1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T State of Rajasthan vs. Krishan Kumar & Anr. S.B. Criminal Leave to Appeal No.301 of 2008 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 10.12.2007 passed by Chhotu Lal, RHJS, Addl.Sessions Judge (Fast Treck) No.3, Head Quarter at Ketri District Jhunjhunu in Sessions Case No.10/07 (9/07). Date of Judgment :::: 20.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Bhvnish Kumawat, P.P. Mr. Ashwani Sharma for accused respondents. By the Court: On 15.11.2006 a written report was submitted by Suresh son of Ram Swaroop at the police station Khetri stating therein that his sister Krishna Kumari was married to respondent Krishan Kumar on 11.5.2006. His sister used to tell that her in-laws are demanding a motor cycle in dowry and for demand of dowry the father-in-law of his sister and aunt of father-in-law namely Smt. Bhateri Devi used to harass her and they have murdered his sister for want of dowry. The police 2 on the basis of this report registered a case under Sections 304B and 498A IPC vide FIR No.375/2006 which ultimately resulted into filing of challan against accused respondents Krishan Kumar and Banwari Lal. The prosecution relied upon 12 witnesses in support of its case. The accused persons denied the allegations in their statements under Section 313 Cr.P.C. and stated that Krishna Kumari wanted to go to her parental house on account of some Gangoj (holy ceremony) and the ladies of the house refused to allow her to go but she left the house. It was also mentioned that she was having illicit relation with one Ram Karan and there was no demand of dowry by the inlaws. Three witnesses were examined in defence. The learned trial court after hearing both the sides and examining the material and evidence available on record came to the conclusion that there was no demand of dowry by the in-laws. There are material contradictions in the statements of the prosecution witnesses recorded by the police during investigation and given by them in the court during trial. The defence version goes contrary to the prosecution witnesses and reveals that there was neither any demand of dowry soon before the death of the deceased nor there was any harassment with her on 3 account of demand of dowry. Even the real sister of the deceased namely Urmila PW.8 who was married to the brother of Krishan Kumar has completely denied the fact of demand of dowry or harassment or torture. On the basis of evaluation of the evidence the learned trial court by the impugned judgment dated 10.12.2007 acquitted the accused respondents of all the charges giving benefit of doubt to the accused respondent. Against this judgment, the State has filed this leave to appeal. Heard learned Public Prosecutor and learned counsel for the accused respondents. Learned Public Prosecutor has contended that the trial court has wrongly given the benefit of doubt to the accused when there is plenty of evidence to connect the accused respondents with the crime. The post mortem report reveals that the deceased was having ante mortem injuries and deceased was subjected to cruelty and harassment because of insufficient dowry given by the parents of the deceased a the time of marriage. Therefore, the learned trial court has committed error and illegality in acquitting the accused respondents and the impugned judgment deserves to be reversed. 4 Learned counsel for the respondents has contended that there are material contradiction in the statements of the prosecution witnesses and the fact of demand of Rs.50,000/- is not mentioned in the FIR which was lodged by the brother of the deceased. The real sister of the deceased namely, Urmila PW.5 who is married to the real brother of accused respondent Krishan Kumar has not supported the prosecution story. Counsel further contended that had there been any demand of dowry Urmila PW.5, who was living in the same house certainly would have supported the prosecution story but she did not do so. She was not declared hostile. The material contradiction in the statements of the prosecution witnesses given to the police and in the court clearly go to show that the story about the demand of dowry, torture, cruelty and harassment is concocted and fabricated. After hearing learned counsel for the parties, I have gone through the impugned judgment as well as the material and evidence available on record. It cannot be disputed that after leaving the matrimonial house the body of the deceased was recovered from a nearby well and the ante mortem 5 injuries found on the person of the deceased could have been due to her fall in the well. It is also borne out from the statements of the prosecution witness that there are material contradictions in their statements specially in the statements of father, mother and brother of the deceased in relation to the demand of dowry, cruelty and harassment for demand of dowry. These witnesses are closely related to the deceased. If the statements of these witnesses be taken into consideration in the light of the statement of Urmila PW.8 then the entire case of the prosecution falls on the ground because she has deposed that neither there was any demand of dowry nor any cruelty or harassment with the deceased on account of demand of dowry. She is living adjacent to the room of the deceased. She has also deposed that Krishna died her own reasons and grounds. She never informed the parents about torture being given to the deceased Krishna Kumari. Along with the statement of Urmila PW.8 the statements of the defence witnesses have also corroborated the fact that there was neither any demand of dowry nor any cruelty or harassment with the deceased on account of demand of dowry. Of course, deceased Krishna Kumari died 6 within seven years of her marriage but for that it has to be shown by the prosecution that soon before her death she was subjected to cruelty or harassment by the husband or by his relatives on account of demand of dowry. If the prosecution has been able to prove this fact then and then only the death will come in the purview of `dowry death' but when the fact of demand of dowry itself is not proved by the prosecution evidence then presumption of Section 113B of the Evidence Act cannot be drawn so as to cover the case under Section 304B IPC. The evidence produced by the prosecution is lacking credibility in connection with demand of dowry and harassment, cruelty and torture with the deceased because of the material contradictions in the statements of the important prosecution witnesses. The learned trial court has found that just to involve the accused respondents in the commission of the crime the prosecution witnesses have exaggerated their version before the court. The defence version and the statement of Urmila PW.8, real sister of deceased are definitely reliable and inspire confidence and if this is so then serious doubt is available to discard the evidence produced by the prosecution. The learned trial court while relying upon the contradictions in the statements of the prosecution witnesses, the statement of 7 Urmila PW.8 and the defence version if has acquitted the accused respondents giving benefit of doubt it has committed no illegality or error of law. The learned trial court if has used its discretion in favour of the accused, unless there are cogent or sound grounds to interfere in it, no interference is required to be called for in the impugned judgment. It is well settled legal proposition that on perusing the prosecution evidence even if there is possibility of two views, the view favourable to the accused has to be taken into consideration. As a result of the discussions hereinabove, the leave to appeal lacks merit and deserves to be dismissed. Consequently, leave to appeal is refused and the leave to appeal is, dismissed. (Bhanwaroo Khan),J. bairwa