Judgment:
Criminal Revision No. 75 of 2005 Against the judgment dated 22.07.2004 passed by the learned Additional Sessions Judge, Chatra in Criminal Appeal No. 17 of 1995 --- 1.Raj Kumar Dangi 2.Lukan Dangi both sons of Late Rohi Mahto resident of village Lamboiya, PS Itkhori, District Chatra … … Petitioners Versus The State of Jharkhand … … Opposite Party --- For the Petitioners : Mr. B. K. Dubey, Advocate For the Opposite Party : Mr. Shekhar Sinha, A.P.P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- 10.07.2017 Heard Mr. B. K. Dubey, learned counsel for the petitioners and Mr. Shekhar Sinha, learned A.P.P. for the State.
2. This application has been directed against the judgment dated 22.07.2004 passed by the learned 1st Additional Sessions Judge, Chatra in Criminal Appeal No. 17 of 1995 whereby and whereunder the judgment and order of conviction and sentence passed by the learned Judicial Magistrate 1st class, Chatra dated 13.01.1995 in Itkhori P. S. Case No. 63 of 1990 corresponding to G. R. No. 332 of 1990 by which the petitioners have been convicted for the offence under Section 498A of I.P.C. and sentenced to undergo R.I. for one year has been affirmed.
3. It has been stated by the learned counsel for the petitioners that most of the witnesses are related witnesses and therefore being interested, their evidences should not have been relied upon by the learned court below. He further submits that the Investigating Officer of the case has not been examined which has caused great prejudice to the defence. Learned counsel has submitted in the alternative that if this court is not inclined to interfere with the conviction, the sentence imposed be modified in view of the fact that the petitioners are facing the rigors of prosecution since the year 1990 and has also for some time remained in custody.
4. Learned A.P.P. has opposed the prayer. -2- 5. It appears that the FIR was instituted by the wife of the petitioner no. 1 in which she had alleged that the petitioner no. 1 had an illicit relationship with the wife of petitioner no. 2 and he had seen both of them in an objectionable situation. It has been submitted that the informant was assaulted by both the petitioners. It has further been alleged that the petitioner had sent the informant to her maternal house, and ultimately the matter was reported to the police leading to institution of G. R. No. 332 of 1990. After investigation culminated in submission of charge-sheet, the cognizance was taken and after framing of charge, trial proceeded against the petitioners. The learned trial court vide judgment dated 13.01.1995 was pleased to convict the petitioners for the offence under Section 498A of I.P.C. and they were sentenced to undergo R.I. for one year. The petitioners preferred an appeal being Cr. Appeal No. 17 of 1995 which however, was dismissed by the learned 1st Additional Sessions Judge, Chatra on 22.07.2004.
6. The prosecution in course of trial has examined as many as 5 witnesses. P.W. 1 – Jamadar Pingua is a formal witness. P.W. 2 – Fagu Mahto has stated that the petitioners used to assault the prosecutrix as she had objected to the illicit relationship which was existing between the petitioner no. 1 and the wife of the petitioner no.
2. This witness has stated that a panchayati was also held and when the fact about illicit relationship came to the fore, the wife of the petitioner no. 2 committed suicide out of shame by jumping into the well. P.W. 2 – Fagu Mahto belongs to the village of the petitioners who has stated about the illicit relationship existing between petitioner no. 1 and the wife of the petitioner no.
2. This witness has also stated that when the prosecutrix was assaulted by the petitioner no. 2, she jumped in the well out of shame, but somehow she was saved by the villagers. P.W. 4 – Doman Mahto has supported what has been stated by P.W. 2 & 3. P.W. 5 – Degni Devi is the informant who is the wife of the petitioner no. 1 who has stated that the marriage was solemnised 13 years back, but she did not bear any child and that the petitioners used to assault her and, she was ousted from her matrimonial house. This witness has stated about her objection raised when it came to her knowledge about the petitioner no. 1 having illicit relationship with the wife of the petitioner no.
2. The evidence of the witnesses are consistent on the point that the petitioners used to regularly assault the -3- prosecutrix as she used to object to the illicit relationship of the petitioner no. 1 with the wife of the petitioner no.
2. P.W. 3 – Yogeshwar Dangi is a witness who resides in the village of the petitioners and therefore, it cannot be said that all the witnesses examined by the prosecution are interested witnesses.
7. It is no doubt true that the Investigating Officer of the case has not been examined, but the same by itself would not dilute the prosecution case, in view of the establishment of the place of occurrence, the manner of occurrence and the active part played by the petitioners in committing torture and assault upon the prosecutrix. The learned trial court on proper appreciation of the materials available on record had convicted the petitioners for the offence under Section 498A of the I.P.C. and sentenced them to undergo R.I. for one year. The learned Appellate Court too on proper appreciation of the materials on record dismissed the appeal. There is no reason to conclude otherwise. The order of conviction passed against the petitioners and affirmed by the learned appellate court is sustained.
8. However, so far as the sentence imposed upon the petitioners are concerned, the petitioners are facing the rigors of the prosecution case since 1990. The petitioners have also remained for some time in custody. Considering the mental agony suffered by the petitioners due to long pendency of the case and taking a considerate view, the sentence imposed upon the petitioners is modified to the period already undergone in custody.
9. This application stands dismissed with the aforesaid modification in sentence. (Rongon Mukhopadhyay, J) Jharkhand High Court at Ranchi The 10th day of July, 2017 R.Shekhar/NAFR/Cp.3