Delhi District Court
State vs . Jignesh & Ors. on 12 September, 2014
IN THE COURT OF MS. NITI PHUTELA: METROPOLITAN
MAGISTRATE02
(MAHILA COURT) SOUTH DISTRICT, SAKET COURTS:NEW DELHI
State Vs. Jignesh & Ors.
FIR No. : 811/96
U/S : 498A/406/34 IPC
PS : Malviya Nagar
DETAILS OF THE CASE
a) SI. No of the case : 811/96
b) Date of commission of the offence : 08.12.1984 onwards
b) Date of institution of the case : 21.09.1999
c) Name of the complainant : Smt Heena Vyas
d) Name & Address of the accused : (1) Jignesh Vyas
S/o Late Sh Vasant Lal
(2) Smt Usha Ben
W/o Late Sh VasantLal
(3) Ashwini Vyas
S/o Late Sh Vasant Lal
(4) Sh. V.D.Vyas
S/o Dev Shanker Vyas
(Since deceased).
Proceedings abated vide
order dated 10.09.2002
f) Offence complained of : 498A/406/34 IPC
g) Plea of accused : Pleaded not guilty.
h) Reserved on : 30.08.2014
i) Date of judgment : 12.09.2014
j) Final Order : Acquittal
CC No: 811/96 State Vs. Jignesh & Ors. 1/14
JUDGMENT
1. It is the case of prosecution that since the marriage of Smt. Heena Vyas D/o Sh. R.N.Dave was treated with cruelty by her husband i.e. accused Jignesh and all the abovesaid accused persons in furtherance of their common intention for demand of dowry. It is also alleged that the accused persons were entrusted/were having dominion over the streedhan articles of complainant and all of them committed criminal breach of trust in respect of the said articles.
2. After completion of investigation the charge sheet was filed in the court.
Copies were supplied to all the accused persons. Thereafter Ld. Predecessor Judge had proceeded to frame charge against all the accused persons U/s 498A/406/34 IPC on 18.10.2003 (except accused V.D.Vyas, the proceedings against whom were abated vide order dated 10.09.2002. To which all the accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution was directed to adduce evidence.
The prosecution got examined 8 witnesses. The gist of deposition of the prosecution witnesses is discussed in the paragraphs that follows:
4. PW2 Heena Vyas (complainant) deposed that she got married to accused Jignesh on 08.12.1984 at Ahmedabad. After her marriage, all the stridhan articles and jewelery articles were kept by her motherinlaw. As per her she received one set of 15 tola, 4 gold bangles, 45 sarees from the side of her husband. As per her all the accused persons started demanding cash from her for expanding their business. But her father was not in a position to fulfill the demands of her in laws, for this she was regularly being abused. She deposed that she gave birth to a daughter in 1986 and joined her job as school teacher in the year 1999 as accused Jignesh was not ready to maintain her daughter. It is alleged by her that she was CC No: 811/96 State Vs. Jignesh & Ors. 2/14 frequently slapped by her husband and the main reason for that was that all accused persons were expecting a son. She deposed that accused Jignesh asked her to get in writing from her father that he will not be responsible in case something happens to her. He frequently used to ask her to go back to her father's place as he was not in a position to fulfill her demands. She alleged that in the year 1996 she decided to leave accused Jignesh as it was not feasible for her to live with him because he used to raise suspicion over her character and frequently used to slap her and abuse her. She alleged that he even used to beat her daughter. The complainant deposed that sum of Rs 50,000/ was demanded from her by her motherinlaw at the instance of her husband. They used to allege that they needed money for the daughter and expansion of their business and abovesaid demands increased after her daughter started studying. They used to force her to bring gold from her mother for their daughter. She deposed that when the uncle of her husband, namely, Mahendar Vyas tried to settle the matter between the parties accused Jignesh even slapped him showing his mental and unstable behaviour.
5. In regard to her jewelery articles she stated that accused persons used to give her jewelery only for wearing on occasions and then used to take them back. All of them refused to return her jewelery articles when the same were demanded by her.
6. In her testimony she relied upon various documents such as list of stridhan articles Ex.PW2/A, photographs of marriage Ex.PW2/B and Ex.PW2/C, marriage card Ex.PW2/D, complaint before CAW cell Ex.PW2/E, Seizure memo of articles of jewelery produced by the accused persons is Ex.PW2/F and the articles of jewelery are Ex.P1to P19. The said CC No: 811/96 State Vs. Jignesh & Ors. 3/14 witness was crossexamined and was also confronted with the copy of her complaint Ex.PW2/D1. She was crossexamined and discharged.
7. PW8 SI Puran Mal : He deposed that he was posted as ASI at PS Malviya Nagar on 04.11.1996 when the present case was marked to him for investigation after registration of FIR by the duty officer. He proceeded with investigation of the present case and got recorded the statement of father of complainant. He arrested accused Jignesh and Ashwini Vyas and conducted their personal search on 15.12.1998 vide memos Ex.PW8/A and ExPW8/B. As per him accused V.D.Vyas and Usha Ben were interrogated on 23.08.1997 and were arrested on the same day. He also relied upon notices issued to accused Jignesh U/s 160 CrPC which are Ex.PW8/C, PW8/D and PW8/E. As per him later on investigation was handed over to the other IO. He correctly identified accused Jignesh and identity of other accused persons were not disputed.
8. PW3 Ct Bir Singh and PW4 Ct Tejpal : Both the said witnesses had deposed that they accompanied the respective deputed persons for search of accused persons at Ahmadabad but accused persons were not at their residence.
9. PW5 Sh. Willington, Clerk from Canara Bank, Green Park Branch:
He filed on record letter Ex.PW5/A pertaining to DD dated 19.01.1991 which as per their record was not traceable. The copy of the said DD was put to the accused to which he admitted that the same was issued for repayment of the loan taken by the father of the complainant Sh. Basant Lal Vyas, written record was reported to be available with him.
10. PW5 Sh. I S Das, Manager, Syndicate Bank, Green Park Branch : He stated that the DD dated 18.10.1991 in favour of the accused Usha for sum CC No: 811/96 State Vs. Jignesh & Ors. 4/14 of Rs. 10,000/ (the copy of which was shown to him) was not traceable in their record and the copy of the same had already been destroyed. To substantiate this he filed on record the letter of Chief Manager Ex.PW5/A.
11. PW6 Shashi Gupta, Deputy Manager, Bank of Maharashtra, Press Enclave: He appeared and deposed in regard to DD dated 29.01.1987 in favour of Ms. Heena Vyas for sum of Rs. 15,000/ that the record pertaining to the said DD was not available in their bank and the same was destroyed. To substantiate this she filed certificate Ex.PW6/A. The guideline for destroying the old record were Ex.PW6/B.
12. PW6 Insp. Ramesh Dahiya: He deposed that on 01.05.1999 he was posted as Incharge at PP Saket PS Malviya Nagar. The case was marked to him for investigation and Sh. R N Dave produced the photographs, marriage card, photocopy of DD which were seized by him vide seizure memo Ex.PW6/A. He also relied upon photographs Ex.PW2/B and Ex.PW2/C and marriage invitation card Ex.PW2/D. He stated that he recorded the statement of witnesses and prepared the challan and filed the same in the court.
13. No other witness was examined by the prosecution and PE was closed.
14. Statement of the accused persons was recorded U/s 313 Cr PC wherein all of them stated that they were falsely implicated in the false case. Accused Ashwin Vyas stated that he was living separately in another State at the time of his marriage with complainant and after two years of marriage accused Jignesh and complainant shifted to a house close to his house. However after the death of his father in 2000 all of them shifted to the same house but on different floors. He further stated that he never interfered in the living of complainant and his brother.
CC No: 811/96 State Vs. Jignesh & Ors. 5/14
15. In the defence evidence accused Jignesh and accused Ashwini Vyas stepped into witness box as per provisions of 315 Cr.PC. They also got examined Sh. Pallavika V.Dave, Family Counselor, the Family Counselor Center, Social Defence Department, Ahmadabad, State of Gujarat. The gist of testimony of all the witnesses are as follows:
16. DW1 Jagdish (accused) deposed that he got married with the complainant on 08.12.1984 at Bhandara, Maharashtra. He stated that he lived with complainant for about 12 years and during this while he helped her in completing her studies pertaining to her degree course in M.Com and B.Ed. It is alleged by him that in the vacation on 15.05.1996 the complainant went to her father's house at Delhi. She stayed there for 15 days and came back to her matrimonial house but she informed him that she has resigned her job as teacher at Ahmadabad as she was not willing to live with him. As per him she had informed him that she wanted to take care of her father after the death of her mother and she was going back to Delhi after taking of her belongings and her daughter. He deposed that he tried to persuade her but in vain. Later on he filed the petition U/s 9 HMA on 25.06.1996 where complainant appeared only once and later on an ex parte order was passed in his favour. He deposed that after the filing of this petition the complainant filed the complaint before Women Cell but as the complainant had not joined the company, therefore, he filed petition for divorce in the year 2000 in which an exparte order was passed in his favour. He also deposed that complainant had also filed divorce petition before Tis Hazari Courts but the same was dismissed. He further stated that in pursuance of the orders passed by court at Patiala House Courts, he started making payment of maintenance @ Rs. 600/ per month in the maintenance petition filed by complainant but after four years as the CC No: 811/96 State Vs. Jignesh & Ors. 6/14 complainant refused to receive the said amount, therefore, he stopped paying the same. He was cross examined and discharged.
17. DW3 Sh. Ashwini Vyas (accused ): He got examined on Oath and deposed that he was residing at Ahmedabad at the time of marriage of complainant with accused Jignesh. As per him, accused Jignesh and complainant started residing together at Bhandara, Maharashtra after the marriage and they returned back to Ahmedabad after two years. He alleged that the complainant herself had handed over her jewelery to be kept in the locker and as per him no demand of dowry or cash was made by the accused persons from the complainant. He stated that complainant never made complaint about any arguments between her and accused Jignesh regarding demand of dowry and he was not aware regarding their dispute as he was living separately. He also stated that he helped the complainant in getting the job at Ahmadabad as accused Jignesh was also posted at Ahmadabad. He denied receiving of Rs. 15,000/ in chuchak of the female child and Rs. 50,000/ as alleged by the complainant. He stated that complainant voluntarily went to her father's place during summer vacation and despite many efforts to resolve the dispute between complainant and accused Jignesh they failed to live together. He stated that since the year 2000 i.e. after the death of his father the complainant alongwith accused Jignesh and his own family resided in the same house but on the different floors. He throughout maintained that he was maintaining cordial relationship with complainant and her family members.
18. DW2 Sh. Pallvika V Dave deposed that on 25.05.1996 the complainant Heena filed her complaint which was Ex.DW2/A. As per her the complainant gave in her own handwriting that she was taking all her CC No: 811/96 State Vs. Jignesh & Ors. 7/14 jewelery and streedhan articles alongwith her and she stated that she had settled the matter with her and was not interested in pursuing any case against her husband. The copy of the said letter of complainant was Ex.DW2/B. As per the said witness even the father of complainant had sent the letter by post Ex.DW2/C wherein he had alleged that his daughter had compromised the matter with her husband fully and finally and had taken all her jewelery and stridhan articles back to Delhi. The said witness was cross examined and discharged.
19. The DE was thereafter closed.
20. Final arguments addressed by Ld. APP for the State and Ld. Defence Counsel for the accused.
21. Coming now to the appreciation of evidence led by the prosecution as it is on the evidence of the prosecution and its strength that the fate of this case depends.
22. Now coming to the allegations leveled by complainant against all the accused persons pertaining to Section 498A IPC. She has leveled common allegations against all the accused persons of expecting a son from her, claiming in writing from her in case something happens to her that they will not be responsible for the same, asking her to go to her father's house, demanding money for the daughter and for expansion of the business and demanding gold from the mother of complainant for the minor. These allegations have been leveled by her against all the accused persons without mentioning any specific role of any of the accused persons, date and time of demanding money or gold from her or specific words being used by the accused persons for abusing or torturing her.
23. She has specifically leveled the allegations against accused Jignesh that he CC No: 811/96 State Vs. Jignesh & Ors. 8/14 used to raise suspicion over her character, he used to frequently slap her and used to beat her daughter, he used to abuse her parents and he failed to maintain her or her minor child. Perusal of the said allegations also shows that she has not mentioned any specific date, time or specific words being used by the accused husband for harassing her which shows that all her allegations against the abovesaid accused persons in regard to abusing her, demanding money for child and expansion of business are vague and general in nature.
24. As regards the allegations leveled by her in her complaint pertaining to demanding sum of Rs. 15,000/ on 10.02.1986 for the chuchak of the child which as per her was fulfilled by issuing demand draft in her name is concerned the same can also not amount to demanding of 'Dowry' as per provisions of Section 2 Dowry Prohibition Act. The law regarding this aspect is settled by way of catena of judgments of Hon'ble Supreme Court and also of Hon'ble High Court of Delhi that demand of money for expansion of business or for maintenance of child does not tantamount to demand of dowry strictly as per the abovesaid provisions of law because the said demand is not in relation to marriage.
25. At this stage, it is relevant here to mention the judgment of "Vipin Jaiswal Vs. State of A P Crm. Appeal No. 1431/07 Dod 13.03.2013"
wherein it has been held by Supreme Court of India that:
"In our view, both the Trial Court and the High Court failed to appreciate that the demand, if at all made by the Appellant from the deceased for purchasing a computer to start a business six months after the marriage, was not in connection with the marriage and was not really a 'dowry demand' within the meaning of Section 2 of the Dowry Prohibition Act, 1961".
26. It has also been held in the case before Hon'ble Delhi High Court titled CC No: 811/96 State Vs. Jignesh & Ors. 9/14 "Hans Raj Sharma & Ors. Vs. State of Govt. of NCT of Delhi Crl A No. 33941/05 Dod 02.03.2010" as follows:
"A careful analysis of the aboves referred definition would show that dowry would include that property or valuable security which is actually given for which is agreed to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or inlaws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such as case would be attributable to the marriage or proposed marriage and if there is demand for any cash, property, valuable security etc, which is promised, but not given, it would constitute demand for dowry. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfill such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referable to the marriage, having been made with a view to preserve the marriage. But, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry".
27. In the case in hand, it is not the version of complainant that the accused persons were expecting cash or any other demand of dowry at the time of CC No: 811/96 State Vs. Jignesh & Ors. 10/14 marriage. She has alleged as PW2 that all of them demanding cash for expanding their business and the said demand would not be covered within the definition of 'dowry demand' as discussed above.
28. The case of prosecution further weakens due to the fact that the first complaint which was filed by complainant was in the year 1996 before Woman Cell which approximately 12 years after the date of marriage and in the integrum period there is not even a single police complaint or complaint before any other authority to show that she was harassed for dowry or cruelty was inflicted upon her. Therefore, even if the allegations of complainant are presumed to be gospel truth then also demands if any for the purpose of expansion of business after 12 years of marriage or demand of money at the birth of minor child cannot amount to demand of money in relation to marriage. Hence, the allegations of the complainant in this regard are of no help to the prosecution.
29. Further it is also pertinent to mention that she has alleged throughout her deposition as PW2 that she was frequently slapped and beaten by accused Jignesh but she herself admitted in her cross examination that there is no medical record of the said beatings or causing hurt to her. This court is not oblivious of the fact that for a simple slap or beating given behind the four walls of the house, there could not be a medical record but it is an admitted case of the complainant as is reflected from her complaint also that the marriage between her and accused Jignesh was in near relation and they had common relatives between them but still no witness from her side or relation has been produced to substantiate her version. She has herself stated in her complaint Ex.PW2/E that various persons from the side of accused Jignesh such as his two uncles namely Jaswant Lal Vyas, Jagdish Vyas, their neighbour Mr. and Mrs. Shukla, and from her side her CC No: 811/96 State Vs. Jignesh & Ors. 11/14 sister Jyoti, her father, her cousin Sh. P G Vyas and her maternal uncle Sh J D Dave tried to resolve the dispute between them on 24.05.1996 but no such witness is produced in the witness box to substantiate the fact that she had complained regarding the conduct of the accused persons to the other relatives. Further she has admitted in her cross examination that she had written letters to her parents describing the cruelty inflicted upon her and she can also file the same but the same were not brought on record. Hence, in the absence of the same, the allegations of cruelty being inflicted or demand of dowry from her are not substantiated. Therefore, merely demand drafts issued in the name of complainant or issued in the name of accused Usha would not cover them within the terms of demand of dowry.
30. It is also relevant to mention that in her complaint Ex.PW1/E she has stated that as no settlement could be arrived between the parties on 24.05.1996, therefore, she was not allowed to come to her matrimonial house but in her deposition as PW2 she has stated contrarily that she herself left her matrimonial house in the year 1996 as it was difficult for her to stay with her husband, which in itself is a major contradiction. Therefore the offence under section 498A is not proved against any of the accused persons.
31. Now coming to the allegations of complainant pertaining to criminal breach of trust against all the accused persons. In this regard in her testimony as PW2 she has merely stated that after her marriage all her jewelery articles were taken by accused Usha which includes the articles received by her from her husband side such as one set of 15 tola, 4 gold bangles and 4 to 5 sarees. She alleged that all the streedhan articles given CC No: 811/96 State Vs. Jignesh & Ors. 12/14 to her in her marriage were as per list Ex.PW1/A. In this regard she has also alleged that all the accused persons used to give her jewelery for wearing only on occasions and used to claim them back. As per her all of them used to refuse to give it back when they were demanded by her. In addition to this in her complaint she has alleged that on 24.05.1996 when no settlement could be arrived between them she was forced to be out of the house and she was not allowed to take her belongings with her except two cloths and 4 gold bangles. Apart from the abovesaid allegations there are no other allegations by complainant in regard to entrustment, demanding back or refusing of her streedhan articles.
32. From the abovesaid allegations it is evident that she has not stated in her deposition that when the list Ex.PW2/A prepared. It is not her version that the said list was prepared at the time of her marriage when the said articles were given to her. Further there is no mentioning of the specific date, the specific articles, weight of jewelery which were entrusted by her to her motherinlaw i.e. accused Usha. She has mentioned in her complaint regarding date of 24.05.1996 for claiming back the said articles and refusal by the accused persons but in contradiction to the same in her testimony as PW2 she has stated that she herself left the matrimonial house and not that she was forced to leave the matrimonial house.
33. It is pertinent to mention here that various opportunities were granted to accused to file on record the translation of documents Ex.DW2/A to Ex.DW2/C which were filed by DW2 and were in Gujarati language but the translation was not filed and adverse opinion regarding the said documents was taken by the Ld. Predecessor Judge. Even if the testimony of DW2 that any letter was written by the complainant stating therein that CC No: 811/96 State Vs. Jignesh & Ors. 13/14 she is taking alongwith that her all the streedhan articles is brushed aside and an adverse opinion is taken in regard to the abovesaid documents and is presumed that all the said articles were not taken by the complainant alongwith her to Delhi then also the essential ingredient of Section 406 specifying the date of entrustment the articles which were entrusted and the demand made by her of the said articles which were refused by the accused is not mentioned. In the absence of the same merely the seizure memo Ex.PW2/F is not sufficient to confer guilt upon the accused persons pertaining to provision U/s 406 IPC. Moreover, no bills of purchasing the articles as provided by the complainant in the list Ex.PW2/A are filed to show that the said articles were actually purchased by her/her family members to give her in her marriage.
34. Further on perusal of list Ex.PW2/A it is evident that apart from the jewelery articles there are various household articles and also articles of personal use that dominion of which cannot be presumed to be upon accused husband or the other accused persons. Therefore, the prosecution has even failed to prove its case pertaining to section 406 IPC. Hence, the prosecution has neither been able to prove any specific demand of dowry and cruelty which could drive the complainant to commit suicide or would result any danger to her mental or physical health and nor the essential ingredient of offence U/s 406 IPC are made out. Hence, all the accused persons are acquitted of the offences charged with.
Announced in the open Court (NITI PHUTELA)
dated 12.09.2014. MM02, Mahila Court,
South District, Saket Courts,
New Delhi.
CC No: 811/96 State Vs. Jignesh & Ors. 14/14
CC No: 811/96 State Vs. Jignesh & Ors. 15/14