Delhi District Court
State vs . Virender Singh & Others on 28 October, 2013
FIR No.336/99
PS Dabri
State Vs. Virender Singh & 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:336/99
PS: DABRI
U/s: 498A/406/34 IPC
State Vs. Virender Singh & Others
JUDGMENT
Date of institution : 15.04.2002
Name of the complainant : Smt. Sunita Devi @ Savita
Name & address of the accused : 1. Virender Singh
S/o Shri Tota Ram
2. Subhash
S/o Shri Tota Ram
3. Smt. Kamla Devi
W/o Shri Subhash
All R/o Village Jasupura, PS
Amapur, District Etah, UP
4. Rajbir Singh
S/o Shri Ved Ram
28.10.2013 Page No. 1/18
FIR No.336/99
PS Dabri
State Vs. Virender Singh & others
u/s 498A/406/34 IPC
5. Ramawati
W/o Rajbir Singh
Both R/o F381, Sudarshan Park,
Moti Nagar, New Delhi
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 : 28.10.2013
BRIEF FACTS:
1. The case of the prosecution in brief is that accused Virender Singh (husband of the complainant), accused Subhash (Jeth of complainant), accused Kamla Devi (jethani of complainant), accused Rajbir Singh (husband of sister in law of complainant) and accused Ramawati (sister in law of complainant) harassed the complainant Sunita 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. 28.10.2013 Page No. 2/18 FIR No.336/99
PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC
2. 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 20.01.2004 charges were framed U/s 498A/406/34 IPC against the accused persons to which they plead not guilty and claim trial.
3. In order to prove its case prosecution has examined 3 formal police witnesses and 4 public witnesses in all and the prosecution evidence was closed vide order dated 13.08.2013.
4. Brief testimony of witnesses: PW1, SI Santosh is the Duty Officer, who has proved the registration of FIR No.336/99 u/s 406/498A as Ex.PW1/A. PW2, Smt. Sunita Devi @ Savita is the complainant who has stated that her marriage with accused Virender Singh got solemnized on 14-02-1986 at Village Nangla Malkhan, District Eta, UP according to Hindu Rites and Customs and her parents gave sufficient dowry articles to the accused persons. She has further stated that after marriage she was taken to matrimonial home at Village Jasupura, District Eta along with all the dowry articles. After the marriage she was given beatings by her in laws. Her husband Virender Singh used to beat her daily 28.10.2013 Page No. 3/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC after taking liquor and never paid any money for household expenses. Her husband Virender Singh along with his parents had asked complainant to bring Rs.50,000/- from her parents but complainant showed her inability as that amount was beyond the capacity of her parents. She has further stated that her husband left her at Mahavir Enclave where they were residing on rent and took all the dowry articles with him. She tried to trace him but she could not find him. Once accused met her at Jehangir Puri and he was brought at Mahavir Enclave and matter was compromised at PS Dabri where she had given her complaint, however after 4-5 days, accused Virender Singh attacked her with a "belan" and she sustained injuries on her head. Police was called and accused Virender Singh was apprehended and complainant took medical aid. Complainant has given complaint to CAW Cell which is Ex.PW2/A in which she had given the list of articles which were in the custody of accused Virender Singh. She had demanded back her dowry articles and the articles which were purchased during their stay in rented premises but accused refused to return the same. She has further stated that complainant had gone to reside with accused Virender Singh in a rented accommodation at Najafgarh during the pendency of the present case as per advice of Hon'ble Court however he did not keep her well there. He used to come with other persons in that home and used to take liquor with them 28.10.2013 Page No. 4/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC and he did not provide food and clothes to the complainant and her children and he again left the complainant in that rented premises and went away. He is not maintaining her and her children. She has further stated that she went back to matrimonial home and asked for her dowry articles however accused jeth Subhash Chand and mother in law Ram Rati did not allow her to stay there and did not return her dowry articles and stated that all dowry articles are with her sister in law as her husband had taken them there. When she visited to her sister in laws house, she stated that her husband had taken all the articles from there and on this pretext she refused to return the same. All the dowry articles are still in the possession of husband and in laws of complainant.
In her cross examination, she has stated that her father was a barber in District Etah, UP and he used to work as farmer as well and earn 35 quintals of wheat per annum. Complainant was unemployed at the time of her marriage and after year of marriage, she moved to Delhi and stayed in Sudarshan Park, Delhi. Her daughter was born in the year 1991 and son was born in the year 1995 and presently she is staying in Laxmi Vihar, Najafgarh and is working as domestic help and taking care of her children . She is staying away from her in law since last 13 years and the demand of Rs.50,000/- was made by her husband about 28.10.2013 Page No. 5/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC twelve years ago. She had voluntarily left the articles which were received by her, in her matrimonial home. She has further stated that she is not acquainted with Ahmad Khan. She has denied that she had stayed with Ahmad Khan. She has further stated that she is not receiving any financial help from her husband and she had gone to reside with her husband at the behest of Ld. court along with her children and stayed there for 2-3 days. She left her husband's house because she was not satisfied with the furniture and other household articles and she was dropped back at her residence with the consent of her husband. She has further stated that she has no dispute with her husband except that she wants him to pay some monthly maintenance so that she can take care of herself and her children and she is ready to reside with her husband if this condition is met. She has denied that there was no demand of any amount referred to in her complaint and in her statement.
PW3, Ct.Surender Kumar, who on 14-12-1999 arrested accused Virender Singh vide arrest memo Ex.PW3/A and took his personal search vide memo Ex.PW3/B however nothing could be recovered from him. This witness was not cross examined by Ld. counsel for accused.
PW4, Anand Kumar, is the brother of complainant who stated that marriage of his sister was solemnized with accused Virender Singh in the year 28.10.2013 Page No. 6/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC 1996 and after marriage she went to her matrimonial home and he does not know about the relation between the couple and their relatives. Thereafter, his sister and her husband came to Delhi and he does not know what has happed at Delhi.
Ld. APP cross examined this witness as he has resiled from his previous statement. In cross he has stated that he is eldest amongst all brothers and sister and one day his sister told him regarding some quarrel between them and he sorted out the matter. He has denied that his sister told him regarding the harassment and cruelty on account of dowry at the hands of accused party. He denied that when couple started living in Delhi accused Virender demanded Rs. 50,000/-from her sister and started harassing her. He stated that he does not know when his sister was living in matrimonial home, accused Virender, Subhash, Kamla Devi, Ramwati and Rajbir Singh used to harass her on account of dowry. He denied that dowry articles of his sister were in matrimonial home of his sister. Vol. He does not know what has happened to dowry articles of his sister. He denied that he has been won over by accused persons as such he is deposing falsely. He further denied that he wanted to protect accused persons from due process of law. He denied that he is under any pressure or coercion from accused persons in order to depose in their favour. He denied that his sister was being 28.10.2013 Page No. 7/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC subjected to harassment and cruelty on account of dowry from the hands of accused persons. This witness was not cross examined by Ld. counsel for accused.
PW5, Shri Dammar Singh, is the father of complainant who stated that marriage of his daughter was solemnized with accused Virender Singh and after few months of marriage, accused Virender and in laws of his daughter namely Subhash, Kamla, and Ramawati started harassing his daughter. He stated that accused Virendar Sing had sold his property in favour of jet and jethani of his daughter. The accused also demanded Rs.50,000/- from him through his daughter however he could not pay the same. The accused Virender has misappropriated the dowry articles and did not return the same to his daughter.
In his cross examination, he stated that presently accused persons are not residing jointly however at the time of marriage they were residing jointly. Subhash and Virender were living separately when his daughter told him that they were harassing her. The sister in law and her husband were also living separately when his daughter told him that they were harassing her. He further stated that Rs. 50,000/- were demanded in cash which he could not pay and thereafter all accused persons left his daughter at his place. He denied that he has deposed falsely.
PW6, Ranbir Singh is the brother of complainant who has stated that marriage of his sister was solemnized with accused Virender Singh about ten 28.10.2013 Page No. 8/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC years back as per their capacity and status and after marriage she went to her matrimonial home and he does not know about the relation between the couple and their relatives since his father was the head of their family and he does not want to say anything more.
Ld. APP cross examined this witness as he has resiled from his previous statement. In cross he has stated that he cannot say exactly as to years of the marriage of his sister as he was very young at that time however it happened around 1986, 1987, 1988. he has further stated that he cannot say that his sister was harassed by her in law for demand of dowry. Vol. She might have told all those incidents to his father as his father used to take all the decisions and was the head of the family. He has further stated that he cannot say as to whether accused demanded Rs.50,000/- from his sister and for that they used to harass her. He denied that accused have misappropriated the dowry articles of his sister and have not returned the same despite demand. He does not know the family members of in laws of his sister except Subhash, Jeth who used to do agriculture work. He denied that he has dispute with his sister as such he is deposing against her. He denied that he has been won over by accused persons as such he is deposing against his sister. He denied that he is under any pressure or coercion from accused persons in order to depose in their favour. He stated that he does not know the 28.10.2013 Page No. 9/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC atrocities upon his sister as he was very young at that time and his father was the head of the family.
In cross examination by Ld. Counsel for defence, he has stated that he does not know how his statement Ex.PW6/PX1 was recorded by IO.
PW7 SI Jasmohinder Choudhary who stated on 07-5-1999, he was entrusted FIR No.336/99 for investigation and he had recorded statement of witnesses and during investigation, he went to Etah to arrest accused but he could not find them and thereafter on 14-12-1999, accused Virender was arrested by him vide Ex.PW3/A and thereafter he got transferred and he handed over the case file to MHCR and he has correctly identified the accused persons.
In his cross examination, he has stated that the signatures of person who has given information regarding arrest of accused has not been obtained as intimation was given telephonically. He does not remember the day on 14-12-1999. He denied that accused was not arrested by him and arrest memo Ex.PW3/A was not prepared by him.
5. The statement of the accused persons Virender Singh, Subhash, Ramwati and Rajbir Singh 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 28.10.2013 Page No. 10/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC fabricated. Accused Subhash has stated that his marriage was solemnized much prior to the marriage of complainant and her husband Virender and he was living separately and he never interfered in the life of complainant and her husband Virender. Accused Ramwati and Rajbir Singh have stated that their marriage was solemnized much prior tot he marriage of complainant and her husband Virender and they were living separately and they have never interfered in the matrimonial life of complainant and her husband. Accused Virender Singh has stated that complainant is a lady of quarrelsome nature and used to pick up fight on petty issues and she was not ready to live in matrimonial home and she has always insisted to shift to Delhi and when he shifted to Delhi with her, she continued to harass him without any reasons due to her quarrelsome nature. He has further stated that during proceedings, they reached to an amicable settlement and mutual consent divorce was also passed but she never appeared in Hon'ble High Court of Delhi for getting quashed the present FIR after taking divorce as she wanted to harass him and his family members. They opted not to lead the evidence in their defence.
6. 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. Her own 28.10.2013 Page No. 11/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC brothers have not supported the allegations made by the complainant in their testimony. The allegations made by the complainant are general in nature and are not sufficient to sustain conviction.
7. I have carefully considered the rival arguments and have also perused the record carefully.
8. At the outset it is noted that accused Kamla Devi has expired during trial and the proceedings qua her were abated vide order dt.20.07.2011.
9. Regarding guilt of accused Virender Singh (husband of the complainant), accused Subhash (Jeth of complainant), accused Rajbir Singh (husband of sister in law of complainant) and accused Ramawati (sister in law complainant) for the offence punishable u/s 498A/34 IPC, it is borne out of the evidence of complainant that she has made general and vague allegations that accused persons used to force her for bringing cash of Rs.50,000/ and on her inability to meet the said demand due to the poor financial condition of her parents, accused persons had given beatings to the complainant. Her evidence is found lacking in respect of specific details like any time, date, month, year, place or occasion of such cruelty/ harassment. It is settled law that allegations of cruelty should not be vague and general in nature nor should they be wanting in details and substance. In the case of cruelty specific acts of cruelty and the 28.10.2013 Page No. 12/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC occasions when, and the place where such acts were committed have to be pleaded and vague allegations of cruelty are not sufficient to convict the accused.
10. The overall testimony of the complainant further manifests that her real grievance is that her husband accused Virendar never maintained her and her two children. She specifically stated in her crossexamination that she has no dispute with her husband except that she wants him to pay some monthly maintenance so that she can take care of herself and her children and she is ready to reside with her husband if this condition is met. Presuming for the sake of arguments that the allegation of non maintenance are correct, then only it is a case of "domestic Violence" but certainly does not amount to 'cruelty' as envisaged under Section 498 A IPC. It is settled law that it is not every harassment which comes within the purview of Section 498A but there should be demand coupled with cruelty; it must be established that beating and harassment was with a view to force the married woman to harm herself or to fulfill illegal demands of husband and in laws. (Reliance in this regard may be placed on Smt. Sarla Prabhakar Waghmare v. State of Maharashtra & Ors. 1990 (2) RCR 18 , Richhpal Kaur v. State of Haryana & Anr. 1991 (2) RCR 53, Kans Raj v. State of Punjab & Ors. 2000 (5) SCC 207 and State of Himachal Pradesh v. Nikku Ram & Ors. (1995) 6 SCC 219).
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PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC
11. The complainant stated in her evidence that she was beaten up by the accused persons in her matrimonial house and her husband accused Virendar Sing used to beat her daily after taking liquor. No such allegation was leveled by the complainant against the accused persons in her complaint made to CAW Cell. Moreover, no medical document/ certificate has been filed by the complainant to support her testimony that accused persons used to give her beatings. The complainant has also deposed that the accused Virender Singh attacked her with belan when she started residing with him on reaching compromise at PS Dabri and she received injuries on her head but again no medical document has been filed by the prosecution.
12. PW5/ father of complainant Shri Dammar Singh is only a hear say witness. He has not deposed in his evidence that any demand was raised by the accused from him or from her daughter in his presence and he stated that his daughter only informed him about the demands. So his testimony being in realm of hearsay evidence, is not admissible in evidence. The father of complainant / PW5 has also admitted in his cross examination that accused Subhash, Rajbir and Ramwati were living separately when he was informed of harassment of his daughter by the complainant. The said accused persons also stated in their statement u/s 313 Cr.P.C. that they were living separately from the complainant and accused Virender and they have never interfered in the life of complainant 28.10.2013 Page No. 14/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC and her family. Thus, the testimony of PW5 corroborates the plea of accused Subhash, Rajbir and Ramwati that they were living separately from the complaint and her husband accused Virendar Singh and never interfered in their matrimonial life.
13. The own brothers of complainant, PW4 Shri Anand Kumar and PW6 Shri Ranbir Singh have also not supported the prosecution and pleaded total ignorance regarding the harassment of the complainant by accused persons on account of dowry demands. The prosecution also failed to extract anything supporting the prosecution in their detailed cross examination by Ld. APP. The testimony of PW4 and PW6 create cloud of doubt over the entire story of the prosecution.
14. In view of the aforesaid reasons, 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 persons Virender Singh, Subhash, Ramawati and Rajbir Singh are acquitted for the offence punishable U/s 498A/34 IPC.
15. 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 28.10.2013 Page No. 15/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC 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 prescriting 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".
16. 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.
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PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC
17. The accused Virender Singh (husband of complainant) is only facing trial u/s 406 IPC. The complainant has not specifically stated in her evidence that which of her istridhan articles was entrusted to the accused Virender and at what time and place. She has stated in her evidence that her husband refused to return the articles which was purchased by her and her husband during their stay in rented accommodation. Thus, by the own admission of complainant, the dowry articles were not exclusively owned by her and were purchased by complainant and her husband while they were living together after solemnization of their marriage. So, she has no exclusive right over those articles.
18. The complainant has further stated that her husband took all the articles to the house of her sister in law. She stated that the said fact was told to her by her sister in law. But she has not stated the time, date, month or year of the said disclosure. She also stated that later on she demanded the articles from her sister in law. Again her evidence is silent regarding any specific time or place of such demand. It is noteworthy that she has not stated that she made demand of return of her dowry articles to her husband. She again, thereafter, made sweeping statement that all the articles are in possession of her husband and in laws. Thus, the complainant has not specifically stated that at what time and place, she entrusted which of her dowry articles to whom and when she 28.10.2013 Page No. 17/18 FIR No.336/99 PS Dabri State Vs. Virender Singh & others u/s 498A/406/34 IPC demanded the same. Her evidence is totally general and vague without any specific details.
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. I have no hesitation to hold that the prosecution has failed to bring home the guilt of accused Virender Singh U/s 406 IPC beyond reasonable doubt. So, he is acquitted from offence punishable U/s 406 IPC.
ANNOUNCED IN OPEN COURT (PRIYA MAHINDRA)
th
ON 28 OCTOBER, 2013 METROPOLITAN MAGISTRARTE
MAHILA COURT02/DWARKA
NEW DELHI
28.10.2013 Page No. 18/18
FIR No.336/99
PS Dabri
State Vs. Virender Singh & others
u/s 498A/406/34 IPC
28.10.2013 Page No. 19/18