Delhi District Court
Fir No. 103/15;Ps G.K.I State vs . Ajay Dass & Ors. Page 1 Of 14 on 24 January, 2019
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila Court (SouthEast), Saket Courts, New Delhi.
FIR No: 103/2015
PS: G.K.I
U/s : 498A/34 IPC
State v. Ajay Dass & Ors.
JUDGMENT
Date of institution : 09.03.2016
Cr.C No. : 95630/2016
Name of the complainant : Radha Dass
W/o Sh. Ajay Dass
R/o H.No.A7, Chirag Enclave,
New Delhi.
Name & address of the : 1. Ajay Dass (already PO)
accused persons S/o Sh. Abhimanyu Dass
2. Basanti Dass
W/o Sh. Abhimanyu Dass
3. Preeti Dass
D/o Sh. Abhimanyu Dass
Both R/o H.NO.230/9D, Gali No.15/16,
Railway Colony, Mandawali, Delhi
Offence Complained of : U/s 498A/406/34/174AIPC
Offence Charged of : U/s 498A/34 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 24.01.2019
Date of announcing of order : 24.01.2019
FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 1 of 14
BRIEF FACTS:
1. Brief facts of the case are that since the marriage of the complainant Radha Dass with accused Ajay Dass (already proclaimed offender), he alongwith other coaccused persons subjected the complainant to cruelty and harassed her for bringing less dowry and committed cruelties upon her.
2. As per the complaint of the complainant, she got married with accused Ajay Dass on 27.06.2010 at Sanatan Dharam Mandir, Tuglakabad Extension. After marriage, she was kept well by the accused persons only for sometime but later, she was ill treated by the accused persons and accused Basanti Dass being her mother in law used to taunt her regarding the arrangements of marriage and demanded a gold chain. The sister inlaws of the complainant used to harass her on small issues. Her husband used to return home after consuming liquor and give her beatings. In August, 2010 on the occasion of Raksha Bandhan, she was visiting her mausi and thereafter, returned back to her matrimonial house at 10.30 PM, at that time, accused Ajay Dass (since PO) gave her beatings and even tried to throw the complainant from the auto. When the complainant was unwell, she was not given medical treatment and was made to work in the house. In September, 2011, there was a family meeting in which the family of accused persons promised to keep the complainant well but despite the same, the behaviour of accused persons did not change towards her. Subsequently, the complainant was ill treated by the accused persons on several occasions.
FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 2 of 143. Pursuant to this complaint dated 12.09.2014 against the accused, FIR was registered on 03.03.2015 and the matter was investigated. Charge sheet was filed on 09.03.2016. The Court took cognizance of offence and summoned the accused u/s 498A/406/174A/34 IPC. Charge was framed against accused persons namely Basanti Dass and Preeti Dass u/s. 498A/34 IPC to which they pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead. Statement of the accused Basanti Dass and Preeti Dass was recorded u/s 294 Cr.PC and copy of FIR was Ex. A and rukka was Ex. B.
4. In order to prove its case, prosecution examined three witnesses:
PW1 Smt. Radha Dass (complainant was partly examined in chief) and she deposed that on 27.06.2010, she got married with accused Ajay Dass (since PO) at Sanatan Dharam Mandir, Tuglakabad Extension. The aforesaid marriage was solemnised through her Mausi namely Ms.Anu Barman. In her marriage, several gifts and jewellery items were given to the accused persons. After marriage, she went to my matrimonial house and after few days, her mother in law Basonti Dass, her nanad Preeti Dass, Pinki Dass and Savita Dass and her husband started to harass her for bringing insufficient dowry in marriage. Her mother in law Basonti Dass had demanded gold chain and cash amount as she wanted to give the same in the marriage of her daughters namely Preeti Dass and Pinki Dass. During the aforesaid period, accused Ajay Dass, Basonti Dass and Preeti Dass used to beat her. Accused Preeti Dass and Basonti Dass told her if she would not fulfill their aforesaid FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 3 of 14 demand, then they will spoil her life by pouring kerosene oil and set on fire. Her husband used to beat her upon the instigation of her mother in law and nanad. Her husband used to come at late night in drunken condition. Her husband used to leave her at her parental house and whenever her brother namely Narang used to leave her at my matrimonial house, all accused persons misbehaved with him by manhandling and beating him. She did not make a complaint to police regarding misbehaviour of accused persons as she wanted to save her matrimonial life but the behaviour of accused persons did not change towards her.
Subsequently, the complainant did not appear before the court and was stated to be untraceable through DCP concerned and was dropped from the list of witnesses and therefore, her testimony was incomplete.
PW2 Retired SI Birma Devi deposed that in the year 2015, she was posted as SI in CAW Cell/ SED, PP Sriniwaspuri, New Delhi. On 25.09.2014, she had received call, she had received a complaint addressed to ACP, CAW Cell, Sriniwaspuri of complainant Radha Das against her husband Ajay Das. Her motherinlaw Basonti Das, her nanad Preeti, Pinki and Sarita Das. She conducted proceeding before CAW Cell and tried to settle the matter between the parties to marriage. She recorded a statement of both parties to marriage and prepared final report with recommendation for registration of present FIR and forwarded the same to superior officer. Her final report was Ex.PW2/A alongwith details of proceedings and statement of complainant and respondent with format filled by complainant which was Ex.PW2/B. She also collected the list of dowry articles given by complainant FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 4 of 14 and one estimate bill of Sharma ji tent & Decorates dt. 27.06.2010 from the complainant, which was Ex.PW2/C and Ex.PW2/D. During crossexamination on behalf of accused, PW2 deposed that she had received the aforesaid complaint on 25.09.2014 vide endorsement made on the complaint. However, complainant had filed the same complaint to CAW Cell on 12.09.2014. It was correct that she did not make endorsement with her signature on the said complaint.
PW3 Anu Barman (Aunty of the complainant) deposed that complainant Radha Dass was her sister's daughter and she got married with accused Ajay Dass (since PO) on 27.06.2010 according to Hindi Rites and Customs. In the aforesaid marriage, all utensils, mattress, rajai, bed sheet, pillow, jewellery items including gold ear rings, gold bengals for complainant, gold ring and wrist watch for accused Ajay Dass. Other relatives also gave clothes and sweets for accused Ajay Dass and his family members. All gift items given in the marriage by relatives and invitee of the marriage was taken by accused without permission of the parents of the complainant. She asked about the aforesaid gifts from father of accused Ajay Dass, namely Abhimanyu Dass but he has started abusing her. After marriage complainant was taken to her matrimonial house. After three days of marriage when complainant came back in her parental home from her matrimonial house, she told her that she was harassed and taunted by her mother in law, accused Ajay Dass by saying that her mausi which was PW3 had created nuisance for checking the gift even by relatives in her marriage at her parental house while they were taking the aforesaid gift items with them. She had been harassed by FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 5 of 14 demanding gold chain. On the next time when complainant came back to her parental home she told that she has been harassed by the accused Ajay Dass by demanding money from her. In the year 2010, on occasion of raksha bandhan when complainant came back from her matrimonial house to her house she told her that her both nanand, namely, Savita and Pinki has tortured her during her stay in matrimonial home and one occasion when she was sick and she was not able to get up, she was forced to do domestic work by saying that first do your domestic work and then take rest. On the same date, i.e. on the day of raksha bandhan, accused Ajay Dass also came in her house along with the complainant and accused Ajay Dass threatened the complainant in her house also by saying that 'tune chowmein mangwa ke kyu khaya dusre se, ek din nahi khati to mar jati'. PW3 tried to make accused Ajay Dass understand by saying to take care of his wife as she was sick. While accused and complainant were sitting on the auto for going to her matrimonial house both of them started quarrelling and accused Ajay Dass started beating to complainant and pushed her down from the auto. The said fact was narrated to her by the complainant on telephone when she went to her matrimonial house. Accused Ajay Dass used to harass the complainant without any reason and due to little issues. In the month of November 2011 complainant gave a call to her and stated that she was beaten by her husband, her both nanand, namely Preeti and Pinki. She went immediately to her matrimonial house and saw that complainant was found injured on her back and she was crying and her husband told PW3 that he did not want to keep her in the matrimonial house. Complainant told her that accused Ajay Dass took one girl in her bed FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 6 of 14 room and when she objected him, then all of aforesaid persons started beating her. PW3's husband also accompanied her to the matrimonial house of the complainant and accused persons also misbehaved with her husband. She used to make understand accused persons but they did not pay any heed Thereafter, she along with hre husband came back to her house. Complainant made a call to her and stated that her nanand namely, Preeti stated her that she would pour kerosene on her. After few months accused Ajay Dass took the complainant to her house and left her there. From then accused Ajay Dass and his family members did not come back to take the complainant with them. She made several calls to accused Ajay Dass to take her to her matrimonial home but he did not pay any heed. In September 2011, PW3 along with complainant and her sister went to matrimonial house of complainant but accused persons were not ready to keep complainant with him and threatened them by saying that 'tu mera baal bhi baaka ni kar sakti'. Thereafter, they took back the complainant and from that day she was residing with them.
During crossexamination on behalf of accused, PW3 deposed that the mother of the complainant was residing at Calcutta. They were five sisters and one brother. She along with her other two sisters Padma Chaudhary and Sauma Mandal, arranged marriage of Radha Dass. Radha Dass was residing with her prior to her marriage for about 1 or two years. PW3 was educated upto class V. She could read, write and understand Hindi and English little bit. Radha used to visit her aforesaid two sisters also after her marriage. At times she used to go to her sisters place also but most of time she used to visit her. The statement recorded by IO was never recorded in her FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 7 of 14 presence nor it was recorded on her instructions. They did not go for any medical assistance when they saw Radha injured at her matrimonial home on their visit as stated in her examination in chief. She changed her address two months ago. It was correct that whatever she stated in my examination in chief is related to the years from 20102011. Witness denied all suggestions put to her.
5. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused persons denied the allegations of prosecution as false and pleaded false implication.
6. Accused persons did not examine any witness in their defence.
7. It is argued by learned APP for State that in the present matter the complainant in her complaint have levelled specific allegations against the accused of torturing her after marriage and demanding money and dowry on one pretext or the other and also of harassing her. He has argued that even though the complainant could not step in the witness box as she was not traceable, PW3 Anu Barman being the relative of the complainant has deposed on the lines of the complaint and therefore accused is liable to be convicted.
8. On the other hand, it is argued by the learned counsel for the accused that in the present matter the star witness of the prosecution was the complainant, however, she was never examined by the prosecution and was FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 8 of 14 found untraceable and subsequently dropped form the list of witnesses. He has further argued that in the present matter since the complainant was not examined, her complaint does not stand proved and PW3 examined by the prosecution has herself stated during her crossexamination that the incidents narrated by her were for the period between 20102011. Further, PW3 is only a hearsay witness as she was never present when the alleged incidence of harassment or torture was committed with the complainant. Further, apart from PW3, remaining witness examined by the prosecution are formal in nature. Further, the present complaint was filed against the accused persons with intention to harass the accused and therefore no incriminating evidence has come on record against the accused and accordingly he is liable to be acquitted.
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
Observations qua offence u/s 498A/34 IPC :
(i) The case of the prosecution rests on the assertion that after the marriage of the complainant with accused on 27.06.2010 and she lived with the accused till September, 2014 and thereafter she filer her complaint with the police on 12.09.2014. Further, that almost during four years of the marriage between the parties, complainant was subjected to physical and mental cruelty on account of failure by her to meet unlawful demands of dowry raised by the FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 9 of 14 accused. It is admitted by the accused persons that the marriage between the parties were solemnized on 27.06.2010 but they have refused that the complainant resided with them and have stated that she always lived separately with accused Ajay Dass. Accused has denied the allegations of cruelty or harassment or demanding of dowry and raised manifold defences.
(ii) It is the foremost defence of the accused that the prosecution has miserably failed to prove its allegations of cruelty of any nature upon the complainant by the accused. As per complaint, the complainant lived with the accused persons at house No.229/E28, Railway Colony, Mandavali, New Delhi and the same is denied. It is further argued that even the contents of the allegations of complaint have not been proved as the complainant has not been examined and the remaining witnesses are formal in nature. The allegations in the aforesaid complaint have not been reiterated in the testimony of PW3. It has also come in evidence in the testimony of PW3 that she came to know regarding the alleged incidence only through the complainant and was never present when the alleged incidence occurred.
(iii) Further it is observed that the contents of complaint are not reiterated by her mausi as PW3. Further in the present matter, prosecution had examined only three witnesses and complainant, PW Radha Dass did not appear in the witness box despite knowledge of pending proceedings in the present matter.
No other family member of complainant was cited as a witness and all remaining witnesses were formal in nature. Further, only public witness FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 10 of 14 examined by the prosecution was PW3 who being the relative of the complainant was an interested witness. Further, PW3 had admitted during her crossexamination that she did not remember the exact date of any demand and she further admitted that she did not remember the exact, date month or year when the accused had misbehaved with the complainant. Credibility of such an allegation is also dubious for the reason that there is not even any averment made by the complainant against the accused of having committed cruelty for demand of dowry which could lead the complainant to commit suicide.
(iv) It has been asserted by the complainant that there were demands made by the accused, however, there is no specification of the amount of cash demanded by the accused or his family members after few days of marriage or even the amount paid by the complainant to the accused in fulfillment of any of his demand. The allegation of demand are unspecified and also obscure. As such, the allegations of demand of dowry by the accused lack credence.
(v) Further, as per complaint there is no specification of the manner in which the complainant was mentally or physically harassed by the accused or his family. The complaint as well as testimony of PW3 is silent on the specific date, month, year, event or occasion of any beating given to the complainant by the accused or the manner of such beating i.e. slapping, kicking, keeping her without food for days etc. Admittedly, the complainant did not lodge any FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 11 of 14 complaint regarding any such alleged beating or harassment prior to the present complainant and are, therefore ambiguous and vague.
(vi) Further, there is neither any averment nor any piece of evidence in the form of a medical report or otherwise, to draw a logical inference of such a threat to be of a nature likely to have driven the complainant to commit suicide or caused grave injury or danger to her life limp or health. In absence of any assertion to this effect, it cannot be assumed that such a threat or alleged callous or indifferent behavior of the accused was with a view to coercing her to meet any demand for property or valuable security or on account of her failure to meet such demand. Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : ".....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.
Explanation (b) to Section 498A provides that cruelty means 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 to meet such demand.
Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 12 of 14 namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. 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 it is cruelty and this is made punishable under the Section...."
(vii) Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, wherein Hon'ble Bombay High Court observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands. Hon'ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section 498A IPC.
FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 13 of 14(viii) Even the allegations that the accused used to gave beatings to the complainant have not been corroborated by any reliable piece of evidence. There are discrepant statements regarding the allegations levelled by the complainant against the accused. Therefore, the allegations levelled by the complainant are discrepant and devoid of specific details and as such does not inspire confidence of the court.
(ix) Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted.
(x) As such there is no convincing evidence on record to believe the allegations of the prosecution regarding commission of offence u/s 498A IPC. Accused Basanti Dass and Preeti Dass are accordingly acquitted of offence U/s 498A/34 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 24.01.2019 Metropolitan Magistrate,
(Mahila Court02), SouthEast,
Saket, New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2019.01.25
16:14:52
+0530
FIR No. 103/15;PS G.K.I State Vs. Ajay Dass & Ors. Page 14 of 14