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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Chundri Devi wife of Balki Mahto and Anr. - Petitioners
Versus
The State of Jharkhand & Anr. – Opposite Parties
Criminal Revision No. 157 of 2014 & 1203 of 2013
Decided On : 04-01-2021
Indian Penal Code, 1860 - Section 494/109, 498-A – Criminal Procedure Code, 1973 - Section 357 - Criminal Appeal whereby and whereunder learned appellate court upheld Judgment of conviction and order of sentence passed by learned trial court and dismissed appeal - Petitioners submitted that petitioner has been convicted under Section 494 of Indian Penal Code alleging to be second wife of petitioner - Second marriage of petitioner was not proved through cogent evidence and on other hand, petitioner-Deoki Devi was unmarried on date of her alleged marriage and she could not have been convicted under Section 494 of Indian Penal Code - Conviction under Section 494 of Indian Penal Code is based on no evidence and basic ingredients of offence Section 498-A of Indian Penal Code have not been satisfied - Complainant also referred to findings of learned trial court and appellate court and submitted that not only 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 complainant has also been examined before the learned trial court – Held, Court finds that there is no mention of any material indicating that Deoki Devi had any knowledge at time of her marriage with Mohan Mahto, that he was already married - There is no material to indicate role of Deoki Devi in commission of alleged offence of second marriage by Mohan Mahto - This Court finds that leaned trial court, while convicting Deoki Devi under Section 494 with 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 – Petitioner-Chundri Devi has been sentenced to undergo Simple Imprisonment for 06 months with fine of Rs.1,000/- under Section 498-A of Indian Penal Code and Simple Imprisonment for 06 months with fine of Rs.500/- under Section 323 of Indian Penal Code with default clauses and both 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 - Criminal Revision partly allowed.
ORDER :
Anubha Rawat Choudhary, J.
1. Heard Mr. Vijay Kumar Roy, learned counsel appearing on behalf of the petitioners in both the cases.
2. Heard Mrs. Vandana Bharti, learned A.P.P. appearing on behalf of the Opposite Party-State in both the cases.
3. Heard Mr. Sahadeo Choudhary, learned counsel appearing on behalf of the Complainant in Cr. Revision No. 1203 of 2013.
4. 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.
5. 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 :
(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.
6. The learned trial court had sentenced the petitioners as under:
(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:
7. 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 lon
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