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2017 DIGILAW 1170 (JHR)

Ramautar Mahto v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. - Heard learned counsel appearing for the petitioner and learned A.P.P. for the State. 2. This criminal revision application is directed against the judgment dated 29.05.2001, passed in Criminal Appeal No. 172 of 1989 by learned 3rd Additional Sessions Judge, Palamau at Daltongang, whereby and where under the judgment of conviction and the order of sentence dated 27.06.1989 passed by learned Judicial Magistrate, 1st Class, Daltonganj, in Complaint Case No. 305 of 1985, convicting the petitioner for the offence punishable under Sections 494 and 323 of the Indian Penal Cod and sentencing him to undergo rigorous imprisonment for one year and three months respectively, has been affirmed. 3. A complaint case was filed by the complainant wherein it was alleged that the complainant had solemnized marriage with the petitioner in the year 1972. Pursuant to the said marriage, the complainant had given birth to a daughter. It is alleged that after three years of her marriage, she was driven out from her matrimonial house. Subsequently, the petitioner is alleged to have solemnized a second marriage in the year 1983. 4. Based on the aforesaid allegation, a Complaint Case No. 305 of 1985 was instituted, in which after conducting enquiry, cognizance was taken for the offences punishable under Sections 494 and 323 of the Indian Penal Code. After the charge was framed, trial proceeded. 5. In course of trial, the prosecution has examined as many as eleven witnesses in support of its case. P.W.1 is Maldeo Mahto has stated that the marriage of the complainant with the petitioner was solemnized 14 years back. He has stated that a daughter was also born. He has further stated that the complainant is residing in her father''s house and the petitioner had subsequently solemnized second marriage with the daughter of Arjun Mahto. P.W.2-Paru Thakur is a Barber. However, he has not participated in the second marriage of the petitioner. P.W.3-Nathuni Mahto although was examined but since he did not turn up for his cross-examination, his evidence has not been considered. P.W.4-Nanhu Mahto, is the father of the complainant, who has stated that the marriage of his daughter was solemnized with the petitioner about 16 years back and out of the said wedlock, a daughter was also born. He has deposed that the complainant was assaulted by the petitioner and driven out of her matrimonial house. P.W.4-Nanhu Mahto, is the father of the complainant, who has stated that the marriage of his daughter was solemnized with the petitioner about 16 years back and out of the said wedlock, a daughter was also born. He has deposed that the complainant was assaulted by the petitioner and driven out of her matrimonial house. He has further deposed that the petitioner had married for the second time with one Srimati Devi. This witness has also stated that his daughter had gone to her matrimonial home, but had been driven out and since thereafter, the complainant is staying in his house. P.W.5-Badan Mahto has also stated about torture and second marriage solemnized by the petitioner. P.W.6-Bigan Mahto, although was examined but since he did not turn up for cross-examination, his evidence was not considered. P.W.7-Radha Devi is the complainant herself, who has stated that she was married with the petitioner sixteen years back. It has been stated that the petitioner had sent her to her parental house and she went to her matrimonial house from time to time. She has further deposed that she was driven out from her matrimonial house. The petitioner had subsequently, solemnized marriage with Srimati Devi, the daughter of Arjun Mahto. This witness has also stated that she had gone to her matrimonial house after the marriage but she was driven out. P.W.8-Deolal Pathak is a Priest, who had solemnized the marriage of the petitioner and the complainant. P.W.9-Doman Thakur was an Assistant Clerk in the Registry Office, Daltonganj, who had proved the certified copy of the deed of gift executed by Prasad Mahto, in favour of second wife of the petitioner. P.W.10-Lalmani Ram is a typist and a formal witness. P.W.11-Sobhan Mahto is a farmer, who has stated that he had witnessed the marriage of the petitioner with the complainant. 6. It has been stated by learned counsel for the petitioner that although all the witnesses are interested witnesses, but no witnesses have come forward from which it could gathered that the petitioner had already solemnized second marriage with one Srimati Devi. It has been stated that since the prosecution had failed to prove its case, regarding second marriage of the petitioner, the benefit of doubt has to go to the petitioner. 7. Learned Addl. P.P. has opposed the prayer made by learned counsel for the petitioner. 8. It has been stated that since the prosecution had failed to prove its case, regarding second marriage of the petitioner, the benefit of doubt has to go to the petitioner. 7. Learned Addl. P.P. has opposed the prayer made by learned counsel for the petitioner. 8. It appears that the evidence of P.W.7 (complainant) has been corroborated by the evidences of P.Ws. 1, 4 & 5, who all have stated about the complainant having been driven out from her matrimonial house and the petitioner having subsequently solemnized second marriage with one Srimati Devi, the daughter of Arjun Mahto. The story of assault has also been substantiated by the evidence of P.W.4-Nanhu Mahto, father of the complainant, as well as the complainant herself. The defence could not register any contradiction from the witnesses, so as to disbelieve the allegation levelled by the complainant. 9. In the circumstances, therefore, the learned trial court had rightly convicted the petitioner for the offence under Sections 494 and 323 of the Indian Penal Code, which was subsequently affirmed in appeal. 10. There being no reason to conclude otherwise the judgment of conviction passed by the learned trial court and affirmed by the learned Sessions Judge in appeal, is hereby sustained. 11. However, with respect to the sentence, which has been imposed upon the petitioner, it appears that the petitioner is facing rigours of the prosecution case since 1985 and has also for sometimes remained in custody. Considering the above, the period of sentence imposed upon the petitioner, is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.