Prosecution must establish guilt beyond reasonable doubt; second marriage void if first spouse is alive, making IPC Section 498(A) prosecution unsustainable.

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. 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 seco