Risha Manjhi, Risa Majhi @APPELLANT@Hash State of Jharkhand

The present appeal is directed against the judgment of conviction and order of sentence dated 29th November, 2006 passed by the learned

Additional Sessions Judge, Fast Track Court No. I, Ghatsila in Session Trial No. 339 of 2002, by which the appellants have been found guilty for the

offence under Sections 498A/34 and 323/34 of the Indian Penal Code and accordingly, they have been sentenced to undergo rigorous imprisonment

for two years for the offence under Sections 498A/34 of the Indian Penal Code and rigorous imprisonment for six months for the offence under

Section 323/34 of the Indian Penal Code. It has also been directed that both the sentences shall run concurrently.

The prosecution case is based upon the written report dated 10.2.2002 given by the porsecutrix, Chhita Manjhi (P.W.6) stating therein that her love

marriage was solemnized with Risha Manjhi (Appellant No. 1) in the year 1999 and after lapse of some days, her husband along with her in-laws

started assaulting and torturing her for some or other reasons. It is also alleged that her pregnancy was aborted without her consent but she kept mum

in impression that good feelings would be restored. It is further alleged that her in-laws were not providing her proper food and shelter and they were

treating her as maid servant.

On the basis of the aforesaid written report, Jadugora P.S. Case No. 5/2002, corresponding to G.R. No. 51/2002 was registered against the

appellants and others for the offence under Sections 498A, 313, 323/34 of the Indian Penal Code. After investigation, the police submitted charge

sheet against all the accused persons under sections 498A, 313/34 and 323/34 of the Indian Penal Code. Thereafter, cognizance was also taken under

the aforesaid sections.

After cognizance, the case was committed to the Court of Session by the learned ACJM, Ghatsila, where the charges were framed on 24.03.2003

for the aforesaid sections. The contents of the charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty

and claimed to be tried.

After closure of the prosecution witnesses the accused-appellants were examined under section 313 of the Code of Criminal Procedure, in which

they claimed to be innocent. The defence of the appellants and others is complete denial and false implication with an ulterior motive to procure money

from the accused persons as the victim has herself solemnized her marriage with one Kurali Oraon.

In order to prove the charges, the prosecution has examined altogether seven witnesses in this case.

P.W.1, Suru Murmu: This witness is the uncle of appellant No.1- Risha Manjhi. He stated that the victim has followed the rites and custom of Adivasi

Sarana Religion.

P.W.2, Bhim Murmu @ Dikku Murmu: This witness has turned hostile

P.W.3, Tharu Mardi: This witness has also been declared hostile.

P..W.4, Jasai Tudu: This witness has also been declared hostile.

P.W.5, Sonoka Mahto: This witness is the Member of Akhil Bhartiya Mahila Sanskritik Sangathan, who has written report of the victim (Ext.1) and

the application filed by the victim before the Sangathan,Potka Prakhand.

P.W.6, Chhita Manjhi: This witness is the victim. She deposed that her marriage was solemnized in the year 1999 with appellant No. 1 as per Sarna

rites and rituals. After marriage, she became pregnant, but her pregnancy was terminated by her in-laws against her will. Thereafter she lodged a

complaint before Mahila Samiti, but despite the said complaint, her in-laws remained adamant to torture her and in that course they even did not

provide her food and other facilities. She further deposed that thereafter she filed the written report before the police station with the help of Mahila

Samiti. In para 4 she deposed that she has filed a Maintenance Case in the Family Court, Sakchi.

In cross-examination, she deposed that she has no documentary evidence about her marriage. She further deposed that due to assault she sustained

only swelling injuries, but there is no bleeding and therefore she was not treated medically. She also deposed that on 10.2.2002 she came back to her

Maike finally and did not return again to her in-laws’ house. She has denied that she has even stated before the police that she became pregnant

before the marriage and her abortion was caused in the clinic at Bengal. P.W.7, Shambhu Nath Sahay: This witness is the Investigating officer who

has proved the FIR (Ext.3).

The defence has also examined two witness, namely, D.W.1: Bhogan Murmu and D.W.2: Bishwanath Tudu, who have supported the case of the

defence. The defence has also produced some documentary evidence like the Certified copies of order sheet and plaint pertaining to Title

Maintenance Suit No. 196 of 2003, pending in the Court of learned Principal Judge, Family Court, Jamshedpur, which have been marked as Exts.- A

and B, respectively.

Learned counsel for the appellants submits that there is no iota of evidence which suggests that the appellants have assaulted and tortured the

victim. He further submits that there are several contradictions and inconsistencies in the averments made in the FIR and depositions as no one has

clearly stated about the solemnization of marriage between the victim and the appellant No. 1 and therefore, it is difficult to say that the victim is the

legally married wife of the appellant or not. He further submits that there is no clear and specific evidence on record to suggest that as to what form,

the marriage was solemnized as neither of the family members of the victim nor her co-villagers have come forward to support the factum of the

marriage as alleged. He lastly submits that in absence of the findings of the I.O. and the Doctor, no definite conclusion can be arrived at with regard

to the factum of abortion alleged to have been caused by the appellants as neither the I.O. nor the victim disclosed as to what place the said abortion

had taken place and therefore in absence of the cogent and reliable evidence on record, the case of the prosecution has a great doubt and the benefit

of doubt should be given to the appellants and therefore, the appellants are entitled to acquit from the charges levelled against them. The learned

counsel for the appellants has also referred to and relied upon the judgment in support of the case of the appellant, pronounced by the Hon’ble

Apex Court in Criminal Appeal No. 1218 of 2018 [arising out of SLP(Cr.) No. 6104 of 2014] (Mohd. Hashim Vs. State of U.P. and Ors.).

Per contra, learned A.P.P assisted by the counsel appearing on behalf of respondent No. 2 submits that the learned court below has rightly

convicted and sentenced the appellants as the prosecutrix has consistently corroborated the factum of cruelty and ill treatment subjected to her by her

husband as well her as in-laws and also the factum of termination of her three months’ pregnancy caused by the appellants against her will. He

further submits that though some witnesses have turned hostile, but P.W.1, the uncle of the appellant No. 1, and P.W.5, the member of “Akhil

Bhartiya Mahila Sanskritik Sangathan†have consistently supported the version of the prosecutrix with regard to cruelty and torture subjected to her

by her in-laws and therefore, the trial court has rightly convicted and sentenced the appellant.

I heard learned counsel for the parties and have gone through the records.

This is a case where the informant alleges about torture and demand of dowry. It is the defence of the appellants that no marriage at all had taken

place between the parties. In support of the said evidence, the appellants have brought on record the judgment passed in Title Matrimonial Suit No.

196 of 2003 by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur.

It is important to mention herein that during the pendency of this appeal, an application was filed by the appellants for adducing additional evidence

under Section 391 of the Cr.P.C. While hearing the said application, vide order dated 26.6.2015, the court below was directed to take steps in

accordance with law and allowed the appellants to produce witnesses in their support. The appellants were also directed to produce the certified copy

of judgment and decree. In compliance of the aforesaid order, the judgment was taken in evidence and was sent to this Court and the same was kept

at Flag-X.

While going through the said judgment, I find that the suit was filed by the appellant praying therein to declare that the informant is not a legally

married wife of appellant No. 1. The suit was contested and on contest, the same was decreed in favour of the appellants holding that the defendant is

not a legally married wife of the plaintiff. The judgment passed by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur has not

been challenged and the same has attained finality. Thus, it is admitted fact that the informant is not the legally married wife of appellant No. 1.

Section 498A IPC provides that there has to be cruelty by the husband or the relatives of the husband. In this case, there is a finding of a competent

Civil Court, which has attained finality, to the effect that appellant No. 1 is not the husband of the informant. That being so, Section 498A IPC is not

applicable in the instant case. Further there is no sufficient evidence on record to convict the appellants under Sections 323/34 IPC. There is also no

evidence on record about the termination of pregnancy of the informant. Thus, I find that there is merit in this appeal.

In the result, the appeal is allowed by setting aside the judgment of conviction and order of sentence dated 29th November, 2006 passed by the

learned Additional Sessions Judge, Fast Track Court No. I, Ghatsila in Session Trial No. 339 of 2002. The appellants, above named, are acquitted of

the charges. Since the appellants are on bail, they are discharged from the liability of their bail bonds.