Delhi District Court
State (Through Public Prosecutor vs Krishan Kumar Kukreja S/O Late Sh. ... on 13 April, 2012
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: A S J
(ELECTRICITY): NORTHWEST DISTRICT:
ROHINI COURTS: DELHI
CR no. 05/10
Unique ID no. 0204R0172522010
State (Through Public Prosecutor, Delhi)
...........PETITIONER
V E R S U S
1 Krishan Kumar Kukreja S/o Late Sh. Porval Lal
2 Prem Lata Kukreja W/o Sh. Krishan Kumar Kukreja
3 Kusum W/o Shri Sanjeev Verma
..........Respondents/accused persons
Date of institution : 26/07/2010
Date of hearing arguments : 04/04/2012
Date of decision : 13/04/2012
ORDER
1) In this revision petition the State through Public Prosecutor has challenged the order dt. 14/05/2010 passed by Ld MM, Rohini Courts wherein all the three respondents were discharged u/s 406 IPC and respondent no. 3 Smt Kusum has been discharged u/s 498A as well as u/s 406 IPC.
2) Brief facts of the matter before the Ld MM are that the complainant Ms. Vandana Kukreja was married with accused Rajiv CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......1/16 Kukreja on 21/11/1997 at Delhi; after marriage all the accused persons including the respondents herein started harassing the complainant on account of illegal demand of dowry; during her stay at matrimonial home the complainant was subjected to physical and mental cruelty by all the respondents; all the respondents and accused persons named in the complaint kept all the istridhan articles of the complainant which were given to her at the time of her marriage; due to harassment /cruelty at the hands of her in laws the complaint dated 06/04/2000 was filed before the CAW Cell and on the basis of which the present FIR was registered in Police Station Saraswati Vihar for the offence u/s 406/498A IPC against all the accused persons including the present respondents.
3) All the respondents/accused persons were discharged for the offence u/s 406 IPC and respondent no.3 Kusum was discharged for the offence u/s 498A/406 IPC. The said order has been challenged on the ground that accused Kusum alongwith other co accused persons has subjected the complainant to physical and mental cruelty just after the marriage which falls under the ambit of Section 498A IPC; Ld MM has wrongly reached to the conclusion that the allegations are general and vague whereas complainant has continuously suffered at the hands of the accused persons;
complainant had no such motive or tendency to rope all the relatives of her in laws with vengeance or to curl out settlement as was CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......2/16 observed by the Ld MM, Delhi because in that case she would have also implicated husband of her sister in law. Complainant has specifically alleged in her complaint that all the four accused persons were entrusted with the istridhan/dowry articles and did not return the same while she was turned out from the matrimonial home by them. It is therefore prayed that the impugned order should be setaside and accused Kusum is required to be charged for the offence u/s 498A/406 IPC and other respondents also required to be charged for the offence u/s 406 IPC.
4) I have heard Shri Ashok Kumar, Ld Public Prosecutor on behalf of revisionist/ State and Ld counsel Shri J. K. Bhola Ld counsel for the respondents. Complainant Ms. Vandana Kukreja has also filed brief written submissions through Public Prosecutor wherein it is submitted that accused Kusum/ sister in law of the complainant was married to Sh. Sanjiv Verma prior to the complainant's marriage with Rajiv Kukreja who was living in matrimonial house in Sector9 which was hardly five minutes drive from the house of the matrimonial home of the complainant. It is further stated that accused Kusum was most regular daily visitor on way back from school and also almost daily in the evening and nothing moved without her consultation in the Kukreja family. It is further submitted that FIR was registered in the year 2000 and it explicitly records the misdoing of Ms. Kusum Verma and her CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......3/16 parents in law family in brief as the FIR cannot be expected to be encyclopedia of all the events and incidents that took place during that period. Regarding the discharging of the respondent u/s 406IPC it is submitted that they were the actual perpetrators of the crime, instigators, beneficiaries and recipients of all the dowry items gifts and entrustment of jewellery items given to the Kukreja family members.
5) While arguing Ld Public Prosecutor has pointed out at page no. 3 of the complaint in last para that there are allegations against the sister in law Kusum about demand of dowry. The said allegations are reproduced as under: " My sister in law Kusum Verma and Prem Lata came to my bed in my room and asked me to pay my father Rs. 70,000/ for the first pregnancy, as first baby was the responsibility of the girl's parents. My parents, this time bluntly refused to pay anything. I was therefore forcibly shunted out from my in laws house 18/26, Sector 15, Rohini to which place they had shifted. My parents put me under treatment at Khetrapal hospital, Bali Nagar, New Delhi and registered me for delivery there. "
6) Ld Public Prosecutor further pointed out that in her statement u/s 161 CrPC dt. 21/11/2000, the complainant has specifically alleged that immediately after marriage her husband Rajiv, mother in law Premlata, father in law Krishan Kumar and CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......4/16 sister in law Kusum Verma started harassing her for dowry and also started giving beatings to her while demanding more dowry.
7) Regarding entrustment of istridhan/dowry articles of the complainant by the accused persons it is argued that istridhan articles given by the accused persons were not given to her despite demand and therefore all the accused persons needs to be charged for the offence u/s 406/498A IPC.
8) In support of arguments Ld Public Prosecutor has referred the following cases: i. Sudhir Kumar Jain and Ors Vs State, 1994 II AD Delhi 706, 1994 (2) Crimes 954 ii. State of W.B Vs Orilal Jaiswal and another, 1994 Cri. L. J, 2104 (1) iii. Jagdish and others Vs State of Rajasthan and another, 1998 Cri. L. J. 554.
9) In Sudhir Kumar Jain's case referred supra it was held in para no. 7 that: "At the stage of sections 239 and 240 of the Code if there is strong suspicion which makes the court think that there is ground for presuming that the accused has committed an offence, the court would not be justified in saying that there was no sufficient ground for proceeding against the accused. "
CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......5/16
10) In para no. 15 it was further held that: " Each judgment has its own peculiar facts as its bastion. Where an hopeless woman complains of continuing unending acts of cruelty, physical as well as mental covering a long period and shows her life having become unbearable on that score, her complaint, to my mind, cannot be thrown out merely on the ground that she has failed to furnish the dates, time and month when the acts of cruelty were allegedly perpetrated or on account of her failure to detail how and in what manner she was taunted and teased. When the suffering is a long continuing process such particulars pale into insignificance. Anyhow, as already noticed by me above, every case is an island unto itself. In the case before me the allegations seems to be more than sufficient to make out a prima facie case for framing of the charges and as such the learned Additional Chief Metropolitan Magistrate cannot be faulted on that score. "
11) In State of W.B's case referred Supra it was held in para no. 13 that: "We have indicated that ordinarily it is not expected that physical torture or the abuses hurled on the wife by the husband and the mother in law should be made in such a way as to be noticed by the tenants living in the adjoining portions of the house. "
12) In Jagdish's case referred supra it was held that: CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......6/16 " If repeated demand for dowry is made and harassment is meted out to a woman which may be physical or mental is an act of cruelty. It is not necessary that the husband or his relatives must be present at the time when the house wife is subjected to cruelty. If their act or conduct, omission or commission is of such a nature which results in mental and physical harassment it will amount to an act of cruelty to a woman and it is immaterial that the woman is living at that relevant time at her matrimonial home or at her parents house. The offence under section 498A is a continuing offence and if the act of cruelty continues even while, the woman is living at her parents house, the offence is triable by both the Courts in whose territorial jurisdiction the act of continuing offence of cruelty has been committed at matrimonial home or the parents house. In the instant case prima facie it has been shown that Narayani was subjected to cruelty at her matrimonial home Binjbayala and she was compelled to leave the matrimonial home due to the threats given by the petitioners. It has been further stated that when she was living at her parents house. This prima facie at this stage demand for Rs. One lac failing which she will have to remain at her parents house. This prima facie at this stage shows that the petitioners continued to cause harassment to Narayani with a view to coerce her to satisfy their unlawful demand i.e to compel her to live at her parents house. Therefore, prima facie it appears that she has been subjected to cruelty at Manak Khedi CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......7/16 within the definition of 'cruelty' given in the explanation of Section 498A IPC. "
13) Ld counsel for the accused persons/respondents on the other hand argued that there is no illegality and impropriety in the impugned order which needs interference by this court. It is further argued that there is no material on record which may show a strong prima facie case for the offence u/s 406 IPC against the respondents and offence u/s 498A/406 IPC against respondent no. 3 Ms. Kusum.
It is therefore vehementally argued that Ld MM has rightly discharged the respondents u/s 406 IPC and respondent no. 3 Ms. Kusum u/s 498A/406 IPC. In support of his arguments he has referred the following case of our own Hon'ble High Court of Delhi: i. In Smt. Sangeeta Kalra Vs State, 138 (2007) DLT 535 wherein it was held as under: " I consider that while framing charges, the Trial Court must take into account the entirety of the case, all documents which are brought to its notice including the correspondence between the parties and thereafter should decide whether there was case made out or the court was being used as a tool. I consider it is a fit case where criminal proceedings against the petitioner be quashed "
14) I have considered the rival submissions and perused the CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......8/16 material on record as well as the impugned order passed by Ld MM, Delhi while discharging accused Kusum/respondent no. 3 u/s 498A/406 IPC and Ld MM, Delhi has observed as under: " As far as accused Kusum is concerned, the allegations against her are general and vague in nature. It has been repeatedly observed by the Superior courts in catena of judgments that it is a practice that whenever a police report is lodged consequent upon a matrimonial discord there is always a tendency on the part of the complainant to involve practically all the relations of her in laws family either out of vengeance or to curl out appropriate settlement and such a tendency is ought to be deprecated. In the case on hand, in the absence of narration of any specific incident of cruelty against the accused Kusum, she is discharged of offence u/s 498A IPC "
15) Recently Hon'ble High Court in Criminal Revision Petition no. 513/2004 titled as Rakesh Kumar Gupta Vs State (Govt. of NCT of Delhi ) dated 18.9.2009 has discussed the law relating to the framing of the charge in detail and was pleased to hold in para no. 15 and 16 as under : Para 15 : Thus at the time of framing of charge, the court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......9/16 sift the evidence for the limited purpose of finding out, whether or not a prima face case is made out against the accused. However, the court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term 'Prima facie ' nor can the term 'strong suspicion' have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion , the court shall have to decide each case on the basis of its own independent facts and circumstances .
Para 16 : It would be apt to recall that a court exercising revisional jurisdiction cannot go into intricate details as regards the merits of a matter and may interfere only when there is any illegality or material irregularity or impropriety in the order passed by the lower court. A revisional court cannot act as a court of appeal and reappraise the merits of the case."
16) In Union of India Vs Prafulla Kumar, 1979 Cr. LJ 154 (SC) where it was held that : 'The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused at the initial stage if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......10/16 offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused .
It was further held : the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application'.
It was also held that : if the evidence which the prosecutor proposes to adduces to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence if any, cannot show that the accused committed offence , then there will be no sufficient ground for proceeding with the trial.
17) In Raj Kumar Khanna Vs. The State (NCT of Delhi) 2002 (1) JCC 327 it was observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of Section 498A IPC. Harassment by itself is not a cruelty unless here is a demand of dowry and the cruelty is a consequence of that demand. It was further held that the pre condition for attracting the provisions of Section 498A is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......11/16 then such a cruelty will not be covered under explanation (b) under Section 498A IPC.
18) In Savitri Devi Vs. Ramesh Chand & Ors., 2003 (2) JCC 881, the Hon'ble High Court of Delhi in para no. 16 has held as under:
"In constituting 'cruelty' contemplated by Section 498 A IPC the acts or conduct should be either such that may cause danger to life, limb or death or cause 'grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be 'willful' i.e. intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb of physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with material life".
It is further held in para 18 of the judgment that:
"Thus to constitute "harassment" following ingredients are essential:
(i). Woman should be tormented i.e. tortured either CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......12/16 physically or mentally through constant interference or intimidation.
(ii). Such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats.
(iii)Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
It is further held in para no. 28 of the judgment that:
"Again it is because of tendency to involve innocent persons that the Supreme Court has cautioned the courts to act with circumspection. In the words of Supreme Court "Often innocent persons are also trapped or brought in with ulterior motives and therefore it places an arduous duty on the court to separate such individuals from the offenders. Hence, the courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care".
19) In Neera Singh Vs. State (Govt. of NCT of Delhi) & Ors.
I (2007) DMC 542, it was held in para 7 that: "Nowadays, it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under Section 498A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the courts to carefully scrutinize the allegations and to find out CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......13/16 if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of complainant and thereafter observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations made by the complainant, no other role was assigned to these two minor girls (respondents)"
20) In the light of above case law as discussed above I have scrutinized the material on record, the complaint as well as statement u/s 161 CrPC. In the complaint the complainant has alleged that her sister in laws Kusum and Prem Lata came to her bed in her room and asked her father to pay Rs. 70,000/ for the first pregnancy, as first baby was the responsibility of the girl's parents but her parents, this time bluntly refused to pay anything, she was therefore forcibly shunted out from her in laws house. In these allegations against respondent no. 3 Kusum there seems to be nothing which may show a strong prima facie case so as to attract section 498A IPC.
21) Regarding the allegations in the statement u/s 161 CPC by the complainant that immediately after marriage her husband Rajiv, mother in law Premlata, father in law Krishan Kumar and sister in law Kusum Verma started harassing her for dowry and also started CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......14/16 giving beatings to her while demanding more dowry, no specific demand as ever made by accused Kusum is alleged because in the subsequent lines the complainant has specified that how her husband and mother in law and father in law went on demanding the food Processor and music system as they wanted to give it to her sister in law respondent no. 3 Kusum . It is further alleged in the statement u/s161 CrPC, which was recorded subsequent to the complaint on the basis of which FIR was registered that in November, 1998 her husband, mother in law, father in law and sister in law started demanding Rs. 50,000/. Since respondent no. 3 Kusum was already married prior to the marriage of the complainant and was living separately, there is every possibility as observed by the Ld MM, Delhi that her name was mentioned in the complaint as a ritualistic formality so as to involve the innocent person. It is the duty of the court to act with caution and scrutinize the circumstances with utmost care in such like cases.
22) Regarding the discharging of respondents u/s 406 IPC . I have scrutinized the contents of the complaint and as well as statement u/s 161 CrPC, the allegations of entrustment of the dowry articles are unspecified and vague and it becomes apparent that jewellary articles and other valuable were kept in the locker and the key of which was with husband of the complainant who used to operate the same. Ld MM, Delhi has therefore rightly observed that CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......15/16 there is no allegations of entrustment of istridhan articles to the respondents.
23) For the above discussion, I am of the considered opinion that there is no illegality and impropriety in the impugned order passed by Ld MM, Delhi as there is no strong prima facie case disclosed against the respondents u/s 406 IPC and no strong prima facie case is disclosed against the respondent no. 3 Kusum u/s 498A IPC as well as u/s 406 IPC. The impugned order does not need interference of this court. Revision petition is devoid of merits and accordingly dismissed.
24) Parties are directed to appear before the Ld trial court on 20/04/2012.
25) Trial court record be sent back to the Ld Trial court alongwith copy of this order.
26) Revision file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 13 April, 2012.
th (RAJ KUMAR CHAUHAN) ASJ (ELECTRICITY) (NORTH WEST DISTRICT) ROHINI COURT:DELHI CR no. 05/10 (State VS Krishan Kumar Kukreja & Anr) Page no.......16/16