Delhi District Court
St. vs . Deepak & Ors. on 25 February, 2014
IN THE COURT OF MS. MONA TARDI KERKETTA,
MM (MAHILA COURTS) :TIS HAZARI COURTS: DELHI
FIR NO. 696/07
UID No. 02401R1309242008
P.S. Timarpur
U/SEC. 498A/406 /34 IPC
ST. VS. DEEPAK & ORS.
1.Date of commission of offence : During subsistence of marriage since 28.01.2007
2. Name of the complainant : Ms. Meenakshi D/o Sh. Bahadur Singh
3. Name of the accused persons and their : 1. Sh. Deepak@ Bunty parentage and address. S/o Sh. Viri Singh
2. Sh. Viri Singh S/o Sh. Lekhraj
3. Smt. Sarla Devi W/o Sh. Viri Singh
4. Ms. Geetesh D/o Sh. Viri Singh (Since discharged) All R/o Block Colony Khair, PS: Khair, Dist: Aligarh, UP
4. Offence complained of : 498A/406/34 IPC
5. The date of order : 25.02.2014
6. Plea of accused persons : Not Guilty
7.The final order : Acquitted FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.1 of 13
8.Counsels for the parties:
For the State : Sh. A.B. Asthana For the Accused persons : Sh. R.D. Maurya THE BRIEF REASONS FOR THE DECISION : -
1. The brief facts of the case as have been disclosed in statement made by complainant Smt. Meenashi, D/o Sh. Bahadur Singh, R/o H No. C-113, Tomar Colony, Burari, Delhi wherein it has been stated that the complainant was married with accused No.1 on 28.01.2007 according to Hindu Rites and ceremonies at Mathura, UP. At the time of marriage the parents of complainant gave sufficient dowry articles including CBZ motorcycle, jewelery, clothes, cash, furniture, utensils and other appliances and spent more than Rs.5 lacs. After two months of marriage accused persons started harassing and committed torture upon the complainant in furtherance of dowry demands. It is further stated that accused Gitesh and Bunty used to abuse and beat her . It is further stated that on the intervening night of 18/19th September, 2007 accused Sarla Devi had left the regulator of gas cylinder due to which fire was broke out in the house and accused Deepak had left her in the burning room after tiding her hands and legs and tried to kill her stating that her father has not fulfilled his demand of Rs. 2 lacs for his job with Delhi FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.2 of 13 Police. When the complainant tried to inform the incident to her parents her mouth was shut. Thereafter next morning accused Bunty and Sarla Devi asked her to see doctor at Aligarh. She was forcibly taken in Tata Sumo without any jewelery by accused Bunty and Viri Singh on the way she asked as to where she is being taken then accused Bunty replied " Tujhe Aisi Jagah Lee Ja Raha Jaha Se Bapis Nahi Aate". When she asked to stop the vehicle she was thrown out in the forest and due to fall she suffered injury. Thereafter she informed about the incident to her parents and walked on foot alone for about 1 Kilo meter. Thereafter she took shelter in a house where some unknown people came to her rescue after some time her mother and brother reached there and took her and accused Bunty and Viri Singh to nearby police post. The accused persons used insulting words in front of police. No report was lodged by the police. Subsequently an another complaint was filed before CAW Cell, where reconciliation efforts were made but no settlement could be arrived at between the parties. Thereafter a case u/s 498-A/406/34 IPC was registered against the accused persons.
2. Subsequent to the registration of FIR, investigation was conducted and after completion of investigation, charge-sheet was filed in the court against the accused persons. Cognizance of the offence was taken and accused persons FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.3 of 13 were summoned by my Ld. Predecessor Judge. They were supplied copy of chargesheet in compliance of provision given under section 205 CrPC. Arguments on the point of charge heard and vide order dated 02.11.2010 charges u/s 498A/406/34 IPC were framed against all accused persons except accused Gitesh, who was discharged as no prima facie case was found against her.
3. Subsequent thereto matter was fixed for prosecution evidence. Prosecution has produced nine witnesses. Complainant Ms. Meenakshi appeared as PW-1 and proved her complaint Ex. PW1/A, list of dowry articles Ex PW1/B and list of recovered articles Ex. PW 1/C, Sh. Bahadur Singh, father of complainant appeared as PW2, HC Raghuvir Singh, Duty officer, appeared as PW 3 and proved recording of FIR Ex PW-3/A and endorsement on rukka Ex. PW 3/B, HC Sukhbir Singh, arrest witness appeared as PW 4 and proved arrest memo of accused Deepak and Viri Singh vide memos Ex. PW 4/A and Ex. PW 4/B, Sh. Ajit Singh, recovery witness of dowry articles appeared as PW 5,SI Dorathiya, EO, CAW Cell appeared as PW 6 and proved CAW Cell proceedings Ex. PW 6/A ( colly.) and her report Ex. PW 6/B , Sh Jaiveer Singh recovery witness of dowry articles appeared as PW 7, Smt Basmati mother of complainant appeared as PW 8 , SI Rumal Singh appeared as PW 9 FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.4 of 13 and proved personal search memo vide Ex. PW 9/A, 9/B and Ex. PW 9/C. After completion of prosecution evidence, matter was fixed for recording of statement of accused under section 313 CrPC.
4. The statement of accused persons u/s 313 Cr.P.C. was recorded wherein entire incriminating circumstances appearing on record were put to them, to which they denied as false and incorrect and claimed to have been falsely implicated and preferred to lead evidence in their evidence and examined Sh. Ravinder Singh as DW 1 and accused Deepak as DW2 after seeking permission of the court on an application under section 315 CrPC. After closure of defence evidence, matter was fixed for final arguments.
5. During course of final arguments, Ld. APP for the State submitted that the prosecution has been able to discharge its onus and prove the guilt of accused persons beyond reasonable doubt. Whereas, Ld. counsel for accused persons submitted that no reliance can be placed upon testimonies of prosecution witnesses for being improved and contradictory. The defence witnesses have been able to prove the plea of defence and nothing substantial during their cross examination could come out.
6. The court has heard the submissions of both the sides and also gone through entire record including testimonies of witnesses. Before appreciating FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.5 of 13 evidence on record, lets first discuss the relevant legal provisions given U/s 498 A/406 IPC. Section 498-A IPC provides punishment to husband or relatives of the husband of a woman subjecting her to cruelty. The prosecution must prove that :
(I) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it,
(ii) that he (a) misappropriated it or(b) converted it to his own use or © used it or (d) disposed of it FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.6 of 13
7. In the light of aforesaid legal provision, I would now appreciate the evidence brought on record to ascertain if alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A IPC and they are guilty of criminal breach of trust u/s 406 IPC. Under section 498-A IPC, demand is a precondition to attract the provision of explanation(b) of section 498-A IPC. Admittedly the complainant has built her case on explanation (b) of section 498-A IPC. In the judgement of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J page 3019, the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498-A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors.
(1995)6 SCC 219 while interpreting the provisions of 498-A IPC, observed that harassment to constitute cruelty under section 498-A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498-A. The precondition for attracting the provision of this section 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 FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.7 of 13 the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498-A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
8. Now adverting to the facts and circumstances of the present, PW1/ complainant Ms. Meenakshi has stated in examination in chief that after about two months accused persons started taunting and harassing for not bringing dowry as per their expectation. They were not satisfied with the motorcycle given at the time of marriage and made demand of car and cash of Rs 2 Lacs. She has further stated that she was manhandled by the accused at number of times. It is to be noted that allegations of complainant are very general in general. She has not specified as to in what manner she used to be harassed and manhandled and specific role of each accused has not been mentioned. The complainant has claimed to have been manhandled number of times but she preferred to keep mum for reason best known to her. She has not stated that she preferred to bear the atrocities of accused as she wanted to save her matrimonial life. The complainant has further stated in examination in chief FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.8 of 13 that accused Sarla Devi hatched a plan to kill her by keeping the regulator of gas cylinder but on account of her presence of mind, she was did not light the matchstick and got saved. She has further stated that accused Deepak in the month of August, 2007 tried to kill her by setting fire but somehow she managed to save herself. The version of the complainant in this regard appears to be impracticable as despite alleged attempt of accused to kill her, she did not prefer to report the matter to police or any other authorities. She has not claimed to have informed even her parents. In cross examination she has admitted that she did not receive injury when accused Deepak tried to kill by setting her on fire.
9. The complainant has further stated in examination in chief that in September, when she was unwell, accused Deepak and Sarla Devi took her to Aligarh on the pretext of her medical treatment. When they did not reach Aligarh even after two hours, she got suspicious and enquired as to where she was being taken, on this accused stated that she was being taken to a place, from where no one returns and she was thrown out of the vehicle in the jungle due to which she received injuries. She walked about one kilometer and took shelter in nearby house, from where she informed about the incident to her parents, who reached there and was taken to parental house and reported the FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.9 of 13 matter to police . It be observed that the allegations of the complainant are not in terms of explanation (b) of section 498-A IPC.
10. Now coming to evidence of PW2, father of the complainant has stated that accused persons used to demand car and Rs 2 lacs and he came to know about said demands through her daughter over telephone. Once he sent his son Amar Pal to matrimonial house of the complainant then also accused persons made demands by threatening that complainant would be deserted and sent her with him to Delhi. It be observed that the statement of this witness is based on hearsay statement and he has not witnessed anything personally. He himself has admitted this fact in his examination in chief itself. The fact of sending his son to matrimonial house of complainant and subsequent events do not find mention in the evidence of the complainant. He has further stated in examination in chief that accused Viri Singh had made specific demand of Rs 2 Lacs in July, 2007 to secure a job to accused Deepak but this fact again does not find mention in the evidence of the complainant. He has also stated about the alleged incident of taking the complainant on false pretext to Aligarh but said incident can not be said to be cruelty in terms of explanation
(b) of section 498-A IPC.
11. PW8 Smt Basmati , Mother of the complainant has also stated that her FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.10 of 13 daughter informed after two months of marriage that accused persons used to demand car and cash of Rs 2 Lacs. Her statement to this effect appears to be based on hearsay statement. She has further stated accused Deepak tried to kill himself in order to get his demands fulfilled but he was saved by her son and elder son in law but this fact does not find mention in evidence of any other witness and does not constitute cruelty in terms of explanation (b) given under section 498-A IPC. Remaining prosecution witnesses are formal witnesses who have been involved in investigation of the present case.
12. Though during cross examination of these witnesses , ld. defence counsel has not put material questions or suggestions to discredit them but statement of all prosecution witnesses have been found inconsistent and events narrated by them are not sufficient to constitute cruelty in terms of explanation (b) to section 498-A IPC in order to bring home the guilt of accused persons though the same may be relevant for invoking the provisions of Prevention of women against Domestic Violence Act. It is well settled that the testimony of sole witness or interested witnesses can also be relied upon to secure the conviction of accused if the same is found credible but in the present case, testimony of complainant and other witnesses are not found reliable. Hence no offence under section 498-A IPC is established against FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.11 of 13 accused person.
13. It be observed that accused persons have been charged for having misappropriated the Stridhan articles of the complainant to their own wish. In order to to establish the charge of Section 406 IPC, the prosecution was under
the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused persons and they were having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to them, have been misappropriated.
14. In her entire testimony, the prosecution witnesses have not stated the month, time and year when the entrustment was made and misappropriation was done. The list of dowry articles is not witnessed by any of the family members. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant is revealed. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152, I am of the opinion that entrustment in favour of the accused persons is not established. In view of the fact that none of the ingredients of section 405 IPC is established, I am of the view that no case u/s 406 IPC is made out against the accused FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.12 of 13 persons.
15. In view of the aforesaid discussion, I am of the opinion that no material evidence has been produced in order to secure conviction. Accused persons accordingly deserve acquittal and are acquitted accordingly.
16. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 25.02.2014 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.13 of 13
FIR No. 696/07
P.S. Timar Pur
U/SEC. 498A/406/34 IPC
ST. VS. Deepak & Ors.
25.02.2014
Present :- Ld. APP for the State.
All accused on bail with Ld. Counsel
Vide separate judgment announced in the open court, accused persons are acquitted from the charges framed u/s 498A/406/34 IPC. Fresh bail bonds in compliance of provision given under section 437-A CrPC filed, attested and accepted. Bail bonds furnished shall remain in force for a period of 6 months File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court Tis Hazari Courts, Delhi 25.02.2014 FIR No. 696/07, PS Timarpur State Vs Deepak& Ors. Page No.14 of 13