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2017 DIGILAW 1214 (JHR)

Dukhdaman Lohara v. State Of Jharkhand

2017-07-20

RONGON MUKHOPADHYAY

body2017
ORDER Rongon Mukhopadhyay, J. – Heard Mr. A.K. Sahani, learned counsel appearing for the petitioners and Mr. P.K. Appu, 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 18.01.2005 passed by the learned Additional Sessions Judge 1st, Lohardaga in Criminal Appeal No. 17 of 2003 whereby and where-under the judgment and order of conviction and sentence passed by the learned Sub-divisional Judicial Magistrate, Lohardaga in Complaint Case No. 11 of 2000 whereby and where-under the petitioner no. 1 has been convicted for the offence under Sections 498A and 494 of the Indian Penal Code and the petitioner no. 2 has been convicted for the offence under Section 498A of the Indian Penal Code and have been sentenced to various terms have been affirmed. 3. It has been stated by the learned counsel appearing for the petitioners that the complainant after twenty-seven years of marriage had left her matrimonial house without any rhyme or reason and after three years she had filed a complaint case alleging that the petitioner no. 1 had solemnized second marriage with the petitioner no. 2. Learned counsel submits that in fact the complainant had fled away with one Munshi Prasad leaving behind four small children as well as the petitioner no. 1. In the alternative an argument has been advanced by the learned counsel for the petitioners that if this Court is not inclined to interfere in the judgment of conviction passed against the petitioners the period of sentence awarded to the petitioners be modified considering the fact that they are facing the rigors of the prosecution case since the year 2000 and have also remained for a considerable length of time in custody. Learned A.P.P. has opposed the prayer made by the petitioners. 4. The allegation made in the complaint petition is to the effect that the complainant was married with the petitioner no. 1 twenty-seven years back according to tribal customs and rights. It has been stated that after the marriage, she had come to her matrimonial house and was leading a happy conjugal life and out of the said wedlock four children were born to her. It is alleged that after the fourth issue the petitioner no. 1 had started neglecting her and had also physically and mentally tortured her. It has been stated that after the marriage, she had come to her matrimonial house and was leading a happy conjugal life and out of the said wedlock four children were born to her. It is alleged that after the fourth issue the petitioner no. 1 had started neglecting her and had also physically and mentally tortured her. Further allegation has been levelled that the petitioner no. 1, thereafter, had solemnized the second marriage with the petitioner no. 2 and when the complainant had protested about the second marriage the petitioner no. 1 had stopped maintaining her as well as her children and no food and cloth and the basic necessities were provided to her. It is also alleged by the complainant that after four months of the said panchayat at the instigation of the petitioner no. 2, the petitioner no. 1 had again started abusing and assaulting the complainant and since the complainant and her children were starving on account of the treatment meted out to them by the petitioner, the complaint case was instituted by the complainant which was registered as Complaint Case No. C. 11 of 2000. After conducting an enquiry cognizance was taken under Sections 498A and 494 of the Indian Penal Code and after charge was framed trial proceeded. Since the prosecution had been able to prove its case beyond all reasonable doubt the petitioner no. 1 was convicted for the offences punishable under Sections 498A and 494 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. So far as the petitioner no. 2 is concerned, she was convicted under Section 494 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. Against the judgment of conviction and sentence the petitioners preferred an appeal being Criminal Appeal No. 17 of 2003 which however was dismissed by the learned Additional Sessions Judge-1st, Lohardaga on 18.01.2005. 5. It appears that in course of trial four witnesses were examined on behalf of the complainant whereas four witnesses were examined on behalf of the defence. 6. P.W. - 1, Dilmain Devi, is the complainant herself who had stated about the torture committed by the petitioner no. 1 and the subsequent solemnization of a second marriage with the petitioner no. 2 after the birth of four children. 6. P.W. - 1, Dilmain Devi, is the complainant herself who had stated about the torture committed by the petitioner no. 1 and the subsequent solemnization of a second marriage with the petitioner no. 2 after the birth of four children. This witness had also stated about the torture committed upon her which resulted in institution of complaint case. 7. P.W. - 2, Jokhan Oraon, had also supported the second marriage as well as the torture committed upon the complainant. 8. P.W. - 3, Budheshwar Oraon, had also stated on similar line with respect to the torture committed upon the complainant. 9. P.W. - 4, Budhodhan Lohra, had stated about the second marriage solemnized by the petitioner no. 1 with the petitioner no. 2. 10. The defence had examined four witnesses in support of the defence version. 11. It appears that the factum of second marriage had been admitted by the petitioners in their statements recorded under Section 313 Criminal Procedure Code, 1973 although by way of defence which was suggested that since the complainant had left her matrimonial house without any rhyme or reason leaving behind four small children and the petitioner no. 1 in tune with the tribal rights and customs had performed the second marriage but the same had been disbelieved by the learned trial court. The witnesses of the complainant had categorically stated about the solemnization of second marriage by the petitioner no. 1 with the petitioner no. 2 and the torture which has been committed upon the complainant by both the petitioners. Since the prosecution has been able to prove its case beyond all reasonable doubt the petitioners were convicted for the offences punishable under Sections 498A and 494 of the Indian Penal Code which was also affirmed in appeal. 12. There being no reasons to conclude otherwise with respect to the conviction which has been passed against the petitioners the same is, hereby, sustained. 13. However, as regards the sentence it has been stated by the learned counsel appearing for the petitioners that the petitioner no. 1 had remained in custody for a period of about five months and so far as the petitioner no. 2 is concerned, she has remained in custody for a period of about fifteen days. 13. However, as regards the sentence it has been stated by the learned counsel appearing for the petitioners that the petitioner no. 1 had remained in custody for a period of about five months and so far as the petitioner no. 2 is concerned, she has remained in custody for a period of about fifteen days. It appears that the petitioners are facing the rigors of the prosecution case since the year 2000 and both the petitioners by now are quite aged and it would not be practicable to send them to judicial custody to serve out the rest part of the sentence. Accordingly, in view of what has been stated above, the period of sentence awarded to the petitioners is modified to the period already undergone. 14. This application stands dismissed with the aforesaid modification in sentence.