[2025:RJ-JD:15525]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 302/2014 Ganeshi Lal Soni S/o Shri Farsa Ram Soni, by caste Soni, resident of Narsinghdara, Jalori Gate, Jodhpur.

----Appellant Versus

1. The State of Rajasthan

2. Hema Soni W/o Shri Ganeshi Lal D/o Shri Nawal Kishore, resident of 385, Teachers Colony, Amba Mata, Police Station Amba Mata, Udaipur.

----Respondent For Appellant(s) : Mr. H.S. Shrimali For Respondent(s) : Mr. N.S. Chandawat, Dy.G.A.

HON'BLE MR. JUSTICE FARJAND ALI

Order

10/03/2025

1. By way of filing the instant misc. petition, challenge has been made to the order dated 11.01.2013 passed by learned Special Court, SC/ST Cases, Jodhpur Metropolitan, Jodhpur in Criminal Appeal No.145/2010 wherein the appellate Court acquitted the respondent No.2 and set aside the judgment dated 30.10.2010 passed by Learned Judicial Magistrate, Jodhpur Metro whereby the respondent No.02 was convicted under Section 495 of IPC for two years of simple imprisonment and was acquitted under Section 406 of IPC.

2. The petitioner happens to be complainant of a case and at whose instant the prosecution was launched against the respondent No.2-Hema Soni, who was his wife, for the allegations of committing an offence of cheating, misappropriation of amount and concealment of fact of former marriage punishable under Sections 420, 406 and

495 of the IPC.

3. After a rigorous trial, the learned trial Court, vide its judgment dated 30.10.2010 acquitted her from the charge of Section 406 of the IPC, acquitted from the offence under Section 420 IPC based on compromise, however, convicted for an offence under Section of the 495 IPC and then sentenced her to suffer two years simple imprisonment with fine and with default clause.

4. She preferred an appeal challenging her conviction under Section 495 of the IPC. Vide the judgment dated 11.01.2013, the learned Court of Appeal, after making threadbare discussion and the material available on record, acquitted from the charges by setting aside the judgment of the trial Court.

5. The complainant has made challenge to the judgment dated

11.01.2013 passed by the Court of Appeal.

6. I have heard learned counsel for the parties and gone through the judgment of Court of first instance and the Court of Appeal as well as perused the record.

7. After anxious consideration of the material this Court observed that a critical appreciation of evidence in accordance with the spirit of law and justice have been done by the learned Session Judge. Every fact brought on record by the parties was considered appropriately and churned out appropriately. To prove and offence of marrying again during lifetime of the spouse and the concealment of fact of former marriage, it is imperative upon the prosecutor to adduce cogent, clinching and reliable evidence to establish the fact that the spouse has married to someone on a particular day, time, place, and ofcourse with particulars of the person to whom the alleged marriage got solemnized. The further fact as would be incumbent upon the prosecutor to substantiate the charge under Section 495 of the IPC would be to adduce reliable evidence to say that the fact of former marriage was concealed to him or her at the time of contacting the marriage.

8. The learned trial Court has rightly observed that there is a fine distinction between must and may and for convicting a person for an offence, the charges are required to be proved beyond reasonable doubt. The learned trial Court convicted her on bald assertion that she was married with one Manish Jain but he failed to observe the facts brought on record that no positive or concrete evidence has been produced by the complainant in this regard. For instance, if we go through the testimony of PW2 Ganeshi Lal, it would reveal that he, in an unequivocal term had admitted that neither he had any proof of the marriage nor the marriage was solemnized in his presence. As a matter of fact, not a tissue of evidence has been