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2018 DIGILAW 137 (JHR)

Kalyani Saha v. State of Jharkhand

2018-01-16

APARESH KUMAR SINGH, B.B.MANGALMURTI

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JUDGMENT B.B. Mangalmurti, J. Heard counsel for the petitioner and learned A.P.P. for the State. 2. The petitioner seeks leave to appeal against the judgment of acquittal dated 4.6.2016 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P.Case No.740/2009 (T.R. No. 523/2016) whereby opposite party Nos. 2 to 5 have been acquitted of the charges under Section 498(A) of the Indian Penal Code. 3. The prosecution story as alleged in the complaint petition No. 740 of 2009 filed on 30.4.2009 is as follows :- The complainant Kalyani Saha was married to Sanjib Saha, opposite party No.2 on 3.3.2006 and thereafter it was registered before the Registrar of Marriage at Kulti on the same day. Further allegations are that on demand of opposite party Nos. 2 to 5, the father of the complainant paid them a sum of Rs.1,50,000/- in cash, 8 bhari golden ornaments and several other household articles worth Rs.1,00,000/-. After marriage, the complainant went to her matrimonial house for leading conjugal life. The opposite party Nos. 3, 4 and 5 were not satisfied with the amount of cash and articles given at the time of marriage, started demanding one Maruti Car which was denied by the complainant saying that her father is a poor man and not in a position to satisfy the further demand of Maruti Car. On refusal by the complainant, all the opposite parties started torturing the complainant mentally and physically. Anyhow the complainant tolerated the same with a hope that after passage of time everything will be set right. In the meantime, the complainant became pregnant and later on gave birth to a child. At this time also, all the accused persons renewed their demand of Maruti car from the father of the complainant who showed his inability to fulfill their demand, then O.P. Nos. 2 to 5 assaulted the complainant mercilessly. Further case is that O.P. No.2 along with complainant came to Dhanbad in the month of December, 2007 and again demanded Maruti Car or in lieu thereof Rs. 2,50,000/- in cash from the father of the complainant. When the father of the complainant showed his inability to fulfill the demand then the complainant was assaulted in presence of witnesses. The opposite parties also threatened to kill the complainant by administering poisonous medicine. 2,50,000/- in cash from the father of the complainant. When the father of the complainant showed his inability to fulfill the demand then the complainant was assaulted in presence of witnesses. The opposite parties also threatened to kill the complainant by administering poisonous medicine. It has been specifically mentioned that on 17th December, 2007 O.P. No.2 threw the complainant on the ground and O.P. Nos. 3 and 4 held the hands of the complainant and O.P. No.5 forcibly injected some medicine in the hand of the complainant causing pain in all over the body. The opposite parties injected thrice in the body of the complainant and declared that from the injection she would suffer various ailments and would die in normal course. After receiving information, the father of the complainant visited there and immediately paid a sum of Rs. 20,000/- to O.P. No.2 and requested them for grant of harmonious life to the complainant. Thereafter, to fulfill their demand, father of the complainant by taking loan from near friends and Railway department, paid a sum of Rs.1,00,000/- to O.P. No.3. Further case is that due to administration of injection pain started in the belly area of the complainant and when it became unbearable then the father of the complainant took her to Sri Sathya Sai Institute of Higher Medical Science, Putparthi (Andhra Pradesh) for treatment. Meanwhile, all the accused persons broke the lock of the tenanted premises of the complainant and removed all the belongings, ornaments etc. from the residence. After the complainant returned, she reported the matter to Kalna Police Station but no action was taken due to influence of the accused persons. They had also threatened the landlord and witnesses. Thereafter all the accused persons came in the quarter of her father at Dhanbad on 25.4.2009 and in absence of her father all the opposite parties assaulted the complainant in a very inhumane way and fled away from there. The matter was reported to Dhanbad Police Station who in turn advised them to file case in the Court. Thereafter Complaint Case No. 740/2009 was registered against the accused persons. 4. On 18.7.2009 the Court finding prima facie case against the accused persons, took cognizance of offence under Section 498-A, Indian Penal Code. After Framing of charge the complainant examined four witnesses namely CW 1 Deb Kumar Bose. Thereafter Complaint Case No. 740/2009 was registered against the accused persons. 4. On 18.7.2009 the Court finding prima facie case against the accused persons, took cognizance of offence under Section 498-A, Indian Penal Code. After Framing of charge the complainant examined four witnesses namely CW 1 Deb Kumar Bose. CW 2 Kalyani Saha (complainant herself), CW 3 Dayal Chandra Kumbhkar and CW 4 Deepak Kumar and also exhibited some documents. Ext. -1 and Ext.-l/l are receipts of jewellery purchased for giving as dowry. Ext.-2, Ext.-3 and Ext.-4 are Medical Prescriptions showing treatment of the complainant; Ext.-5 is Birth Certificate and Ext.-6 is Marriage Certificate. The learned trial Court considered the material evidence adduced on behalf of the complainant and did not find the charges proved beyond all shadow of reasonable doubt against the accused persons. Accordingly, accused persons were acquitted by giving benefit of doubt. 5. Learned counsel for the petitioner has endeavoured to impress that opposite parties are liable for conviction and the learned trial Court has completely failed in taking consideration of the evidences adduced by the complainant in support of her case. It has also been contended that Section 498-A of the Indian Penal Code is made to protect a married lady from her husband and other in-laws who are party to torture for unlawful demand and in the present case there is specific evidence against the opposite parties. It is further contended that after marriage the complainant was regularly being tortured for non-fulfilment of demand of either Rs. 2,50.000/- or one Maruti Car. This fact has been corroborated by all the witnesses but ignoring those evidences adduced by the witnesses the learned trial Court acquitted the accused persons. It is further submitted that evidences of the witnesses are also corroborated by Medical Prescription and other documentary evidence. Learned counsel further submitted that the findings recorded in the impugned judgment are perverse and beyond the material available on record. It has also been contended that the complainant's witnesses corroborated the allegation made in the complaint petition with regard to demand of dowry and torture after marriage and the essential ingredients of Section 498-A of the Indian Penal Code were clearly brought on record. 6. No one appeared for opposite party Nos. 2 to 5 despite service of notice. 7. It has also been contended that the complainant's witnesses corroborated the allegation made in the complaint petition with regard to demand of dowry and torture after marriage and the essential ingredients of Section 498-A of the Indian Penal Code were clearly brought on record. 6. No one appeared for opposite party Nos. 2 to 5 despite service of notice. 7. Learned counsel for the State supported the impugned judgment and submitted that two independent witnesses CW 3 and CW 4 had deposed before the trial Court. CW 3 admitted in his deposition that father of complainant told him about the incident but he did not see any occurrence. Thus, this witness is a hearsay witness. CW 4 deposed before the Court that he went to Sri Sathya Sai Institute of Higher Medical Science Andhra Pradesh along with father of the complainant which fact has neither been mentioned in the complaint petition nor the complainant herself has deposed in this manner before the trial Court. Learned A.P.P. submitted that these material contradictions are apparent on record and none of the complainant witnesses have been able to establish the charges. Therefore, the petitioner does not deserve leave to appeal against the judgment of acquittal. 8. We have considered the entire submissions of the parties and the material evidence adduced on behalf of the complainant/petitioner. 9. Perusal of the impugned judgment and consideration of the submission of the counsel for the parties reveals that CW 1 Deb Kumar Bose, father of the complainant has partly supported the facts of the case in his examination-in-chief. After narrating the incidence of torture and handing over of cash after taking loan he deposed that his son-in-law took the complainant to Sai Baba Ashram for treatment. He also stated that he had sent his daughter to Sai Baba Ashram. Andhra Pradesh for treatment and after returning from there they straightaway went to sasural and his daughter found that all the articles which were given by her parents were missing. His daughter approached Kalna Police Station for lodging complaint but no action was taken then his daughter came to Dhanbad. He further deposed that on 25.4.2009 the in-laws of his daughter came to his railway quarter and threatened his daughter but that time he was on duty. His daughter went to Dhanbad Police Station but when no action was taken then she lodged case in the Court. He further deposed that on 25.4.2009 the in-laws of his daughter came to his railway quarter and threatened his daughter but that time he was on duty. His daughter went to Dhanbad Police Station but when no action was taken then she lodged case in the Court. CW 2 Kalyani Saha (complainant) has also partly supported the facts of the case in her examination-in-chief. She stated that on 17.12.2007 accused persons assaulted her and also injected poison due to which she become sick then, she told her father over phone who went there and took her for treatment. She further stated that she was treated at Andhra Pradesh where she went there with her father. After return from Andhra Pradesh she went to her sasural and found broken lock of her house and all the articles were missing then she approached Kalna Police Station for lodging the case but no action was taken and they advised to approach the Court. Then she went to her make and filed the case. She further deposed that on 25.4.2009 accused persons came to the railway quarter and abused her but at that time her father was not present. Her father went to Dhanbad Police Station but no action was taken then this case was filed. In her cross-examination before charge she stated that she does not want to live with her husband because he is not caring her and her child and also tried to assault her. She also stated that her father gave Rs. 20.000/- and thereafter Rs.1,00,000/- to her mother-in-law after marriage. CW 3 Dayal Chandra Kumbhkar (independent witness) has partly supported the facts of the case in his examination-in-chief. He stated that father of complainant took her to Andhra Pradesh for treatment. He also stated that father of complainant gave Rs.1,00,000/- to the husband of complainant. He further stated that after treatment father of complainant brought the complainant back to Dhanbad. He also stated that he does not have information about incident that took place later on. CW 4 Deepak Kumar (independent witness) identified signature of shopkeeper on receipts with respect to jewellery purchased for marriage purpose which are marked as Ext -1 and 1/ 1 respectively. He also identified the signature of Doctors on the treatment report which was marked as Ext.-2. He also identified the prescription written and signed by Doctor which was marked as Ext.-3. He also identified the signature of Doctors on the treatment report which was marked as Ext.-2. He also identified the prescription written and signed by Doctor which was marked as Ext.-3. He also stated that when the complainant was taken to Sri Sathya Sai Institute of Higher Medical Science, Andhra Pradesh for treatment, he also accompanied them. He further stated that treatment is still going on. He also identified prescription of Dr. M.A. Haque of Bardhman where the complainant was treated and the same was marked as Ext.-4. These exhibits were marked with objection. 10. Upon scrutiny of the entire material evidence of the complainant witnesses as discussed by the learned trial Court, we are of the considered view that the order does not suffer from perversity or lack of appreciation of evidence on record. The learned trial Court has found contradiction in the evidence of CW 1 and CW 4. Independent witness CW 4 deposed before the Court that he also accompanied the complainant and her father when they went to Sri Sathya Sai Institute of Higher Medical Science, Andhra Pradesh which fact has not been mentioned in the complaint petition rather, the father of the complainant CW1 narrated a completely different story in his . deposition by stating that his son-in-law took his daughter to Sai Baba Ashram for treatment. CW 3, who is an independent witness has also admitted in his deposition that father of complainant told him about the incident and he did not see anything. In the complaint petition it is mentioned that on 25.4.2009 all the accused persons came in the quarter of her father at Dhanbad and assaulted the complainant in a very inhumane way and fled away whereas both the complainant and father of the complainant have deposed before the trial Court that on 25.4.2009 that the accused persons came to Dhanbad and threatened and abused the complainant but not stated anything about assault which creates doubt about the incident. In these circumstances, it appears that CW 2 Kalyani Saha has partly supported her case during her examination-in-chief. She has stated that she was treated at Andhra Pradesh where she went with her father whereas father of the complainant Deb Kumar Bose who was examined as CW 1 has deposed that his son-in-law took the complainant to Sai Baba Ashram for treatment. She has stated that she was treated at Andhra Pradesh where she went with her father whereas father of the complainant Deb Kumar Bose who was examined as CW 1 has deposed that his son-in-law took the complainant to Sai Baba Ashram for treatment. After return from Andhra Pradesh she went to sasural and then his daughter found all the articles which was given by her parents, were missing. CW 3 Dayal Chandra Kumbhkar has stated that father of complainant took her to Andhra Pradesh for treatment and CW 4 Deepak Kumar went to a further extent and stated that he had also accompanied the complainant when she was taken to Sri Sathya Sai Institute of Higher Medical Science, Andhra Pradesh for treatment which was beyond the allegations made in the complaint petition. The Court did not found any document which proved the case with respect to injecting the poisonous medicine to the complainant. The prescription of Dr. M.A. Haque of Bardhman where the complainant was treated was marked as Ext. -4 with objection, but no doctor was examined on behalf of the complainant to prove the treatment of complainant. Therefore, we are of the view that the petitioner has failed to make out a case for grant of leave to appeal against the impugned judgment of acquittal. 11. Accordingly, we dismiss the instant application. Aparesh Kumar Singh, J.-I agree. Petition dismissed.