Jharkhand High Court
Rishikesh Mahato Son Of Late Khepa ... vs The State Of Jharkhand on 28 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 596 of 2012
Rishikesh Mahato son of Late Khepa Mahato,
resident of Village & P.O.- Dumaria, P.S.-
Nirsa, District- Dhanbad
...... Petitioner
-Versus-
The State of Jharkhand ......Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Arun Kumar, Adv.
For the State : Mr. Bishwambhar Shatri, A.P.P.
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Through Video Conferencing
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09/28.06.2021
Heard Mr. Arun Kumar, the learned counsel appearing
on behalf of the petitioner.
2. Heard Mr. Bishwambhar Shatri, the learned A.P.P.
appearing on behalf of the Opposite Party-State.
3. The present criminal revision petition is directed against
the Judgment dated 18.05.2012 passed by the learned Addl.
Sessions Judge-I-cum-Spl. Judge, C.B.I Dhanbad in Criminal
Appeal No. 77 of 2011 whereby and whereunder the Judgment
of conviction and the order of sentence of the petitioner under
Sections 498A and 323 of the Indian Penal Code passed by the
learned trial court has been affirmed and the criminal appeal
has been dismissed.
4. The learned trial court vide Judgment of conviction and
the order of sentence dated 10.03.2011 passed by the learned
Judicial Magistrate, Dhanbad in G.R. Case No. 2781 of 1996 /
T.R. No. 665 of 2011 had convicted the petitioner under Sections
498A and 323 of the Indian Penal Code and had sentenced him
to undergo Rigorous Imprisonment for 02 years with fine of
Rs.500/- under Section 498A of the Indian Penal Code and in
default in payment of fine, to undergo simple imprisonment for
01 month and had further sentenced him to undergo Simple
Imprisonment for 06 months under Section 323 of the Indian
Penal Code. Both the sentences were directed to run
concurrently and the imprisonment undergone in course of
investigation and trial was directed to be set off from the
sentence pronounced.
Arguments on behalf of the Petitioner
5. Learned counsel for the petitioner submitted that the
petitioner is the husband of the informant and except the
Informant, no other prosecution witness has supported the
prosecution case regarding the allegations of assault and
torture against the petitioner and as such, the prosecution has
failed to prove its case against the petitioner beyond reasonable
doubt and therefore, the petitioner is fit to be acquitted giving
benefit of doubt. He submits that both the impugned
judgments suffer from illegality and perversity and are fit to be
set aside.
6. The learned counsel for the petitioner has submitted that
as per the evidence of P.W.5 i.e., the wife of the petitioner, who
is the complainant, she had lived peacefully in her in-laws'
house for 7 to 8 years and during this period, 2 (two) daughters
and 1 (one) son were born out of the wedlock and thereafter,
they started torturing her, and brother-in-law and sister-in-law
used to assault her and the accused assaulted her last time in
the year 1987. She has also alleged that she was pregnant at the
time, but she was thrown out of her house. She has also alleged
that Champa Devi is her Sautan. Learned counsel submits that
as per the case of complainant itself, the last assault and torture
was made to her in the year 1987 and the present case was
instituted in the year 1996 i.e., on 15.09.1996. Learned counsel
submits that considering the aforesaid aspects of the matter,
some sympathetic view may be taken.
7. The learned counsel further submitted that without
prejudice to the aforesaid submissions, the facts remains that
the petitioner was in jail custody from 20.09.1996 to 11.10.1996
i.e., for 20 days during trial and he has also remained in
custody from 17.07.2012 to 04.08.2012 i.e., for 19 days at
revisional stage of the case. He also submitted that the
Complaint was filed as back as in the year 1996 and since then,
about 25 years have elapsed and the present age of the
petitioner is 71 years and the present case is his first offence.
Therefore, considering the aforesaid aspects of the case, some
sympathetic view may be taken and the sentence of the
petitioner may be modified to the period already undergone by
him in custody by enhancing the fine amount.
Arguments on behalf of the Opposite Party-State
8. The learned A.P.P. appearing on behalf of the Opposite
Party-State, on the other hand, opposed the prayer and
submitted that both the learned courts below have recorded
concurrent findings of facts and there is no illegality or
perversity in the impugned judgments which do not call for
any interference under revisional jurisdiction.
Findings of this Court
9. 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 the written report of the Informant namely, Latika
Devi (P.W. - 5) lodged on 15.09.1996 alleging inter alia that the
petitioner and Champa Devi (alleged to be the second wife of
the petitioner) and her in-laws assaulted her and snatched
away her golden and silver ornaments and asked her to bring
Rs.5,000/- from her parental house. She further stated that the
informant was married to the petitioner and both lived happily
for some time and one son and two daughters were born out of
the wedlock. Thereafter, the petitioner and her in-laws tortured
her physically and mentally. Subsequently, she came to know
that the petitioner has developed illicit relationship with
Champa Devi. On 07.02.1988, the petitioner ousted the
Informant from her matrimonial house and solemnized second
marriage with Champa Devi. Later on, a compromise was
reached wherein the petitioner agreed to keep the Informant
properly. But the petitioner again demanded Rs.5,000/- and on
non-fulfillment of the demand, the petitioner assaulted the
informant and drove out her from her matrimonial house.
10. On the basis of the written report, the case was registered
as Nirsa P.S. Case No.157/1996 under Section 498A, 323 of the
Indian Penal Code and Sections 3 / 4 of the Dowry Prohibition
Act, 1961 against the petitioner and Champa Devi and 03
others.
11. After completion of investigation, charge-sheet was
submitted under Sections 498A, 494 and 323 of the Indian Penal
Code against the petitioner and Champa Devi and accordingly,
on 08.01.1997, cognizance of the offence was taken under the
same sections against them.
12. On 17.11.1997, the charges under Sections 498A, 323 and
494 of the Indian Penal Code were framed against the petitioner
and Champa Devi which were read over and explained to them
in Hindi to which they pleaded not guilty and claimed to be
tried.
13. In course of trial, the prosecution examined altogether 05
witnesses to prove its case. P.W.-1 is Pradeep Mukherjee, P.W.-
2 is Jawahar Lal Mahato, P.W.-3 is Kapil Pado Rai, P.W.-4 is
Haradhan Rai and P.W.-5 is Latika Devi, who is the informant
of the case. An agreement dated 10.12.1993 has been marked for
identification as Exhibit-X on behalf of the prosecution.
14. On 23.11.2010, the statements of the petitioner and
Champa Devi were recorded under Section 313 of Cr.P.C.
wherein the petitioner simply denied the incriminating
evidences put to him and claimed to be innocent. The petitioner
did not adduce any oral or documentary evidence in his
defence.
15. This Court finds that the learned trial court considered
the oral and documentary evidences adduced on behalf of the
prosecution and also the arguments advanced on behalf of the
parties and recorded its findings in Para-10 which reads as
under:
"10. .............................................................
The informant has corroborated her case. It is significant that
marriage of informant with Rishikesh Mahato has been
admitted by the accused and other witnesses. No explanation
has come from the accused Rishikesh Mahato as to why the
legally married wife Latika Devi is not residing with him. I also
find that PW-1, 2, 3, and 4 have not supported the case of the
informant. It may be noted that in the present dominant
society, it is very difficult for a lady to get a witness who would
be resident of her sasural and still supporting the case of
informant. From the address of the witnesses, it transpires that
PW-2 Jawaharlal Mahato and PW-4 Haradhan Mahato are
residents of Village- Dumaria, same village to which the
accused belong. Even PW-1 and PW-3 are also not residents of
the village where the informant resided. The informant has
stated that she was assaulted by both accused. She has also
stated that he used to demand dowry. I also find that it has not
been established as to what was the exact relationship Champa
Devi with the accused Rishikesh Mahato. The offence u/s. 498A
I.P.C. is applicable to the husband of the women and his
relatives. It has not been established that Champa Devi is the
relative of her husband. I also find that there was demand of Rs.
Five thousand by the accused Rishikesh Mahato. Thus from the
foregoing analysis, I find that while Rishikesh Mahato is guilty
of offence u/s. 498A/323 IPC, accused Champa Devi is guilty of
offence only u/s. 323 of the I.P.C."
16. The learned trial court convicted the petitioner under
Section 498A and 323 of the Indian Penal Code and sentenced
him accordingly. However, the learned trial court acquitted the
petitioner from the charge under Section 494 of the Indian
Penal Code due to insufficient evidence.
17. The learned trial court convicted Champa Devi for the
offence under Section 323 of the Indian Penal Code and by
extending the benefit of Section 3 of the Probation of Offenders
Act, 1958 released her after due admonition.
18. This Court further finds that the learned appellate court
also considered the oral and documentary evidences adduced
on behalf of the prosecution and also the arguments advanced
on behalf of the parties and recorded its findings in Para-7
which reads as under:
"7. PW-5 Latika Devi has stated that she was married
to Rishikesh Mahato and thereafter, she went to her sasural
where she lived peacefully / properly for 7-8 years. During the
period, two daughters and one son were born from the wedlock.
Thereafter, Rishikesh Mahato started torturing her and brother-
in-law and sister-in-law used to assault her and the accused
assaulted her last time in the year 1987. When she used to visit
her maike, the accused persons used to keep her clothes and
ornaments. She was pregnant at that time when she was
thrown out of her house. She has reported the matter to the
D.C. A panchayati was held where the accused Rishikesh
Mahato assured that he would keep the informant properly.
Initially she was looked after properly at her sasural. Her
daughter was married against her wishes since her son-in-law
was already married. Champa Devi is her Sautan and she
admitted to have filed a case at the police station. PW-1,
Pradeep Mukherjee also stated about the marriage and assault
and torture to the informant in his evidence. PW-2, Jawaharlal
Mahato also supported about the marriage and she clearly
stated that Latika Devi resides at her father's house. PW-3,
Kalipado Rai has stated about the marriage and he clearly stated
that the informant resides in the house of own father. PW-4,
Haradhan Rai has admitted about the marriage with the
appellant. Therefore, defence counsel has failed to prove that the
appellant did not torture the informant and after torture, she
was residing at the maike. Therefore, all the witnesses have
supported the case of torture against the appellant who is
married wife of the appellant. Therefore, prosecution has able to
prove its case beyond all reasonable doubts."
19. This Court finds that P.W.-5 is the Informant of the case.
She deposed that her marriage with the petitioner was
solemnized 20 years ago and after the marriage, she went to her
matrimonial house where she lived happily for 7-8 years and
out of the wedlock, two daughters and one son were born.
Thereafter, the petitioner tortured and assaulted her and she
was assaulted for the last time in the year 1987. She further
deposed that when she used to visit her parental house, the
petitioner used to keep her clothes and ornaments and she was
pregnant, when she was thrown out of her matrimonial house.
She had reported the matter to the D.C. and a Panchayati was
held where the petitioner had assured to keep her properly and
initially, she was looked after properly at her matrimonial
house, but her daughter was married against her wishes as her
son-in-law was already married. She exhibited an agreement as
Exhibit-X. In her cross-examination, she inter alia stated that
two of her children were residing with her. Accordingly, PW-5
has fully supported her version stated in her written report.
This Court finds that although the last assault is alleged to have
been made by the petitioner and the co-accused as back as in
the year 1987, but the lapse of time and subsequent filing of the
case has been well explained by the informant.
20. This Court further finds that P.W.-1, P.W.-2, P.W.-3 and
P.W.-4 have supported the fact that the Informant is residing in
her parental house, although they have not supported the
prosecution case in other respects.
21. This Court finds that both the learned courts below have
recorded concurrent findings of facts with regard to assault,
torture and cruelty committed to the Informant by the
petitioner and therefore, this Court does not find any reason for
re-appreciation of the evidences for interference under
revisional jurisdiction. This Court does not find any illegality or
perversity in the conviction of the petitioner under Sections
498A and 323 of the Indian Penal Code.
On the point of sentence
22. This Court finds that the F.I.R. was filed in the year 1996
and since then, about 25 years have elapsed. The petitioner has
faced the rigors of the criminal case for a long period. The
present case of the petitioner is his first offence. He has already
remained in custody for 01 month 09 days and at present, he is
aged about 71 years. Considering the aforesaid aspects of the
case, this Court is of the considered view that no useful
purpose will be served by sending the petitioner (aged about 71
years) in jail and is further of the view that ends of justice
would be served, if the sentence of the petitioner is modified to
some extent and the fine amount is enhanced.
23. Accordingly, the sentence of the petitioner under Section
498A of the Indian Penal Code is modified and reduced to the
period already undergone by him in custody and the fine
amount of Rs.500/- is enhanced to Rs.50,000/- and the sentence
of the petitioner under Section 323 of the Indian Penal Code is
also modified to the period already undergone in custody and
fine of Rs.1,000/-. The petitioner shall deposit the aforesaid fine
amounts (total Rs.51,000/-) before the learned trial court within
a period of 6 (six) months from the date of communication of
this order to the learned court below.
24. The learned trial court is directed to remit the fine
amounts so deposited by the petitioner, to the Informant of the
case upon due identification. If the fine amounts are not
deposited within the time frame as indicated above, the bail
bond furnished by the petitioner will be cancelled by learned
court below and the petitioner would serve the sentences
imposed by the learned trial court. In case of deposit of the
aforesaid fine amount within the stipulated time frame, the
petitioner would be discharged of his liability under the bail
bonds.
25. Accordingly, the conviction of the petitioner under
Sections 498A and 323 of the Indian Penal Code passed by the
learned trial court and affirmed by the learned appellate court
is upheld, but the sentences are modified as indicated above.
This criminal revision petition is hereby disposed of.
26. Pending interlocutory application, if any, is dismissed as
not pressed.
27. Let the Lower Court Records be immediately sent back to
the court concerned.
28. Let a copy of this order be communicated to the learned
court below through "FAX/E-mail".
(Anubha Rawat Choudhary, J.)
Saurav/
