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 versusRespondent: 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 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 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 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 302and 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.
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 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 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 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) 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 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 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.
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. 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 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.
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 34of the Indian Penal Code. Their bail bonds stand discharged. The muddemal property being worthless be destroyed.