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2025 DIGILAW 334 (PAT)

Nathan Sah S/o Late Chichai Sah v. State Of Bihar

2025-03-25

RAMESH CHAND MALVIYA

body2025
JUDGMENT : RAMESH CHAND MALVIYA, J. Heard Mr. Amarnath Jha, learned counsel for the appellants and Ms. Anita Kumari Singh, learned APP for 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 of 2007 arising out of Srinagar P.S. Case No. 01 of 2007, instituted for an offence punishable under Sections 323 and 498(A) of the Indian Penal Code (hereinafter referred as ‘IPC’) whereby and where under the appellant has been sentenced to undergo simple imprisonment for three months for the offence punishable under Section 323 of IPC while for the offence punishable under Section 498(A) of the IPC, he is sentenced to undergo simple imprisonment for two years along with a fine of Rs. 2000/- and for default of payment, he will have to undergo further imprisonment of one month with a direction that all sentence shall run concurrently. 3. The brief facts leading to the filing of the present appeal is that on 02.11.2006, one Neelam Devi filed a 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 IPC. As per the aforesaid F.I.R. the facts of prosecution story in short is that the informant was married to Nathan Sah (appellant) who brought her to Sasural wherein she came to know that her husband was earlier married to one Lalita Devi. However, the informant started living as his wife. After 5 years, her husband started assaulting and torturing her and 2 years ago he tried to oust her. On intervention of the people, she started living separately. On 05.11.2006 after taking bath when she came out she saw that the accused/appellant was coming out of her house. However, she took her meal and thereafter she got unconscious and then she realized that poison was mixed up in the meal. On intervention of the people, she started living separately. On 05.11.2006 after taking bath when she came out she saw that the accused/appellant was coming out of her house. However, she took her meal and thereafter she got unconscious and then she realized that poison was mixed up in the meal. She went to her maike and filed a complaint petition which was subsequently converted into F.I.R. as aforesaid. 4. After completion of investigation, Charge Sheet No. 33 of 2007 against Nathan Sah was submitted for the offence under Sections 328 and 498(A) of the IPC 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 IPC. 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 04.06.2007 and Sessions Trial No. 177 of 2007 commenced against the present appellants while Sessions Trial No. 177 of 2007 commenced against Nathan Sah. On 23.06.2007 charge was framed against accused for the offence under Sections 323, 498 (A), 120 (B) and 328 of the IPC. 5. The prosecution examined altogether 7 witnesses in this case to substantiate the charges against the appellant, out of them PW-1 Surendra Sah, PW-2 Sushil Kr Sah, PW-3 Bhupendra Sah, PW-4 Dunni lal Sah and PW-5 Brahnadeo Mandal, PW-6 Nilam Devi (informant) and PW-7 Randhir Singh (IO) were examined. 6. PW-1 Surendra Shah stated in his examination-in-chief that he knew the informant Neelam Devi to be the second wife of Nathan Shah (accused/appellant). They were married for 15-16 years and had 3 sons. After marriage and after the birth of their sons, Nathan Shah started torturing Neelam Devi. He used to beat her regularly. About two and a half years ago, Nathan Shah's first wife Lalita Devi and her son Direndra together mixed poison in the food of Nathan Shah's second wife, with the intention of killing her. He further stated that when he reached the place of occurrence Neelam Devi said that someone had poisoned the daal which she had to eat. He further stated that there were many people who had come to the house with him. 6.i. PW-1 stated in Para-5 of his cross-examination that when he reached the place of occurrence, the informant Neelam Devi was slightly unconscious. He further stated that there were many people who had come to the house with him. 6.i. PW-1 stated in Para-5 of his cross-examination that when he reached the place of occurrence, the informant Neelam Devi was slightly unconscious. She stated that ‘My body is spinning. I suspect that someone has given me poison.’ She spoke the names of the accused Nathan Sah's wife and one of their sons. She was made to vomit by giving her dung and curd. In Para-6, PW-1 stated that the informant’s child had eaten the food earlier. PW-1 further stated that he did not know who gave first aid to Neelam Devi. In Para-8 he stated that later when after gaining consciousness Neelam Devi went to the police station. He further stated that at the time when he reached the place of occurrence, only one son of the informant was present there. 7. PW-2, Sushil Kumar Shah stated in his examination-in-chief that the informant Neelam Devi is the second wife of accused/appellant Nathan Shah. He stated that about 15-16 months back Neelam Devi was beaten up and poison was given in her food. PW-2 stated that he did not know who gave the poison. He further stated that when he reached the place of occurrence at around 4 o'clock, Neelam Devi's son said that Nathan Shah had mixed poison in the food. 7.i. In Para-4 of his cross-examination, PW-2 stated that Neelam Devi’s 3 sons and daughter were also present at the time of the incident. In Para-5 of the cross-examination he stated that no doctor came for Neelam Devi's treatment and that her son Ashish gave her curd mixed in milk. After recovering from that she went to the police station. 8 . PW-3 Bhupendra Shah stated in his examination-in-chief that he knew Neelam Devi, she was Nathan's second wife. He stated that about 15-16 months ago Neelam Devi went to take bath after preparing rice and Nathan, Lalita Devi and their son Dhananjay mixed poison in the rice. He stated that Neelam Devi started vomiting after eating the rice. He further stated that her son mixed cow dung and curd and gave it to her following which Neelam Devi regained consciousness. He further stated that many people gathered on hearing the noise. Anil Shah, Dunni Lal Shah, Bindeshwari Shah etc. came. He stated that Neelam Devi started vomiting after eating the rice. He further stated that her son mixed cow dung and curd and gave it to her following which Neelam Devi regained consciousness. He further stated that many people gathered on hearing the noise. Anil Shah, Dunni Lal Shah, Bindeshwari Shah etc. came. PW-3 further stated that the informant Neelam Devi told him about the incident that when she went to take bath, poison was mixed in the rice. 8.i. In Para-3 of his cross-examination, PW-3 stated that when he reached the place of incident, Neelam Devi was slightly conscious. He further stated that the Chowkidar was informed and then Neelam Devi went with him and her son to the police station. 9. PW-4 Dunni Lal Sah has said in his evidence examination that he knew Neelam Devi. He stated that he did not know anything about the incident that happened with Neelam. This witness was declared hostile by the prosecution. 10. PW-5 Brahmadev Mandal stated in his examination-in-chief that he knew the then station in-charge of Srinagar police station Ajay Kumar Singh. He stated that the formal FIR is in his handwriting and signature, which he recognizes. Formal FIR exhibit 1 has been marked. PW-5 stated in his cross-examination that the formal FIR was not written in his presence and he did not know the contents of the FIR. 11. PW-6 Neelam Devi, who is the informant has stated in her examination-in-chief that the incident is of 4-5 years back. The accused/appellant is the husband and Lalita Devi is the first wife of her husband. Dhirendra Shah is the elder son of her husband and his first wife. She further stated that all of them beat her up. She stated that they threw her out of the house and abused and beat her. On the date of occurrence, when she returned after taking a bath she saw all three of them leaving her house. She stated that after eating she went to sleep and then she started feeling anxious and went into an unconscious state. She further stated that many people came to her house, on hearing the ruckus, Bhupendra, Rajendra, Surendra, etc. came. They came and treated her at home. She stated that she was made to vomit after which she got better. She stated that after eating she went to sleep and then she started feeling anxious and went into an unconscious state. She further stated that many people came to her house, on hearing the ruckus, Bhupendra, Rajendra, Surendra, etc. came. They came and treated her at home. She stated that she was made to vomit after which she got better. In Para-4 of her examination-in-chief she stated that she was aware of her husband’s first marriage with Lalita Devi. 11.i. In her cross-examination, PW-6 stated that she had cooked food and gone to take a bath. She further stated that neither her daughter nor her son was there. She stated that her child had gone to school. In Para-10 she stated that when she regained consciousness she saw 4-5 people were there. She further stated that the day after the poisoning was done, she went to Madhepura. She stated that she did not go to the hospital and neither did the doctor come to treat her. 12. PW-7 Randhir Singh is the IO in the present case. He stated in his examination-in-chief said that on 04.01.2007 he was working as Sub Inspector in Srinagar Police Station. He stated that after taking over the investigation, he went to the place of incident and took the statement of the informant again. The informant supported the incident. He stated that the place of incident was situated in Parmanandpur Maujame in the in-laws house of the informant. To the north of the house of the informant is the house of Lalita Devi. There was a wooden door in the house of the informant. To the east was the house of Hari Kinchan Sah, to the west was the house of Suratil Sah, Basbitai and to the south was the house of Dunnilal Sah. He further stated that he took the statements of Sushil Sah, Bhupendra Sah, Surendra Sah, Vijendra Sah and that these people supported the incident in their statements. 12.i. In Para-1 of his cross-examination, PW-7 stated that no item related to poisoning was recovered from the place of incident. He further stated that no inquiry was made as to whether the victim was treated by a doctor. In Para-10 he stated that the none of the witnesses saw the poisoning being done but many saw the treatment being done. He further stated that no inquiry was made as to whether the victim was treated by a doctor. In Para-10 he stated that the none of the witnesses saw the poisoning being done but many saw the treatment being done. He further stated as far as beating and torture was concerned, no one did that in front of him. 13. On behalf of the defence, three witnesses have been produced namely, DW-1 Mahendra Shah, DW-2 Gulabchand Shah and DW-3 Bindeshwari Sah. 14. DW-1 Mahendra Shah is the father of the accused/appellant and he stated in his examination-in-chief that Nathan Shah had two wives Lalita and Neelam. He stated that the land had been divided between the two wives and both had separate houses. He further stated that the accused/appellant Nathan, along with his first wife and their son did not try to feed any kind of poison to the informant. He further stated that at that time Nathan was the one who was taking care of Neelam. 15. DW-2 Gulabchand Shah stated in his examination-in-chief that Neelam had filed a case against Nathan. He further stated that there was no dispute between Nathan and Neelam. He further stated that Nathan had a son and a daughter from Neelam. Nathan had divided the land among both the wives. He had given 5 bigha to both. He further stated that Neelam's statement that Nathan and his first wife had poisoned her is wrong. He stated that the case has been filed at the instigation of others and that Neelam had filed a false case. 16. DW-3 Bindeshwari Sah stated in his examination-in-chief that he knew Nathan Shah and other accused. He stated that the informant’s allegation that Nathan had given poison is false. He further stated that Neelam had not been tortured in any way. 17. Learned counsel for the appellant, at the outset, submits that the trial Court erred in convicting the appellant for the charges, in-spite of having no material available on record, except for the oral evidence of prosecution witnesses. He next argued that the appellant has falsely been implicated by the informant in a criminal case. He submitted that there are material inconsistencies in the deposition of the prosecution witness. He next argued that the appellant has falsely been implicated by the informant in a criminal case. He submitted that there are material inconsistencies in the deposition of the prosecution witness. He further submitted that there are no eye- witness to the occurrence in the instant case to support the prosecution story and there is no medical report or deposition of doctor 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. Learned counsel further submitted that the offence under Section 498A is not made out as the necessary ingredients of the offence are not fulfilled. He further submitted that the act of the appellant beating the informant did not constitute an offence under Section 498A IPC. For this, the counsel relied on the decision of the Apex Court in the case of Digambar and Anr. v. State of Maharashtra 2024 INSC 1019 where it was held that it was clear that ‘cruelty’ is not enough to constitute the offence. It must be done with the intention to cause grave injury or drive the victim to commit suicide or inflict grave injury to herself. The Apex Court held: “In our view, only stating that cruelty has been committed by the appellants herein due to some reason, would not amount to the offence under Section 498-A of IPC being attracted.” 17.i. Learned counsel further submitted that 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 counsel 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. 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).” 17.ii. Learned counsel for the appellant further submits that this case relates to circumstances as there is no direct evidence in proving the prosecution case. He submitted that since no one had seen the occurrence being committed by the appellant it was necessary for the prosecution to establish the entire chain of circumstances which pointed to the guilt of the accused. He further submitted that no piece of evidence was collected from the place of occurrence. The prosecution had failed to establish its case beyond the shadow of all reasonable doubts and thus the appellant is entitled to get the benefit of doubt. 18. On the other hand, learned Additional Public Prosecutor has vehemently opposed this appeal and submitted that there is direct allegation against the present appellant, 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. 19. At this stage, I would like to appreciate the relevant extract of entire evidence led by the prosecution before the Trial Court. 20. 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-6 (Neelam Devi) is complainant-cum-victim. At the outset, the allegations raised by the complainant in the FIR will have to be examined to find out whether the allegations, when taken at their face value, would constitute any offence or make out a case against the appellant under Sections 498-A IPC. The said provision reads as follows: “498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said provision reads as follows: “498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, "cruelty” means— (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 21. The ingredients for an offence to be made out under Section 498-A of IPC require that there has to be cruelty inflicted against the victim which either drives her to commit suicide or cause grave injury to herself or lead to such conduct that would cause grave injury or danger to life, limb or health. The second part of this Section refers to harassment with a view to satisfy an unlawful demand for any property or valuable security raised by the husband or his relatives. In the present case, no allegations which would fulfill the requirement of the aforementioned Section are found. 22. It is further observed that the learned trial Court has 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 Section 498A IPC, as it noted that such marriage is null and void in the eyes of law. In this regard, the decision of the Apex court in Shivcharan Lal Verma and Anr. In this regard, the decision of the Apex court in Shivcharan Lal Verma and Anr. vs State Of Madhya Pradesh (supra) applies 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 statement of the informant in her deposition clearly shows that she knew at the time of her marriage that her husband (accused/appellant) was already married to another woman. Thus, it is clear that she was not a legally-wedded wife of the accused/appellant. 23. Upon perusal of the F.I.R., it appears that there is general and omnibus allegation against the accused/appellant and it also appears that appellant/accused already acquitted from the charge framed under Section 328 of the Indian Penal Code. All of this points to the fact that the prosecution case lacks reliability. It has also been observed that since there are no eye-witnesses to the occurrence, the circumstantial evidence which could prove the guilt of the appellant/accused is also not established. The I.O. did an inspection of the place of occurrence but did not find any incriminating evidence. Further, as per the statements of the prosecution witnesses the informant and the other wife of the accused lived in separate houses, however, the prosecution has not brought on record what the accused, his first wife Lalita and their son were doing in the informant’s house. These inconsistency in the prosecution lacks reliability. 24. Taking into consideration the entire material on record, it can be concluded that there is no sufficient corroborating evidence i.e., either oral or documentary to convict the appellant. In the absence of conclusive evidence the conviction awarded 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. 25. Hence, 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 of 2007 arising out of Srinagar P.S. Case No. 01 of 2007 is hereby set aside and the appellant is acquitted from the charges levelled against him. As the appellant is on bail, he is discharged from the liability of bail bonds. 26. Accordingly, this appeal is allowed.