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2023 DIGILAW 1276 (JHR)

Sudhpati Khan v. State of Jharkhand

2023-10-18

SANJAYA KUMAR MISHRA

body2023
JUDGMENT : 1) In this appeal the sole appellant has assailed the judgment dated 04.02.2003 passed by the learned 3rd Additional District and Sessions Judge, (Fast Track), Jamtara, in Sessions Case No. 148 of 1998/61 of 2002 whereby, the appellant has been convicted for the offences under Sections 493 and 312 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘Penal Code’ for brevity) and sentence dated 04.03.2003 imposing the punishment to undergo rigorous imprisonment for four years and a fine of Rs. 2000/-for the offence under Section 493 of the Penal Code and rigorous imprisonment for one year and fine of Rs. 500/-for the offence under Section 312 of the Penal Code. In default of payment of fine the accused shall further go simple imprisonment of six months and one month, respectively. Both the sentences were directed to run concurrently. 2) It appears that the judgment reflects that the judgment has been pronounced on 04.02.2003. However, the ordersheet reveals that on that date the case was posted for arguments and thereafter, it suffered several adjournments, i.e., 07.02.2003, 10.02.2003, 17.02.2003, 18.02.2003, 20.02.2003, 24.02.2003, 28.02.2003, 03.03.2003 and finally on 04.03.2003 the judgment has been signed. It is not understood how the judgment has been signed on 04.03.2003, but it has been pronounced on 04.02.2003. It appears that there is mistake on the part of the Presiding Judge. While correcting the judgment it should have been appropriately dated. However, keeping in view the fact that he has retired no adverse comment need be passed against him. 3) The case of the prosecution in short is that a complaint was filed by the complainant (name withheld) before the Officer Incharge, Bagdehri Police station, District-Dumka now Jamtara. On 02.08.1995, inter alia, alleging that the complainant is residing in her village with her mother and two sisters and three brothers. The complainant is aged about 17 years. The appellant, who is living just adjacent to the house of the complainant, started visiting the house of the complainant from the month of Paush. The further case of the complainant is that the appellant taking advantage of poverty of the complainant’s family insisted the complainant to make sexual relations with the accused. The complainant further asserted that the appellant brought the complainant to the village Gosainthan and made a promise after putting his hand on the head of the complainant that he has married her. The complainant further asserted that the appellant brought the complainant to the village Gosainthan and made a promise after putting his hand on the head of the complainant that he has married her. The complainant believing that marriage as legal and valid gave her consent of co-habitation with the appellant. The complainant further stated that the complainant and the accused live in the house of the complainant as husband and wife. The further case of the prosecution is that on the first day of Falgun, the complainant became pregnant. The appellant brought the complainant to Rajnagar for her treatment. At Rajnagar the complainant was given some medicine by the doctor and on account of taking medicine the complainant suffered miscarriage. The complainant again requested the appellant to perform the marriage ceremony according to the social custom, but the appellant fled away from the village. Thereafter, the matter was referred to Sarpanch and after enquiry the Sarpanch forwarded the matter to the Officer Incharge, Bagdehri Police Station, but the Officer Incharge did not institute any case as such, a complaint petition bearing P.C.R. Case No. 252/95 was filed by the complainant before the learned Additional Chief Judicial Magistrate, Jamtara. On the basis of the complaint petition Kundahit (Bagdehri) P.S. Case No. 71/95 was instituted and after investigation the police submitted charge-sheet against the appellant under Sections 493,376 and 312 of the Penal Code. The learned Magistrate took cognizance of the offence and after completing of formalities the case was committed to the court of Sessions. 4) The defence took the plea of total denial and stated that he has been falsely implicated in this case due to ulterior motive. 5) In order to prove its case, the prosecution has examined six witnesses. P.W.1 being the complainant herself, P.W.2 is her mother (name of the complainant and her mother has been withheld to conceal their identities in terms of the judgment passed by the Hon’ble Supreme Court in the case of Nipun Saxena and another Vs. Union of India and others, (2019) 2 SCC 703 ). The other witnesses like P.W.3-Narayan Chandera Manjhi, P.W.4-Naresh Chandera Khan, P.W.5-Khudi Ram Manjhi are all villagers who have not supported the case of the prosecution. P.W.-6 Nandlal is Sarpanch of the village. Union of India and others, (2019) 2 SCC 703 ). The other witnesses like P.W.3-Narayan Chandera Manjhi, P.W.4-Naresh Chandera Khan, P.W.5-Khudi Ram Manjhi are all villagers who have not supported the case of the prosecution. P.W.-6 Nandlal is Sarpanch of the village. 6) After considering the evidence of the prosecution the learned Additional Sessions Judge came to the conclusion that the offence under Section 376 of the Penal Code is not made out. However, he came to the conclusion that the prosecution has proved this case beyond all reasonable doubts as per the offence under Section 493 and 312 of the Penal Code are concerned. In this connection, I have assessed the evidence of P.W.1, who has stated that the occurrence took place about seven years back. It was the month of Falgun. The appellant, who is a neighbour, was in visiting terms with them. Her father had died in the meantime. She has further stated that the appellant promised that he will marry her and that she agreed to it. The appellant took her to Gosainthan and in front of the deity he put his hand on her head and accepted her as his wife. Thereafter, they started residing as husband and wife. She further stated that he was sleeping with her in the night and they were residing as husband and wife. Thereafter, she became pregnant. When she was three months pregnant the appellant, her husband, asked her to accompany him to Rajnagar hospital for checkup. She went to Rajnagar hospital. There the Doctor gave an injection to her and some medicines to be taken by her. Her husband gave Rs. 300/-to the doctor. As a result of medication she suffered miscarriage. Thereafter, she asked the appellant to solemnize their marriage as per the caste and customs, but thereafter, the appellant was not staying with her. The Sarpanch of the village was informed about it. A Panchayat was convened, but the appellant did not obey the directions given by the Sarpanch and therefore, the Sarpanch directed her to file a case in the court. In the cross-examination, she has stated that they are residing in two rooms house along with her brothers and sisters. One of her sister was given marriage about 3 years back, but she died. At that time, her age was 17 years. In the cross-examination, she has stated that they are residing in two rooms house along with her brothers and sisters. One of her sister was given marriage about 3 years back, but she died. At that time, her age was 17 years. She further stated in cross-examination that during night her mother and sisters used to sleep in one room whereas, her husband and she used to sleep in another room. The appellant remained with them for 3 to 4 months as husband and wife. In her cross-examination she admitted that she cannot tell the name of the Doctor who has administered medicine at Rajnagar. She could not also tell the name of the medicines that was administered to her. She could not tell about the prescriptions given by the Doctor. 7) Thus, it is apparent that the witness has not given any details of the offence under Section 312 of the Penal Code. The Doctor has not been examined. In fact investigation does not reveal who is the Doctor, who conducted miscarriage on the victim lady. In the absence of any corroborative evidence, it is improper on part of the learned Additional Sessions Judge to record conviction under Section 312 of the Penal Code and this Court is of the opinion that the offence under Section 312 of the Penal Code has not been established in this Case and therefore, the appellant is entitled to be acquitted of this case. The offences under Section 376 of the Penal Code is not made out as the victim was a consenting party to the same and the occurrence took place in the year 1995 when the age of consent as per definition of rape under Section 375 of the Penal Code was 16 years. Thus, the learned Additional Sessions Judge is correctly come to the finding that the offence under Section 376 of the Penal Code is not made out in this case. Thus, the learned Additional Sessions Judge is correctly come to the finding that the offence under Section 376 of the Penal Code is not made out in this case. 8) The offence under Section 493 of the Penal Code is made out when it is established by the prosecution beyond reasonable doubt that the accused by deceit caused any woman who is not a lawfully married to him, believe that she is lawfully married to him and to cohabit or to have sexual intercourse with him in that belief and in such case, he shall be punished for the offence under Section 493 of the Penal Code and may be sentenced to imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 9) The very case of the prosecution is that the appellant was residing as a neighbour of the complainant’s family. Further taking advantage of the poverty of the complainant’s family he insisted that the complainant should have sexual relationship with him. The complainant further asserted that the appellant brought her to the village Gosainthan and made promise by putting his hand on her head that he has married her. Thus, it is clear that even prior to this alleged declaration that the appellant has married the complainant they had sexual relationship. P.W.2 has also stated that the incident took place about seven years back and at that time her daughter was 17 years old. The appellant used to come to their house and used to tell her that he would marry her. Ultimately, he took her to Gosainthan and put his hand on her head and said that he has married her. Thereafter, they started living as husband and wife in their house and during such conjugal relationship her daughter became pregnant. She was taken by the appellant in the month of Baishakh to the Doctor at Rajnagar. What happened at Rajnagar and who was the doctor who treated her could not be stated by the said witness. Thereafter, they returned and the appellant told that he will not marry the complainant. In cross examination, she admitted that at the time of her deposition her daughter is aged about 30 years. 10) In this connection, we take into consideration the reported case of Ram Chandra Bhagat Vs. Thereafter, they returned and the appellant told that he will not marry the complainant. In cross examination, she admitted that at the time of her deposition her daughter is aged about 30 years. 10) In this connection, we take into consideration the reported case of Ram Chandra Bhagat Vs. State of Jharkhand, (2013) 1 SCC 562 , wherein the facts of the case are similar except the fact that in the reported case the appellant and the complainant signed a document for registration, but there was no registration as such the Hon’ble Supreme Court came to the conclusion that the women induced to change her status by deceitful means. At paragraph 19, Hon’ble Justice R.M. Lodha concurring the judgment authored by Hon’ble Justice Anil R. Dave, for himself and Hon’ble Justice S.J. Mukhopadhaya, has held if a woman is induced to change her status from that of an unmarried to that of a married woman with all the duties and obligations pertaining to the changed relationship and that result is accomplished by deceit, such woman within the law can be said to have been deceived and the offence under Section 493 IPC is brought home. Inducement by a person deceitfully to a woman to change her status from unmarried woman to a lawfully married woman and on that inducement making her cohabit with him in the belief that she is lawfully married to him is what constitutes an offence under Section 493. The victim woman has been induced to do that which, but for the false practice, she would not have done and has been led to change her social and domestic status. The ingredients of Section 493 can be said to be fully satisfied when it is proved – (a) deceit causing a false belief of existence of a lawful marriage, and (b) cohabitation or sexual intercourse with the person causing such belief. It is not necessary to establish the factum of marriage according to personal law but the proof of inducement by a man deceitfully to a woman to change her status from that of an unmarried to that of a lawfully married woman and then make that woman cohabit with him establishes an offence under Section 493 IPC. 11) Section 493 of Penal Code does not pre-supposes the marriage between the accused and the victim necessarily by following rituals of marriage by customs and ceremonies. 11) Section 493 of Penal Code does not pre-supposes the marriage between the accused and the victim necessarily by following rituals of marriage by customs and ceremonies. What is clearly provided and emphasis is on the inducement of a belief in the women that she is a lawfully married to the appellant and the inducement of such lawfully marriage inferred by a deceitful means. In this case, the victim is a poor, illiterate and rustic girl, aged about 17 years, at the time of occurrence and therefore, the impression given by a matured man, aged about 33 years, would definitely lead her to believe that she is married to the man. 12) In that view of the matter, this Court is of the opinion that not only the evidence of P.W.1 which is supported by P.W.2 her mother, the evidence of P.W.5 that there was complaint before the Panchayat and the Sarpanch asked the appellant to marry to victim, but he did not agree to it. Therefore, the case has been initiated. He has also stated about the alleged relationship between victim and the appellant. Similarly evidence of P.W 4 Naresh Chandera Khan reveals that the appellant was visiting the complainant and her family regularly which also corroborates the statement given by the victim and her mother. P.W.6 is the Sarpanch of the village. He also speaks about the incident, but he stated that he heard from the people. He has proved that the complaint submitted by the victim before him and that he is also stated that after learning about incident he made enquiry and asked the appellant and his parents to marry the victim, but he did not agree and therefore, he directed the complainant to file an appropriate application before the Court. Thus, it is clear that the ingredients of the offence have been made out in this case. 13) Learned counsel for the appellant would submit that since there is no pretended ceremonies according to the caste and customs the appellant cannot be held to be guilty of offence under Sections 493 of the Penal Code. However, we do not agree with the said submission as the statute do not provide that the deceitful means by which the impression is given to the victim must be accompanied by some kind of ritual. However, we do not agree with the said submission as the statute do not provide that the deceitful means by which the impression is given to the victim must be accompanied by some kind of ritual. All that the law requires to be established by the prosecution that the victim should have been led to believe that she is lawfully married to him, and such impression has been obtained by deceitful means which led to her to cohabit with him. Thus, this Court is of the opinion that the prosecution has established all the ingredients required to take the offence under Section 493 of the Penal Code. 14) Learned counsel for the appellant has relied upon unreported judgment of the Hon’ble Supreme Court in Criminal Appeal No. 250 of 2020, Arun Singh & others Vs. State of U.P. through its Secretary and another, wherein the Hon’ble Supreme Court has taken into consideration the principles laid down in the case of Ram Chandra Bhagat Vs. State of Jharkhand (supra), but on factual aspect distinguish the case in hand. 15) Learned counsel for the appellant would further submit that in this case the Investigating Officer has not been examined and therefore, the appellant should not be convicted of the offence. 16) The evidence of P.W.1 reveals that she has though been cross examined her statement she was led to believe that she had married the appellant and therefore, consented to sexual intercourse has not been shaken. Moreover, no contradiction has been brought out either from P.W.1 or P.W.2 or any other witnesses which would have require examination of the Investigating Officer for proving such contradiction. In recently concluded appeals bearing Cr. Appeal (DB) Nos. 234 of 1995 (P) with Cr. Appeal (DB) No. 284 of 1995(P) and Cr. Appeal (SJ) No. 234 of 2003 and after considering the judgments of the Hon’ble Supreme Court in the cases of Behari Prasad Vs. State of Bihar, (1996) 2 SCC 317 , Ram Gulam Chaudhary Vs State of Bihar, (2001) 8 SCC 311 and Raj Kishore Jha Vs. State of Bihar, (2003) 11 SCC 519 , we have held that it is not inviolable rule of law that the appellant should be acquitted if the Investigating Officer is not examined. If the Investigating Officer is not examined and prejudice has caused to the defence then only it would lead to acquittal of the appellant. State of Bihar, (2003) 11 SCC 519 , we have held that it is not inviolable rule of law that the appellant should be acquitted if the Investigating Officer is not examined. If the Investigating Officer is not examined and prejudice has caused to the defence then only it would lead to acquittal of the appellant. Whether prejudice has been caused or not is always a question of fact to be determined on the peculiar facts and circumstances of each case and this Court is of the opinion that it is not a fit case to hold that the appellant has suffered any kind of prejudice because of non-examination of the Investigating Officer. 17) In that view of the matter, I am of the opinion that the appeal must fail and therefore, the order of conviction under Section 493 of the Penal Code is hereby, confirmed. However, offence under Section 312 of the Penal Code has not been established by the prosecution because of non-examination of the doctor etc. and therefore, the appellant is acquitted of the offence. On the question of sentence, it is submitted that the occurrence took place at about three decades back and in the meantime, the appellant has become a senior citizen and no useful purpose would be served by sentencing him to undergo imprisonment for four years. Records reveal that the appellant has undergone imprisonment for about one month and seven days. The appellant is hereby, directed to undergo imprisonment for three months and pay fine of Rs. 2000/-for the offence under Section 493 of the Penal Code and in default of payment of fine the appellant shall further go imprisonment of one month. 18) Pending application, if any, stands disposed of. 19) Records of the Trial Court be forthwith transmitted to the court of original jurisdiction along with a copy of this judgment. 20) We place on record our appreciations to Dr. H. Waris, the learned counsel for the appellant as Amicus, for the efforts undertaken and valuable assistance provided by him. 21) Grant urgent certified copy of this order as per the Rules.