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2018 DIGILAW 1694 (JHR)

Tulsi Yadav v. State of Jharkhand

2018-08-02

RONGON MUKHOPADHYAY

body2018
JUDGMENT : Heard the parties. 2. This application is directed against the judgment dated 14.02.2008, passed by the learned 1st Additional Sessions Judge, Bermo at Tenughat in Criminal Appeal No. 60 of 1994, whereby and whereunder the judgement and order of conviction and sentence dated 22.11.1994, passed by the learned Judicial Magistrate, 1st class, Bermo at Tenughat in connection with Gomia P.S. Case No. 37 of 1988, by which petitioners have been convicted for the offence under section 498A/34 of the Indian Penal Code and sentenced to undergo R.I. for three years as also to pay a fine of Rs.5,000/-, has been affirmed. 3. Petitioner No. 1 –Tulsi Yadav has already died, therefore, this application is restricted only with respect to the petitioner no.2 and 3, who happen to be the husband and mother-in-law of O.P. No. 2. 4. An FIR was instituted on the allegation that the informant who was married to petitioner no. 2-Beni Yadav on 6.5.1987 was subjected to refusal on the part of her inlaws when the father of O.P. No. 2 had requested to send the informant to her parents house. It has been alleged that an amount of Rs.25,000/- was demanded as dowry and a threatening was also given that if the said amount is not fulfilled, the informant shall be subjected to cruelty and torture. The father of the informant had paid Rs.23,000/- to the husband of the informant and had taken back the informant to her parents house. Subsequently, when she returned back, she was subjected to mental and physical torture on the plea of not fulfilling the demand of a cow, wrist watch and the balance amount of Rs.2,000/-. A Panchayat was convened, in which the father of the informant had paid balance amount of Rs.2,000/- but the rest demands were not fulfilled. It has been alleged that on 16.3.1988 at about 8 P.M., the informant was mercilessly assaulted by her parents in law and on hearing the cry of alarm, her uncle in law had somehow rescued her. The father of the informant on being informed had come and she was taken to doctor for treatment by her father and the doctor found injuries on the person of the informant. The father of the informant on being informed had come and she was taken to doctor for treatment by her father and the doctor found injuries on the person of the informant. A Panchyati was once again convened, in which the accused had admitted their guilt and had assured that the informant shall not be tortured in future but in spite of the undertaking given before the Panchayat, the accused persons had given a threatening that if the rest demands are not fulfilled, the informant will not be allowed to reside at her matrimonial house. A complaint case being Complaint Case No. 46 of 1988 was instituted, which was sent to the police under section 156(3) of Cr.P.C. and ultimately led to registration of Gomia P.S. Case No.37 of 1988. Investigation resulted in submission of charge sheet, after which cognizance was taken and thereafter charge was framed under sections 498A, 325 & 406/34 of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act against all the accused persons, to which they pleaded not guilty and claimed to be tried. 5. In course of trial, prosecution had examined as many as eleven witnesses in support of its case. 6. P.W-1-Rupu Mahto has stated that when he had heard sound of alarm from the house of Tulsi Yadav, he had seen the petitioner-Beni Yadav standing with ‘Danda’ whereas the informant was lying in the courtyard. On being asked, this witness was threatened by Beni Yadav stating that the matter was an internal dispute in the family. This witness was also present in Panchayat when a demand of Rs.2,000/-, a cow as well as a wrist watch was made on behalf of the accused persons. This witness is the maternal uncle of the victim. 7. P.W-2-Sona Ram Yadav has supported the factum of cruelty and torture upon the informant. He has stated about the demand made by Tulsi Yadav of Rs.2,000/-, a jersey cow and a wrist watch. This witness has stated about the assault committed upon the informant by the accused persons. 8. P.W-3 is Sugan Yadav, whose evidence is not of much importance to decide the case. 9. He has stated about the demand made by Tulsi Yadav of Rs.2,000/-, a jersey cow and a wrist watch. This witness has stated about the assault committed upon the informant by the accused persons. 8. P.W-3 is Sugan Yadav, whose evidence is not of much importance to decide the case. 9. P.W-4-Basmati Devi@ Charki Devi is the informant, who has stated initially that there was a demand of Rs.25,000/-, out of which an amount of Rs.23,000/- was fulfilled by her father but she was pestered for non payment of the balance amount of Rs.2,000/- apart from a jersey cow and a wrist watch. This witness has stated that her mother in law had caughthold of her hands whereas her husband had assaulted with ‘Danda’ resulting in her suffering fracture injury on her left hand. She has further stated that P.W-1 had informed about the occurrence, after which a Panchayti was held and she was medically examined. 10. P.W-5-Ram Chandra Yadav is the father of the informant who has supported the prosecution case with respect to demand of Rs.25,000/- initially and then subsequently the balance amount of Rs.2,000/-, a jersey cow and a wrist watch. He has stated that to fulfill the demand, he had mortgaged the land and paid an amount of Rs.23,000/- out of initial demand of Rs.25,000/-. This witness has also stated about the Panchayat which was held as also the assault committed upon his daughter which resulted in suffering fracture injury on her left hand. 11. P.W-6-Dr. Bijay Kumar Singh had examined the informant on 17.3.1988 and had found abrasions as well as crack fracture over left ulna bone. This witness had opined that injury nos. 1, 3 and 4 were simple in nature but the injury no. 2 was found to be grievous. 12. P.W-7-Suresh Singh, P.W-8-Dineshwar Mahto and P.W-9-Khushi Ram Mahto are formal witnesses who had proved various documents. 13. P.W-10-Amar Nath Thakur is the investigating Officer of the case who had inspected the place of occurrence and had recorded the statement under section 161 Cr.P.C. and after procuring medical report had submitted charge-sheet against the accused persons. 14. P.W-11-Bhagwatia Devi was tendered by the prosecution. 15. Defence has also examined two witnesses as D.W-1-Shambhu Gope and D.W-2-Tuplal Yadav, who happen to be the father and uncle of the accused-Tulsi Yadav. 16. 14. P.W-11-Bhagwatia Devi was tendered by the prosecution. 15. Defence has also examined two witnesses as D.W-1-Shambhu Gope and D.W-2-Tuplal Yadav, who happen to be the father and uncle of the accused-Tulsi Yadav. 16. D.W-1 has stated that alleged assault made by the accused persons upon the informant was not within his knowledge and the same facts have been stated by D.W-2. 17. It has been submitted by the learned counsel for the petitioners that most of the witnesses who have been examined on behalf of the prosecution are related to the informant and are interested witnesses. It has further been submitted that so far as the allegations of assault committed upon the informant is concerned, the same has not been corroborated by any of the witnesses as P.W-4, the informant is the only eye witness to the said occurrence. So far as the defence witnesses are concerned, neither the learned trial court nor the learned appellate court has placed reliance upon such witnesses, which is contrary to the settled proposition of law that evidences of the defence witnesses have also to be given equal importance as that of the prosecution witnesses. An alternative argument has been put forward by the learned counsel for the petitioner that if this Court is not inclined to interfere with the order of conviction, period of sentence be suitably modified in view of the fact that the petitioners are facing the rigors of prosecution case since the year 1988 and have also remained in custody for sometime. It has been submitted that the informant has already remarried. 18. Mr. Zaid Ahmed, learned counsel for the O.P. No. 2 on the other hand has submitted that there are consistent oral evidence with respect to assault committed upon the informant and which has been corroborated by the medical evidence. Learned counsel thus submits that husband and mother in law are the main perpetrators of the assault committed upon the informant which led to her suffering fracture injury on her left hand. 19. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioners. 20. The conviction of the petitioners seems to be based on the evidence of the informant, P.W-4 and supported by P.Ws.1, 2 and P.W-5. 19. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioners. 20. The conviction of the petitioners seems to be based on the evidence of the informant, P.W-4 and supported by P.Ws.1, 2 and P.W-5. Infact from the initial stage of the marriage, there was a demand of Rs.25,000/- from the side of the accused persons and P.W-5, the father of the informant had categorically stated that he had to mortgage his land in order to fulfill the demand of Rs.25,000/-. It appears that P.W-5 in spite of his best efforts could not fulfill the rest demand which was made from the side of the accused, which subsequently led to the incident of assault committed upon the informant. The informant, who has been examined as P.W-4, has also categorically stated about Panchayat having been convened on several occasions in order to settle the matter but every time she had to return back to her matrimonial house and torture and assault upon her continued unabated on account of non fulfilment of the balance amount of Rs.2,000/-, a jersey cow and a wrist watch. The evidence of P.W-4 with respect to assault committed by her husband and mother in law has been substantiated by the evidence of P.W-1 who has also stated that on hearing the cry of alarm he had rushed to the matrimonial house of the informant, at which her husband had ordered him to leave as the matter was an internal affair. So far as the ocular evidence regarding assault committed upon P.W-4 is concerned, the same has been duly supported by P.W-1. The doctor, who has been examined as P.W-6 on examination of the victim, had also opined about the fracture injury on her left hand which corroborates the fact that it was the husband, mother in law of the informant who had assaulted her with ‘danda’. 21. So far as the defence witnesses are concerned, they have denied to have seen any such occurrence but their evidence appears to be highly tilted in favour of the accused persons. Although P.Ws1 and 5 are also related to the informant but their evidence cannot be brushed aside simply because of the fact that they are related to the informant, P.W-4 as their evidence has sufficiently been corroborated by other witnesses more notably P.W-2 who appears to be an independent witness. 22. Although P.Ws1 and 5 are also related to the informant but their evidence cannot be brushed aside simply because of the fact that they are related to the informant, P.W-4 as their evidence has sufficiently been corroborated by other witnesses more notably P.W-2 who appears to be an independent witness. 22. On consideration of the circumstances, stated above, therefore, learned trial court has rightly convicted the petitioners for the offence under section 498A/34of the Indian Penal Code and under section 325/34 of the Indian Penal Code, which was affirmed by the learned appellate court. The same is hereby sustained. 23. However, with respect to the sentence, which has been imposed upon the petitioners, it appears that petitioners are facing the rigors of prosecution case for the last three decades and have also remained in custody for sometime. 24. In view of the aforesaid, therefore, period of sentence imposed upon the petitioners, is modified to the period already undergone. 25. This application stands dismissed with the aforesaid modification in the period of sentence.