Jharkhand High Court
Chundri Devi Wife Of Balki Mahto vs The State Of Jharkhand on 4 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 157 of 2014
1. Chundri Devi wife of Balki Mahto
2. Deoki Devi wife of Mohan Mahto ... .... Petitioners
-Versus-
1. The State of Jharkhand
2. Tukani Devi wife of Mohan Mahto ... ... Opp. Parties
With
Criminal Revision No. 1203 of 2013
Mohan Mahto ... .... Petitioner
-Versus-
1. The State of Jharkhand
2. Tukani Devi wife of Mohan Mahto ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Vijay Kumar Roy, Advocate
(In both cases)
For the O.P. No.1-State : Mrs. Vandana Bharti, A.P.P.
(In both cases)
For the O.P. No. 2 : Mr. Sahadeo Choudhary, Advocate
(In Cr. Rev. No. 1203 of 2013)
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Through Video Conferencing
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Order No.14 C.A.V. on 24.09.2020 Pronounced on 04.01.2021
1. Heard Mr. Vijay Kumar Roy, learned counsel appearing on
behalf of the petitioners in both the cases.
2. Heard Mrs. Vandana Bharti, learned A.P.P. appearing on behalf
of the Opposite Party-State in both the cases.
3. Heard Mr. Sahadeo Choudhary, learned counsel appearing on
behalf of the Complainant in Cr. Revision No. 1203 of 2013.
4. Both these criminal revision petitions are directed against the
Judgment dated 23-11-2013 passed by the learned 8th Distt. &
Addl. Sessions Judge, Hazaribag in Criminal Appeal
No.112/2013 whereby and whereunder the learned appellate
court upheld the Judgment of conviction and order of sentence
passed by the learned trial court and dismissed the appeal.
5. The criminal appeal was preferred against the Judgment of
conviction and the order of sentence dated 01-07-2013 passed by
the learned Judicial Magistrate, 1st Class, Hazaribag in C. Case
No.915 of 2009 / T.R. Case No.2463 of 2013 whereby and
whereunder the petitioners were convicted in the following
manner:
a) Mohan Mahto was convicted under Section 494 of the
Indian Penal Code and Deoki Devi was convicted under
Section 494/109 of the Indian Penal Code.
b) Mohan Mahto and Chundri Devi were convicted under
Section 498-A of the Indian Penal Code and
c) Mohan Mahto, Deoki Devi and Chundri Devi were
convicted under Section 323 of the Indian Penal Code.
6. The learned trial court had sentenced the petitioners as under:
(a) Section 494 and 494/109 of the Indian Penal Code:
Mohan Mahto was sentenced to undergo Rigorous
Imprisonment for 03 Years and to pay fine of Rs.5,000/-.
Deoki Devi was sentenced to undergo Rigorous
Imprisonment for 03 Years and to pay fine of Rs.5,000/-. In
default of payment of fine, both the petitioners were ordered
to undergo Simple Imprisonment for 03 months,
(b) Section 498-A of the Indian Penal Code:
Mohan Mahto was sentenced to undergo Rigorous
Imprisonment for 03 Years and to pay fine of Rs.5,000/- and
in default of payment of fine, to undergo Simple
Imprisonment for 03 months.
Chundri Devi was sentenced to undergo Simple
Imprisonment for 06 months and to pay fine of Rs.1,000/-
and in default of payment of fine, to undergo Simple
Imprisonment for 01 month,
(c) Section 323 of the Indian Penal Code:
Mohan Mahto and Deoki Devi were sentenced to undergo
Rigorous Imprisonment for 01 Year and to pay fine of
Rs.1,000/- and in default of payment of fine, to undergo
Simple Imprisonment for 01 month
Chundri Devi was sentenced to undergo Simple
Imprisonment for 06 months and to pay fine of Rs.500/- and
in default of payment of fine, to undergo Simple
Imprisonment for 15 days.
The learned trial court further ordered that all the sentences
to run concurrently and directed that out of the fine
amounts, half shall be paid to Complainant (victim) as
compensation under Section 357 of Cr.P.C., 1973.
Arguments on behalf of the Petitioners:
7. Learned counsel appearing for the petitioners submitted that the
petitioner-Deoki Devi has been convicted under Section 494 of
the Indian Penal Code alleging to be the second wife of the
petitioner-Mohan Mahto. On one hand, the second marriage of
the petitioner-Mohan Mahto was not proved through cogent
evidence and on the other hand, the petitioner-Deoki Devi was
unmarried on the date of her alleged marriage and therefore, she
could not have been convicted under Section 494 of the Indian
Penal Code.
Learned counsel further submitted that in the present case, the
priest who had conducted the second marriage, has not been
examined and the Saptpadi has not been proved and as such, the
second marriage itself has not been proved and therefore,
conviction of the petitioners Deoki Devi and Mohan Mahto under
Section 494 of the Indian Penal Code is not sustainable in the eyes
of law.
The learned counsel further submitted that so far as offence
under Section 498-A of the Indian Penal Code is concerned, the
marriage was solemnized between the Complainant and the
petitioner-Mohan Mahto long back and the basic ingredients of
offence under Section 498-A of the Indian Penal Code has not
been satisfied by the prosecution and therefore, the conviction
under Section 498-A is also not sustainable in the eyes of law.
He submitted that on the one hand, conviction under Section 494
of the Indian Penal Code is based on no evidence and on the
other hand, the basic ingredients of the offence Section 498-A of
Indian Penal Code have not been satisfied. Learned counsel for
the petitioners submitted that the impugned judgments are
perverse and are fit to be set aside in revisional jurisdiction.
8. Learned counsel for the petitioners relied upon the following
judgments in support of their submissions:
2002(1) East. Cr. C. 374 (SC) Paul George -Versus- State;
2002(1) East. Cr. C. 300 (Pat) Rabindra Prasad Verma -vs- State of
Bihar;
(2007) 2 East. Cr. C. 464 (Jhr.) Reshmi Kewtain -vs- State of Bihar
(2008) 1 East. Cr. C. 161 (Jhr.) Bhakti Bala Dasi -vs- Baldeo Pandit
(2008) 1 East. Cr. C. 162 (Jhr.) Dinesh Chouhan -vs- State of
Jharkhand
(2012) 2 East. Cr. C. 623 (Pat) Nagendra Mahto - vs- State of Bihar
(2009) 3 East. Cr. C. 321 (SC) Para 23, Manju Ram Kalita -Vs- State
of Assam
9. Without prejudice to the aforesaid submissions, the learned
counsel also submitted that the petitioner-Mohan Mahto
(husband of the complainant) has already remained in custody
for a period of 10 months 19 days at the stage of trial; Petitioner-
Chundri Devi being the mother-in-law of the Complainant has
remained in custody for a period of 02 months 29 days and the
petitioner-Deoki Devi (second wife of Mohan Mahto) has
remained in custody for a period of 01 month 17 days.
It is also submitted that the present age of Mohan Mahto, the
husband of the Complainant, is 54 years, Chundri Devi, mother-
in-law of the complainant, is 77 years and Deoki Devi, the alleged
second wife of Mohan Mahto, is about 47 years. He submitted
that considering the fact that the present case is of the year 2009,
some sympathetic view may be taken. He also submitted that no
minimum sentence has been prescribed under Sections 494, 498-
A and 323 of the Indian Penal Code.
Arguments on behalf of the Opposite Parties
10. Learned counsel appearing on behalf of the Opposite Party-
Complainant opposed the prayer and submitted that the
petitioners have been convicted by well-reasoned judgements
and there are consistent and concurrent findings against the
petitioners recorded by both the learned courts below which do
not call for any interference in revisional jurisdiction.
11. Learned counsel for the Complainant also referred to the findings
of the learned trial court and the appellate court and submitted
that not only the petitioner-Mohan Mahto solemnized marriage
with Deoki Devi (second wife of Mohan Mahto), but also that he
has three children from her and one child of Mohan Mahto and
the complainant has also been examined before the learned trial
court. He also submitted that Deoki Devi has been convicted
under Section 494 of the Indian Penal Code with the aid of
Section of Section 109 of the Indian Penal Code because of the fact
that she very well knew that Mohan Mahto was already married
and in spite of that she chose to marry Mohan Mahto. Thus, the
conviction of the petitioner-Deoki Devi with the aid of Section
109 of the Indian Penal Code is fully sustainable in the eyes of
law. Learned counsel also submitted that merely because the
Saptpadi has not been proved and the priest has not been
examined, the same is not sufficient for interference in this case in
view of the fact that there were cogent evidence and to some
extent there was admission on the part of the accused that Deoki
Devi and Mohan Mahto had undergone marriage during the life
time of first wife of Mohan Mahto and it is not in dispute that the
Complainant is the 1st wife of Mohan Mahto. Learned counsel
also referred to Para- 5 and 6 of the present petitions and
submitted that it is an admitted fact on record that Mohan Mahto
had married Deoki Devi. He submitted that the contention of the
petitioner that the allegation regarding second marriage is based
on no evidence is not correct, rather the consistent finding on this
point has been returned by appreciating the materials on record.
12. So far as the point of sentence is concerned, learned counsel
appearing on behalf of the opposite party opposed the prayer
with regard to Mohan Mahto and Deoki Devi, but he did not
oppose it with regard to the mother-in-law-Chundri Devi, who
has been given maximum sentence of 06 months. However, the
period of custody and the age of the petitioners as submitted by
the learned counsel for the petitioners have not been disputed by
the opposite parties. Learned counsel for the opposite party also
relied upon a judgment passed by the Hon'ble Karnataka High
Court in Cr.R.P. No. 1098 of 2009 dated 13.03.2012 and submitted
that considering this judgment, no interference is called for in the
present case.
13. The learned A.P.P. appearing for the Opposite Party No.1-State
supported the arguments placed by the learned counsel
appearing for the Complainant.
Findings of this Court
14. After hearing the learned counsel for the parties and going
through the impugned judgments and the lower court records of
the case, this Court finds that the prosecution case is based on a
Complaint Petition being Complaint Case No.915/2009 presented
on 29.06.2009 alleging inter alia that the marriage of the
Complainant was solemnized with the petitioner-Mohan Mahto
in 1990 and after the marriage, she went to her matrimonial
house and at the time of marriage, her mother had given Rs.
20,000/- cash and gold and silver ornaments to her, but her
husband and mother-in-law were not happy with the articles and
they demanded Rs.50,000/- cash more and on non-fulfillment of
the demand, the Complainant was tortured physically and
mentally and she was not provided with food. The Complainant
anyhow lived there, but the petitioner-Mohan Mahto solemnized
second marriage with Deoki Devi (Petitioner No.2 in Cr. Rev.
No.157/2014). Thereafter also, the Complainant stayed in her
matrimonial house. She also gave birth to a son namely, Raju
Kumar (aged about 14 Years on the date of filing the Complaint).
The Complainant used to bear her expenses by doing labour
works in the village. On 20-06-2019, when the Complainant
demanded expenses from her husband and mother-in-law, they
abused and assaulted her and her son, snatched away her
ornaments and drove out her from her matrimonial house.
Thereafter, the Complainant came to her parental house and
narrated the incident to the family members there. The learned
Chief Judicial Magistrate, Hazaribag took cognizance and made
over the case to the court of learned J.M. 1st Class, Hazaribag
under Section 192 of Cr.P.C.
15. On 24-07-2009, the Complainant was examined on solemn
affirmation under Section 200 of Cr.P.C. and thereafter, 04
enquiry witnesses namely, Girija Mosamat, Lokan Mahto,
Mahadev Mahto and Raju Kumar were examined under Section
202 of Cr.P.C. On conclusion of enquiry, the learned Judicial
Magistrate, 1st Class, Hazaribag, vide order dated 11-08-2010,
held that prima facie case under Section 498A of the Indian Penal
Code is made out against the petitioners and further held that
prima facie case under Section 494 of the Indian Penal Code is
made out against Mohan Mahto only and thereafter, summons
was issued to them. The learned court was also of the view that
no case was made out against the remaining two accused nos. 4
and 5 namely Chhoti Mohto and Lalji Mahto. After appearance of
the petitioners, the evidence before charge of 03 witnesses
namely, Mahadeo Mahto (C.W.-1), Tukni Devi (C.W.-2) and Raju
Kumar (C.W.-3) was recorded.
16. On 20-05-2013, the charges under Sections 498-A, 323/34 of the
Indian Penal Code were framed against all the three petitioners
and the charges under Section 494, 494/34/109 of the Indian
Penal Code were framed against Mohan Mahto and Deoki Devi
which were read over and explained to them in Hindi to which
they pleaded not guilty and claimed to be tried.
17. This Court further finds that in course of trial, altogether 05
witnesses were examined on behalf of the Complainant. C.W.-1 is
Mahadeo Mahto, C.W.-2 is Tukani Devi who is the Complainant
herself, C.W.-3 is Raju Kumar who is the son of the Complainant,
C.W.-4 is Most Girija, who is the mother of the Complainant and
C.W.-5 is Lokan Mahto. The signature of the Complainant on
Complaint was exhibited as Exhibit-1, C.C. of examination of
Deoki Devi on oath U/s. 200 Cr.P.C. in Complaint Case
No.05/2013 was exhibited as Exhibit-2, Deposition of Gudia Devi
D/o Mohan Mahto as enquiry witness in Complaint Case
No.05/2013 was exhibited as Exhibit-3 and the order-sheet in
Complaint Case No.05/2013 was exhibited as Exhibit-4 on behalf
of the Complainant.
18. After closure of the evidence of behalf of the Complainant, the
statements of the petitioners were recorded under Section 313 of
Cr.P.C. on 31-05-2013 wherein they simply denied the
incriminating evidences put to them and claimed to be innocent.
Mohan Mahto examined himself as D.W.-1 in his defence in
terms Section 315 of Cr.P.C. No documentary evidence was
adduced on behalf of the petitioners in their defence.
19. This Court finds that the learned trial court considered the
evidences, both oral and documentary, adduced on behalf of the
Complainant and the oral evidence adduced on behalf of the
petitioners and also considered the arguments advanced on
behalf of the parties and recorded its findings in Para-20 to 23
which read as under:
"20. Gone through the entire materials available on record
very carefully and thoroughly. In this case, altogether 05 witnesses
have been examined by the Complainant and one by the defence. The
Complainant has proved her signature on the Complaint Petition
which is marked as Exhibit-1 and further the certified copy of the
examination of accused Deoki Devi (there Complainant) on oath
under Section 200 Cr.P.C., the examination of Gudia Kumari D/o
Mohan Mahto as enquiry Witness and the Order-sheets, all in
Complaint Case No. 05/2013 pending in this court itself, have been
marked as Exhibits-2, 3 and 4 respectively. The defence has not
proved any document in support of their contention, though
produced a copy of settlement before the Conciliation Centre,
Hazaribag alongwith some other documents. The Deed of Settlement
is not disputed by the Complainant when referred by the learned
counsel for the accused during arguments.
21. At the outset, I would like to discuss the first
requirement of Section 494 IPC i.e. validity of 1st marriage of the
accused no.1 and the Complainant. In the case, all the witnesses have
said that the Complainant was married with Mohan Mahto. But the
time since marriage is different. We must not forget that the
Complainant and witnesses are rustic villagers. It is not expected
from them that they will remember the exact date of marriage
solemnized between the Complainant and the accused no.1
particularly, in the circumstances, when the marriage was
solemnized more than 20 years back at the time of filing of the
Complaint and also that the fact is admitted. So the contradiction as
regard to time since marriage is immaterial.
Now the question is whether the accused no.1 has solemnized
second marriage with Deoki Devi.
All the witnesses have consistently stated that the accused
Mohan Mahto has solemnized second marriage with the accused
Deoki Devi. Though the witnesses have not stated specifically as to
what ceremonies were followed for the solemnization of marriage, but
the materials available on record otherwise proves this fact strongly.
Again and again, the accused Deoki Devi has admitted this fact
during the proceeding of the case. In several documents filed in this
court during the proceedings of this case, she has been admitting that
she is the wife of Mohan Mahto of Village Jhurjhuri, like
(a) Bail bonds filed on behalf of the accused Deoki Devi dated 10-01-
11 and dated 28-02-11,
(b) Affidavit filed by the accused Deoki Devi on 09-08-11 alongwith
the reply to an application filed by the Complainant.
(c) Vakalatnama of accused Deoki Devi.
Further bailors for all the three accused are same throughout
i.e. Sheolal Mahto and Pitamber Prasad. Sheo Lal Mahto is the father
of the accused Deoki Devi. Not only this the summons for the
accused Deoki Devi was received by her father-in-law and she
appeared in the court after service of that summons. If she would
have been the wife of any Munna Prasad of Village Kosma, summons
would not have been served on her and she could have never
appeared in this case. Further, all the three accused persons are
represented by the same counsel. Though this does not show that the
accused Mohan Mahto and Deoki Devi has any connection, but still,
considering the other facts of the case, this is again supportive.
Further, the Complainant has proved Exhibits- 2, 3 and 4 also
showing that the accused Deoki Devi, w/o Mohan Mahto of Village
Jhurjhuri has filed Complaint case against the Complainant, her son
and witnesses of this case.
The fact of bigamy is admitted by the accused Mohan Mahto
also when he admits the settlement arrived at by the parties before
the Conciliation Centre, Civil Court, Hazaribag on 22-12-2010. In
the said terms, at Paras- 3 and 6, the word "pratham patni" is used.
This deed of settlement is signed by the complainant, her son Raju,
accused Mohan Mahto and Chundri Devi.
.................................................................................................
Not only this, the fact that the accused Mohan Mahto and
Deoki Devi have three children (one Gudia Kumari has been
examined in Complaint 05/03 as Enquiry Witness) out this second
marriage has not been demolished by the defence. It has been held by
the Hon'ble Supreme Court that continuous cohabitation for a
number of years may raise the presumption of marriage, but this
presumption is rebuttable and there are circumstances which weaken
or destroy that presumption, the Court cannot ignore them. Here in
this case, the accused persons have not rebutted this presumption by
producing any evidence.
Hence considering the materials available on record, it is
proved beyond doubt that the accused Mohan Mahto has solemnised
second marriage with the accused Deoki Devi when the Complainant
is alive. It has come in evidence specifically that the accused Deoki
Devi was knowing about the first marriage of the accused no.1
Mohan Mahto. And so accused Deoki Devi is held liable for abetting
the offence of bigamy u/s 494 IPC by marrying the accused Mohan
Mahto. Though charge for the offence u/s 109 IPC has not been
framed in this case, but it is a well settled law that where the accused
was charged only with the main offence, here Section 494 of IPC, but
it was found in evidence that he/she had really abetted that offence,
he/she could still be convicted for abetment, here under Section
494/109 IPC, as she had notice of the fact constituting the offence of
abetment, if the same is proved beyond reasonable doubt.
......................................................................................................
22. For the proof of offence under Section 498-A IPC and Section
323 IPC also there are ample evidence on record. Though proof of
Section 494 of IPC is enough and self-sufficient to prove the offence
of cruelty under Section 498-A of IPC by the husband, but there are
corroboratory evidence of demand of Rs.50,000/- as dowry also by all
the accused persons. The witnesses have stated this fact categorically
and consistently. .................................
The physical and mental cruelty of the Complainant by the
accused Mohan Mahto and his mother Chundri Devi is covered
under Section 498-A IPC, but for cruelty by way of assault to her
son Raju by the accused persons and assault by the accused Deoki
Devi to the Complainant, they are charged under Section 323 IPC.
There are evidences of assault to the Complainant and her son
by the accused persons when they demanded expenses and they were
thrown out of the house. The accused persons assaulted the son of the
Complainant later on also when he has gone to his father's house to
live there. These facts are very well established with the cogent and
reliable evidences.
23. The plea of the defence that no independent witness has been
examined by the Complainant and also that no witness from the
Village Jhurjhuri has been examined has no force. C.W.-1 and C.W.-
5 are independent witnesses. Further it is generally difficult for the
prosecution to bring a witness from the matrimonial village when
there is a family dispute and the wife files a case against the husband
and his relatives. So non-examination of any witness from Village
Jhurjhuri does not affect the case of the Complainant, when the same
is otherwise proved."
20. This Court further finds that the learned appellate court also
considered the evidences adduced on behalf of the Complainant
and the petitioners and the arguments placed on their behalf and
recorded its findings in Para-6 which reads as under:
"6. After thorough scrutinizing the evidences of both sides and
after hearing the learned counsel for the parties, it appears that it
admitted position that Mohan Mahto is the husband of the
Complainant and according to the Complainant and its witnesses,
Mohan Mahto and the other in-laws of Complainant demanded
Rs.50,000/- and due to non-fulfillment of such demand, they
tortured and ultimately ousted the Complainant from her
matrimonial house. The demand was made by the accused persons
several times and it is settled law that Section 498A IPC is
continuous offence.
Regarding 2nd marriage of Mohan Mahto with Deoki Devi, the
Complainant has filed Ext.2 and Ext.-3 which are the certified copies
of S.A. of Deoki Devi in C. Case No.05/2013 was filed after the
present Complaint case. In Complaint Case No.05 of 2013 and
admittedly, the said case of C. Case No.05/13 was filed after the
Complaint Case No.915/09 against which the said appeal is pending.
Though Deoki Devi in her statement u/s 313 Cr.P.C. denied that she
is the 2nd wife of Mohan Mahto and she gave the name of her
husband in 313 Cr.P.C. as Munna Prasad, but in C. Case No.05/13,
the husband's name of Deoki Devi was mentioned as Mohan Mahto.
Furthermore, the learned curt below has found and mentioned in her
Judgment dt. 01/07/13 at Para-21 that in bail bonds dt. 10/01/11 &
28/02/11 of Deoki Devi and the affidavit of Deoki Devi on 09/08/11
and also in Vakalatnama of Deoki Devi dt. 10/01/11, the name of her
husband has been mentioned as Mohan Mahto. The most relevant
document which was admitted by Mohan Mahto in his evience that
the settlement deed which has been according to DW-1 Mohan
Mahto prepared at Conciliation Centre, Hazaribag on 22-12-2010
wherein in the said terms at Para-3 & 6, the word "Pratham Patni"
has been used. The deed of settlement is duly signed by Tukni Devi
(Complainant), her son Raju, accused Mohan Mahto and Chundri
Devi. These all above circumstances clearly indicate that Deoki Devi
is the 2nd wife of Mohan Mahto."
21. This Court further finds that the learned lower appellate court
wrongly recorded in para 8 of the impugned judgement that the
learned trial court had convicted Mohan Mahto, Chundri Devi
and Deoki Devi for offence under Section 498 A and 323 IPC. The
trial court's judgment reflects that the learned trial court had
convicted Mohan Mahto and Chundri Devi under Section 498A
and 323 IPC but Deoki Devi was not convicted under Section
498A of IPC. The recording by the learned appellate court
regarding conviction of petitioner -Deoki Devi under section 498-
A by the trial court is an error of record and in fact she was
convicted by the learned trial court under section 323, 494/109 of
IPC.
22. The learned counsel for the petitioner has relied upon a number
of judgements and this Court is of the considered view that none
of them help the petitioners in any manner whatsoever. The
consideration of the judgements relied upon by the petitioners
are as under: -
a. So far as the judgment passed by Hon'ble Supreme Court
reported in the case of Paul George (Supra) is concerned, this
Court finds that in the said case the order passed in Criminal
Revision petition was under challenge by which the revision
was dismissed by merely stating that no illegality, impropriety
or jurisdictional error was found in the judgment under
challenge.
In the aforesaid background, the Hon'ble Supreme Court
remanded the matter to the concerned High Court by observing
as follows:
"It is true that it may depend upon the nature of the matter
which is being dealt with by the court and the nature of
jurisdiction being exercised as to in what manner the reasons
may be recorded e.g. in an order of affirmance detailed reasons or
discussion may not be necessary but some brief indication by
which application of mind may be traceable to affirm an order
would certainly be required. Mere ritual of repeating the words
or language used in the provisions, saying that no illegality,
impropriety or jurisdictional error is found in the judgment
under challenge without even a whisper of the merit of the matter
or nature of pleas raised does not meet the requirement of
decision of a case judicially."
The aforesaid judgment has no application to the facts and
circumstances of this case as none of the impugned judgments
are non-speaking, rather they are speaking judgements with
due application of mind. This Court has taken note of the
aforesaid judgement regarding the manner in which the
revision petition is to be decided by this Court.
b. So far as the judgment passed in the case of Rabindra Prasad
Verma (Supra) passed by Hon'ble Patna High Court is
concerned, in the said judgment, the Hon'ble Patna High Court
held on the facts of the case that evidence was not sufficient for
conviction under Section 494 read with Section 109 of IPC. In
the said case, though barber was examined, whose evidence
was found insufficient to prove the second marriage of one of
the accused and the priest was not examined, but the accused
were convicted on the sole evidence of barber.
This Court finds that the aforesaid case was decided in the
peculiar facts and circumstances of the said case. However, in
the present case, the learned courts below have discussed
materials on record, both oral and documentary, to hold that
the accused Mohan Mahto had performed second marriage
with Deoki Devi. In view of the aforesaid, this judgment does
not help the petitioner in any manner.
c. So far as the judgment of Reshmi Kewtain (Supra) is concerned,
this Court finds that the judgement was passed in criminal
appellate jurisdiction wherein the complainant had preferred
appeal against the judgment and order of acquittal by the
learned Sessions Judge acquitting the respondent from charge
under Section 494 of IPC. The said appeal was dismissed by
this Court on the ground that the proof of second marriage was
not wholly reliable and was not available on record. This Court
finds that the said case does not apply to the facts and
circumstances of this case, in as much as, there is sufficient
material on record, both oral and documentary, as discussed by
the learned courts below, regarding second marriage of accused
Mohan Mahto with accused Deoki Devi.
d. So far as the judgment of Bhakti Bala Dasi (supra) is
concerned, the said case was also preferred by the complainant
against acquittal of the accused and the case was decided by
this Court in criminal appellate jurisdiction in which this Court
refused to interfere as the second marriage could not be proved
and the trial court dis-believed the witnesses examined by the
complainant in support of her case.
e. So far as the judgment in the case of Dinesh Chouhan (supra) is
concerned, this Court finds that in the said judgment, order
taking cognizance under Section 498A, 341, 323/34 of IPC was
under challenge in Criminal Miscellaneous jurisdiction and the
said petition was disposed of with a direction to the learned
court below, in the event of filing a petition for discharge by the
petitioners of the case, shall decide it on merits after hearing the
parties in accordance with law. The aforesaid judgment has no
applicability to the facts and circumstances of this case.
f. So far as the judgment in the case of Nagendra Mahto (supra) is
concerned, the said judgment was passed in appellate
jurisdiction of Hon'ble Patna High Court whereby the appellant
was convicted for offence under Section 498 A of Indian Penal
Code and Hon'ble Patna High Court in the facts and
circumstances of the said case was of the view that the
prosecution was not able to establish charge under Section 498
A of IPC as there was general and omnibus allegation. In the
said case, the appellant had solemnized second marriage for
which a case of maintenance under Section 494 of IPC was filed,
however, the same was compromised.
g. In the judgment of Manju Ram Kalita (supra), the Hon'ble
Supreme Court was dealing with the case where the appellant
was found guilty of offence under section 494 and 498A of IPC.
The Hon'ble Supreme Court framed two different issues one
was with regard to bigamy and the second was with regard to
offence under Section 498A. While dealing with the allegation
of bigamy, the Hon'ble Supreme Court refused to interfere with
the conviction on the ground that there was no scope for re-
appreciation of evidence and the Hon'ble Supreme Court was
the 4th Court. So far as the issue regarding 498A of IPC was
concerned, the Hon'ble Supreme Court considered the
provision of section 498A of IPC and considered the earlier
judgments passed by the Hon'ble Supreme Court dealing with
meaning of 'cruelty' in the context of Section 13 of Hindu
Marriage Act, 1955. The Hon'ble Supreme Court also
considered the judgment reported in AIR 2000 SC 3559 (Smt. Raj
Rani Vs. State (Delhi Administration) wherein it was held that
while dealing with cruelty in the context of the provision of
section 498A of IPC, the court must examine that
allegations/accusations must be of a very grave nature and
should be proved beyond reasonable doubt. The Hon'ble
Supreme Court also considered the judgment reported in AIR
2005 SC 3100 Sushil Kumar Sharma Vs. Union of India, wherein
the court explained the distinction of cruelty as provided under
sections 306 and 498 A of IPC observing that section 498A
cruelty committed by husband or his relative drives women to
commit suicide etc. while under Section 306 IPC, suicide is
abated and intended and therefore there is a basic difference of
the intention in application of the said provision. Another case
reported in AIR 2002 SC 2078 Girdhar Shankar Tawade Vs. State of
Maharashtra was also considered in the said judgment wherein
the Hon'ble Supreme Court held that cruelty has to be
understood having a specific statutory meaning provided in
Section 498A and there should be a case of continuous state of
affair of torture by one to another and ultimately held in para
22 of the aforesaid judgment as follows:
"Cruelty" for the purpose of section 498A of IPC is to be
established in the context of section 498A IPC as it may be a
different from other statutory provisions. It is to be
determined/inferred by considering the conduct of the man,
weighing the gravity or seriousness of his acts and to find out as to
whether it is likely to drive the women to commit suicide etc. It is
to be established that women has been subjected to cruelty
continuously/persistently or at least in close proximity of time of
lodging the complaint. Petty quarrels cannot be termed as cruelty
to attract the provisions of Section 498A of IPC. Causing mental
torture to the extent that it becomes unbearable may be termed as
cruelty."
In the said case, the High Court had held that during the
subsistence of marriage the appellant contracted second
marriage and started living with another women that itself was
a cruelty and therefore he was liable for punishment under
section 498A of IPC. In the said case, the trial court was of the
view that there was no evidence of cruelty on the part of the
appellant with a view to drive the complainant to commit
suicide. The appellate forum reached to the conclusion that
mental torture was of the magnitude that the complainant had
to leave her matrimonial home during her pregnancy and the
revisional court did not find that the complainant had been
subjected to cruelty continuously. In this background, the
Hon'ble Supreme Court was of the view that all the three courts
erred in not considering the case in correct perspective and the
finding so recorded by the courts below may be relevant for
granting the relief in a matrimonial dispute i.e., divorce etc. but
could not bring home the charge under Section 498 A of IPC
and consequently, the conviction of the appellant under Section
498A was set aside and the conviction of the appellant under
Section 494 IPC was sustained.
This Court finds that the aforesaid judgment does not apply to
the fact and circumstances of this case, particularly in view of
the fact that the allegation of bigamy in the present case is only
one of the instance of cruelty and further there are specific
allegation of demand of dowry and torture against the
petitioner and there is consistent findings recorded by the
learned courts below establishing the ingredients of offence
under section 498 A of Indian Penal Code after appreciating the
materials on record. The findings with regards to section 498A
of IPC in the present case are essentially questions of facts as
fully discussed below, which calls for no interference due to
absence of any perversity.
Offence under section 498-A, 323 IPC
23. This Court finds that C.W.-2 is the Complainant herself. In her
examination-in-chief, she deposed that her marriage with Mohan
Mahto was solemnized 23-24 Years ago and after the marriage,
she went to her matrimonial house. After three years, Mohan
Mahto solemnized second marriage with Deoki Devi. Mohan
Mahto and her mother-in-law and father-in-law had demanded
Rs.50,000/- from her, but when her father could not give the
amount, her in-laws assaulted and tortured her which she had
told her mother. Chhoti Mahto, Laljee Mahto, Balki Mahto and
Chundri Devi had helped Mohan Mahto to solemnize second
marriage. She further deposed that the parents of Deoki Devi
knew that Mohan Mahto is married. Being helpless, the
complainant continued to live in her matrimonial house. She and
her son are residing in her parental house for the last four Years.
After assaulting the Complainant and taking away her jewellery,
her husband, father-in-law, mother-in-law and sautan had driven
her out from her matrimonial house. She proved her signature in
the Complaint as Exhibit-1. She further deposed that after
settlement, she alongwith her son had gone to her matrimonial
house, but she was again assaulted by Mohan Mahto and Deoki
Devi and she was not allowed to take food and then she and her
son came to her parental house. She identified Mohan Mahto and
Deoki Devi in court.
In her cross-examination, C.W.-2 admitted that Mohan Mahto
solemnized second marriage after 2-3 Years of her marriage and
when her husband had solemnized second marriage, she did not
file any case as the villagers had settled the dispute and she
continued to live in her matrimonial house. After marriage, her
husband and mother-in-law had demanded Rs.50,000/- from her.
She has filed case in family court for maintenance. This witness
has been thoroughly cross examined by the defense.
24. C.W.-3 is the son of the Complainant and in his examination-in-
chief, he deposed that the Complainant is his mother, Mohan
Mahto is his father, Chundri Devi is his grandmother and Deoki
Devi is his step mother. He further deposed that when the
Complainant used to demand expenses, Mohan Mahto, Chundri
Devi and Deoki Devi used to assault him and his mother. He and
his mother were residing separately in a hut and both were
assaulted, they came to his nani's house in 2009 and since then,
they are continuously living there. At intervals, he alone used to
go to his house, but he saw that his hut is destroyed and he has
no place to reside. After filing the case, a settlement was reached
and they had gone to his house themselves, but his father
demanded Rs.50,000/- from her mother to bring from her mother
and his step mother and grandmother had assaulted them and
then, he returned to his nani's house. Since his childhood, his
father has not provided maintenance and his mother is doing
labour works and his nani also helped him. He identified Mohan
Mahto and Deoki Devi in court.
In his cross-examination, CW-3 admitted that on 22-12-2010, a
settlement was arrived at and her mother had told that she will
withdraw the case. There is no medical certificate with regard to
assault. After filing the case, his father had demanded Rs.50,000/-
and the incident had taken place at Jhurjhuri on 20-06-2009. He is
matric pass.
25. C.W.-4 is the mother of the Complainant and in her examination-
in-chief, she deposed that the Complainant is her daughter and
her daughter's marriage was solemnized 24 Years ago. She had
stayed happily for 2-4 months in her matrimonial house and
thereafter, her in-laws assaulted her and demanded Rs.50,000/-,
but they could not fulfill the demand. When the Complainant
was thrown out, they had gone to the matrimonial house of the
Complainant 3-4 Years ago, but the Complainant was again
ousted out. Mohan Mahto solemnized second marriage with
Deoki Devi daughter of Chhoti Mahto after 2-3 Years of the
marriage of the Complainant. The Complainant was not allowed
to live in her matrimonial house and she has one son namely,
Raju Kumar. The Complainant is residing with her for the last
four years. Her grandson was also assaulted by the petitioners
and the jewellery of the Complainant was snatched away and
Mohan Mahto was demanding 50-60 thousand rupees and all the
petitioners had assaulted the Complainant.
In her cross-examination, CW-4 admitted that she had gone to
Jhurjhuri and the Complainant had told that she was assaulted
and she deposed what she was told by the Complainant. The age
of her grandson is 15 years. Mohan Mahto has one son from the
Complainant and three daughters and one son from Deoki Devi.
To a Question as to why the Complainant did not file case for the
last 24 Years, CW-4 replied that the Complainant was visiting her
matrimonial house and she was of the impression that she will be
given everything and Mohan Mahto did not give anything to the
Complainant, she filed the case. The Complainant is a handicap
from before her marriage which was shown to Mohan Mahto
before the marriage.
26. C.W.-1 is an independent witness and, in his examination-in-
chief, he deposed that the parental house of the Complainant is in
his village and her marriage with Mohan Mahto was solemnized
20-22 Years ago. She is residing in her parental house for the last
3-4 Years and she has one son. Mohan Mahto has performed
second marriage with Deoki Devi. Mohan Mahto used to demand
Rs.50,000/- from the Complainant and when the father of the
Complainant did not fulfill the demand, Mohan Mahto
solemnized second marriage and he has one son also from the
second marriage. Monther-in-law Chundri Devi, father-in-law
Balki Mahto and Mohan Mahto used to torture her and oust her
out of her matrimonial house. This witness and Lokan Mahto had
gone in the Panchayati where the Complainant had explained her
grievances.
In his cross-examination, CW-1 admitted that what he said about
the occurrence was told to him and he had not seen while
assaulting. The Complainant is not his relative and he deposed
on being asked by the Complainant and he cannot say the date of
the panchayati.
27. C.W.-5 is also an independent witness and, in his examination-in-
chief, he deposed that he knows the Complainant and Mohan
Mahto very well and he had attended their marriage which was
performed 24-25 Years ago. After the marriage, the Complainant
lived happily for 2-3 Years. Balki Mahto, Mohan Mahto, Chundri
Devi and Deoki Devi used to demand Rs.50,000/- to bring from
her parental house. When the Complainant's mother could not
give the money, Mohan Mahto solemnized second marriage and
the Complainant was assaulted by them and she was not
provided with food and clothes and was driven out. The
Complainant and Deoki Devi are the wives of Mohan Mahto.
After 2-3 Years of the marriage of the Complainant, Mohan
Mahto solemnized second marriage and he has children from
both wives. He identified the petitioners in court.
In his cross-examination, CW-5 admitted that he has received
notice from court. The name of the brother of the Complainant is
Basudeo and he has no relation. He further admitted that he was
told about the assault by the Complainant and he has heard
about the second marriage.
28. This Court finds that there is consistent evidence on record
against the present petitioners who happen to be husband, and in
laws of the complainant and petitioner Deoki Devi is second wife
of petitioner Mohan Mahto regarding physical and mental
torture and demand of dowry of 50,000/- and ultimately, she was
thrown out of her matrimonial house with her only son. The
learned courts below have fully appreciated the materials on
record and given concurrent findings so far as the allegation
regarding demand of dowry and torture of the complainant are
concerned. The family members of the complainant from the side
of the in-laws of the complainant have been rightly convicted by
the learned trial court under section 498A/323 IPC by well-
reasoned judgements. Petitioner -Deoki Devi has rightly not
been convicted under section 498A of IPC and has been convicted
under section 323 IPC only as she is the second wife of the
petitioner Mohan Mahto. The prosecution witnesses including
the complainant have been thoroughly cross- examined and their
evidence remained consistent. The little inconsistencies in the
evidence has also been dealt with by the learned courts below
which have been held to be inconsequential. Even the delay in
filing the case has been well explained by the prosecution.
29. This Court finds that both the learned courts below have
carefully scrutinized the evidences of the witnesses and have
recorded concurrent findings of facts with regard to torture and
assault committed to the Complainant and her son and have
found sufficient evidence for conviction of the petitioner-Mohan
Mahto, who is the husband of the Complainant, under Sections
498-A and 323 of the Indian Penal Code; for conviction of the
petitioner-Deoki Devi, who is the 2nd wife of the petitioner-
Mohan Mahto, under Section 323 of the Indian Penal Code and
for conviction of the petitioner-Chundri Devi, who is the mother-
in-law of the Complainant, under Sections Section 498-A and 323
of the Indian Penal Code. This Court does not find any illegality,
irregularity or perversity in the judgements of conviction of the
petitioners under section 498 A/323 of IPC.
Offence under section 494/109 IPC
30. So far as the second marriage of Mohan Mahto with Deoki Devi
is concerned, the learned courts below have returned consistent
finding of fact after appreciating the materials on record and
have held that Mohan Mahto solemnised second marriage with
Deoki Devi during the lifetime of his first wife, the complainant.
In such circumstances, there is no scope for reappreciating the
evidence and coming to a different conclusion.
31. So far as the conviction under Section 494/109 IPC of petitioner
Mohan Mahto and second wife Deoki Devi is concerned, the
petitioner Mohan Mahto has been convicted under section 494
IPC for having solemnised second marriage and Deoki Devi has
been convicted under Section 494/109 IPC i.e., abetting for
second marriage by petitioner Mohan Mahto with her.
32. So far as petitioner Mohan Mahto is concerned, there is consistent
findings and sufficient materials on record to hold that he has
solemnised second marriage and accordingly the conviction of
the petitioner - Mohan Mahto under Section 494 of Indian Penal
Code is upheld.
33. So far as the conviction of Deoki Devi (second wife) under
Section 494/109 IPC is concerned, this Court finds that C.W. 1, 3,
4 and 5, though have supported the allegation of second marriage
of Mohan Mahto with Deoki Devi, but have not spoken a word
regarding role of Deoki Devi in abetting the offence of second
marriage. The complainant C.W.2 has also supported the
allegation of second marriage of Mohan Mahto and Deoki Devi,
but she also has not stated that Deoki Devi had knowledge about
the fact that Mohan Mahto was already married. Rather, it is
reflecting from para 13 of the judgment of learned trial court that
C.W. 2, the complainant, has stated that parent of Deoki Devi
were knowing very well that Mohan Mahto was married and
complainant has also stated that in the solemnisation of second
marriage of Mohan Mahto, her mother-in-law and father-in-law
and father and brother of Deoki Devi, helped Mohan Mahto.
Thus, C.W. 2 though had made allegation of abetment of second
marriage of Mohan Mahto against her mother-in-law and father-
in-law as well as father and brother of Deoki Devi, but has
neither stated anything about the role of Deoki Devi nor has
imparted any knowledge on the part of Deoki Devi prior to her
marriage with Mohan Mahto, that Mohan Mahto was already
married.
34. Upon going through the learned trial court's judgment, this
Court finds that there is no mention of any material indicating
that Deoki Devi had any knowledge at the time of her marriage
with Mohan Mahto, that he was already married. There is no
material to indicate the role of Deoki Devi in the commission of
the alleged offence of second marriage by Mohan Mahto. This
Court finds that the leaned trial court, while convicting Deoki
Devi under Section 494 with the aid of section 109 of IPC, has
committed serious error of record while recording that it has
come in evidence that accused Deoki Devi was knowing about
the first marriage of accused no.1 Mohan Mahto and convicting
Deoki Devi under Section 494 IPC with the aid of Section 109 IPC.
There is no doubt that the learned trial court, while considering
the evidence on record, has mentioned specifically about the
knowledge of the parents of Deoki Devi about the second
marriage of Mohan Mahto but there is no evidence that the
petitioner Deoki Devi had any knowledge that marriage of
Mohan Mahto is second marriage. In the such circumstances, it
cannot be said that the petitioner -Deoki Devi had abetted the
commission of offence of bigamy by the petitioner - Mohan
Mahto.
35. The appellate court has also recorded that in the second marriage
of Mohan Mahto, the father-in-law and mother-in-law of the
complainant and father and brother of Deoki Devi helped Mohan
Mahto knowing that Mohan Mahto was already married. The
learned lower appellate court while discussing the finding
regarding the second marriage has discussed the evidence
regarding second marriage of Mohan Mahto but is totally silent
so far as role of Deoki Devi in abetting the second marriage of
Mohan Mahto is concerned. Thus, the appellate court also has not
recorded any finding regarding the role of Deoki Devi in abetting
the offence of second marriage by Mohan Mahto.
36. The essential ingredient to instigate the petitioner-Mohan Mahto
to solemnize second marriage with petitioner -Deoki Devi on her
part is wholly lacking in the records of the case. Thus, the finding
of the learned trial court, upheld by the learned appellate court,
holding that Deoki Devi knowingly married the accused Mohan
Mahto who was already married, and consequent conviction of
petitioner -Deoki Devi for abetment of offence under Section 494
committed by Mohan Mahto, is ex facie perverse, based on no
evidence against Deoki Devi. Accordingly, the conviction and
sentence of petitioner -Deoki Devi under section 494/109 IPC
cannot be sustained in the eyes of law and calls for interference
under revisional jurisdiction. Thus, the conviction of Deoki Devi
under Section 494 /109 IPC is hereby set aside. However, the
conviction of Mohan Mahto under Section 494 IPC does not call
for any interference.
On the point of sentence
37. On the point of sentence, this Court finds that the petitioner-
Mohan Mahto has been sentenced to undergo Rigorous
Imprisonment for 03 Years with fine of Rs.5,000/- under Section
494 of the Indian Penal Code, Rigorous Imprisonment for 03
Years with fine of Rs.5,000/- under Section 498-A of the Indian
Penal Code and Rigorous Imprisonment for 01 Year with fine of
Rs.1,000/- under Section 323 of the Indian Penal Code with
default clauses and all the sentences have been directed to run
concurrently. He has remained in jail custody for a period of 10
months 19 days (22-02-2013 to 10-01-2014) and he is aged about
54 Years at present. Considering the gravity and the nature of the
offences committed by him, this Court is not inclined to interfere
with sentence of the petitioner-Mohan Mahto.
38. This Court further finds that the Complaint case was filed in the
year 2009 and the petitioners namely, Deoki Devi and Chundri
Devi have faced the rigours of the trial for 11 years and they have
no criminal antecedents and both are females having children.
39. The petitioner-Deoki Devi has been sentenced to undergo
Rigorous Imprisonment for 01 Year with fine of Rs.1,000/- under
Section 323 of the Indian Penal Code with default clause and by
this judgement, she has been acquitted for offence under section
494/109 of IPC as above. She has already remained in jail custody
for a period of 01 month 17 days and she is aged about 47 Years
at present. Considering the facts and circumstances and the
offence committed by the petitioner -Deoki Devi under section
323 IPC, the sentence imposed upon the petitioner namely, Deoki
Devi is reduced to the period already undergone by her and the
fine amount is enhanced to Rs. 10,000/-. The fine amount is to be
deposited before the learned court below within two months
from the date of communication of this judgement to the learned
court below failing which the bail bond furnished by the
petitioner Deoki Devi will stand cancelled and she would serve
the sentence already imposed by the learned courts below. Upon
deposit of the fine amount as directed above, the bailors of the
petitioner Deoki Devi will stand discharged from the liability of
their bail bonds. Half of the fine amount is directed to be remitted
to the victim/complainant as victim compensation.
40. The petitioner-Chundri Devi has been sentenced to undergo
Simple Imprisonment for 06 months with fine of Rs.1,000/- under
Section 498-A of the Indian Penal Code and Simple
Imprisonment for 06 months with fine of Rs.500/- under Section
323 of the Indian Penal Code with default clauses and both the
sentences were directed to run concurrently. She has remained in
jail custody for a period of 02 month 29 days and she is aged
about 77 Years at present.
41. Considering the aforesaid facts and circumstances of the case,
this Court is of the view that the ends of justice would be served,
if the sentences of the petitioner-Chundri Devi is modified to the
period already undergone by her. Accordingly, the sentences
imposed upon the petitioner namely, Chundri Devi is reduced to
the period already undergone by her and the fine amount is
enhanced to Rs. 10,000/-. The fine amount is to be deposited
before the learned court below within two months from the date
of communication of this judgement to the learned court below
failing which the bail bond furnished by the petitioner Chundri
Devi will stand cancelled and she would serve the sentence
already imposed by the learned courts below. Upon deposit of
the fine amount as directed above, the bailors of the petitioner
Chundri Devi will stand discharged from the liability of their bail
bonds. Half of the fine amount is directed to be remitted to the
victim/complainant as victim compensation.
42. Accordingly, Criminal Revision No. 1203 of 2013 preferred by the
petitioner-Mohan Mahto is hereby dismissed and Criminal
Revision No. 157 of 2014 is hereby partly allowed to the aforesaid
extent.
43. The bail bond furnished by Mohan Mahto (petitioner in Cr.
Revision No. 1203 of 2013) is hereby cancelled.
44. Pending interlocutory application, if any, is dismissed as not
pressed.
45. Let the lower court records be sent back immediately to the court
concerned.
46. Let a copy of this order be communicated to the learned court
below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J)
Saurav/
