Mamta Devi @ Mamta Kumari vs State Of Jharkhand And Ors

Heard learned counsel for the appellant and learned Addl. P.P. for the State.

This interlocutory application has been filed with a prayer for grant of special leave under Section 378 (3) of the Code of Criminal Procedure for

presenting the appeal against the judgment and order dated 20.12.2018 passed by the Judicial Magistrate, 1st Class, Ranchi in Complaint Case

No.2240 of 2008.

The brief facts of the case is that the marriage between the co-accused Pankaj Kumar and the appellant has taken place as per Hindu Rites and

Customs and at the time of marriage, the parents of the appellant gave her presents. After marriage, the appellant went to the in-laws house and

stayed there for a considerable period of time and bidai (Duragaman) was made in the month of March, 1997. The respondent no.2 who is the

younger brother of the husband of the appellant and the respondent no.3 who is the mother of the husband of the appellant inter-alia were not happy

with the gift and dowry given by the father of the complainant and they demanded colour T.V., fridge, cooler and cash of Rs.1,00,000/- and put

pressure on the complainant and as the father of the appellant could not meet the said demand, the respondent nos.2 and 3 along with the husband and

other relative of the husband beat and abused the complainant, do not provide her food, medicines and do not bear the expenses of the doctor. On

13.05.2007 assault was made on the complainant by the accused persons of the case and she was driven out from her matrimonial house. The

appellant took shelter in the house of her uncle who resides in Ramgarh and thereafter came to her father’s house and by putting pressure upon

the appellant, the accused persons obtained her signature on blank papers and non-judicial stamp paper. It is also alleged that on 14.09.2008 at about 9

am, the accused persons arrived at the residence of the parents of the appellant and repeated demand of Rs.1,00,000/- and when the father of the

appellant could not fulfill the said demand, they threatened that they will get the husband of the appellant remarried with another lady. After complaint

was filed, the learned Magistrate found sufficient ground to proceed against the husband of the appellant and respondent nos.2 and 3 of the appeal for

the offence punishable under Section 498A of the Indian Penal Code and charge for the said offence under Section 498A was framed against the

respondent nos.2 and 3 and husband of the appellant and subsequently a separate charge for the offence under Section 494 of the I.P.C. was also

framed against the husband of the appellant.

In support of his case, the complainant altogether examined six witnesses besides proving the following documents:-

Ext.1 Original Marriage Card, Ext 1/1 signature of the complaint on complaint petition, , Ext.2 Letter No.38 of 2017, Ext.3 Marriage receipt, Ext.4

C.C. of copy of petition filed by Pankaj Kumar before JHALSA, Ext.5 C.C. of order sheet of Misc. Case No. 35/2008 of the Family Court,

Jehanabad, Ext.6 C.C. of order passed by Hon’ble Patna High Court in Misc. Appeal No.2/2011. From the side of the defence, the brother-in-law

of the respondent no.2 was examined as D.W.1 and from the side of the defence also the following documents were proved:-

Ext.-A Marriage receipt no.214, Ext.-B rent receipt, Ext. C Original Certificate, Ext.-D Original Certificate issued by CBSE, Ext.-E Original

Certificate issued by BIEC, Ext.-F Driving Licence, Ext.-G Voter ID.

Out of the witnesses examined by the complainant, C.W.1- Mamta Devi is the complainant herself. She has stated about her marriage having been

solemnized in the year 1996 and in an omnibus manner she stated that she was tortured by the respondent nos.2 and 3 and others. She was also

assaulted in connection with demand of dowry and she was confined in the house and was not provided food and her jewelries were also snatched

away. She has stated thus without mentioning the name of any particular person who ill-treated her or the date or occasion when such occurrences

took place. She has also stated about the demand of Rs.1,00,000/-, T.V., fridge, cooler in general and omnibus manner. She has further stated that on

13.05.2007, she was driven out from the new house constructed by her husband in which he celebrated a house warming function (grih parvesh) on

30.04.2007 and on 04.09.2009 the respondent nos.2 and 3 along with others came to her fathers’ house and demanded Rs.1,00,000/- as a condition

to remain in her matrimonial house. It is pertinent to mention here that the C.W.1 is silent about being assault made to her on 13.05.2007. In her cross-

examination, C.W.1 has stated that she stayed for four days only after her marriage in her in-laws house and she stayed 5-6 months in her in-laws

house after Duragaman. She complained in the police station and volunteered to say that till her father-in-law was alive, he was supporting her. She

has categorically stated that in the year 1997 she went to the police station. The assault took place at Ramgarh but she did not institute any case at

Ramgarh. The respondent no.2 has got compassionate appointment in place of her father-in-law and the respondent no.2 resided at Hajipur at the time

of her deposition in court.

C.W.2-Ram Pravesh Sharma is the paternal uncle of the appellant and claimed to have mediated in the marriage. He has stated about the demand

of Rs.1,00,000/-, T.V., Fridge and cooler in general and omnibus manner. He has further stated in paragraph no.4 of his deposition that the father-in-

law of the appellant died on 11.06.2006 and after that the accused persons tortured the appellant. He also stated that on 13.05.2007 the respondent

nos.2 and 3 along with others assaulted the appellant and thereafter drove her out from their house. He has further stated that the victim was treated

by a doctor. It is pertinent to mention here that no document of any treatment by any doctor has been produced in this case. On 14.09.2008 the

accused persons came for discussion and conveyed that they will not keep the appellant unless their demand is fulfilled but the C.W.2 is silent about

any occurrence of assault taking place on 14.09.2008 though he claims to be an eye-witness to the occurrence on 14.09.2008. C.W.2 has categorically

stated that on that date, the appellant was not present in the house of her father but she was present in the house of her younger sister thereby ruling

out the presence of the appellant at the time of discussion that took place on 14.09.2008. C.W.2 then stated that no case was instituted in respect of

the occurrence that took place on 13.05.2007 but for the occurrence on 14.09.2008 they instituted a case in the police station. They submitted a

written report in the police station which was accepted by the police but he has not produced the application in court. In paragraph no.15 he has stated

that the appellant also used to live happily.

C.W.3-Ram Chabila Sharma is the father of the appellant. He has stated about the marriage between the parties and presents were given at the

time of marriage. He has further stated in paragraph no.5 that the respondent no.3 conveyed by a letter about fridge, cooler, T.V., cash though no

such letter could be produced by the complainant in court. On 11.08.2006 the father-in-law of the appellant expired and on 13.05.2007 all the accused

persons of the case started demanding dowry of Rs.1,00,000/- and the articles from the appellant and told her to bring the same from C.W.3 and as

the said demand was not met, the accused persons took away the jewelries and clothes given at the time of marriage and told her to go to her house.

It is pertinent to mention here that C.W.3 is silent about any physical assault being made upon the appellant on 13.05.2007. He has also stated that in

an injured condition, the appellant went to the house of C.W.2 where she was treated and after she became alright, the appellant came to the house of

C.W.3 at Dakra. He has further stated that on 14.09.2008 the husband of the appellant with the respondent nos.2 and 3 came to Dakra. C.W.3 called

the C.W.2 in the evening and they demanded money and assaulted the appellant. In paragraph no.14 of his deposition C.W.3 contradicted to the

statement of C.W.2 wherein the C.W.2 stated that the demand was made at 09:00 am and he stated that the appellant was not present in the house of

C.W.3 at Dakra on that date. C.W.3 has further stated in paragraph no.21 that the appellant was happy with her marriage and in paragraph no.25 he

has stated that for the occurrence that took place on 24.09.2008 no written information was given to the police.

C.W.4-Rajeev Kumar is the younger brother of the complainant. He has also stated about the marriage of the appellant with her husband and

presents being given and he further stated that respondent nos.2 and 3 were not happy with the presents given at the time of the marriage of the

appellant and demanded fridge, cooler, T.V. He then stated that daily her sister was abused and both the sister-in-laws (Nanad) of the appellant were

quarreling with the appellant which allegation was not made by other witnesses including the C.W.1. After the death of the father-in-law of the

appellant, the accused persons became offensive and some days after the house warming function (ghir parvesh) by the husband of the appellant, the

appellant was driven out from the said house.

C.W.5 Narendra Kumar states that normally he used to live in Delhi. He is basically a hearsay witness.

C.W.6- Rasmani Jha is the witness regarding the second marriage of the husband of the appellant and he has not stated anything about the

respondent nos.2 and 3.

D.W.1-Subodh Kumar Azad has stated that the respondent no.3 used to live in her village till 2010. She was working as a teacher at the place

namely Khelira 5 kms away from native village Kanhaiyachak in the State of Bihar and the respondent no.2 is working in the Irrigation Department of

Bihar Government and has studied at Ranchi and Patna. This evidence of the D.W.1 remains unchallenged.

Learned trial court after considering the evidence in record convicted the husband of the appellant namely Pankaj Kumar for the offence

punishable under Section 498A and 494 of I.P.C. but acquitted the respondent nos.2 and 3 of this appeal of the said charges by observing that there is

no specific allegation levelled by any of the witnesses against the respondent nos.2 and 3 and their presence at the time of place of occurrence at

Khelari and Ramgarh has not been satisfactorily proved by the complainant or other witnesses examined by her and the learned trial court relied upon

the deposition of D.W.1 which established the presence of ordinary place of residence of the respondent nos.2 and 3 in the State of Bihar.

Mr. Onkar Nath Tiwari- the learned counsel for the appellant submits that the finding of the trial court is perverse and illegal and the learned trial

court failed to consider that in paragraph no.12, the C.W.1 has stated that on 13.05.2007 the accused persons has beaten her and thrown her out from

her matrimonial house. It is further submitted that the C.W.2 in paragraph no.6 of his deposition submits that on 13.05.1997 the respondent nos.2 and 3

along with other relative beaten the complainant in his presence and threw her out of the house. Hence, special leave to present the appeal be granted.

Ms. Priya Shreshtha the learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the allegation against the

respondent nos.2 and 3 are general and omnibus in nature. It is further submitted that there is neither any specific occasion or date or manner of

assault upon the appellant by either the respondent or the respondent nos.2 and 3 and their presence at the normal place of vocation in the State of

Bihar remains unchallenged and undisputed. It is then submitted that the leaned court below having rightly acquitted the respondent nos. 2 and 3, the

appellant ought not to be given special leave to present this appeal.

It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third

court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law

is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence, as has been

held by the Hon’ble Supreme Court of India in the case of Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330. Having heard the

submission made at the Bar and after going through the evidence in record, this Court is of the considered view that in the impugned judgment so far

as the acquittal of respondent nos.2 and 3 are concerned do not suffer from any perversity warranting interfere of this Court in exercise of its

jurisdiction under Section 378 (4) of Cr.P.C. Thus, this Court is of the considered view that this is not a fit case where special leave to present the

appeal be granted under Section 378 (3) of Cr.P.C. Accordingly, this interlocutory application being without any merit is rejected.

Consequently this Acquittal Appeal (C) No.29 of 2019 is also dismissed.