IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.281 of 2013

Arising Out of PS. Case No.-1 Year-2007 Thana- SHRI NAGAR District- Madhepura

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1.Lalita Devi and Anr Nathan Sah R/O,Vill.-Parmanandpur,P.S.-Srinagar,Dist.-

Nadhepura

2.Dhirendra Sah Nathan Sah R/O,Vill.-Parmanandpur,P.S.-Srinagar,Dist.-

Nadhepura

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s: Mr.Amarnath Jha, Adv

For the Respondent/s: Ms Amita Kumari Singh, APP

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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND

MALVIYA

ORAL JUDGMENT

Date : 22-11-2024

Heard learned counsel for the appellants and learned APP

on behalf of the State.

2. The present appeal has been filed under Section 374(2)

of the Code of Criminal Procedure, 1973 (hereinafter referred as

‘Cr.P.C.’) challenging the Judgment of conviction and order of

sentence dated 19.03.2013 passed by the learned Ad-hoc

Additional District and Sessions Judge- I, Madhepura in

Sessions Trial No. 177 (A) of 2007 arising out of Srinagar P.S.

Case No. 01 of 2007, instituted for an offence punishable under

Sections 323, 341, 494, 498(A) and 328 of the Indian Penal

Code whereby and where under all appellants have been

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sentenced to undergo simple imprisonment for three months for

the offence punishable under Section 323 of Indian Penal Code

while for the offence punishable under Section 498(A) of the

Indian Penal Code, they will have to undergo simple

imprisonment for two years along with a fine of Rs. 2000/- and

for default of payment, they will have to undergo further

imprisonment of one month with a direction that all sentence

shall run concurrently.

3. Heard Mr. Amarnath Jha, learned counsel for

the appellants and Ms. Anita Kumari Singh, learned APP for the

State.

4. The brief facts leading to the filing of the

present appeal is that on 02.11.2006, one Nilam Devi filed

complaint petition vide Complaint Case No. 705 of 2006 before

the learned Chief Judicial Magistrate, Madhepura which was

forwarded O/C Sri Nagar P.S. under Section 156 (3) Cr.P.C. for

institution of F.I.R. and investigation of the case on 27.11.2006

and thus F.I.R vide Sri Nagar P.S. Case No. 01 of 2007 was

lodged on 04.01.2007 for the offence under Sections 323, 341,

494, 498(A) and 328 of the Indian Penal Code. As per the

aforesaid F.I.R. the fact of prosecution in short is that the

informant was married to Nathan Sah who brought her to

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Sasural wherein she came to know that her husband has earlier

married to the appellant No.1. However, she started living as a

wife. After 5 years, her husband started assaulting and torturing

her, 2 years before he tried to oust her. On intervention of the

people, she started living separately. On 05.11.2006 she was

returning after taking bath, saw that all the accused are coming

out of her house. She took meal and she got unconscious and

she came to know that poison was mixed up in the meal. She

went to her maike and filed complaint petition which was

subsequently converted into F.I.R. as aforesaid.

5. After completion of investigation, Charge

Sheet No. 33 of 2007 against Nathan Sah was submitted for the

offence under Sections 323, 341, 494, 328 and 498(A) of the

Indian Penal Code on 22.05.2007 while against Lalita Devi and

Dhirendra Sah charge-sheet no. 58 of 2007 was submitted on

28.07.2007 for the offence under Sections 341, 323, 494,

498(A) and 328 of the Indian Penal Code. After cognizance of

the offence under the aforesaid sections by the A.C.J.M

Madhepura, case was committed to the Court of Sessions on

06.11.2007 and Sessions Trial No. 177 (A) of 2007 commenced

against the present appellants while Sessions Trial No. 177 of

2007 commenced against Nathan Sah. On 12.12.2007 charge

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was framed against convict for the offence under Sections 323,

498 (A), 120 (B) and 328 of the Indian Penal Code.

6. The prosecution examined altogether 6

witnesses in this to substantiate the charges against the

appellants, out of them PW-1 Kamleshwari Sah, PW-2 Nilam

Devi (informant), PW-3 Sushil Kumar Sah, PW-4 Dunilal Sah

and PW-5 Surendra Sah. PW-6 Ranahir Singh were examined.

While on behalf of defense DW-1 Mahendra Sah, DW-2

Gulabchand Sah and DW-3 Bindeshwari Sah were also

examined.

7. PW-1 Kamleshwari Shah stated in her

examination-in-chief that about 3-4 years have passed since the

incident. Nathan Shah has two marriages, and scuffling occurred

regarding this. His second-wife filed a case. PW-1 heard about

the incident from the other co-villager. A Panchayat was held

regarding the incident. I was not a Panch in the Panchayat. It

was decided in the Panchayat that 5 bighas of land would be

given to the second wife. Field was given. Trees, mango trees

were also given. She had encroachment on field, bushes and

trees. PW-1 in paragraph-5 of the cross-examination stated that

the Pancha had divided the property equally and separated them.

Nathan Sah or his first wife or any of their children did not have

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done anything with the second wife. The houses of both have

been separated by putting a wall. I am not aware of any dispute

going between the two. Moreover, he is a hearsay witness.

8. PW-2 Neelam Devi, who is the complainant,

has stated in her examination-in-chief that the incident took

place 5 years ago. She is a student. Bhupendra Shah, Surendra,

Sushil, Gajendra Shah, all of them had beaten her. She again

says that the above people are witnesses. Nathan and Lalita had

a fight. I was married to Nathan Shah 7-8 years ago. I have three

son and a daughter after the marriage. Lalita Devi is the co-wife.

Dhirendra is the son of the co-wife. The above three named

persons together had assaulted me and her son, husband and

started calling me out of the house. I did not run away. I cooked

food and kept it aside. When I went to the door to take a bath,

the above three persons together put poison in my food. When I

ate that food, I started vomiting. I did not go to see the Doctor, I

only vomited repeatedly. Gajendra Shah saw the incident and

saved me. PW-2 has stated in his cross-examination in para-8

that we live separately and Panch have divided the property. We

do farming with great difficulty. In para-9, it is stated that after

bathing, half an hour later I started to feel uneasy and after 2-4

minutes the child came, we did not talk to anyone. Next day

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when we talked, I told them about the occurrence.

9. PW-3 Sushil Kumar Sah stated in his

examination-in-chief that we know Nathan Sah of our village. I

recognize his second wife. The occurrence took place 8 years

ago. It happened during the day time. Neelam Devi vomited on

the left side. Nathan Shah had given the medicine to PW-2. He

used to beat the informant. PW-3 stated in his cross-examination

in paragraph 6 that he did not saw the occurrence directly, when

he came back from ploughing, then the son of Neelam Devi told

me about it. In paragraph 7, he stated that the Panchayat had

done the division, he had given 4 bighas of land, out of that also

Nathan forcibly took some. In paragraph 10, he has stated that

he used to fight for the division of land. He is also a hearsay

witness.

10. PW-4 Dunilal Shah stated in his

examination-in-chief that he knows Neelam Devi. He also

knows Nathan Shah. The occurrence took place 5-7 years ago.

The incident happened during the day time. The next day PW-4

along with other co-villagers found that she became

unconscious when she was fed poison in the pulses. She

regained consciousness after being given curd and cow dung. It

was found that Nathan Shah and Pananjay Shah had fed poison

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to her. She was the second wife. His relation with his first wife

was not going well, that is why the incident happened. She was

fed poison with the intention of killing her. PW-4 in his cross

examination in para 6 stated that his statement was taken earlier

also. There was some missing part in the first statement but it is

not missing in this one due to memory. In para 7 of his

deposition, he stated that he did not see the incident with his

own eyes 'I came to know about occurrence in the morning’.

which seems that he is also a hearsay witness

11. PW- 5 Surendra Sah stated in his

examination-in-chief that he knows Neelam Devi. He also

knows Neelam's husband Nathan Shah. He also knows the

second wife and son. The name of the first wife is Lalita. He

also knows Pirendra Sah. Neelam Devi is Nathan's second wife,

20-22 years ago marriage was solemnised. Neelam Devi has 3

sons and a daughter. Neelam Devi and her child lived separately.

Nathan Shah and his first wife and son live together. This

occurrence took place 7-8 years ago. It was the day time. That

day Neelam Devi went to take bath after cooking food. She fell

unconscious after she ate the food. PW-5 got the information

that Nathan Shah, his first wife and his son had given poison to

her. Neelam Devi's son and daughter raised an alarm. On

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hearing the alarm more people came there. Neelam Devi was

unconscious. During first aid, I made her drink cow dung and

she vomited. She regained consciousness after some time of

vomiting. I came, treatment was done by the doctor of the

village also. Lalita knows Dheerendra. PW-5 in his cross

examination paragraph-5 stated that Nathan and Neelam Devi

have been living separately for 2-3 years. In paragraph-6 he

stated that we came to know about the incident at 12 noon. The

children created a ruckus, when we went there then Sushil

Kumar Sah, Bhupendra Sah, Upendra Sah, Dunilal etc. were

there with me. In paragraph-7 he stated that when we went, we

did not talk to anyone, Neelam Devi was unconscious. First aid

was given, showed her to the doctor of the village also. In para

8, he stated that when Neelam regained consciousness, they

talked, it was approx 1:30 PM, she said that she had gone for

bath after cooking food, when she came back and ate food, she

fainted. In para 11, PW-5 stated that he did not see the incident

from his own eyes, moreover, he did not get the vomiting

checked.

12. PW-6 Randhir Singh investigating officer

stated in his examination-in-chief that on 04.01.2007, he was

posted as sub-inspector in Srinagar Police Station. On

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04.01.2007, I took over the investigation. After taking over the

investigation, I went to the place of the occurrence. I took the

statement of the complainant again. The complainant supported

the place of occurrence. On inspecting the place of occurrence, I

found that the place of occurrence was located in the

complainant’s in-laws' house in Paramanandpur Mauja. To the

north of the complainant’s house is the house of Lalita Devi, the

co-wife. The complainant’s house has a wooden door. East -

Hari Kishan Shah's house, West Sushil Shah's house, in the

south is Dunilal Shah's house. Witness statement taken.

Statement taken from Sushil Shah, Bhupendra Shah, Surendra

Shah, Vijendra Shah. These people supported the incident in

their statements. This formal FIR is in the handwriting and

signature of SHO Ajay Singh, whom I recognize and which has

been declared as Exhibit 1. The charge-sheet is in my

handwriting and signature, which has been declared as Exhibit

2. The diary is also in my handwriting. PW-6 has stated in his

cross-examination in para-8 that no object related to poisoning

was recovered from the place of incident. No inquiry was made

as to whether the doctor treated him. In para-1 it is stated that

the witnesses have not seen the poisoning taking place but have

seen the treatment being done. It is not written that the beating

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took place in front of me, this fact was told by the plaintiff. In

para-11, it is stated that both the co-wives have separate plots of

land at the place of incident. Both properties have been divided.

13. After the prosecution evidence was closed,

the statement of the appellants were recorded under section 313

of the Cr.P.C in which the appellants have claimed to be

innocent and demanded the trial.

14. Learned counsel for the appellants, at the

outset, submits that the trial Court erred in convicting the

appellants for the charges, in-spite of having no material

available on record, except for the oral evidence of prosecution

witnesses. He next argued that he has falsely been implicated by

the informant in a criminal case. There is vital contradiction in

manner of occurrence and genesis of the case has not been

proved by the complainant. There is not a single eye-witness of

the occurrence to support the prosecution story and there is no

medical report or deposition of doctor has been made before the

trial Court to show that poison was mixed in the food of the

complainant, making the entire case and prosecution story

completely weak and defense cause prejudiced. Learned trial

court had completely failed to appreciate the entire evidence

made by the prosecution during trial by not considering the

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essential ingredients of section 498 (A) IPC. According to

Section 5 of the Hindu Marriage Act, for a marriage to be valid,

neither party should have a living spouse at the time of

marriage. This implies that if the first wife is alive, a marriage

with another woman is not considered valid, and hence, such a

'second wife' cannot maintain a complaint under Section 498A

of the IPC, as it noted that such marriage is null and void in the

eyes of law. In this regard, the Court relied upon the Supreme

Court's ruling in the case of Shivcharan Lal Verma And Anr. vs

State Of Madhya Pradesh reported in 2007 (15) SCC 369

wherein it was held that if the marriage itself is null and void,

then prosecution under Section 498-A IPC against the husband

is not maintainable at the instance of the alleged wife.

“The relationship between such a man

and woman cannot be as husband and

wife. Therefore, proceeding under

Section 498-A I.P.C. is not

maintainable against such a husband

at the instance of a second wife (not

legally wedded),” the Court further

ruled as it held that a second wife

cannot maintain a complaint against

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her Husband.”

This case relates to circumstances as, there is no

direct evidence in proving the prosecution case. No one

seen the occurrence committed by the convicts/appellants. It is

well established rule of law that the circumstantial evidence

which has been brought on record, as discussed, is not sufficient

to come to a conclusion that the appellants have committed the

crime. In case of circumstantial evidence, chain must be

completed to establish the guilt of the accused. Neither any

piece of evidence was collected from the place of occurrence.

The prosecution has failed to establish its case beyond the

shadow of all reasonable doubts and the appellants are entitled

to get the benefits of doubt.

15. On the other hand, learned Additional Public

Prosecutor has vehemently opposed this appeal and submits that

there is direct allegation against the present appellants, for

assaulting the informant. In view of the aforesaid statements and

the evidence on record, learned trial Court has rightly convicted

the appellants and the present appeal should not be entertained.

16. At this stage, I would like to appreciate the

relevant extract of entire evidence led by the prosecution before

the Trial Court.

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17. On the basis of evidences available on record

and after considering the submissions made by the learned

counsel for the respective parties, it appears that PW-2 (Neelam

Devi) is complainant-cum-victim. She has not stated specifically

about date and time of the torturing by the appellants. Moreover,

she is also not able to tell the place of occurrence and it is also

clear that prosecution witnesses has not supported the case of

the prosecution as all the prosecution witnesses are mere

hearsay witnesses. Upon perusal of the F.I.R., it appears that

there is general and omnibus allegation against the appellants

and also appears that no medical examination has been done in

order to prove that poison was given to the 2

nd

wife in her food

as there is no medical report on record corroborating the same.

These inconsistency in the prosecution lacks reliability.

18. Learned trial court had completely failed to

appreciate the entire evidence made by the prosecution during

trial by not considering the essential ingredients of section 498

(A) IPC. According to Section 5 of the Hindu Marriage Act, for

a marriage to be valid, neither party should have a living spouse

at the time of marriage. This implies that if the first wife is alive,

a marriage with another woman is not considered valid and

hence, such a 'second wife' cannot maintain a complaint under

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Section 498A IPC, as it noted that such marriage is null and

void in the eyes of law. In this regard, the Court relied upon the

Supreme Court's ruling in the case of Shivcharan Lal Verma

and Anr. vs State Of Madhya Pradesh(Supra) wherein it was

held that if the marriage itself is null and void, then prosecution

under Section 498-A IPC against the husband is not

maintainable at the instance of the alleged wife. As no one seen

the occurrence committed by the convicts/appellants. It is well

established rule of law that the circumstantial evidence which

has been brought on record, as discussed, is not sufficient to

come to a conclusion that the appellants had committed the

crime.

19. In the present case, it does not appear from

the records that the incriminating evidence was put to the

appellants. Taking into consideration the entire material on

record, it can be constrained that there is no sufficient

corroborating evidence i.e. either oral or documentary to convict

the appellants. Therefore, conviction granted by the trial Court

is not sustainable and is liable to be set aside. Further, the

prosecution has miserably failed to prove the guilt of the

accused/appellants for the charges levelled against him.

20. Hence, the Judgment of conviction and order

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of sentence dated 19.03.2013 passed by the learned Ad-hoc

Additional District and Sessions Judge- I, Madhepura in

Sessions Trial No. 177 (A) of 2007 arising out of Srinagar P.S.

Case No. 01 of 2007 is hereby set aside and the appellants are

acquitted from the charges levelled against them. As the

appellants are on bail, they are discharged from their liability of

bail bonds.

21. Accordingly, this appeal is allowed.

Sunnykr/-

(Ramesh Chand Malviya, J)

AFR/NAFR AFR

CAV DATE N.A

Uploading Date 26.11.2024

Transmission Date 26.11.2024