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2020 DIGILAW 348 (JHR)

Sahdeo Mukhiya @ Mukhia v. State Of Jharkhand

2020-02-20

RAJESH KUMAR

body2020
JUDGMENT 1. By Court: It has been informed that Mr. Lakhan Sharma, one of the counsel for the appellant in Cr. Appeal (S.J.) No.972 of 2006 has died. Since the matter arising out of a common judgment, Mr. Sidhartha Roy, learned counsel, is appointed as Amicus Curiae in Cr. Appeal (S.J. No.972 of 2006 to assist this Court. 2. Heard the parties. 3. These criminals appeals arising out of the same impugned judgment and were heard together and hence are being disposed of by a common judgment. Shiban Machhua-appellant/accused has been charged under Sections 366, 376, 493, 496 and 498 of the Indian Penal Code whereas other accused-appellants have been charged under Sections 493/120(b), 496/120(b) and 498/120(b) of the Indian Penal Code and they have been convicted vide judgment dated 30.05.2006 under Sections 366 and 498 of the Indian Penal and the appellant Shiban Machhua has also been convicted under Section 496 of the Indian Penal Code. All the accused/appellants have been sentenced to undergo rigorous imprisonment for five years for the offence under Section 366 of the Indian Penal Code with a fine of Rs.1000/- and they have been further sentenced to undergo rigorous imprisonment for one year for the offence under Section 498 of the Indian Penal Code. Accused/Appellant namely Shiban Machhua has further been sentenced to undergo rigorous imprisonment for five years for the offence under Section 496 of the Indian Penal Code with a fine of Rs.1000/-. In default, all the accused/appellants were further sentenced to undergo simple imprisonment for three months vide order of sentence dated 31.05.22006 passed by Sri Mohammed Kasim, Addl. Sessions Judge, Fast Track Court-II, Seraikella-Kharsawan in Sessions Trial Case No. 315 of 1998. All the sentences were directed to run concurrently. 4. In the present case, criminal proceeding has been initiated by filing a Complaint (C/1) Case No. 66/1996 and after completion of the enquiry under Section 202 of the Cr.P.C., cognizance has been taken and the case has been transferred and committed to the court of Sessions where charges have been framed under the aforesaid Sections of the Indian Penal Code against all the accused persons. Charges have been explained to which the appellants pleaded not guilty and claimed to be tried. 5. On conclusion of the trial, all the accused persons have been convicted and sentenced vide impugned judgment, against which, present appeals have been filed. 6. Charges have been explained to which the appellants pleaded not guilty and claimed to be tried. 5. On conclusion of the trial, all the accused persons have been convicted and sentenced vide impugned judgment, against which, present appeals have been filed. 6. To substantiate the prosecution story, altogether five witnesses have been examined by the prosecution. P.W.1-Bhadru Machhua and P.W.2-Bir Machhua are the brothers of P.W.-5. P.W.3- Jitendra Kumar Jain is a neighbour of the complainant. P.W.4- Puspa Machhuain is the complainant herself and P.W.5-Chhote Lal Machhua, claiming himself to be the husband of the complainant namely Puspa Machhuain (P.W.-4). 7. It has been alleged in the complaint petition that on 07.07.1996, all the appellants have broke open the door of the complainant and forcibly taken her to the house of Sahdeo Mukhiya @ Mukhia where she has been kept for one night thereafter, she has been shifted to Ranchi by bus. In Ranchi, she kept at Machhua Basti for about 12 days, which is in the house of the relative of Shiban Machhua. From Ranchi, she has been shifted to Seraikella where she remained with Shiban Machhua for about one month. Shiban Machhua got married with the complainant by playing fraud. Subsequently, the complainant fled away and has gone to her house. Although, complaint has been made to the police, but since no action has been taken, thereafter complaint petition has been filed. 8. It further appears that P.W.-5 who is the alleged husband of the complainant, has lodged the complaint to the police to which the matter has been enquired and subsequently, a proceeding under Section 107 of the Cr.P.C. has been drawn between the parties. It further appears that P.W.4-(the complainant), in her cross-examination, at para-23 has stated, that in a proceeding under Section 107 Cr.P.C., she has chosen to go with one of the appellants-Shiban Machhua to whom allegedly she got married. 9. It has been argued by the counsel for the appellants that offence under Section 366 of the Indian Penal Code is not made out, as necessary ingredients of ''taking from the legal guardianship'', is not made out. For this purpose, he has relied upon the judgment reported in AIR 1995 SCC 2169 (Shyam and anr. Vs. State of Maharashtra). 10. It has been argued by the counsel for the appellants that offence under Section 366 of the Indian Penal Code is not made out, as necessary ingredients of ''taking from the legal guardianship'', is not made out. For this purpose, he has relied upon the judgment reported in AIR 1995 SCC 2169 (Shyam and anr. Vs. State of Maharashtra). 10. Referring to the prosecution story, judgment and the testimony of P.W.-4 (the Complainant), argument has been advanced that the complainant is major and very narration of the incident and admission in the cross-examination, suggests that she has gone with Shiban Machhua out of her own will and she got married. Marriage is a registered court marriage. Further she has accepted in para-23 of the cross-examination that she wants to live with Shiban Machhua (one of the appellants) to whom she got married. Thus, ingredients of the offence under Section 366 of the Indian Penal Code is not made out as there is no taking from the legal guardianship rather she has moved out of her own will and being major, she is capable of doing so. 11. So far as other Sections are concerned, i.e. offence against marriage, it has been argued that to substantiate the charge under Sections 498/496, it is incumbent upon the prosecution to prove that the complainant was already married. No evidence has been brought on record to prove the said fact rather evidence is on record that complainant got married with one of the appellants namely Shiban Machhua in the Court and that the certificate is on record as Ext.B. 12. Per contra, learned APPs for the State has supported the judgment of conviction. Argument has been advanced that the complainant (P.W.-4) has clearly stated in her testimony that she has been forcibly taken away by the appellants and subsequently, one of the appellants-Shiban Machhua got married with her, by playing fraud. It has been further testified that the complainant is already married with P.W.-5 and as such, conviction of the appellants under Section 366 as well as for the offence, relating to marriage, is justified and requires no interference by this Court. 13. It has been further testified that the complainant is already married with P.W.-5 and as such, conviction of the appellants under Section 366 as well as for the offence, relating to marriage, is justified and requires no interference by this Court. 13. It appears that the prosecution has put forth the story that she has been kidnapped on 07.07.1996 by using force and arms and has been kept for the whole night in the house of Sahdeo Mukhiya@ Mukhia and thereafter, she has been shifted to Ranchi by bus. In Ranchi, she has stayed at Machhua Basti for about 12 days, which is a Basti belonging to a caste to whom complainant belongs. Thereafter, she has moved to Seraikella where she has remained with Shiban Machhua for about one month. Thereafter, she has stated before the police in a proceeding under Section 107 of the Cr.P.C. that she wants to remain with one of the appellants namely Shiban Machhua to whom she got married. Thus, very element of taking away forcibly or by playing fraud is not made out as the complainant is a major lady. Thus, the conviction of the appellants under Section 366 of the Indian Penal Code is not sustainable. Further so far as, offence relating to marriage is concerned, the prosecution has failed to prove earlier marriage of the complainant and in fact, there is no evidence on record to suggest that the complainant has earlier solemnized marriage rather evidence is contrary. There is marriage with one of the appellants and the complainant and the marriage certificate is on record as Ext.B. This exhibit has been relied upon by the police as well as complainant in a proceeding under Section 107 of the Cr.P.C. Further, in her cross- examination, the complainant has admitted that she got married with Shiban Machhua. 14. Considering the entire materials and the evidence on record, this Court finds that the conviction of the appellants is not sustainable. 15. Resultantly, these appeals are allowed and the judgment of conviction dated 30.05.2006 and the order of sentence dated 31.05.2006 passed by Sri Mohammed Kasim, Addl. Sessions Judge, Fast Track Court No.II, Seraikella-Kharsawan, in Sessions Trial Case No. 315 of 1998 is, hereby, set aside. 16. Since, all these appellants, above named, are already on bail, they are discharged from the liability of their bail bonds.