Delhi District Court
Fir No.820/2007; Ps Kalkaji ; State vs . Sanjay And Anr. 1 Of 36 on 7 December, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
Mahila Court02 (SouthEast), Saket Courts, New Delhi.
FIR No: 820/2007
PS: Kalkaji
U/s : 406 IPC
State v. Sanjay & Anr.
JUDGMENT
Date of institution : 18.02.2009
Cr.C No. : 86055/2016
Name of the complainant : Sanjana
W/o Sh. Mahender Singh
R/o 94, Subhash Khand, Giri Nagar,
Kalkaji, New Delhi.
Name & address of the accused : 1. Sanjay
S/o Sh. Jagdish Prasad
R/o H.No. 331, Sector9, R.K Puram,
New Delhi.
2. Bimla Devi
W/o Sh. Jagdish Prasad
R/o H.No. 331, Sector9, R.K Puram,
New Delhi.
Offence Complained of : U/s 498A/406 IPC
Offence Charged of : U/s 498 A/ 406 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 03.12.2018
Date of announcing of order : 07.12.2018
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 1 of 36
BRIEF FACTS:
1. Brief facts of the case are that on and after 04.12.1998, accused Sanjay treated the complainant with cruelty and demanded dowry from the complainant and harassed her. Further, accused Bimla Devi was entrusted with stridhan article of the complainant which she refused to return upon demand from the complainant.
2. As per the complaint of the complainant dated 23.08.2006 (Ex.PW 1/A), she was married to the accused Sanjay as per Hindu rites and rituals on 04.12.1998. Further, the same was performed with great pomp and show and the family of complainant had given dowry more than their capacity. However, the family of the accused persons were unhappy with the dowry articles and taunted the complainant on the first day by saying that the dowry articles were of low quality and complainant was abused. She had two married sister in laws who used to stay in the matrimonial home of the complainant and would taunt the complainant and abused her family on one pretext or the other. Complainant was told before marriage that accused Sanjay had a shop of tailoring and income in several thousands and she was taunted to bring a big car. Further, the complainant was having one son, but the mother in law of the complainant did not allow the complainant to take care of the minor child and was not allowed to touch the child. Her mother in law used to gave severe beatings because of which she had suffered injury on her head as her mother had banged her head on the wall. Complainant used to tolerate the aforesaid acts of the accused persons since she wanted to save her FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 2 of 36 married life and therefore, she never disclosed regarding the aforesaid acts of the accused persons to her family members. Further, her husband being a habitual drinker, would come back late in night and give beatings to the complainant. Complainant was treated like a maid and she would do all the household work and was not given food to eat and proper clothing. Her mother in law had taken all her gold jewellery and clothes into her possession. On one occasion when the family members of the complainant tried to pacify the matter between the complainant and accused Sanjay, her husband refused to hear and threatened to commit suicide. Further, on the occasion of Raksha Bandhan, complainant was thrown out of her house after being beaten up and therefore, she made a call at her parental home and her younger brother came to take her back. Accused persons started demanding one Indica car or Rs.3 lakhs to be given to them only when the complainant would be kept or else she would be killed.
3. Pursuant to this complaint dated 23.08.2006 against the accused persons, FIR was registered on 23.08.2007 and the matter was investigated. Charge sheet was filed on 18.02.2009. The Court took cognizance of offence and summoned the accused persons. Charge was framed against accused Sanjay vide order dated 07.02.2012 for the offence punishable U/s 498 A IPC and accused Bimla Devi was charged U/s 406 IPC. Accused persons pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 3 of 36
4. In order to prove its case, prosecution examined as many as fifteen witnesses.
PW1 (complainant) deposed that on 04.12.1998 she was married to accused Sanjay at Sarai Kale Khan, New Delhi. Her parents gave her total bridal jewellery set, scooter, clothes, household articles etc. After marriage she went to her matrimonial house at Sarai Kale Khan. When she reached in her matrimonial house, both of her sisters in law namely Chhoti and Gauri, her mother in law Smt. Bimla Devi and her husband Sanjay Singh said that she had not brought sufficient dowry and they expected that she would bring a four wheeler in dowry. Her mother in law used to harass her and she did not let her son namely Mani who was born on 06.01.2001 came to her. When she used to complaint this to her husband, she would tell (Jaisa Maa chahegi vaise hi hoga). Her husband also did not let her make call to her parental home or let her go to her parental home. Her husband also used to taunt her that instead of four wheeler she brought one two wheeler scooter and he demanded four wheeler from her. When she conveyed the demand of her husband to her parents, they showed their inability to give four wheeler to him. She told this to her husband, upon this he started harassing her for non fulfillment of his illegal demands. Her husband also used to consume liquor and after returning back home and used to beat her. Her mother in law also used to harass her. In the year 2006, her husband beaten her and she left her matrimonial house and reached to her parental house. Her 'Stridhan' was also lying at her matrimonial home. She never asked for return of 'Stridhan' orally from her in laws. Then she made complaint at CAW Cell, Amar FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 4 of 36 Colony dated 23.08.2006 which was Ex.PW1/A. Then in CAW Cell proceedings she and her husband arrived at a compromise and she along with him started living in a rented accommodation separately at Patel Nagar. But as conduct and behaviour of her husband towards her did not mend, she again filed complaints in CAW Cell, Amar Colony Ex.PW1/B and Ex.PW1/C. The present FIR was lodged against the accused persons. During investigation police recovered part of her 'Stridhan' vide seizure memo Ex.PW1/D which she got released on Superdari. Police inquired her in the present case and recorded her statement. Thereafter, witness was cross examined by Ld. APP for the State and stated that it was correct that in CAW Cell proceedings she had given list of her dowry articles Ex.PW1/E. It was correct that her husband used to demand Indica Car or Rs.3,00,000/ (Three Lakhs) from her and said that if she did not bring the same he would not let her alive in the matrimonial house. It was correct that when subsequently she started living with her husband at Gole Market, he left them on 26.05.2007 without telling anything. It was correct that when she went to her matrimonial house to look her husband, her mother in law and Nanad threw her out of the house and did not let her enter and said that if she would come here again, they would kill her. It was correct that she told the police in her statement when she used to live with her husband at Gole Market, he used to force her to drink wine and when she used to woke up she would find her clothes in disturbed condition. It was correct that she had stated to the police in her statement that on 01.08.2007 her husband sent her six photographs showing her smoking and drinking wine. It was correct that when on FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 5 of 36 03.08.2007 she went to PS Amar Colony with regard to her complaint her husband, mother in law and Jeth met her and said that if she would pursue her case against them they would show those photographs to every known person and defame her. It was incorrect that she had specifically entrusted the dowry articles and her 'stridhan' to any of her in laws however, the household articles were in the house and were being commonly used by all.
During crossexamination on behalf of accused PW1 deposed that her both sister in laws were already married before her marriage. She had not made any complaint to the police regarding any demand of dowry or harassment against my in laws between her marriage date and year 2006. No MLC was conducted for any injury caused during her stay in matrimonial house or with her husband, by her in laws as aforementioned. All the accused persons used to demand a car and Rs.3 lakhs and the same started within 23 years of her marriage. She did not remember if she had narrated the same to the police. She had filed a complaint to the police after 23 years of her marriage and her case was filed in the CAW cell. She admitted that she first time filed a complaint against the accused persons in the year 2006. She denied that she was a habitual drinker and used to smoke. She did not remember the phone number of her parental home of that time. She never got herself medically examined after being given beatings and never made a call at 100 number. When she filed her complaint dated 23.08.2006, she was residing in the house of Gole market. Prior to 23.08.2006 for one year, she alongwith her husband Sanjay only lived in the house of Gole market. She had not taken any of her stridhan articles in the house of Gole market. Upon FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 6 of 36 being shown document mark A and mark B (documents pertaining to the settlement after the mediation at CAW cell) were denied by the witness. She further admitted that when she filed her complaint Ex.PW1/B dated 09.08.2007, she was residing at the house of Patel Nagar. She did not remember from where she had received the scooter given in marriage. Apart from scooter, she had not received any of her stridhan articles. Police officials had not taken her signatures on any document regarding stridhan articles received by her. She denied that the accused persons had not demanded any dowry from her. She further deposed that when she filed her present complaint, she was residing at her parental home of Kalkaji for a period of 6 7 months. PW1 admitted that when they shifted from the house of Gole market to Patel Nagar, the household goods were shifted in a truck which consisted of utensils, table, chairs, gas etc. She denied that she was having a possession of stridhan articles.
PW2 Sh. Mahender Singh (father of the complainant) deposed that his daughter Sanjana got married with accused Sanjay on 04.12.1998 at Giri Nagar Kalkaji. In her marriage he had gifted her furniture, jewellery articles, fridge, bed and other household articles. After marriage his daughter went to her matrimonial house at Sarai Kale Khan. When his daughter Sanjana used to come at his house she used to tell him that her mother in law and husband used to harass her for demand of dowry. She also told him that her husband used to say that as your brother deals in sale and purchase of old cars so he must have give them a four wheeler car. He persuaded her daughter to remain calm and stay in the matrimonial house despite all odds. Then his FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 7 of 36 daughter gave birth to a son. His daughter also used to tell him that her mother in law did not let her meet with her son. On one occasion when birthday of son of his daughter was celebrated, he alongwith his other family members visited the matrimonial house of his daughter. There all the in laws of his daughter including her husband and mother in law misbehaved with them and said that they had not given them sufficient dowry. Later on his daughter and her husband started living separately. One day in the year 2007 her husband left her alone and his daughter came to his house and since then his daughter and her son are living with him. His daughter filed a complaint and FIR in this case was registered.
During crossexamination on behalf of accused PW2 deposed that for the first time after 10 days of marriage, his daughter told him that her husband and mother in law were harassing her for demand of dowry but till several years they had not lodged any police complaint against the husband and in laws of his daughter. On the first birthday of son of his daughter they went at the matrimonial house of his daughter and there husband and mother in law misbehaved with them and said that had not given them sufficient dowry. Police had recorded his statement in the present FIR. PW3 SI S.S Sandhu (IO) deposed that on 09.07.2008, he was posted as SI at PS Kalkaji. On that day the investigation of the present case was marked to him. During investigation, he recorded the statement of witnesses. After completion of investigation, he prepared charge sheet and the same was filed in the court as per rules.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 8 of 36 During cross examination on behalf of accused PW3 deposed that he had recorded the statement of the complainant, her neighbours at her parental house and the landlord of the complainant. He had recorded the statement of complainant at her parental house. He had not made any recovery of any stridhan from the possession of any of the accused in this case.
PW4 Smt. Bimla (mother of complainant) deposed that she was illiterate but she could sign. Her daughter Sanjana was married with accused Sanjay on 04.12.1998 according to Hindu rites and ceremonies. Sufficient dowry articles and stridhan was given in the marriage, beyond their capacity. On the next day of her marriage, she went to her matrimonial house at Connaught Place, Delhi. After one year of marriage her daughter told her that her mother in law and jeth were demanding money as Rs.3 lacs or bring a car. She did not remember the make of car which they were demanding. After two years of her marriage, she gave birth to a son. Mother in law of her daughter, her jeth and both sisters in law did not allow her to meet her son. She came to know this fact through her daughter. Her son in law used to take heavy liquor. He used to smoke and used to hand over his cigarette to her daughter forcefully and then used to take her nude photos. She came to know these facts from her daughter and she herself produced her pictures. Photocopy of the nude photographs were on record and were mark P1 and P
2. Husband of her daughter used to give beatings to her thereafter and also used to give her liquor forcefully for drink but she did not want to take the liquor. This fact came to her knowledge through her daughter. Thereafter her FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 9 of 36 husband used to keep her out of his house, whole night. Complainant's mother in law and her both sisters in law used to pull her hair and used to hit her head against the walls. Complainant used to come to her home and thereafter they used to get her treated. On their demand her husband had given Rs.20,000/ several times to complainant's motherinlaw. Complainant's husband used to keep her hungry and he did not give her food. Complainant's husband after 4 5 years of marriage dropped her at her house. All the stridhan and dowry articles were not given by them. Photographs of marriage were P3 to P6.
During crossexamination, PW4 deposed that she did not remember the exact address of her house where she along with her family members were residing at the time of marriage of her daughter Sanjana. Her daughter Sanjana did not remarriage even after divorce from accused Sanjay and she was residing with them. She did not know any person named Birju, S/o Kishori Lal. She did not remember when her daughter has filed the present complaint before CAW cell. She did not remember as to how many months/years after her marriage her daughter filed the first complaint against her husband and inlaws. After one year of marriage, her daughter started to inform regarding harassment made by her husband and inlaws. After one year of the marriage complainant showed her nude photographs which were clicked by the accused Sanjay. It was wrong to suggest that photographs marked P1 and P2 were not nude photographs or that complainant Sanjana was appearing smoking and consuming liquor in those photographs. She did not know the address or the area of the matrimonial home of her daughter where she had started living with accused Sanjay after her marriage. She did FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 10 of 36 not remember the exact month and year when her daughter finally left her matrimonial home and started to reside with them. She did not remember from how many years her daughter has been residing with them. She was not having any kind of medical document to show that her daughter was got treated medically by her when she was beaten up by her motherinlaw and sistersinlaw. She did not remember as to how many times Rs.20000/ were given by her husband to the motherinlaw of her daughter. She voluntarily stated that it was given several times but she did not remember the exact dates, months and the years. Witness denied all suggestions put to her. PW5 Sh. Sohan Lal (landlord of the accused and complainant Sanjana) deposed that she was residing at her address along with her family members. In the year 2007, accused Sanjay along with his family members including his wife and son as a tenant only for two months in her aforesaid house. During the aforesaid period, accused Sanjay remained well with her wife and no incident occurred in those two months. Police did not inquire her about the incident.
Thereafter, witness was crossexamined by Ld. APP for the state as she was resiling from her earlier statement and stated that it was correct that accused Sanjay along with his family members was residing as tenant from 03.03.2007 to 26.05.2007. It was wrong to suggest that during the aforesaid period accused Sanjay used to come home at late night in a drunken condition and he used to abuse and beat her wife and some times he came with some other persons who were also in drunken condition and they used to consume liquor and shouting inside the room and after seeing his such FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 11 of 36 behavior, he directed the accused to vacant his house. Witness was confronted with statement u/s 161 CrPC wherein it was so recorded. It was correct that on 26.05.2004 accused Sanjay told him that there was Jagran program of Chanchal artist in parental house of his wife and both of them left for parental house of complainant and at that time complainant did not wear any jewelry and did not carry any other articles and on next day that is on 27.05.2007 accused Sanjay came back without his wife with his friend who used to consume liquor with him and he requested to accused to pay the electricity bill amounting to Rs.700/ which was paid to him and the accused vacated the house after loading his entire articles in tempo. It was correct that accused was running a shop of jeans in Connaught Place.
During crossexamination PW5 deposed that he used to visit the rented portion given by him to the accused during his stay. He did not see the accused consuming liquor in the aforesaid portion. However, accused Sanjay used to return back after consuming liquor in the evening.
PW6 Sh. Darshan Singh (brother of the complainant) deposed that from the year 1994 to 2004, he alongwith his family members including his parents, brothers and sisters were residing at H. No. 94, Subhash Khand, Giri Nagar, Kalkaji, New Delhi. On 04.12.1998, his sister/complainant Sanjana got married with accused Sanjay. In the marriage of his sister, his parents had given one Chetak Scooter, furniture, household articles, jewelery items and cash of Rs.21,000/ on the demand of parents of accused Sanjay. After marriage, his sister went to her matrimonial house. After four months of her marriage, his sister came back to her parental house and told him and FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 12 of 36 his parents that accused Sanjay, his mother Bimla and his brother Rajpal used to harass her for demand of dowry that is Indica car or cash of Rs.3 Lacs and they used to beat her for not fulfilling the aforesaid demand. Accused Sanjay used to come at his house in drunken condition and used to take Rs.10,000/ and Rs.20,000/ for four to five times from his parents for purchasing clothes i.e. jeans for his jeans shop situated at Mohan Singh Palace, Connaught Place. They tried to settle the issue between his sister and her in laws including her husband and several times, he left his sister at her matrimonial home and she used to take back her parental house by her husband and during that period she left her parental house without her child. During the subsistence of marriage of his sister, accused Sanjay had taken a rented house at Patel Nagar and reside with his sister and her son for around two or three months. During that period accused Sanjay used to consume liquor and he used to beat his sister for bringing money from her parental house. During that period, he visited at aforesaid rented house twice or thrice to make the accused Sanjay understand and pacify the matter between both of them but behavior of accused was not changed and on one day there was a jagran program in his locality and accused Sanjay left his sister with her two years old son at her parental house and from that day he had not taken her back and from that day his sister alongwith her child was residing with them. All stridhan articles belonging to his sister was remained in possession of accused Sanjay and his mother.
During crossexamination PW6 deposed that his sister Sanjana was residing at Jaitpur, Delhi since she had remarried and she was not residing FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 13 of 36 with them. It was correct that his sister had got remarried to one Sh. Birju s/o Sh. Kishori Lal. He could not tell the date of her second marriage, however, she got remarried about two years ago. His sister got remarried after having their consent. He could not tell exact date, month and year as to when accused Sanjay in drunken condition used to take Rs.10,000/ and Rs.20,000/ from his parents for purchasing cloths for his jeans shop. In the year 2007 or 2008, accused Sanjay had taken a rented house at Patel Nagar. He had never visited the said rented house at Patel Nagar nor had ever deposed about the same. Witness denied all suggestions put to him.
PW7 Ms. Roshni Sanghwan (neighbourer of complainant)deposed that she was neighbour of Mahender Singh in the year 1998. Mahender Singh along with his family members was residing at H.No. 94, Subhash Khand, Giri Nagar, Kalkaji, New Delhi. On 04.12.1998, complainant got married with accused Sanjay. In the marriage of complainant, her parents had given one Chetak Scooter, furniture, household articles, jewelery items and clothes more than their financial capacity. Whenever complainant came to her parental house, she used to meet with her and she used to tell her that she has been harassed by her husband, nanad and motherinlaw for demand of money and car and her husband used to drink liquor and abuse her and she had been beaten by her husband. In the year of 2007, one day accused Sanjay left complainant with her son and from that day she had not been taken back by her husband and her inlaws. She had seen accused Bimla when she used to come at parental house of complainant.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 14 of 36 During crossexamination PW7 deposed that Mahender Singh was residing at other address in Vishwakarma Colony, Delhi. Mahender Singh had left the house No. 94, Subhash Khand, Giri Nagar, Kalkaji, Delhi more than four years ago. After 2 3 years of the marriage, complainant told her about the demand of money and car by her husband and in laws. She did not remember the exact month and year when complainant informed her about her harassment by her husband and her inlaws for the first time. Witness denied all suggestions put to her.
PW8 Sh. Chandan (brother of complainant) deposed that he had a private work. The complainant got married to the accused in the year 2007. In the marriage of his sister, he was having private work. The accused after marriage did not keep his sister well and used to harass her. The sisters of the accused used to gave beating to the complainant and were unhappy with the articles given in marriage and used to taunt her for bringing less dowry. Accused persons used to misbehave with the complainant on the very first day of the marriage and during her stay in the matrimonial house, she was treated with cruelty by the accused persons. The marriage was performed at Kalkaji in a Shiv Mandir. In the marriage, they had given all the household articles to her sister and had also given a scooter. The complainant was also gifted jewellery articles including gold necklace and despite the same, the family of accused were unhappy. The accused persons never kept his sister happy. On one occasion, the accused after consuming liquor had even made his sister fell from the scooter due to which she suffered injuries. The scooter given in marriage was seized vide memo Ex.PW1/D. Apart from the FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 15 of 36 aforesaid articles, none of the dowry articles were returned back to his sister. All the dowry articles were still in the custody of the accused persons. IO had recorded his statement.
During crossexamination PW8 deposed that after six months of the marriage of his sister, he came to know from his sister for the first time when she came to parental house, that she had been harassed by her husband and in laws. At that time, his sister did not tell him regarding the reasons of her harassment by her husband and inlaws. Presently, his sister was residing at her parental house at Vishwakarma Colony, Pul Prahladpur Delhi. He did not know any person named Birju S/o Sh. Kishori Lal R/o 284/15 Village Sarita Vihar, Delhi76. Witness denied all suggestions put to him.
PW9 SI Harish Kumar (IO) deposed that on 29.11.2007, he was posted at PS Kalkaji and the investigation of the present matter was handed over to him. On that day, when he was posted at PP Govindpuri, he received information regarding the fact that accused Sanjay had surrendered before the court. Upon receiving the said information, they reached the court and upon the permission of the court formally arrested the accused in the court and accused was remanded to JC. The accused was arrested vide memo Ex.PW 9/A and his personal search was conducted vide Ex.PW9/B. During crossexamination PW9 deposed that Ex.PW9/A and Ex.PW9/B were prepared in the court. The accused was sent to JC on the same day after seeking orders from the court.
PW10 ASI Jaipal Singh (IO) deposed that on 30.11.2007, he was posted at PS Kalkaji as HC. On that day, he joined investigation of the FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 16 of 36 present matter with IO SI Upender Singh. On that day, accused Sanjay was on police custody remand and therefore, IO recorded the disclosure statement of the accused vide memo Ex.PW10/A. At that time Const. Shambhu was present with them and complainant alongwith her brother Chandan were also present who accompanied them and reached at Motia Khan, House no. T28 and upon the instance of accused Sanjay, from one room on the terrace of the aforesaid house, accused got recovered two sarees, one aluminum bucket which was the articles of dowry gifted in marriage from the side of complainant. Further the aforesaid recovered articles were identified by the complainant. Thereafter, accused also got recovered one scooter which was parked in the lane next to the house. The aforesaid articles were seized by the IO vide memo Ex.PW1/D. Thereafter, they alongwith the accused went to house No.17A, DDA Flats, Sarai Kale Khan to recover the dowry articles. However, no articles were recovered from the said house. Thereafter IO recorded his statement.
During crossexamination PW10 deposed that it was wrong to suggest that the documents mentioned were forged and fabricated and the same were prepared on 29.11.2007. It was wrong to suggest that the signatures of the accused were forcibly taken on the aforesaid document on 29.11.2007. It was wrong to suggest that no articles were recovered from the possession of the accused or at his instance.
PW11 SI Usha Bhati (IO of the CAW cell) deposed that on 12.07.2007, she was posted as ASI in CAW Cell and working as an inquiry officer. On that day, she had received a complaint Ex.PW1/C from the FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 17 of 36 concerned ACP/CAW and she had also received another complaint ExPW1/B. She had conducted conciliation proceedings between the parties and recorded statement of complainant, accused and their relatives for several times. During the proceeding, she tried best for settlement between the parties but no settlement arrived between the parties. Thereafter, she prepared final report with recommendation to register present FIR which was Ex.PW 11/A. During the aforesaid proceeding, she had recorded statement of witnesses and collected the statement of parties which was Ex.PW11/B. Complainant had given list of dowry articles Ex.PW1/E and photographs of her marriage Mark P3 to P6.
During crossexamination PW11 deposed that during the proceedings before CAW Cell, she inquired from the witnesses and recorded their statement. It was correct that Roshni Sangwan had not stated before her anything regarding the alleged demand of money and car by the accused persons from complainant. It was correct that at once, both parties were arrived at settlement during the aforesaid proceeding and both were agreed to reside together. It was agreed that accused Sanjay shall keep the complainant separately in a rented accommodation. It was correct that on follow up date after the said settlement, complainant came to her and informed her that she had started residing separately in a separate rented accommodation with accused Sanjay. On the followup date, the complainant had never informed her that she had not received her dowry articles from the house of her father and mother in law. She voluntarily stated that she did not make inquiry from the complainant regarding her stridhan articles.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 18 of 36 PW12 ASI Dharampal (Duty Officer ) deposed that on 23.08.2007 upon receiving complaint Ex.PW1/A, he endorsed the same vide Ex.PW 12/A and the FIR was registered vide Ex.PW12/B. Opportunity to crossexamine the witness was granted but no question was asked by the accused.
PW13 ASI Shambhu Tiwari deposed that on 30.11.2007, he was posted at PS Kalkaji. On that day, he joined the investigation alongwith IO HC Jai Pal Singh and went to T28, Motia Khan, residence of accused Sanjay along with complainant, her brother Chandan and HC Jai Pal. Accused Sanjay got recovered two sarees, one bucket make of peetal, one Bajaj Chetak Scooter from his house which was seized by SI Upender Singh, the Chowki incharge Govindpuri, vide memo Ex.PW1/D. Thereafter, accused Sanjay took them at his another house situated at 17 E, Sarai Kale Khan, from where nothing was got recovered. He had recorded the statement of accused u/s 161 CrPC. Thereafter, case property were released to the complainant vide superdarinama dated 16.01.2009.
During crossexamination PW13 deposed that he did not have personal knowledge as to when and by whom accused Sanjay was arrested in the present case. Witness denied all suggestions put to him.
PW14 Insp. Upender Singh (IO) deposed that on 30.11.2007, he was posted at PS Kalkaji. On that day, he joined the investigation in the present case and interrogated accused Sanjay with the permission of Court when he was produced before the Court. The disclosure statement of accused Sanjay was Ex.PW10/A and thereafter on the basis of the aforesaid disclosure FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 19 of 36 statement, he applied for police custody for one day against accused Sanjay which was granted. Thereafter, accused Sanjay took him to H.No. E28, Motiyan Khan, Deshraj, Aashif road, Delhi and got recovered two sarees, one bucket make of Bronze and one scooter bearing registration No.DL3SQ 3946 make Bajaj Chetak from there which were seized vide memo Ex.PW1/D. At the time of recovery, complainant, her brother and two more police officials also accompanied him. The aforesaid case property was identified by complainant and she stated that the same belongs to her stridhan articles. He recorded statement u/s 161 CrPC of recovery witnesses namely Sanjana (complainant), her brother, Const. Shambhu Tiwari and HC Jai Pal. Further investigation of present case was marked to another IO due to which case file was handed over to MHC (M). Case property was released to the complainant vide superdarinama dated 16.01.2009.
During crossexamination PW14 deposed that he did not arrest accused Sanjay. He did not remember where and when disclosure statement of accused Sanjay was recorded. He applied for one day police custody remand of the accused on the basis of disclosure statement of accused. On 30.11.2007, he joined the investigation and went to the court and obtained one day police remand as further investigation was marked to him from the concerned SHO. On the next day, the accused was produced before the Court and he was remanded to judicial custody.
PW15 Sh. Suraj Bhan (from Sugandh Jewellers) deposed that he was working as a Salesman at Sugandh Gems & Jewellers, 2/7, New Market, Sadar Bazar, Delhi Cantt. Delhi110010 for past 18 years. The aforesaid shop FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 20 of 36 was initially working in the name and style of "Sugandh Jewellers" at 47/11, Sadar Bazar, Delhi. The photocopy of the estimate of jewellery dated 22.03.1994 in the name of one Sh. Mahender Singh, estimate of bill dated 13.02.1992 in the name of one Sh. Dharambir, estimate of bill dated 22.03.1994 in the name of one Sh. Mahender Singh and estimate of bill dated 13.02.1993 and one estimate dated 19.08.1993 were not addressed to any customer. The aforesaid estimates were mark A1 to E1. He had also brought the authority letter for the same which was Ex.PW15/A. He did not know the customer's name in the aforesaid rough estimate bills.
During crossexamination PW15 deposed that the name of the owner of the shop was Sh. Naresh Sugandh. He joined the aforesaid shop as salesman in the year 2000 and the aforesaid estimates were prepared prior to his joining the aforesaid shop. It was correct that document mark A1 to E1 does not bear the signatures of the owner Sh. Naresh Sugandh and the same does not bear the stamps of the shop. It was correct that the address of the customer was also not mentioned on the aforesaid rough estimates. He could not say if the aforesaid document mark A1 to E1 were pertaining to the present matter. It was correct that he had not produced the originals of the same. He voluntarily stated that they do not have record for more than 10 years in their shop and they do not maintain record for a period more than 10 years.
5. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 21 of 36 accused. Accused denied the allegations of prosecution as false and pleaded false implication.
6. Accused examined one witness in his defence.
DW1 Rajpal (younger brother of the accused) deposed that accused Sanjay was his younger brother and accused Bimla was his mother. First marriage of accused Sanjay had taken place on 04.12.1998 with complainant Sanjana. After marriage complainant started residing with them in her matrimonial house situated at C17, Raja Bazar DIZ area, New Delhi which was government accommodation alloted to his father. Complainant resided with them till the year 2006 and during that time, her behavior was not good and she used to consume liquor and smoke cigarette. Sanjana even did not stop consuming liquor and cigarette after getting pregnant despite the repeated request of the whole family. On 23.08.2006 complainant Sanjana lodged a false complaint in CAW cell against them and on 09.10.2006 a compromise took place in CAW cell proceedings in which it was agreed that accused Sanjay shall keep complainant Sanjana and her minor son in a separate rented accommodation. On 09.10.2006, the complainant, accused Sanjay and their minor son left the house of his father. Complainant Sanjana took away all her dowry articles including gold jewellary from her parental house on 09.10.2006. On 09.10.2006 a written understanding was made which was signed by various persons including complainant Sanjana. Thereafter, witness was shown a document mark A which he admitted to be executed on 09.10.2006 while complainant Sanjana along with accused FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 22 of 36 Sanjay and their minor son, was leaving the parental house on 09.10.2006 vide document mark A. Complainant signed the document mark A in his presence. On 06.01.2007 a family settlement was made and executed between their family members including complainant Sanjana. Thereafter, document mark B was shown to the witness which he admitted to be executed on 06.01.2007 and the complainant had signed the said document mark B at point A. During crossexamination DW1 deposed that he was present at CAW cell on 09.10.2006 where a compromise between complainant and accused was taken place to reside in a separate rented accommodation. No document was prepared in a CAW cell in pursuance of the aforesaid compromise in his presence. He could not say whether it was stated by the complainant that she would take all her stridhan articles from her matrimonial house and would reside with her husband/accused Sanjay in a separate rented accommodation to which the accused agreed. The document mark A was executed in their house after returning from the CAW cell. The stamp paper containing family settlement mark B was brought by his father Late Sh. Jagdish Prasad and the content therein also got typed by him. The document mark B was also executed in their house and during that period complainant was residing with her husband at rented accommodation at Panchkuyian Road, New Delhi. He could not say as to who had called the complainant and accused Sanjay in their house from her rented accommodation for executing the document mark B perhaps his father would have called them. He had paid Rs.50000/ to accused Sanjay in presence of complainant Sanjana. No FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 23 of 36 separate receipt of the aforesaid payment was prepared. The document mark B was executed in their house and not before any competent authority. Witness denied all suggestions put to him.
7. It has been argued by Ld. APP for the State that in the present matter complainant has levelled specific allegations against the accused persons in her complaint dated 23.08.2006 Ex.PW1/A and has reiterated the same in her testimony before the court. It is also argued that the complainant has corroborated herself with the complaint Ex.PW1/A and the version of the complainant has been supported by the other witnesses. It is also argued that all prosecution witnesses have stated that the complainant have been treated with cruelty by accused Sanjay and the same amounts to the offence u/s 498A IPC. He has further argued that accused Bimla is liable to be convicted for the offence u/s 406 IPC since it is accused Bimla who had misappropriated the stridhan articles of the complainant when she handed over the same to her which is apparent from the list of dowry articles Ex.PW1/E. It is also argued that the complainant have been treated with utmost cruelty and therefore, both accused are liable to be convicted.
8. On the other hand, it has been argued by Ld. Counsel for accused persons that the prosecution has miserably failed to prove the guilt of accused persons beyond reasonable doubt and the complaint of the complainant is devoid of merit. It is also argued that the complaint filed by the complainant is filed after eight years of the marriage and prior to that the complainant had FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 24 of 36 never filed any complaint against the accused persons to any authority. It is argued that the complainant filed her complaint for the first time only on 30.08.2006 and never prior thereto which itself shows that the complainant had never suffered any cruelty upon the hands of the accused persons. It is also argued that on behalf of the accused that the prosecution has miserably failed to prove its allegations of cruelty of any nature upon the complainant by the accused. As per complaint Ex.PW1/A dated 23.08.2006 parties got married on 04.12.1998 in Delhi. The allegations in the aforesaid complaint have not been reiterated in the testimony of complainant as PW1. It has also come in evidence in the testimony of PW1 that she was in constant touch with her family after her marriage. However, there is no corroboration in the testimony of PW1 as compare to other witnesses. Further, the complainant had filed her second complaint on 10.07.2007 Ex.PW1/C and another complaint Ex.PW1/B dated 09.08.2007 to the CAW cell and all the three complaints are having different facts. It is also argued that after filing of the complaint Ex.PW1/A, the matter was settled between both the parties before the CAW cell and both the parties after settling the matter, started residing separately in a rented accommodation. However, subsequently the complainant again could not live with accused Sanjay and therefore, filed her another complaint to the CAW cell on 10.07.2007 Ex.PW1/C for reopening her complaint wherein she had admitted that she was residing separately and that accused Sanjay had started ill treating her upon the instigation of his family members. It is argued on behalf of accused persons that admittedly when the complainant was residing in a separate house at Gole market and FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 25 of 36 subsequently at Patel Nagar, with the accused, there was no occasion that accused would have been instigated by his family members.
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
Observations qua offence u/s 498A IPC :
(i) The case of the prosecution rests on the assertion that during almost eight years of the marriage between the parties, complainant was subjected to physical and mental cruelty on account of failure by her to meet unlawful demands of dowry raised by the accused. It is admitted that the marriage between the parties were solemnized on 04.12.1998 and thereafter, she remained in her matrimonial house only till beginning of the year 2006 i.e. she remained in her matrimonial home only for a period of eight years.
Accused has denied these allegations and raised manifold defences.
(ii) It has been stated by the complainant in her complaint Ex. PW1/A that after her marriage with the accused, the family of the accused was unhappy with the dowry given in the marriage and she was taunted for bringing less dowry. Further, her mother in law used to give her severe beatings because of which she had suffered injury on her head and also was ill treated by her two sisterin laws who were already married. On the occasion of Raksha Bandhan, the complainant was thrown out of her matrimonial house and accused FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 26 of 36 persons had demanded an Indica Car or Rs. 3 lacs from the complainant and also threatened that they would not keep the complainant in the matrimonial home if she would not fulfill the aforesaid demands. However, the aforesaid facts are not reiterated by her as PW1. Further, the complainant has deposed that she was ill treated by the accused persons and her mother in law did not let her take care of the minor child. Further, accused Sanjay being the husband of the complainant did not allow her to talk to her parents and taunted her for only bringing a scooter in dowry and started demanding a four wheeler from her. Further, her stridhan articles were lying at the matrimonial home and she had never passed or demanded for the same from her in laws. The complainant did not support her own complaint Ex. PW1/A and therefore, she was cross examined by Ld. APP for the State and during the same, complainant further deposed that she had not entrusted her dowry articles to her in laws and the same were used commonly by all the members of the family. Complainant admitted during her cross examination on behalf of the accused that she had not made any complaint to the police regarding any demand of dowry or harassment against the accused persons from the date of her marriage till the year 2006. Further, she had never got herself medically examined during any of the incidence of beating by the accused persons. Further, the complainant deposed during her cross examination that demand of car and Rs. 3 lacs was raised by the accused persons within two three years of her marriage that is when in her complaint Ex. PW1/A, the witness does not state so. Further, the complainant admitted during her cross examination that she never even made a call to 100 number at the time of FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 27 of 36 alleged beatings by her husband and also admitted that when she shifted her rented accommodation from Gole Market she had carried all her articles in a truck. Further, PW2 being the father of the complainant has not corroborated the complainant in material aspects and as deposed that the complainant had narrated to him regarding the harassment by the accused persons soon after the marriage, that is within 10 days of her marriage and the same is not stated by the complainant and complainant had stated that she was not allowed to speak to her parents and she had not narrated any of the said facts to her family members. The aforesaid fact is again contradicted by PW4 when she says that the same was disclosed to her after one year of her marriage and also by PW6 and PW8 being the brothers of the complainant. PW4 the mother of the complainant has stated that accused Sanjay had demanded Rs. 20,000/ on several occasions and that accused used to treat the complainant with utmost cruelty by not offering her food and keeping her hungry that is when the aforesaid fact is not corroborated by PW1, PW2, PW6 and PW8. Further, PW4 had stated during her cross examination that they had paid an amount of Rs.20,000/ to accused Sanjay on several occasions, but she did not remember as to how many times the said amount was paid and did not remember the date, month or year of such payment made to accused Sanjay and therefore, there is great deviation as per the aforesaid amount is concerned. Further the complainant did not place on record any complaint of the incident of Raksha Bandhan when she was given severe beatings and thrown out of the matrimonial home and therefore, the allegations pertaining to the aforesaid incident are false and fabricated. She has further admitted of FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 28 of 36 not making any complaint before any authority apart from her complaint before CAW cell. Credibility of such an allegation is also dubious for the reason that there is not even any averment made by the complainant against the accused persons of having committed cruelty for demand of dowry which could lead the complainant to commit suicide.
(iii) It has been asserted by the complainant in Ex. PW1/A that "after few days of her marriage" accused and his family members started demanding a car and Rs. 3 lacs. To the contrary as PW1, complainant vaguely stated that accused demanded aforesaid articles from the complainant but there is no specification of the amount of cash demanded by the accused or his family members after few days of marriage or even the amount paid by the complainant to the accused in fulfillment of any of his demand. The allegation of demand are unspecified and also obscure. As such, the allegations of demand of dowry by the accused lack credence.
(iv) Further as per complaint Ex.PW1/A there is no specification of the manner in which the complainant was mentally or physically harassed by the accused or his family. The complaint as well as testimony of PW1 is silent on the specific date, month, year, event or occasion of any beating given to the complainant by the accused or the manner of such beating i.e. slapping, kicking, keeping her without food for days etc. Admittedly, the complainant did not lodge any complaint regarding any such alleged beating or harassment prior to the present complainant and are, therefore ambiguous and vague.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 29 of 36
(v) It has also been alleged by PW1 that the behavior of accused was callous and indifferent to her however it has not been elaborately clarified as to how did PW1 infer the behavior of accused to be callous or found him to be indifferent. There is neither any averment nor any piece of evidence in the form of a medical report or otherwise, to draw a logical inference of such a threat to be of a nature likely to have driven the complainant to commit suicide or caused grave injury or danger to her life limp or health. In absence of any assertion to this effect, it cannot be assumed that such a threat or alleged callous or indifferent behavior of the accused was with a view to coercing her to meet any demand for property or valuable security or on account of her failure to meet such demand. Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : ".....Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
Explanation (b) to Section 498A provides that cruelty means 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.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 30 of 36 Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the Section...."
(vi) Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, wherein Hon'ble Bombay High Court observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands. Hon'ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section498A IPC.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 31 of 36
(vii) It has also come in evidence, during cross examination of PW1, that the complainant was in constant touch with her family members. The family members of the complainant allegedly took the complainant from her matrimonial home when she was given beatings by the accused and allegedly demanded an Indica Car and Rs. 3 lacs, however, PW4 being the mother of the complainant had stated that her daughter was dropped by accused Sanjay in the parental home and since then her daughter has been residing in the parental home and therefore, no corroboration in regard to the aforesaid facts. None of the witnesses examined by the prosecution have corroborated the story of the complainant and out of six public witnessed examined on behalf of the prosecution, PW7 being the neighbourer of the complainant and PW4, PW6 and PW8 are only hearsay and interested witnesses. In such an eventuality, veracity of allegations of cruelty appear to be in doubt. Further, Ex. PW1/A and list of dowry articles Ex.PW1/D and the photographs of the marriage or the marriage card does not reveal anything of the sort of marriage to have been ostentatiously displayed.
(viii) Even the allegations that the accused used to gave beatings to the complainant have not been corroborated by any reliable piece of evidence. There are discrepant statements regarding the allegations levelled by the complainant against the accused. Therefore, the allegations levelled by the complainant are discrepant and devoid of specific details and as such does not inspire confidence of the court.
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 32 of 36
(ix) Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted.
(x) Further, during cross examination PW4 (mother of the complainant) has stated that they had given Rs.20,000/ to the accused Sanjay on several occasions, in view of his demand however, has not proved the same by any cogent evidence. Further, again, this averment is not corroborated by any independent witness such as elder brother of complainant or any documentary proof of such handing over of cash to the accused or even the exact date, month, year or occasion of such handing over of money. As such there is no convincing evidence on record to believe the allegations of the prosecution regarding commission of offence u/s 498A IPC. Accused Sanjay is accordingly acquitted of offence U/s 498A IPC.
Observation qua offence U/s 406 IPC for accused Bimla
20. As regards allegations pertaining to criminal breach of trust committed by accused Bimla, it has been alleged in the list dowry articles, that the complainant also received stridhan from her parents. However, there is no specification of the exact articles gifted to her by her parents or any receipt or bill of the gold articles alleged to have been taken away by the accused Bimla or her family. Even the list of dowry articles allegedly in possession of the FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 33 of 36 accused Bimla have already been handed over to the complainant at the time of investigation.
21. This view is supported by the decision Pehlad Kumar & Ors. Vs. State of Haryana II (1992) DMC 259, wherein it was held that a sweeping statement was made by the complainant that her stridhan was entrusted to the family of the husband. Holding that there was no specific allegation of entrustment against some of the family members, the Punjab & Haryana High Court quashed the complaint and the consequential proceedings against the said family members and observed as under:
1. ".....From these we find that while there are specific allegations about the entrustment of certain articles to the husbandPehlad and mother inlaw, the allegations with regard to the entrustment to the other petitioners are general, vague and not specific. Though certain articles are enumerated, a sweeping statement has been made by the complainant that these articles have been entrusted to the other relations of her husband, namely fatherinlaw, her brother - inlaw and wife of one of the brothersinlaw. The complainant has not specifically mentioned as to which item of dowry was entrusted to which of these other petitioners. Therefore, on such vague and general allegations it cannot be stated that the complainant has made out a prima facie case against FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 34 of 36 any of the other petitioners than her husband and motherinlaw under Section 406, IPC....."
Ms. Anu Gill Vs. State & Anr. 92 (2001) DLT 179, also lends support to the same view, wherein court observing that there was no allegation of entrustment in the complaint, quashed the FIR against the married sister inlaw (nanad) of the complainant under section 498A and 406 IPC and opined: " .....To constitute the offence under Section 406 IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of stridhan were even entrusted to her. In the absence of the allegation of entrustment, question of misappropriation or conversion to her use does not arise. Thus the most vital ingredient to constitute the offence U/s 406 IPC is missing. In view of the above, no case U/s 406 ICP is spelt out against the petitioner...."
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 35 of 36
22. As such the allegations of criminal breach of trust u/s. 406 IPC are not proved against the accused Bimla beyond reasonable doubt.
23. In view of the above discussion, it can be safely concluded that prosecution has failed to prove offence U/s 498A/406/34 IPC against accused persons beyond reasonable doubt.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
On 07.12.2018 Metropolitan Magistrate,
(Mahila Court02), SouthEast,
Saket, New Delhi.
Digitally signed
by SHEETAL
CHAUDHARY
SHEETAL PRADHAN
CHAUDHARY
Date:
PRADHAN 2018.12.10
15:50:33
+0530
FIR No.820/2007; PS Kalkaji ; State Vs. Sanjay and Anr. 36 of 36