Shivcharan Lal Verma And Anr. vs State Of Madhya Pradesh on 19/2/2002
Supreme Court of India
ORDER
1. This appeal is by the two appellants who have been convicted under
Sections 306 and 498A of the IPC by the learned sessions judge and have been
sentenced to imprisonment for seven years for conviction under Section 306 and
three years for conviction under Section 498A. The prosecution alleged that
during the lifetime of the first wife-Kalindi, Shiv Charan married for the
second time, Mohini, but after marriage both Kalindi and Shiv Charan tortured
Mohini as a result of which she ultimately committed suicide by burning herself.
The incident occurred inside the house of Shiv Charan while Kaiindi and Shiv
Charan were in one room and Mohini was in some other room. The learned sessions
judge on appreciation of evidence of PWs 1, 2 and 3 came to the conclusion that
prosecution has been able to prove both the charges against both Kalindi and
Shiv Charan beyond reasonable doubt and convicted both as already said. On
appeal, the High Court re-appreciated the evidence and affirmed the conviction
and sentence and hence, the present appeal by way of grant of special leave.
2. This matter had not been taken up for hearing for this length of time as
the judgment of this Court holding Section 306 of the IPC to be
unconstitutional, was under re-consideration by the constitution bench. The
constitution bench finally disposed of the matter in criminal case No. 274 of
1984 and batch and set aside the earlier judgment of this Court and held that
Section 306 is constitutionally valid. In view of the aforesaid constitution
bench decision, two questions arise for consideration in this appeal. One,
whether the prosecution under Section 498A can at all be attracted since the
marriage with Mohini itself was null and void, the same having been performed
during the lifetime of Kalindi. Second, whether the conviction under Section 306
could at all be sustained in the absence of any positive material to hold that
Mohini committed suicide because of any positive act on the part of either Shiv
Charan or Kalindi. There may be considerable force in the argument of Mr.
Khanduja, learned counsel for the appellant so far as conviction under Section
498A is concerned, inasmuch as the alleged marriage with Mohini during the
subsistence of valid marriage with Kalindi is null and void. We, therefore, set
aside the conviction and sentence under Section 498A of the IPC. But so far as
the conviction under Section 306 is concerned, the evidence of the three
witnesses already referred to, make it absolutely clear that it is on account of
torture by both Kalindi and Shiv Charan that Mohini committed suicide inside the
house of Shiv Charan in another room. The learned sessions judge as well as the
High Court have appreciated the evidence of the aforesaid three witnesses and on
going through the evidence of these three witnesses, we do not find any error
committed by the courts below either in the matter of appreciation or in their
approach relating to the evidence in question. We, therefore, do not find any
infirmity with the conviction of the appellants under Section 306 of the IPC. So
far as the sentence is concerned, they have been sentenced to undergo rigorous
imprisonment for seven years but having regard to the facts and circumstances of
this case, we reduce the sentence to five years. This appeal is accordingly
disposed of. Bail bonds of the appellants would stand cancelled and they must
surrender to undergo the remaining period of sentence.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 3516 of 2007()
1. BIJU VARGHESE, AGED 38,
... Petitioner
2. CHINNAMMA VARGHESE,
Vs
1. STATE OF KERALA, REP. BY DIRECTOR OF
... Respondent
2. LEENA GEORGE, AGED 30 YEARS,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR) For Respondent
:PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :03/04/2009
O R D E R
M.C.HARI RANI, J.
----------------------------------------------------- CRL.M.C.No.3516 OF
2007
----------------------------------------------------- DATED THIS THE 3rd
DAY OF APRIL, 2009
O R D E R
Petitioners 1 and 2 herein are accused Nos.1 and 2 respectively in
C.C.No.583/2005 pending before the Court of J.F.C.M., Kolencherry. The second
respondent herein filed a private complaint alleging commission of offence
under Section 498A and 506(ii) read with Section 34 of IPC against petitioners
1 and 2 herein. Copy of that complaint is produced as Annexure A3. The learned
Magistrate took cognizance of the same which was filed on 7.8.2004 as
C.M.P.No.8384/04. The same was forwarded under Section 156(3) Cr.P.C. for
investigation. Accordingly, final report was filed after investigation before
the J.F.C.M., Kolencherry for the offence under Section 498A, 506(ii) and 34
of IPC against petitioners 1 and 2 herein and taken on file as C.C.No.583/2005,
which is pending. Copy of the final report in the above case is produced as
Annexure A4. Thereafter, petitioners have filed this petition under Section 482
of Cr.P.C. on 21.11.2007 with the prayer to quash Annexures A3 and A4 and all
further proceedings in C.C.No.583/2005 pending before the above court.
CRL.M.C.No.3516/07 -2-
2. Heard the learned counsel appearing for petitioners. The second
respondent herein who is the defacto complainant has not entered appearance in
spite of service of notice to her.
3. It is submitted by the learned counsel appearing for petitioners that
it is the admitted case that the marriage between the petitioner and the second
respondent was solemnised on 26.8.2002. Subsequently, the first petitioner has
filed O.P.No.1220/05 before the Family Court, Ernakulam with the prayer for a
declaration of nullity of the marriage between the first petitioner and the
second respondent. The second respondent also filed O.P.No.783/2005 for
restitution of conjugal rights. The Family Court, Ernakulam as per common order
dated 19.10.2006 dismissed the petition filed by the second respondent for
restitution of conjugal rights and allowed the petition filed by the first
petitioner for declaration of the marriage as null and void. True copy of that
common order is produced as Annexure A1. Subsequently, the second respondent
challenged that order before this Court and as per judgment dated 14.8.2007 in
Mat.Appeal No.233/07 dismissed the appeal preferred by the second respondent,
whereby Annexure A1 common order has been confirmed. Copy of that order is
produced as Annexure A2. Pending those proceedings, the second respondent
herein filed a private complaint on 7.8.2004 as CRL.M.C.No.3516/07 -3-
revealed from Annexure A3, which is sought to be quashed. It is submitted by
the learned counsel for petitioners that in the light of the decision reported
in Shivcharan Lal Verma and Anr. V. State of Madhya Pradesh (JT 2002(2) SC
641), a valid marriage is a precondition for an offence under Section 498A.
Annexure A2 order in Mat.Appeal No.233/07 has confirmed the order of the Family
Court, Ernakulam as revealed from Annexures A1 and A2. That has become final
and nobody has challenged the same. In the light of the dictum in the above
said decision of the Apex Court and also considering the facts and
circumstances of the present case, the prayer in this petition to quash
Annexures A3 and A4 in so far as it concerns the offence under Section 498A is
not maintainable and further proceedings under that Section against the
petitioners who are accused Nos.1 and 2 respectively in C.C.No.583/2005 is
quashed. The learned Magistrate is directed to proceed further against
petitioners 1 and 2 in respect of the offence alleged against them under
Section 506(ii) read with Section 34 IPC at the earliest.
The Crl.M.C. is disposed of accordingly. M.C.HARI RANI, JUDGE.
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Annulled Marriage does not attract 498a........
Husbands who have filed annulment of marriage & are trapped in a frivolous 498a after they have filed for nullity, the SC judgement & Kerala HC judgement is for their rescue.......
