JUDGMENT : NARESH KUMAR CHANDRAVANSHI, J. 1. The present Acquittal Appeal under Section 378(4) of the Cr.P.C. is directed against the judgment dated 29-9-2018 passed by the 1 st Upper Sessions Judge, Baloda-Bajar Distt. Balodabajar-Bhatapara in Cri. A. No. 69/2017 whereby the Appellate Court has allowed the appeal preferred by the accused acquitting him of offence under Section 494 of the IPC which was preferred against the judgment dated 7-11-2017 passed by the Chief Judicial Magistrate, Baloda-Bajar in Criminal Case No. 1238/2014 whereby the accused was convicted for the offence under Section 494 of the IPC and sentenced to undergo RI for 5 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo RI for 2 months. 2. Facts of the case in brief are that, the appellant/complainant filed complaint against the respondent No. 2/accused and 4 other persons under Section 494 of the IPC stating inter alia that, her marriage was performed with the respondent No. 2/accused in the year 1999 as per the rituals. They have also been blessed with a female child in the year 2002, but after delivery of their child, the accused started harassing her and ousted them from their house in the year 2005. Thereafter, he performed second marriage with one Rukhmani in the year 2010 without any valid decree of divorce. Based on above facts, the appellant/complainant filed complaint, which was registered by the trial Court only against the respondent No. 2. 3. On appearance of respondent No. 2/accused, learned trial Court framed charge under Section 494 of the IPC against him, who abjured his guilt and claimed trial. 4. In order to prove the guilt of the accused, the appellant/complainant examined as many as 6 witnesses. Statement of accused was recorded under Section 313 of the Cr.P.C., in which, he accepted that his marriage was solemnized with the appellant as per rituals and they have also been blessed with a girl child in the year 2002, but he denied all other incriminating circumstances appearing against him in the evidence adduced by the appellant/complainant. The respondent No. 2 has also stated that, he has been falsely implicated in this case. He has examined 3 witnesses in his defence. 5. The respondent No. 2 has also stated that, he has been falsely implicated in this case. He has examined 3 witnesses in his defence. 5. Learned trial Court after appreciating the evidence adduced by both the parties, convicted and sentenced the respondent No. 2 in the manner stated in opening paragraph of this judgment. Being aggrieved, the accused/respondent No. 2preferred an appeal which was allowed vide impugned order acquitting him. Being aggrieved by the order passed by the appellate Court, the appellant/complainant has preferred this appeal. 6. Learned counsel for the appellant would submit that, the appellant/complainant and her witnesses have proved that, her marriage was solemnized with the accused as per their rituals and they have also been blessed with a female child, which has also been admitted by the accused in his statement recorded under Section 313 of the Cr.P.C. He further submits that witnesses of complainant have also proved that, in the year 2010, respondent No. 2 has performed second marriage with one Rukhmani and she has also delivered two children of respondent No. 2. Aforesaid fact has also got support from the birth certificate Article ‘A’ of female child Ku. Totruti Kurre, in which names of mother and father are mentioned as Rukhmani Kurre and Pradeep Kurre respectively. Article ‘B’ is certificate issued by the Sarpanch, Gram Panchayat, Gaboud wherein he has certified that, Rukhmani Kurre is wife of Pradeep Kurre. He would further submit that, relying on aforesaid evidence, learned trial Court has convicted the accused, but without any cogent reason, learned Appellate Court has acquitted him by setting aside the judgment of conviction passed by the trial Court. Hence, he prays that, instant acquittal appeal be allowed, the impugned judgment be set aside and judgment of conviction passed by the trial Court may be restored. 7. Per contra, learned counsel appearing for the respondent No. 2/accused would submit that, neither appellant/complainant nor her witnesses have proved the fact that accused has performed second marriage with Rukhmani. It has not been proved that, alleged birth certificate Article ‘A’ of Ku. Totruti Kurre has been got prepared by the accused or with his consent, therefore, the impugned judgment passed by learned Appellate Court is well reasoned judgment, which does not call for any interference of this Court. 8. Learned Govt. Adv. It has not been proved that, alleged birth certificate Article ‘A’ of Ku. Totruti Kurre has been got prepared by the accused or with his consent, therefore, the impugned judgment passed by learned Appellate Court is well reasoned judgment, which does not call for any interference of this Court. 8. Learned Govt. Adv. appearing for the respondent No. 1/State would submit that State has not filed any appeal against the impugned judgment, therefore, appropriate order may be passed. 9. I have heard learned counsel for the parties and perused the material available on record including the record of the trial Court as also appellate Court. 10. In order to consider of the challenge made to the judgment of conviction and sentence, Section 494, IPC is relevant and is reproduced below : “494. Marrying again during lifetime of husband or wife— 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 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.” 11. A perusal of Section 494, IPC would reveal the following essential ingredients of the offence under Section 494, IPC: (i) The accused spouse must have contracted the first marriage, (ii) While the first marriage was subsisting, the spouse concerned must have contracted a second marriage, and (iii) Both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had duly been performed. 12. 12. It is pertinent to mention here that the offence under Section 494 of the IPC would be attracted only if the second marriage becomes void by reason that it had taken place during the subsistence of the first marriage and in the lifetime of one of the spouse. 13. It is also worthy to notice Section 17 of the Hindu Marriage Act, 1955 (henceforth referred to as ‘Act of 1955’), which reads thus: “17. Punishment of bigamy.— Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Penal Code, 1860, shall apply accordingly.” 14. Section 17 of the Act, 1955 clearly provides that the second marriage must be according to ceremonies required by law and if the marriage is void, its voidness will only lead to the consequence from such marriage. The combined effect of Section 17 of the Act, 1955 and Section 494, IPC has been considered by Hon’ble Supreme Court in Bhaurao Shankar Lokhande v. The State of Maharashtra , AIR 1965 SC 1564 , and has been held as under: “ 4. …. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Sections 494 and 495 IPC shall apply accordingly. The marriage between two Hindus is void in view of Section 17 if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be “solemnized”, that marriage will not be void by virtue of Section 17 of the Act and Section 494 IPC will not apply to such parties to the marriage as had a spouse living. The word “solemnize” means, in connection with a marriage, “to celebrate the marriage with proper ceremonies and in due form”, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is “celebrated or performed with proper ceremonies and due form” it cannot be said to be “solemnized”. The word “solemnize” means, in connection with a marriage, “to celebrate the marriage with proper ceremonies and in due form”, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is “celebrated or performed with proper ceremonies and due form” it cannot be said to be “solemnized”. It is therefore essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.” 15. In Smt Priya Bala Ghosh v. Suresh Chandra Ghosh , (1971) 1 SCC 864 : ( AIR 1971 SC 1153 ) , their Lordships of the Supreme Court clearly held that it is essential that the second marriage should have been celebrated with proper ceremonies and in due form and the prosecution has to prove that the alleged second marriage has been duly performed in accordance with religious rites available to the form of marriage gone through by the parties and the admission of the accused cannot be in law treated as an evidence of the second marriage having been taken place. It has been held as under: “ 16. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494 IPC. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form. 17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. 17. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. at p. 615 dealing with the essential ceremonies which have to be performed for a valid marriage, this Court on the evidence held that the prosecution had neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been performed in accordance with the requirement of Section 7 of the Act. The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage held been duly performed in accordance with the essential religious rites applicable to the form of the marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties. 23. Further, as pointed out by this Court in Kanwal Ram case ( AIR 1966 SC 614 ) the admission in Ex. 2 cannot in law be treated as evidence of the second marriage having taken place, in an adultery or bigamy case, and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies.” 16. Thereafter, their Lordships of the Supreme Court, following the decision of Bhau rao Shankar case (supra), Kanwal Ram case (supra) and Smt. Priya Bala case (supra), in Gopal Lal v. State of Rajasthan , (1979) 2 SCC 170 : ( AIR 1979 SC 713 ) , clearly held that where a spouse contracts a second marriage while the first marriage subsists, the spouse will be held guilty of bigamy under Section 494, IPC if it is proved in the sense that the necessary ceremony, required by law or custom, has been actually performed. In Laxmi Devi (Smt) v. Satya Narayan , (1994) 5 SCC 545 : (1994 AIR SCW 3408) also, their Lordships of the Supreme Court held that in the absence of proof of such a ceremony, the factum of second marriage cannot be held to have been made out. 17. In pronouncements of Hon’ble Supreme Court, it has clearly been held that in order to prove the offence of bigamy under Section 494, IPC, the prosecution is required to prove the fact of second marriage strictly and unless the prosecution is able to prove the fact of second marriage, as required under the law, the accused, in view of the authoritative pronouncements Laid down by Hon’ble Supreme Court in above-noted cases, cannot be held guilty for the offence under Section 494, IPC. 18. Reverting to the facts of instant case, from perusal of deposition of complainant and her witnesses namely Sushila alias Draupati (P.W. 1), Sinod Kumar Kosle (P.W. 2), Motiram Mandle (P.W. 3), who is father of complainant and Bhagwat Mandle (P.W. 4) and further, admission made by the respondent No. 2 / accused in his statement recorded under Section 313 of the Cr.P.C., it is found that appellant/complainant is legally wedded wife of accused, their marriage was performed as per rites and rituals in the year 1999 and they have been also blessed with a girl child in the year 2002. 19. As regards second marriage of respondent No. 2, complainant Smt. Sushila alias Draupati (P.W. 1) has stated in her deposition that, respondent No. 2 has performed second marriage with Rukhmani of village Kodwa, PS Palari. Similar fact has also been stated by Sinod Kumar Kosle (P.W. 2) and Bhagwat Mandle (P.W. 4), but none of them has stated in their deposition that, in what manner alleged second marriage was performed by the accused with Rukhmani. In this regard, marriage certificate (Article B) issued by the Sarpanch, Gram Panchayat Gaboud, Distt. Balodabajar-Bhatapara has been filed but the Sarpanch has no right to issue such certificate, therefore, aforesaid certificate does not have any legal value in the eye of law. Though in birth certificate Article ‘A’, name of mother of Ku. In this regard, marriage certificate (Article B) issued by the Sarpanch, Gram Panchayat Gaboud, Distt. Balodabajar-Bhatapara has been filed but the Sarpanch has no right to issue such certificate, therefore, aforesaid certificate does not have any legal value in the eye of law. Though in birth certificate Article ‘A’, name of mother of Ku. Totruti Kurre has been mentioned as ‘Rukhmani’ and father as ‘Pradeep Kumar Kurre’ and issuance of that birth certificate has been proved by Sarita Verma, Secretary, village Panchayat, Gaboud, but in cross-examination, she has shown her ignorance that Ku. Totruti Kurre was born after second marriage of accused with Rukhmani. She has accepted the suggestion of defence counsel that it has not been mentioned in Article ‘A’, as to under whose instruction, it was prepared. 20. Thus from perusal of the evidence adduced by prosecution witnesses, it is found that the prosecution witnesses have not stated anything as to whether the second marriage has been solemnised by the respondent No. 2 by undergoing the essential ceremonies in accordance with the customs prevalent in his caste/community. The prosecution was further required to bring legal evidence on record that what are the essential ceremonies of a marriage in their community. But, no such evidence of the essential ceremonies, alleged to be prevalent in the caste/community of the respondent No. 2, nor any evidence of actual performance of the second marriage by undergoing those ceremonies, was brought on record. Therefore, there is no legal evidence on record that the respondent No. 2 ever performed a second marriage with Rukhmani in accordance with the customary rites so as to attract Section 17 of the Act, 1955, offence of which is punishable under Section 494, IPC. Therefore, it cannot be held proved that, the respondent No. 2/accused has performed second marriage with Rukhmani. In view of above discussion, I do not find any merit in instant acquittal appeal. The same deserves to be and is hereby dismissed. 21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith.