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2022 DIGILAW 879 (JHR)

Sadhan Kumar Nandi v. State of Jharkhand

2022-07-19

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. The instant criminal revision application has been preferred by the petitioner assailing the judgment dated 31.08.2004 passed by the 3rd Additional Sessions Judge (Fast Track Court), Jamtara in Cr. Appeal No. 103 of 1990/13 of 2003; whereby the learned appellate court affirm the judgment dated 30.04.1990 passed by Judicial Magistrate-1st Class, Jamtara in P.C.R. case No. 57 of 1987 corresponding to T.R. Case No. 530 of 1990; whereby the petitioner was convicted under Section 493 I.P.C. and was sentenced to undergo R.I. for three years. 3. The prosecution case in short is that the opposite party no.2 being the complainant had filed a PCR Case No. 57 of 1987 against the above named petitioner with an allegation that the appellant was the teacher in the primary school of the complainant’s village and he resided in the house of one Nepal Rai, as a tenant. The petitioner has been engaged as a tutor by the parents of the complainant on the conditions that he will be provided two time meal. In course of time the petitioner took the complainant in his trap on promise of marriage, as the petitioner has told the complainant that he is an unmarried person. It was further alleged in the complaint petition that the complainant fell in the trap of appellant and on 07.04.1985 she was taken to the Durga Mandir by the petitioner and by exchanging garlands and also by putting vermillion on the head of the complainant, took the complainant into believing that she had become his legally married wife. Thereafter, the petitioner started cohabitation with her which the complainant did not opposed as she was in belief that she is legally married wife and the appellant is her husband. The complainant did not disclosed her secret marriage as the appellant had told her that he will disclose their marriage before the society, whenever the time will be suitable for them. It was also alleged in the complaint petition that during sexual inter-course, the complainant was also administered some homeopathic medicine by the appellant to prevent the complainant’s conception. Complaint petition further reveals that year passed but the opportune moment of disclosing her marriage before the society did not come, then the complainant started pressurizing the appellants, which constrained the appellant to flee-away from the village. Complaint petition further reveals that year passed but the opportune moment of disclosing her marriage before the society did not come, then the complainant started pressurizing the appellants, which constrained the appellant to flee-away from the village. It was also alleged in the compliant petition that a panchayati was also held in the village on 23.08.1986 in which the appellant had given assurance to the panches regarding the solemnization of marriage with the complainant but surprisingly enough, on 25.08.1986 the appellant fled away from the village. It was also alleged in the complaint petition that the complainant made complaint to the higher office authority and the S.P. Dumka and the Dy. S.P. Jamtara directed the O/C Bagdehari to take necessary action but O/C Bagdehari police station in collusion with the appellant did not take any action, thereafter, the complaint petition has been filed by the complainant against the appellant. 4. Mr. D.K. Karmakar, learned counsel appearing for the petitioner submits that initially a complaint was lodged by the complainant for the offence under Sections 376 IPC I.P.C. However, the learned trial court framed the charge under Section 493 IPC and convicted the petitioner only for the offence committed under section 493 IPC. Learned counsel further draws attention of this court towards paragraph 12 of the complaint petition itself, wherein it has specifically stated that the complainant made a complain to the higher officers i.e. the Superintendent of Police, Dumka and DY.S.P., Jamtara and from where she came to know subsequently that the S.P. Dumka had directed the Officer-in-Charge, Bagdohari, P.S. to take necessary action in the matter and finally the police exonerated this petitioner. Though there is an allegation that police was allegedly gained over by the petitioner. However, the fact remains that S.P. Jamtara wrote a letter to the complainant telling her that the police will institute the case under Section 125 Cr.P.C. against the accused. Relying upon this paragraph, learned counsel submits that at best the complainant could have filed a case under Section 125 Cr. P.C. as there was no marriage and marriage has neither been proved before this court nor upon the investigation by the police it has been proved. Learned counsel further draws attention of this court towards paragraph 11 of the complaint petition and submits that the complainant herself stated in this paragraph that “the petitioner refused to come back or to marry publically”. Learned counsel further draws attention of this court towards paragraph 11 of the complaint petition and submits that the complainant herself stated in this paragraph that “the petitioner refused to come back or to marry publically”. This clearly goes to show that the complainant was herself knowing that the alleged marriage which has been solemnized in the Temple was not a full-fledged marriage. He lastly submits that the deposition of the Pujari (P.W.-3) had also not supported the case of the complainant. Learned counsel concluded his argument by submitting that there are several contradictions between the prosecution witnesses, but the learned trial court as well as learned appellate court failed to appreciate the fact that to attract offence under Section 493 IPC it has to be proved that the victim was under full impression that the accused is her husband. However, the same is not corroborated by the deposition as well as the complaint petition itself. 5. Mr. A.K. Dey, learned Addl. P.P. tries to justify the judgment passed by the learned trial court and submits that there is no infirmity in the order passed by the trial court as well as by the appellate court and the petitioner has rightly been convicted under Section 493 IPC. 6. Having heard learned counsel for the parties and after going through the judgments and the LCR, it appears from paragraph 12 of the complaint petition itself, that before filing the complaint before the court below the complainant approached the police i.e. the S.P. Dumka and the Dy. S.P Jamtara and on their instructions the local officer-in-charge Bagdohari P.S. made an investigation and sent the report to the SP and subsequently, the S.P. informed the complainant that they will institute a case under section 125 Cr. P.C. for maintenance. 7. For brevity paragraph 12 of the complaint petition is quoted hereinbelow : “12. The Complainant thereafter made complaints to the higher office authorities of the accused, the Bindapathar Police, the S.P. Dumka and the D.S.P. Jamtara. The complainant subsequently came to know that the S.P. Dumka had directed the O/C Bagdohari P.S. to take necessary action in the matter but the said O.C. was gained over by the accused whereupon he sent a false report to the S.P. trying to exonerate the accused. The complainant subsequently came to know that the S.P. Dumka had directed the O/C Bagdohari P.S. to take necessary action in the matter but the said O.C. was gained over by the accused whereupon he sent a false report to the S.P. trying to exonerate the accused. The S.P. was mislead and he wrote a letter to the complainant telling her that the police would institute a case U/s 125 Cr. P.C. against the accused.” 8. It further transpires that in the said complaint petition itself at paragraph 11, the complainant has said that the petitioner fled away from the village and never came back to marry publically. This clearly goes to show that the petitioner was well aware that the so called marriage which took place between them was not legal. Even the Priest (P.W.3) had also not supported the entire complaint case though the Priest (P.W.3) has said that they were in contact with each other and he heard about them but so far as the exchange of garland is concerned; there is no such averment in the examination-in-chief. It further transpires from the deposition of all the prosecution witnesses, even admitting as to be true, then also no offence is made out under Section 493 IPC, inasmuch as, when the complainant herself deposed that she exchanged the garland and made a statement in the complaint petition that the petitioner never came back or to marry her publically. This itself goes to show that there was no cheating by the petitioner. At this stage, it is pertinent to mention here that living with a lady and making physical relation does not amount to the offence to be made under Section 493 IPC, for that the lady can very well entitled for maintenance. From the deposition of the complainant herself it transpires that she herself fell in love with the petitioner and looking to the contradictory statements made by the complainant as well as the averments made in the complaint petition, the statement of the complainant does not appears to be trustworthy to the extent of accepting that she was clearly deceived by the petitioner. It goes without saying that the complainant was well educated lady and she was well aware of the procedure of marriage. It goes without saying that the complainant was well educated lady and she was well aware of the procedure of marriage. Merely promising any lady to marry does not come under the purview of Section 493 of the I.P.C. The statement made in complaint petition about the information to this complainant by the S.P. Dumka was very much appears to be genuine, inasmuch as, he informed her that they are going to institute a case under Section 125 Cr. P.C. with regard to maintenance. Thus, this court is of the firm opinion that the learned trial Court has committed an error in ignoring all the facts specially the deposition of the Priest (P.W.3), the contradictory statement made by the prosecution witnesses and paragraphs 11 and 12 of the complaint petitions itself which makes the order perverse in nature and as such under the revisional jurisdiction, this Court can very well entertain the instant revision application. 9. In view of the aforesaid discussion the instant application is allowed. 10. Consequently, the order of judgment dated 30.04.1990 passed by trial court and order of appellate court dated 31.08.2004 is quashed and set aside. 11. The petitioner shall be discharged from the liability of his bail bond. 12. Let a copy of this order be communicated to the courts below forthwith. 13. Let the lower court record be sent to the court concerned forthwith.