Ramakanta Das VsState of Tripura

S.C. Das, J.—This criminal appeal u/s 374(2) of Cr.P.C. is directed against the Judgment and Order of conviction and sentence dated 12.12.2005 passed by learned Assistant Sessions Judge, North Tripura, Kailashahar in Case No. S.T. 27 (NT/K) of 2003. Learned Assistant Sessions Judge found the convict appellant, above named, guilty of the charges framed against him for commission of offence punishable u/s 498A and 307 of IPC and sentenced him to suffer R.I. for 3 years and to pay a fine of Rs. 1,000/-in default of payment to suffer further R.I. for 3 months u/s 498A of IPC and again to suffer R.I. for 10 years and to pay a fine of Rs. 5,000/- in default of payment to suffer R.I. for 1 year u/s 307 of IPC. Having felt aggrieved, the present appeal is filed challenging the Judgment & Order of conviction and sentence.

Heard learned senior counsel, Mr. A.K. Bhowmik assisted by learned counsel, Mr. R. Datta for the appellant and learned Additional P.P., Mr. P. Bhattacharjee for the State respondent.

Let us first have a glimpse to the fact of the case;--

Chapala Das (P.W. 3), daughter of Bimal Das (P.W. 1), the informant, and the accused-appellant Ramakanta Das were resident of village Saiderper, under P.S. Kumarghat and distance between the house of Bimal Das and Ramakanta Das were only 300 qbts. Ramakanta and Chapala fell in love and they married in Fatikroy Kali temple and the marriage ceremony was performed by P.W. 11, the priest Niloy Bhattacharjee. Parents of Chapala had no consent to the marriage. After marriage, Chapala went to the house of Ramakanta and started living as husband and wife. Mother of Ramakanta readily accepted her as a house wife, but, others could not. They lived as husband and wife for about 9 months and thereafter, on a day, Chapala with her husband went on a visit to the parental home i.e. the house of Bimal Das and Chapala stayed there for about 15 days. On 8.2.2002, at dawn at about 5 a.m., Chapala went out of the hut on being called by her husband, the accused Ramakanta and at that time, her parents and other members of the parental family were asleep. It has been alleged that accused Ramakanta suddenly gagged her mouth and fastened her neck with a muffler and dragged her away. She fell senseless by the road side and was lying there. At about 6.00 a.m., Bidhan Das (P.W. 2), brother of Chapala, while went out of the hut to collect berry, found Chapala lying unconscious with bleeding injuries and he raised cry. Parents of Chapala and other neighbourers hearing cry went to the spot and took her to Kumarghat hospital wherefrom, after preliminary treatment, she was referred to R.G.M. Hospital, Kailashahar where she was admitted as an indoor patient and undergone treatment till 01.03.2002. She regained sense after two days of occurrence and narrated the occurrence to her father and other relatives. Her father Bimal Das (P.W. 1) lodged an F.I.R in writing narrating the incident before the O.C., Kumarghat P.S. and accordingly, on the basis of that F.I.R., O.C., Kumarghat P.S. registered Kumarghat P.S. Case No. 09 of 2002 u/s 498A /307 and 325 of IPC and an investigation was taken up.

In course of investigation, I.O. examined the material witnesses including the victim woman Chapala Das and she narrated that her husband asked her to bring money from her parents, which she could not agree and therefore, she was subjected to cruelty in her husband''s house. I.O. collected the medical report and after completion of the investigation, submitted charge sheet against accused Ramakanta for commission of offence punishable u/s 498A and 307 of IPC.

Cognizance was taken on the basis of police report and on commitment of the case to the Court of Session, learned Assistant Sessions Judge on 28.08.2004 framed charges against accused Ramakanta Das for commission of offence punishable u/s 498A and 307 of IPC to which the accused pleaded not guilty and claimed to be tried.

To prove the charge, prosecution examined 13 witnesses. Out of them, P.W. 3, Smt. Chapala Das is the victim and is the sole witness of the alleged occurrence. P.W. 1, Sri Bimal Das is her father and P.Ws. 2 and 4, Sri Bidhan Ch. Das and Smt. Kamala Das are her younger brother and elder sister respectively of Chapala. P.W. 6, Sri Bishan alias Bishnu Das is her uncle. P.Ws. 5 and 7 are the members of the Panchayat, who met her at the R.G.M. Hospital, Kailashahar. P.Ws. 8 and 9, Digandra Kapali and Satish Das were tendered by the prosecution and neither examined-in-chief nor cross-examined. P.W. 10, Dr. Debasis Tarafder is the medical officer, who examined the victim Chapala at R.G.M. Hospital, Kailashahar and submitted the medical report marked Exbt. 2. P.W. 11, Niloy Bhattacharjee is the priest to the marriage of accused Ramakanta and victim Chapala. P.W. 12 Amulya Das is the scribe of the F.I.R and P.W. 13 Ajoy Debbarma is the I.O. of the case.

After closure of the prosecution evidence, accused was examined u/s 313 Cr.P.C. and in his turn to adduce defence evidence, accused produced a certified copy of order dated 19.12.2003 passed by learned District Judge in Case No. T.S. (RCR) 02 of 2003 between the accused-appellant and his wife Chapala Das, which is marked as Exbt. D1 on admission and also filed a certified copy of the petition of TS (RCR) 02 of 2003, which is marked as Exbt. D2 on admission. No oral evidence adduced on behalf of the accused.

Learned Assistant Sessions Judge found the accused appellant guilty of both the charges framed against him and sentenced him as aforesaid.

Mr. A.K. Bhowmik, learned senior counsel has submitted that the alleged incident occurred on 08.02.2002 at about 5 a.m., but the F.I.R. was lodged on 11.02.2002. Delay in lodging the F.I.R. has not been satisfactorily explained. While the victim was admitted in Kumarghat Hospital. F.I.R. could have been lodged at Kumarghat P.S. on that day itself either by the father or any other member of the parental family of the victim, if at all, any such incident occurred as alleged. For the delay in lodging F.I.R., there were scope of embellishment and afterthought and hence, prosecution case is liable to be disbelieved.

Learned Additional P.P., on the contrary, has submitted that delay has been explained by the informant in the F.I.R. as well as in his deposition stating that since he was busy in the treatment of Chapala, he could not lodge the F.I.R. immediately after the occurrence and that explanation has not been challenged by the defence and under such circumstances, while the delay has been explained, there is no rule to doubt the prosecution case.

On perusal of the F.I.R. (Exbt. P.1) and the evidence of P.W. 1, the informant, I find, the informant clearly stated that since he was busy with the treatment of Chapala, he could not lodge the F.I.R. The explanation given by the informant has not been challenged in his cross-examination. Under such circumstances, I find nothing to draw an adverse interference because of the delay in lodging the F.I.R. Whether there was embellishment or afterthought or whether there was any development in the story is a matter of appreciation of evidence and simply because the F.I.R was lodged after three days, a Court of law should not draw an adverse interference that the entire prosecution story is an afterthought. An F.I.R. is not a substantive piece of evidence. It is the information first in point of time about a cognizable offence. Since it is the information first in point of time about an occurrence, it has to be looked into to appreciate the other evidence on record, if the F.I.R. is proved. The Supreme Court in the case of

Sahebrao & Anr. Vs. State of Maharashtra reported in AIR 2006 SC 2002

has held:--

The settled principle of law of this Court is that delay in filing F.I.R. by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the F.I.R. would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.

In the case of

State of Himachal Pradesh Vs. Gyan Chand reported in : 2001 6 SCC 71

, the Supreme Court regarding the delay in lodging the F.I.R. observed thus:--

Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.

In view of a plausible explanation given by the informant and in view of the fact that the explanation so given has not been challenged by the defence, in the given facts and circumstances of this case, I find nothing to draw an adverse inference on the entire prosecution case only because of the delay in lodging the F.I.R..

The next argument advanced by learned senior counsel, Mr. Bhowmik, is that charge u/s 498A was wrongly framed and further finding under that charge holding the accused guilty of the offence is totally perverse and based on no legal evidence. It is argued by learned senior counsel, Mr. Bhowmik that following love affairs, Chapala and Ramakanta beyond consent of their family members went to Fatikroy Kali bari and the marriage was performed by P.W. 11 in the Kali temple. There was, therefore, no scope of having making demand for dowry or for giving or taking dowry as a consideration of marriage. The F.I.R. was lodged on 4th day after the occurrence. Had there was any demand of money and consequent torture on Chapala, the informant would clearly made statement in the F.I.R. mentioning the amount demanded by accused and the manner of cruelty exercised on Chapala. All vague and contradictory statements made regarding the demand of money and torture on Chapala and under such circumstances, Judgment & Order of conviction and sentence u/s 498A cannot sustain and liable to be interfered and set aside.

In support of his submission, learned counsel referred the case of

Girdhar Shankar Tawade Vs. State of Maharashtra reported in (2002) 5 SCC 177

.

Appearing on behalf of the State-respondent, learned Additional P.P., Mr. P. Bhattacharjee fairly submitted that in the F.I.R., the informant simply stated that Chapala was subjected to physical and mental torture on demand of money and no amount was mentioned. The deposition of P.Ws. 1 and 3 regarding the demand of money and consequent torture on Chapala are contradictory and does not inspire confidence. He has therefore, nothing to support the conviction u/s 498A of IPC.

Let us now have a glimpse to the evidence on record regarding the charge u/s 498A of IPC.

The object of Section 498A is to curb the vice of cruelty to the married woman by her husband or relatives of the husband. The provision is the outcome of pressing needs of the society to stop all sorts of cruelty towards a married woman, which has, of late, became a burning problem of the country. The greed for dowry, and, indeed, the dowry system as an institution, is the root of the offence contemplated in the Section. While the avowed objectives of Section 498A is to combat with the menace of dowry death and cruelty, it has also become a pressing need of the society to see that the provision is not misused.

The provision u/s 498A has prescribed punishment to the extent of imprisonment for 3 years and fine for the exercise of cruelty on a married woman by her husband or relatives of the husband. The word cruelty has been explained in Section 498A thus:--

Explanation.--For the purpose of this section, "cruelty" means:--

(a) any 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 woman; or

(b) 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.

In Girdhar Shankar Tawade vs. State of Maharashtra (supra), the Supreme Court has observed:--

The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498(A) .

Let us now have a glimpse to the evidence of the present case. Admittedly, Chapala and accused Ramakanta were in love. They went to Fatikroy Kali bari and P.W. 11 performed their marriage. Parents of Chapala had no consent to the marriage and could not accept the marriage between Chapala and Ramakanta. There was, therefore, no question of having any demand of dowry at the time of marriage.

In the F.I.R., the informant (P.W. 1) simply stated that since after some days of marriage, husband of Chapala used to inflict physical and mental torture on her and she was asked to bring cash money from him (P.W. 1). He (accused) often used to threaten Chapala saying that if, she fail to bring money she would be killed and the accused would marry again.

In his deposition, P.W. 1 stated that when Chapala came to his house on a visit, she told him that Ramakanta made demand of Rs. 30,000/- from him. He could not pay the amount and therefore, Ramakanta took the revenge on Chapala. In cross-examination, he admitted that in the F.I.R., he did not mention the specific amount of demand alleged to have made by the accused. He denied the suggestion that actually there was no such demand of money made by accused and Chapala did not tell him about any such demand.

P.W. 3, Chapala is the sole-witness of alleged unlawful demand of money and torture on her. Her statement, therefore, is of immense important since her father and brother narrated about the occurrence only on being informed by her.

Let us now have a glimpse to the deposition of P.W. 3 as to what she stated about the alleged unlawful demand and torture. In her deposition, she stated, for about 2/3 months after her marriage, the relation between her and her husband was good. But, thereafter, it was going to bitter as her husband gave her pressure to bring an amount of Rs. 30,000/- from her father. She could not bring the money. She told her husband that it was not possible for her to bring money from her father as her father had no ability. But, her husband replied that if she did not bring the money, he will kill her and marry again.

In her cross-examination, she stated that before I.O., she stated that her husband made demand of Rs. 20,000/-. She also stated that she did not tell the I.O. that her husband told her that he will kill her if she foiled to bring the money.

The above statement of P.W. 3 does not disclose any incriminating material to prove the ingredients of cruelty as defined in explanation to Section 498A of IPC. What is disclosed in her statement is that her husband put pressure to bring an amount of Rs. 30,000/- from her father and nothing else. There is nothing that she was tortured or harassed in any manner for her failure to bring the amount The ingredients of Section 498A , therefore, is totally absent in the statement of the witness i.e. the alleged victim woman.

In order to constitute cruelty, it is not enough that the conduct of the accused is willful and is offensively unjust to the woman, but, it is further necessary that the degree or intensity of such conduct, on the part of the accused, is such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to her life or limb or to her mental and physical health.

In the given facts of this case, cruelty as defined in Explanation (a) of Section 498A has no manner of application. The ingredients of cruelty as defined in Explanation (b) to Section 498A also is not available in the given facts and circumstances of this case since the victim woman i.e. P.W. 3 stated nothing as to how she was harassed for the alleged demand. She has simply stated that an amount of Rs. 30,000/- was demanded, but, such statement is also contradicted with her earlier statement Even if, we appreciate that a certain amount was demanded either it was Rs. 20,000/- or Rs. 30,000/-, as the case may be, it cannot be termed that for non-fulfillment of the demand, she was subjected to cruelty as defined in Explanation (b) to Section 498A of IPC. In the case of Girdhar Shankar Tawade (supra), the Supreme Court has observed:--

Explanation (b) of Section 498A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce 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-there is total absence of any of the requirements of the statute in terms of Section 498-A .

While the victim herself did not state anything about harassment, statement by her father or any other relatives is of no consequence at all and does not deserve any consideration for recording conviction. The allegation what is transpired in the deposition of P.W. 3 is an omnibus statement having nothing specific regarding the harassment. Mere demand of a certain amount by itself does not constitute harassment unless such demand is followed by some other overt act to compel the demand materialized. The allegation must be established for the Court to presume that the accused by means of such demand harassed the woman which constitute cruelty.

While the F.I.R. was lodged after a few days of the alleged occurrence and where the parents and other members of the parental family were hostile to the accused having not given consent to their marriage, in the given facts and circumstances of the case, the evidence of P.W. 3, Chapala and other witnesses of her parental family should be scrutinized very carefully for fair appreciation in respect of the alleged exercise of cruelty on demand of money.

According to the prosecution, Chapala lived with accused for a period of only a few months and there is no allegation by Chapala in her deposition that she was dealt with cruelty in any manner by the accused in his house. She simply stated that the accused asked her to bring Rs. 30,000/- from her father and nothing else. Under such circumstances, the allegation made by father of Chapala that she was subjected to cruelty physically and mentally has no basis at all. The finding of learned Assistant Sessions Judge on the charge, therefore, cannot stand and hence, liable to be interfered.

The next argument advanced by learned senior counsel, Mr. Bhowmik is that the conduct of victim Chapala is suspicious. The accused filed the petition for restitution of conjugal right and it was decreed in his favour. Since the parents of Chapala could not accept the marriage, they were constantly pursuing Chapala to break the marital relation and being influenced, Chapala instituted a false criminal case against her husband, the accused Ramakanta. According to Chapala, she went out of her parental home, on being called by accused, in the very early morning. If, she was subjected to cruelty or treated badly by accused Ramakanta, she would not go out of her parental home on the call by Ramakanta without informing other members of the family. She alleged that accused pressed her mouth and fastened her neck with a muffler and then dragged her to a little distance and she lost sense. P.W. 10, the doctor found no injury on her neck. Injury No. III was on her head and that might be caused on fall as opined by doctor (P.W. 10). Under such circumstances, the finding of the Trial Court in respect of charge u/s 307 IPC was utterly wrong and cannot sustain.

Learned Additional P.P., on the contrary, has submitted that the ingredients of attempt to murder is not there, but, it is amply proved that the accused assaulted Chapala when she went out of the hut on his call and caused grievous injury on the head of Chapala and therefore, he should be punished at least, u/s 325 of IPC.

Let us now have a glimpse to the evidence of P.W. 3, who is the lone witness of the alleged assault. In her deposition, she stated that on 08.02.2002 at about 5 a.m., her husband came to her father''s house and called her when her parents and her brother and sisters were sleeping. As soon as she went out from the house, accused pressed her mouth and also fastened her neck with a muffler and thereafter dragged her and she lost her sense. She could not say what happened thereafter. She regained her sense at Kailashahar Hospital. She told the incident to her parents, brother and others after regaining sense at hospital. She was in the hospital for 20/25 days for treatment. Her husband and relatives never visited her in the hospital and did not take care of her. After release from hospital her father took her to his house and she has been staying there.

In her cross-examination, she denied the suggestion put by the defence that her father lodged a false F.I.R. against her husband since her father could not accept the marriage. She also denied that her parents always tried to create obstruction in their marital life. She further denied that on 08.02.2002, her husband did not go to her father''s house and did not call her and that her husband did not assault her by strangulation or pressing her mouth. She ultimately, denied the suggestion that she deposed falsely as tutored by her father.

Admittedly, no medical officer of Kumarghat Hospital, where the victim was first taken, has been examined. No medical report also obtained from Kumarghat hospital. P.W. 10, Dr. Debasis Tarafder examined the victim Chapala at R.G.M. Hospital, Kailashahar on 08.02.2002 and he submitted the medical examination report, which is marked as Exbt. 2. He found three injuries:--

I) Multiple small abrasions on both legs, elbows, simple in nature

II) Subconjuctive Hemorrhage (both eyes) simple in nature

III) Bruise (fresh) 1" x 1/2" x 1/4" on frontal region of scalp grievous in nature.

All the injuries were caused by blunt object. Injured was given treatment at first at Kumarghat hospital. P.W. 10 in his examination-in-chief further stated that there was possibility of dying the patient, if she was not given the treatment in time. In his cross-examination, he stated that injury No. III was treated as grievous, as the patient was admitted in a drowsy, Glasgow coma scale score-7. In their hospital, there was no facility for C.T. scan. He could not say whether any X-ray was done on the patient. Till the patient recovered fully, they kept her in the hospital. No bed head ticket was with him on the date of his giving deposition. In case of strangulation, generally they observed ligature mark around the neck of the person. In the case of Chapala, he did not found any ligature mark on her neck and he did not mention anything in the report. Such type of injuries which he mentioned in the report may be occurred on sudden dash and fall of the patient. It was his clinical observation in respect of Glasgow coma scale-7 of the patient There was no facility in their hospital for instrumental measurement of the coma scale.

According to P.W. 3, she went out of her parental home, on being called by her husband, at dawn without informing any member other parental family. Ordinarily, she would not go out of the hut, on call by her husband without informing other members of the family, if the relationship was not sweet. After going out what happened between the accused and the victim (P.W. 3), they can only say the truth if, the incident was true as alleged by P.W. 3. P.W. 6 is the only witness, who stated that at about 5 a.m., he found Chapala and Ramakanta proceeding together and at about 6 a.m., he heard the alarm. P.W. 6 is the uncle of Chapala and he has land dispute and litigation with the family of the accused and so, the evidence of P.W. 6 is to be scrutinized with other evidence on record and I find no support of his evidence that he was found working in the field at that time. Keeping aside, the evidence of P.W. 6, there is no other evidence that anybody found Chapala with accused at dawn. According to Chapala, the accused fastened her neck with a muffler and dragged her. Had it been so, there might have some injury in her neck. Whereas, the doctor found no such injury in her neck. Injury No. III as stated by P.W. 10, was in the frontal region of scalp, which cannot be caused because of dragging with a muffler fastening the neck. According to P.W. 3, she fell unconscious when she was dragged and cannot say what happened. If the accused had the intention of killing Chapala, while she fell unconscious, the accused might kill her. While the evidence of the victim is not supported by the medical evidence, in the absence of any other item of evidence in the given facts and circumstances of the case, it is very difficult to believe P.W. 3 alone to record a conviction for attempt to murder. An offence u/s 307 is committed when the accused has the requisite intention to commit murder and does an act towards its commission in pursuance of the intention and it is not necessary that the act is the penultimate act.

P.W. 1 in his deposition stated that when Chapala was in his house, accused visited his house daily. P.W.s 5 and 7, the village members stated that they visited Chapala at hospital and Chapala told her that Ramakanta assaulted her. On the other hand, Ramakanta brought on record a decree of the matrimonial court in T.S. (RCR) 02 of 2003 wherein by order dated 19.12.2003, the court directed Chapala to return to the matrimonial home and to restore conjugal life. The alleged incident occurred on 08.02.2002 and the decree of restoration of conjugal right was given by the District Court on 19.12.2003. The judgment of the criminal case was passed on 12.12.2005. Admittedly, Chapala did not restore the conjugal life. The submission of learned senior counsel, Mr. Bhowmik that the parents of Chapala since could not accept the marriage between Chapala and Ramakanta, they have planted a false allegation against Ramakanta. The conduct of Chapala seems to be quite confusing in the given facts and circumstances of the case. We cannot expect that in a given circumstance, all human being will act or react in same manner, but, in criminal cases, normal course of human conduct should be taken to consideration. In

Hardeep Vs. State of Haryana & Anr. reported in (2002) 7 SCC 77

, the Supreme Court has observed that:--

In the criminal cases, the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. No fixed formula can be adopted that in a case if some of the accused persons implicated by the eyewitnesses have been acquitted, therefore, others must also be necessarily acquitted nor that whatever be the facts and circumstances of the case but in case an eye-witness states to have seen the occurrence sans contradictions in his own statement, must always be believed and acted upon. More particularly, where the circumstances warrant application of due care and caution in appreciating the statements of the witnesses, as in this case observed by the trial court itself, coupled with the fact that all the witnesses with no exception are related inter se and to the deceased. Every contradiction or discrepancy may not necessarily be fatal to the prosecution case, but it all depends on the facts and circumstances of the case; such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case the evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all but if there is false implication of the accused that itself impairs their character as unimpeachable witnesses more so in view of glaring contradictions. If all links and limbs of the prosecution case are weak, they cannot make out a strong case by putting them together. If one link is weak, the other stronger limbs of the prosecution case may make up for the weaknesses but not in the case like this.

In the given facts and circumstances of the case, the conduct of Chapala that she went out of the house on call by the accused without informing other members of the family seems to be suspicious. According to her, the accused pressed her mouth and simultaneously fastened her neck with a muffler and dragged her to a certain extent whereas no injury was there in the neck belies the prosecution story that the accused tried to kill her by strangulation. She might have received the injury on fell and thereafter, at the instance of her parents, who could not appreciate and accept the marriage made an exaggerated allegation against accused. The accused instituted suit for restoration of conjugal right and Exbt. D1 shows that on receipt of the notice, Chapala did not turn up and did not challenge the contention of the accused husband. Under the circumstances discussed above, the prosecution case as alleged seems to be doubtful and the accused in the given facts and circumstances of the case, is entitled to get the benefit of doubt.

The appeal is accordingly, allowed.

The Judgment & Order of conviction and sentence is set aside. The accused is acquitted from the charges and set at liberty.

Bond executed by the surety, on behalf of the accused, shall stand, discharged. Send back the L.C. records along with a copy of this judgment.