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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 730 of 2003
Appellant : State of Maharashtra, through Police Station
Officer, Police Station, Ballarshah, District
Chandrapur
Versus
Respondents: 1) Chandeshwar s/o Sahadeo Mahato, aged
about 25 years
2) Soniyadevi w/o Sahadeo Mahato, aged about
45 years,
Both residents of Sandali, Post Broli, District
Gopalganj (Bihar), presently residing in Paper
Mill Colony, Ballarshah, District Chandrapur
Shri Prakash Tembhare, Addl. Public Prosecutor for appellant
Shri Mohit Khajanchi, Advocate for respondenbts
——-
Criminal Appeal No. 624 of 2003
Appellants : 1) Chandeshwar s/o Sahadeo Mahato, aged
about 25 years
2) Soniyadevi w/o Sahadeo Mahato, aged about
45 years,
Both residents of Sandali, Post Broli, District
Gopalganj (Bihar), presently residing in Paper
Mill Colony, Ballarshah, District Chandrapur
versus
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Respondent: State of Maharashtra, through Police Station
Officer, Police Station, Ballarshah, District
Chandrapur
Shri Mohit Khajanchi, Advocate for appellants
Shri Prakash Tembhare, Addl. Public Prosecutor for respondents
Shri D. V. Mahajan, Advocate for appellant
Shri Harshal Dube, Addl. Public Prosecutor for respondent-State
Coram : S. B. Shukre And Manish Pitale, JJ
Dated : 3rd February 2018
Judgment (Per S. B. Shukre, J)
1. These two appeals arising out of the same judgment and
order dated 17th September 2003 rendered in Sessions Trial No. 80 of
1995 are being disposed of by this common judgment. Criminal Appeal
No. 730 of 2003 has been preferred by the State of Maharashtra and
Criminal Appeal No. 624 of 2003 has been filed by the accused persons.
For the sake of convenience, parties to these appeals are hereinafter
referred to as the “State” and “accused nos. 1 and 2”.
2. Briefly stated, facts of the case are as under:
a) Accused no. 1 Chandeshwar and accused no. 2 Soniyadevi
were respectively the husband and mother-in-law of deceased Geetadevi.
Marriage of accused no. 1 with Geetadevi was performed sometime in the
year 1990 in a village situated in the State of Bihar. At that time, father
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of accused no. 1 was in service with Ballarshah Paper Mill, Ballarshah,
District Chandrapur and so the whole family resided in Paper Mill
Quarters at Ballarshah. The quarter occupied by the family of the accused
persons was Quarter No. SR/58. After the marriage, Geetadevi started
cohabiting with accused no. 1 by residing at the Paper Mill Quarter
together with accused no. 2 and father of accused no. 1. It appears that
since beginning of the marriage, there was no smooth sailing for the
couple. Skirmishes and disturbances used to occur between Geetadevi
and accused no. 1 quite regularly. It is alleged that the differences
between them culminated into an incident of catching of fire by Geetadevi
in the morning of 23.3.1995.
b) At about 10.45 am or so of 23.3.1995, one Ganpat
Choudhari, a security guard posted at the Paper Mill Colony, noticed that
Geetadevi had suffered severe burn injuries and her quarter no. SR/58
was on fire. When he checked inside the house, he also found that
Geetadevi had died of burn injuries. He rushed to the Police Station,
Ballarshah and lodged a report of the incident. AD enquiry was initiated
by Ballarshah Police. Spot panchanama and inquest panchanama were
prepared. Articles found at the spot of incident, which in the opinion of
the enquiry officer were likely to serve as pieces of evidence, were seized.
Panchanamas of those seizures were drawn out. Dead body of Geetadevi
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was sent for conduct of post-mortem examination and report. Statements
of witnesses were recorded. Meanwhile, post-mortem examination report
was also received. It disclosed presence of three injuries, one of hundred
percent burns and remaining of two incised wounds with bridge of nose
having been embeded with a piece of glass. The doctor who conducted
post-mortem examination opined that these injuries were ante-mortem in
nature and that cause of death was shock due to hundred percent burns.
c) Further investigation was made and it revealed that there
was a love affair between accused no. 1 and his school-mate even prior to
marriage of accused with deceased Geetadevi and it was the root cause of
marital dischord between accused no. 1 and deceased Geetadevi, which
led to burning death of Geetadevi. The Investigating Officer, it does not
appear, collected any direct or strong circumstantial evidence to support
the allegation of intentionally causing death of deceased Geetadevi and
still, a charge-sheet was laid before the Court of Judicial Magistrate,
having jurisdiction over the Ballarshah police, for the offence punishable
under Section 302 of the Indian Penal Code. The charge-sheet also
alleged commission of other offences about which, of course, the
investigating officer could gather some material. The other offences were
of bigamy and cruelty punishable under Sections 494 and 498A of the
Indian Penal Code. As one of the offences involved in the charge-sheet
was exclusively triable by the Sessions Court, learned Magistrate
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committed the case to the Sessions Court for being tried in accordance
with law.
d) Accused nos. 1 and 2, thus, came to be prosecuted for the
offences punishable under Sections 302 and 498A of the Indian Penal
Code and accused no. 1 also came to be prosecuted for an offence
punishable under Section 494 of the Indian Penal Code. On merits of the
case, learned Ad-hoc Additional Sessions Judge, Chandrapur found that
there was no evidence whatsoever brought on record by the prosecution
to prove the offence of murder charged against both the accused and,
therefore, by the impugned judgment and order, he acquitted them of the
offence of murder. This acquittal has been challenged by the State in
Criminal Appeal No. 730 of 2003. The learned Ad-hoc Additional
Sessions Judge, however, by the impugned judgment and order convicted
accused no. 1 of the offence punishable under Section 494 of the Indian
Penal Code and also convicted him and accused no. 2 of the offence
punishable under Section 498A with the aid of Section 34 of the Indian
Penal Code and handed them out sentences of rigorous imprisonments
for three years together with fine of Rs. 3000/- and default sentences of
RI for six months on both counts. This part of the impugned judgment
and order has been challenged by accused nos. 1 and 2 in Criminal
Appeal No. 624 of 2003.
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3. We have heard Shri Prakash Tembhare, learned Additional
Public Prosecutor for the State and Shri Mohit Khajanchi, learned counsel
for accused nos. 1 and 2. We have carefully gone through the record of
the case including the impugned judgment and order.
4. Now, the following points arise for our determination:
(1) Whether the prosecution has proved that death of Geetadevi
was homicidal in nature ?
(2) Whether the prosecution has proved that accused nos. 1 and
2, in furtherance of their common intention, committed murder of
Geetadevi ?
(3) Whether the prosecution has proved that accused no. 1 has
committed an offence of bigamy ?
(4) Whether the prosecution has proved that accused nos. 1 and
2 subjected Geetadevi, prior to her death, to cruelty of unbearable
nature ?
(5) Whether any interference with the impugned judgment and
order is necessary and if so, to what extent ?
5. As to Points No. (1) and (2) : In the present case, the
prosecution evidence suggests that death of Geetadevi was due to burn
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injuries she sustained in the morning of fateful day in her house. But, the
prosecution evidence, deficient, wanting and slippery in it’s nature, does
not lead us anywhere to ascertain the cause of suffering of burn injuries
by the deceased Geetadevi. This is despite voluminous evidence that the
prosecution led; it examined in all sixteen witnesses. However, none of
the witnesses has deposed about anything from which any inference about
nature of death, homicidal or accidental, could be drawn. They have also
not spoken about any such act of commission or omission attributable to
both the accused as could be said to be pointing out towards their
criminal intention or knowledge behind unfortunate death of Geetadevi
due to burn injuries.
6. The evidence of PW 1 Ganpat, the security guard, who
noticed hundred percent burns suffered by deceased Geetadevi; PW 4
Gurumitsingh who had seen deceased Geetadevi being on fire and
running from second room to third room of her quarter and who had
made an effort to extinguish the fire; PW 6 Manoj, the probationary Police
Sub-Inspector, Ballarshah Police Station who prepared spot panchanama
and inquest panchanama, made seizure of articles from the spot of
incident and sent dead body of deceased Geetadevi to hospital for conduct
of post-mortem examination of the dead body and PW 9 Dr Muthal who
conducted post-mortem examination of the dead body and submitted his
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report of such an examination, leaves no doubt in our mind that deceased
Geetadevi died of shock due to hundred percent burn injuries, which she
suffered in her house in the morning of 23.3.1995. This was an unnatural
death. But, unfortunately, there is neither any direct evidence nor
circumstantial evidence brought on record by the prosecution to enable us
to ascertain the reason behind such an unnatural death of Geetadevi.
There is also no evidence available on record pointing towards presence
of both the accused persons at the spot of inident at the time when
deceased Geetadevi went in flames.
7. Learned Additional Public Prosecutor for the State also could
not point out to us existence of any evidence pointing towards presence of
both the accused persons at the spot of incident at the relevant time or
their entertaining any criminal intention or knowledge at the time when
deceased Geetadevi caught fire. Added to absence of any evidence
incriminating both the ccused, there is also no evidence brought on record
by the prosecution about the possibility of Geetadevi going in flames
accidentally. So, we have no option but to say that although the death of
Geetadevi was unnatural, no definite answer could be given about it’s
being homicidal or otherwise.
8. If it is not established beyond reasonable doubt that death of
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Geetadevi was homicidal in nature, no criminal intention or knowledge
requisite to constitute offence of murder on the part of accused nos. 1 and
2 could be found in this case. Besides, as stated above, none of the
witnesses has stated anything incriminating against both the accused
persons so far as the charge for an offence of murder punishable under
Section 302 of the Indian Penal Code is concerned.
9. Inevitably, we find that the prosecution has failed to establish
beyond reasonable doubt homicidal nature of death of Geetadevi and
accused nos. 1 and 2 being involved in commission of it. Learned Ad-hoc
Additional Sessions Judge has rightly acquitted both the accused of the
offence of murder punishable under Section 302 read with Section 34 of
IPC and so, there is no need to make any interference with the impugned
judgment and order to this extent. Consequently, appeal filed by the
State would have to be dismissed. Points No. (1) and (2) are answered
accordingly.
10. As to Point No. (3) : Learned counsel for accused nos. 1 and
2 has submitted that the charge of offence of bigamy punishable under
Section 494 of the Indian Penal Code made against accused no. 1 would
have to be dismissed as not proved in this case for the reason that no
complaint by an interested person as required under Section 198 (1) (c)
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of the Criminal Procedure Code has been filed in the present case. He
points out that complaint has been filed by the Investigating Officer P. W.
15 Bhagwan. There is no dispute in this case about the complaint having
been filed by the investigating officer and not by any person related by
blood, marriage or adoption to the deceased wife of accused no. 1. This is
an essential requirement of Section 198 (1) (c) of the Criminal Procedure
and if it is not met, no Court can take cognizance of an offence of bigamy,
punishable under Section 494 of the Indian Penal Code. So, in this case
no cognizance of an offence of bigamy could have been taken by the
Sessions Court and since it has been taken in ignorance of a bar created
under Section 198 (1) (c) Cr. P. C., the trial of accused no. 1 on this
charge would have to be held as non-est and of no consequence
whatsoever for accused no. 1. It then follows that the offence of bigamy
is not proved by the prosecution. Point No. 3 is answered accordingly.
11. As to Point No. (4) : In order to prove the charge of
commission of offence of cruelty punishable under Section 498A of the
Indian Penal Code, learned Additional Public Prosecutor has relied upon
the evidence of P.W. 16 Deodhari Mahato, father of the deceased and a
hand-written chit sent by the deceased to her husband’s uncle PW 14
Ganesh Mahato. Learned counsel for accused nos. 1 and 2 submits that
the evidence of PW 16 Deodhari on the question of ill-treatment is vague
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and the alleged hand-written chit (exhibit 81) has not been proved in
evidence by the prosecution as PW 14 Ganesh denied its existence as well
as seizure, which has been disagreed to by learned A.P.P. for the State.
12. The evidence of PW 16 Deodhari on the question of ill-
treatment is indeed in general terms, as rightly submitted by learned
counsel for the accused. He has stated that in the year 1992 when the
marriage of his son was to be solemnized, the deceased had visited his
house and told him that her husband and in-laws were subjecting her to
ill-treatment. This witness has not explained the nature of ill-treatment
being handed out to the deceased and the reason for it. He has also not
stated anything, even by approximation, about the time or the period of
alleged ill-treatment. In order that an ill-treatment is cruelty as defined
under Section 498A of the Indian Penal Code, it must be consistent and
of such a nature as is sufficient to drive a woman to commit suicide or as
is likely to cause grave injury or danger to life or health (mental or
physical) of the woman or is given with a view to coercing the woman or
any of her relatives to meet any unlawful demand for any property or
financial gain. If a witness says that the woman was subjected to ill-
treatment or harassment but does not elaborate upon its frequency,
intensity and quality, it would not be covered by the prohibited act of
cruelty as contemplated by law. As we have said earlier, there is just a
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bald statement given by PW 16 Deodhari about his daughter being ill-
treated by her husband and the in-laws without any further detailing of
material particulars. We would, therefore, find that evidence of PW 16
Deodhari by itself would not be sufficient to bring home the guilt to the
accused of an offence punishable under Section 498A of the Indian Penal
Code and something more would be required.
13. According to learned Additional Public Prosecutor, something
more can be found in the chit (exhibit 81) written and sent by deceased
to PW 14 Ganesh. This witness, however, has denied that any such chit
was sent to him by the deceased and was received by him. He has also
denied it’s being seized by the police at his instance.
14. In the facts and circumstances of this case, we are inclined to
think that denial of receipt of the chit and it’s seizure by PW 14 Ganesh
possibly could be out of sympathy for accused no. 1 as now he might not
be wanting to destroy one more life after the extinguishment of another
life, which was not going to be revived by his speaking against his
nephew. The reason being that there is available on record other
evidence which establishes existence of the chit, it’s receipt by PW 14
Ganesh and it’s being in the hand-writing of Geetadevi.
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15. The prosecution has proved beyond reasonable doubt
through the evidence of Investigating Officer PW 15 Bhagwan Patekar the
seizure of the chit, Exh-81, from the hands of PW 14 Ganesh. There is
nothing in his evidence to entertain any doubt about his testimony on the
point of seizure of chit (exhibit 81) at the instance of PW 14 Ganesh. If
PW 14 Ganesh had not received the chit, there was no reason for PW 15
to recover it from the possession of PW 14. But, the fact is that it was
seized from the possession of PW 14 and genuineness of such seizure has
been established on record through the evidence of PW-15. That means,
the denial of seizure made by the PW 14 is only to save his nephew from
landing in troubled waters and so is rejected by us.
16. The evidence of PW 16 Deodhari, father of the deceased in
our opinion, not only proves the hand-writing appearing in the chit but
also lends support to the prosecution case of sending of the chit by the
deceased to PW 14. Evidence of PW 16 discloses that hand-writing of his
daughter was familiar to him and that was the reason why he, without
any second thought, identified it to be of his daughter, deceased
Geetadevi. In his examination-in-chief, he only identified the hand-writing
of the chit, but did not give any reason for the identification. However, a
suggestion was put to him in his cross-examination that he did not see
deceased Geetadevi write and read, which was promptly denied by him.
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This answer, to our mind, provided the reason for the categorical
identification of the hand-writing appearing in the chit by PW 16
Deodhari . This would mean that the chit was indeed written by
Geetadevi and if it was written by her, who else it could have been sent
by her other than the person to whom the prosecution says it was sent. In
other words, genuineness of the chit itself would rule out the possibility
of its being fabricated by anybody, just to create a mirage of evidence
against the accused persons. So, the evidence of PW 18 Deodhari would
also lend a strong support to the prosecution case that there was in
existence a chit written under her own hand by deceased Geetadevi and
sent by her to PW 14 Ganesh, which is at exhibit 81. Thus, we find that
the prosecution has proved not only the existence of the chit, but also it
to be genuinely sent by Geetadevi to PW 14 Ganesh and, therefore, this
chit (exhibit 81) can be read in evidence.
16. On going through the chit vide exhibit 81, however, one
receives only disappointment, rather than any assurance to the
prosecution case of harassment of the deceased at the hands of accused
persons. The chit has turned out to be a damp squib for the prosecution.
It does not incriminate any of the accused in any manner. It says, one
Rajesh Chacha along with his mother, used to give abuses and beatings to
the deceased Geetadevi. It alleges that these persons, in a revengeful tone
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had reminded her that her father had not given anything in the past and
that they would not let deceased Geetadevi lead her life peacefully until
she brought a TV set from her father. It further says that even the
husband, the mother-in-law and the father-in-law of the deceased would
not intervene and prevent them from causing any harm to the deceased
as they all belonged to one family. This Rajesh Chacha and his mother
have not been made accused in this case. That apart, no evidence on this
new angle is forthcoming from any of the prosecution witnesses. It
would then follow that nothing can be read into the chit at exhibit 81 so
as to record any finding of guilt against any of the accused regarding
commission of offence of cruelty. This offence, we find, has not been
proved by the prosecution in any manner. Point no. 4 is answered
accordingly.
17. As to Point No. 5 : In view of what we have found in this
judgment, the appeal filed by the State would have to be dismissed and
the appeal filed by the accused persons would have to be allowed and
point no. 5 is answered accordingly.
18. In the result, Criminal Appeal No. 730 of 2003 stands
dismissed.
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Criminal Appeal No. 624 of 2003 is allowed. The impugned
judgment and order dated 17.9.2003 passed by 2 nd Ad-hoc Additional
Sessions Judge, Chandrapur are hereby quashed and set aside. The
appellants are acquitted of the offences punishable under Sections 494
and 498A read with Section 34 of the Indian Penal Code. Their bail
bonds stand discharged. The muddemal property being worthless be
destroyed.
Manish Pitale, J S. B. Shukre, J
joshi
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