Rajasthan High Court - Jodhpur

Premlata Vajpayee vs Ashok Kumar Vajpayee And Anr. ... on 26 May, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 2082/2017

Premlata Vajpayee W/o Ashok Kumar Vajpayee D/o Shri
Lakshminarayan, By Caste Brahmin R/o 278 J.k. Nursing Home
Ki Gali, First B Road Sardarpura Jodhpur, Rajasthan.
----Appellant
Versus
1. Ashok Kumar Vajpayee S/o Late Shri Janardan Prasad, R/
o 2/28 Vishnupuri Mandir Ki Gali, Near Sub-Station,
Aligarh, Uttar Pradesh.
2. State Of Rajasthan
----Respondents

For Appellant(s) : Mr. Haidar Agha
For Respondent(s) : Mr. Kuldeep Kampawat, AAAG

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

26/05/2025

The matter comes up on an application under Section 5 of

Limitation Act for condonation of delay in filing the appeal.

For the reasons mentioned in the application, the application

is allowed. The delay in filing the appeal is hereby condoned.

The appellant has filed the present criminal appeal being

aggrieved by the judgment dated 11.08.2015 passed by the

learned Additional Sessions Judge (Women atrocities), Jodhpur

Metropolitan in Criminal Appeal No. 46/2015, whereby, the

learned Judge while partly allowing the appeal filed by the accused

respondent, acquitted him from offence under Section 498A IPC

and the judgment dated 17.03.2015 passed by the learned

Additional Chief Metropolitan Magistrate No. 6, Jodhpur

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Metropolitan in Criminal Case No. 170/2012, whereby, the learned

Judge acquitted the accused respondent from offence under

Section 406 IPC.

Briefly, the facts of the case are that the complainant

appellant lodged a complaint before the police, stating therein that

her marriage to the respondent was solemnized on 14.04.1995 in

accordance with Hindu rites, and sufficient dowry was given to the

respondent in accordance with the financial means of her parents.

It was stated that after some time of marriage, the respondent

and his family members started harassing the appellant,

demanding dowry. On the basis of said report, FIR was registered

and investigation commenced. The police after due investigation,

filed challan against the respondent no.2 for offence under

Sections 406, 498A IPC. Thereafter, charges of the case were

framed against the respondent no.2 for aforesaid offences. The

accused respondent no.2 denied the charges and claimed trial.

The prosecution in support of its case examined five

witnesses and various documents were exhibited. The statement

of accused respondent under Section 313 Cr.P.C. was recorded,

who examined one witness in his defence and exhibited a

document.

After conclusion of trial, the trial court acquitted the

respondent no.2 from the offence under Section 406 IPC but

convicted the respondent for offence under Section 498A IPC vide

its judgment dated 17.03.2015.

Feeling aggrieved, the accused respondent filed an appeal

before the court of Additional Sessions Judge (Women Atrocities

Act), Jodhpur metropolitan. The appellant court after taking into

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consideration the entire facts and evidence, acquitted the

respondent from the offence under Section 498A IPC.

Learned counsel for the appellant argued that the courts

below, without thoroughly examining the entire record and

evidence, acquitted the accused respondent from offences under

Section 406 and 498A of the IPC. It is submitted that the

complainant, as well as the prosecution witnesses, stated that the

deceased was subjected to harassment for dowry. However, the

courts below acquitted the respondents on the basis of minor

contradictions in the witnesses' statements. Thus, the judgments

of the courts below are liable to be set aside, and the matter may

be remanded back to the trial court for passing a fresh order.

Per contra, counsel for the respondent-accused argued that

the prosecution primarily relied upon the statements of witnesses,

whose testimonies did not inspire confidence and were riddled

with contradictions. It is contended that the charges under

Sections 406 and 498A of the IPC cannot be sustained against the

respondent accused due to a lack of convincing evidence to

establish that the appellant was harassed in the matrimonial home

on account of dowry demand. Therefore, no interference is

warranted in the impugned judgments, and the appeal is liable to

be dismissed.

I have heard the counsels for the parties and gone through

the material on record.

In order to appreciate the controversy, it would be apt to

refer to Section 405 of I.P.C. This Section stipulates that the

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offence of criminal breach of trust as defined in Section 405 of the

IPC have been committed when a person who had been entrusted

in any manner with the property or has otherwise dominion over

it, dishonestly misappropriates it or converts it to his own use, or

dishonestly uses it, or disposes it of, in violation of any direction of

law prescribing the mode in which the trust is to be discharged, or

of any lawful contract, express or implied, made by him touching

such discharge, or willfully suffers any other person so to do.

The essential ingredients for establishing an offence of

criminal breach of trust as defined in Section 405 and punishable

under Section 406 IPC with sentence for a period up to three

years or with fine or with both, are:

(i) entrusting any person with property or with any dominion

over property;

(ii) the person entrusted dishonestly misappropriating or

converting to his own use that property; or dishonestly using

or disposing of that property or wilfully suffering any other

person so to do in violation of any direction of law

prescribing the mode in which such trust is to be discharged,

or of any legal contract made touching the discharge of such

trust.

This Court has observed that the correspondence exchanged

between the spouses or by and between accused and his in-laws,

do not disclose any allegations amounting to criminal misconduct

on the part of the accused. The sole allegation that could

potentially bring the case within the purview of Section 406 IPC

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pertains to the accused respondent having taken cash from the

complainant. However, from a legal standpoint, this assertion

alone does not satisfy the essential elements required to

constitute an offence of criminal breach of trust under Section 405

IPC, as it pertains to the misappropriation or conversion of

property entrusted to the accused, which is not established here.

Furthermore, the trial court has correctly noted that the

prosecution failed to demonstrate that the accused was entrusted

with the complainant's valuables or that he subsequently

misappropriated or converted them. The absence of any credible

evidence establishing the element of entrustment is a significant

deficiency, as the offence under Section 406 IPC fundamentally

depends on the proof that the accused was entrusted with

property and subsequently misused or converted it for personal

gain. In the absence of such evidence, the prosecution has failed

to prove its case burden of proof beyond a reasonable doubt to

establish the offence under Section 406 IPC.

So far as offence under Section 498-A of IPC is concerned,

the Parliament by Act No. 46 of 1983 with a view to combat the

menace of dowry deaths and harassment to woman at the hands

of her husband or his relatives introduced Section 498A in the IPC.

Thus, the essential ingredients of the aforementioned provision

are:

1. A woman must be married;

2. She must be subjected to cruelty;

3. Cruelty must be of the nature of:

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(i) any willful conduct as was likely to drive such woman:

a. to commit suicide;

b. cause grave injury or danger to her life, limb, either
mental or physical;

(ii) harassment of such woman, (1) with a view to coerce her
to meet unlawful demand for property or valuable security,
(2) or on account of failure of such woman or by any of her
relation to meet the unlawful demand,

(iii) woman was subjected to such cruelty by: (1) husband of
that woman, or (2) any relative of the husband.

In order to prove the offence under Section 498A of the IPC,

the complainant must make allegation of harassment to the extent

so as to coerce her to meet any unlawful demand of dowry, or any

willful conduct on the part of the accused 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. In the present case, the

appellate court below, after a comprehensive review of the

evidence, observed that it is evident that complainant, Premlata's

circumstances post-marriage were largely uneventful until 2005,

with no credible proof of dowry harassment or physical abuse

during her stay with her in-laws. Witnesses Krishnakant (PW/2)

and Rajnikant (PW/4), her brothers, testified that they never

observed any beating or dowry demands, and no medical or police

reports substantiate claims of harassment prior to 2005. The

alleged demand of Rs. 2 lakh by respondent on 09.09.2010 is

uncorroborated, as witnesses either did not witness the event or

were unaware of it, and cross-examinations revealed

contradictions. Investigating officer (PW/5) admitted that no

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independent witnesses or medical evidence supported the

allegations of dowry harassment. The absence of independent

witnesses and the inconsistencies in testimonies weaken the

prosecution's case. Overall, this court observes that the evidence

fails to establish beyond reasonable doubt to establish the offence

under Section 498-A IPC.

In the case of Mrinal Das & others v. The State of

Tripura reported in 2011(9) SCC 479, the Hon'ble Supreme

Court, after looking into many earlier judgments, has laid down

parameters, in which interference can be made in a judgment of

acquittal, by observing as under:

"An order of acquittal is to be interfered with only
when there are "compelling and substantial reasons",
for doing so. If the order is "clearly unreasonable", it is
a compelling reason for interference. When the trial
Court has ignored the evidence or misread the
material evidence or has ignored material documents
like dying declaration/report of ballistic experts etc.,
the appellate court is competent to reverse the
decision of the trial Court depending on the materials
placed.

Similarly, in the case of State of Rajasthan v. Shera Ram

@ Vishnu Dutta reported in (2012) 1 SCC 602, the Hon'ble

Supreme Court has observed as under:--

"A judgment of acquittal has the obvious consequence
of granting freedom to the accused. This Court has
taken a consistent view that unless the judgment in
appeal is contrary to evidence, palpably erroneous or
a view which could not have been taken by the court
of competent jurisdiction keeping in view the settled

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canons of criminal jurisprudence, this Court shall be
reluctant to interfere with such judgment of acquittal."

In the case of Bhupatbhai Bachubhai Chavda and Ors.

Vs. State of Gujarat reported in AIR 2024 SC 1805, the

Hon'ble Supreme Court has observed as under:--

"6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate the
evidence. After re-appreciating the evidence, the first
question that needs to be answered by the Appellate
Court is whether the view taken by the Trial Court was
a plausible view that could have been taken based on
evidence on record. Perusal of the impugned
judgment of the High Court shows that this question
has not been adverted to. Appellate Court can
interfere with the order of acquittal only if it is
satisfied after reappreciating the evidence that the
only possible conclusion was that the guilt of the
Accused had been established beyond a reasonable
doubt. The Appellate Court cannot overturn order of
acquittal only on the ground that another view is
possible. In other words, the judgment of acquittal
must be found to be perverse. Unless the Appellate
Court records such a finding, no interference can be
made with the order of acquittal."

In the case of H.D. Sundara v. State of Karnataka [H.D.

Sundara v. State of Karnataka reported in (2023) 9 SCC 581

the Hon'ble Supreme Court summarised the principles governing

the exercise of appellate jurisdiction while dealing with an appeal

against acquittal Under Section 378 Code of Criminal Procedure as

follows:
8. ... 8.1. The acquittal of the Accused further
strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence,
is required to consider whether the view taken by the
trial court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of acquittal
on the ground that another view was also possible;
and
8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the Accused
was proved beyond a reasonable doubt and no other
conclusion was possible.
...........

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the Accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the Accused is possible from the evidence available on record.

This Court opined that there exists a very thin but a fine

distinction between an appeal against conviction on the one hand

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and acquittal on the other. The preponderance of judicial opinion is

that there is no substantial difference between an appeal against

acquittal, except that while dealing with an appeal against

acquittal the Court keeps in view the position that the

presumption of innocence in favour of the accused has been

fortified by his acquittal and if the view adopted by the Courts

below is a reasonable one and the conclusion reached by it had

grounds well set out on the materials on record, the acquittal may

not be interfered with. Learned counsel for the appellant has