Delhi District Court
Rekha vs The State on 23 August, 2022
IN THE COURT OF SHRI ARUL VARMA
ADDL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CA No. 60/2021
Rekha
W/o Sushil Kumar
D/o Ashok Kumar
R/o House no. 14, Gali no. 7/7
Gurudwara Wali Gali,
Shakti Vihar,
Meethapur, New Delhi
..........Appellant
Vs
1 The State
(Govt of NCT of Delhi)
2 Sh. Sushil Kumar,
S/o Ram Snehi
3 Sh. Ram Snehi
S/o Late Shri Mewa Raw
4 Smt. Kamla Devi
W/o Shri Ram Snehi
5 Ms. Shashi Kumari
D/o Shri Ram Snehi
(All respondent no.2 to 5,
R/o B19A, Gali No.6
Shashi Garden Kukreja Hospital
Mayur Vihar, PhaseI
New Delhi110091)
..........Respondents
Rekha Vs. State CA No 60 of 2021 1/8
Instituted on : 20.07.2021
Argued on : 18.08.2022
Decided on : 23.08.2022.
JUDGMENT
1 Vide this order, this Court shall adjudicate the present criminal appeal filed under Section 378(2) (a) assailing order dated 06.04.2021 passed by the Ld. MM/Mahila Court, South East District, whereby the Ld. MM acquitted respondents no. 2 to 5 herein.
IMPUGNED ORDER FACTS 2 The facts of the case are hereby succinctly recapitulated: It was alleged that the present FIR came to be registered u/s 498A/406/34 IPC on the complaint of appellant Rekha against respondents namely Sushil kumar, Ram Snehi, Kamla Devi and Shashi Kumari. Allegations were levelled by the complainant/appellant Rekha that through the subsistence of her marriage with respondent Sushil kumar since 05.05.2013, the respondent subjected the appellant to cruelty by way of illegal demands of dowry. It was further alleged that the respondents committed several acts of domestic violence against her. It was further alleged that the respondents converted the streedhan of complainant/appellant to their own use, despite the complainant demanding them to return the same. Thereafter, the investigation was concluded and charge sheet was filed, whereafter, accused/respondents were summoned and charges were framed qua them u/s 498A/406/34 IPC.
Rekha Vs. State CA No 60 of 2021 2/8FINDINGS OF THE LD. TRIAL COURT.
3 After scrutinizing the evidence on record, and after examining the 6 prosecution witnesses, Ld. Trial Court arrived at conclusion that the case of the complainant did not inspire conference and created a doubt in the mind of Court. Thus, on account of insufficient proof qua allegations levelled against the accused/respondents, coupled with failure of the prosecution to prove its case qua beyond with reasonable doubts, Ld. Trial Court acquitted the respondents herein.
CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT & THE RESPONDENT 4 Ld. Counsel for the appellant submitted that the jewellary and other articles were taken by the motherinlaw and sisterinlaw, of the appellant after, the same had been entrusted by her to them. Ld. Counsel submitted that before going to bathroom for bath, the appellant had entrusted her jewellary to her sisterinlaw Sashi, and motherinlaw Kamla devi. Ld. Counsel for accused placed reliance on
1. Wzir Chand Vs. State of Haryana, 1989 AIR (SC) 378
2. Rajammal Vs. State By D.S.P. Cb.C.I.D 1993 CrLJ 3029
3. Ashok Dogra Vs State Crl Rev. P. 578/2006
4. State of West Bengal Vs Orilal Jaiswal case no 734 of 1991 5 Per Contra, Ld. Counsel for respondent vociferously contended that there is no whisper or any avernment qua entrustement of any jewellary or articles. It was submitted that even as per record, the respondents were willing Rekha Vs. State CA No 60 of 2021 3/8 to return the articles, however, it was the complainant/appellant herself, who refused to receive the same. It was submitted that even before the CAW Cell, there is no avernment qua entrustement.
6 Submissions heard.
DECISION 7 As far as the allegations of entrustment are concerned, it was rightly observed by the Ld Trial Court that there was no averment on the part of the complainant that she had entrusted any property to the respondents herein. Further, as per the report of the CAW Cell, whatever property was in the possession of the respondents, willingness qua return of the same was expressed by the respondents but it was the complainant who refused to receive the same. The only averment that was made was that, all the jewelery articles were taken by sisterinlaw and motherinlaw while taking bath. In this averment too, the essential element of entrustment is missing. 8 It would also be useful to peruse the following extracts of Narbada Vs. State & Ors, 2008 Cri.l.J 798, it was held as thus.
"7 In my opinion, as per the judgment of this Court cited above by Ld. Counsel for the petitioner the above preposition upon which charge was framed does not stand because there is no evidence of entrustment of ornaments to the petitioner by her husband or in laws.
8. Para12 of the aforesaid judgment cited by ld. Counsel for the petitioner reads as under:
"12 It shows that in addition to entrustment of the property in favour of the accused, it must be shown Rekha Vs. State CA No 60 of 2021 4/8 that the accused has dishonestly misappropriated the property or converted that property to his own use or dealt with the property in the manner prescribed in Section 405 IPC. Mere refusal to return the property, which was entrusted to him does not satisfy the requirements of Section 405 IPC. Failure to return the property may be occasioned or account of several reasons. A person who is called upon to return the property which was entrusted to him may not receive the notice requiring him to return the property of for reasons beyond control, he may not be in a position to return the porperty by actually carrying it to the person, who entrusted it. In any case ,mere failure to return the property does not constitute an offence of Criminal breach of trust u/s 405 IPC. It is a quite different manner. If from the act of not returning the property, it is inferred that the person to whom the property was entrusted is unable to return the property, because he has misappropriated it or that he is unable to return it, because he is converting the property for his own use in a dishonest manner. The offence u/s 405 IPC is therefore, committed when the property which was entrusted to the accused was actually misappropriated or dishonestly converted for his own use or is otherwise dealt with in the manner indicated by Section 405 IPC. The date on which the notice for return of the property was served has little relevance so far as the point of time of commission of the offence u/s 405 IPC is concerned. The learned Munsif and Judicial Magistrate was, therefore not justified in coming to the conclusion that the offence of criminal breach of trust u/s 405 IPC was committed on a date which was five years prior to 20 th March 1990"
"9 In this view of the matter, the charge framed against the petitionerwife of complainant for offence u/s 406 IPC vide order impugned dated 21.06.2003 is totally erroneous".
9 In view of the above, a case of criminal misappropriation cannot be Rekha Vs. State CA No 60 of 2021 5/8 made out against the husband. In any case, allegations were made qua entrustment primarily against the motherinlaw and sisterinlaw. It is pertinent to note that it can not be the case of the complainant that she herself entrusted the articles to the accused persons. Moreover, there is not whisper of allegation qua entrustment in her complaint Ex. PW1/A. Thus, since the elements of entrustment of property and refusal to return the same were not cogently proved, an offence u/s 406 IPC is not made out. 10 As far as allegation under Section 498A IPC is concerned, it would be apt to peruse the relevant provision, it is held as thus;
"498A whosoever being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) 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 meet such demand.
11 It is trite that there reliance is placed by the prosecution only on incidents of unhappiness or minor quibbles between the wife and the husband or his relatives, the offence would not fall within the domain of cruelty as defined u/s 498A IPC. The allegations, as brought forth by the appellant border around feelings of shock on being taken to Mayur Vihar rather than Ganesh Nagar. It was averred by the complainant in her examination in chief Rekha Vs. State CA No 60 of 2021 6/8 that she was cheated by the respondents as they showed her house at Ganesh Nagar, but ultimately resided somewhere in Mayur Vihar. However, this allegations gets belied as the marriage card was got printed by the family of complainant herself wherein the address of Sashi Garden, Opposite Mayur Vihar was printed. This certainly cannot enure to the benefit of the appellant/complainant, but rather impeaches the credit of this witness. 12 The other incidents whereby cruelty was alleged was qua not allowing the accused to keep fast or to visit temples or to visit parents. She also alleged that she was not allowed to wear good cloths and was asked to live like a servant. Now it becomes difficult to believe these allegations in the light of the fact that the complainant was a working lady and used to go out for her work. Whilst at work, she could easily satiate her hunger by eating a wholesome meal, which was allegedly denied by her in laws. Further, enroute to work, she had the liberty and the opportunity to visit her parents or go to the temple. Thus, these inane allegations seem bereft of any justification. In any case, they do not constitute, or are of such severity, to be labeled as an offence of cruelty u/s 498A IPC.
13 Further, there were allegations of beatings by the respondents. However, no documents with respect to medical treatment or any MLC/OPD card was placed on record to substantiate her claims. No police complaint was made in this context, neither any independent witnesses were examined who could testify to the factum of beatings given by the respondents to the Rekha Vs. State CA No 60 of 2021 7/8 appellant herein. Under these circumstances, the allegations of the complainant have remained unsubstantiated and uncorroborated. Thus, the Ld. Trial Court rightly observed that the case of the complainant does not inspire confidence and creates a doubt in the mind of the Court.
CONCLUSION 14 Ergo, in view of the aforesaid discussion, this Court finds no infirmity in the order dated 06.04.2021, passed by, Ld. MM, SouthEast, Saket Courts New Delhi, and thus, the present Criminal Appeal is hereby dismissed. 15 TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information and compliance.
16 Appeal file be consigned to record room after due compliance.
Order be uploaded on official website of District Courts. Announced in the open court on 23rd August, 2022 (ARUL VARMA ) ASJ04 + Spl. Judge (NDPS) South East District, Saket Court, New Delhi:
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