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2018 DIGILAW 1248 (RAJ)

Kana Ram v. State of Rajasthan

2018-05-10

RAMCHANDRA SINGH JHALA

body2018
JUDGMENT Ramchandra Singh Jhala, J. - This criminal appeal has been filed by the appellant against the judgment dated 24.9.1992 passed by learned Sessions Judge, Merta, in Sessions Case No.5/89 whereby he has convicted the appellant under Section 498A I.P.C. and sentenced him to 3 years rigorous imprisonment with fine of Rs.2000/- and in default of payment of fine, further to undergo six months rigorous imprisonment. 2. Brief facts of the case are that the deceased Bhanwari who married with appellant in the year 1981 was committed suicide on 22/23.10.1988 by falling into a well. Thereafter on FIR, a criminal case No.9/1988 was registered under Sections 306, 304B and 498A I.P.C. After completion of investigation, challan was filed under said sections against the husband-appellant, mother-in-law father-in-law and one Hari Ram. 3. All the four accused denied the charges and claimed trial. After hearing arguments, the learned trial court vide judgment dated 24.9.1992 acquitted all the four accused-persons of the offences under Section 306 and 304-B I.P.C. Lichhman Ram and Hari were acquitted of the offence under Section 498A I.P.C. but convicted the present appellant Kanaram and Smt. Chandra under Section 498A I.P.C. and sentenced them to undergo imprisonment for a period of 3 years with fine of Rs.2000/- and in default of payment of fine, further to undergo six months' rigorous imprisonment. 4. Being aggrieved with the aforesaid judgment dated 24.9.1992 of the trial court, the present appeal was filed by the appellant-Kana Ram and Smt. Chandra, but during the pendency of this appeal Smt. Chandra was expired on 9.9.2015, therefore, this Court vide order dated 18.5.2017 abated the appeal against Smt. Chandra. 5. Heard learned counsel for the parties. 6. It is contended by learned counsel for the appellant that the learned trial court has committed an error while passing the impugned judgment. Learned trial court has not appreciated the whole evidence carefully. The offence under Section 306, 304 and 498A I.P.C. are similar. The learned trial court has committed an error in convicting the present appellants under Section 498A I.P.C. 7. It is contended that there is no mention in the FIR about the cruelty and all the witnesses are interested witnesses. There is no evidence on record about making demand of money for jeep, flour mills or motor cycle. It has also come in the evidence produced by the defence that no demand of dowry was made. It is contended that there is no mention in the FIR about the cruelty and all the witnesses are interested witnesses. There is no evidence on record about making demand of money for jeep, flour mills or motor cycle. It has also come in the evidence produced by the defence that no demand of dowry was made. 8. In view of above arguments, learned counsel for the appellant has prayed that this appeal may kindly be allowed and the appellant may kindly be acquitted from the charges levelled against him under Section 498A I.P.C. 9. On the contrary, learned Public Prosecutor has supported the impugned judgment and vehemently opposed the contentions of learned counsel for the appellant. It is contended that the learned trial court has not committed any error in convicting the appellant under Section 498A I.P.C. The finding of learned trial court is based on material available on record. 10. The State of Rajasthan has neither opposed nor challenged the order of acquittal passed by the trial court to the appellant for the offences punishable under Sections 306 and 304B I.P.C. 11. I have scanned the judgment in the light of arguments advanced and material available on record. 12. So far as the charge against the accused-appellant under Section 498A is concerned, upon perusal of record, it reveals that PW-3 Tulsi Baii, who is mother of deceased has categorically stated in her examination-in-chief that ^^taokbZ dkukjke us :i;ksa dh ekax dh] dkukjke us vkVk dh pDdh yxkus ds fy;s gekjs ls nl gtkj :i;s dh ekax dhA Hkaojh ds lkFk mldk ifr] mlds lkl&llqj] nsoj ekjihV djrs FksA Hkaojh dks dwV ekjdj dqos esa M+ky fn;kA esjs taokbZ dkukjke us thi ds fy;s chl gtkj :i;s ekaxs FksA** In her cross-examination, she stated that ^^'kknh ds le; eqyfteku us dksbZ ngst ugha ekaxkA gekjh tkfr us ngst dh ÁFkk ugha gS] vkxs mlus Li"V dgk gS fd pDdh ds fy;s :i;s ekaxus ds fy;s Hkaojh dh lkl vk;h FkhA taokbZ dkuk pDdh ds :i;s ekaxus xkao esa ugha vk;k FkkA vkxs mlus ;g Hkh dgk gS fd eSaus iqfyl dks ;g ckr crk;h Fkh fd esjh yM+dh Hkaojh dks dwV ekjdkj dqos esa M+ky fn;k] irk ugha gS Án'kZ M+h&1 esa ,slk D;ksa ugha fy[kkA** 13. PW-3 Tulsi Bai has not stated specific day, month or year for demand of Rs. PW-3 Tulsi Bai has not stated specific day, month or year for demand of Rs. 10,000/- for floor mill and Rs.20,000/- for jeep. Apart from this, in cross-examination, she stated that for demand of money for floor mill, the accused-appellant Kana Ram never came to her village and specifically stated that mother-in- law of her daughter came to her village for demand of money for floor mill. In these circumstances, contradictory statements about demand of money for floor mill were given by PW-3 Tulsi Bai in examination-in-chief and in cross-examination, therefore, the learned trial court has wrongly believed on statement of the PW-3 about demand of money for floor mill. 14. PW-3 Tusli Bai has stated in her examination-in-chief that accused thrown away her daughter in well after beating, but in her cross-examination, she stated that ^^eSaus iqfyl dks ;g ckr crkbZ fd esjh yM+dh Hkaojh dks dwV ekjdj dq,a esa M+ky fn;k irk ugha Án'kZ M+h&1 esa ,slk D;ksa ugha fy[kk gSA** Therefore, beating to the deceased by accused is contradictory statement of PW-3 with her police statement Ex.D/1. 15. Apart from this, upon perusal of statement of PW-2 Dr. Narender Kumar, who conducted the post-mortem of the deceased, he has clearly stated in his examination-in-chief that ^^eSaus iqfyl dks ;g ckr crkbZ fd esjh yM+dh Hkaojh dks dwV ekjdj dq,a esa M+ky fn;k irk ugha Án'kZ M+h&1 esa ,slk D;ksa ugha fy[kk gSA** It proves that accused had never beaten the deceased and statement of PW-3 Tulsi Bai about beating to the deceased is not corroborated by medical evidence as well as her statement Ex.D/1. In these circumstances, the learned trial court has also committed an error in believing on statement of PW-3. 16. So far as demand of Rs.20,000/- for jeep is concerned, PW-3 Tulsi Bai has neither stated any specific day, month or year about the said demand nor she has stated any place where the accused has made the said demand. In these circumstances, the demand of Rs.20,000/- for jeep as stated by PW-3 Tulsi Bai in her statement is vague. So far as demand of Rs.20,000/- for jeep is concerned, PW-3 Tulsi Bai has neither stated any specific day, month or year about the said demand nor she has stated any place where the accused has made the said demand. In these circumstances, the demand of Rs.20,000/- for jeep as stated by PW-3 Tulsi Bai in her statement is vague. In connection with above statement of PW-3, Tulsi Bai, PW-4 Ramu Ram, who is father of the deceased, he stated in his examination-in-chief that ^^esjs taokbZ dkukjke us esjs ls i= O;ogkj dj chl gtkj :i;s thi [kjhnus ds fy;s ekaxs** but no any letter has been produced by the prosecution in the trial court to prove this fact. Apart from this, PW-3 Tulsi Bai has not stated that the accused-appellant had sent any letter for demand of Rs.20,000/- for jeep to her husband. 17. In these circumstances, the statement of PW-4 Ramu Ram is contradictory from the statement of PW-3 Tulsi Bai about demand of Rs.20,000/- for jeep. 18. PW-5 Ramesh, who is brother of the deceased has not said even a single word in his examination-in-chief that the accused-appellant had personally come to his house and demanded Rs.10,000/- for floor mill and thereafter demanded Rs.20,000/- for jeep. He stated in his examination-in-chief that ^^Hkaojh [kRe gqbZ mlls nks fnu igys xksVu vk;h Fkh mlus vkdj crk;k fd mlds ifr us :i;s eaxok;s gS] Hkoajh us dgk fd ikap gtkj :i;s eksVj lkbZfdy gsrq eaxok;s gSA** 19. PW-5 Ramesh has stated that two days before the incident, deceased came to her maternal home and told that accused-appellant demanded Rs.5,000/- for motor cycle, but PW-3 Tulsi Bai and PW-4 Ramu Ram have not corroborated this thing. 20. In these circumstances, PW-5 Ramesh has not corroborated the statements of PW-3 and PW-4 about demand of Rs. 10,000/- and Rs.20,000/- who are parents of the deceased. PW-5 Ramesh added new thing that accused-appellant demanded Rs.5,000/- for motor cycle whereas PW-3 Tulsi Bai and PW-4 Ramu Ram has not corroborated the statement of PW-5 Ramesh. 21. In these circumstances, with regard to the demand of money by the accused-appellant, there is major contradiction on record in the statements of father of deceased, mother and brother. 22. Other witnesses, who have been produced by the prosecution in trial court are hear say witnesses. 23. 21. In these circumstances, with regard to the demand of money by the accused-appellant, there is major contradiction on record in the statements of father of deceased, mother and brother. 22. Other witnesses, who have been produced by the prosecution in trial court are hear say witnesses. 23. In my considered view, when eye witness does not corroborate the prosecution story similarly and there is major contradiction in their statements, then accused cannot be convicted on the basis of hear say evidence. 24. In view of above discussions, I am of the view that there is major contradiction in prosecution witnesses, who are father, mother and brother of the deceased and the statement of PW-3 is contradictory with Ex.D/1 and statement of PW-2 Dr. Narender Kumar, there is major contradiction in the statements of PW-3, PW-4 and PW-5, but the learned trial court on the basis of statements of PW-3, PW-4 and PW-5 has held the accused- appellant guilty for the offence punishable under Section 498A I.P.C. 25. For the offence under Section 498-A I.P.C., the prosecution is required to prove the willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the women or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 26. When prosecution failed to prove the above facts, no offence under Section 498A is made out. 27. In view of above discussion, the prosecution has failed to prove the charge under Section 498A I.P.C. against the accused-appellant. Therefore, the learned trial court has committed an error in believing on the statements PW-3, PW-4 and PW-5 and holding the accused-appellant guilty for the offence under Section 498A I.P.C. 28. 27. In view of above discussion, the prosecution has failed to prove the charge under Section 498A I.P.C. against the accused-appellant. Therefore, the learned trial court has committed an error in believing on the statements PW-3, PW-4 and PW-5 and holding the accused-appellant guilty for the offence under Section 498A I.P.C. 28. Here in the present case in view of above discussion, the prosecution failed to prove any demand by the appellant with his in-laws, in my considered view, only the demand of money from father-in-law by his son in law does not amount the offence under Section 498-A. If a person demands money from his father-in-law and he does not fulfill the demand, thereafter if any person commits cruelty with his wife physically or mentally due to non-fulfillment of demand, then offence under Section 498-A I.P.C. is made out. 29. It is a human being that if a person is in financial problem, then he will first go to his family members and if his family members fail to solve the problem, thereafter he will go to his in-laws and if his in-laws fails to solve the problem, then he will go to another person, so the demand of money itself does not make offence under Section 498A I.P.C. 30. In the present case, only the prosecution case is that the accused-appellant demanded money from his in-laws for floor mill, jeep and motor-cycle which is not proved by the prosecution. Apart from this, the prosecution is silent that after not fulfilling the demand of money whether the accused-appellant has committed any cruelty with his wife or not. 31. It is settled proposition of law that the prosecution is required to stand on its own legs and prosecution cannot take support from the weakness of the defence. 32. It is also settled proposition of law that in criminal case, if two views are possible on the evidence adduced in the case, one amount to the guilty of the accused and the another to his innocence, then the view which is favourable to the accused, should be adopted. 33. Consequently, I extend the benefit of doubt to the accused-appellant Kana Ram S/o Lichhman Ram. 34. As a result, the present appeal is hereby allowed. The conviction pronounced and sentence awarded by the trial court upon the accused-appellant Kana Ram S/o Shri Lichhman Ram is set aside. 33. Consequently, I extend the benefit of doubt to the accused-appellant Kana Ram S/o Lichhman Ram. 34. As a result, the present appeal is hereby allowed. The conviction pronounced and sentence awarded by the trial court upon the accused-appellant Kana Ram S/o Shri Lichhman Ram is set aside. He is acquitted of the charge under Section 498A I.P.C. 35. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.25,000/- and a surety bond in the like amount, before the learned trial court within one month, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Honble the Supreme Court.