenient view may be taken.
33.Leniency in the matters, where the moral turpitude is involved, is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the conviction of the accused are not only shocking but outrageous in their contours. That is not the intention of legislature in enacting either the Probation of Offenders act or
Section 360 CrPC and therefore the same is not invoked in this case. However, in view of the submissions made by the accused and keeping in view of the fac- tual aspects on record, certainly it is a fit case to take some lenient view, but there is no specific reason to extend the benefits of either Sec. 360 Cr.P.C or
Probation of Offenders Act.
34.Hence, in the result, the accused 1 and 2 are sentenced to undergo
Rigorous imprisonment for two years each and to pay a fine of
Rs.2,000/- each (Rupees two thousand only) and in default to suffer simple imprisonment for three months each for the charge under section 494 of
IPC. Remand Period of A1 from 18-10-16 to 20-10-16 and for A2 from 18-10-16 to 20-10-16 and 3-8-09 to 5-8-09, shall be given set off as contemplated under section 428 CrPC.
19
Quantum of sentence dictated to Grade-III Stenographer of I Addl. Chief Metropolitan
Magistrate's Court, Visakhapatnam, transcribed by him, corrected and pronounced by
me in open Court, this the 14th day of September, 2016.
xx Sd/- K.V.L. Harinath I Addl. Chief Metropolitan Magistrate, (FAC) Chief Metropolitan Magistrate Visakhapatnam
APPENDIX OF EVIDENCE:
Names of witnesses examined on behalf of
Complainant: Accused:
P.W.1 – Pasumarthi Satya Rao None
P.W.2 – Pudipeddi Sarma
P.W.3 – P. Suryam
P.W.4 – P. Srinivasa Rao
P.W.5 – R. Venkata Rao
No.of documents marked for
Complainant:
Ex.P.1/ : Certified copy of Order in M.C.149/2003.
Ex.P.2/ : Certified copy of Judgment in C.C.216/2004.
Ex.P.3/ : Wedding Card.
Ex.P.4/ : Authorization letter given by Executive Officer to P.W.4.
Ex.P.5/ : Attested copy of 1st page of marriage register.
Ex.P.6/ : Attested copy of relevant entry in the marriage register.
Accused: NIL. xx Sd/- Sri KVL Harinath I Addl. Chief Metropolitan Magistrate (FAC) Chief Metropolitan Magistrate Visakhapatnam
// True Copy //
I Addl. Chief Metropolitan Magistrate
(FAC) Chief Metropolitan Magistrate
Visakhapatnam
20
CALENDAR AND JUDGMENT
DISTRICT OF VISAKHAPATNAM
IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT
VISAKHAPATNAM
C.C.No.385/2010
Dates of OffenceExplanation for delay & : Prior to 18-10-2006 remarks Filing:27-05-2008NIL
Appearance:17-12-2009 Release on bail:20-10-2006
Commencement of trial :23-11-2012 Close of trial:14-03-2016 Dt. of Judgment:22-08-2016 Dt. of Sentence:14-09-2016
CC No.385/2010 on the file of Chief Metropolitan Magistrate, Visakhapatnam
Complainant:- Pasumarthi Satya Rao, S/o Late Venkata Ramana Murthy, Aged 48 years, working in Naval Dockyard, Visakhapatnam, Residing at D.No.6-85-74, Near Market, Tagarapuvalasa Village, Bheemunipatnam Mandal, Visakhapatnam District
Accused
1. Pasumarthi Udaya Gowri @ Udaya, D/o Late Lakshmi Narayana, W/o Late Lakshmi Narayana, W/o Pasumarthi Satya Rao, Hindu, Aged 41 years, r/at.Q.No.217BN1, TN Colony (Drivers Colony), Dharma Nagar, Kancharapalem, Visakhapatnam and also care of Rajagiri Narasimha Murthy, S/o Appala Raju, D.NO.45-30-5, Near Sangam Office, Visakhapatnam
2. Rajagiri Narasimha Murthy, S/o Appala Raju, Hindu, aged 32 years, Business, D.No.45-30-5, Near Sangam Office, Akkayyapalem, also at Quarter No.217 BN1, T.N. Colony, (Drivers Colony), Railway Quarters, Kancharapalem, Visakhapatnam-530 008
3. S. Dharma Raju, full surname and father's name are not known to the Complainant, Hindu, aged 40 years, Vegetable Vendor, Near Sangam Office, Akkayyapalem, Visakhapatnam and C/o Rajagiri Narasimha Murthy, 45-30-5, Near Sangam Office, Akkayyapalem, also at Quarter No.217 BN1, T.N.Colony, (Drivers Colony), Railway Quarters, Kancharapalem, Visakhapatnam-530 008
4. Valluri Tulasi Rao, father's name not know to the complainant, Hindu, aged about 35 years, RTA Agent, D.No.45-10-19, Akkayyapalem, Visakhapatnam-530 016
5. R. Venkata Rao, full surname and father's name not known to the complainant, Hindu, aged about 35 years, Cable TV Operator, Santhipuram, Tatichetlapalem, Visakhapatnam and also at C/o Rajagiri Narasimha Murthy, D.No.45-30-5, Near Sangam Office, Akkayyapalem, Visakhapatnam
6. P.N.S. Sairam, S/o P.S.N.Rao, full surname and father's name not known to the complainant, Hindu, aged about 35 years, business, r/at 21
C/o P. Vijaya Lakshmi, Primary School Teacher, Bendapudi Village, East Godavari District (This Court has taken cognizance of the offence uinder Section 494 of Indian Penal Code only against A.1 and A.2 alone and the case was not taken on file against A.3 to A.6)
Offence: Section 494 of Indian Penal Code against the A.1 & A.2. Finding: Accused 1 & 2 are found guilty.
Sentence :In the result, the accused 1 and 2 are found guilty for the offence punishable under section 494 IPC and consequently the A.1 and A.2 are convicted under section 248(2) of Cr.P.C. and sentenced to undergo Rigorous imprisonment for two years each besides to pay a fine of Rs.2,000/- each (Rupees two thousand only) and in default to suffer simple imprisonment for three months each. Remand Period of A1 from 18-10-16 to 20-10-16 and for A2 from 18-10-16 to 20-10-16 and 3-8-09 to 5-8-09, shall be given set off as contemplated under section 428 CrPC.
Crl.M.Ps.2057/2016 and 2058/2016 filed by A.1 and A.2 on 14.09.2016 are allowed and sentence is suspended to A.1 and A.2 till 13-10-2016. A.1 and A.2 have paid the fine amount of Rs.2,000/- each on 14-09-2016.
xx Sd/- Sri KVL Harinath I Addl. Chief Metropolitan Magistrate (FAC) Chief Metropolitan Magistrate
Visakhapatnam
// True Copy //
I Addl. Chief Metropolitan Magistrate
(FAC) Chief Metropolitan Magistrate
Visakhapatnam