Jharkhand High Court
Prameshwar Mudi Son Of Sri ... vs The State Of Jharkhand on 9 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 224 of 2012
Prameshwar Mudi son of Sri Kalicharan Mudi, resident of
village Barabamboo, P.O. and P.S. Kharswan, District Seraikella
- Kharswan ... ... Petitioner
Versus
1. The State of Jharkhand
2. Raso Kola @ Pinki Mudi D/o Late Ganesh Mudi
... ... Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. R.C.P. Sah, Advocate
For the State : Mr. Md. Hatim, Advocate
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Through Video Conferencing
C.A.V. On 23.03.2021 Pronounced on 09/04/2021
1. Heard Mr. R.C.P. Sah, learned counsel appearing on behalf
of the petitioner.
2. Heard Mr. Md. Hatim, learned counsel appearing on
behalf of the opposite party - State.
3. This revision application has been filed challenging the
correctness and legality or propriety of the judgement dated
19.03.2009 passed by the learned Sessions Judge, Seraikella-
Kharswan in Criminal Appeal No. 34 of 2005 whereby he has
upheld the conviction/sentence of the petitioner passed by the
learned S.D.J.M., Seraikella.
4. The petitioner was sentenced to undergo Simple
Imprisonment for four months for offence under Section 417 of
Indian Penal Code and Simple Imprisonment for six months for
offence under Section 500/34 of Indian Penal Code. The co-
accused parents of the petitioner were also sentenced for Simple
Imprisonment for six months for offence under Section 500/34 of
Indian Penal Code. The judgement of the trial court was passed
in Trial No. 100 of 2005 / C/1 Case No. 37 of 2002.
5. The learned appellate court confirmed the conviction and
sentence of the petitioner and acquitted the co-accused parents
of the petitioner.
6. Learned counsel for the petitioner submits that during the
pendency of this revision petition, the petitioner has already
remained in custody for a period from 20.03.2012 to 02.07.2012.
The learned counsel submits that the present age of the
petitioner is 49 years and the present age of the victim is 40
years. He submits that the case arises out of a complaint filed in
the year 2002.
7. While mentioning about factual background of the case,
the learned counsel submits that, a case under Section 376 of
Indian Penal Code was filed by the complainant against the
petitioner which ended into a compromise and the petitioner
was acquitted. However ultimately, the petitioner did not marry
the complainant. He submits that subsequently, the present
complaint was filed in the year 2002 in which the petitioner has
been ultimately convicted under Sections 417 and 500 of Indian
Penal Code.
8. The learned counsel for the petitioner has confined his
arguments on the point of sentence and has submitted that
considering the fact that much time has elapsed and also the fact
that the petitioner does not have any criminal antecedent, some
lenient view may be taken and sentence of the petitioner may be
confined to the period already undergone by the petitioner in jail
custody. The learned counsel also submits that he has come to
know that the victim of the present case has already got married.
9. Learned counsel appearing on behalf of the opposite
party- State, on the other hand, opposes the prayer and submits
that there are concurrent findings which do not call for any
interference in revisional jurisdiction. He further submits that in
case this Court is inclined to modify the sentence of the
petitioner, then some fine amount may be imposed.
Findings of the Court
10. The prosecution story, as per the complaint petition was
that the complainant used to reside with her uncle since
childhood due to death of her parents. The accused persons
namely Prameshwar Mudi, Kali Charan Mudi and Debki Mudi
wife of Kali Charan Mudi are also residents of the same village.
The complainant had gone to Tamlup, West Bengal to work as a
labourer at the brick kiln and the present petitioner had also
gone there, who developed intimacy with the complainant and
forcibly established physical relationship with her on the
assurance of marriage and accordingly, he sexually exploited the
complainant since January, 2001 and till June, 2001 during their
stay. This fact was known to the co-labourer. The complainant
came to her native village in the last week of June, 2001 and the
petitioner also followed her. The petitioner sexually exploited
the complainant till 24th August 2001 on the assurance to marry
and when the complainant insisted for solemnization of the
marriage, the petitioner and his parents flatly refused.
11. It was further the case of the complainant that despite
good effort of the complainant's relatives and co-villagers,
accused did not agree to solemnize the marriage and seeing no
solution to her problem, the complainant lodged a First
Information Report against the petitioner on the basis of which,
a criminal case under Section 376 of Indian Penal Code was
registered against him and he was taken into judicial custody.
The case was registered as G.R. Case No. 522 of 2001.
12. After submission of charge-sheet, the petitioner was
charged under Section 376 of Indian Penal Code to face trial in
S.T. No. 227 of 2001.
13. While the petitioner was in custody, his parents
approached the complainant and acceded to accept her as wife
of their son i.e. the petitioner, and asked her to compromise the
case. The complainant was also called several times by the
petitioner from Seraikella sub-jail and he also assured her to
solemnize marriage with her and even an application was made
for solemnization of civil marriage before the marriage Registrar
at Seraikella to convince the complainant about the intention of
the petitioner. The petitioner also wrote several letters to the
complainant and her relatives assuring marriage with her.
Consequently, the complainant agreed to file a petition for
compromise of the criminal case by believing the assurance of
the accused persons and the case was disposed with a
judgement of acquittal on 24.12.2001.
14. The further case of the complainant is that after being
released from the custody, the petitioner went back to his village
and again exploited the complainant for some days assuring her
to solemnize marriage and after about one month, he suddenly
went away to Tamlup and started residing there. The
complainant and her family members approached the parents of
the petitioner for solemnization of marriage, but finally all the
accused persons refused to solemnize the marriage despite
repeated request. The petitioner refused to come to the village to
solemnize marriage with the complainant. This led to lowering
the reputation of the entire family of the complainant. With this
background, it was alleged that the petitioner established
physical relationship on false compromise to marry the
complainant and also succeeded in getting acquittal in the rape
case by inducing the complainant to compromise the case on
false promise and thus, the accused persons which included the
petitioner and his parents, have played cheating and caused
defamation of the complainant and her family.
15. The complaint petition was filed and after recording the
statement of the complainant, the learned C.J.M., Seraikella took
cognizance of the offence under Sections 417 and 500/34 of
Indian Penal Code against all the accused and the case
proceeded. After the prosecution evidence on 17.12.2003, the
statement of the accused under Section 313 of Code of Criminal
Procedure was also recorded in which they denied the
allegations.
16. Altogether five witnesses were examined by the
prosecution before the learned trial court. P.W. 1 was the elder
brother of the complainant and P.W. 4 was the
victim/complainant.
17. Exhibit- 1 was the written undertaking dated 18.12.2001 by
the petitioner compromising therein to lead conjugal life with
the complainant after solemnizing marriage with her. Exhibit- 2
was a letter dated 30.11.2001 written by the petitioner addressing
his uncle. Exhibit- 3 was undertaking dated 16.12.2001 executed
by the petitioner binding him to lead conjugal life with the
complainant and maintain relation of couple with her. Exhibit- 4
was the letter dated 22.10.2001 written to the sister-in-law by the
petitioner requesting her to meet alongwith the complainant and
another at the sub-jail, Seraikella. Exhibit-5 was a letter dated
19.09.2001 written by the petitioner to the sister-in-law
requesting therein to help the petitioner in solemnization of his
marriage with the complainant in the court. Exhibit- 6 was letter
dated 07.05.2001 written by the petitioner and addressed to the
complainant expressing his love with the complainant and
assuring her to solemnize court marriage, if she will manage to
release him from jail custody. Exhibit - 7 was letter dated
30.11.2001 written by the petitioner addressed to the
complainant showing his love towards the complainant assuring
her that if he would marry, then it would be only the
complainant. Exhibit- 8 was another letter dated 22.10.2001
written by the petitioner and addressed to the complainant
regarding getting the letter of the complainant and assuring her
to solemnize the court marriage after being released from jail
custody. Exhibit- 9 is certified copy of the judgement passed in
aforesaid S.T. Case No. 227 of 2001 "State Vs. Prameshwar Mudi
by which accused was acquitted of the charges under Section 376
of Indian Penal Code on 24.12.2001.
18. The defence also examined two witnesses to rebut the
testimony of the prosecution witness and the defence did not file
any documentary evidence as such.
19. The learned trial court considered the evidences of all the
witnesses including the defence witnesses and held that the
prosecution has been fully able to prove the charges against all
the three accused and convicted and sentenced them
accordingly. The present petitioner was convicted of charge
under Section 417 and 500/34 of Indian Penal Code and his
parents were convicted of charge under Section 500/34 of Indian
Penal Code.
20. The learned trial court, while sentencing the accused,
refused to give benefit of Probation of Offenders Act to the
accused considering the nature and background of the case.
21. So far as the learned appellate court is concerned, it was
argued before the learned appellate court that every promise
under law or any promise, if made to anyone and if not fulfilled,
will not come within the purview of Section 417 of Indian Penal
Code. It was argued that the complainant in the earlier case filed
under Section 376 of Indian Penal Code had not supported the
allegation of sexual intercourse by the present petitioner and
thus, allegation in the present case that she was sexually
exploited by use of force, has got no legs to stand. It was also
urged that it was a finding of the Sessions Court that no
force/intercourse or any overt or illegal act was committed by
the present petitioner. It was also argued that even after return
of the accused from the custody, the complainant and the
present petitioner had voluntarily entered into cohabitation
which was not secret one, rather known to all the family
members, the villagers, co-villagers and there was no forceful
action on the part of the petitioner with the complainant. The
argument was also advanced that all the witnesses are inter se
related and highly interested witnesses and in absence of any
independent witness, the conviction cannot be sustained.
22. The learned lower appellate court considered the
evidences on record and recorded its independent finding in
para 22, 23 and 24 of its judgement which read as under:
"22. In view of the evidence which is referred above one
thing is very much clear that the accused No. 1 and the
complainant had to village Tamluk in West Bengal to work at
brick kiln. Ext. 9 shows that the accused No. 1 was tried for
offence of rape but was acquitted as because the parties have
entered into compromise. The complainant has also resiled back
from her statement of forceful sexual intercourse. Thus the
accused was acquitted. It also shows that at the time of judgment
the accused was in custody and was allowed to be released.
23. As observed above while referring the witness of
prosecution/complainant statement of the witness regarding
forceful intercourse, or sexual intercourse on the pretext of
marriage is asserted by the witness which is not demolished in
cross-examination rather there is evidence which shows that the
sexual intercourse in between the complainant and the accused
No. 1 was known to the family members, the villagers the co-
labourers and it has also come on record that even the near relative
of the complainant examined as witnesses have not objected
because there was talk of marriage in between the accused No. 1
and the complainant and these facts has even been accepted during
cross-examination which amounts to admission by the accused.
The complainant has also exhibited letters as Ext. 1 to 9. If the
said letters are considered it will transpire that while the accused
was in custody he has written this letters. Here the evidence of
P.W. 4 may be considered who has exhibited these letters but the
documents Ext. 1 to 9 has not been challenged by the accused. In
these letters the accused No. 1 vouched himself that he is accepting
the complainant as his wife and he will marry her and was even
ready to court marriage. Though not in definite words but the
accused No. 1 admitted that he has committed something against
the complainant which has lowered down the prestige of the
girl/complainant. The accused No. 1 has even bowed down before
the complainant and stated that on the day when he will be
released from the prison, he will marry the complainant and asked
the complainant to forgive her. In all the letters he has given one
message that he want reprive from the complainant and his family
and prays them to forgive him for the misdeed he has committed
against the complainant. As per the case of the complainant the
only misdeed is the sexual intercourse or the rape at the relevant
time upon the person of the informant and he want to be forgiven
for that.
24. In the circumstances when the accused no. 1 has even
accepted to marry the complainant while earlier case was pending.
Thus, on the pretext of the said marriage, forced the
informant/victim to resiled from her earlier statement. Moreover
as per the case of the complainant that even after release the
complainant and the accused no. 1 have entered themselves in
sexual intercourse and resided as husband and wife though no
marriage was performed, ultimately the accused fled away without
marrying the complainant. Thus, in this way, the accused no. 1
has cheated the complainant. In my view also the learned court
has committed no illegality in convicting the accused under
Section 417 IPC in view of his own admission and letters that due
to act of the accused, the complainant's respect was lowered down.
Thus, he was also rightly been convicted for offence under Section
500 of Indian Penal Code and in the circumstances, the sentence is
also not harsh and needs no interference."
23. So far as the other two persons i.e. the parents of the
petitioners are concerned, the learned lower appellate court was
of the view that the only allegation against them was that they
neither consented for marriage nor they tried to get the
petitioner and the complainant married in spite of village
Panchayat or other pressure. The learned lower appellate court
was of the view that the conviction of the parents of the
petitioner was not sustainable in the eyes of law and they were
accordingly acquitted.
24. The Hon'ble Apex Court has explained the power of
revisional court in the case of Jagannath Choudhary and others
reported in (2002) 5 SCC 659 at para. 9 as under:-
"Incidentally the object of the revisional jurisdiction as
envisaged u/s 401 was to confer upon superior criminal
courts a kind of paternal or supervisory jurisdiction, in
order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of
proper precautions of apparent harshness of treatment
which has resulted on the one hand in some injury to the
due maintenance of law and order, or on the other hand
in some underserved hardship to individuals. (See in this
context the decision of this Court in Janata Dal Vs. H.S.
Chowdhary) . The main question which the High Court
has to consider in an application in revision is whether
substantial justice has been done. If however, the same
has been an appeal, the application would be entitled to
demand an adjudication upon all questions of fact or law
which he wishes to raise, but in revision the only question
is whether the court should interfere in the interests of
justice. Where the court concerned does not appear to
have committed any illegality or material irregularity or
impropriety in passing the impugned judgment and
order, the revision cannot succeed. If the impugned order
apparently is presentable, without any such infirmity
which may render it completely perverse or unacceptable
and when there is no failure of justice, interference
cannot be had in exercise of revisional jurisdiction."
25. The revisional power is further explained in the case of
Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para.
13 as follows:
"It is well settled that revisional interference may be
justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based
on evidence.
(iv) material evidence of the parties is not considered
and
(v) judicial discretion is exercised arbitrarily or
perversely."
26. In the case Duli Chand v. Delhi Administration, (1975) 4
SCC 649, the Hon'ble Supreme Court while considering the
scope of revisional power held in paragraph-5 as follows:
"5. The High Court in revision was exercising
supervisory jurisdiction of a restricted nature and,
therefore, it would have been justified in refusing to re-
appreciate the evidence for the purposes of determining
whether the concurrent finding of fact reached by the
learned Magistrate and the learned Additional Sessions
Judge was correct. But even so, the High Court
reviewed the evidence presumably for the purpose of
satisfying itself that there was evidence in support of the
finding of fact reached by the two subordinate courts
and that the finding of fact was not unreasonable or
perverse."
27. This Court finds that both the learned courts below have
scrutinized the materials on record and have come to consistent
findings in connection with commission of the offence by the
petitioner under Section 417 of Indian Penal Code as well as
under Section 500/34 of Indian Penal Code. The learned counsel
for the petitioner has not pointed out any material to show any
illegality or perversity in the impugned judgments. It has been
established beyond doubt on record, that initially the
complainant had filed a case under Section 376 of Indian Penal
Code against the petitioner which was registered as G.R. Case
No.522 of 2001 and the petitioner faced trial in corresponding
with the Sessions Trial Case No.227 of 2001. In the said case,
allegation was made by the complainant that the petitioner had
entered into physical relationship with her on assurance of
marriage but ultimately, he refused to marry her. It has also been
established that during the pendency of the said trial under
Section 376 of Indian Penal Code, the petitioner and the
complainant entered into a compromise, again on the assurance
from the side of the petitioner, that he would marry her once he
is released from jail custody. This ultimately led to acquittal of
the petitioner in aforesaid case under Section 376 of Indian Penal
Code vide judgment of acquittal dated 24.12.2001. Thereafter,
the petitioner was released and established sexual relationship
with the complainant for some days again with an assurance of
solemnization of marriage and ultimately, the petitioner denied
to marry the complainant.
28. The crux of the allegations in the subsequent case i.e
the present one, is that the petitioner compromised the case filed
under Section 376 of Indian Penal Code on false promise of
marriage with the complainant and after acquittal in the said
case, the petitioner again established physical relationship with
the complainant under false promise of marriage and ultimately
refused to marry. Accordingly, it was alleged that the petitioner
and his parents has played cheating and caused defamation on
the complainant and her family.
29. This Court further finds that a large number of exhibits
were produced by the complainant to establish the false promise
of marriage by the petitioner as mentioned in para 14 above and
the learned courts below while considering the evidences of the
complainant (P.W.4) along with the exhibits, which were never
challenged by the accused, was of the view that the prosecution
has established the case against the petitioner and accordingly,
the learned courts below gave concurrent findings of facts, so far
as the petitioner is concerned, after due appreciation of the
materials on record.
30. Considering the manner in which the offence has been
committed by the petitioner, this Court is of the considered view
that the petitioner does not deserve any lenient view in the
matter and the learned courts below have rightly not granted the
benefit of Probation of Offenders Act to the petitioner. This
Court is of the view that there is little scope for interference in
revisional jurisdiction. There being no illegality or perversity in
the impugned judgments and sentence passed against the
petitioner, accordingly, the present revision application is hereby
dismissed.
31. Accordingly, this criminal revision petition is hereby
dismissed.
32. Bail bond furnished by the petitioner is hereby cancelled.
33. Interim order, if any, stands vacated.
34. Pending interlocutory application, if any, is also dismissed
as not pressed.
35. Let the lower court records be immediately sent back to
the learned court below.
36. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj/Saurav
