State vs Shanker Ram on 10 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. Criminal Appeal No. 354 / 1994

State of Rajasthan

—-Appellant

Versus

Shanker Ram S/o Shri Moola Ram, by caste Mali,

R/o Gram Gangani, P.S. Osian, District Jodhpur.

—-Respondent

__

For Appellant(s) : Mr. J.P.S. Choudhary,PP.

For Respondent(s) : Mr. J.K. Gehlot.

__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

[Per Hon’ble Justice G.K. Vyas,J.]

Date of Judgment ::: 10th August, 2017

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

201 IPC.

(2 of 9)
[CRLA-354/1994]

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.

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.

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.

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
(3 of 9)
[CRLA-354/1994]

Devi was lying on the floor and upon inspection found that she

was murdered by throttling.

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, chargesheet 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 Judicial Magistrate, Pipar City, Jodhpur.

Thereafter, the learned Magistrate, District 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.

The learned trial Court after framing charge under Section

304-B and in the alternate 302 and 498-A IPC, proceeded to

READ  Sri Raghunathan Pillai vs The State By Kaggalipura P.S., on 13 June, 2017

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.

(4 of 9)
[CRLA-354/1994]

In defence 5 witnesses were produced by the respondents

and therafter final arguments were heard by the learned trial

Court.

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.

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.

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.

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
(5 of 9)
[CRLA-354/1994]

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.

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

READ  Mahender Singh Chhabra vs Jaspal Singh Narula & Ors. on 21 July, 2014

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
(6 of 9)
[CRLA-354/1994]

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′ 0 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 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.

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 that:-

Þckn esa ‘kadj jke vksj eqykjke th nksuksa okil vk;s rk-

„ƒ@‡@‹… dks vk;sA vkSj cksys vc ge vkxs ds fy;s lhrk nsoh
dks dqN ugha dgsaxs rks eSaus lhrk nsoh dks muds lkFk Hkst nh
mlds ckn rk- ƒ…@ˆ@‹… dks lqcs ƒƒ cts gsekjke uhlku ysdj
esjs ?kj vk;k vkSj cksyk rqekjh yM+dh [kre gks x;h gSA mlds
ckn ge lc ifjokj okys ogka x;s vkSj lhrk nsoh dks ns[kk rks
mldk xyk ?kksV dj ekjh x;h ik;h Fkha rks okgka ls ge Fkkuk
eFkkfu;k esa fjiksVZ ntZ djokbZ gSA tks mfpr dkjZokbZ djus dk
d”V djsaAß
(7 of 9)
[CRLA-354/1994]

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.”

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:-

ÞeSa ckM+s esa lks jgk Fkk lhrk vdsys mij Nr ij lks jgh FkhA Nr
ij pkj fnokjh ugha gksus ls jkr dks djhc rhu cts og fxjh Fkh
ftldh vkokt ds lkFk esjh vk¡[k [kqyh vkaxu esa vkdj ns[kk rks
vk¡xu esa iM+s iRFkj ij lhrk dk lj yxk gqvk Fkk mlds [kwu vk
jgk FkkA eSa fpYyk;k rks gsekjke] gehjjke] iwlkjke] nsnkjke]
ijes’oj vk, mUgksaus ns[kk rks lhrk e`r ikbZ rc eSaus gsekjke dks
lhrk ds ihgj bryk djus HkstkAß
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:-

Þlhrk dh e`R;q ls ,d fnu igys eSa ekuth ds csjs ij etnwjh
djus x;k Fkk rFkk ml fnu jkr dks ekuth ds ;gha lks;k FkkA
gekjh tkfr esa ngstk dk fjokt ugha gksus ls eqs Hkh ngst ugha
fn;kA lhrk Nr ls fxjus ls ejhAß
Upon perusal of the statements given under
Section 313

Cr.P.C. by Late Moolaram and Shanker Ram and statements of
(8 of 9)
[CRLA-354/1994]

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 chargesheet 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.

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
(9 of 9)
[CRLA-354/1994]

witnesses improved their statement from the statements recorded

under Section 161 Cr.P.C.

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.

In view of above, no interference is called for in this appeal

filed by the State Government.

Hence, the instant D.B. Criminal Appeal is hereby dismissed.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.

Ishan

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