Delhi District Court
State vs . Kanwar Pal on 22 September, 2011
State Vs. Kanwar Pal
IN THE COURT OF MS SUNENA SHARMA, M.M., MAHILA COURT
(EAST), KARKARDOOMA COURTS, DELHI.
FIR NO.: 78/93
P.S.: KALYAN PURI
U/Sec. 498-A/406/34
STATE VS. KANWAR PAL
ID No. R0172872003
JUDGMENT:
1. Date of commission of : Between 07.3.1991 to
18.8.1992
2. Name of complainant : Smt. Kanta,
D/o Sh.Harish Chander
R/o A-1/41-B, Mayur Vihar,
Phase III, Delhi
3. Name of the accused, his : i) Kanwar Pal
parentage and address S/o Shri Bhagwan Singh
R/o 16/214, Trilok Puri,
Delhi
ii) Bhagwan Singh
S/o Shri Ratan Lal
R/o 16/214, Trilok Puri,
Delhi
iii) Smt. Jagwanti
S/o Shri Bhagwan Singh
R/o 16/214, Trilok Puri,
Delhi
4.Offence complained of : u/s 498-A/406/34 IPC
5. The date of order : 29.9.2011
6. Plea of accused : Pleaded not guilty
7. The final order : Acquitted
Reserved for judgment : 22.9.2011
Date of judgment : 22.9.2011
THE BRIEF REASONS FOR THE DECISION:
1. In this case, FIR Ex. PW1/A is based on the complaint made by the complainant to CAW Cell (East) Distt. having endorsement of 30.12.2012.The said complaint is also lying on record as Ex. PW1/A. As per said complaint, the complainant was married to accused Kanwar Pal on 07.3.1991 according to Hindu Rites and Customs but just after two days of her marriage, her husband, his mother, brothers and sister started harassing her in order to coerce her to fulfil their 1 of 17 State Vs. Kanwar Pal unlawful demands for more dowry. It is further alleged that the accused also tried to kill the complainant twice once on 25.3.1991 and second time on 16.4.1992 but fortunately, complainant escaped. It is further alleged that on 18.8.1992, complainant's husband left her at her parental home after giving her merciless beatings and thereafter, he never turned up to take her back nor he ever provided any maintenance to her or her minor child.
2. On aforementioned complaint of complainant, IO had made an endorsement Ex. PW6/A and got the present FIR lodged against the accused persons for the offences punishable u/s 498-A/406/34 IPC. After completion of investigation, IO filed the charge sheet against three accused namely Kanwar Pal (husband), Bhagwan Singh (father in law), Jaywanti (mother in law) on 01.10.1995 upon which cognizance was taken and accused were summoned. Vide order dated 18.11.1996, the charge was framed against all the accused for the offence punishable u/s 498-A IPC read with section 34 IPC whereas, all the accused were discharged for the offence punishable u/s 406 IPC. Record reveals that proceedings against accused Bhagwan Das were abated vide order dated 08.4.1994 as he expired during trial.
3. In order to prove its case, the prosecution cited six witnesses but out of six witnesses only five witnesses were examined during trial. It is surprising to note that list of prosecution witnesses does not find mention name of complainant though she was examined during trial as PW1. The other prosecution witnesses namely HC Shiv Kumar was examined as PW2 (wrongly mentioned as PW1), HC Renvir Singh as PW3 (wrongly mentioned as PW2), Chameli as PW4 (wrongly mentioned as PW2), Inspector B.S. Kushwaha as PW5 (wrongly mentioned as PW6). As per record PW Harish Chand who was complainant's father could not be examined as he expired during trial and his name was deleted from the list of witnesses vide order dated 31.01.2005. Despite opportunity prosecution could not examine PW Lalit Kumar and PE was closed vide roder dated 08.9.2008.
4. In rebuttal accused Kanwar Pal examined himself as DW3 (wrongly mentioned as DW2) u/s 315 Cr. PC. Two more witnesses namely Suresh and Balwan were also examined in defence as DW1 and DW2.
5. After completion of prosecution evidence, statements of both the accused u/s 313 Cr. PC. were recorded separately wherein, all 2 of 17 State Vs. Kanwar Pal the incriminating evidence was put to the accused separately but the same was denied by them as wrong and incorrect and accused Kanwar Pal came up with the plea that complainant never wanted to live with him and she voluntarily left his company and subsequently he filed a petition u/s 9 of HM Act against her for restitution of conjugal rights. He further pleaded that as complainant was already married with one Mahender prior to her marriage with him therefore, he later on filed another petition for nullity u/s 11 of HMA Act before the court of ld. ASJ. Both the said petitions were however dismissed. Accused Jaiwanti also took the defence that she had been residing at her native village at Mathura and had never resided with the complainant or her husband Kanwar Pal at Delhi.
6. I have heard both ld. APP as well as ld. Defence counsel and carefully perused the entire material on record. Ld. Defence counsel has argued that complainant's marriage with accused Kanwar Pal was a void marriage as her marriage with the accused Kanwar Pal was her second marriage during subsistence of her first marriage. He further argued that complainant had admitted said fact of her first marriage marriage before the court of Shri V.K. Gupta, the then ld. MM during the proceedings of petition u/s 125 Cr. PC. filed by complainant herein against accused Kanwar Pal and the observation in this regard were made by the said court in its order dated 28.02.1994. It is further stated that taking note of said admission of complainant and observation of said court, petition filed by accused Kanwar Pal against the complainant u/s 9 of HMA Act was also dismissed by the court of Mr. Justice A.K. Pathak (the then ld. ADJ) on 11.9.1996. Counsel for accused further raised the contention that the provision of section 498- A applies only where the complainant is the legally wedded wife of accused husband and since the marriage of the complainant with accused Kanwar Pal was a void marriage, accused Kanwar Pal and his other family members do not fall within the definition of term 'husband' and 'his relatives' as contemplated in section 498-A IPC. Ld. Defence counsel further argued that testimony of complainant and her mother even otherwise suffers from various contradiction and infirmities rendering it totally unreliable and untrustworthy.
7. On the other hand, ld. APP rebutted the argument by submitting that the observation given by ld. MM in the interim order cannot be a basis for arriving at the conclusion that complainant's 3 of 17 State Vs. Kanwar Pal marriage with accused Kanwar Pal was a void marriage. He further submitted that even otherwise defence has failed to place a certified copy of any such order nor the same was put to the complainant during her cross-examination. Ld. APP further argued that the complainant has duly proved the charges against the accused by her consistent testimony which is duly corroborated by her mother who has also appeared in the witness box as PW2.
8. Let us now advert to the testimony of the witnesses examined in this case. PW HC Shiv Kumar and HC Renvir Singh are the formal witnesses who proved on record FIR and the search memo of accused Kanwar Pal as Ex. PW1/A and PW2/A. Nothing was asked in the cross-examination of said two witnesses.
9. PW6 Shri B.S. Khushwaha is the investigating officer. As per his version, on 24.2.1993, he was posted as SI at PS Kalyan Puri and on that day he had received a complaint of Smt. Kanta from the CAW Cell with recommendation for registration of the case. On said complaint, he made the endorsement Ex. PW6/A and got the FIR registered on 25.3.1993. Later on, he arrested the accused Kanwar Pal and prepared his search memo Ex. PW2/A. During investigation, IO also seized certain istridhan articles of the complainant from the house of the accused vide seizure memo Ex. PW1/B. He further recorded the statements of witnesses u/s 161 Cr. PC and on the basis of material collected during the investigation, he filed the charge sheet before court against all the three accused persons. No material question was asked from IO in his cross-examination. Complainant and her mother are two material witnesses who were examined as PW1 and PW4 respectively.
10. As per version of complainant PW1 recorded on 19.5.1998, she was married with accused Kanwar Pal on 07.9.1991 and for some time, she was kept properly but thereafter, her husband Kanwar Pal and his family members started demanding scooter, taperecorder, washing machine. She further alleged that her husband used to beat her on the instigations of his parents, sister and brother. Furthermore, after birth of a female child on 25.12.1991, accused Kanwar Pal left the complainant to her parental home on a false pretext that he had to go out for an official work and during her absence he advised the complainant to stay at her parental home. But even after 8 days, Kanwar Pal failed to turn up then complainant herself visited her 4 of 17 State Vs. Kanwar Pal matrimonial home but she found the doors of the premises locked and was informed by the neighbours that her husband and in laws had already taken away all her istridhan articles from her matrimonial house. After few days, complainant visited her husband's workplace near ITO at Gautam Puri and requested him to take her back to her matrimonial house but he flatly refused to take her back or to return her dowry articles. PW1 further deposed that even during the CAW Cell proceedings, she had made efforts to compromise the matter but the accused failed to come forward for any settlement. On 03.3.1993, complainant gave birth to another male child.
11. PW1 during her examination recorded on 24.3.1994, proved on record her complaint made to the SHO PS Mayur Vihar having endorsement dated 29.3.1999 as Ex. PW1/G, complaint made to the SHO, PS Trilok Puri having endorsement of 29.12.1992 as Ex. PW1/H, complaint made at PS Kalyan Pur dated 01.5.1999 as Ex. PW1/I, complaint made to Commissioner of police having endorsement dated 24.3.1999 as Ex. PW1/J, complaint made to SHO PS New Ashok Nagar dated 08.6.1999 as Ex. PW1/K, another complaint made to SHO PS Mayur Vihar dated 07.7.2001 as Ex. PW1/L and complaint made to SHO PS Mayur Vihar on 29.11.2002 as PW1/M by identifying her signatures thereon. PW1 further deposed that she had been harassed after her marriage on account of demand for more dowry. As per her version, on 25.3.1991, she was locked by her husband accused Kanwarpal in a room and her mother in law was also standing outside and she (mother in law) was saying that she (complainant) would be punished as she had not brought dowry. Further as per the complainant's version her dever Jagat Pal and Dharmpal had caught hold of her and accused Kanwar Pal tried to strangulate her upon which she raised alarm and with the intervention of neighbours she was saved and matter was pacified. PW1 further alleged that on petty matters accused persons used to quarrel with her. Complainant further stated that after she conceived her first child, her husband had told her that he did not want the child and she was pressurized to take some medicines for aborting the pregnancy and when she refused to take the same, she was mercilessly beaten up by the accused persons in the presence of her sister in law Bimlesh @ Chottu.
12. PW1 further alleged that during her pregnancy her husband also used to give her leg blows in the abdomen for aborting her 5 of 17 State Vs. Kanwar Pal pregnancy. She further alleged that her mother in law also used to help her husband in subjecting her to aforementioned cruelty. She further deposed that she had been continuously harassed mentally and physically. Further she alleged that at the occasion of her first marriage anniversary i.e. on 17.3.1992, certain gifts were sent by her parents but the same were not liked by her in laws who instead threatened her that in case she failed to bring more dowry as per their demands, they would continue to harass her in similar manner. Further as per the version of PW1, on 16.4.1992, her husband Kanwar Pal and other in laws gave her a threat to kill her and at that time accused Kanwar Pal was holding a knife and her mother in law had pulled her hair and upon such conduct of accused persons, complainant raised alarm and went upstairs. She further alleged that when she told her husband about her 2nd pregnancy, he raised allegations on her character by denying the paternity of child and her mother in law also supported her husband. On 18.8.1992, complainant was left by her husband at her parental house. PW further testified that on 31.1.1999 a compromise had taken place between the accused Kanwar Pal and complainant and subsequently complainant was taken back to her matrimonial home but she was again subjected to similar harassment and was further threatened by the accused persons to withdraw her cases.
13. PW1 was cross-examined at length at three different dates.
In her cross-examination recorded on 19.7.2004, complainant admitted that she had filed a petition u/s 125 Cr.PC. before the court of Shri V.K. Gupta, the then MM, KKD. However, she denied the suggestion that she had admitted on 28.2.1994, the factum of her previous marriage before said court. She denied the suggestion that she had admitted the fact of her earlier marriage before Mr. Justice A.K. Pathak (the then ld. ADJ) who had dismissed the application u/s 24 of HMA Act. PW1 admitted the suggestion that her only intention for lodging the complaint against the accused was that the accused should allow her to stay with them. She further deposed that she along with her husband had been living in a rented accommodation at Pandav Nagar where the parents of her husband and his brother also used to visit them but they (parents in law) were residing separately. She deposed further that they had stayed at Pandav Nagar for 5-6 months and and other family members of her husband used to occasionally visit them 6 of 17 State Vs. Kanwar Pal and at the time of birth of her daughter her in laws had come to their house and she was given beatings by the accused. The witness however failed to give the date of alleged beatings given to her by the accused persons and submitted that the same was mentioned in her complaint.
14. PW1 further deposed that as she had filed the complaint only to re-settle with her husband therefore, she had not made any allegations against the accused at that time but she had mentioned the dates of beatings in her subsequent application. After seeing the complaint Ex. PW1/A, the witness stated that she was given beatings on 25.3.1991. She deposed that even in 1991, she had been residing at Pandav Nagar. She deposed that she had mentioned in her complaint that accused used to demand scooter, washing machine, tape recorder and was confronted with her complaint Ex. PW1/A where it was not so recorded. She deposed further that she had mentioned in her complaint that she had been left by her husband at her parental home on 18.8.1992. She further deposed that she had filed the complaint Ex. PW1/A just with a view to get the matter settled and there was a Panchayat settlement arrived at between her and her husband and the same was given by her to police. However, no said document is lying on record nor the copy of same was available with complainant. She deposed that she had never received the copy of panchayat decision as the same was kept with village pardhan. Complainant again said that the copy of panchayat decision was lying with her husband Kanwar Pal. She deposed further she had never given the copy of panchayat decision to police.
15. PW1 admitted the suggestion that she and her husband were residing at Trilok Puri after her marriage. She again said that she was not residing at Trilok Puri with accused husband but she used to be occasionally taken at Trilok Puri at rented accommodation by her husband. She deposed further that she did not know whether the accused had filed a petition u/s 9 of HMA Act. She deposed further that she did not know whether any notice was received by her or whether she had appeared before the court of Mr. Justice, A.K. Pathak (the then ld. ADJ) at Tis Hazari Court. She further deposed that she did not know whether she had filed any application u/s 24 of HMA Act for maintenance before the court of Mr. Justice, A.K. Pathak (the then ld. ADJ). She deposed that her statement were never recorded by the 7 of 17 State Vs. Kanwar Pal police. She further deposed that she did not know where and by whom complaint Ex. PW1/A was typed. She further deposed that same was got typed under her instructions. Further in her cross-examination she deposed that after filing of this case she had been taken to her matrimonial home once by her husband accused Kanwar Pal after said decision. As per PW1 said panchayat decision was held on 31.01.2000. She was taken back by her husband after said panchayat decision, where she was kept only for two days and thereafter, she was again turned out after being beaten up. She deposed further that even prior to panchayat decision, her husband accused Kanwar Pal had taken her three four times to his house for short durations and he used to persuade her by saying he will withdraw the divorce petition filed by him if she stays with him.
16. PW1 further denied to have filed any other petition u/s 125 Cr. PC. for maintenance except the one filed before this court. After said denial the witness was confronted with the certified copy of the petition bearing no. 318/93 of 13.9.1993 filed before the court of Shri L.K. Gaur, ld. MM Delhi and the same is lying on record as Ex. PW1/D-1 and she identified her signature on same at point 'A'. She deposed further that she did not remember whether the accused had filed any petition for restitution of conjugal rights against her or not. Witness was again confronted with her statement portion A to B of Ex. PW1/D-1 in para 15 where it was so recorded. In her cross-examination PW1 further denied the suggestion that the alleged incident of 25.3.1991 when her husband allegedly tried to strangulate her had never taken place. She further deposed that she did not remember the names of the neighbours who had gathered after she raised alarm due to lapse of time. She further denied that she had filed any petition u/s 125 Cr. PC. before the court of Shri V.K. Gupta, ld. MM. She further deposed that she did not know whether she had mentioned in petition Ex. PW1/D-1 that she had been residing separately from the accused since 18.4.1992. The witness was confronted with portion A to A1 of Ex. PW1/D-1 where it was so recorded. She further deposed that she did not know whether she had filed any rejoinder in said case. But on being confronted with said rejoinder, she admitted her signatures on same and it was exhibited as Ex. DW1/D-3 which is a certified copy of the rejoinder. She also admitted her signature at point A on Ex. PW1/D-5 which is the certified copy of her affidavit and was annexed 8 of 17 State Vs. Kanwar Pal to said rejoinder. She admitted the suggestion that she had been left at her parental home by the accused Kanwar Pal on the pretext of going out of station. She further deposed that in Ex. PW1/D-3 she had stated that on 21.5.1995 she met her husband at his house. She denied the suggestion that she had been left at her parental house on 18.4.1992 in a cordial atmosphere (witness was confronted with the portion A to A of Ex. PW1/D-3 where it was so recorded). She deposed that on 18.4.1992 a quarrel had taken place and she had been beaten up by the accused. However, she denied the suggestion that she was deserted on 18.4.1992. She was confronted with the portion Mark A to A and Mark B to B where it was so recorded in Ex. PW1/D-4. She denied the suggestion that she had left the house on 18.4.1992 in a cordial atmosphere. Confronted with portion A to A of Ex. PW1/D-3 where it was so recorded. She deposed further that she did not know whether she had mentioned in Ex. PW1/D-3 that she had continued to meet accused upto November, 1992 in a cordial manner untill she received summons for the petition filed by her husband for restitution of conjugal rights. Witness was again confronted with portion B to B of Ex. PW1/D-3 where it was so recorded. PW1 however admitted that she had mentioned that from 21.4.1992 to November 1992, she had continuously met the accused in a cordial manner. She denied the suggestion that she had filed a false case against the accused as accused had neither beaten her nor tortured her in any manner. She denied the suggestion that maintenance was disallowed by court of Shri V.K. Gupta, MM. PW1 reiterated her previous version that she had not filed any case u/s 125 Cr. PC. and therefore there is no question of passing any maintenance in her favour. Witness further feigned ignorance about filing of any application u/s 24 of HM Act by her during the proceedings of petition filed u/s 9 of HM Act. She further feigned her ignorance about dismissal of said application by Mr. Justice A.K. Pathak (the then ld. ADJ). The witness was confronted with the order dated 11.9.1996 passed by Mr. Justice A.K. Pathak, (the then ld. ADJ) and same is lying on record as Ex. PW1/D-2. She denied the suggestion that she was deposing falsely.
17. Smt. Chameli is the complainant's mother who has been examined as PW4 (wrongly mentioned as PW2). As per PW4, her daughter was married to accused Kanward Pal about 10-11 years back and after her marriage her daughter was harassed by her mother in 9 of 17 State Vs. Kanwar Pal law, father in law, sisters in law. Further as per her version, accused Kanwar Pal used to quarrel with her daughter and used to raise demand for more dowry. PW4 further deposed that accused Kanwar Pal had raised demand for scooter and washing machine from them but they could not fulfill said demands as they were having three daughters. PW4 further deposed that her daughter had been left at their house by accused Kanwar Pal once or twice but lastly she was turned out of the house after being given merciless beatings about six years back and ever since her daughter was living with her.
18. PW4 Chameli in her examination in chief admitted the suggestion that the litigation was initiated from the side of accused Kanwar Pal but in her cross, PW4 denied the suggestion that accused Kanwar Pal had filed a petition u/s 9 of HM Act for restitution of conjugal rights. She further deposed that she had told the police regarding the demand of scooter and washing machine raised from her daughter. PW4 denied the suggestion that her daughter had left her matrimonial home out of her own free will. She denied the suggestion that she was deposing falsely.
19. In order to rebut the prosecution case accused also examined three witnesses including accused Kanwar Pal as DW3. Shri Bairam and Suresh Chand are the other two defence witnesses who were examined as DW1 and DW2 respectively.
20. DW1 is a neighbour of accused persons. As per his version, he knew accused being their neighbours since 1980. He further deposed that accused Kanwar Pal was married with Smt. Kanta in March 1991 but he did not remember the date of marriage. He further deposed that as per his knowledge there had never been any dispute between complainant and the accused families and they were enjoing good relations. Further as per version of DW1, complainant stayed in her matrimonial home for about one year and thereafter, she left the house in April, 1992. He further deposed that in the year 1999, complainant Kanta again joined back her matrimonial home as per directions of the court, but after some time she again left her matrimonial home.
21. He denied the suggestion that any incident of cruelty had happened in his presence. He denied that he was deposing falsely as accused were known to him. He admitted the suggestion that he had come to know about the case from the accused persons. He denied the 10 of 17 State Vs. Kanwar Pal suggestion that he was deposing falsely being the neighbour of the accused.
22. DW2 Suresh Chand is also the neighbour of the accused. As per his version, he was living in front of the accused house. DW2 deposed that he knew that complainant had married with accused Kanwar Pal but he could not identify her as he did not remember her face. He deposed that he had not attended the marriage. DW2 further stated that the couple was enjoying cordial relations after marriage. Further as per version of DW1, complainant after about 14 months of marriage, left her matrimonial home and thereafter, she started residing at her parental home. Further as per version of DW1, no incident of beating had ever happened and in the year 1999 some compromise was arrived at between the couple before Panchayat wherein, complainant was asked to return back to her matrimonial home. Further as per DW2, said panchayat decision was not attended by the elders of the society. He deposed that he did not remember whether the complainant had ever come back to her matrimonial home. He deposed further that only in the year 1995, he came to know about the differences between complainant and accused owing to which complainant was residing at her parental home.
23. In his cross-examination, DW2 further deposed that he used to visit the house of the accused very rarely and used to meet them only in common lane. He further deposed that matter before panchayat was relating to incompatibility of the accused with the complainant and prior to that he had never heard of any dispute between the parties. He denied the suggestion the accused used to harass and torture the complainant. He denied the suggestion that he was deposing falsely as he was the friend of accused Kanwar Pal.
24. DW3 Kanwar Pal in his examination in chief deposed that complainant had met him in a hotel where she was accompanied with her younger sister. As per his version, no altercation ever took place between him and the complainant nor he ever had given any beatings to the complainant or ever demanded any dowry from her. He further deposed that once the complainant had left his house and went to her parental home. Thereafter, he tried his level best to bring her back but she refused. Thereafter, he filed petition u/s 9 of HM Act before the court of Mr. Justice, A.K. Pathak, (the then ld. ADJ) and during proceedings of said case, the complainant became pregnant and 11 of 17 State Vs. Kanwar Pal subsequently he moved a petition u/s 11 of HM Act which was dismissed on the ground that there was no valid marriage. Further as per his version, only a female child was born out of their wedlock. DW3 denied paternity of male child born to complainant. DW2 further deposed that complainant had already been married to one Mahender and without obtaining any divorce from her previous husband, she illegally married him (DW3). In his cross-examination, DW3 admitted the suggestion that he had never met the person namely Mahender the alleged previous husband of the complainant.
25. It is an age old principle of criminal jurisprudence that the guilt of accused has to be proved beyond all shadow of reasonable doubt. For securing conviction of accused, prosecution is required to prove two things. Firstly, that the witnesses examined in the case are reliable and trustworthy. Secondly, that the evidence brought on record is sufficient to prove all the essential ingredients of alleged offence. Now let us advert to evidence led in this case in order to ascertain as to whether the witnesses examined by prosecution are reliable and whether their testimony is sufficient to establish essential ingredient of alleged offence u/s 498-A/406 IPC. But before undertaking this exercise, I deem it appropriate to go through the relevant provision of law.
26. Section 498-A IPC reads as:
"Husband or relative of husband of a woman subjecting her to cruelty-Whoever, 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.
Explanation- For the purpose of this section, '' cruelty" means
(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 12 of 17 State Vs. Kanwar Pal the woman; or
(b) harassment of the woman where such harassment is with a view to coerce 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.
27. 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. Whereas, as per explanation (b) of section 498-A cruelty means harassment of a woman where such harassment is with a view to coerce 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 by any person related to her to meet such demand. 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 some unlawful demand. Harassment 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 becomes cruelty and has been made punishable.
28. After thoughtful consideration of submissions raised from both sides and careful appraisal of entire material on record, I reach to the conclusion that the prosecution has failed to discharge the burden of proving the case beyond reasonable doubt. The various contradiction in the testimony of complainant and her mother cast a serious doubt on the truthfulness of prosecution story.
29. As per complainant's version, she was married with accused Kanwar Pal on 07.3.1991 and after few days of marriage, her husband, his mother, father, brother and sister started harassing her on account of their demand for tape recorder, scooter, washing machine. Whereas, in the statement of PW4 Chameli, there is no mention of any demand for tape recorder and washing machine. As per her version, demand for a scooter and a house was raised from them. Whereas, complainant's testimony is absolutely silent about any demand for a house as alleged by complainant's mother.
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30. As per complainant's version. her husband and his entire family started harassing her on account of dowry and on 25.3.1991, she was caught by her dever namely Dharampal and Jagat Pal, her husband tried to strangulate him and her mother in law was also standing outside the room and was saying that complainant would get punishment for not bringing dowry. Whereas, in her cross-examination, PW1 deposed that even in year 1991, she was living with her husband in a rented accommodation at Pandav Nagar and her in laws used to occasionally visit them. There is nothing on record to show as to on what occasion the other family members had visited complainant on 25.3.1991 i.e. on the date of said alleged incident.
31. In the circumstances, when other in laws of complainant were living separately, they even otherwise, were not going to gain any benefit out of fulfillment of demands allegedly raised by the accused. Moreover, complainant has alleged that after said alleged assault given to her on 25.3.1991, she raised alarm and she was saved with intervention of some neighbourers. But complainant has failed to give even the names of any of said neighbours who allegedly came to her rescue nor any such witness was examined by the prosecution.
32. It is also surprising that the complainant was allegedly tried to be strangulated by her husband just after 15-20 days of her marriage but still she neither lodged any complaint with police against said incident nor she narrated the said alleged incident to any of her family members nor she disclosed the incident even in her previous complaints, made to police at different points of time.
33. Complainant has stated that since she was interested in settlement therefore, she did not raise any such allegations in her earlier complainants. But it is pertinent to note that complainant had filed a detailed complaint on 03.4.1999 after she was allegedly thrown out of the house by her husband after an alleged compromise arrived at between complainant and her husband before panchayat held at the house of accused Kanwar Pal on 31.3.1999. Said complaint having endorsement of 16.4.1999 is available on record. Even in said complaint, there is no whisper of any of said incidents of 25.3.1991 or 16.4.1992. Complainant, first time came out with details of said two alleged incidents only in her deposition recorded before court on 24.3.2004 (wrongly mentioned as 24.3.1994 in evidence sheet). Record further reveals that a supplementary statement of complainant 14 of 17 State Vs. Kanwar Pal was also recorded by inquiry officer at CAW on 15.1.1993 but even in said statement complainant failed to disclose the said alleged incidents of 25.3.1991 & 16.4.1992.
34. In her examination in chief, complainant stated that on 18.8.1992, she was left at her parental house by her husband on the pretext that he had to go out of station in connection with some official work and there is no allegation of physical assault. But in her cross- examination PW1, she further alleged that on 18.04.1992, a quarrel had taken place and she was beaten up by her husband. But again except the oral testimony of complainant, there is no other corroborating material on record. Even complainant's mother nowhere stated that she had seen any signs of assault on the person of complainant when she reached her home on 18.4.1992 nor she claimed that she was ever informed by her daughter about said alleged assault. PW2 Chameli has also raised mere general allegation that accused Kanwar Pal used to beat her daughter on account of dowry. Complainant has also given two contradictory statement in respect of alleged panchayat samjhota arrived at between complainant and accused Kanwar Pal on 31.3.1999. In her cross- examination recorded in 19.7.2004, she first claimed that she had handed over the copy of said samjhota to police but later on, she denied that she had ever given copy of said samjhota to police.
35. PW1 in her cross-examination categorically denied the suggestion that on 18.8.1992, she was left by her husband at her parental house in a cordial atmosphere as she alleged that on 18.8.1992 a quarrel had taken place and she was beaten up by her husband. Upon such denial, PW1 was confronted with her previous statement given by her in a rejoinder filed by her to the reply of her husband to her petition filed u/s 125 Cr.PC. Certified copy of said rejoinder dated 16.10.1993 was put to the witness whereon she identified her signatures at point 'A'. PW1 was confronted with her previous contradictory statement 'A' to 'A' at page 2 of rejoinder wherein she had stated that on 18.8.1992, she was left at her parental house by her husband in a cordial manner. Despite being confronted with her previous statement in compliance of section 145 Indian Evidence Act, complainant failed to give any explanation for said contradictions in her two statement given at two different point of time.
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State Vs. Kanwar Pal
36. It is also interesting to note that PW1 in her cross-
examination recorded on 19.7.2004 has admitted that she had filed a petition u/s 125 Cr. PC. and same was listed before the court of Shri V.K.Gupta, ld. MM, KKD, Delhi whereas in her cross-examination recorded on 09.11.2004, PW1 categorically denied that she had filed any petition u/s 125 cr. PC. in the court of Shri V.K. Gupta, ld. MM, Karkardooma Clurts. PW1 however, identified her signatures at point 'A' on certified copy of said petition which is available on record as Ex. PW1/D1.
37. Besides the aforementioned infirmities and contradictions in the statement of complainant, there is one more serious flaw in the case of prosecution. The charges against accused are based on the allegations of cruelty relating to period between 07.3.1991 till 18.8.1992 i.e. from the date of marriage of complainant till her alleged desertion by her husband. The first complaint, which has formed basis of present FIR was lodged by complainant in December, 1992. Whereas, in her cross-examination, after being confronted with portion B to B at page '2' of rejoinder Ex. PW1/D-3, PW1 admitted the suggestion that she had mentioned therein that during the period w.e.f. 21.5.1992 till November, 1992 she had been continuously meeting the accused Kanwar Pal cordially and also had physical relations with him. In said circumstances, the previous statement made by the witness in her rejoinder Ex. PW1/D-3 stands proved as her admission to the effect that she had been meeting the accused Kanwar Pal even after her alleged desertion on 18.8.1992 and they continued to meet each other in the rented accommodation at 16/191 Trilok Puri up till Nov. 1992 till complainant received the summons of petition u/s 9 HMA filed by her husband Kanwar Pal.
38. The aforesaid admission on the part of complainant that she voluntarily had physical relations with the accused Kanwar Pal even after her alleged desertion on 18.8.1996 and they continued to enjoy warm relations till November, 1992 is reflective of the fact that complainant had even otherwise condoned the previous acts of cruelty allegedly committed against her by her husband.
39. The first complaint regarding alleged acts of cruelty and harassment was filed by complainant only in December, 1992. It is also an admitted position on record that complainant had given birth 16 of 17 State Vs. Kanwar Pal to a male child on 03.3.1994 (though wrongly mentioned as 03.3.1992 in examination in chief of complainant). The complainant has claimed that said child was born out of her wedlock with accused Kanwar Pal which again goes to show that as per complainant's own case, she continued to have physical relations with her husband even after her alleged desertion on 18.8.1992.
40. Furthermore, complainant has failed to give any explanation for the contradiction in her two statements. In her cross-examination, she claimed that her relation with her husband were not cordial as she was beaten up after a quarrel on 18.8.1996. Whereas in rejoinder Ex. PW1/D-3, she had stated that on 18.8.1996 she was left at her parental home in a cordial atmosphere and therefore, she could not sense any foul play and accepted the invitation of her husband to join him in his house at 16/209 Trilok Puri and gave her warm company. The keenness on the part of complainant to join the company of her husband as and when demanded by him also falsify her claim that she was tortured and harassed by her husband and other in laws on account of dowry. Complainant has further alleged that she was lured by her husband that in case she gave him her company and lived with him in said rented house, he would take back his petition u/s 9 HMA filed against her. Had that been the real intention of complainant behind resuming her conjugal relations with accused Kanwar Pal, she could have easily given her statement for expressing her willingness to resume her conjugal ties with her husband Kanwar Pal even before the court where petition u/s 9 HMA was pending and in that eventuality the said petition even otherwise would have become infructuous.
Having regard to aforesaid discussion, I am of the view that prosecution case suffers from various serious lacunas and contradiction which would certainly entitle the accused to get the benefit of doubt. Accordingly, the accused are acquitted in case FIR No. 78/93, PS Kalyan Puri. Bail bond and surety bond stand cancelled and discharged. Documents, if any, lying on record be returned back after cancellation of endorsement. Let file be consigned to Record Room.
Announced in the open court (SUNENA SHARMA)
Dated:29.9.2011 M.M./Mahila Court (E)
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