Santanwa Saha Son Of Late Mansa ... vs The State Of Jharkhand
2021 Latest Caselaw 1826 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    Cr. Revision No. 421 of 2012

  1.   Santanwa Saha son of Late Mansa Saha.
  2.   Fuliya Devi wife of Sri Santanwa Saha.
       Both resident of Pilghutu P.O. Jonka, P.S. Rajmahal district
       Sahibganj.                               ...   .... Petitioners
                           -Versus-
 1.    The State of Jharkhand
 2.    Holika Devi C/o Most. Sarswati Devi      ...   ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioners : Mr. Ranjan Kumar Singh, Advocate For the O.P. No.1-State : Mr. Tarun Kumar, A.P.P.

 For the O.P. No. 2             : None
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                 Through Video Conferencing

C.A.V. on 08.04.2021                           Pronounced on 06.05.2021

1. Heard Mr. Ranjan Kumar Singh, the learned counsel appearing on behalf of the petitioners.

2. Heard Mr. Tarun Kumar, the learned A.P.P. appearing on behalf of the Opposite Party-State.

3. Nobody appeared on behalf of the Opposite Party No.2.

4. The present criminal revision petition is directed against the Judgment dated 02.05.2012 passed by the learned District & Addl. Sessions Judge-I, Sahibganj in Criminal Appeal No.69/2011, whereby and whereunder the learned appellate court affirmed the conviction and sentence of Petitioner No.1 under Sections 498A and 494 of the Indian Penal Code and also affirmed the conviction and sentence of Petitioner No.2 under Section 494 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal.

5. The petitioners had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated

24.08.2011 passed by the learned Judicial Magistrate, 1st Class, Rajmahal in P.C.R. Case No.290 of 2006 / T.R. No.1032 of 2011 whereby and whereunder the Petitioner No.1 was convicted and sentenced under Sections 498A and 494 of the Indian Penal Code and the Petitioner No.2 was convicted and sentenced under Section 494 of the Indian Penal Code.

6. The learned trial court had sentenced the Petitioner No.1 to undergo Simple Imprisonment for 02 years and fine of Rs.2,000/- for the offence under Section 498A of the Indian Penal Code and in default in payment of fine, to undergo further Simple Imprisonment for 01 month and had further sentenced him to undergo Simple Imprisonment for 01 year and fine of Rs.1,000/-for the offence under Section 494 of the Indian Penal Code and in default in payment of fine, to undergo further Simple Imprisonment for 15 days. The learned trial court had further directed that both the sentences shall concurrently.

7. The learned trial court had sentenced the Petitioner No.2 to undergo Simple Imprisonment for 01 year and fine of Rs.1,000/- for the offence under Section 494 of the Indian Penal Code and in default in payment of fine, to undergo further Simple Imprisonment for 15 days.

8. However, the learned trial court acquitted the rest 06 accused persons namely, Sukha Saha, Jagdish Saha, Kartik Saha, Gangaram Saha, Gunjo Devi and Shiva Saha from the charges under Sections 504 and 494 of the Indian Penal Code giving benefit of doubt.

Arguments on behalf of the Petitioners

9. Learned counsel appearing for the petitioners submitted that the Petitioner No.1 has been convicted under Sections 498A and 494 of the Indian Penal Code and the Petitioner No.2 has

been convicted under Section 494 of the Indian Penal Code. The Petitioner No.1 is the husband of the complainant and Petitioner No.2 is the second wife of the Petitioner No.1. He submitted that the case was filed after a long time from marriage and the only allegation is that the Complainant had sold her mother's land and ornaments and had deposited Rs. 65,000/- in bank in the year 1995 and the Petitioner No. 1 subjected physical and mental torture to her and stopped food and clothes for demand of that Rs. 65,000/- and ultimately, he had driven her out from her matrimonial house. It was further alleged that on 12.06.2006, the petitioner No.1 performed second marriage with Petitioner No.2 and there was no divorce between Petitioner No.1 and Opposite Party No.2.

10. The learned counsel also submitted that other accused in the case were alleged to have facilitated the second marriage of the Petitioner No.1, but they were acquitted by the learned trial court giving benefit of doubt.

11. He further submitted that it has come in the judgment of the learned trial court that the marriage between the Petitioner No.1 and the Opposite Party No.2 was performed 35 years ago and as per the evidence of the Complainant, three children were born out of the wedlock, but all of them died due to malnutrition. The Complainant has stated in her deposition that amount of Rs. 65,000/- was in the joint account with Petitioner No.1 who started pressurizing her to transfer the entire amount in his name and when she did not agree, she was driven out from her sasural.

12. The learned counsel further submitted that so far as the Petitioner No.2 is concerned, she is the second wife of Petitioner No.1 and apart from this fact, there is no other allegation against her of abetment for the second marriage of Petitioner No.1. He also submitted that the persons who were

alleged to have facilitated the Petitioner No.1 for performing second marriage were acquitted and the Petitioner No.2 has been convicted under Section 494 of IPC only because of the reason that she is the second wife of the Petitioner No.1, but the basic ingredients of the offence under Section 494 of IPC have not been satisfied against her.

13. The learned counsel further submitted that considering the facts that the Petitioner No.1 is about 65 years of age at present and much time has been elapsed from the date of filing the Complaint case (filed on 28.06.2006) and the Petitioner No.1 has remained in jail custody for a period from 16.06.2012 to 29.06.2012 during pendency of the criminal revision petition, some sympathetic view may be taken.

Arguments on behalf of the Opposite Party-State

14. The learned A.P.P. appearing on behalf of Opposite Party-

State, on the other hand, opposed the prayer and submitted that so far as the Petitioner No.1 is concerned, the learned courts below have rightly convicted him for offence under Section 498-A as well as Section 494 of the Indian Penal Code. He further submitted that consistent findings have been recorded against the Petitioner No.1 by both the learned courts below and there is no illegality or perversity in the impugned judgments and accordingly, the same do not call for any interference. He also submitted that the Complainant-victim was continuously tortured at her matrimonial house and ultimately, she was totally ousted from there by the Petitioner No.1 who ultimately performed second marriage. He submitted that the suffering of the Complainant continued and is still continuing and accordingly, the Petitioner No.1 does not deserve any sympathetic view.

15. The learned A.P.P. also submitted that so far as the offence

under Section 494 of the Indian Penal Code against the Petitioner No.2 is concerned, he does not have anything to say in the matter. The learned A.P.P. could not point out any material regarding the role of Petitioner No.2 in commission of the offence of performing second marriage by the Petitioner No. 1, except that she is his second wife.

Findings of this Court

16. 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 P.C.R. Case No.290/2006 presented on 28.06.2006 before the court of the learned Additional Chief Judicial Magistrate, Sahibganj alleging inter- alia that the Complainant is the legally married wife of Petitioner No.1 and out of the wedlock, she had three children, but all of them died due to malnutrition and he wanted to solemnize second marriage because she was dwarf and belonged to a poor family. It was further alleged that after the marriage, the Complainant had sold the land and ornaments given to her by her mother and had deposited Rs.65,000/- in the joint account of her and Petitioner No.1 in Santhal Pargana Gramin Bank, Jhiktiya Branch in the year 1995, but the Petitioner no. 1 continuously pressurized, tortured and assaulted her for transferring the said money to him. In the meantime, her parents died and she became alone and helpless and the Petitioner No.1 assaulted her several times and ousted her from her matrimonial house and she took shelter in the house of her maternal uncle at Babhangama. In the year 1997, a panchayati was held in which the Petitioner No.1 confessed his guilt and brought the Complainant in his house with an assurance to maintain her, but after some days, the Petitioner

No.1 again pressurized and tortured her for transferring the money deposited in the bank to him and finally, in the year 1998, the Petitioner No.1 assaulted and ousted her from her matrimonial house and she took shelter in the house of her elder sister at Bara Dighi. Thereafter, the petitioner no. 1 kept a concubine namely, Surji Paharin of Village- Hariakole Pahar. It was further alleged that the Petitioner No.1 did not allow the Complainant to enter in his house and on 12.06.2006, the Petitioner No.1 solemnized second marriage with the Petitioner No.2 according to Hindu rites and customs in Village - Pilghutu at the instance of the co-accused Sukha Saha, Jagdish Saha, Kartik Saha, Gangaram Saha, Gunjo Devi and Shiva Saha. In the same night, the Complainant tried to stop the marriage, but she was driven out with threatening to kill her and thereafter, she filed the complaint case.

17. After conclusion of enquiry, a prima facie case was found under Sections 498A/494 of the Indian Penal Code against accused persons and summons were issued to them.

18. On 28.05.2009, the charges under Sections 498A and 494 of the Indian Penal Code were framed against the Petitioner No.1 and the charges under Sections 504 and 494/109 of the Indian Penal Code were framed against the Petitioner No.2 and Sukha Saha, Jagdish Saha, Kartik Saha, Gangaram Saha, Gunjo Devi and Shiva Saha which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

19. In course of trial, altogether 03 witnesses were examined on behalf of the Complainant. C.W.-1 is Saraswati Devi who is the sister of the Complainant, C.W.-2 is Holika @ Fudni Devi who is the Complainant herself, C.W.-3 is Raja Ram Mandal who is the typist of the Complaint Petition and a formal witness and he has exhibited the Complaint Petition as Exhibit-1.

20. After closure of the evidence on behalf of the Complainant, the statements of the petitioners and other 06 accused persons were recorded under Section 313 of Cr.P.C. on 03.09.2010, wherein they simply denied the incriminating evidences put to them and claimed to be innocent. Thereafter, 03 defence witnesses namely, Hari Kishan Sao as D.W.-1, Bhawani Saha as D.W.-2 and Rohani Saha as D.W.-3 were examined on behalf of the petitioners and other accused persons in their defence. No documentary evidence was adduced on behalf of the petitioners in their defence.

21. This Court finds that the learned trial court considered the oral and documentary evidences 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 at Paras-11 and 12 which read as under:

"11. I go through the entire examination-in-chief and cross-examination of the witnesses including defence version. On behalf of defence, 3 witnesses have been examined. However, the degree of proof of defence is preponderance of probabilities and not beyond the shadow of reasonable doubts. But if defence witness has stated anything before the court which suggest truthfulness of the prosecution case, it gain more weightage then any other set of evidence. Defence witness no.1 Hari Kishan Saha has stated in Para-10, defence witness no.2 Bhawani Saha has stated in para-13 and defence witness no.3 has stated in para-10 that accused Santanwa Saha re-married with another lady in the lifetime of his first wife, without getting divorce as defence witness no.3 has stated in para-9. It is strange to me that Ld. defence counsel agreed with this fact in course of argument that yes accused Santanwa Saha re- married with accused Fuliya Devi, reason assigned by ld. counsel that the complainant deserted her matrimonial house. So, for care and ageing accused got re-married. This is a legal question should be asked, especially to the ld. defence counsel that whether law permits for second marriage in the lifetime of first wife without getting divorce,

reason whatsoever may be ? Answer should be come from the all corner that no absolutely not. One another important allegation is that she was ousted from her sasural. It is also admitted by defence witness no.1 Hari Kishan Sao in Para- 11 that Santanwa Saha driven out his first wife from his house.

On the discussion of above fact and evidence it is needless to discuss any other evidence either on behalf of prosecution or on behalf of defence. It is straightforward allegation and evidence on the judicial record against Santanwa Saha for physical and mental torture to his first wife and accused Fuliya Devi. ........

12. So far the accused Santanwa Saha is concerned, it is clinching evidence against him for physical and mental torture on person of complainant and now it is settled principle of law that second marriage during the lifetime of first wife without getting divorce, it itself comes under purview of mental torture and ingredients completed for offence U/s 498A I.P.C.. It is also clear from the face of the record that he re-married with the Fullia Devi, so offence U/s. 494 I.P.C. also proved and offence u/s 494 automatically completed against accused Fulia Devi."

22. The learned trial court acquitted the rest 06 accused persons namely, Sukha Saha, Jagdish Saha, Kartik Saha, Gangaram Saha, Gunjo Devi and Shiva Saha from the charges under Sections 504 and 494 of the Indian Penal Code giving benefit of doubt to them.

23. This Court further finds that the learned appellate court also considered the evidences adduced on behalf of the parties and the arguments advanced on their behalf and recorded its findings at Paras-7 and 8 which read as under:

"7. Defence has also examined 3 witnesses. D.W.-1 Hari Kishan Saha, D.W.-2 Bhavani Saha and D.W.-3 Rohani Saha. The importance of the defence witness is based on preponderance of probabilities and not beyond shadow of reasonable doubts. But if defence witness has stated anything before the court which suggest truthfulness of the prosecution case, it again gives more weightage than any set of evidence. Defence witness Hari Kishan Saha stated in Para-10 that the name of 2nd wife of appellant Santanwa is

Fuliya Devi but the appellant has married with Fuliya Devi resident of village Dahlangi, Distt.- Godda and the appellant has ousted his first wife about 20 to 25 years ago. This witness is competent witness and supported the version of the prosecution. D.W.-2 Bhavani Saha in para-13 clearly deposed that appellant Santanwa has solemnized another marriage which is clear cut proof of offence U/s. 494 I.P.C. and D.W.-3 in para-9 and 10 clearly deposed that the appellant Santanwa has not given divorce to his first wife and having first wife, he has solemnized another marriage and there is a child from the 2nd wife. Then what is left for proving 2nd marriage of appellant Santanwa and the result of 2nd marriage is a child which is sufficient proof of mental cruelty given by appellants to the complainant of this case.

8. From the discussions made above that the allegation levelled against the accused Santanwa Daha for physical and mental torture to his first wife and accused Fuliya has solemnized another marriage with Santanwa during the lifetime of his first wife. Thus learned lower court has rightly come to the conclusion that prosecution has been able to prove its case under Section 498A and 494 I.P.C. and accordingly, the conviction and sentence has been passed......."

24. This Court finds that C.W.-2 is the Complainant herself. she deposed that her marriage with the Petitioner No.1 was solemnized 35 years ago and she had three children from him, but all died for want of medicine, etc. She further deposed that at the time of marriage, her mother had given golden and silver ornaments and land to her and she had sold the same and had deposited Rs.65,000/- in Jhiktiya bank in the joint account with the Petitioner No.1 and thereafter, the Petitioner No.1 pressurized her to transfer the entire amount in his name, otherwise he would not keep her. Thereafter, the Petitioner No.1 ousted her from her matrimonial house and she went to the house of her maternal uncle where a panchayati was convened in the residence of her maternal uncle in which the Petitioner No.1 accepted his guilt and promised to keep her properly and brought her to his house. But after one month, the Petitioner No.1 again ousted her and

remarried with the Petitioner No.2. She identified her thumb impression on the Complaint Petition.

25. C.W.-1 is the sister of the Complainant. She deposed that she knows both the parties and the marriage of the Complainant with the Petitioner No.1 was solemnized 34 years ago. The Complainant had three children from the Petitioner No.1, but all of them died. She further deposed that at the time of marriage, the mother of the Complainant had given ornaments and Rs.65,000/- to the Complainant which was deposited by her in Jhiktiya bank and the Petitioner No.1 demanded the money from her, but she refused to give, and thereafter, the Petitioner No.1 ousted her from her matrimonial house and she went to the house of her maternal uncle where a panchayati was convened in which the Petitioner No.1 accepted his guilt and took the Complainant to his house. But after one month, the Petitioner No.1 again assaulted and ousted her and remarried with the Petitioner No.2.

26. C.W.-3 is a typist who had typed the Complaint Petition and is a formal witness. He exhibited the Complaint Petition as Exhibit-1.

27. This Court further finds that 03 defence witnesses have been examined on behalf of the petitioners in their defence and all the three defence witnesses have stated the fact that the Petitioner No.2 is the second wife of the Petitioner No.1 and D.W.-1 and D.W.-3 have also stated that the Petitioner No.1 solemnized second marriage with Petitioner No.2 during subsistence of his first marriage with the Complainant.

28. This Court finds that neither the witnesses examined on behalf of the Complainant, nor the defence witnesses have stated that the Petitioner No.2, who is the second wife of the Petitioner No.1, had any knowledge or complicity with regard to solemnizing second marriage by the Petitioner No.1 with her. This Court is of the considered view that the essential ingredients to constitute the offence under Section 494 of the Indian Penal Code on the

part of the Petitioner No.2 are wholly lacking on the records of the case. This Court is of the considered view that the conviction of petitioner no. 2 for offence under Section 494 is ex facie perverse, based on no evidence against petitioner no. 2. Accordingly, the conviction and sentence of petitioner no. 2 under Section 494 IPC cannot be sustained in the eyes of law and calls for interference under revisional jurisdiction in order to prevent the miscarriage of justice.

29. Accordingly, the conviction and sentence of the Petitioner No.2 under Section 494 of the Indian Penal Code is hereby set-aside and she is discharged from the liability of her bail bond.

30. In the judgment of "Manju Ram Kalita Vs. State of Assam"

reported in (2009) 13 SCC 330, 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 and held in para 22 of the judgment that "Cruelty", for the purpose of section 498A of IPC, is to be established in the context of Section 498A IPC as it may be different from other statutory provisions.

31. This Court finds that the allegation of bigamy in the present case is only one of the instances of cruelty and further there is specific allegation against the petitioner no. 1 of demand of money and torture of the complainant for which ultimately the complainant was thrown out of her matrimonial house and had to take shelter at her sister's house. This Court finds that C.W.-2 (Complainant) has fully supported her version with regard to the demand of Rs.65,000/- made by the Petitioner No.1 from her and also the assault, mental torture and ousting her from her matrimonial house by the Petitioner No.1. She has also fully supported her version with regard to solemnizing second marriage by the Petitioner No.1 with the Petitioner No.2 during subsistence of her marriage with the Petitioner No.1. This Court further finds that C.W.-1 and C.W.-3 have fully corroborated the facts and evidences adduced by the Complainant (C.W.-2) with regard to

the demand made from the Complainant and the cruelty committed to her by the Petitioner No.1 and they have also corroborated the facts regarding second marriage of the Petitioner No.1 with the Petitioner No.2. The allegations against the Petitioner No.1 also find support from the evidences of all the three defence witnesses. The prosecution witnesses including the complainant have been cross- examined and their evidence remained consistent. This was coupled with the fact that the petitioner no. 1 solemnized second marriage with the petitioner no. 2 during the life time of the complainant and after she was thrown out of her matrimonial house. The bigamy by the petitioner no. 1 is an admitted fact on record.

32. This Court finds that both the learned courts below have found sufficient evidence to convict the Petitioner No.1 under Sections 498A and 494 of the Indian Penal Code. This Court does not find any illegality or perversity or miscarriage of justice in the conviction of the Petitioner No.1 under Sections 498A and 494 of the Indian Penal Code calling for any interference in revisional jurisdiction.

On the point of sentence of the petitioner no. 1

33. This Court finds that the Complaint case was filed on 28.06.2006 and since then, more than 14 years have already elapsed and the Petitioner No.1 has faced the rigors of the criminal case for a long period of more than 14 years and the present case is his first offence as also, at present, he is aged about 65 years. Considering the aforesaid aspects of the case, this Court is of the considered view that the ends of justice would be served, if the sentence of the Petitioner No.1 is modified and reduced to some extent and the fine amount is enhanced.

34. Accordingly, the sentence of the Petitioner No.1 for offence under Section 498A of the Indian Penal Code is modified and reduced to Rigorous Imprisonment for one (01) year and the fine amount is enhanced to Rs.1,00,000/- (Rupees One Lakh) to be deposited

before the learned trial court within a period of six months from the date of communication of this order to the learned court below. This Court is not inclined to interfere with the sentence passed under Section 494 of the Indian Penal Code. Both the sentences shall run concurrently and the period of custody already undergone by the Petitioner No.1 shall be set off. If the fine amount is not deposited within the time frame as indicated above, the Petitioner No.1 would serve the remaining sentence imposed by the learned trial court. The learned trial court is directed to remit the fine amount so deposited by the Petitioner No.1, to the Complainant upon due identification.

35. This criminal revision petition is partly allowed.

36. Interim order, if any, stands vacated.

37. The bail bond furnished by Petitioner No.1 is hereby cancelled.

38. Pending interlocutory application, if any, is dismissed as not pressed.

39. Let the lower court records be sent back immediately to the court concerned.

40. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.

(Anubha Rawat Choudhary, J) Saurav/Pankaj