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
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
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 accusedShanker 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 313Cr.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