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The State Of Mah. Thr. Pso … vs Chandeshwar Sahadeo Mahato And … on 3 February, 2018

1

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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