Delhi District Court
Fir No.614/95 State vs . Chander Parkash Arora Etc. Ps:Janak ... on 26 June, 2013
FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
IN THE COURT OF MS. EKTA GAUBA:
METROPOLITAN MAGISTRATE
(MAHILA COURT)3,WEST, TIS HAZARI COURTS,
DELHI
State Vs. Chander Parkash Arora Etc.
FIR No: 614/95
P.S. Janak Puri
U/s 498A/406/34 IPC
JUDGMENT
1. Case Unique I.D. No. : 02401R1466042007
2. Date of complaint : 05.06.1995
3. Name of the complainant : Smt. Komal Arora
4. Name, parentage & addresses of
the accused persons : Accused No.1 Chander
Parkash Arora S/o Sh.
Om Parkash Arora
R/o A28C, DSIDC
Flat, Paschim Puri,
New Delhi & also
R/o H1/15, Budh
Vihar, PhaseI, New
Delhi (declared
Proclaimed Offender
vide order dated
18.04.2011)
Accused No.2 Om
Parkash S/o Sh. Karam
Chand R/o H1/15, Budh
Vihar, PhaseI, New
State Vs. Chander Parkash Arora Etc. Page No.1
FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
Delhi (proceedings
against accused no.2
Om Prakash stands
abated vide order
dated 24.07.2009)
Accused No.3 Shanti
Devi W/o Sh. Om
Parkash Arora
R/o H1/15, Budh Vihar,
PhaseI, New Delhi.
Accused No.4 Inder
Kumar S/o Sh. Om
Parkash Arora R/o
H1/15, Budh Vihar,
PhaseI, New Delhi
(discharged vide order
dated 09.11.2011)
Accused No.5 Veena
Rani W/o Inder Kumar
R/o H1/15, Budh Vihar,
PhaseI, New Delhi
(discharged vide order
dated 09.11.2011)
Accused No.6 Kailash
Kumar S/o Sh. Om
Parkash Arora R/o
H1/15, Budh Vihar,
PhaseI, New Delhi
(discharged vide
order dated 09.11.2011)
State Vs. Chander Parkash Arora Etc. Page No.2
FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
Accused No.7 Krishan
Chand S/o Hukam Chand
R/o D1/4, Budh Vihar
Delhi (proceedings
against accused no.7
Krishan Chand stands
abated vide order
dated 01.06.2013)
5. Offence complaint of : U/s 498A/406/34 IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 25.06.2013
BRIEF REASONS FOR SUCH DECISION :
1. Accused have been forwarded by the SHO of PS Janak Puri to face trial U/s 498A/406/34 IPC.
2. In a nut shell, the prosecution story is that complaint was made by complainant PWKomal Arora that during the subsistence of her marriage with the accused no.1 Chander Prakash Arora since 17.07.1994, her husband accused no.1 Chander Prakash Arora alongwith his mother accused no.3 Shanti Devi in furtherance of their common intention have subjected complainant to cruelty in order to compel her to fulfill their demand for dowry and both the State Vs. Chander Parkash Arora Etc. Page No.3 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri accused namely accused no.1 Chander Prakash Arora and his mother accused no.3 Shanti Devi in furtherance of their common intention have also wrongfully misappropriated the istridhan of the complainant entrusted to them and converted the same to their own use & caused wrongful loss to complainant. On the complaint, present FIR was registered and after completion of remaining investigation, charge sheet was filed in the Court.
3. Copy of charge sheet was supplied to the accused persons free of cost U/s 207 Cr.P.C.
4. Before hearing the arguments on charge, accused no.2 Om Prakash and accused no.7 Krishan Chand have expired and so the proceedings against accused no.2 Om Prakash stands abated vide order dated 24.07.2009 as accused no.2 Om Prakash had expired on 05.12.2003 and proceedings against accused no.7 Krishan Chand stands abated vide order dated 01.06.2013 as accused no.7 Krishan Chand had expired on 03.10.1996.
5. Accused no.1 Chander Prakash Arora did not appeared and absconded and accused no.1 Chander Prakash Arora was declared Proclaimed Offender vide order dated 18.04.2011. State Vs. Chander Parkash Arora Etc. Page No.4 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
6. Finding a prima facie case against accused no.1 Chander Prakash Arora and accused no.3 Shanti Devi only, accused no.1 Chander Parkash Arora (since Proclaimed Offender) and accused no.3 Shanti Devi are charged U/s 498A/406/34 IPC, to which accused no.3 Shanti Devi pleaded not guilty and claimed trial.
7. Since there was no prima facie case against the remaining alive accused persons namely accused no.4 Inder, accused no.5 Veena Rani and accused no.6 Kailash Kumar so, they are accordingly discharged vide order dated 09.11.2011.
8. Prosecution to prove its case examined five witnesses namely PW1Smt. Komal Arora, PW2SI Ramzan Ali, PW3 SI Babu Lal, PW4Inspector Ram Kishan, PW5ASI Joginder.
9. Statement of accused Shanti Devi U/s 313 Cr.P.C was recorded separately wherein accused Shanti Devi denied the allegations levelled against her and stated that the marriage of her son accused no.1 Chander Prakash (since PO) was solemnized with the complainant on 17.07.1994 and alleged that this is a false case and there was no kind of dispute between her and the complainant State Vs. Chander Parkash Arora Etc. Page No.5 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri and she had taken the complainant to a doctor when complainant informed that she might be expecting and on returning from the doctor, complainant told her that she wanted to visit her parents and her son accused no.1 Chander Parkash had taken her to her parents, however, complainant never returned back and once the matter was also compromised before the court and she alongwith her son accused no.1 Chander Parkash started residing separately. However, complainant did not resided with her son for long and even left him. Also, the accused Shanti Devi chose not to lead defence evidence.
10. I have heard the arguments advanced by the Ld. APP for the State as well as the Ld. Counsel for the accused and gone through the case file carefully and thoroughly.
11. Prosecution in order to prove its case, examined formal witness like PW5 ASI Joginder and he stated that on 08.09.1995 at about 2.20 am, he received a rukka sent through DAK and on the basis of same present FIR was registered by him and copy of FIR is Ex.PW5/A.
12. Prosecution in order to prove its case also examined PW2 SI Ramzan Ali and he stated that on 07.06.1995, he received State Vs. Chander Parkash Arora Etc. Page No.6 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri the complaint of Smt. Komal Arora which is on record and is Ex.PW1/A and he being the enquiry officer also received the list of dowry articles which is Ex.PW1/B which was attached by the complainant with her complaint. He further stated that he received the list of remaining dowry articles Ex.PW1/C from the complainant in 1995 and he being the enquiry officer recorded the statement of complainant Smt. Komal Arora on 19.07.1995, statement of Om Prakash on 26.06.1995 and statement of Kishan Chand on 28.06.1995 which are Ex.PW2/A (colly) and he submitted the final report Ex.PW2/B. He further stated that after completion of enquiry as there was no reconciliation, the case was marked to concerned investigation officer for further proceedings.
13. Prosecution in order to prove its case examined the most crucial witness complainant cum victim cum sole eye witness i.e. PW1 Smt. Komal Arora and she stated that she was married to Sh. Chander Prakash Arora on 17.07.1994 in accordance with Hindu rites and ceremonies through a middle woman Smt. Bishni W/o Sh. Kishan Lal. She further stated that dhaka ceremony was held on or about January 1994 in which her parents gave gifts worth Rs.5,500/ to her husband and his parents and the said gifts included cash of Rs.3,100/. She further stated that from the date of fixing of State Vs. Chander Parkash Arora Etc. Page No.7 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri marriage itself and after the demise of said middle woman Smt. Bishni, her husband, her mother in law, her father in law, her jaith & jaithani used to make demands for dowry and even tried to break her marriage, but due to intervention of Sh. Praveen Kumar, relative, son in law of her mother in law her marriage was settled. She further stated that on 16.07.1994 at the time of betrothal ceremony, her parents gave a golden ring, T.V. Set, wrist watch, fruits, sweets, dry fruits and Rs.3,100/ in cash to her husband and her parents also arranged for meals of 4245 persons and the expenditure incurred might be approximately Rs.12,500/. She further stated that the gifts were given to them i.e her husband, her in laws, as demanded by them. She further stated that on 17.07.1994 on the day of solemnization of marriage her parents gave her following gifts i.e one almirah, one stool, sofa set, dressing table, double bed, T.V (black & white), gold ring to Chander Prakash, one gold set to her and other clothes i.e. 11 suits and sarees, two warm gents suits for Chander Prakash. She further stated that as per her, her parents spent Rs.70,000/ in cash at her marriage besides the following gifts and the said gifts were given to her by her parents so that the same could be utilized for her benefit. She further stated that all her istridhan articles were taken on the day first itself by her mother in law as soon as she reached her matrimonial house even the gold earnings of State Vs. Chander Parkash Arora Etc. Page No.8 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri her and all her gold jewellery and clothes were taken over by her mother in law. She further stated that after 2 to 4 days of her marriage, her husband and her mother in law accused Shanti Devi started raising demand from her for cooler, a colour T.V, scooter and they also demanded from her cash of Rs.5,000/ or Rs.10,000/ and on many occasions they even raised the demand for cash more than the stated sum. She further stated that all her in laws used to quarrel with her and pressurized her to bring the above mentioned things from her parents and she conveyed their demands to her parents who gave a scooter, black and white T.V to the accused persons still they were not satisfied. She further stated that on non fulfillment of their demands, she was thrown out of matrimonial home and left at her parental home by her husband Chander Prakash and her husband did not came to take her back to her matrimonial home and thereafter she made a complaint at CAW Cell. She further stated that after 1516 days of her marriage, her husband alongwith her jethani on the pretext of going outside for traveling took her deceptively to Garg Nursing Home at Avantika, Rohini. She further stated that on reaching the said hospital, it was revealed to her that her husband and her jethani requested the doctor to issue a medical certificate whereby she be declared as a mad woman and doctor in a rapid fire manner asked her many questions to which she gave satisfactory State Vs. Chander Parkash Arora Etc. Page No.9 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri answer and consequently the doctor did not issue the said certificate, however, doctor gave a medicine to her husband asking to give her the same and on reaching home, she was asked by her husband to consume the same, however, she asked him the reason that why she should she consume such medicine and to tell her if she is suffering from any ailment and on which her husband had no valid reason and he forced her to consume the said medicine. She further stated that after 34 days of her marriage when she requested her mother in law accused Shanti Devi to allow her to cook food on gas stove as at her parental home she used to cook food on gas stove and she had never cooked food before on heater, her mother in law taunted her that everybody can cook food on heater and she was intentionally making such excuses and her mother in law also slapped her when she requested her to cook food on gas stove. She further stated that her husband and in laws used to force her to bring cash on various repeated occasions from her parents on the pretext that her husband had to set up a business of making readymade shirts and so on various occasions she gave her husband cash of Rs.20,000/, Rs.10,000/ so that he could set up the said business, however, he was not satisfied with the same and kept on making from her further demands to bring more cash. She further stated that her husband also asked her to bring a scooter after a month of her marriage and she State Vs. Chander Parkash Arora Etc. Page No.10 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri told the said to her parents who were not able to arrange the same due to financial constraint and she told to her husband and requested him that her parents due to financial constraint are not in position to fulfill his said demands and on knowing the same her husband and her mother in law treated her with physical and mental cruelty and they used to beat her, used filthy language against her and her family and on many occasions she was not even allowed to have proper meals. She further stated that finally in the month of August 1994, her husband turned her out of her matrimonial home and left her at her parental home and threatened her not to come back to him till her parents agree to give scooter to her husband. She further stated that when her parents tried to contact her husband and in laws, it was made clear to them that until and unless their said demands made by her husband and her mother in law would not be fulfilled, they will not take her back in her matrimonial home. She further stated that due to lapse of time unfortunately, she is not in a position to tell the exact date of incident that occurred to her, however, it is true that she was treated with mental and physical cruelty by her husband and in laws for fulfilling their unlawful demands. She further stated that when she was turned out of her matrimonial home, all her jewellary and istridhan articles were still in the possession and custody of her husband and her mother in law and despite repeated demands of her, State Vs. Chander Parkash Arora Etc. Page No.11 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri the said were not returned to her by accused person. She further stated that her complaint made to CAW Cell is Ex.PW1/1 and list of her istridhan articles is Ex.PW1/B and the list of remaining istridhan articles is Ex.PW1/C. She further stated that the few istridhan articles were returned to her through the instance of CAW Cell and court, however, all her original gold jewellary which were given to her by her in laws at the time of her marriage is still in the possession of her husband and her mother in law and her mother in law had malafidely and intentionally converted the same into fake peetal jewellary with gold polish over it and she had presented the same in CAW Cell. She further stated that however, as she could recognize the said jewellary to be fake so she did not claim the same and the original gold jewellary should be returned to her. She further proved the wedding card is Ex.PW1/D, original istridhan receipts are Ex.PW1/B (colly) running into two pages and the medical prescription of Bansal Clinic and Nursing Home is Ex.PW1/F.
14. Prosecution to prove its case examined PW4 Inspector Ram Kishan the first Investigating Officer and he stated that on 09.02.1995, he was handed over the investigation in the present case and during investigation he again examined all the witnesses and State Vs. Chander Parkash Arora Etc. Page No.12 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri also obtained their new addresses, recovered the dowry articles and deposited the same in malkhana and he also collected the marriage wedding card, list of istridhan articles, balance list, photocopies of the bills pertaining to istridhan articles. He further stated that he arrested all the accused persons in the present case and released them as they were already on anticipatory bail. He further proved the Seizure memo of istridhan articles is Ex.PW4/A, Wedding Card is already Ex.PW1/B, receipt of istridhan articles is already Ex.PW1/E (colly). At this stage, he was cross examined at length by the Ld. APP for the State as he was not disclosing the complete facts.
15. Prosecution to prove its case examined PW3 SI Babu Lal, second Investigating Officer and he stated that he was handed over the investigation in the present case on 12.05.2007 and during investigation, he again reexamined all the witnesses and also obtained their new addresses. He further stated that he with the help of complainant, got the address of Bansal Clinic and Nursing home at C10, Milap Nagar, Uttam Nagar, New Delhi and when he went to the said address, he came to know that said clinic has been shifted to some other address and a residential house was constructed at the said location. He further stated that he conducted inquiry about the doctor and his clinic, however, he could not get any information in State Vs. Chander Parkash Arora Etc. Page No.13 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri this regard and he also tried to make inquiry with respect to doctor Sanjay Garg nursing home, Avantika, Rohini, Delhi and when he went to said place, he came to know that doctor Sanjay Garg had expired in a road accident that occurred on 18.06.2000 and no record pertaining to complainant was available in the said clinic. He further stated that he obtained the photocopy of legal notice, death certificate of doctor Sanjay Garg, old complaints of the complainant and the copy of cases which have been filed in the court and he put all the said documents on the file and he sent notice to the accused namely Om Prakash, Shanti Devi, Chander Prakash, Inder Kumar and Veena Rani, Kailash Kumar, Kishan Chand and asked them to attend the investigation and on which accused namely Shanti Devi Inder Kumar, Om Prakash, Kailash Kumar and Veena Rani attended the investigation in the present case. He further stated that he also went through the complaint filed by the complainant and on perusing the same, he came to know that the complainant had not mentioned about the handing over her istridhan articles to the accused persons and he also came to know that the accused Om Prakash had expired on 05.12.2003 and mediator in the marriage namely accused Kishan Chand had also expired on 03.10.1996 and the premises bearing No.A28C, DSIDC Flats, Paschim Vihar, New Delhi belonging to accused Chander Prakash Arora were found to be locked and he State Vs. Chander Parkash Arora Etc. Page No.14 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri came to know that accused Chander Prakash used to come and go from said premises and that he was visitor to his parental house. He further stated that as the case had become time barred so he filed the application for condonation of delay and after getting the requisite permission to file the case, he on completion of the investigation, prepared and filed the charge sheet in the present case. Ld. APP for the State contended that prosecution is able to prove its case beyond reasonable doubt and accused Shanti Devi should be accordingly convicted.
16. On the other hand, accused Shanti Devi has raised the only defence that there was no kind of dispute between her and the complainant and she had taken the complainant to a doctor when she informed her that she might be expecting and on returning from the doctor, she told her that she wanted to visit her parents and her son accused Chander Prakash had taken her to her parents, however, thereafter she never returned back. She further alleged that once the matter was compromised before the court and complainant alongwith her son Chander Prakash started residing separately, however, complainant did not reside with her son for long and even left him. Ld. Counsel for the accused contended that there was a delay of around 13 years in filing the present charge sheet and the State Vs. Chander Parkash Arora Etc. Page No.15 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri delay was condoned by the ld. Predecessor Court vide order dated 01.09.2007 in the absence of the accused persons and without hearing them. Ld. Counsel for the accused contended that this fact throws doubt on the prosecution story. Ld. Counsel for the accused further contended that a collected reading of all the statements and the complaint shows that the complainant Komal Arora repeatedly change her stands and the statements of the complainant nowhere inspire any confidence and the conviction could not be based on the testimony of sole eye witness i.e. the complainant PW1 Komal Arora. Ld. Counsel for the accused further contended that complainant Komal Arora in her statement U/s 161 CrPC given on 19.06.1995 has stated that she was kept properly for 8 to 10 days after the marriage and there was no question of the complainant raising the allegations of 19.07.1994 i.e. just two days after the marriage as mentioned in the complaint. Ld. Counsel for the accused further contended that PW1 Komal Arora in her cross examination stated that when with the instance of the CAW Cell her istridhan were recovered, the above stated gold articles were recovered by her from the accused persons. Ld. Counsel for the accused further contended that this shows that there is no criminal breach of trust committed by the accused persons. Ld. Counsel for the accused further contended that the prescription Mark B written State Vs. Chander Parkash Arora Etc. Page No.16 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri by Doctor on 31.08.1994 from the Garg Nursing Home shows that complainant is suffering from Anxiety and psychiatric problems. Ld. Counsel for the accused further contended that this shows that complainant was herself suffering from some psychiatric problem and accused has not done any offence as alleged by complainant. Ld. Counsel for the accused further contended that PW3 SI Babu Lal second Investigating Officer has failed to verify the source of Rs. 10,000/ alleged by the complainant to be given by her to her husband accused no.1 Chander Parkash and IO also failed to clarify that from whom the istridhan articles were demanded and when they were demanded back by the complainant. Ld. Counsel for the accused further contended that PW4 Inspector Ram Kishan first Investigating Officer in his cross examination stated that he did not verify the receipts with respect to alleged istridhan articles submitted by the complainant. He further stated that he did not conducted any search & seizure of remaining dowry articles from the house of the accused persons. Ld. Counsel for the accused contended that this shows that there is a defective investigation and this fact further throws doubt on the prosecution story. Ld. Counsel for the accused further contended that all the accused persons reside at PS Sultan Puri and all allegations in complaint pertains to residence of accused and therefore, this Court has no territorial jurisdiction to try and State Vs. Chander Parkash Arora Etc. Page No.17 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri entertain the present case. Ld. Counsel for the accused also relied upon the judgment of the Hon'ble Supreme Court of India in "Y Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr"
in Crl. Appeal 904 of 2004 wherein it has been laid down that the magistrate has no jurisdiction to deal with the matter if no part of cause of action arose under his jurisdiction". Ld. counsel for the accused contended that all these aforesaid facts throws doubt on the prosecution story and accused is entitled to benefit of doubt and so accused Shanti Devi should be accordingly acquitted.
17. On the other hand, Ld. APP for the State contended that the defence taken by the accused that the charge sheet was filed after the delay of around 13 years and the delay was condoned by the ld. Predecessor Court vide order dated 01.09.2007 without giving opportunity of being heard to the accused. This contention of ld. Counsel for the accused does not holds good at this stage due to the reason that at the stage when the said order was passed the accused being the aggrieved person should have preferred either Appeal or Revision against the said order but the failure on the part of the accused to do so give the finality to the order of the Ld. Predecessor Court condoning the delay in filing the charge sheet and this State Vs. Chander Parkash Arora Etc. Page No.18 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri contention is of no use at the stage of final arguments. Ld. APP for the State again contended that prosecution is able to prove its case beyond reasonable doubt and accused Shanti Devi should be accordingly convicted.
18. Keeping in view the fact the contention of Ld. Counsel for the accused that the collective reading of all the statements and the complaint shows that the complainant repeatedly changed her stand and the statement of complainant no where inspire confidence. This contention of Ld. Counsel for the accused does not holds good due to the reasons that there are no inconsistencies in the version of the complainant. Further, the contention of Ld. Counsel for the accused that complainant Komal Arora in her statement U/s 161 CrPC given on 19.06.1995 stated that she was kept properly for 810 days after the marriage and the complainant in her complaint as well as her testimony has raised the allegation that on 19.07.1994 i.e. just two days after the marriage, complainant was harassed by the accused persons. Further, this contention of Ld. Counsel for the accused does not holds good due to the reason that minor variations in the testimony of the witness are bound to occur and the same cannot be said to be a inconsistency as the said suggestion was not put by the accused in the cross examination of PW1 Komal Arora. State Vs. Chander Parkash Arora Etc. Page No.19 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri Further, relying upon judgment of the Hon'ble Supreme Court of India in Babasaheb Apparao Patil vs. State of Maharashtra AIR 2009 SC 1461 wherein it has been laid down that "some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness".
19. Further, considering the contention of Ld. Counsel for the accused that conviction could not be based on the testimony of sole eye witness. This contention of Ld. Counsel for the accused does not holds good due to the reason that the sole eye witness i.e. PW1 Komal Arora is the complainant as well as the victim and her testimony is of much credibility then the other witnesses. Further, relying upon the provision of Section 106 of Indian Evidence Act as whatever has happened with the complainant, it is within the special knowledge of the complainant and therefore, the testimony of complainant is of much high credibility and therefore, could be relied upon. Further, relying upon the judgment of Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V/s State of Maharashtra AIR 2008 SC 927 wherein it has been held that "conviction could be based on the testimony of sole eye witness, if it State Vs. Chander Parkash Arora Etc. Page No.20 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri is reliable".
20. Further, considering the contention of ld. Counsel for the accused that PW1 Komal Arora in her cross examination stated that when with the instance of CAW Cell, her istridhan were recovered, the above stated gold articles were recovered by her from the accused persons and so this shows that no criminal breach of trust had been committed by the accused on the istridhan of the complainant. This contention of Ld. Counsel for the accused does not holds good due to the reason that PW1 Komal Arora has mentioned in her cross examination as the above stated gold articles and the above stated gold articles were the articles which were purchased by her parents and the said gold articles were not the entire gold articles of her istridhan. Also, considering the contention of ld. Counsel for the accused that the prescription Mark B written by doctor on 31.08.1994 from the Garg Nursing Home shows that the complainant is suffering from Anxiety and Psychiatric problems and therefore, accused has been falsely implicated. This contention of ld. Counsel for the accused does not holds good due to the reason that the prescription Mark B was not proved by the accused in her defence and the said prescription Mark B could be of no use to the accused as it is only a marked document.
State Vs. Chander Parkash Arora Etc. Page No.21 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
21. Further, the contention of ld. Counsel for the accused that there has been a defective investigation conducted by the first and second Investigating Officers and this fact throws doubt on the prosecution story. This contention of ld. Counsel for the accused does not holds good due to the reason that a defect in the investigation does not entitle the accused to be acquitted. Further relying upon the Judgment of Hon'ble High Court of Delhi in Father Shepherd Vs. State of NCT of Delhi 2007 (2) CCC 472 wherein it has been laid down that "merely because the investigation has been conducted in a slipshod and defective manner and some lacunae have been left by the investigating officer, an accused cannot be acquitted."
22. Further, the contention of ld. Counsel for the accused that there was a delay of around 13 years in filing the chargesheet and the delay was condoned vide order dated 01.09.2007 by the ld. Predecessor Court in the absence of the accused persons and without giving the opportunity of being heard to the accused persons and so this fact throws doubt on the prosecution story. This contention of ld. Counsel for the accused does not holds good due to the reason that U/s 473 Cr.P.C the ld. Trial Court was competent to condone the State Vs. Chander Parkash Arora Etc. Page No.22 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri delay in filing the charge sheet on the reasons explained to ld. Trial Court and in the present case the ld. Predecessor Court had condoned the delay vide order dated 01.09.2007 in filing the charge sheet after hearing the reason for delay in filing the charge sheet on the part of Investigating Officer and accused being the aggrieved person should have preferred Revision against the said Order and the failure on the part of the accused to do so, disentitled the accused from raising the said contention at the time of final arguments. Further, the Court of Magistrate is not having any power of review to review the order condoning the delay in filing the charge sheet passed by the ld. Predecessor Court. Further, relying upon the latin maxim "vigilantibus non dormientibus jura subveniunt" meaning thereby that "equity comes to the aid of the vigilant and not the slumbering" means that the law protect those who are vigilant over their rights and not those who sleep over their rights. This shows that although there was ample opportunity with the accused to prefer revision against the order dated 01.09.2007 for condoning the delay in filing the charge sheet passed by the ld. Predecessor Court but the accused has not preferred any revision against the said order so the accused has lost his right to agitate on the said order for condoning the delay in filing the charge sheet.
State Vs. Chander Parkash Arora Etc. Page No.23 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
24. Further, considering the contention of ld. Counsel for the accused that PW4 Inspector Ram Kishan in his cross examination stated that the allegations stated out by the complainant and her parents pertain to the place of residence of in laws only and not of complainant and her parents and the accused persons were residing in Budh Vihar within the jurisdiction of Police Station Sultan Puri. Ld. Counsel for the accused has contended that this shows all the accused persons resides within the area of Police Station Sultan Puri and the matrimonial home of the complainant is also situated within the area of Police Station Sultan Puri and therefore, this Court has no territorial jurisdiction to entertain and try the present case. This contention of ld. Counsel for the accused does not holds good due to the reason that although it is a legal contention but in view of the fact that PW1 Komal Arora in her examination in chief stated that finally in the month of August, 1994, her husband turned her out of her matrimonial home and left her at her parental home and threatened her not to come back to him till her parents agree to give scooter to her husband. This shows that U/s 178 & 179 Cr.P.C part of cause of action has arose at the parental house of the complainant which falls within the jurisdiction of Police State Vs. Chander Parkash Arora Etc. Page No.24 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri Station Janak Puri as accused husband has left the complainant at her parental home with a threat of dire consequences and offence U/s 498A IPC being a continuing offence and so the part of offence has also been committed within the jurisdiction of Police Station Janak Puri and so this court has territorial jurisdiction to entertain and try the present case. Relying upon the latest judgment of Sunita Kumari Kashyap Vs. State of Bihar & Anr. AIR 2011 SC 1674 wherein Hon'ble Supreme Court of India has laid down that "Criminal proceedings u/S. 498A, IPC for offence relating to cruelty by husband and his relatives and specific assertion by wife about ill treatment and cruelty at hands of husband and his relatives at Ranchi and Because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry and In view of Ss. 178 and 179 Cr.P.C. offence was a continuing one having been committed in more local areas than one - One of local areas being Gaya, Court at Gaya has jurisdiction to proceed with criminal case instituted therein - In such continuing offence, on some occasion all had taken part and on other occasion one of accused, namely husband had taken part - Clause (C) of S. 178 Cr.P.C. is clearly attracted and Court at Gaya has jurisdiction to proceed with case." State Vs. Chander Parkash Arora Etc. Page No.25 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
25. Keeping in view the fact that the essential ingredients for the offence U/s 498A/34 IPC is that "accused being the husband or the relative of the husband of a woman in furtherance of their common intention subjects such woman to cruelty or harassment with a view to coerce her or any person related to her to meet their unlawful demand for any property or any valuable security or is on account of failure by her or any person related to her to meet such demand." To prove it, prosecution examined PW1 Komal Arora complainant cum victim cum sole eye witness and she stated that her marriage with the accused Chander Prakash was solemnized on 17.07.1994 in accordance with Hindu rites and ceremonies and from the date of fixing of the marriage itself and after the demise of said middle women Smt. Bishni, her husband, her mother in law accused Shanti Devi, her father in law, her jeth and her jethani used to make demands for dowry and even tried to break her marriage. She further stated that after 2 to 4 days of her marriage, her husband and her mother in law accused Shanti Devi started raising demand from her for cooler, a colour T.V, scooter and they also demanded from her cash of Rs.5,000/ or Rs.10,000/ and on many occasions they even raised the demand for cash more than the stated sum. She State Vs. Chander Parkash Arora Etc. Page No.26 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri further stated that all her in laws used to quarrel with her and pressurized her to bring the above mentioned things from her parents. She further stated that she conveyed their demands to her parents who gave a scooter, black and white TV to the accused persons still they were not satisfied and on non fulfillment of their demands, she was thrown out of the matrimonial home and left at her parental home by her husband accused Chander Prakash and her husband did not came to take her back to her matrimonial home. She further stated that after 3 to 4 days of her marriage when she requested her mother in law accused Shanti Arora to allow her to cook food on gas stove as at her parental home she used to cook food on gas stove and she had never cooked food before on heater, her mother in law taunted her that everybody can cook food on heater and she was intentionally making such excuses. She further stated that her mother in law accused Shanti Devi also slapped her when she requested her to cook food on gas stove. She further stated that her husband and in laws used to force her to bring cash on various repeated occasions from her parents on the pretext that her husband had to set up a business of making readymade shirts and so on various occasions she gave her husband cash of Rs.20,000/, Rs.10,000/ so that he could set up the said business but he was not satisfied with the same and kept on making from her further State Vs. Chander Parkash Arora Etc. Page No.27 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri demands to bring more cash. She further stated that her husband also asked her to bring a scooter after a month of her marriage and she told the said to her parents who were not able to arrange the same due to financial constraint and she told her husband and requested him that her parents due to financial constraint are not in a position to fulfill his said demands and on knowing the same, her husband and her mother in law accused Shanti Devi treated her with physical and mental cruelty and they used to beat her, used filthy language against her and her family and on many occasions she was not allowed to have proper meals. She further stated that finally in the month of August 1994, her husband turned her out of her matrimonial home and left her at her parental home and threatened her not to come back to him till her parents agree to give scooter to her husband and when her parents tried to contact her husband and her in laws, it was made clear to them that until and unless they fulfill their said demands, her husband and her mother in law accused Shanti Devi would not take her back in her matrimonial home. This shows that prosecution is able to prove that accused Shanti Devi being mother in law of the complainant alongwith her son accused Chander Prakash Arora (since PO) being the husband of the complainant in furtherance of their common intention subjected the complainant to cruelty and harassment in order to compel the State Vs. Chander Parkash Arora Etc. Page No.28 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri complainant to meet their unlawful demand for dowry. Thus, prosecution is able to prove that all the essential ingredients for the offence U/s 498A/34 IPC is made out against the accused Shanti Devi.
26. Keeping in view the fact that the essential ingredients for the offence U/s 406/34 IPC are that "accused alongwith other accused persons being in any manner entrusted with the property or with any dominion over property, in furtherance of their common intention dishonestly misappropriates or converts to their own use that property or dishonestly uses or disposes off that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied which he has made touching the discharge of such trust or willfully suffers any other person so to do". To prove it prosecution examined complainant cum victim cum sole eye witness PW1 Komal Arora and she stated that she was married to the accused Chander Prakash on 17.07.1994 in accordance with Hindu rites and ceremonies. She further stated that all her istridhan articles were taken on the day first itself by her mother in law accused Shanti Devi as soon as she reached at her matrimonial house and even the gold earrings of her State Vs. Chander Parkash Arora Etc. Page No.29 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri and all her jewellery and clothes was taken over by her mother in law accused Shanti Devi. She further stated that when she was turned out of her matrimonial home, all her jewellary and istridhan articles were still in the possession and custody of her husband and her mother in law accused Shanti Devi and despite repeated demands of her, the said were not returned to her by the accused persons. She further alleged that the list of istridhan articles is Ex.PW1/B and list of remaining istridhan articles is Ex.PW1/C. She further stated that the few istridhan articles were returned to her through the instance of CAW Cell and the court, however, all her original gold jewellary which was given to her by her in laws at the time of her marriage is still in the possession of her husband and her mother in law accused Shanti Devi and her mother in law accused Shanti Devi had malafidely and intentionally converted the same into fake peetal jewellery with gold polish over it and her mother in law had presented the same in CAW Cell. She further stated that however as she could recognize the said jewellery to be fake so she did not claimed the same. She further stated that the original gold jewellery should be returned to her. Also, PW1 Komal Arora in her cross examination denied the suggestion that all of her istridhan articles which she had brought from her parental home at the time of her marriage were returned to her by the accused persons at CAW Cell. State Vs. Chander Parkash Arora Etc. Page No.30 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri She also denied the suggestion that all of her istridhan articles have been already returned to her by the accused persons at CAW Cell. Thus, prosecution is able to prove that some of the istridhan articles of the complainant were still not returned by the accused Shanti Devi to the complainant and the fake jewellery articles were prepared by the accused Shanti Devi to be returned to the complainant. This shows that part of istridhan articles is still in the possession of the accused Shanti Devi and her son accused Chander Prakash and accused Shanti Devi has also dishonestly misappropriated the gold jewellery given by the accused persons to the complainant at the time of her marriage and which forms part of the istridhan of the complainant as accused Shanti Devi had malafidely and intentionally converted the said original gold jewellery into fake peetal jewellery with gold polish over it and presented the same for returning to the complainant before the CAW Cell. Thus, prosecution is able to prove that accused Shanti Devi being the mother in law of the complainant alongwith accused Chander Prakash (since PO) being the husband of the complainant in furtherance of their common intention have wrongfully retained the part of istridhan of the complainant and did not return the same to the complainant despite demanded by complainant and accused Shanti Devi also malafidely converted the gold jewellery which was given to the complainant by her in laws State Vs. Chander Parkash Arora Etc. Page No.31 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri into fake peetal jewellery with gold polish over it for purpose of returning to the complainant so as to cause wrongful loss to the complainant. Thus, prosecution is able to prove all the essential ingredients for the offence punishable U/s 406/34 IPC against the accused Shanti Devi.
27. Keeping in view the aforesaid reasoning as well as the fact that PW1 Komal Arora complainant cum victim cum sole eye witness has vividly narrated the whole incident in the Court and has stood the test of cross examination and correctly identified the accused Shanti Devi as her mother in law. Further, relying upon the judgment of Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V/s State of Maharashtra (supra) that conviction could be based on the testimony of sole eye witness if it is credible. Also, I am of the considered view that testimony of PW1 Komal Arora is clear, convincing and reliable and no material has come on record which falsify her evidence and the other PWs have fully corroborated the version of PW1 Komal Arora. Also all the essential ingredients of offence punishable U/s 498A/406/34 IPC has been fully established against accused Shanti Devi. I am of the considered view that prosecution is able to prove its case against State Vs. Chander Parkash Arora Etc. Page No.32 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri accused Shanti Devi beyond reasonable doubt. Hence, accused Shanti Devi is accordingly convicted for the offence punishable U/s 498A/406/34 IPC.
Let, accused Shanti Devi be heard separately on the point of sentence on 26.06.2013.
ANNOUNCED IN THE OPEN COURT TODAY ON 25.06.2013 (EKTA GAUBA ) Metropolitan Magistrate, Mahila Court03/West/Delhi 25.06.2013 State Vs. Chander Parkash Arora Etc. Page No.33 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri IN THE COURT OF MS. EKTA GAUBA: METROPOLITAN MAGISTRATE (MAHILA COURT)3,WEST, TIS HAZARI COURTS, DELHI State Vs. Chander Parkash Arora Etc. FIR No: 614/95 P.S. Janak Puri U/s 498A/406/34 IPC ORDER ON SENTENCE 26.06.2013 Present: Ld. APP for the State assisted by complainant with Ld. Counsel Sh. Shiv Ram Singh.
Convict Shanti Devi in person with Ld. Counsel Sh. Prashant Jain.
This case is fixed today for orders on the point of sentence.
Ld. Counsel for the convict Shanti Devi has moved an application U/s 4 of the Probation of Offenders Act, 1958 on behalf of the convict Shanti Devi for release of the convict Shanti Devi on probation of good conduct.
Arguments on the point of sentence heard.
Ld. counsel for the Convict Shanti Devi contended that Convict Shanti Devi is an old aged lady of about 65 years and she is a widow lady and she is not a previous convict. Ld. counsel for the Convict Shanti Devi also pressed upon his application for grant of probation to the convict Shanti Devi on the ground that she is not a State Vs. Chander Parkash Arora Etc. Page No.34 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri previous convict.
On the other hand, Ld. APP for the State contended that in the present case, Convict Shanti Devi being the mother in law of the complainant alongwith accused Chander Prakash (since PO) being the husband of the complainant in furtherance of their common intention subjected the complainant to cruelty in order to compel the complainant to meet their unlawful demand for dowry and also wrongfully retained the part of istridhan of the complainant and did not returned the same to the complainant and convict Shanti Devi also malafidely and intentionally converted the gold jewellery which was given to the complainant by her in laws into fake peetal jewellery with gold polish over it and presented the same for returning to the complainant before CAW Cell and therefore the convict does not deserves to be released on probation.
Ld. APP for the State contended that maximum punishment be given to the Convict Shanti Devi as the convict Shanti Devi herself being the woman has harassed another woman and therefore, convict Shanti Devi does not deserves to be released on probation.
Ld. Counsel for the complainant has also strongly opposed the request of the convict Shanti Devi to be released on probation on the ground that convict Shanti Devi being the mother State Vs. Chander Parkash Arora Etc. Page No.35 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri in law has not told any details of the address of the accused Chander Prakash son of the convict Shanti Devi and the convict Shanti Devi has also not made any missing complaint regarding the missing of accused Chander Prakash and as a result convict Shanti Devi has victimsed the complainant by leaving the complainant in helpless condition as the complainant is neither the widow of accused Chander Prakash and the complainant is also neither divorced by the accused Chander Prakash and complainant is not even having her husband accused Chander Prakash alongwith her. Ld. Counsel for the complainant has contended that maximum punishment be given to the convict Shanti Devi as the complainant is fighting for justice for the past 18 years.
I have carefully considered the submissions made by Ld. APP for the State as well as Ld. counsel for Convict Shanti Devi as well as Ld. Counsel for the complainant.
Keeping in view the latest judgment of the Hon'ble Supreme Court of India in Ashabai & Anr. Vs. State of Maharashtra2013 (2) SCC 224 wherein it has been held that " in cases of crime against women (like cases U/s 498A IPC etc.) committed by other women at the time of sentencing the deterrent punishment should be given and leniency in sentence is unwarranted."
State Vs. Chander Parkash Arora Etc. Page No.36 FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri In light of aforesaid law laid down by the the Hon'ble Supreme Court of India and in view of the fact that in the present case, Convict Shanti Devi being the mother in law of the complainant alongwith accused Chander Prakash (since PO) being the husband of the complainant in furtherance of their common intention subjected the complainant to cruelty in order to compel the complainant to meet their unlawful demand for dowry and also wrongfully retained the part of istridhan of the complainant and did not returned the same to the complainant and convict Shanti Devi also malafidely converted the gold jewellery which was given to the complainant by her in laws into fake peetal jewellery with gold polish over it and presented the same for returning to the complainant before CAW Cell and in view of the fact that convict Shanti Devi being herself a woman had victimised another woman i.e. the complainant who is the daughter in law of the convict Shanti Devi and also in view of the fact that harassment of women for demand for dowry is increasing in today's scenario and in view of the facts and circumstances, Convict Shanti Devi does not deserves the benefit to be released on probation and therefore, application U/s 4 of the Probation of Offenders Act, 1958 of the convict Shanti Devi to be released on probation of good conduct is dismissed.
State Vs. Chander Parkash Arora Etc. Page No.37
FIR No.614/95 State Vs. Chander Parkash Arora Etc. PS:Janak Puri
I am of the considered view that interest of
justice will be served if for the offence punishable under Section 498A/34 IPC, the Convict Shanti Devi is sentenced to simple imprisonment for a period of two years and to pay fine of Rs.5,000/ and in default of payment of fine, the convict Shanti Devi shall further undergo simple imprisonment for a period of six months.
And, for the offence punishable under Section 406/34 IPC, the convict Shanti Devi is sentenced to simple imprisonment for a period of two years.
Both the sentences shall run concurrently.
Convict Shanti Devi be given benefit of Section 428 CrPC.
Ordered accordingly.
Copy of judgment has been supplied to the Convict Shanti Devi free of cost yesterday on the date of judgment itself.
Copy of order on sentence be supplied to the Convict Shanti Devi today itself free of cost.
Announced in the open court today i.e. on 26.06.2013 (Ekta Gauba) MM (Mahila Court)03 West,THC,Delhi/26.06.2013 State Vs. Chander Parkash Arora Etc. Page No.38