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2018 DIGILAW 1273 (JHR)

Nitai Pal v. State Of Jharkhand

2018-06-19

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J – Heard Mr. Indu Shekhar Gupta, learned counsel, appearing for the petitioner and Mr. Rajnish Vardhan, learned APP for the State. No one appears for the opposite party No. 2 in spite of valid service of notice. 2. This application is directed against the judgment dated 21.05.2008 passed by learned Sessions Judge, Dumka in Cr. Appeal No. 83 of 2006, whereby and whereunder, the judgment of conviction and the order of sentence dated 31.07.2006 passed by learned Sub Divisional Judicial Magistrate, Dumka in G.R. Case No. 526 of 2003 (T.R. No. 1257 of 2006), convicting the petitioner for the offences punishable u/s 498A of the Indian Penal Code and sentencing him to R.I. for 02 years, has been affirmed. 3. The prosecution story in brief is that the informant was married with the petitioner 07 years back. It has been alleged that they did not have any issue and for that reason the informant was subjected to torture. It has been alleged that a Panchayati was held but the petitioner did not attend and ultimately the informant was compelled to stay in her parents'' house. Based on the aforesaid allegation G.R. Case No. 526 of 2003 was instituted in which after investigation charge-sheet was submitted and after cognizance was taken, charge was framed u/s 498A I.P.C. to which the petitioner pleaded not guilty and claimed to be tried. 4. In course of trial 07 witnesses were examined on behalf of the prosecution. P.W. 1 Anil Pal has stated that the informant had lived happily for about one year after her marriage. He has deposed that the petitioner has got illicit relationship with his sister-in-law Aloka Bala Dasi and both started torturing the informant and a demand of Rs. 25, 000/- was also made. This witness claims to have seen the assault upon the informant on one occasion. He has also stated that the petitioner did not attend the Panchyati. This witness happens to be cousin brother of the petitioner. P.W. 2 Anand Pal also claims himself to be present once when the informant was assaulted by the petitioner. This witness has stated on similar terms to what has been stated by P.W. 1. P.W. 3 Pradeep Dutta has stated about the illicit relationship existing between the petitioner and his sister-in-law. P.W. 2 Anand Pal also claims himself to be present once when the informant was assaulted by the petitioner. This witness has stated on similar terms to what has been stated by P.W. 1. P.W. 3 Pradeep Dutta has stated about the illicit relationship existing between the petitioner and his sister-in-law. This witness was also a witness to the Panchayati which was held but the petitioner had not attended the same. P.W. 4, Shambhu Das had deposed about the marriage as also the torture committed upon the informant due to the couple not having any issue. This witness had also taken part in the Panchayati. P.W. 5 Srinath Pal has also supported the prosecution case. P.W. 6 Mithila Bala Dasi is the informant who has stated that her marriage was solemnized with the petitioner but since they did not have any issue, she was subjected to torture by the petitioner. She has further stated that a Panchayati was held but the petitioner did not attend. This witness has supported the allegation levelled by her in the Fardbeyan and her testimony could not be demolished in course of cross-examination. P.W. 7 Sripal Ram is the Investigating Officer, who had recorded the statement of the witnesses, visited the place of occurrence and since allegations were found to be true, had submitted charge-sheet against the petitioner. 5. The defence had examined two witnesses in support of its case and both have stated that the informant was not the legally married wife of the petitioner. 6. Learned counsel for the petitioner had stated that in a proceeding instituted by the informant u/s 125 Cr.P.C., the same was dismissed on account of the fact that the informant was not the legally married wife of the petitioner. It has been stated that in view of such finding, the learned trial court could not have convicted the petitioner for the offence punishable u/s 498A of the Indian Penal Code. An alternative argument has been put forward that if this Court is not inclined to interfere with the impugned judgment of conviction, the period of sentence be modified, considering the fact that the petitioner is facing rigours of criminal case since 2003 and he has remained in custody for about 06 months. 7. Learned APP for the State has opposed the prayer made by the petitioner. 8. 7. Learned APP for the State has opposed the prayer made by the petitioner. 8. The evidence of P.W. 6, the informant had duly been supported by P.Ws. 2, 3 4 and 5. The allegation of torture has been substantiated by the evidence of P.W. 1 and P.W. 2. So far as the assault committed by the petitioner upon the informant is concerned it was witnessed on one occasion by P.W. 1 and P.W. 2. There is consistency in evidence of the prosecution with respect to the demand and torture upon the informant on account of the couple not having any issue as also the illicit relationship the petitioner was having with his sister-in-law Aloka Bala Dasi. Attempt at a compromise had failed on account of the petitioner not attending Panchayat which fact has also been supported by several of the prosecution witnesses. So far as the plea of the defence that the informant is not the legally married wife of the petitioner is concerned, the finding recorded in a summary proceeding u/s 125 Cr.P.C. cannot have a binding effect in the trial more so in view of the overwhelming evidence which suggests that the informant is the legally married wife of the petitioner. 9. In the facts and circumstances, therefore, the learned trial court had rightly convicted the petitioner for the offence u/s 498A of the I.P.C., which was also affirmed in appeal. The same is hereby sustained. 10. However with respect to the sentence imposed upon the petitioner, it appears that the petitioner has been facing rigours of the criminal case for last fifteen years and it further appears that the petitioner has remained in custody for about 6 months. On consideration of the said facts, the order of sentence passed against the petitioner is modified to the period already undergone by the petitioner. 11. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.