HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Rajeshwar Lal Jhanwar, J. Criminal Appeal No. 1653 of 97 State of Madhya Pradesh (now Chhattisgarh) /^ A.4? versus Sanjay Ganda and another JUDGMENT Post for pronouncement of Judgment l $""-03-2010 Sd^- R.L. jrianwar Judge M !-^ HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON»BLESHRI RAJESHWAR LAL JHANWAR. J. Appellant Respondents Criminal Appeal No. 1653/1997 State of Madhya Pradesh (Now State of Chhattisgarh) Versus 1. Sanjay Ganda, S/o Roop Singh Chauhan, aged 23 years, 2. Shanti Bai, w/o Roop Singh Chauhan 38 years. Both r/o Gram Riyapali, P.S. Pijisaur, Distt.Raigarh APPLICATION U/S 378 (iiil FOR LEAVE TO APPEAL 8& CRIMINAL APPEAL U/S 378 (it CR.P.C. Present:- Shri M.P.S.Bhatia, Dy. Government Advocate for the State. Shri Sarfaraj Khan, counsel for the respondents. JUDGMENT (Deliveredon ^/03/2010) This is State appeal directed against the judgment aged dated 30.10.1996 acquitting the respondents of the charges ^inder Section 498A of the I.P.C. passed in Criminal Case No. 524/p6 by the Judicial Magistrate First Class, Raigarh. 2. Prosecution case in brief is that on 16.09.1994 the complainant - Rambha Bai P.W.2 had lodged a F.I.R. vide Ex.P.4 at police station Pusour alleging that her marriage was solemnized with Sanjay Ganda. After marriage with him, she was subjec]ted to cruelty, physical harassment and mental agony by her husband and mother-in-law for bringing insufficient dowry and at times she was alleged to have been beaten by both of them. It is flirther alleged that utensils and radio brought along with her at the time of marriage were also destroyed by them and ultimately she was forcibly shunted out from her matrimonial house by the respondents, to her maternal home where she stayed for 3 months. --"-^ Thereafter, her husband accompanied by Kotwar and one Herrj sagr came to her house and after executing an agreement vide Ex.P.l and Ex.P.2 brought her back to village Riyapali. Thereafter, her mother-in-law started quarrel with her and drove her out along with husband and then they (both wife and husband) had gone to village Tarda for living peacefully. At village Tarda alsoi her mother-in-law came again and instigated her son Sanjay Ganda, as a result of this instigation, Sanjay started beating her andj torn out her 3 saris and then pressed her neck, due to which, herj gold chain was broken out. After recording 161 statements of witnesses, necessary seizures including agreement (Ex.P.l) and Ex.P.2) were effected. Respondents / accused persons [were arrested on 17.09.1994 for offence punishable under Section J498A / 34 ofIPC. After conipletion ofnecessary formalities, charge jsheet was filed before the Judicial Magistrate First Class, Raigarh,! framed under Section 498A of the IPC against the accu^ed / persons and conducted trial. who 3. So as to hold the respondents/accused persons prosecution has examined as many as 8 witnesses. Respondqnts accused persons were examined under Section 313 of the C in which they denied the charges levelled against themj pleaded their innocence and false implication. Maheshwar and Khemsingh were examined as defence witnesses in suppjort respondents / accused. D ^uilty, ./ r.P.C. and ).W.l of 4. After affording opportunity to the parties and after evalijiating the evidence adduced by the prosecution, the learned trial Judge has acquitted the respondents/ accused persons under S^ction 498A of the I.P.C. It is this order against which the State is ^efore this Court. 5. Learned counsel for the State/appellant argued that thje trial Court had disbelieved the evidence of prosecution wifnesses on the ground that there are material contradictions. The trial Couk-t had wrongly believed the testimony of defence witnesse^ and statements of accused persons. Therefore, the judgment ofi lower ^"fT% ff Court is not in accordance with law. On the other hand, learned counsel for the respondents argued in support of the impugned judgment. 6. I have heard learned counsel for the parties at length and perused the record of lower Court including impugned judgment. 7. Manikchand P.W.l, brother of the complainant Rambha Bai P.W.2, has stated that after marriage of Rambha Bai ]with respondent No.l - Sanjay Ganda, she started living withj her matrimonial house and maintained good relations with he!r for sonie time. Thereafter, respondents used to harass her for bringing insufficient dowry and used to beat her and ultimateljy his sister was driven out of her matrimonial house, as a res^lt of which, his sister came to her maternal home at Gutki}ipali. According to him, he had gone to Riyapali accompanying by his sister and requested the respondents/accused to look after her properly under their shelter by touching their feet. Agaiiji the respondents/accused misbehaved with her and started bejating her. On this, he returned to his house taking his sister along him. He has further deposed that after three months respoi|ident No.l came to him along with one Santosh and assured him to after his sister properly and will not torture. To this effec brother-in-law Sanjay executed an agreement vide Ex.P.l an<d one more agreement was executed by Santosh and Hemsagar wh] Ex.P.2. After execution of these documents with assurance S[anjay had taken away his sister with him but did not stop beatir^lg her and again she was treated with cruelty and then lastly they [drove out his sister. According to him, respondent no. 1 - Sanjay left his with look f:, his .ch is I, sister at the outskirts of village and returned back to his village. Thereafter, they reported the matter. In his cross-examination, he has stated that after marriage of her sister with Sanjay when for the first time she came back to their house and informed aboiit the treatment given at her matrimonial house, he went to her matrimonial house along with his sister and tried to |make compromise but in vein and then they returned. But this pi^ce of :% ^ evidence does not find place in his statement given before the police. The fact that he had gone to matrimonial house alongjwith his sister toleave her there and touched the feet ofhis brother-in- law also does not find place in his statement given to police. 8. Rambha Bai P.W.2, the complainant, has stated about the incident in his evidence by saying that the respondents used to bear her for not bringing sufficient dowry. It was deposed that due to torture and-cruelty by the respondents she came back to her maternal home and when her brother taken her to matrimonial house by requesting them not to ill-treat and touched their feet then also they beat her and they returned to their village. Thereafter Ex.P.1 Ex.P.2 were executed with assurance that she would be looked after properly by her husband and after execution of the above said documents she and her husband left village Riyapali and resided at village Tadga at the house of sister of her mother-in-law. At village Tadga her mother-in-law again came and instigated her husband due to which, her husband committed assault on her and tried to press her neck. Due to assault by her husband, her gold chain was broken and her saris were torn out by her husband. She has further deposed that respondent No.l - Sanjay threatened her to kill and suddenly he picked up axe to kill her and when he was about to give a blow she snatched that axe and in during that time she sustained injury on his hand. Thereafter, she came back to her maternal home and reported the matter. There is material contradiction and omission in her statement under Section 161 of the Cr.P.C. since the fact that she was beaten by the respondents and her brother touched the feet of her husband does not flnd place in it. 9. P.W.3 Dharanidhar, father of the complainant, has deposed about the incident which took place with her daughter at her matrimonial house because of in sufficient dowiy. According to his statement, marriage of her daughter was solemnized with Salnjay about 4-5 years ago. After his daughter being driven out of her matrimonial house, Sanjay himself had left his daughter to his ,,^^ .^ s. tt-^.x,^.^-" ^ house for bringing insufficient dowry. Thereafter, he compromised the matter with the help of one Patel and according to compromise he gave a piece of land so that her daughter will not be ill-treated by them. According to his statement, one and half years thereafter when his daughter was again driven out of her matrimonial house he had gone to the house of respondents along with her daughter and touched their feet with a request to keep her along with them and left her daughter there and returned. He has further deposed that when he hardly reached half way, the respondents again drove her out of her matrimonial house but this piece of evidence does not find place anywhere in the testimony of Manikchand P.W. 1 and Rambha Bai P.W.2, who have stated that they (Manikchand and Rambha Bai) went to the house of respondents whereas Dharanidhar P.W.3 has deposed that he himself had gone to the house of the respondents alongwith her daughter. Even in F.I.R. Ex.P.4 and written report Ex.P.3, the above fact also does not find place. On this point, their evidence does not inspire confidence and is fully contradictory to each other. It is also pertinent to mention here that when the complainant was at her matrimpnial house she was often beaten and received injury on his hand vyhile assault being made by her husband but for this evidence, there is no medical evidence to show that she sustained injuries and |was medically examined. It has also come in the evidence of Rarribha Bai and Manikchand that they reported the matter within 2 pr 4 days after the incident but according to F.I.R,Ex.P.4 it is clear jthat the same was lodged after 17 days and for this no explanation |was forthcoming as to why such inordinate delay occurred. 10. So far as date of incident i.e. 30.08.1994 is concernedjthe said date was not clearly mentioned in written report Ex.P.3 but in police statements of complainant P.W.2, Manikchand P.W.l |and Dharnidhar P.W.3, the date 30.08.1994 was clearly mentic^ned whereas in the evidence adduced in Court it has not been stated by the complainant that when finally respondent No.l beat her knd drove her out of the village Tarda and at the same time her parents ^^. ^ have come to see her. To this piece of evidence, the eviden^e of Manikchand and Dharanidhar did not support the same. | 11. As regards agreements Ex.P.l and P.2 are concerned, it is clear that Reshamlal P.W.4 was the scribe of Ex.P.2 and witnessed by Santosh P.W.7 and Hemsagar. The said Ex.P.2 was written by him at the instance of Kotwar Santosh and Hemsagar. P.W.5 Pandav Gupta has stated in his evidence that when Rambha Bai drove out of her matrimonial and stayed at her maternal home, Sanjay came to take her back his house, she refused to accompany with hirn as a result of which Sanjay had dived from the transformer. He further deposed that thereafter a Panchayat meeting was held in which Ex.P.l and Ex.P.2 was written. Since nothing has been elicited from this witness, he was later on declared hostile and prosecution has not been able to prove Ex.P.1 and Ex.P.2. P.W.7 Santosh has stated that he was accompanied by Sanjay upto Gutkupali. This witness denied in his police statement Ex.P.7 relating to Sanjay jumped out from transformer and for that the above said documents (Ex.P.l and Ex.P.2) were written in Panchayat meeting. The prosecution has also not been able to elicit anything about the proof of above said documents. 12. As regards the evidence of P.W.8 Sadhana Singh, she has proved document Ex.P.5 by virtue of which both the agreements Ex,P.l and Ex.P.2 have been seized. In her evidence, it has come that relating to aforesaid agreements Rambha Bai in her cross- examination para 13 has stated that she did not know as to when was those documents written and she was informed through her brother Manikchand that agreements were written but who has written those documents and who signed those documents is not known to her. This is main material contradiction. 13. Having considered the facts and circumstances of the case, the prosecution has not been able to prove that what type of dowry demand the respondents raised and that torn sarees were| not produced before the Court. Moreover, the prosecution has utjterly failed to prove the agreements executed between the parties anii no medical evidence was adduced so that this Court could belie^e the statement of the complainant that she sustained injuries r hen Sanjay committed beating her. In this view of the matter, the learned lower Court has rightly acquitted the respondents after evaluating the material evidence available on record. The flndings and conclusions recorded by the lower Court are purely bas^d on legal, clinching and credible evidence. 14. In the facts and circumstances of the case and considering the material available on record as well as| elaborate judgment impugned passed by the Court below, I the view that in an appeal against acquittal if two views prosecution evidence are possible and the trial Court has one view favourable to the accused persons, then it will permissible for the appellate Court to reverse the findiijig acquittal by taking the other possible view on the prosecption evidence. Thus, the judgment of the trial Court is impeccab4 and flawless. 15. In the result, I do not find any such infirmity iri 1 after the ^m of the taken be of oa nbt the impugned judgment of acquittal which may warrant interferertce in this appeal against acquittal. Thus, the appeal filed by the appellant/State against the acquittal of respondents/accused persons is liable to be and is accordingly dismissed. Sd/- ! R.L. Jhanwar | Judge |