1 Cr. Appeal (S.J.) No.883 of 2002 Against the judgment of conviction and order of sentence dated 17.12.2002 passed in Sessions Trial No. 329 of 1999 by the 1st Additional Sessions Judge, Seraikella. -------------
1. Dushasan Mahato.
2. Saraswati Mahatani. ... ... ... ... ... ... Appellants -Versus- The State of Jharkhand. ... ... ... ... ... ...Opp. Party ------------- For the Appellants: Mr. R.C.P.Sah, Advocate. For the State: Miss. Anita Sinha, A.P.P. ------------- C.A.V. on 30.09.2010 : Pronounced on 25.02.2011 ------------- PRESENT THE HON'BLE MR. JUSTICE DILIP KUAMR SINHA ------------- D.K.Sinha,J. This Criminal Appeal is directed against the judgment of conviction
and order of sentence recorded by the 1st Additional Sessions Judge, Seraikella- Kharsawan on 17.12.2002 in Sessions Trial No. 329 of 1999 arising out of Kharsawan P.S. Case No. 05 of 1999, corresponding to G.R. No.52 of 1999 by which the appellant No.1 Dushasan Mahato was convicted under Sections 493 and 323 of the Indian Penal Code and was sentenced to undergo R.I. for a term of five years and fine of Rs. 10,000/- ( ten thousand) with default stipulation and further, simple imprisonment for three months for his conviction under Section 323 of the Indian Penal Code. Both the sentences were directed to run concurrently. The appellant No.2 Saraswati Mahatani was convicted only for the offence under Section 323 of the Indian Penal Code but she was directed to be released under Section 4 of the Probation of Offender Act on executing probation bond of Rs.2,000/- with two sureties of like amount each for one year to be of good behaviour and to maintain peace for one year.
2. The prosecution story in short was that that complainant-Pantua Kumari- P.W. 2 presented a complaint vide C/1 Case No. 107 of 1998 before the A.C.J.M. at Seraikella stating, inter alia, that she was the resident of village Baridih whereas the accused Dushasan Mahato and his sister Saraswati Mahatani were residing at village Chamrudih within the Kharsawan Police Station. The appellant No.1 was an employee of South Eastern Railway, posted at Tatanagar whereas the appellant No.2 Saraswati Mahatani though was married twice but she had left her matrimonial home and finally settled with her brother there. The appellant No.1 was on visiting terms in the house of Shankar Mahto, who was close door neighbour of the complainant and in that sequence he started regularly visiting her house which was converted into intimate their relation. Their such relationship could be lastly detected on 15.10.1998 to which a "Panchayati" was held at the instance of the appearance of the complainant, 2 which was attended by the appellant No.1 Dushasan Mahato wherein he admitted in presence of the witnesses to accept the complainant as his wife and in view of that he executed "Kabulnama" ( deed of acquiescence) in proof of marriage but no customary rites for marriage could be performed between the complainant and the appellant No.1 Dushasan Mahato. She was then taken to the house of the appellant Dushasan Mahato where she was ill-treated by the appellant No.2 Saraswati Mahatani and Dushasan Mahto did intercourse with her between 15.10.1998 to 16.11.1998. She was misbehaved, ill-treated and assaulted. It was alleged that she was confined in a room without food and was not permitted to mix with the villagers and ultimately she was driven out from their house on 16.11.1998 by saying that she was not legally married wife of Dushasan Mahto. The father of the complainant though tried to resolve the dispute and pacify the matter but of no avail hence the complaint for the alleged offence under Sections 493/376/323 against the accused No.1 and under Section 323 of the Indian Penal Code against the appellant No.2 Saraswati Mahatani. The complaint was sent to Kharsawan Police Station under Section 156 (3) of the Code of Criminal Procedure for institution of F.I.R. accordingly, Kharsawan P.S. Case No.05 of 1999 was registered on 02.02.1999 for the alleged offence under Sections 493/376/496/323 of the Indian Penal Code.
3. Charge against the appellant No.1 Dushasan Mahato was framed under Sections 376/496/493 of the Indian Penal Code whereas under Sections 323/498A of the Indian Penal Code against the appellant No.2 Saraswati Mahatani and both were put on trial. It would be relevant to mention that a separate charge under Section 498/323 of the Indian Penal Code was framed against the appellant Dushasan Mahto during trial.
4. P.W. 1 Laxmi Narayan Mahto, resident of Chamrudih though admitted that Pantua Kumari and Dushasan Mahto were known to him but expressed his ignorance as to whether any "Panchayati" was held in his village. Yet, he admitted his signature (Ext.1) on the Panchnama and further expressed ignorance about the issues involved in the "Panchayati". He was declared hostile and nothing material could be elicited in his cross-examination except his statement that he was compelled to sign on the Panchnama at the Police Station at the instance of the Officer-in-Charge.
5. P.W. 2 Pantua Kumari i.e. the complainant/informant of the case testified that she instituted a case against Dushasan Mahato & Saraswati Mahatani disclosing the date and the time of occurrence. She testified that it was the month of "Kartik" when Dushasan Mahato came to her house and forcibly committed rape for the first time and on her alarm the witnesses Raja Ram Mahto, Gurua Mahto and Banwali Mahto came there and caught hold Dushasan Mahato. Accused Dushasan Mahato proposed before them to marry 3 her. Pursuant to his proposal a "Panchayati" was held in the village attended by Dushasan Mahato wherein he accepted her as his wife and took her to his home where she was kept for 15 days. She further testified that on all the 15 days he committed sex with her but did not provide food. One day when Dushasan Mahato went out to attend his duty, she was assaulted by Saraswati Mahatani. She narrated the occurrence when Dushasan Mahato returned back to home but she was driven out of the house by Dushasan saying that he would not keep her. She returned back to her parental home and her father again took her to the house of Dushasan Mahato but when he did not accept her, she lodged the complaint. She identified Dushasan Mahato in the dock, however, claimed to identify the co-accused Saraswati Mahatani. In the cross-examination, she admitted that information regarding the alleged occurrence was given to the police station where her statement was recorded and she put her thumb impression. She was then sent to the lady Doctor at the Seraikella Hospital and that her Petticoat and Sari were seized to which a seizure list was prepared. She filed a complaint in the Court after about a month of the alleged occurrence. She admitted that her statement was recorded by the police. In paragraph No.14 under cross-examination she admitted that Dushasan Mahato never cohabited with her when she went along with him to his house. No second time intercourse was committed by him except first which was committed at her house and that she was never married to him and that she was never assaulted by Dushasan but by Sarswati Mahataine.
6. P.W. 3 Raja Ram Mahto deposed that the occurrence took place some 10 months ago at about 10 O'clock in the night. He went to the house of Pantua Mahatani upon her alarm and found Dushasan Mahato & Pantua both naked. Both admitted their intimate relation for the last one month. They were taken to the Police Station. A 'Panchayati' was also held in the village where a deed was prepared duly signed by Dushasan Mahato and other witnesses. According to the decision taken in "Panchayati" he took Pantua Kumari to his house where she was kept for 15/20 days and thereafter she was driven out by Dushasan Mahato and his sister Saraswati Mahatani after assaulting her. She was again taken back to the house of Dushasan Mahato but he assaulted Pantua Kumari in their presence, hence the complaint was filed. He admitted that Pantua Kumari happened to be his cousin in relation and the house of Dushasan Mahato was situated in another village at the distance of about ½ k.m. The witness admitted that he had not seen Dushasan Mahato prior to the alleged night of occurrence in his village and he could not disclose the age of Pantua Kumari.
7. P.W. 4 Gurua Mahto admitted the night of occurrence which took place some three years ago while he was there in his matrimonial home. He 4 went to the house of Pantua Kumari on her alarm and he found accused Dushasan Mahato indulging in committing rape on Pantua Kumari. The village Chaukidar was called, who took Dushasan Mahato to the Police Station. A 'Panchayati' was also held in the village wherein Dushasan Mahato accepted her as his wife and took Pantua Kumari to his home where he kept her for 15/20 days and thereafter she was driven out by him. He admitted in the cross- examination that Dushasan Mahato was never seen in his matrimonial home prior to the alleged date of occurrence and that Pantua Kumari was the elder sister of his wife and her age was about 20 years. He admitted having narrated before the police that there was love affair going on between Pantua Kumari and Dushasan Mahato prior to the alleged occurrence and that he along with Raja Ram Mahto caught hold Dushasan Mahato and called in the village Chaukidar. Dushasan Mahato was already married and that a deed was prepared at the Police Station wherein Dushasan Mahato endorsed and accepted Pantua Kumari as his wife.
8. P.W. 5 Fateh Mahto was the father of the complainant/informant Pantua Kumari, who deposed that the occurrence took place some 3 years ago in the night while he was sleeping in the room and his daughter Pantua Kumari was sleeping in another room where Dushasan Mahato committed rape on her to which his daughter raised alarm whereupon Raja Ram Mahto and Gurua Mahto came there, caught hold Dushasan Mahato and took him to the Police Station with the help of the village "Chaukidar". At the police station Dushasan Mahato consented before the police that he would marry Pantua. The witness allowed his daughter to go with Dushasan Mahato. Accordingly, Dushasan Mahato took her to his home but driven her out after 15 days. She returned back to her home. He again took Pantua Kumari to the house of Dushasan Mahato but he did not accept her and his sister Saraswati Mahatani assaulted Pantua Kumari and only then a complaint was lodged in the Court. The witness admitted that he was married twice and he had four daughters from his first wife. He solemnized his second marriage after the death of his first wife and Pantua was the second daughter of his first wife. She was unmarried and her age was 25-26 years. The witness admitted that Dushasan Mahato was not known to him prior to the occurrence and that Dushasan Mahato had taken the custody of Pantua at the Police Station.
9. P.W. 6 Ramashish Mishra, the Investigating Officer of the case, deposed that on 02.02.1999 he was posted as Officer-in-Charge of Kharsawan Police Station. On that day he received the Complaint Case No.107 of 1998 filed by the complainant Pantua Kumari to which he instituted Kharsawan P.S. Case No.5 of 1999 under the instruction of the Court for the alleged offence under Sections 376/493/496/323 of the Indian Penal Code. He proved the 5 endorsement on the Complaint Petition Ext. 3 and the F.I.R. Ext. 4. The witness admitted that in course of investigation, he received Panchnama which was attached with the Complaint Petition. In the cross-examination, Investigating Officer denied that Pantua Kumari had come to the Police Station on the subsequent day of the occurrence with the Chaukidar and other witnesses and had delivered her statement there in presence of the witnesses.
10. Learned Counsel Mr. R.C.P. Sah appearing for the appellant submitted at the outset that it was out and out a case of consent sex between the parties and when they were apprehended by the witnesses, the appellant Dushasan Mahato though consented to accept her and took her to his home but she left his house at her own will without any reason or rhyme whatsoever. She admitted in her deposition that no sexual intercourse took place during her stay in the house of the appellant Dushasan Mahato and that no marriage was solemnized at all. It was not the case that she admitted that she was under impression or belief that she was married with the appellant Dushasan Mahato and on such belief Dushasan Mahato committed intercourse with her so as to attract the offence under Section 493 of the Indian Penal Code. In her complaint she admitted in clear words that love affair was going on between her and Dushasan Mahato for the last several months and this fact was admitted in Panchnama (Ext.1) by both the parties in presence of the witnesses though the other witnesses testified that they arrived at the scene at night in the house of Pantua Kumari on her alarm and found them indulged in sex. Admittedly both were quite major to take their own decision and that in the facts and circumstances, no offence was attracted against the appellant in view of the free consent given by Pantua for sex. Love affairs between the parties did not convey that a customary marriage was solemnized. Pantua Kumari fairly denied solemnization of her marriage with Dushasan before the Court except that she was staying in the house of Dushasan Mahato. In that view of the matter, neither offence under Section 493 of the Indian Penal Code nor Section 323 could be attracted against the appellant No.1 Dushasan Mahato for the reasons as well in view of her statement that she was never assaulted by Dushasan Mahato. The conviction of the appellant Dushasan Mahato, therefore, under Section 493 of the Indian Penal Code and under Section 323 of the Indian Penal Code was unsustainable under law. As regards conviction of the appellant Saraswati Mahatani under Section 323 I.P.C. is concerned, I find that the complainant/prosecutrix has proved the allegation that she was assaulted by her in presence of Dushasan Mahato but without injury and in absence of any corroborative evidence it would not be proper to hold Saraswati Mahatani guilty under Section 323 of the Indian Penal Code when other part of the allegation could not be proved.6
11. Miss. Anita Sinha, learned A.P.P. on behalf of the Respondent- State, fairly conceded that no marriage was solemnized between Dushasan Mahato and the complainant Pantua Kumari except that the appellant Dushasan Mahato accepted her as his wife and took her to his home without following any ritual of marriage but the complainant-prosecutrix being an illiterate girl was under impression in view of the statement of the appellant before Panchayati that she was married wife of the appellant Dushasan Mahato and hence the appellant Dushasan Mahato cannot be exonerated from his criminal liability as such, he has been held guilty under Section 493 of the Indian Penal Code.
12. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the appellant No.1Dushasan Mahato was convicted under Section 493/322 of the Indian Penal Code and the Appellant No.2 Saraswati Mahatani was convicted under Section 323 of the Indian Penal Code. Admittedly, neither any ritual was observed for the marriage between Dushasan Mahto and Pantua nor the latter had reasons to believe that she was a legally wedded his wife so as to attract the offence under Section 493 of the Indian Penal Code against the appellant Dushasan Mahato. Section 493 comes within Chapter XX with respect to offence relating to marriage which specifically deals with cohabitation caused by a man deceitfully inducing a belief of lawful marriage;-
"Every man who by deceit causes any woman, who is not lawfully married to him but believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine."
13. In the instant case, the complainant-prosecutrix has admitted that she was not legally married wife of the appellant Dushasan Mahato and after acceptance by the appellant Dushasan Mahato as his wife without observing any ritual of marriage, she admitted that no cohabitation took place thereafter with her in the house of the appellant Dushasan Mahato at any point of time. In that view of the matter and for want of relevant evidence for constituting alleged offence against the appellant Dushasan Mahato, I find that his conviction under Section 493 of the Indian Penal Code cannot be sustained under law and such conviction would tantamount to miscarriage of justice, as such, he is acquitted from his conviction under Section 493 of the Indian Penal Code. As regards conviction of the appellants under Section 323 I.P.C., I find that in her substantive evidence, the prosecutrix Pantua Kumari admitted that she was never assaulted by Dushasan Mahato though at the time when she was driven out, she was assaulted by the appellant No.2 Saraswati Mahatani only yet, both the appellants were convicted under Section 323 of the Indian Penal Code 7 without corroboration. I find that the conviction of the appellants under Section 323 of the Indian Penal Code, in the facts and circumstances of the case, is unsustainable at all and a reasonable doubt is created as to whether Sarswati Mahatani actually assaulted her since other witnesses were silent on such issue (charge). For the reasons stated above, both the appellants Dushasan Mahato and Saraswati Mahatani are acquitted in S.T.No.329 of 1999 arising out of Kharsawan P.S. Case No. 05 of 1999 corresponding to G.R.No.52 of 1999. Accordingly, their conviction recorded under Sections 493 and 323 of the Indian Penal Code by the 1st Additional Sessions Judge, Seraikella is set aside and this appeal is allowed. Their bail bonds stand discharged.
[D.K.Sinha,J.] Jharkhand High Court, Ranchi Dated the_________2011 P.K.S./N.A.F.R.