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2022 DIGILAW 968 (JHR)

Mathura Modi v. State of Jharkhand

2022-08-03

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the impugned judgment of conviction dated 24.06.2006 and order of sentence dated 26.06.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Koderma in Sessions Trial No. 103/1994 corresponding to G.R. Case No. 272 of 1993 (T.R. No. 280 of 1994) in connection with Chouparan P.S. Case No. 69/1993 whereby and where under both the accused appellants were convicted for the offence punishable u/s 366 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and they were sentenced to undergo rigorous imprisonment (hereinafter referred to as R.I.) for a period of 3 years (three years) and also a sentence of fine was awarded to a sum of Rs. 2,000/- (Rupees Two Thousand Only) and in default of payment of fine, further R.I. for a period of three months was imposed. 2. The prosecution story arose in the wake of complaint instituted by the “victim” (Hereinafter referred to as "victim" and the name concealed mindfully to maintain confidentiality : P.W. 1) vide Complaint Case No. 74 of 1993 which was later on registered as Chouparan P.S. Case No. 69/1993 corresponding to G.R. Case No. 272 of 1993, where the complainant / informant (P.W. 1) stated in the aforesaid complaint case by alleging that on the date of occurrence i.e., on 13.03.1993 (she was about 15 years of age at that time), the accused persons namely Bharat Modi, Mathura Modi, Rajendra Modi and Jharkhandi Modi at about 11 a.m. on 13.03.1993 forcibly entered into the house of informant. At that very time, the informant was engaged in her kitchen room. It is alleged that having committed criminal house trespass, the accused persons surrounded informant and her mother. Accused Bharat Modi told them that the marriage of the informant with the accused Baleshwar Choudhary has been fixed by him, but the informant denied the proposal for that marriage with the said Baleshwar Choudhary. Thereafter, the accused Baleshwar Choudhary and Jharkhandi Modi wanted to take her away forcibly, but, the informant's mother raised objection, due to which the accused Rajendra Modi started assaulting her mother with fists and slaps. It has further been alleged that the accused Baleshwar Choudhary took out the informant from her house and confined her mother in a room. Thereafter, the accused Baleshwar Choudhary and Jharkhandi Modi wanted to take her away forcibly, but, the informant's mother raised objection, due to which the accused Rajendra Modi started assaulting her mother with fists and slaps. It has further been alleged that the accused Baleshwar Choudhary took out the informant from her house and confined her mother in a room. It is further alleged that when the informant raised alarm, the accused Bharat Modi and others started beating the informant's mother mercilessly and told her that the victim had been purchased for a consideration money of Rs. 15,000/-(Rupees Fifteen Thousand) from her son (Bharat Modi who was the brother of the victim and son-law of appellant no.1). It is further alleged that in spite of objection and resistance, the accused persons took away the informant forcibly. In continuation of this offence, the accused Rajendra Modi snatched away a silver har (necklace) worth Rs. 300/-(Rupees Three Hundred) only from the neck of informant's mother. It is further alleged that having heard the alarm of the informant, the neighbors came there, but, before their arrival the accused persons had already taken away the victim forcibly. It is further alleged that the police was informed on the same day with regard to the occurrence, but, the police did not institute the case. It is further alleged that the accused persons had tried to rape on her, but, could not succeed. After receiving the carbon copy of the complaint, Chouparan P.S. Case No. 69/1993 dated 06.05.1993 for the offences punishable u/Ss. 323, 354, 366, 366A, 372, 373 of the I.P.C. was registered and the investigation of the case commenced. On completion of the investigation, the charge sheet for the offences punishable u/ss. 366 & 366 A of the I.P.C. was submitted on 18.10.1993 against three accused persons namely Bharat Modi, Mathura Modi and Jharkhandi Modi by showing them in custody and against two accused persons namely Baleshwar Prasad Choudhary and Rajendra Modi by showing them absconder. Later on, a supplementary charge-sheet against two absconded accused persons namely Rajendra Modi and Baleshwar Prasad Choudhary was submitted. Thereafter, cognizance for the offences punishable u/ss. Later on, a supplementary charge-sheet against two absconded accused persons namely Rajendra Modi and Baleshwar Prasad Choudhary was submitted. Thereafter, cognizance for the offences punishable u/ss. 366 & 366-A of the I.P.C. was taken and the case was committed to the Court of District Sessions Judge, Hazaribag where after receiving the case record the same was registered as Sessions Trial No.103 of 1994 and the file was transferred to the 5th Addl. Sessions Judge, Hazaribag, later on, the file of this case was transferred to 1st Addl. Sessions Judge, Camp Court, Koderma and thereafter, the case was transferred to the Learned Court of Additional Sessions Judge (Fast Track Court, Koderma). From perusal of the case record, it is transpired that the case of the absconding accused namely Baleshwar Prasad Choudhary and Rajendra Modi had been separated from other three accused persons vide order dated 16.12.1994. Thereafter, the case against three accused persons was fixed for hearing on charge. Later on, on 21.02.1995 the charges under two heads i.e. for the offences u/ss. 366 & 366 A of the I.P.C. were framed against three accused persons namely Bharat Modi, Mathura Modi and Jharkhandi Modi to which they pleaded not guilty and claimed to be tried for the same. 3. It is further found that the learned trial court has framed the charges against three accused persons namely Bharat Modi, Mathura Modi and Jharkhandi Modi, but, the record of the case of the accused Bharat Modi was split up on 26.02.2004 and the impugned judgment of conviction and order of sentence was passed against these two accused appellants namely Mathura Modi and Jharkhandi Modi, which is under challenge. 4. Heard Mr. Deepak Kumar, learned counsel for the appellants and Mrs. Niki Sinha, learned Spl.P.P. for the State. Arguments on behalf of the appellants 5. 4. Heard Mr. Deepak Kumar, learned counsel for the appellants and Mrs. Niki Sinha, learned Spl.P.P. for the State. Arguments on behalf of the appellants 5. Assailing the impugned judgment of conviction dated 24.06.2006 and the order of sentence dated 26.06.2006, it is submitted on behalf of the learned counsel for the appellants that the learned trial court did not appreciate the evidences adduced on behalf of the prosecution in totality and since the major lacuna is evident from the testimonies of the victim (P.W. 1), where she categorically recited in her earlier statement as set out in the complaint case by which she had alleged that it was her own brother Bharat Modi, who was the main accused, but, later on, while deposing before the court during the course of the trial, she had not uttered a single word against her own brother Bharat Modi, rather, stated that he (Bharat Modi) had not committed any offence and she has entered into a compromise with him and, therefore, her version is not trustworthy and is fit to be discarded. Further, it has also been pointed out that, similarly Shankuntala Devi (P.W.-2) the mother of the victim did not utter any specific allegations against the appellants and she deposed that the appellant no. 1. Mathura Modi was her samdhi and he had told the mother of the victim (P.W.2) that he was taking her daughter (P.W.1) to his house and would return her back and, thereafter, she (the mother-P.W.-2 of the victim P.W.1) had gone and took her daughter back and, therefore, there is no question of any abduction or kidnapping within the meaning of section 366 of the I.P.C. because the appellant no. 1 was admittedly samdhi of P.W. 2 and he had taken her daughter away from her house and the main allegations uttered in the complaint case were against Bharat Modi, who had sold her sister (victim) for marriage in a sum of Rupees 15,000.00 (Rupees Fifteen thousand only) and with whom the victim has compromised the case and, therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 6. Arguments advanced on behalf of the State 6. On the other hand, learned counsel appearing on behalf of the State vehemently opposed the contentions raised on behalf of the accused appellants and submitted that mother and victim P.W.1 and P.W.2 have been examined on behalf of the prosecution and have supported the case of the prosecution. Also, learned A.P.P. supporting the case of the prosecution submitted that the main accused was Bharat Modi with whom the victim had compromised the case and Bharat Modi was mainly involved in the abduction and in kidnapping for the purpose of solemnizing the marriage of the victim (P.W.-1) with one Baleshwar Prasad (Choudhary), who was also one of the accused persons in this case and his record was split up, but, there is nothing on record to show about the outcome of his trial, if any. Therefore, it is urged on behalf of the State that let this appeal be dismissed being devoid of merit. Appraisal & Findings 7. Having heard the learned counsel for the parties, perused the record of this case including the Lower Court Record. 8. In order to substantiate its case, the prosecution has been able to examine only two witnesses, namely, P.W. 1-the victim and P.W. 2 Shakuntala Devi. Out of these two witnesses P.W.2 is the mother of P.W.1 and except these two witnesses, no other witness has been examined on behalf of the prosecution. 9. It is an admitted case for the prosecution that the victim P.W. 1 and the appellants are related to each other in view of the fact that the appellant no. 1 was the father-in-law of the brother of the victim (Bharat Modi: co-accused) and as such the appellant no. 1 was samdhi of Shakuntala Devi (P.W. 2). 9. It is an admitted case for the prosecution that the victim P.W. 1 and the appellants are related to each other in view of the fact that the appellant no. 1 was the father-in-law of the brother of the victim (Bharat Modi: co-accused) and as such the appellant no. 1 was samdhi of Shakuntala Devi (P.W. 2). It is also evident from the complaint case which is the genesis for the present criminal prosecution i.e. Complaint Case No. 74 of 1993, where it was categorically alleged that it was the brother (Bharat Modi) of the victim who had forcibly entered into the house of the informant along with the co-accused persons including these two appellants and told the victim that he had arranged her marriage with one Baleshwar Choudhary upon which the victim (P.W.1) refused and thereafter, it is said that these appellants along with the co-accused persons including Bharat Modi, Baleshwar Choudhary and Rajendra Modi took the P.W. 1 to their house and later on P.W. 2, the mother of P.W. 1, brought her back from their house. It is also found that the main allegations uttered in the complaint case were against Bharat Modi, who had sold her sister (victim) for marriage in a sum of Rupees 15,000.00 (Rupees Fifteen thousand only) with one Baleshwar Prasad (Choudhary), who was also one of the accused persons in this case and his record was split up but, there is nothing on record to show about the outcome of his trial, if any. The victim had compromised the case with the said co-accused main culprit Bharat Yadav. In this background, this Court proceeds to examine the testimonies of these two witnesses i.e. of P.W.-1 and P.W.-2, who have been examined on behalf of the prosecution. 10. P.W. 1 - the victim, had stated a different story from her earlier statement as presented in the complaint case which is the basis of the instituting the F.I.R. She deposed that the accused persons had entered into her house and assaulted her brother Bharat Modi. While in the earlier statement, she stated that Bharat Modi, who had entered into the house with the other co-accused and asked her to marry with Baleshwar Choudhary. In the cross-examination, this witness (victim) accepted the fact that the appellant no. 1 was the father-in-law of her brother, and co-accused Rajendra Modi was the brother-in-law of her brother. While in the earlier statement, she stated that Bharat Modi, who had entered into the house with the other co-accused and asked her to marry with Baleshwar Choudhary. In the cross-examination, this witness (victim) accepted the fact that the appellant no. 1 was the father-in-law of her brother, and co-accused Rajendra Modi was the brother-in-law of her brother. She had also stated in para-4 of her deposition that her brother's wife is not staying with her brother and she had lodged a divorce case against her brother. She categorically stated in her cross-examination that her brother Bharat Modi had not committed any offence and she had entered into a compromise with him. Thus, the subsequent version of the victim totally demolished the case of the prosecution with respect to the co-accused Bharat Modi, who was the main culprit and as per FIR the said Bharat Modi told the victim and her mother that the marriage of the informant with the co-accused Baleshwar Prasad Choudhary has been fixed by him, but, the informant denied the proposal for that marriage with the said Baleshwar Prasad Choudhary, thereafter, the accused persons told the victim and her mother that the victim had been purchased for a consideration money of Rs. 15,000/-(Rupees Fifteen Thousand) from her son Bharat Modi who was the brother of the victim and son-law of appellant no.1. In the result, it is therefore, inferred that this witness is not reliable and trustworthy upon whose versions, the conviction could not be sustained. 11. Even, the Investigating Officer (I.O.) in this case has not been examined and in absence of the examination of I.O., neither the FIR, nor the time, nor the place, nor the date and nor the mode of the occurrence could formally be proved and further it is found that the date of occurrence was 13.03.1993 and this complaint case was instituted on 29.03.1993 and the formal F.I.R. was drawn on 06.05.1993 and the delay in instituting the case could not be explained anywhere satisfactorily, either in the deposition or in the F.I.R. itself. 12. P.W. 2 Shakuntala Devi, the mother of the victim / informant, deposed that Mathura Modi (appellant no. 1) had asked her as to whether she would marry to her daughter (P.W. 1) to Baleshwar Prasad Choudhary to which she gave reply in the negative. 12. P.W. 2 Shakuntala Devi, the mother of the victim / informant, deposed that Mathura Modi (appellant no. 1) had asked her as to whether she would marry to her daughter (P.W. 1) to Baleshwar Prasad Choudhary to which she gave reply in the negative. Thereafter, these accused persons including two persons took away her daughter (victim), and later on she brought her back to her house and, therefore, neither the statement of kidnapping or abduction has been substantiated by this witness. It is very pertinent to note that the P.W.-2 did not, anywhere, in her deposition mentioned about the ill behaviour on the part of her son-accused Bharat Modi. Moreover, she even has not stated that the co-accused persons were accompanied by her son Bharat Modi when they entered her house on the date of occurrence, and also she did not depose anywhere about the fact as disclosed in the FIR that the money amount of Rs. 15,000/- (Rupees Fifteen Thousand) had been paid to Bharat Modi as a consideration amount for selling her daughter (victim), as alleged. Therefore, major contradictions are found in the depositions of P.W.-1 and that of the P.W.-2. 13. Recapitulating the deposition of the above two witnesses examined on behalf of the prosecution, it is well founded that both the parties including the appellants and the prosecution party are related to each other. At the outset, the allegation was made against her own brother, but, later on she did not utter a single word against him as she had entered into a compromise with him. 14. Having appreciated the testimonies of the witnesses, it is found that virtually it is a case of differences between the family members for the sake of marriage of the victim and no offence is made out as alleged in the FIR against any of the two appellants either of abduction or kidnapping within the meaning of sections 366 or 366-A of the I.P.C. Further, it is found that the I.O. in this case has not been examined which has caused serious prejudice to the defence of the appellants. The attention of the P.W. 2 was drawn to her earlier statement which she gave before the police, but, due to non-examination of the I.O., the veracity and genuineness of P.W. 2 could not be verified and as such it has caused serious prejudice to the defence of the appellants as the appellants have been debarred from their valuable rights to cross-examine the I.O. for the purpose of the contradiction, and thus the appellants were badly affected for want of fair trial in the family dispute with respect to the marriage of the victim. 15. Further from the perusal of the statement recorded u/s 313 of the Cr.P.C., 1973, it is found that no specific incriminating evidence has been put forth by the court from the accused persons during the course of their examination and as such it has also caused serious prejudice to the mandate of fair trial. Even if the version of the victim is accepted, it is found that it was the co-accused Bharat Modi and Baleshwar Prasad Choudhary, who were the main culprits and not these co-accused appellants. Neither in the version of P.W. 1 nor in the version of P.W. 2, any evidence has come out about the specific role of any of the appellants either in inducing or compelling or forcing or seducing the victim either for the marriage or for having illicit intercourse, in order to, constitute the offences punishable u/Ss. 366 of the I.P.C. The prosecution has miserably failed to ensure the presence of the other charge-sheet witnesses in order to substantiate the case of the prosecution, so no other chargesheet witnesses were produced despite the fact, as it appears from the record, that the learned trial court has taken several steps to ensure their presence. Thus, the prosecution has failed to substantiate the charges levelled against the accused persons. Thus, the prosecution has failed to substantiate the charges levelled against the accused persons. The learned trial court has committed a gross error in appreciating the evidences in totality as evaluated in the foregoing paragraphs by this Court, and the testimonies of P.W. 1 and P.W. 2 have not substantiated the case u/s. 366 of the I.P.C. It is a case of a family dispute where the brother of the victim wants to solemnize her marriage with one Baleshwar Prasad Choudhary, but, she did not want to marry with this person and, therefore, this case was instituted, which is clear from the FIR and subsequently from the versions of P.W. 1 and P.W. 2, and further the victim (P.W. 1) later on had entered into a compromise with her brother Bharat Modi (D.W. 1), who was the main culprit of the entire offence. 16. In the result, the impugned judgment of conviction dated 24.06.2006 and order of sentence dated 26.06.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Koderma in Sessions Trial No. 103 of 1994 corresponding to G.R. Case No. 272 of 1993 (T.R. No. 280 of 1994) in connection with Chouparan P.S. Case No. 69 of 1993 against the appellants is set aside. 17. This appeal is allowed. 18. The accused-appellants are hereby acquitted of the charges levelled against them and since they are on bail, they are discharged from the liabilities of bail bonds. 19. Let the L.C.R. be sent back to the concerned court below along with the copy of this judgment.