JUDGMENT
D.K. Trivedi, J.
1. The appellant-original complainant has filed this appeal and challenged the order passed by the learned Judicial Magistrate, F.C. Ghodnadi dated 18th May, 1985 in Criminal Case No. 401 of 1983 acquitting the respondents-accused from the offence under Sections 494, 109 read with Section 34 of the Indian Penal Code.
2. During the pendency of the appeal, the appellant-original complainant had also taken out Criminal Misc. Application No. 398 of 1986 supported with an affidavit of the complainant dated 20th March, 1986 praying for withdrawal of the appeal or for dismissing the appeal for non prosecution on the ground that subsequent to the filing of the appeal, the complainant had obtained customary divorce from her husband-respondent No. 1 by executing a regular divorce deed dated 6th January, 1986 registered with the Sub-Registrar and, accordingly, it is further highlighted in her affidavit that even the proceedings initiated between them viz. the proceedings taken out by the respondent No. 1 husband against her being Marriage Petition No. 473 of 1984 filed in Civil Court, Pune and the Criminal Revision Application filed by her husband in Sessions Court at Mumbai being Criminal Revision Application No. 184 of 1985 challenging the order of maintenance was also withdrawn and, accordingly, she is also required to withdraw the proceedings initiated against her husband viz. the present appeal. The said application was ordered to be considered alongwith the appeal and, accordingly, present appeal is notified alongwith the said application filed by the original complainant. In view of the application filed by the appellant-complainant praying for withdrawal of the appeal or praying for dismissal of the appeal for non-prosecution, the learned Advocate appearing on behalf of the appellant-complainant is not interested in proceeding with the appeal and, accordingly, none appeared for the appellant, as well as none appeared for the respondent-accused though Mr. Wechlekar had filed Vakalatnama on behalf of respondent Nos. 1 and 2 and rest of the respondent Nos. 3 to 6 are duly served.
3. I have heard Mr. Rajput, the learned A.P.P. for the State who has taken me through the complaint filed by the appellant-complainant against the respondents dated 23.6.1986 in the Court of learned Judicial Magistrate, Ghodnadi as well as the evidence of the prosecution witnesses examined during the trial and the judgment under challenge. As observed earlier, the appellant-complainant is not interested in these proceedings in view of the fact that on obtaining customary divorce from respondent No. 1 viz. her husband, divorce deed dated 6.1.1986 was registered before the Sub-Registrar of Assurances, Mumbai vide No. 58 of 1986 and on examining the order under challenge, and while going through the complaint and the other documents with the evidence of the complainant and her witnesses, this Court has to consider that the learned Magistrate was right in acquitting the accused from the offence under Sections 494, 109 read with Section 34 of the I.P.C. It is not in dispute that the appellant’s marriage was solemnized with respondent No. 1 on 26th December, 1980. As per the complaint, it is her case that her marriage was solemnized with accused No. 1 as per Hindu rites and custom on 26th December, 1980 at Mumbai and she was not treated properly by her husband and she was driven out on 26th March, 1981, at that time she was pregnant. It is also her case in the complaint that she delivered a female child and she was at the time of filing complaint on 23.6.1986, one and half years old. The original accused Nos. 2 and 3 are the parents of accused No. 1 and as per the complainant, accused No. 1 had performed the second marriage with accused No. 4 during the existence of his first marriage and the said marriage was illegal and some are the relatives of either accused Nos. 1 and 7, Nos. 9 and 10 are the village people who helped the accused No. 1 to marry accused No. 4. According to the complainant, the second marriage of accused No. 1 was performed with accused No. 4 on 23.5.1983 at the house of accused No. 10 and it is her case that the marriage of accused No. 1 with accused No. 4 was performed when the first marriage with the complainant was in existence and all the accused know that first wife is alive and accordingly the said marriage is illegal. It is found that when the complaint was filed before the learned Magistrate, the learned Magistrate has called for the report from the police under Section 202 of the Code of Criminal Procedure and as per order dated 29th August, 1983, the learned Magistrate has issued process only against accused Nos. 1 to 6 for the offence under Sections 494 and 109 of the Indian Penal Code. To prove the case against the accused, the complainant has examined six witnesses including the complainant in support of her case, as found from the evidence, the complainant has given version about her marriage with respondent No. 1 which had taken place on 26th December, 1980 and she stayed in the house of her husband for three months and she was driven out on 27th March, 1981. It is further found from her evidence that respondent No. 1 had performed second marriage with accused No. 4 with her consent on 25th May, 1983 and the said second marriage of accused No. 1 with accused No. 4 was performed at Bhabhulsar Khurd, Tal. Shirur, Distt. Pune, in the house of Divekar Kumbhar and she came to know about the second marriage from the relative of accused No. 1 Shri Ganesh Shankar Pandit. Ihave gone through the evidence of the complainant and the evidence of Shri Vasant Shankar Dekhane who is the priest who has performed the second marriage of accused No. 1 with accused No. 4 as well as evidence of Nivrutti Bhau Makar, Dattatray Sadashiv Shinde, Sadashiv Bajinaih Shinde and Budha Sadashiv Dalimbkar. The learned Magistrate has on considering the evidence, held that from the evidence, the facts about the ‘Saptapadi’ and ‘Homa’ in the second marriage of accused No. 1 with accused No. 4 have not been performed and even the learned Magistrate-has on examining the evidence of the complainant and witnesses, has held that as found from the evidence of the complainant that marriage of accused No. 1 with accused No. 4 was performed at the house of one Raoji Darekar and that the complainant has not examined this most important witness before the Court nor any explanation has been adduced as to why this witness was not examined and it is further found from the police statement of Shri Raoji that he was not present in the village on that day and”, accordingly, the learned Magistrate has recorded the finding that from the evidence, it cannot be concluded that the alleged marriage might have been celebrated and, accordingly, the learned Magistrate has held that there is no sufficient or satisfactory evidence to prove the case against the accused and, accordingly, the order of acquittal of the accused.
4. As observed earlier that the appellant-complainant had while taking out the application being Criminal Application No. 398 of 1986 which is supported with her affidavit dated 20th March, 1986 disclosing the fact that during the pendency of the appeal a customary divorce was obtained by the appellant-complainant and the respondent No. 1 her husband by executing a divorce deed dated 6th January, 1986 and the same was also registered with the Sub-Registrar of Assurances, Mumbai and, accordingly, the appellant-complainant had prayed for withdrawal of the appeal or for dismissal of the appeal for non-prosecution.
5. In view of the above, and even on going through the evidence and the order under challenge, it will not be possible for this Court to reverse the findings-recorded by the learned Magistrate by reverting the judgment of acquittal into conviction. It is made clear that as this Court has proceeded with the hearing of the appeal in absence of Advocate for the appellant, this will not be treated that the appellant-complainant had committed any breach about the document executed by the appellant and accused No. 1 viz. the customary divorce which is registered deed dated 6th January, 1986. Accordingly, the appeal is dismissed. Criminal Application No. 398 of 1986 is disposed of.