NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NOs. 234-235 OF 2012 (Arising out of SLP (Crl.) Nos. 1262-1263 of 2009)

Kannan … Appellant

Versus

Selvamuthukani        … Respondent  

WITH

CRIMINAL APPEAL NO.236 OF 2012 (Arising out of SLP (Crl.) No. 7924 of 2009)

Murugayee & Ors. … Appellants

Versus

Selvamuthukani @ Selvamuthu       … Respondent  

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. These two appeals, by special leave, can be disposed of  

by a common judgment as they challenge the judgment and

order dated 24.9.2008 delivered by the Madras High Court  

in Criminal R.C. Nos. 1439 and 1440 of 2005 filed by the  

respondent.  

3. It  is  necessary  to state the facts  which led to these  

appeals. The respondent – Selvamuthukani @ Selvamuthu is  

the original complainant ( ‘the complainant’ for short). She  

filed a private complaint in the court of Judicial Magistrate  

No. 1, Coimbatore being CC No. 620 of 1992 against Kannan  

(original  accused  1  –  ‘A1’  for  short),  M.  Rangan  Chettiar  

(original  accused  2  –  ‘A2’  for  short),  Murugayee  (original  

accused 3 – ‘A3’ for short), K. Palaniammal (original accused  

4 – ‘A4’ for short), Ganesan (original accused 5 – ‘A5’ for  

short) and seven others. The complainant alleged that she  

was married to A1 on 16.6.1980. According to her, during  

the subsistence of her marriage with A1, A1 married A4 and  

thus committed an offence punishable under Section 494 of  

the  Indian  Penal  Code  (for  short  ‘the  IPC’).   The  

complainant  further  alleged  that  by  actively  assisting  and  

participating  in  the  said  marriage  ceremony,  the  other  

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accused abetted the commission of  said offence and they  

are thus guilty of offence punishable under Section 494 read  

with Section 109 of the IPC. After  perusing  the  complaint  

and  deposition  of  the  complainant,  learned  Magistrate  

framed charge under Section 494 of the IPC against A1 and  

under Section 494 read with Section 109 of the IPC against  

A2 to A5.  The complainant examined herself as PW-1. She  

also examined two more witnesses (PW-2 and PW-3).  The  

accused examined two witnesses  in  support  of  their  case  

(DW-1 and DW-2).  After perusing the evidence on record,  

learned  Magistrate  held  A1  guilty  of  offence  punishable  

under Section 494 of the IPC.  He held A2 to A5 guilty of  

offence punishable under Section 494 read with Section 109  

of  the  IPC.   He  sentenced  all  the  accused  to  undergo  

rigorous imprisonment for two years each and to pay a fine  

of Rs.1,000/- each.  In default, the accused were to undergo  

rigorous imprisonment for one month.  

4. Being aggrieved by the said judgment and order,  A1  

preferred Criminal  Appeal  No.  147 of  2004 and A2 to A5  

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preferred Criminal Appeal No. 146 of 2004 in the Court of  

District and Sessions Judge, Coimbatore.  Learned Sessions  

Judge,  while  disposing  of  the  appeals  confirmed  the  

conviction but reduced the sentence of the accused to the  

sentence already undergone by them.  The said judgment  

was  challenged  by  the  complainant  in  the  Madras  High  

Court.  She  preferred  two  criminal  revision  cases   being  

Criminal  Revision  Case  No.  1439  of  2005  and  Criminal  

Revision  Case  No.  1440  of  2005.   By  the   impugned  

judgment the High Court confirmed the finding that A1 had  

during the subsistence of his first marriage married A4 and  

was, therefore,  guilty of  offence punishable under Section  

494 of the IPC.  The High Court also confirmed the finding  

that A2 to A5 abetted the said offence and hence, they were  

guilty  of  offence  punishable  under  Section  494  read  with  

Section 109 of the IPC.  The High Court noted that none of  

the accused has chosen to prefer any appeal or revision and,  

therefore, conviction recorded by the trial court which was  

confirmed by the  lower  appellate  court  has  become final.  

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The High Court  also noted that the accused were on bail  

throughout and that they had not served any part of  the  

sentence in jail.  The High Court was of the opinion that in  

the circumstances  the  reduction  of  sentence  done  by the  

lower appellate court cannot be sustained.  In the opinion of  

the High Court the said order was passed without application  

of mind.   In the circumstances, the High Court reduced the  

sentence of two years rigorous imprisonment awarded to A1  

to  rigorous  imprisonment  for  one  year.  Sentence  of  two  

years each awarded to A2 to A5 was reduced to six months  

rigorous imprisonment each. The High Court did not modify  

the trial court’s order as regards fine. The criminal revision  

cases were thus partly allowed.  Being aggrieved by the said  

judgment, the accused have preferred the present appeals.  

5. Admittedly A2 (Rangan Chettiar)  is dead and his name  

has been struck of from the array of parties vide this Court’s  

order  dated 2.9.2011.   So  far  as  A1 i.e.  husband of  the  

complainant is concerned, he has undergone the sentence  

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awarded to him.  Thus, we have to consider the involvement  

of A3, A4 and A5 in the offences in question.   

6. We have heard Shri  A.T.M. Rangaramanujam, learned  

senior counsel appearing for the  accused  and Shri Rana  

Ranjit  Singh,  learned  counsel   appearing  for  the  

complainant-respondent.  

7. Learned counsel  for  the accused pointed out that A1  

had  filed  a  divorce  petition  against  the  complainant.  A  

divorce decree was passed on 20.2.1991.  The appeal filed  

by the complainant was allowed on 10.2.1992 and on that  

date the marriage between A1 and the complainant could be  

said to have been revived. A1 married A4 on 8.3.1992 but  

there is nothing to establish that A3, A4 or A5 knew that the  

divorce decree dated 20.2.1991 was set aside. To hold that  

A3, A4 and A5 had knowledge of the fact that on 10.2.1992  

the divorce decree was set aside, would be entering into the  

arena of conjectures and surmises. Counsel submitted that,  

in any case, the marriage between the complainant and A1  

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has been dissolved by a consent decree dated 12.1.2010.  

Counsel submitted that A5, the father of the second wife i.e.  

A4 is 80 years of age. He is seriously ill. He is surviving on  

one kidney. Counsel submitted that in the circumstances of  

the case, therefore, the impugned judgment deserves to be  

set aside.  

8. Learned counsel for the respondent-complainant on the  

other  hand  submitted  that  the  marriage  between  the  

complainant and A1 is established beyond doubt.  There is  

enough  evidence  on  record  to  establish  that  during  the  

subsistence  of  the  first  marriage,  A1  got  married  to  A4.  

Counsel submitted that it is inconceivable that A3 to A5 did  

not know that the divorce decree obtained by A1 was set  

aside  on  10.2.1992.  Therefore,  they  have  rightly  been  

convicted for offence under Section 494 read with Section  

109 of the IPC.   

9. The  prosecution  has  clearly  established  that  A1  was  

married to the complainant on 16.6.1980.  It is also a fact  

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that A1 obtained a decree of divorce on 20.2.1991 which  

was set  aside  on 10.2.1992 in  the appeal  carried  by the  

complainant against the said decree of divorce. Evidence of  

the complainant establishes beyond doubt that A1 married  

A4 on 8.3.1992.  The question is whether the fact that the  

decree of divorce was set aside and the marriage between  

A1 and the complainant was revived was known to A3, A4  

and A5. Merely because A3 is the sister of A1, it cannot be  

presumed that she knew that the decree of divorce was set  

aside. If A1 wanted to marry A4, it is possible that he would  

keep back these facts from his sister as also from A4 and A5  

i.e. his second wife and her father respectively.  

10. In our opinion, the evidence of PW-1, PW-2 and PW-3  

does not conclusively establish that the fact that the decree  

of divorce was set aside on 10.2.1992 was known to A3, A4  

and A5 and, therefore, benefit of doubt must be given to A3,  

A4  and  A5.   In  the  circumstances,  in  our  opinion,  the  

impugned judgment and order dated 24.9.2008 so far as it  

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convicts and sentences A3, A4 and A5 needs to be set aside.  

Hence, the following order:

 11. The  impugned  judgment  and  order  dated  24.9.2008  

passed  in  Criminal  R.C.  Nos.  1439  and  1440  of  2005  is  

quashed  and  set  aside  to  the  extent  it  convicts  and  

sentences A3, A4 and A5. Murugayee  (original  accused  

3),  K.  Palaniammal  (original  accused  4),  and  Ganesan  

(original  accused  5)  are  acquitted  of  the  charge  under  

Section  494 read with  Section  109 of  the  IPC.  Their  bail  

bonds stand discharged.  

12. Appeals are disposed of in the aforestated terms.

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI JANUARY 30, 2012.                                                     

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