Dismissed

Maumita Das Alias Moumita Day Das v. The State Of Jharkhand And Ors.

Jharkhand HC13 Mar 2018Cr.M.P./1427/2017

Case brief

AI extract

What is this about?

The High Court reviewed an appeal seeking leave to appeal against an acquittal in a criminal case involving allegations of dowry demand and cruelty under Sections 498A and 506 IPC. Finding insufficient evidence to challenge the trial court's conclusion regarding witness reliability and consistency, the court dismissed the petition.

What did the court decide?

Leave to appeal is not granted and the instant petition stands dismissed.

Maumita Das Alias Moumita Day Das Vs The State Of… — Dowry and Cruelty | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1427 of 2017

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Maumita Das @ Moumita Day (Das) --- ---- Petitioner

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Versus

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The State of Jharkhand

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Pankaj Das

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Smt. Putul Das

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Nipendra Das

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Mithu Biswas ---------- Opp. Parties

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CORAM:The Hon’ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mr. Justice Ratnaker Bhengra

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For the Petitioner : Mr. Navneet Sahay, Adv. For the State : Mr. Vikas Kishore, APP ----

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05/13.03.2018 Heard learned counsel for the petitioner and learned A.P.P. Mr. Vikas Kishore on behalf of the State.

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There is delay of 13 days in preferring the application seeking leave to appeal against the judgment of acquittal dated 7^th April 2017 passed in C/1 Case No.538 of 2010 / T.R. No.508 of 2017 by the court of learned Judicial Magistrate, 1^st Class, Jamshedpur whereunder all the accused persons / opposite parties no. 2 to 5 have been acquitted of the charges under Sections 498A and 506 of the Indian Penal Code.

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Having considered the explanation furnished in the interlocutory application being I.A. No. 5484/2017 seeking condonation of delay, delay is condoned. I.A. Stands allowed.

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We have heard learned counsel for the petitioner and learned A.P.P. on the merits of the petition seeking leave to appeal against the impugned judgment of acquittal. We have also gone through the impugned judgment. Complainant is the wife of accused Pankaj Das – opposite party no.2 whose marriage was solemnized on 29^th November 2006 as per the Hindu rites and rituals. As per the allegation made in the complaint filed on 5^th March 2010 before the court of learned Chief Judicial Magistrate, Jamshedpur, her father had paid a sum of Rs.1 lakh, 10 Tolas of gold ornaments, Almirah, Dressing Table, Palang, Clothes, utensils, furniture, bed sheet, bed cover, etc. worth Rs.1,50,000/- as demanded by the accused persons. After she reached her in-laws house, she was subjected to torture alleging insufficient dowry. Accused no. 3 and 5 abused the father of the

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complainant but she protested and matter was settled and marriage was conducted. In the marriage party complainant found her husband accompanied with a lady named Laxmi and on being asked she was stated to be a colleague from his office. Complainant ignored this incidence and started living a normal life. She got pregnant to which the accused persons 1, 2, 3 and 5 had objections as her husband was not earning enough. They asked her to bring Rs.1 lakh in the nature of fixed deposit for the future prospects of the child. On failure to do so, she was kicked by the accused nos. 1, 3 and 5 in her stomach. She was denied food and they also tried to press her neck in the night. She was assaulted in October 2007 by the accused husband. Accused no.4 also used to abuse her as being an ugly woman. She gave birth to a baby girl on 5^th January 2008. Soon thereafter the accused persons became adamant to realise Rs.1 lakh towards expenses to be borne to rear up the girl child. She was not allowed to stay in the house. They also tried to burn the complainant by leaving the cooking cylinder gas knob open, but she was lucky to escape. The accused made plans to kill the complainant and continued his illicit relationship with lady Laxmi. On 12^th July 2008 the accused persons assaulted the complainant, accused no.3 kicked her in her stomach, as a result she suffered injury. She was ousted from her house. She was treated at Mercy Hospital by Dr. Monika. The accused persons were not ready to take her back and threatened to burn her alive. In January 2010 the complainant made telephonic call to her husband for restitution of conjugal rights which he refused and said that he was happy with Laxmi and would marry her. On 31^st January 2010 these accused came to her house and asked to put her signature on the stamp paper so that the accused no.1 husband would be able to perform marriage with Laxmi. When they failed to take her signature on the stamp paper, accused no.1 and 3 became furious and abused her and accused no.1 husband slapped her and threatened to murder her. Thereafter she went to Golmuri Police Station where she was directed to file a complaint case.

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After solemn affirmation of the complainant and statement of inquiry witnesses, cognizance was taken under Sections 498A and 506 of the Indian Penal Code against the accused persons named in the complaint vide order dated 6^th March 2010. They were summoned to face trial to which they pleaded not guilty.

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Prosecution examined four witnesses namely Smt. Kalyani Dey as P.W.1, Putul Sarkar as P.W.2, Mousmi Das as P.W.3 and Maumita Das as

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P.W.4. Defence did not adduce any evidence. In the statements made under Section 313 of the Cr.P.C. accused persons pleaded innocence.

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P.W. 1 mother of the complainant deposed in support of the complainant case about the date of marriage, the payment of Rs. 1 lakh and jewellery as well as the articles worth Rs.1,50,000/- at the time of marriage. She also supported the allegation of demand of Rs.1 lakh made later on by the accused persons. She also admitted the birth of the daughter in 2008 and thereafter the complainant was tortured. She also stated about the incidence of 12^th July 2008 when her daughter was beaten by the accused persons and sent to the mother's house and she was treated at Mercy Hospital. She also stated that the complainant refused to sign on the divorce papers. She further stated in her cross-examination that Madhaw Chander is the husband and is a witness in the case. Jhulu Malakar is the brother's wife but she is not a witness in the case. Putul Sarkar is the sister and she is a witness in the case. Moumita Das is the eldest daughter who resides with her in-laws. She accepted that the incidence of 12^th July 2008 has triggered the present case. She further stated that prior to 15^th April 2008 no incidence had taken place. She could not recall the incidence of 31^st January 2010. She further stated that on 12^th July 2008 the incidence of assault by the in-laws of her daughter was told to her by a neighbhour namely Jyoti on telephone. She however did not affirm any one by the name of Jyoti as the neighbour of the complainant. She did not recall the date of demand of dowry of Rs.1 lakh and denied the suggestions of the defence.

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C.W.2 Putul Sarkar, aunt of the complainant, was not crossexamined after charge, therefore, her evidence was not considered.

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C.W.3 Mousmi Das being the eldest sister of the complainant deposed about the payment of Rs.1 lakh and other articles at the time of marriage. She also mentioned about the presence of one Laxmi accompanying the accused husband who was stated to be a colleague in the work place. She alleged that he was having illicit relationship with the girl. She further stated about the allegation of torture and demand of Rs.1 lakh. A girl child was born out of the wedlock. She further stated about the assault on 12^th July by the father-in-law and husband when she was ousted from her house and treated at Mercy Hospital. Attempt to resolve the matter failed as the complainant did not agree to their insistence on divorce. In her cross-examination she admitted to have been married in 1997 and is residing with her husband. She

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could not recall the visit to the in-laws' place of her sister. According to her, her sister used to visit her mother's house on regular basis and the conduct of the accused persons was good but later on the behaviour changed. The complainant visited her mother's house on 12^th July 2009 and stated that the demand of Rs.1 lakh was made and he was having an affair with Laxmi. She further stated that she has not seen Laxmi. Complaint was lodged for the assault inflicted upon the complainant and illicit relationship of accused husband on 14^th -15^th July in Thana, but that was not produced before the Court. She does not know Mithun Das. Lastly she stated that her statements have been made on the basis of the narration made by the complainant.

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C.W.4 is the complainant who supported her statements relating to the marriage, payment made and articles given during marriage. She further stated about ill-treatment right from the date of reception and referred to the presence of the girl at the reception i.e. Laxmi who was misbehaving with her. Her husband used to talk to this girl on telephone and had illicit relation with her. She also mentioned about the pregnancy and the demand of the accused of Rs.1 lakh to maintain the girl child. She also mentioned about the assault on her and that the gas knob of cooking cylinder was left open. She Further mentioned about the incidence of 12^th July 2008 when accused no.1 assaulted her as he was asked not to talk to that girl. She was thereafter driven out of her matrimonial home. She further stated about the incidence of January 2010 when she called her husband to take her to home. She further stated about the incidence of 31^st January 2010 when her husband, mother-in-law and sister-inlaw came to her mother's house with a stamp paper for getting signature for divorce. She deposed about the assault made after her refusal to sign on the stamp paper. In her cross-examination she stated that the incidence of 12^th July 2008 has triggered to file the present case. That incidence was not reported in any police station. She was treated by Dr. Monika on 14^th July Monday. She has filed medical prescription report. She further stated that it is not true that medical inquiry report is not filed in the court. She had married the accused when he was having a monthly income of Rs.6,000/-. She is not working presently and is undergoing training in TMH. Before the Sessions and District Court she refused to go with her husband however, she wants to go with her husband. She has never met Laxmi or ever talked to her and does not know about her whereabouts. Written complaint of incidence of 12^th July 2008 was not given to Thana. There is no written proof of demand of Rs. 1 lakh made

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by her husband after marriage.

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The defence referred to the contradiction made in the statements of the witnesses. It also pointed out that the statement of the mother C.W.1 was hearsay learnt from one Jyoti whose existence was never confirmed. Learned counsel for the defence had also questioned the credibility of the statements of C.W.3 the married sister of the complainant who resides with her husband far away from the place of occurrence and that she had never seen Laxmi. They also pointed out that the complainant also never filed any report before the Police Station regarding incidence of 12^th July 2008 and that the records did not bear any medical report of her treatment by Dr. Monika. She had also stated in her cross-examination that she refused to go with her husband before the court of District Judge. There was no documentary proof of demand of dowry.

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Learned trial court, on the basis of these material evidences on record and after consideration of the submissions of the complainant and the defence, was pleased to acquit the accused persons of the charges as the prosecution had failed to substantiate the allegations during trial.

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Learned counsel for the petitioner has made reference to the statement of C.W.1 mother and C.W.4 complainant during trial which according to him, substantiated the allegation of demand of dowry and cruelty within seven years of the marriage necessary to establish the ingredients of Section 498A of the Indian Penal Code. He further submits that evidence on record further substantiate the charge of criminal intimidation under Section 506 of the Indian Penal Code. The learned trial court has, therefore, committed an error in the finding of acquittal which is vulnerable to challenge in appeal. Therefore, he submitted that leave be granted.

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Learned A.P.P. has supported the impugned judgment and submitted that the findings of the learned trial court are well reasoned and based on the material evidence on record.

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We have considered the submissions of the parties and gone through the impugned judgment and discussions made on the material evidence on record by the learned trial court as well.

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We may at the outset observe, that as per the case of the complainant and the statements of C.W.1 her mother as well as C.W.4 the complainant herself, the incidence of 12^th July 2008 had triggered the lodging of the complaint. However, the complaint has been lodged on 5^th March 2010.

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There is no evidence on record to substantiate the allegation of assault for which the complainant was treated by Dr. Monika at Mercy Hospital immediately after 12^th July 2008. There is no other material evidence on record either of any complaint or Sanha lodged before the Police about such incidence. There is no proof relating to demand of dowry of Rs. 1 lakh by the accused persons. Moreover, the statement of C.W. 1 as well as C.W.3 show that the relationship was good earlier. C.W.1 does not recall any incidence prior to 15^th April 2008. There is no mention of incidence that had taken place on 15^th April 2008. She could not affirm the existence of a neighbour namely Jyoti who had told her about the incidence. She was, therefore, a hearsay witness. C.W.3 in her statement has accepted that the deposition has been made on the narration made by the complainant. The complaint itself has been lodged on 5^th March 2010 after considerable lapse of time of last incidence alleged by the complainant i.e. 31^st January 2010, though the mother of the complainant C.W.1 does not recall any such incidence having taken place on that date. These contradictions in the statements of witnesses and improvements made during trial has persuaded the learned trial court to come to a finding that the evidence on record is not consistent which points out to the guilt of these accused persons beyond shadow of all reasonable doubts. Five family members of the husband were made accused but the evidence on record does not establish specific allegation of demand of dowry and torture against the complainant against the individual persons. In these circumstances, the learned trial court had reasons to acquit the accused persons.

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Having anxiously applied our mind to the materials on record, we are not satisfied that sufficient grounds have been made to grant leave to appeal to the petitioner to challenge the impugned judgment. Accordingly the instant petition stands dismissed.

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( Aparesh Kumar Singh, J.)

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(Ratnaker Bhengra, J.)

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Shamim/

Maumita Das Alias Moumita Day Das v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Maumita Das Alias Moumita Day Das v. The State Of Jharkhand And Ors.

Case brief

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