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Jharkhand High Court · body

2010 DIGILAW 106 (JHR)

Raju Mahto v. State of Jharkhand

2010-01-19

PRADEEP KUMAR

body2010
JUDGMENT (1) HEARD the learned counsel for the appellants and learned counsel for the state. (2) THE instant appeal is directed against the judgment of conviction and sentence dated 7th February, 2007 passed by Sri C. P. Asthana, 6th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 195 of 2005 by which judgment he found all the appellants guilty u/S. 498 A of the I.P.C. and sentenced appellant No. 1 and appellant No. 2 i.e. Raju Mahto and Rooplal Mahto R.I. for 2 years and to pay a fine of Rs. 2500/- and in default to undergo R.I. for 6 months. Further appellant No. 3 and appellant No. 4 have been sentenced to undergo R.I. for 1 year and to pay a fine of Rs. 2000/- and on default to undergo S.I. for 3 months. It is submitted by learned counsel for the appellants that the informant, Budhani Devi -P.W. 3 is not a legally wedded wife of appellant No. 1, Raju Mahto and as such his conviction and that of his family members is bad in law and fit to be set aside. He has further submitted that the prosecution has failed to prove any demand of dowry or any money was paid, hence the conviction in absence of any such evidence is bad in law and fit to be set aside. It has also been argued by learned counsel for the appellants that the charge u/ S. 313 of the I.P.C. was made against the appellants that they caused miscarriage and abortion of the victim-informant, but they failed to prove the same and appellants were acquitted from the said charge and on that count also the conviction is bad in law and fit to be set aside. (3) ON the other hand, learned counsel for the state has submitted that the prosecution has been able to prove the fact that informant is the legally wedded wife of the appellant No. 1 and after marriage she was tortured by the appellant and his family members. In that view of the matter, the conviction passed by trial Court requires no interference of this Court. (4) AFTER hearing the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the complaint filed by Budhani Devi against the appellants-accused, Raju Mahto,. husband of the informant, Rooplal Mahto, Lalwa Mahto and Most. (4) AFTER hearing the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the complaint filed by Budhani Devi against the appellants-accused, Raju Mahto,. husband of the informant, Rooplal Mahto, Lalwa Mahto and Most. Phulwa and others. She has stated in the complaint that she was married with the accused No. 1, Raju Mahto in 'Baishak' 1994 and they lived happily for 1? years and thereafter, accused Nos. 1 to 4 demanded Rs. 25,000/- for purchasing Hero Honda, motorcycle. Her father was forcibly called to her sasural and demand was made, to him. Her father gave Rs. 5000/- to them with a promise to give the balance amount after few months. But, when he failed to make the payment, accused Nos. 1 to 4 started torturing her and on 4-9-1996, she (complain-, ant) began vomiting and accused/appellant came to know that she is pregnant. Thereafter, they made plea for her abortion and at midnight they arrived near her bed and gave her some medicine by force. She started getting pain, thereafter, bleeding started and she become unconscious. Accused No. 2 informed her father, who came to her sasural and seeing her condition took her to a lady doctor. She was further checked by Dr. Uma Sinha. Then her husband was called by the Doctor and after taking his signature abortion was done. The abortion was done in presence of accused Nos. 1 to 4. It is alleged that the fee of the treatment was given by her father. Thereafter, they left the hospital, but her husband and family members took no care about her health in the hospital and without bothering about her health, they solemnized the second marriage of her husband, Raju Mahto with one Laxmi Devi. Then the complainant filed the case before police. Since, no action was taken, she filed this complaint. After inquiry, Magistrate took cognizance of the case u/S. 498A as also u/S. 313 of the I.P.C. Since, the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and subsequently the case was tried by learned Additional Judicial Commissioner, 6th, Ra'nchi who found the appellants guilty u/S. 498A I.P.C. and acquitted them u/S. 313 of the I.P.C. (5) IN course of trial, the prosecution has examined as many as six witnesses. P.W. 1 is Arjun Sahu P.W. 2 is Karmu Mahto P.W. 3 is Budhani Devi, informant P.W. 4 is Dr. Uma Sinha P.W. 5 is Rahunath Mahto P.W. 6 is Bandhan Kumar Sahu (6) THE complainant-informant examined as P.W. 3 has supported her case and stated that she was married to the appellant No. 1, Raju Mahto in 'Baishak' about 12 years back and after 1? years, the appellant started demanding Rs. 25,000/- for purchasing a Hero Honda Motorcycle. She stated that her father is a poor man. When her father came and gave Rs. 5000/- after selling a 'Kara' and stated that he will make arrangement of rest Rs. 20,000/-, but when the said amount was not given, they started torturing her. Subsequently, she became pregnant, then for causing abortion forcibly medicine was given to her. When her condition became critical she started weeping, since bleeding started from her private part. After that she was taken to Dr. Uma Sinha and with the consent of her husband abortion was done. Subsequently, her father, after payment of hospital charges, took her to his house, but in the meanwhile, the appellants got the second marriage of appellant, Raju Mahto done with one Laxmi Devi. It is matter to note that the main allegation in her complaint is that she stated in examination-in-chief in Court that she was firstly demanded dowry and father failed to fulfil the demand, they started torturing. But, it appears that there is no allegation as to what torture was exactly done. THE main allegation of torture is that she suddenly became pregnant and accused persons in order to torture her forcibly gave medicine for abortion. In that view of the matter, it is important to go through the evidences of P.W. 4, the Dr. Uma Sinha. P.W. 4 has stated that she examined the victim, Budhani Devi on 19-4-1996 who was suffering from he pain of abdomen and lump in the left side. She was prescribed medicine and sent for ultra sonography by her prescription dated 19-4-1996. THEreafter, her abdomen was operated and the lump was removed. She was also referred to Dr. B.N.S. Bhonsle for diagnosis who diagnosed her ailment as fortibi. She, very clearly, stated at para 4 that Budhani Devi was not found pregnant. She stated in her cross-examination that fortibi means a pregnency outside the uterus and it is called extra uterio gestation. THEreafter, her abdomen was operated and the lump was removed. She was also referred to Dr. B.N.S. Bhonsle for diagnosis who diagnosed her ailment as fortibi. She, very clearly, stated at para 4 that Budhani Devi was not found pregnant. She stated in her cross-examination that fortibi means a pregnency outside the uterus and it is called extra uterio gestation. She stated that there was no pregnancy in that lump. THE patient was also found suffering from tuberculosis discharge. In that view of the matter, the trial Court rightly refused that the allegation of elimination of pregnancy is not sustainable and acquitted all the appellants from the charges. So, the major allegation of torture does not exist now. Now the only allegation is the demand of motorcycle and Rs. 25,000/- for that. The other witnesses with regard to the demand of dowry is P.W. 2, father of the victim, who stated in Court that his daughter was married with the appellant No. 1, Raju Mahto for about 4 years back and after marriage, she lived happily with her husband for 2Vi years. Then Raju Mahto demanded Rs. 25,000/- for purchase of Hero Honda Motorcycle. Then he gave Rs. 5000/- by selling a 'Kara' and when the balance amount was not paid, Raju Mahto, Rooplal Mahto, her sasur and other family members forcibly gave medicine for abortion to his daughter. Other witnesses are all hearsay witnesses. (7) THUS, it is clear from the evidences of the two witnesses, especially the father that the demand of motorcycle and Rs. 25,000/- was made only by the accused No. 1, Raju Mahto and as per the statement of P.W. 2, the only torture that they give medicine for abortion which has not been found true by the Court below by the doctor. (8) IN that view of the matter, the conviction of appellant Nos. 2, 3 and 4 namely Rooplal Mahto, Most. Phulwa and Lalwa Mahto has not been proved beyond reasonable doubts by the prosecution and accordingly, they are acquitted from the charges made against them u/S. 498 A of the I.P.C. and their conviction and sentence passed by the trial Court vide impugned judgment dated 8- 12-2007 in S.T. No. 195 of 2005 is set I aside. However, the conviction of the appellant No. 1, Raju Mahto has been proved beyond reasonable doubt by the evidence of victim P. W. 3, P.Ws. However, the conviction of the appellant No. 1, Raju Mahto has been proved beyond reasonable doubt by the evidence of victim P. W. 3, P.Ws. 1, 2 and 5 and 6 that he was demanding Rs. 25,000/- for purchasing motorcycle and when the same was not given, he left his wife in the hospital and while she was in hospital, he conducted second marriage. In that view of the matter, his conviction and sentence is maintained. However, the sentence of 2 years R.I. seems to be excessive. It appears from the record that the appellant No. 1, Raju Mahto has remained in custody for about 3 months i.e. from 20- 9- 2000 to 16-11-2000. In that view of the matter, the substantive punishment of 2 years is altered to the period already undergone by him during trial. Further, the fine amount of Rs. 2500/- imposed by the trial Court is enhanced to Rs. 6000/- and if, Rs. 6000/- is paid, Rs. 5000/- will be given to the complainant, Budhani Devi and in default of payment, the appellant No. 1, Raju Mahto will further undergo S.I. for one year. (9) IT appears that the appellant No. 1, Raju Mahto is on bail. Hence, his bail bond is cancelled and the trial Court is directed to issue warrant of arrest against him for serving out the sentence. Since, appellant Nos. 2, 3, and 4 are also on bail, they are directed to be released from the bondage of their bail. (10) ACCORDINGLY, the appeal is allowed in part with alteration in the order of sentence. Appeal partly allowed.