Ramdhani Gope and Others vs Jagesher Mahto

Shearer, J.—This is a reference made by the learned Sessions Judge of Gaya, u/s 438, Criminal P.C., recommending that the convictions of, and sentences imposed on, two men, Ramdhani Gope and Bhikhar Gope, should be set aside.

These two men were tried along with three others, namely Ramchand Gope, Deva Gope and Balchand Gope, and all five of them were convicted u/s 498, Penal Code, and sentenced to pay fines of Rs. 50 each, or, in default, to undergo rigorous imprisonment for one month. Ramchand Gope, Deva Gope and Balchand Gope, who are now dead, were brothers and had two sisters, Deokalia and Rajkalia. Jagesher Mahto, at whose instance they were prosecuted, asserted that he was married to one of these girls, and that on 5th March 1940, her brothers and Ramdhani Gope had come to his house and taken her away. He further asserted that she had subsequently gone through a form of marriage with Eamdhani Gope and was living with him as his wife.

The judgment of the learned Honorary Magistrate who tried the case is a very meagre one, and the record, which he has made of the evidence, is so imperfect that portions of it are extremely difficult to understand. Apparently, summons was obtained against Bhikhar Gope on the ground that he was, in some way or other, concerned, either with the abduction of the woman, or with the bigamous marriage, which she went through with Ramdhani Gope. At the trial, however, no attempt whatever was made by the prosecution to show what this man had said or done.

After having been taken through the whole of the record by Mr. Rajkishore Prasad, I am satisfied that the learned Sessions Judge is correct in saying that there is not an iota of evidence to show that Bhikhar Gope has committed any offence. Ramdhani Gope, as I have already said, was said to have gone to Jagesher Mahto''s house with his three brothers-in-law, Ramchand, Deva and Balchand. The only person examined by the prosecution, who claimed to have actually seen the girl being taken away, was one Bihari Mahto and, although this man said that there were four men with the girl, three of whom were Ramchand and his two brothers, he was unable to say that Ramdhani was the fourth.

It was, of course, admitted that Ramdhani and one of the two sisters of Ramchand namely Rajkalia, were living together as, husband and wife. The defence, however, set up was that Rajkalia was in fact the lawful wife of Ramdhani. It was said that she had never gone through any form of marriage'' with Jageshar Mahto, and it was suggested that Jageshar Mahto had brought a wholly false and malicious case, as it had at one time, bean proposed that Rajkalia should marry him and not, as she ultimately did, Ramdhani.

In criminal cases of this kind, it is necessary for the prosecution to prove the faotum of marriage strictly. In this particular case, no evidence of that kind was, however, led. The prosecute on appear to have relied merely on the evidence of Jageshar Mahto himself and of two brothers, Mahang Mahto (P.W. 4) and Moti Mahto (P.W. 5) who belong to the same village as Rajkalia and her brothers. These men, no doubt, said that Jageshar Mahto and Rajkalia were husband and wife, but they do not seem to have been present at the marriage. The learned Sessions Judge in his letter of reference, draws attention to one very curious circumstance, namely that, when Jageshar Mahto lodged his complaint, he said that he was married to Deokalia, and not to her sister, Rajkalia.

It is scarcely credible that Jageshar Mahto should have been in any doubt as to which of the two sisters he had actually married. That a mistake of this kind was made by him in his petition of complaint, rather suggests that the defence set up may be true, that there were negotiations for his marriage to one of the two sisters, which fell through, and that, out of resentment, he invented the story contained in his com-plaint, being at the time, under the impression that it was not Rajkalia, but her sister Deokalia, who had been married to Ramdhani. In any event, whether or not the complaint was a wholly false and malicious one, it is, I think, perfectly clear that the convictions and sentences cannot be maintained.

The learned Sessions Judge did not recommend that the convictions of, and sentences imposed on, Ramchand, Deva and Balchand should be set aside, apparently because Ramchand, Deva and Balchand are now dead. It is true that ordinarily a criminal appeal abates on the death of the appellant. Section 431, Criminal P.C., has, however, been amended so as to provide that this rule will not apply when the appeal is from a sentence of fine. The fines imposed on Ramchand, Deva and Balchand may, if the convictions are allowed to stand be realized from their legal representatives. It is undesirable that this should be so, as there is no more reason to maintain their convictions than to maintain the convictions of Ramdhani and Bhikhar.

In the result, then, the reference will be accepted and the convictions of and sentences imposed on all five men will be set aside.