Court: JHARKHAND HIGH COURT
Bench: JUSTICE D.P. Singh
Falguni @ Anirudh Pradhan and Ors. vs. State of Bihar (Now Jharkhand)
The complainant had sexual intercourse with the Appellant even before marriage, proved that she had not been induced into marriage.More over,lack of material proof as regards the marriage,rendered the prosecutions story regarding mock marriage baseless & so the offence under Section 498A could not be sustained.
1. Appellant Falguni Pradhan and his parents stand convicted for the offence under Section 498-A of the Indian Penal Code and each sentenced to serve rigorous imprisonment for one year while appellant Falguni Pradhan stands further convicted for the offence under Section 493 of the Indian Penal Code and sentenced to serve rigorous imprisonment for five years, by the 3rd Additional Sessions Judge, Chaibasa in Sessions Trail No. 37 of 1991.
2. Brief facts leading to their conviction are that Tapaswani Pradhan and appellant Falguni Pradhan have got their houses in front of each other situated in Mauza Kochra, Police Station-Hat Gamariya. Further stated that appellant Falguni Mahto developed intimacy with Tapaswani Pradhan and on assurance of marrying her, they started cohabitation. It is further stated that on 5.7.1987, appellant Falguni Pradhan took her to Noamundi temple and performed the exchange of garlands putting vermilion on her head in presence of priest. Thereafter Tapaswani Pradhan believing that she was legally married with appellant Falguni Pradhan starting living as man and wife. This resulted in her conceiving, after which appellant Falguni Pradhan started neglecting her. The matter was brought to the notice of the families and thereafter village Panchayat as held on 6.12.1987. According to village Panchayat decision, Tapaswani Pradhan was sent to live in the house of the appellants. However, they started ill-treating her and refused to accept her in the household, which resulted in initiation of the notices and finally the present complaint case. Tapaswani Pradhan has alleged that she was induced to cohabit with appellant Falguni Pradhan on the pretext that she was married with him. It is also asserted that other appellants have ill-treated her and demanded money. According to Tapaswani Pradhan, she was forced to abort alsb. The complaint petition was sent to O.C. Jhinkpani by learned Chief Judicial Magistrate, Chaibasa for registration of case and investigation under Section 156(3) of the Code of Criminal Procedure, on which Jhinkpani Police Station Case No. 4 of 1989 dated 21.1.1989 was registered. The police investigated the case and finally submitted charge-sheet under Sections 493, 498-A and 313/34 of the Indian Penal Code against the five accused persons. The trial Court after examining the witnesses found and held only appellant Falguni Pradhan and his parents guilty for the offence under Section 498-A of the Indian Penal Code and appellant Falguni Pradhan was further found and held guilty for the offence under Section 493 of the Indian Penal Code, acquitting all the accused persons from the charge under Section 313/34 of the Indian Penal Code and others from all charges. The defence of the appellant throughout was that no such relationship existed or continued. It has been asserted that Tapaswani Pradhan was being forced upon appellant Falguni Pradhan without any such relation.
3. The present appeal has been preferred on the grounds that the learned, lower Court has committed mistake by believing the prosecution version. According to this memo of appeal, there is no positive evidence that any marriage took place between the appellant No. 1 and the complainant. Therefore, the question that she was actually cohabited on false pretext is false. It is further asserted that once the marriage itself becomes doubtful, the question of her being treated cruelly for non-fulfillment of dowry demands also becomes doubtful. The memo of appeal further mentions that once the story of conceivement and abortion has not been believed, the whole story becomes doubtful. According to this memo of appeal, the evidence of PW-9 along with contradictory statement made by PW-10, the complainant, no case is made out. The memo of appeal further questions the institution of the case on the direction of the learned Magistrate after examining the complainant.
4. Learned Counsel for the appellants stressed these points before this Court. According to the learned counsel for the appellants, the institution of the case by Jhinkpani Police Station itself is doubtful, as the learned Chief Judicial Magistrate has no authority under the law to send the complaint petition for institution of First Information Report. In this context, reliance has been placed upon the ratio of the case of Ganesh Dass and Ors. v. State of Kerala and Anr. 1996 Cri LJ 612. The matter considered by the Punjab and Haryana High Court was whether the Magistrate while passing order under Section 156(3) of the Code of Criminal Procedure had jurisdiction to direct the police to register First Information Report. It has been discussed in the said decision that Section 156(3) of the Code of Criminal Procedure empowers the Magistrate to direct the investigation of the case by the police before cognizance in the case has been taken. In the present facts, the learned Chief Judicial Magistrate has directed the police to institute the First Information Report and investigate as provided under Section 156(3) of the Code of Criminal Procedure before taking cognizance. Therefore, I do not find that in the present case any illegality has been committed.
5. Learned Counsel for the appellants further stressed that the prosecution has failed to prove beyond all reasonable doubts that actually the marriage took place in between appellant Falguni Pradhan and Tapaswani Pradhan in July 1987 resulting in any misconception in the mind of Tapaswani Pradhan that she was legally married wife of appellant Falguni Pradhan. Therefore, the conviction under Section 493 of the Indian Penal Code deserves to be set-aside.
6. In this context, the statement of complainant recorded before the trial Court as PW-10 described how the relation started in between her and appellant No. 1. She has alleged that she was subjected to sexual intercourse on assurance that she will be married with him. She further asserted that afterwards the appellant Falguni Pradhan got a ritual performed in Neomundi Shiv Mandi in presence of a priest. She has further asserted that she became pregnant and then the matter was reported but appellant Falguni Mahto denied to accept her. In this context, the village Panchayat was held and she was sent to the house of the appellants where she was ill-treated resulting in coming back to her parents house. She has been cross-examined at length in which she admitted that she continued the relationship for one year and this was kept secret. She further asserted in para 9 that she used to have physical intimacy with appellant Falguni Pradhan in his house and the matter came to the knowledge of the villagers after one year of the relationship. She further admitted vide Para 14 that she was not examined by the doctor regarding her pregnancy after the present case. PW-11 Sanyasi Pradhan is her brother, who has supported the Panchayati, PW-12 Bichindo Pradhan is her father, who further supported the Panchayati. This Panchayati has also been supported by PW-1, Mukhiya of village Panchayat and PW-2 the Sarpanch of the Gram Panchayat. PW-2 has been declared hostile, but he admitted his signature on the Pancyayati while PW-5 has supported the allegations made by the complainant. Both these witnesses have admitted that the photocopy of the decision of the Panchayati on which the signatures have been marked as Ext. 1 and Ext. 1/1. This photocopy of the decision of Panchayati has been further admitted as Ext. 2. According this memorandum, appellant Falguni Mahto has denied to accept Tapaswani Pradhan as his wife before the village Panchayat.
7. PW-3. PW-6, PW-7 and PW-8 have been tendered by the prosecution. PW-4 has formally proved the signature on the First Information Report. PW-5 has only supported the Panchayati. PW-9 is so-called priest of Neomundi Mandir has asserted that exchange of garlands has taken place in between a boy and a girl of village Kochra, but he could not identify them. The Investigating Officer has not been examined in this case. The learned lower Court has relied upon the statement of PW-10, PW-11 and PW-12 to the extent that Tapaswani Pradhan got married in Mandir and thereafter she was sent to live with the appellants, but they refused to accept and ill-treated her resulting in filing of the present case.
8. The learned lower Court has discussed the evidence of the witnesses in this context vide paragraph Nos. 22 to 26 and partly relied upon the version of the complainant that she has developed intimacy with appellant No. 1 resulting in her exchange of garlands in Shiv Mandir, though the story of her pregnancy could not be proved. The lower Court has accepted further that due to inducement used by appellant Falguni Pradhan, she believed that she was lawfully married to him and allowed sexual intercourse to take place. The evidence available on record and admitted by Tapaswani Pradhan as PW-10 herself is that she used to have sexual intercourse with appellant Falguni Pradhan before exchange of garlands and afterwards without informing her family members or any one else till the Panchayati was held. The only witness brought on record in support of exchange of garlands, PW9 has not been corroborated fully that the appellant No. 1 and the complainant actually exchanged garlands in his presence in July 1987. Otherwise, there is no material on record to support the prosecution version that actually any marriage took place to give an impression that Tapaswani Pradhan was legally married wife of appellant Falguni Pradhan. My views are further strengthened with the conduct of the complainant when she admits that prior to this exchange of garlands and afterwards she indulged herself in sexual intercourse on demand by appellant Falguni Pradhan in his house. The fact further stands that the relationship was not accepted because of Panchayati held vide Ext. 2 wherein the villagers had to intervene on 6.12.1987 that the complainant and appellant Falguni Pradhan has got love relation and now he was not accepting her as his wife. The appellant has denied such relation and decided not to accept the Panchayati made by the villagers. Therefore, the question that she was induced to believe by appellant Falguni Mahto to be his legally married wife and to submit herself to sexual intercourse is found not proved.
9. The fact, therefore, remains that if according to village Panchayat decision, the complainant was sent to the house of the appellants and did not treat her property, does not amount to any offence, particularly, under Section 498-A of the Indian Penal Code, which requires that the married woman is subjected to cruelty and torture for dowry demands. The entire prosecution, therefore, on the presumption that Tapaswani Pradhan was married with appellant Falguni Pradhan prior to December, 1987 stands not proved.
10. Having considered the above-mentioned facts and circumstances of the case, I find that the prosecution has failed to prove the charges against the appellants levelled against them beyond all reasonable doubts. Accordingly, I find that the present appeal has got merit and deserves to be allowed.
11. In the result, the present appeal has got merit and is allowed. The judgment of the trial Court is hereby set-aside. The appellants are acquitted from the charges levelled against them and they are discharged from the liabilities of their bail bonds.
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