Delhi District Court
State vs . Ghanshyam & Others on 30 October, 2013
FIR No.577/02
PS Dabri
State Vs. Ghanshyam & Others
U/s 498A/406/34 IPC
IN THE COURT OF MS. PRIYA MAHENDRA, METROPOLITAN
MAGISTRATE
MAHILA COURT02 (SOUTH WEST), DWARKA COURTS, NEW
DELHI
FIR NO:577/02
PS: DABRI
U/s: 498A/406/34 IPC
State Vs. Ghanshyam & Others
JUDGMENT
Date of institution : 28.05.2004
Name of the complainant : Smt. Anita Devi
Name & address of the accused : 1. Ghanshyam
S/o Late Shri Prabhu Dayal
2. Smt. Santosh
W/o Late Shri Ram Gopal
3. Smt. Har Dai
W/o Late Shri Parbhu Dayal
4. Prem Pal
S/o Late Shri Parbhu Dayal
30.10.2013 Page No. 1/18
FIR No.577/02
PS Dabri
State Vs. Ghanshyam & Others
U/s 498A/406/34 IPC
All R/o Shiv Nagar Colony, Munda
Pandey, District Muradabad, UP
Offence Complaint of : U/s 498A/406/34 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date of announcing of order : 30.10.2013
BRIEF FACTS:
1. The case of the prosecution in brief is that accused Ghanshyam (husband of the complainant), accused Santosh (jethani of complainant), accused Har Dai (mother in law of complainant) and accused Prem Pal (jeth of complainant) harassed the complainant Anita Devi to compel her to bring more dowry from her parents and also dishonestly misappropriated her istridhan and thereby they all committed an offence punishable under Section 498A/406/34 IPC.
2. Story of prosecution: The criminal law was set into motion by the complainant by filing a written complaint before CAW Cell Nanakpura in year 2003. In the complaint, she has stated that her marriage was solemnized with the accused Ghanshyam in the year 1997 and has cohabited with the accused for one year. After marriage, 30.10.2013 Page No. 2/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC she was harassed and tortured by the accused Ghanshyam (husband), Har Dai (mother in law), Santosh (jethani) and Prem Pal (jeth) for bringing Rs.50,000/ as dowry from her parents and when she could not fulfill this demand, she was thrown out of the house at the time when she was pregnant and later on, she has given birth to a girl child in her parental home and since then, she is living with her daughter in her parental home. On her demand, her istridhan articles have not been returned to her by the accused persons.
3. The Chargesheet U/s 498A/406/34 IPC was filed in the court. The accused persons were supplied the documents in compliance of Section 207 Cr. P.C. and vide order dated 19.03.2007 charges were framed U/s 498A/406/34 IPC against the accused persons to which they pleaded not guilty and claim trial.
4. In order to prove its case prosecution has examined 6 formal police witnesses and 3 public witnesses in all and the prosecution evidence was closed vide order dated 16.08.2013.
5. Brief testimony of witnesses: PW1, ASI Zile Singh, is the Duty Officer who has registered FIR No.577/02 on 24082002 on the basis of rukka received by him from SHO PS Dabri and proved the same as Ex.PW1/A. 30.10.2013 Page No. 3/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC PW2, Anita Devi, is the complainant who has stated that she was married with accused Ghanshyam about 10 years back in her native place Mehmat Pur, District Muradabad and after marriage, she was harassed and tortured by accused Ghanshyam, mother in law Hardevi, jethani Smt. Santosh, jeth Prem Pal for demand of dowry and she was given beatings for bringing Rs. 50,000/ in cash but same was beyond the capacity of her parents. Therefore she could not bring the same and she was continuously received beatings to meet the said demand, and ultimately she was sent to her parental home to bring the said amount at the time when she was pregnant with the condition that she will not be allowed to enter in the matrimonial house if she will not bring the said amount. Since then none of the accused persons came to take her back and they did not bother about her and her daughter who is now 9 years old. She has further stated that at the time of her delivery, her brother had gone to pacify the accused persons however he insulted by her mother in law and she even disowned pregnancy of the complainant on the ground that it does not belong to her son. She has further stated that accused Ghanshyam wanted to live with her jethani. She has further stated that all the dowry articles are with accused Ghanshyam and she had tried to take them back as per list but he has refused to return the same. She has further stated that her jewellary which was given to her at the time of her marriage is also with the accused persons.
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PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC In her cross examination, she has stated that she is illiterate. She replied that prior to her marriage, she used to live in her native village and when she was sent back to her parental home, she started to reside with her brother at Delhi. She replied that after her marriage, she resided for about 8 days in her matrimonial home and at that time, no demand was made from her and after her gauna ceremony which was after six months of those 8 days, she again went to her matrimonial house and she resided there for about one month and her father had visited her during that one month however she did not tell anything to her father and lastly when she was thrown out of the matrimonial home after giving merciless beatings to her, she told about her beatings to her fufa who was residing near to her matrimonial house. Her fufa left her at her parental home and after living for about 12 years. She has registered the present case against the accused after having knowledge of the case filed by accused Ghanshyam against her for getting remarried after her father has received summons of that case. She denied that none of the accused persons demanded dowry from her nor she was harassed or tortured by them. She admitted that she wanted to reside with accused Ghanshyam at Delhi now. She denied that after marriage, she wanted to reside in Delhi. She denied that she got registered the present case as she wanted to live separately with accused Ghanshyam at Delhi after her marriage. She denied that no such harassment or torture was ever given to her. 30.10.2013 Page No. 5/18 FIR No.577/02
PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC PW3, Shri Sunil Kumar is the brother of complainant who stated that his sister Anita was married with accused Ghanshyam in the year 1997 as per Hindu Rites and Customs and his parents had given sufficient dowry articles as per their capacity to the complainant. He further stated that after some days of marriage, all the accused persons started torturing and harassing his sister for want of more dowry and cash and within one year of marriage, his father went to the matrimonial home of complainant as there was demand for cash and with folded hands requested mother in law of complainant not to do so however she turtled the cot on which his father was sitting and insulted his father. His father came back to his house and narrated the entires facts. Thereafter he went to the matrimonial home of his sister where he was not entertained by the accused persons and when complainant went to prepare tea for him, her mother in law gave a kick to stove due to which all the utensils were scattered and on his asking from mother in law of complainant why she is doing so, she paid no heed to his prayer and dragged the complainant by holding her hands and asked him to take his sister back to his house. However he left her at her matrimonial home and came back to Delhi and he narrated all the facts to her parents and after this incidence, approximately after one and a half month, accused persons thrown complainant house of her matrimonial home though she was pregnant at that time. From there initially she went to her Fufa's house who left complainant to her parent's house. Thereafter elder sister of complainant visited the house of 30.10.2013 Page No. 6/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC accused persons however they refused to keep her with them and started making false allegations against complainant. They have not returned the istridhan articles and jewellary to the complainant. He has further stated that all the accused persons used to beat complainant for demand of dowry. After sometime, when complainant gave birth to a female child, he along with his elder sister and complainant and child went to the house of accused persons however they refused to keep them and thrown them out of the house.
In his cross examination, this witness has stated that he came to know about the demand of dowry of Rs.1 lac through his parents and complainant. He further stated that some of the dowry articles were purchased from Delhi and remaining from Moradabad, UP and those which were purchased from Delhi were purchased by him only. He purchased one almira and one television etc.. He further stated that he does not remember if cash memos of such articles are lying with him. He further stated that complainant stayed at the house of his fufa only for one night after she was thrown of her matrimonial home and next morning his fufa dropped her in the village of his parents and he came to know about this fact after about 15 days probably through phone or someone from village informed him about the same. He further stated that he was informed by his parents about the beatings given to the complainant by her in laws after about six months from her marriage. He denied that no demand of dowry was ever made by the accused persons. He further denied that no dowry 30.10.2013 Page No. 7/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC was given in the marriage. He further denied that no beatings were given by the accused persons to the complainant in furtherance of their demand of dowry. He denied that he never visited along with his elder sister Guddi and complainant with her daughter at the house of accused persons in order to drop complainant at her matrimonial home. He denied that he has deposed falsely.
PW4 Ct. Arjun Prasad, stated that on 11032003, he along with ASI Ram Niwas and brother of complainant Sunil Kumar went to Moradabad, UP and at instance of brother of complainant, accused Ghanshyam was arrested vide arrest memo Ex.PW4/A and his personal search was taken vide personal search memo Ex.PW4/B both bearing his signatures at point A. PW5 Smt. Guddi, is the sister of complainant who stated that complainant Anita is her younger sister who was married with accused Ghanshyam in the year 1997 as per Hindu rites and ceremonies and sufficient dowry was given beyond the limits of parents of complainant at the time of marriage. She further stated that prior to marriage of complainant, her father was suffering from Tuberculosis. She further stated that within one year of marriage of complainant, she came to know that complainant was being physically and mentally tortured by the accused persons for demand of Rs.1 Lac in cash and for more dowry articles. The said demand was told to them by complainant however her parents could not fulfill that demand. When her father had folded hands before the mother in law of complainant for not doing so, her father was insulted 30.10.2013 Page No. 8/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC by the accused persons. She further stated that in the month of March, 1999, she along with her husband went to the house of accused persons to pacify the situation, thereupon they were insulted by the accused persons by using filthy language and they had come to Delhi after leaving complainant there. After 15 days of their arrival, complainant Anita had come to her parental home after she was beaten by her in laws/ accused persons and she was thrown from her matrimonial home. She was pregnant at that time. She further stated that after registration of case, her statement was recorded by the police. She correctly identified the accused persons.
In her cross examination, she stated that Guddi is her actual name and she is illiterate. She further stated that one television, one refrigerator, double bed, sofa set were given at the time of marriage of her sister. She further stated that demand of Rs.1 Lac was made in her presence by the accused Ghanshyam at his house and at her parental home. She denied that accused Ghanshyam had never raised demand of Rs.1 Lac. She further stated that mother in law of complainant insulted her father at the occasion of marriage of sister of accused Ghanshyam which was being held at Munda Pandey, District Moradabad. She stated that complainant Anita had told her about the beatings given to her by her in laws about 15 years back however she does not remember the exact date, month and year and it was told to her at Delhi in her matrimonial home. She stated that she is aware that accused Ghanshyam had expired. She 30.10.2013 Page No. 9/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC denied that complainant wanted to reside and settle in Delhi. She denied that complainant has never been put to cruelties. She denied that no demand of dowry was ever raised by accused persons or that she had deposed falsely.
PW6 ASI Rajinder Kaur who stated that on 29082002, she was posted at CAW Cell Mayapuri and was entrusted with the case file of this case for investigation. She recorded the statement of complainant Anita on 18092002. Thereafter investigation was handed over to SI Yashpal and she had handed over the case file to Reader of Inspector CAW Cell for further proceedings.
In cross examination, this witness has stated that except recording statement of complainant, she has not investigated the matter and she has not arrested the accused persons or recovered any dowry articles. She denied that she has deposed falsely.
PW7 Inspector Yashpal Singh, who has stated that on 10102012, he was posted as Sub Inspector at CAW Cell, Vasant Vihar, New Delhi and on that day, case file of present case was marked to him for investigation and during investigation, he recorded statements of mother, brother and sister of complainant. Thereafter he was transferred to Security and he submitted the case file to the Reader to Inspector CAW Cell. 30.10.2013 Page No. 10/18 FIR No.577/02
PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC In cross examination, he has stated that he has no knowledge of the case except recording of statement of mother, brother and sister of complainant which he has recorded in CAW Cell itself.
PW8 SI Ram Niwas, who has stated that on 09012003, he was posted in CAW Cell, South West Mayapuri and on that day further investigation of this case was marked to him. He further stated that on 11032003, he arrested accused Ghanshyam, husband of complainant and Ms.Santosh, jethani of complainant vide arrest memos Ex.PW4/A and Ex.PW8/A respectively both bearing his signatures at point A. Their personal search were conducted vide personal search memos Ex.PW4/B and Ex.PW8/D respectively both bearing his signatures at point A. He has further stated that since anticipatory bail was granted to accused Hardei and Prempal, they were formally arrested vide memos Ex.PW8/B and Ex.PW8/C respectively and their personal search was conducted vide personal search memos Ex.PW8/E and Ex.PW8/F respectively, all bearing his signatures at point A. After completion of investigation, he prepared challan.
In his cross examination, he has stated that he took permission of concerned ACP prior to going to Moradabad to arrest accused persons Santosh and Ghanshyam. He denied that he has not obtained such permission. He stated that he verified the issue that there was a demand of Rs.50,000/ from accused persons and said fact has come in the statements of complainant and her brother. He stated that complainant along with her daughter is residing with her brother at 30.10.2013 Page No. 11/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC Delhi. He stated that complainant never produced any MLC/ medical record pertaining to any physical assault on her by the accused persons. He denied that he had deposed falsely.
PW9 Retd. ACP Jagpal Kaur, who stated that on 14082002, she was working as Inspector CAW Cell, Nanakpura and she had given her report wherein she had recommended for registration of case u/s 406/498A IPC against accused persons on the basis of complaint given by the complainant and proved the report as Ex.PW9/A. Ld. counsel for accused did not cross examine this witness.
6. The statement of the accused persons Santosh (Jethani) and Prem Pal (Jeth) U/s 313 Cr. P.C. was recorded in which they claimed to be innocent and stated that the evidence brought against them is false and fabricated. Accused Prem Pal has further stated that his marriage was solemnized prior to the marriage of complainant with his deceased brother Ghanshyam and he was living separately with his family and he has never interfered in the marital life of the complainant. Accused Santosh has stated that her marriage was solemnized with the elder brother of Ghanshyam namely Ram Gopal prior to the marriage of complainant with deceased brother in law Ghanshyam and she was living separately with her family and she has never interfered in the marital life of the complainant. They opted not to lead the evidence in their defence. 30.10.2013 Page No. 12/18 FIR No.577/02
PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC
7. It is stated by Ld. APP for the state that the guilt of the accused persons is proved beyond reasonable doubt. On the other hand counsel for the accused persons has pleaded for acquittal of accused persons on the ground that there are vital improvements in the testimony of the complainant. There are also material inconsistencies in the evidence of complainant and other public witnesses. The allegations made by the complainant and her father are general in nature and are not sufficient to sustain conviction.
8. I have carefully considered the rival arguments and have also perused the record carefully. At the outset, it is noted that accused Ghanshyam and accused Har Dai have already expired during the course of the trial and the proceedings against them was abated vide order dt.07122011 and 02072013 respectively.
BRIEF REASONS FOR DECISION
9. I shall,therefore, proceed to decide the guilt of accused Santosh (Jethani) and accused Prem Pal (Jeth) under Section 498A IPC.
10. The complainant has made general allegations against the accused persons Santosh and Prem Pal for harassing her in relation to the demand for 30.10.2013 Page No. 13/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC dowry, without giving any time, date, month, year, place or occasion of cruelty/ harassment.
11. Regarding the demand of dowry by the accused persons,the complainant/ PW2 has simply testified that the accused persons used to compel her to bring cash of Rs.50,000/ from her parents. Even the said piece of evidence is contradictory to the evidence of PW3 (brother of complainant) and PW5 (sister of complainant). Both PW3 and PW5 deposed that accused used to demand Rs.1 Lac in cash from the complainant,whereas the complainant deposed that demand was of Rs.50,000/.
12. The evidence of PW2 also reflects that she was ousted from her matrimonial house in March, 1999 by the accused persons, however she filed the complaint in CAW Cell only in the year 2002,i.e. after more than three years of leaving the matrimonial house. The complainant PW2 also admitted in her cross examination that she filed the complaint in CAW Cell after gaining knowledge regarding filing of case by her deceased husband Ghanshyam in District Moradabad against her for solemnizing another marriage. So, there is possibility of the present case being an after thought and counter blast to the case filed by deceased Ghanshyam against complainant.
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PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC
13. The complainant has also testified that she was beaten up by the accused persons for her inability to meet the demand of dowry raised by the accused persons however no medical document has been filed by the prosecution to support the oral testimony of complainant. The IO in his cross examination clearly stated that complainant never produced any MLC/ medical record pertaining to any physical assault by the accused persons on her.
14. The evidence of PW3 and PW5 is not admissible as the same is only hear say evidence. Both the witnesses PW3 and PW5 deposed that they were informed by complainant and their parents regarding the harassment of complainant by the accused persons for want of dowry. PW3 and PW5 have only cited one incident when the complainant was subjected to cruelty by her mother in law Har Dai in their presence however no such incident has been cited by complainant in her own testimony. Moreover, the accused Har Dai has already expired and proceedings against her already stand abated.
15. In view of the contradictory evidence of public prosecution witnesses and unspecific nature of evidence, I am of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the accused persons subjected the complainant to dowry related harassment and accused 30.10.2013 Page No. 15/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC persons Santosh (Jethani) and Prem Pal (Jeth) are acquitted U/s 498A/34 IPC.
16. Coming to Section 406 IPC,Section 406 IPC deals with criminal breach of trust. Section 406 IPC reads as under: "whoever commits criminal breach of trust shall be punished with imprisonment of either description for a terms which may extend to three years, or with fine, or with both"
Section 405 IPC defines criminal breach of trust. The relevant portion of the definition reads as under: "405 Criminal breach of trust - Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be charged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits "criminal breach of trust".30.10.2013 Page No. 16/18 FIR No.577/02
PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC
17. As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, their dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.
18. Regarding the guilt of accused persons Santosh and Prem Pal under Section 406 IPC, the complainant stated in her evidence that all her istridhan articles were entrusted to the deceased accused Ghanshyam which he refused to return. She has not deposed regarding entrustment of her istridhan articles to the accused Santosh and Prem Pal. So, the vital and essential ingredient of entrustment having been made in favor of accused Santosh and Prem Pal not proved by prosecution. Moreover,PW3(brother of complainant) has made general and blanket allegation that the istridhan articles and jewellary of her sister were not returned by the accused persons without specifying when and where the same were entrusted to accused persons. He has not given any date, time, month and year when demand for return of articles were made to the accused persons nor he has given any date, month and year when complainant 30.10.2013 Page No. 17/18 FIR No.577/02 PS Dabri State Vs. Ghanshyam & Others U/s 498A/406/34 IPC demanded the same from the above said accused persons. which were refused to be returned.
19. As regards 406 IPC, In Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon'ble Hight Court authoritatively laid down that as per provision of Section 2 of Dowry Prohibition Act, there is mandate of law for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side. The said mandate has not been followed by the family of the complainant in the present case. Moreover, no photograph/bills of dowry articles have been produced on record to establish the exchange of dowry articles at the time of marriage of complainant.
20. Keeping in view the aforesaid reasons, I have no hesitation to hold the prosecution has failed to bring home the guilt of accused persons Santosh (Jethani) and Prem Pal (Jeth) U/s 406 IPC beyond reasonable doubt. So, they are acquitted from offence punishable U/s 406 IPC.
ANNOUNCED IN OPEN COURT (PRIYA MAHINDRA)
th
ON 30 OCTOBER, 2013 METROPOLITAN MAGISTRARTE
MAHILA COURT02/DWARKA
NEW DELHI
30.10.2013 Page No. 18/18
FIR No.577/02
PS Dabri
State Vs. Ghanshyam & Others
U/s 498A/406/34 IPC
IN THE COURT OF MS. PRIYA MAHINDRA, METROPOLITAN MAGISTRATE MAHILA COURT02 (SOUTH WEST), DWARKA COURTS, NEW DELHI FIR No.577/02 PS Dabri U/s 498A/406/34 IPC State Vs. Ghanshyam & others 30.10.2013 Present: Ld. APP for State.
Counsel for the accused persons with accused persons Santosh and Prem Pal in person.
Proceedings against accused Ghanshyam and Har Dai already stand abated vide order dt.07122011 and 02072013 respectively as they have expired during trial.
Vide a separate judgment of the day accused Santosh and Prem Pal stand acquitted for the offence punishable U/s 498A/406/34 IPC.
Counsel for the accused persons seek some time to furnish bail bonds U/s 437 A Cr. P.C. The earlier bail bond shall remain effective and is not discharged till the bond U/s 437 A Cr. P.C is furnished. Be furnished. File be consigned to Record Room.
(PRIYA MAHENDRA) MM: MAHILA COURTS2 DWARKA COURTS : DELHI 30.10.2013 30.10.2013 Page No. 19/18