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2017 DIGILAW 1081 (JHR)

Jugal Ram v. State Of Jharkhand

2017-07-10

RONGON MUKHOPADHYAY

body2017
ORDER Rongon Mukhopadhyay, J. (CAV) - Heard Mr. Anurag Kashyap, learned counsel for the petitioner and Mr. V.K. Gupta, learned A.P.P. for the State. No one appears on behalf of the opposite party no. 2. 2. This application is directed against the judgment dated 05.08.2002 passed by the learned Additional Sessions Judge, IInd, Fast Track Court, Giridih in Cr. Appeal no. 51 of 2000 whereby and whereunder the judgment and order of conviction and sentence dated 04.09.2000 passed by the learned Judicial Magistrate, 1st Class, Giridih in Complaint Case No. 318 of 1995 (T.R. No. 243 of 2000) convicting the petitioner for the offences punishable under section 498(A) & 494 of the Indian Penal Code and sentencing him to undergo R.I. for 2 years has been affirmed. 3. A complaint case was instituted by the opposite party no. 2 wherein it was alleged that her marriage was solemnized with the petitioner in the year 1990 according to Hindu rites and customs. She has alleged that she lived peacefully in her matrimonial house for about two and a half years and after that a demand of Rs. 30,000/- and a motorcycle started. On refusal she was subjected to mental and physical torture. It has also been alleged that a Panchayati was held twice and even though her in-laws had undertaken in the Panchayat to keep her properly but on 05.06.1995 she was ousted from her matrimonial house after assaulting her. Further allegation has been levelled that the petitioner had subsequently performed a second marriage. 4. After conducting an inquiry under section 202 of the Cr.P.C., 1973 cognizance was taken under section 498(A) & 494 of the Indian Penal Code and after charge was framed trial proceeded against the accused persons including the petitioner. 5. Altogether five witnesses were examined on behalf of the complainant and two witnesses were examined by the defence. C.W.1 Jataha Thakur has stated that he was a barber who had performed his duties as required during the marriage of the petitioner with the opposite party no. 2. This witness has also stated that the opposite party no. 2 is staying in her parents'' house since long. C.W.2 Moti Ram has also supported the factum of marriage between the petitioner and the opposite party no. 2. This witness has stated that after two and a half years of marriage there was a demand of Rs. 2. This witness has also stated that the opposite party no. 2 is staying in her parents'' house since long. C.W.2 Moti Ram has also supported the factum of marriage between the petitioner and the opposite party no. 2. This witness has stated that after two and a half years of marriage there was a demand of Rs. 30,000/- and a Rajdoot Motorcycle. 6. It has been stated that a Panchayati was held and in the same the in-laws had given an assurance of keeping the opposite party no. 2 properly and not making any dowry demand in future. C.W.3 Karu Ram is the father of the complainant. This witness has given similar statement as that of C.W.2 with respect to demand and holding of a Panchayati. He has further stated that Bhikhan Ram had informed him about the petitioner going to solemnize second marriage. It has further been stated that on going to Jharkhandi Dham he found the marriage of the petitioner had already taken place with the daughter of one Rameshwar Ram. This witness has further stated that his daughter was never assaulted in his presence. C.W.4 Daymanti Devi is the complainant who has stated about the demand of Rs. 30,000/- made by her in-laws and the cruelty she was subjected to by her in-laws. This witness has stated that she did not receive any injury and that her father and grandfather had gone to the place where the marriage of the petitioner and another girl was being sought to be solemnized. C.W.5 Vijay Kumar Rawani is a photographer who had photographed the marriage of opposite party no. 2 with the petitioner. This witness had proved the negatives. The two witnesses who were examined by the defence are D.W.1 Surendra Pandey and D.W.2 Naresh Ram and both these witnesses have stated that they have never heard of any demand of dowry or the petitioner solemnizing second marriage with another lady. 7. After conclusion of the trial, the learned trial court vide judgment dated 04.09.2000 had been pleased to convict the petitioner as well as the other accused persons for the offences punishable under section 498(A) & 494 of the Indian Penal Code and had sentenced them to undergo various terms. 8. 7. After conclusion of the trial, the learned trial court vide judgment dated 04.09.2000 had been pleased to convict the petitioner as well as the other accused persons for the offences punishable under section 498(A) & 494 of the Indian Penal Code and had sentenced them to undergo various terms. 8. The petitioner and others preferred an appeal being Criminal Appeal No. 51 of 2000 in which vide judgment dated 05.08.2002 the learned Additional Sessions Judge, IInd Fast Track Court, Giridih acquitted the other accused persons but affirmed the conviction of the petitioner for the offences punishable under section 498(A) and 494 of the Indian Penal Code. 9. It is the case of the defence that three witnesses were shown in the complaint petition who were never examined and such non-examination of relevant witnesses arrayed by the complainant herself has prove fatal to the prosecution. It is the further case of the defence that the marriage between the petitioner and the complainant was never proved neither there was any proof of the petitioner solemnizing a second marriage. 10. It appears that the complainant has alleged against the petitioner of demanding Rs. 30,000/-. The evidence of the complainant who has been examined as C.W.4 in para 5 and 12 does not disclose as to for what purpose the amount of Rs. 30,000/- was demanded. Merely because there has been a demand of Rs. 30,000/- the same cannot by itself construed to mean that it was a demand of additional dowry. The complainant has further stated that her in-laws used to quarrel with her and has also supported the fact that she had not received any injury. The evidence of the complainant always attains significance in view of the fact that she is generally at the receiving end of the alleged torture meted out. However, in the present case the evidence of C.W.4 does not disclose that there was a demand of dowry from the side of the petitioner which resulted in her being tortured both physically and mentally. With respect to the second marriage solemnized by the petitioner is concerned it appears that the evidence of C.W.3 that it was on the disclosure made by one Bhikhan Ram that they had gone to Jharkhandi Dham and had seen the marriage of the petitioner with the daughter of one Rameshwar Ram. With respect to the second marriage solemnized by the petitioner is concerned it appears that the evidence of C.W.3 that it was on the disclosure made by one Bhikhan Ram that they had gone to Jharkhandi Dham and had seen the marriage of the petitioner with the daughter of one Rameshwar Ram. Surprisingly the complainant had never chosen to examine Bhikhan Ram whose purported disclosure had led to the foundation of the petitioner having been convicted under section 494 of the Indian Penal Code. Although the complainant had stated that her father and grandfather had visited Jharkhandi Dham but it appears that only the father had visited the said place as the grandfather was never examined by the complainant. The evidence of C.W.3 also does not inspire confidence as the same has merely restricted itself to the fact that the purported marriage of the petitioner had already taken place with another lady. The non-examination of Bhikhan Ram has proved fatal to the prosecution with respect to an offence under section 494 of the Indian Penal Code. 11. Such circumstance therefore entitles the petitioner to get the benefit of doubt both under section 498(A) & 494 of the Indian Penal Code. Accordingly, this application is allowed and the impugned judgment dated 04.09.2000 passed by the learned Judicial Magistrate, 1st Class, Giridih in Complaint Case No. 318 of 1995 and the judgment dated 05.08.2002 passed by the learned Additional Sessions Judge, IInd, Fast Track Court, Giridih in Cr. Appeal no. 51 of 2000 are, hereby, set aside. 12. The petitioner is discharged from the liability of his bail bond.