Dhaniraj Sabar vs Radhakrishna Sabar and Others

P.K. Tripathy, J.—Learned Counsel for the appellant is present. None appears for the respondents. This being a year-old case of the year 1988, I take it for hearing from provisional list.

Heard and the judgment is as follows.

Appellant instituted I.C.C. Case No. 61 of 1986 in the Court of S.D.J.M., Dharamgarh complaining that offence under Sections 497 and 494, I.P.C. was committed by his wife and in-laws and offence under Sections 494/109, I.P.C. by the remaining accused persons who performed the marriage of accused Ura Dei with accused Bhubaneswar notwithstanding subsistence of the marital relationship between Ura Dei and the complainant. Accused persons denied to the allegation and claimed for trial. In course of trial, prosecution relied on the oral evidence of five witnesses. Accused persons did not adduce any evidence and capitalized on the cross-examination of P.Ws. 1 to 5.

Section 494, I.P.C. prohibits a husband or wife to marry with any other male or female during subsistence of marital relationship and make such offence punishable. To bring home charge for the offence u/s 494, I.P.C., it is essential for the complainant to prove that the other person figuring as accused is his or her legally married spouse. On proof of the aforesaid aspect, other factor required to be proved by the complainant is that during such valid marriage of the accused is spouse the other spouse, i.e., the accused entered into a void marital relationship with any other person. On Assessment of evidence on record, learned S.D.J.M. found that prosecution could not prove that Ura Dei is the legally married wife of the petitioner and therefore offence u/s 494, I.P.C, is not made out on the complained act of her marriage with somebody else.

Section 497 provides punishment for the offence on adultery. It provides that whoever makes sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, then such sexual intercourse becomes the offence of adultery if committed with the consent of that man (husband). Learned S.D.J.M, recorded the finding that when petitioner has failed to prove that he is the husband of accused Ura Dei, therefore, the aforesaid offence is not made out against accused No. 8 and his relatives on the mere allegations of the petitioner. Accordingly he acquitted the accused persons from the charge u/s 494/109, I.P.C and 497/110, I.P.C.

Learned Counsel for the appellant after placing evidence on record and the findings recorded by the trial Court, argues that oral evidence adduced in this case is sufficient to accept his contention that appellant is the husband of accused Ura Dei and there has been a second marriage of said Ura Dei with accused Bhubaneswar. In the above context, the rituals to be performed in a valid marriage in ''Sabara'' tribal community were differently stated by the witnesses examined on behalf of the complainant. Taking note of that contradiction so also the other prevaricating evidence of the P.Ws., learned S.D.J.M. did not find such evidence to be credible. There is nothing on record to dislodge that presumption. After perusal of the evidence on record, such a reason assigned by learned S.D.J.M. is not found to be suffering from perversity to be termed as illegality. Therefore, this Court finds no reason to interfere with the assessment of evidence and the findings recorded by learned S.D.J.M. in disbelieving the case of the complainant.

In the result, the order of acquittal pronounced by learned S.D.J.M. is upheld and the Criminal Appeal is dismissed being devoid of merit.