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Kana Ram & Anr vs State on 10 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 346 / 1992
Kana Ram son of Shri Lichhman Ram, by caste Jat, resident of
Nokha Chandawat, Merta Road, Police Station, District Nagaur.

—-Appellant
Versus
State of Rajasthan —-Respondent

__
For Appellant(s) : Mr. D.S. Udawat
For Respondent(s) : Mr. O.P. Rathi, P.P.

__
HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Judgment
10/05/2018

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.

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.

All the four accused denied the charges and claimed
(2 of 9)
[CRLA-346/1992]

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.

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.

Heard learned counsel for the parties.

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.

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
(3 of 9)
[CRLA-346/1992]

evidence produced by the defence that no demand of dowry was

made.

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.

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.

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.

I have scanned the judgment in the light of arguments

advanced and material available on record.

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 ekWax 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 lklllqj] nsoj

ekjihV djrs Fks A Hkaojh dks dwVekj dj dqos esa Mky fn;kA esjs taokbZ dkukjke

us thi ds fy;s chl gtkj :i;s ekaxs FksA ” In her cross-examination, she
(4 of 9)
[CRLA-346/1992]

stated that “‘kknh ds le; eqyfteku us dksbZ ngst ugha ekaxkA gekjh tkfr us

ngst dh izFkk 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 Fkk A vkxs mlus ;g Hkh dgk gS fd eSaus iqfyl dks ;g ckr crk;h Fkh fd

esjh yM+dh Hkaojh dks dwV ekjdj dqos esa Mky fn;k] irk ugha gS izn’kZ Mh1

esa ,slk D;ksa ugha fy[kkA”

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.

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 dwVekj dj dq, esa Mky fn;k irk ugha izn’kZ Mh 1 esa ,slk

D;ksa ugha fy[kk gS^^, therefore, beating to the deceased by accused is

contradictory statement of PW-3 with her police statement Ex.D/1.

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
(5 of 9)
[CRLA-346/1992]

“mlds ‘ko ij fdlh izdkj dh pksV ugha Fkh] ^^ 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.

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-cheief 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.

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.

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
(6 of 9)
[CRLA-346/1992]

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 gSa] Hkaojh us dgk fd ikap gtkj :i;s

eksVjlkbZfdy gsrq eaxok;s gSa^^. 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.

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.

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.

Other witnesses, who have been produced by the

prosecution in trial court are hear say witnesses.

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.

In view of above discussions, I am of the view that

there is major contradiction in prosecution witnesses, who are
(7 of 9)
[CRLA-346/1992]

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.

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.

When prosecution failed to prove the above facts, no

offence under Section 498A is made out.

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.

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
(8 of 9)
[CRLA-346/1992]

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.

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.

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.

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.

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.

Consequently, I extend the benefit of doubt to the
(9 of 9)
[CRLA-346/1992]

accused-appellant Kana Ram S/o Lichhman Ram.

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.

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 Hon’ble the Supreme Court.

( RAMCHANDRA SINGH JHALA), J.

babulal/

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