Jharkhand High CourtSahdeo Mukhiya @ Mukhia vs The State Of Jharkhand on 20 February, 2020Author:Rajesh KumarBench:Rajesh KumarIN THE HIGH COURT OF JHARKHAND AT RANCHI\n\n                     Criminal Appeal (S.J.) No. 772 of 2006\n                                     With\n                     Criminal Appeal (S.J.) No. 1037 of 2006\n                                       With\n                     Criminal Appeal (S.J.) No. 1045 of 2006\n                                         With\n                     Criminal Appeal (S.J.) No. 972 of 2006\n                                       ---(Against the judgment of conviction dated 30.05.2006 and the order of sentence dated\n        31.05.2006 passed by Sri Mohammed Kasim, Addl. Sessions Judge, Fast Track Court\n        No.II, Seraikella-Kharsawan, in Sessions Trial Case No.315 of 1998)---Sahdeo Mukhiya @ Mukhia    ...     .... Appellant (in Cr. Appeal (SJ) No. 772/2006)\n        Rajendra Machuwa @ Rajendra Machhua ...Appellant (in Cr. Appeal (SJ) No. 1037/2006)1. Mahiram Machhua2. Shiban Machhua                 .... Appellants (in Cr. Appeal (SJ) No. 1045/2006)\n                                   Versus\n        The State of Jharkhand                  ...          ...       Respondent\n                                   And\n\n        Sri-Hari Machhua                           .... Appellant (in Cr. Appeal (SJ) No. 972/2006)\n                                          Versus1. The State of Jharkhand2. Puspa Machhua                           .....      ....         ...       Respondents---For the Appellants: M/s P. C. Roy, Sidhartha Roy, A. K. Mahato\n                            Advocates ((in all cases).For the State     : M/s Nehala Sharmin, S. K. Srivastava and\n                            Shiv Shankar Kumar, APPs (in all cases).---PRESENT\n              HON'BLE MR. JUSTICE RAJESH KUMAR---By Court:            It has been informed that Mr. Lakhan Sharma, one of the\n            counsel for the appellant in Cr. Appeal (S.J.) No.972 of 2006 has died.\n            Since the matter arising out of a common judgment, Mr. Sidhartha Roy,\n            learned counsel, is appointed as Amicus Curiae in Cr. Appeal (S.J.\n            No.972 of 2006 to assist this Court.2.       Heard the parties.3.       These criminals appeals arising out of the same impugned\n            judgment and were heard together and hence are being disposed of by\n            a common judgment.Shiban Machhua-appellant/accused has been charged underSections 366,376,493,496and498of the Indian Penal Code whereas2other     accused-appellants   have       been   charged    underSections\n493/120(b),496/120(b)and498/120(b)of the Indian Penal Code and\nthey have been convicted vide judgment dated 30.05.2006 underSections 366and498of the Indian Penal and the appellant Shiban\nMachhua has also been convicted underSection 496of the Indian Penal\nCode. All the accused/appellants have been sentenced to undergo\nrigorous imprisonment for five years for the offence underSection 366of the Indian Penal Code with a fine of Rs.1000/- and they have been\nfurther sentenced to undergo rigorous imprisonment for one year for\nthe     offence   underSection   498of    the   Indian   Penal     Code.\nAccused/Appellant namely Shiban Machhua has further been\nsentenced to undergo rigorous imprisonment for five years for the\noffence underSection 496of the Indian Penal Code with a fine of\nRs.1000/-. In default, all the accused/appellants were further\nsentenced to undergo simple imprisonment for three months vide\norder of sentence dated 31.05.22006 passed by Sri Mohammed Kasim,\nAddl. Sessions Judge, Fast Track Court-II, Seraikella-Kharsawan in\nSessions Trial Case No. 315 of 1998. All the sentences were directed to\nrun concurrently.4.         In the present case, criminal proceeding has been initiated by\nfiling a Complaint (C/1) Case No. 66/1996 and after completion of the\nenquiry underSection 202of the Cr.P.C., cognizance has been taken\nand the case has been transferred and committed to the court of\nSessions where charges have been framed under the aforesaid Sections\nof theIndian Penal Codeagainst all the accused persons. Charges have\nbeen explained to which the appellants pleaded not guilty and claimed\nto be tried.5.         On conclusion of the trial, all the accused persons have been\nconvicted and sentenced vide impugned judgment, against which,\npresent appeals have been filed.6.         To substantiate the prosecution story, altogether five\nwitnesses have been examined by the prosecution. P.W.1-Bhadru\nMachhua and P.W.2-Bir Machhua are the brothers of P.W.-5. P.W.3-\nJitendra Kumar Jain is a neighbour of the complainant. P.W.4- Puspa\nMachhuain is the complainant herself and P.W.5-Chhote Lal Machhua,3claiming himself to be the husband of the complainant namely Puspa\nMachhuain (P.W.-4).7.       It has been alleged in the complaint petition that on\n07.07.1996, all the appellants have broke open the door of the\ncomplainant and forcibly taken her to the house of Sahdeo Mukhiya @\nMukhia where she has been kept for one night thereafter, she has been\nshifted to Ranchi by bus. In Ranchi, she kept at Machhua Basti for\nabout 12 days, which is in the house of the relative of Shiban Machhua.\nFrom Ranchi, she has been shifted to Seraikella where she remained\nwith Shiban Machhua for about one month. Shiban Machhua got\nmarried with the complainant by playing fraud. Subsequently, the\ncomplainant fled away and has gone to her house. Although,\ncomplaint has been made to the police, but since no action has been\ntaken, thereafter complaint petition has been filed.8.       It further appears that P.W.-5 who is the alleged husband of\nthe complainant, has lodged the complaint to the police to which the\nmatter has been enquired and subsequently, a proceeding underSection 107of the Cr.P.C. has been drawn between the parties. It\nfurther appears that P.W.4-(the complainant), in her cross-examination,\nat para-23 has stated, that in a proceeding underSection 107Cr.P.C.,\nshe has chosen to go with one of the appellants-Shiban Machhua to\nwhom allegedly she got married.9.       It has been argued by the counsel for the appellants that\noffence underSection 366of the Indian Penal Code is not made out, as\nnecessary ingredients of "taking from the legal guardianship", is not\nmade out. For this purpose, he has relied upon the judgment reported\nin AIR 1995 SCC 2169 (Shyam and anr. Vs. State of Maharashtra).10.      Referring to the prosecution story, judgment and the\ntestimony of P.W.-4 (the Complainant), argument has been advanced\nthat the complainant is major and very narration of the incident and\nadmission in the cross-examination, suggests that she has gone with\nShiban Machhua out of her own will and she got married. Marriage is a\nregistered court marriage. Further she has accepted in para-23 of the\ncross-examination that she wants to live with Shiban Machhua (one of\nthe appellants) to whom she got married. Thus, ingredients of the\noffence under Section 366 of the Indian Penal Code is not made out as4there is no taking from the legal guardianship rather she has moved\nout of her own will and being major, she is capable of doing so.11.      So far as other Sections are concerned, i.e. offence against\nmarriage, it has been argued that to substantiate the charge underSections 498/496, it is incumbent upon the prosecution to prove that\nthe complainant was already married. No evidence has been brought\non record to prove the said fact rather evidence is on record that\ncomplainant got married with one of the appellants namely Shiban\nMachhua in the Court and that the certificate is on record as 'Ext.B'.12.      Per contra, learned APPs for the State has supported the\njudgment of conviction. Argument has been advanced that the\ncomplainant (P.W.-4) has clearly stated in her testimony that she has\nbeen forcibly taken away by the appellants and subsequently, one of\nthe appellants-Shiban Machhua got married with her, by playing\nfraud. It has been further testified that the complainant is already\nmarried with P.W.-5 and as such, conviction of the appellants underSection 366as well as for the offence, relating to marriage, is justified\nand requires no interference by this Court.13.      It appears that the prosecution has put forth the story that she\nhas been kidnapped on 07.07.1996 by using force and arms and has\nbeen kept for the whole night in the house of Sahdeo Mukhiya@\nMukhia and thereafter, she has been shifted to Ranchi by bus. In\nRanchi, she has stayed at Machhua Basti for about 12 days, which is a\nBasti belonging to a caste to whom complainant belongs. Thereafter,\nshe has moved to Seraikella where she has remained with Shiban\nMachhua for about one month. Thereafter, she has stated before the\npolice in a proceeding underSection 107of the Cr.P.C. that she wants\nto remain with one of the appellants namely Shiban Machhua to whom\nshe got married. Thus, very element of taking away forcibly or by\nplaying fraud is not made out as the complainant is a major lady.\nThus, the conviction of the appellants underSection 366of the Indian\nPenal Code is not sustainable. Further so far as, offence relating to\nmarriage is concerned, the prosecution has failed to prove earlier\nmarriage of the complainant and in fact, there is no evidence on record\nto suggest that the complainant has earlier solemnized marriage rather\nevidence is contrary. There is marriage with one of the appellants and5the complainant and the marriage certificate is on record as 'Ext.B'.\n     This exhibit has been relied upon by the police as well as complainant\n     in a proceeding underSection 107of the Cr.P.C. Further, in her cross-\n     examination, the complainant has admitted that she got married with\n     Shiban Machhua.14.          Considering the entire materials and the evidence on record,\n     this Court finds that the conviction of the appellants is not sustainable.15.           Resultantly, these appeals are allowed and the judgment of\n     conviction dated 30.05.2006 and the order of sentence dated 31.05.2006\n     passed by Sri Mohammed Kasim, Addl. Sessions Judge, Fast Track\n     Court No.II, Seraikella-Kharsawan, in Sessions Trial Case No. 315 of\n     1998 is, hereby, set aside.16.          Since, all these appellants, above named, are already on bail,\n     they are discharged from the liability of their bail bonds.(Rajesh Kumar, J)\nJharkhand High Court at Ranchi\nThe 20th February, 2020\nRavi/NAFR/