Delhi District Court
Fir No.333/2001 State vs . Joginder & Ors Page Number 12 Of 12 on 27 March, 2018
IN THE COURT OF MM02, MAHILA COURT, NORTH WEST, ROHINI
COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
FIR No. : 333/2001
PS : Jahangir Puri
U/s 498 A/406 IPC
State v. Joginder & Ors.
J U D G M E N T :
a) Case no. : 5353072016
b) Name of the complainant : Neetu
c) Name parentage and address
of accused : (1) Joginder S/o Sh.Satish Kumar
(2) Satish Kumar S/o Sh.Modha Singh &
(3) Satya W/o Satish Singh, all R/o F87,
New Raghubir Nagar, Delhi.
d) Offences charged : 498 A/406/34 IPC
e) Plea of accused : Not guilty
f) Date on which judgment was
reserved : 23.02.2018
g) Final Order : Acquitted
h) Date of decision : 27.03.2018
FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12
Brief Statement and Reasons for Decision:
JUDGMENT
1 The case of the prosecution is that on 30/10/2000, a complaint was made by
the complainant herein namely Neetu in the CAW cell Ashok Vihar in which she alleged
that during the subsistence of marriage of the complainant with Joginder (husband), he
alongwith Satish and Satya (father in law and mother in law of the complainant) and the
naani and mausi saas of Joginder, subjected the complainant to cruelty for non
fulfillment of the demand for dowry. Further, all the articles given to her by her parents at
the time of marriage were also with the said persons. A compromise was effected
between the complainant and her husband Joginder during the proceedings in the CAW
cell on 7/2/2001 whereafter the complainant went back with her husband. But on
28/3/2001, the complainant was thrown out of the house after being beaten by her husband. Thereafter the compromise talks did not succeed and consequently FIR no. 333/2001 dated 16/5/2001 was registered. After completion of investigation, a chargesheet was filed by the prosecution against accused Joginder (husband), Satish (father in law) and Satya (mother in law) of the complainant under sections 498A and 406 Indian Penal Code (hereinafter referred to as the IPC). The accused persons were summoned and charged with the said offences to which they pleaded not guilty and claimed trial.
2. To prove its case, the prosecution examined nine witnesses. PW1 is the inquiry officer posted at CAW cell who proved the recommendation made by her for FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 registration of FIR on 28/3/2001 on the complaint of the complainant as Ex. PW1/A. PW2 is the police official who proved the registration of the present FIR no. 333/2001 i.e. Ex. PW2/A. PW3 Neeta is the mother of the complainant. PW4 is the complainant herself and she proved the initial complaint made by her in the CAW cell dated 30/10/2000 i.e. Ex. PW4/C. She also proved the subsequent statements made by her in the CAW cell dated 8/12/2000, 24/11/2000 and 29/3/2001 i.e. Ex. PW4/D, PW4/E and Ex. PW4/F. She also got exhibited the list of her istridhan articles i.e. Ex. PW4/A and B, seizure memo of the istridhan articles recovered by the police as Ex. PW4/G witnessed by her, the list of istridhan articles remaining in the possession of the accused as Ex. PW4/H and the marriage card i.e. Ex. PW4/I. She also got exhibited the arrest memo of the accused Satya Devi witnessed by her i.e. Ex. PW4/J and the superdiginama of the istridhan articles Ex. PW4/K. Part of the case property i.e. the seized istridhan articles were got exhibited by her as Ex. P1. PW5 is the father of the complainant. PW6 is the police official who assisted the IO during investigation of the case and witnessed the seizure memo Ex. PW4/G vide which the istridhan articles of the complainant were recovered from the house of the mother in law and father in law of the complainant. PW7 is another police official who assisted during the investigation. He witnessed the recovery of the istridhan articles of the complainant from the house of the mother in law of the complainant and also witnessed the arrest memo of the accused Satya i.e. Ex. PW4/J. PW8 is the inquiry officer of CAW cell and he got exhibited the seizure memo Ex. PW8/A vide which the istridhan articles of the complainant brought by her husband in the CAW cell were seized. PW9 is the IO of this case who proved the personal search FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 memo of accused Satya i.e. Ex. PW9/A and her arrest memo Ex. PW4/G and the seizure memo Ex. PW8/A. Thereafter prosecution evidence was closed.
The testimony of the PWs shall be discussed during the appreciation of evidence.
3. Statement of the accused persons was recorded under section 313 CrPC. They denied the allegations of the complainant in toto and stated that the complainant filed a false and fabricated against them. Further, the complainant was having an affair with another person and she had even married him and she filed the present case to extort money from the accused persons.
However the accused did not choose to lead defence evidence. Accordingly final submissions were heard.
4. I have carefully perused the record. Needless to state that the complainant is the most important witness in the present case. Therefore I shall begin with a scrutiny of her testimony. Now in the initial complaint lodged by her in the CAW cell i.e. complaint dated 30/10/2000 Ex. PW4/C, the complainant has stated that she got married to accused Joginder four years ago and she alleged that for few days, everything was fine but since last two years, the accused persons had been beating her and in this act, the nani and mausi of the accused Joginder were also involved. She alleged that the abovenamed persons were demanding a maruti car from her as dowry. Further, at the time of her marriage, her parents had given various items including jewellery which were lying with the said persons. Lastly, since two years she had been living with her parents who are very poor and cannot fulfill the demands of the said persons.
FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 Further, as per the chargesheet as well as the testimony of the complainant in court, during the proceedings conducted in the CAW cell after the filing of the said complaint, matter was compromised on 7/2/2001 and the complainant and accused Joginder started residing together but it was deposed by the complainant that on 28/3/2001, the accused persons threw out the complainant from the house after beating her and threatening to set her on fire.
5. Let us now look at the testimony of the complainant. In court, the complainant deposed that the behaviour of the accused persons was normal for one or two months but thereafter the accused persons herein started harassing her and told her to bring Rs.20,000/ from her parents and in order to get this demand fulfilled, they used to beat her and when she failed to fulfill the demands, they gave her merciless beatings and mental torture and turned her out of the matrimonial house. She further deposed that during her stay in the matrimonial house, the accused persons used to demand car and cash from her parents. She deposed that she came to her house in wearing apparels and due to the intervention of her parents, she returned to her matrimonial house after 34 months. Again she was kept fine for few days, but thereafter the illegal demands resumed and on non fulfillment of the same, she was beaten and tortured. Further her husband questioned the legitimacy of the daughter borne to her on 11/9/1998 and after the birth of the daughter, the complainant was forced to live with accused Joginder in a jhuggi adjacent to her matrimonial house but even there the intervention of the remaining accused persons continued and her husband was instigated to beat her on the pretext of illegal demand of dowry. She deposed that she stayed in her matrimonial house for about two years after marriage and during this period, she was turned out of the matrimonial FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 house 45 times and only due to the involvement of the panchayat, she was taken back to the matrimonial house by the accused persons. She was finally forced to leave the jhuggi and company of accused Joginder after about two years and returned to her matrimonial house and in the year 2000, when all efforts to reconcile the matter failed, she filed the complaint dated 30/10/2000 in the CAW cell.
6. A bare perusal of the testimony of the complainant reproduced above reflects material improvements upon the initial complaint filed by her i.e. Ex. PW4/C. To begin with, in her complaint, the complainant stated that since two years prior to the filing of the said complaint dated 30/10/2000, the accused persons had been beating her and were demanding maruti car from her. Further, as per the said complaint she got married to accused Joginder four years prior to the filing of the said complaint. This averment itself begs the question as to why would the accused persons start making dowry demands two years after the marriage had been solemnized. It is also pertinent that the testimony of the complainant in court was materially improved on this point as in court the complainant has deposed that after about one or two months of marriage, the accused persons began harassing her and demanded cash of Rs.20,000/ from her and they used to torture her and beat her for fulfilling the said demand. Again improvement in the testimony of the complainant can be seen because as per her complaint, she was beaten on account of demand of maruti car but in her testimony in the court, she stated that she was harassed for cash amount as well.
Further in her testimony, the complainant also alleged that the accused Joginder questioned the legitimacy of the birth of her daughter by saying that the daughter was not his but of his father. She also goes on to allege that after the birth of her FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 daughter she was forced to live in a jhuggi adjacent to her matrimonial house and that during the entire period of her stay in the matrimonial house she was turned out 45 times. However none of the foregoing allegations find any mention in her complaint Ex. PW4/C.
7. The testimony of PW3 i.e. the mother of the complainant is also inconsistent on the point of dowry demand as she has deposed in her chief examination that firstly, the accused persons started harassing her daughter since the very first day of marriage for dowry and secondly, they used to demand plot of land from her in dowry. She made no mention of the demand of car or cash as alleged by the complainant and it was only when she was prompted by the Ld. APP that she stated that she deposed that Rs.20,000/ cash was demanded by the accused persons from her daughter.
In other words, the improvements in the testimony of the PW4/complainant in the court coupled with the contradictions in the testimonies of the PW4/complainant and her mother/PW3 significantly diminish the credibility of the prosecution case.
8. Even otherwise there are various other facts which cast a cloud of doubt upon the case of the prosecution. In her complaint Ex. PW4/C, the complainant has stated that since prior to two years of the filing of the said complaint, she was living separately from the accused persons. As per her testimony in the court, she filed the said complaint in 2000 when all efforts to reconcile the matter with the complainant had failed. The fact that the complaint itself was lodged after a delay of two years after the complainant had left the matrimonial house also impinges the case of the prosecution. Reliance is placed upon the judgment of the Supreme Court in the case of Manju Ram FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 Kalita v. State of Assam, judgment dated 29/5/2009 in CRIMINAL APPEAL NO. 299 OF 2003, wherein it has been held that:
"It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as `cruelty' to attract the provisions of Section 498A IPC."
Although the complainant has tried to explain the delay away by stating that efforts were being made to reconcile the matter which had failed, none of the other prosecution witnesses have corroborated her on this point.
Furthermore, in a statement dated 17/5/2001 which forms part of the court record, though not exhibited, the complainant stated that she did not want to pursue the case against her nani saas Billo and mausi saas Babita. In regard to Babita, she specifically stated that she did not want to proceed against her as she had never harassed the complainant for dowry even though in her complaint Ex. PW4/C, the complainant has arrayed the names of the said persons alongwith the accused persons. The Ld. Defence counsel had also given a specific suggestion to PW5 i.e. the father of the complainant on this point which was however denied by him. The above statement dated 17.05.2001 also impels. the court to look at the allegations of the complainant with unfavourable eye.
9. It is the case of the accused persons as stated in their examination under section 313 Cr PC that the complainant was having an affair with another person and she had even married him and she filed the present case to extort money from the accused persons. Though a suggestion to this effect was not given to the complainant as her cross FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 examination was never completed by the Ld. Defence counsel, it was given to the mother of the complainant/PW3 who denied it. But she was confronted by the Ld. Defence counsel with certain photographs Mark PW3/A1 to A4 and she admitted that the girl reflected as a bride in those photographs was the complainant but as to the groom, PW3 stated that she did not know as to who it was. This answer is evasive to say the least. Though these photographs do not conclusively prove that the complainant did enter into a second marriage as alleged by the accused, they do ring bells of suspicion.
10. It was contended by the Ld. APP for the state that the testimony of PW Neetu was unrebutted on the point of cruelty as despite two opportunities the Ld. Defence counsel failed to cross examine her fully. However as stated earlier, the case of the prosecution must stand on its own legs firmly and the prosecution cannot simply rely upon the weaknesses of the defence. However, in light of the foregoing discussion, I find that the prosecution has not been able to prove the commission of offence under section 498A IPC against the accused persons beyond reasonable doubt.
11. In so far as the offence under section 406 IPC is concerned, in order to prove the same, it is necessary for the prosecution to prove that the complainant entrusted her istridhan articles to the accused persons and they misappropriated or converted the same to their own use. The list of istridhan articles furnished by the complainant is Ex. PW4/A and B. As per the prosecution, list of istridhan items recovered from the house of the accused Satya and Satish is Ex. PW4/G and the list of the balance istridhan items is Ex. PW4/H. FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12
12. Now let us look at the case of the prosecution. Firstly, there are no bills or receipts on record to prove the ownership of the alleged istridhan items. The Ld. APP pointed out that the complainant's mother /PW3 deposed during her cross examination that the bills had been given to the complainant who gave them to accused persons and no suggestion was given to PW3 on this point. However it is also pertinent to note that the list furnished by the complainant Ex. PW4/A and B is an elaborate list consisting of furniture, utensils and jewellery items. Out of the jewellery, the gold items are alone of 45 tolas. During her cross examination, the complainant testified that she has five brothers and sisters and at the time of her marriage, her father was a vegetable vendor. As per PW3, her husband was a fruit vendor and he used to sell on patri and initially he used to do boot polish. In the face of the financial capacity of the father of the complainant which is reflected from the above testimony, it is doubtful as to how 45 tolas of gold was given to the complainant at the time of her marriage which took place in 19971998.
13. Having said so, it is also apt to look at the ingredients of section 406 IPC. In Anu Gill v. State and Anr. 92 (2001)DLT 179, it has been held by the Delhi high Court that:
"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."
Further in Pehlad kumar and others v. State of Haryana II (1992) DMC 259, in the facts of that case it was observed and held that:
FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12 "while there are specific allegations about the entrustment of certain articles to the husbandPehlad and motherinlaw, 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 brotherinlaw 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 any of the other petitioners than her husband and motherinlaw under Section 406, IPC."
14. Now in her complaint Ex. PW4/C, the complainant has alleged that all the items given at the time of her marriage are with the accused persons. It was contended by the Ld. APP for the state that articles mentioned in Ex. PW4/G out of the list Ex. PW4/A and B were recovered from the house of the accused Satish and Satya which corroborates the case of the prosecution qua section 406 IPC. Further the prosecution witnesses were not cross examined on the point of seizure memo. It is not out of the ordinary that the belongings of the complainant are in her matrimonial house where she was staying. However there is no averment either in the complaint or in her testimony as to which item of istridhan was entrusted to which of the accused persons. There is also no allegation that the istridhan items were demanded and if so on which date or which occasion and not returned despite the demand. Therefore in the absence of these specific allegations, ingredients of offence under section 406 IPC are not fulfilled.
FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12
15. Therefore the conclusion derived from the careful scrutiny of the evidence on record is that the offences charged against the accused persons are not proved beyond reasonable doubt. Accordingly the accused persons stand acquitted of the offences charged.
Announced in open Court (Aakanksha Vyas)
on this 27th day of March, 2018 Metropolitan Magistrate
Mahila Court02,North West
Rohini Courts, Delhi
FIR no.333/2001 State vs. Joginder & Ors Page number 12 of 12