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Risha Manjhi @ Risa Majhi vs The State Of Jharkhand on 23 October, 2018

Cr. Appeal (S.J.) No. 15 of 2007

Against the judgment of conviction and order of sentence dated 29 th
November, 2006 passed by the learned Additional Sessions Judge, Fast
Track Court No. I, Ghatsila in Session Trial No. 339 of 2002.
……….

1. Risha Manjhi @ Risa Majhi

2. Shanti Manjhi @ Majhi

3. Smt. Karmi Manjhi @ Majhi ………………….. Appellants.

-Versus-

1. The State of Jharkhand

2. Chitta Manjhi ……………………. Respondents.

PRESENT
HON’BLE MR JUSTICE ANANDA SEN
For the Appellants: M/s Amit Kumar Das Shivam Utkarsh, Advocates.

For the State: A.P.P
For Resp. No. 2 Mr. Pramod Kumar Kishlay Kumar, Advocates.
……….
C.A.V. On 13.09.2018 Pronounced on: 23/10/2018

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.).

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

(ANANDA SEN, J.)

Jharkhand High Court, Ranchi
Dated: 23/10/2018.

NAFR-Anu/-

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