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2017 DIGILAW 1804 (RAJ)

State of Rajasthan v. Shanker Ram S/o Moola Ram

2017-08-10

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : Gopal Krishan Vyas, J. 1. The instant D.B. Criminal Appeal No. 354/1994 has been filed by the State of Rajasthan against the judgment dated 22.3.1994 passed by Special Judge (SC/ST) Prevention of Atrocities Act in Criminal Case No. 68/1993 whereby the learned trial Court acquitted the respondents Shanker Ram and Moolaram from the charges levelled against them under Sections 302, 304, 498A and 201 IPC. 2. Before proceedings further, it is observed that during pendency of this appeal, Moolaram died, therefore, the appeal against Moolaram was dismissed as abated vide order dated 02.02.2017. Now, we are deciding the appeal of the respondent Shanker Ram only. 3. As per brief facts of the case, on 13.06.1993 complainant Madan Lal (PW-4) submitted a written report at Police Station Mathania, District Jodhpur alleging therein that on 12.06.1993 in the night his daughter Sita Devi was murdered by her husband Shanker Ram and father-in-law Moolaram and other family members. It is also stated that marriage of Sita Devi was solemnized one year back and after ten months, she was assaulted by her in-laws and husband used to consume liquor and regularly use filthy words against her and was also demanding dowry. 4. As per complaint of Madan Lal, he took back his daughter Sita devi from in-laws house, but after some time, the father-in-law Moolaram came and requested that in future they will not commit any cruelty with Sita Devi, therefore, she may be permitted to go with them. 5. Upon assurance given by Shanker Ram and Moolaram, Sita Devi was allowed to go at her in-laws' house on 21.5.1993. As per complaint on 13.6.1993 one Hemaram came on Nissan Vehicle and informed that his daughter is died. Upon receiving aforesaid information, the complainant and other family members went to the house of respondents where they saw that dead body of Sita Devi was lying on the floor and upon inspection found that she was murdered by throttling. 6. Upon aforesaid report, FIR No. 66/93 was registered and place of occurrence was inspected by the police and after arresting the accused Shanker Ram (husband) and Moolaram (father-in-law) investigation was conducted from them and after completion of investigation, charge-sheet was filed against respondent Shanker Ram for offences under Section 304B and 498A and against Moolaram for the offence under Section 201 IPC in the court of Munsiff and Judicial Magistrate, Pipar City, Jodhpur. Thereafter, the learned Magistrate, District and Sessions Judge, Jodhpur conducted the case, but later on, it was transferred by the Sessions Judge, Jodhpur to the Court of Special Judge (SC/ST) Prevention of Atrocities Act, Jodhpur for trial. 7. The learned trial Court after framing charge under Section 304-B and in the alternate 302 and 498-A IPC, proceeded to record the evidence of prosecution. In support of prosecution case, statements of 19 witnesses were recorded and 18 documents were exhibited from prosecution side, whereas in defence two documents were exhibited and after recording evidence of prosecution the statement of respondents Shanker Ram and Moolaram under Section 313 Cr.P.C. were recorded, in which they denied the allegations and said that Sita Devi died because she fell down from the roof and no offence is committed by them for demand of dowry. 8. In defence 5 witnesses were produced by the respondents and thereafter final arguments were heard by the learned trial Court. 9. The learned trial Court after hearing arguments, acquitted the respondents Shanker Ram and Moolaram from the charges levelled against them under Section 304-B and in the alternate 498-A and 201 IPC vide judgment dated 22.3.1994. 10. The State Government preferred an appeal against the judgment impugned before the learned Single Judge, but the learned Single Judge referred the case to the Division Bench because there is an allegation of commission for offence under Section 302 IPC in alternate. 11. Learned Public Prosecutor vehemently argued that finding of acquittal is totally perverse and contrary to the evidence on record because complainant PW-4 Madan Lal made specific allegations against the respondent Shanker Ram and Moolaram and further submitted that as per Section 304-B of IPC, the presumption was drawn by the learned trial Court because Sita Devi died within seven years from the date of marriage, but the learned trial Court disbelieved the prosecution case and accepted the defence story erroneously so as to acquit the respondents from the charges levelled against them. 12. 12. Learned Public Prosecutor further submitted that there is ample evidence on record so as to connect the respondents with the crime, but the learned trial Court committed a grave error while disbelieving the testimony of PW-4 Madan Lal and PW-6 Smt. Mohini, PW-7 Smt. Koju, PW-8 Chunaram and other witnesses of prosecution, therefore, the judgment impugned deserves to be quashed and respondent Shanker Ram is liable to be punished for offence under Section 304-B and in the alternate for offence under Sections 302 and 498-A IPC. 13. Per contra, learned counsel for the respondent vehemently argued that the FIR lodged by PW-4 Madan Lal is based upon fabricated story because as per allegation in the FIR that Sita Devi was murdered by throttling but as per postmortem report (Ex.P-17) the cause of death was head injury and there was no symptoms in the postmortem report so as to prove the allegation of strangulation, therefore, the whole prosecution case has rightly been disclosed by the trial Court so as to acquit the respondent from the charges levelled against them. Learned counsel for the respondents further argued that the deceased was fell down from the roof when she was sleeping in the night and information was immediately given to the father Madan Lal and upon receiving such information Madan Lal immediately came and police was also called and, thereafter, the dead body was taken to the hospital. Learned counsel for the respondents further invited our attention towards the postmortem report (Ex.P/17) in which the Medical Board gave opinion that cause of death was head injury, but in the FIR, specific allegation was levelled by the complainant PW-4 Madan Lal that my daughter was murdered by throttling by his husband Shanker Ram. The contention of learned counsel for the respondent is that allegation levelled by the complainant is not corroborated by the medical evidence. Further, it is submitted that an explanation was given by the respondent Shanker Ram S/o Late Moolaram in his statement under Section 313 Cr.P.C. in which the explanation was given that Sita Devi was sleeping on roof and in the night, about 3' O Clock and fell down from the roof and due to injuries, she died. Further, it is submitted that an explanation was given by the respondent Shanker Ram S/o Late Moolaram in his statement under Section 313 Cr.P.C. in which the explanation was given that Sita Devi was sleeping on roof and in the night, about 3' O Clock and fell down from the roof and due to injuries, she died. In support of the said explanation, 5 defence witnesses DW-1 Smt. Kabbu, DW-2 Hemaram, DW-3 Manaram, DW-4 Hamera Ram and DW-5 Phusaram were produced before the Court and all these witnesses categorically stated that they were present during the investigation and stated altogether different story than the allegation levelled by the complainant PW-4 Madan Lal. The learned trial Court while accepting the defence story coupled with the fact that cause of death was head injury, acquitted the respondents from the charges levelled against them while giving trustworthy finding, therefore, this appeal may kindly be dismissed. 14. After hearing the learned counsel for the parties, we have perused the written complaint (EX.P/7), which is submitted by PW-4 Madan Lal, father of the deceased Sita Devi, under his thumb impression, in which there is no allegation for inflicting injury upon head or any part of the body. The only allegation is made in Ex.P/7. 15. We have considered the postmortem report (Ex.P/17) in which following opinion is given by the Medical Board for cause of death, which reads as under:- "In our opinion the cause of death is head injury." 16. It is also very important aspect of the matter that as per written report submitted by complainant PW-4 Madan Lal, the information was received by him from Hemaram and Hemaram was included in the list of witness in the chargesheet, but not produced before the Court, but he was produced by the accused in his defence as DW-2 in the statement. We have perused the explanation of Late Moolaram, father of the respondent Shanker Ram co-accused in which following explanation was given by him, which reads as under. 17. We have perused the statement given by the accused Shanker Ram in his statement recorded under Section 313 Cr.P.C. in which following explanation was given by him of the incident, which reads as under. 18. 17. We have perused the statement given by the accused Shanker Ram in his statement recorded under Section 313 Cr.P.C. in which following explanation was given by him of the incident, which reads as under. 18. Upon perusal of the statements given under Section 313 Cr.P.C. by Late Moolaram and Shanker Ram and statements of DW-1 Hemaram S/o Shri Kishna Ji, Manaram (DW-3), Hameera Ram (DW-4) and Phusaram (DW-5), whose names were included in the list of the witnesses by the prosecution we find that defence version is supported by reliable evidence because the witnesses Hemaram (DW-2), Hameera Ram (DW-4) and Phusaram (DW-5) were in the list of charge-sheet filed by the prosecution in support of prosecution case, but they were not intentionally produced before the Court from the prosecution side, but they appeared before the Court as defence witness and narrated correct story. It is also one of the important fact that as per allegation of PW-4 Madan Lal, father of the deceased, there was demand of dowry, but no independent witness was produced to corroborate the said allegation of demand of dowry, so also, as per complainant Madan Lal (PW-4), who was present at the time of postmortem and reached on spot soon after the occurrence after receiving the information, nowhere stated that the death was caused due to injuries caused by the respondent Shanker Ram or Late Moolaram. 19. We have perused the entire statement recorded by the police during investigation under Section 161 Cr.P.C. and the statement of Prosecution witness as PW-3 Narpat Singh, PW-5 Budharam, PW-6 Smt. Mohini, PW-8 Chunaram. All these witnesses said about the fact that upon inquiry Moolaram informed that Shanker Ram has killed his wife and ran away. Whereas such statement was not given by them in their statement recorded under Section 161 Cr.P.C. therefore, obviously, it is a case in which prosecution witnesses improved their statement from the statements recorded under Section 161 Cr.P.C. 20. Upon consideration of entire evidence, it is obvious that prosecution has failed to prove his case beyond reasonable doubt, therefore, the trial Court acquitted the respondent Shanker Ram and Late Moolaram from the charges levelled against them while giving trustworthy finding, after assessing credibility of the witnesses. 21. In view of above, no interference is called for in this appeal filed by the State Government. 22. Hence, the instant D.B. Criminal Appeal is hereby dismissed.