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2017 DIGILAW 1886 (JHR)

Sahadeo Hembram v. State of Jharkhand

2017-11-06

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Mr. Prakash Jha. learned counsel petitioners and Mrs. Vandana learned A.P.P. for the State. 2. This application is directed against the judgment dated 9.5.2005 passed in Cr. Appeal No. 125/1993/138/2005 by the learned and Additional Sessions Judge. Fast Track Court Jamtara, whereby and where under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate 1st Class. Jamtara on 6.7.1993 in P.C.R. Case No. 239/1990, convicting the petitioners for the offences under Sections 498-A, 379 and 323 of the Indian Penal Code has been affirmed save. and except Section 498-A of the Indian Penal Code from which the petitioner No. 2 had been acquitted-by the learned appellate Court. 3. The allegation leveled in the complaint petition reveals that the complainant was married to the petitioner No. 1 and a son and daughter was born out of the said wedlock. it has been stated that the son had since died and the daughter was married. It is alleged that on 5.4.1989 the petitioner No. 1 brought a women (petitioner No.2) to the house. and the complainant could come to know that the petitioner No. 1 had illegally solemnized marriage with the petitioner No.2. It has been alleged that both the petitioners started torturing the complainant mentally and physically and on 10.12.1989 the accused persons snatched the ornaments of the complainant and drove her out from the house. It has also been alleged that a panchayati. was called but it had no effect on the accused persons and ultimately she filed P.C.R. Case No. 406/89 in which cognizance was taken. It. is alleged that the matter was compromised and the complaint case came to an end. For some time peace prevailed but once again petitioner No. 2 started residing with petitioner No.1 and torture started. It has been alleged that the matter was reported to the Police and a case was also instituted but the petitioner had obtained an order of discharge from the Court of S.D.J.M., Jamtara. Further allegation has been leveled that on 2.9.1990 the petitioner No.1 expressed his willingness to settle the matter and asked the complainant to come to his house. It is alleged that when she went she found the petitioner No. 2 also and both started assaulting the complainant and they had also tried to put night soil in her mouth but somehow she managed to escape. 4. It is alleged that when she went she found the petitioner No. 2 also and both started assaulting the complainant and they had also tried to put night soil in her mouth but somehow she managed to escape. 4. Based on the aforesaid allegations P.C.R. Case No. 239/1990 was instituted in which after inquiry cognizance was taken for the offences punishable under Sections 498-A, 379 and 323 of the Indian Penal Code and after charge was framed trial proceeded. 5. In course of trial four witnesses were examined on behalf of the prosecution. PW 1 Sunil Kumar Mondal has stated that he used to visit village Churka and Mahisakhura This witness has stated that the complainant was married to the petitioner No.1. He has further stated that his house is situated in front of the house of the petitioner No. 1. He has also stated that on 2.9.1990 information was sent by the petitioner No. 1 to the complainant to settle the dispute and information was given that petitioner No. 2 had left the house. He has further stated that the fact was otherwise as when the complainant came both the petitioners had assaulted her by calling her a witch and both tried to put night soil in the mouth of the complainant PW 2 Tui Tudu has stated that he used to visit the house of petitioner No. 1. He has stated that after the complainant was married with the petitioner No.1 she gave birth to one son and a daughter and although the son had died but the daughter was given on marriage. He has stated that the petitioner No. 1 had solemnized marriage with the petitioner No.2 and both the petitioners had started torturing the complainant for which a 'panchayati was also called but since no decision could be taken the complainant had filed a case which was compromised on the assurance that petitioner No. 1 shall not keep petitioner No. 2 with him. He has further stated that after the complainant was brought to her matrimonial house she was again assaulted by both the accused persons and ultimately she was driven out from her matrimonial house. She has further stated that on 2.9.1990 when the complainant was called to settle the matter night soil was tried to be put in her mouth by the accused persons but she however managed to flee away. She has further stated that on 2.9.1990 when the complainant was called to settle the matter night soil was tried to be put in her mouth by the accused persons but she however managed to flee away. PW 3 Sumoni Soren is the complainant who has stated that she was married with the petitioner 20-25 years ago. This witness had supported the case of the petitioner No. 1 solemnizing marriage with the petitioner No.2 and thereafter subjecting her to assault and subsequently being driven out from her matrimonial house. She has further stated that a panchayati was held but the same did not yield any result which led her to file a case which ended in a compromise. She has stated that she was taken back by the petitioner No.1 but after sometime petitioner No.2 came and thereafter she was subjected to assault. She has also stated that again the petitioner No.1 had called her on the assurance that the matter will be settled but both the petitioners abused and assaulted her and had tried to put night soil in her mouth. PW 4 Sumoti Marandi had seen the occurrence with respect to the assault and the attempt made by the accused 'persons to put night soil in the mouth of the complainant. 6. It has been submitted by the o learned counsel for the petitioners that the house of PW 1 is situated in a different village and therefore his claim of being a witness is totally false. It has further been submitted that PW 2 is on inimical terms with the petitioner No.1 as litigations are going on between them and therefore his evidence does not appear to be trustworthy. It has also been submitted that the complainant had earlier filed two cases in which the petitioners were discharged. Learned counsel for the petitioners also submits that the witnesses examined by the prosecution are untrustworthy and are not to be relied upon. 7. Learned A.P.P. for the State has opposed the prayer made by the petitioners. 8. It appears from the evidence of PW 1 that his house is just opposite the house of petitioner No. 1 and therefore he has a competent witness for the prosecution who had supported the prosecution case with respect to the assault and ouster of the complainant from her matrimonial house. 8. It appears from the evidence of PW 1 that his house is just opposite the house of petitioner No. 1 and therefore he has a competent witness for the prosecution who had supported the prosecution case with respect to the assault and ouster of the complainant from her matrimonial house. It also appears that in the earlier complaint case the petitioner was o acquitted on the ground that the same ended in a compromise and in a subsequent complaint the petitioners were discharged even without giving a hearing to the complainant. The evidence of PWs 1, 2, 3 and 4 are cogent, corroborative and consistent and their does not appear to be any discrepancy which would create a doubt with respect to the evidence given by the said witnesses. 9. In view of the aforesaid facts therefore the learned trial Court had rightly convicted the petitioners for the offences under Sections 379 and 323 of the Indian Penal Code apart from Section 498-A of the Indian Penal Code against the petitioner No. 1 as the conviction of the petitioner No.2 under Section 498-A of the Indian Penal Code was set aside by the learned appellate Court. In such view of the matter therefore the judgment passed by the learned appellate Court is, hereby, affirmed. 10. However, with respect to the sentence which has been imposed upon the petitioners it appears that the petitioners are facing the rigors of the prosecution case since the year 1990 and have also remained for some time in custody. 11. Regard being had to the aforesaid facts the sentence imposed upon the petitioners is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in sentence. Application dismissed.