Chundri Devi And Ors vs State Of Jharkhand And Ors

Heard Mr. Vijay Kumar Roy, learned counsel appearing on behalf of the petitioners in both the cases.

Heard Mrs. Vandana Bharti, learned A.P.P. appearing on behalf of the Opposite Party-State in both the cases.

Heard Mr. Sahadeo Choudhary, learned counsel appearing on behalf of the Complainant in Cr. Revision No. 1203 of 2013.

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.

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.

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:

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.

Learned counsel for the petitioners relied upon the following judgments in support of their submissions: 2002(1) East. Cr. C. 374 (SC) Paul George

â€"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

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

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

......................................................................................................

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.

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.â€​

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.â€​

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.

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.â€​

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 w)herein 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 Indi,a 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 Maharashtr awas 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.â€​

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

The bail bond furnished by Mohan Mahto (petitioner in Cr. Revision No. 1203 of 2013) is hereby cancelled.

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

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

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