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Jharkhand High Court · body

2017 DIGILAW 1885 (JHR)

Nimai Pandit v. State of Jharkhand

2017-11-06

RONGON MUKHOPADHYAY

body2017
ORDER : 1. Heard Mr. Rajeeva Sharma, learned senior counsel for the petitioner and Mrs. Vandana Bharti learned A.P.P. for the State. 2. This application is directed against the judgment dated 30.05.2005 passed by the learned Sessions Judge, Pakur in Cr. Appeal No. 35 of 2004, whereby and whereunder the judgment and order of conviction and sentence passed by the learned Chief Judicial Magistrate, Pakur in G.R. Case No. 379 of 2001 (T.R. No. 91 of 2004) on 21.06.2004 convicting the petitioner for the offence punishable under Section 417 of the Indian Penal Code and sentencing him to undergo R.I. for one year has been affirmed. 3. The allegation made in the First Information Report is that on the pretext of solemnizing marriage with the informant the petitioner had established physical relationship with the informant. It is alleged that the informant subsequently became pregnant and the petitioner refused to solemnize marriage with her. It's also alleged that a panchayoli was held but the petitioner did not attend and ultimately Littipara P.S. Case No. 31/2001 was instituted under Section 376 of the Indian Penal Code. On completion of investigation charge-sheet was submitted under Section 376/493 of the Indian Penal Code and after cognizance was taken charge was framed only under Section 417 of the Indian Penal Code and trial proceeded. 4. In course of trial 12 witnesses were examined by the prosecution. PW 1 Kamla Devi is the mother of the informant. She has stated that she was informed about the illicit relationship between the petitioner and the informant by her daughter. She has further stated that a panchayati was held but the petitioner did not attend. She has also disclosed that the petitioner is a married person who has two children. PW 2 Bijolal Pandit is the father of the informant who has stated on similar terms to what has been stated by PW 1. PW 3 Sadanand Pandit has stated that he had come to know about the occurrence from the parents of the informant. He has further disclosed that in the panchayati the accused person did not turn up. He has admitted that the petitioner is a married person. PW 4 Dr. Anita Sinha had examined the informant and found that the informant was carrying a pregnancy of 24-26 weeks'. This witness had proved the medical report which has been marked as Exhibit -1. He has further disclosed that in the panchayati the accused person did not turn up. He has admitted that the petitioner is a married person. PW 4 Dr. Anita Sinha had examined the informant and found that the informant was carrying a pregnancy of 24-26 weeks'. This witness had proved the medical report which has been marked as Exhibit -1. PW 5 Kavita Kumari is the informant who had supported the prosecution case. This witness had stated that the petitioner is a married person having two children. She has further disclosed that she used to visit the house of the petitioner and no one objected. PW 6 Shyam Sunder Pandit has stated that he had come to know about the occurrence from the father of the informant. This witness had admitted that there was a proceeding under Section 144, Cr PC with respect to a land dispute. PW 7 Gour Pandit has stated that he had come to know about the occurrence from the parents of the informant. He has also stated that he is an accused in the murder of the father of the petitioner. PW 8 Bisu Pandit has supported the prosecution case but has stated that his statement was never recorded by the Police. PW 9 Ananto Pandit did not support the prosecution case and he was declared hostile by the prosecution. PW 10 Ganesh Pandit had disclosed that Gour Pandit had told the parents of the informant to implicate the petitioner. He has further deposed that on account of enmity the petitioner has been made an accused. PW 11 Ajay Kumar Tiwary is a formal witness. PW 12 Bhagirath Tiwary is the Investigating Officer of the case who had visited the place of occurrence and had also recorded the statement of the witnesses under Section 161, Cr PC. This witness had sent the victim for medical examination. He has further stated that a panchayati was held after the incident and the father of the petitioner was the sarpanch who was required to take a decision. He has further stated that the father of the petitioner died out of shock. 5. The defence had examined two witnesses in support of its case. DW 1 Shahadeo Pandit has stated that 2 to 3 years prior to 2001 the informant used to work in the house of Laxmikant Pandit and she had become pregnant. He has further stated that the father of the petitioner died out of shock. 5. The defence had examined two witnesses in support of its case. DW 1 Shahadeo Pandit has stated that 2 to 3 years prior to 2001 the informant used to work in the house of Laxmikant Pandit and she had become pregnant. DW 2 Sushil Kewat is a formal witness. 6. It has been submitted by Mr. Rajeeva Sharma, learned senior counsel for the petitioner that no case of cheating is made out against the petitioner as the informant was well aware of the marital status of the petitioner but in spite of the said fact she had consented to establish physical relationship with the petitioner. It has also been submitted that the informant used to work in the house of Laxmikant Pandit who was also an accused in the murder of the father of the petitioner. Learned senior counsel for the petitioner further submits that the evidence of PW 10 categorically reveals that it was at the instance of the PW 7 and other persons that the petitioner was implicated as a retaliation to the fact that PW 7 as well as Laxmikant Pandit along with several other persons were made accused in the murder of the father of the petitioner. It has thus been submitted that these facts have not been properly appreciated by the learned Courts below while convicting the petitioner for the offence under Section 417 of the Indian Penal Code. 7. Learned A.P.P: for the State has opposed the prayer made by the petitioner. 8. The petitioner who was originally charge-sheeted under Section 376 of the Indian Penal Code was subsequently tried for the offence punishable under Section 417 of the Indian Penal Code. The evidence of the informant PW 5 reveals that she was aware of the fact that the petitioner is a married person and is the father of two children. She has also stated about the petitioner giving a promise to leave his first wife and thereafter solemnize marriage with her. It is not in dispute that the informant was a major and she had subjected herself to establishing physical relationship with the petitioner on a regular basis. She has also stated about the petitioner giving a promise to leave his first wife and thereafter solemnize marriage with her. It is not in dispute that the informant was a major and she had subjected herself to establishing physical relationship with the petitioner on a regular basis. The evidence of the witnesses also point to the fact that the informant regularly visited the house of the petitioner and even the parents of the petitioner had never objected or had any inkling that the informant had established physical relationship with the petitioner. There also appears to be some discrepancy with respect to the role of Laxmikant Pandit as DW 1 had stated about the informant working in the house of Laxmikant Pandit, Laxmikant Pandit as well as PW 7 Gour Pandit along with other persons were made accused in the murder of the father of the petitioner. PW 10 Ganesh Pandit had stated about the implication of the petitioner at the instance of Gour Pandit. Even if it is assumed that what has been stated by the informant about the petitioner disclosing that he will marry her after leaving his first wife is correct the same cannot form a basis that there was a deception on the part of the petitioner. The informant being a major lady was very much aware of the fact that the petitioner is a married person having two children and therefore it also cannot be said to be a question of misconception or the fact that consent of establishing physical relationship with the petitioner was under such misconception. Section 415 of the Indian Penal Code defines cheating and the explanation to the said Section reveals that a dishonest concealment of facts is a deception within the meaning of this section. If the informant was not aware of the petitioner being a married person and succumbing to the sexual advances of the petitioner on the pretext of marriage, the same could have been a deception or for that matter a misconception on the part of the informant while agreeing to such act but neither of the said circumstance exists in the facts of the present case as repeatedly the informant had stated about her being in the know of the fact that the petitioner was a married person. The role of Laxmikant Pandit has also not been properly evaluated by the learned Courts below as also the evidence of PW 7 and PW 10 who had stated about the false implication of the petitioner on account of they being made accused in the murder of the father of the petitioner. Thus, the petitioner cannot be convicted for an offence under Section 417 of the Indian Penal Code as neither there was a dishonest concealment of fact nor there was a dishonest intention from the very inception of the establishment of physical relationship between the petitioner and the informant coupled with the enmity existing which cannot rule out the possibility of false implication of the petitioner as could be deciphered from the evidence of PW 7 and PW 10. 9. In such circumstances, therefore, the benefit of doubt must go to the petitioner as the prosecution had failed to prove its case beyond all reasonable doubt so far as the petitioner is concerned. Accordingly in view of what has been stated above, this application is allowed and the impugned judgment dated 30.05.2005 passed by the learned Sessions Judge, Pakur in Cr. Appeal No. 35 of 2004 and the judgment and order of conviction and sentence passed by the learned Chief Judicial Magistrate, Pakur in G.R. Case No. 379 of 2001 (T.R. No. 91 of 2004) on 21.06.2004 are, hereby, set aside. 10. The petitioner is discharged from the liability of his bail bond. Application allowed.