Delhi District Court
State vs . Kapil Dev Singh on 23 January, 2014
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN
MAGISTRATE (SOUTH WEST)-01, MAHILA COURT, DWARKA, NEW
DELHI
STATE VS. Kapil Dev Singh
FIR NO: 116/99
P. S. Dwarka
ID No. 02405R0126457499
Date of institution of case :26.10.1999
Date on which case reserved for judgment :04.01.2014
Date of judgment :23.01.2014
Advocates appearing in the case :-
Sh. Pankaj Kumar, Ld. APP for State
Sh. Prakash Chander , Ld. Counsel for accused .
JUDGEMENT U/S 355 Cr.P.C.:
a) Date of offence : 24.01.1996 onwards
b) Offence complained of : U/S 498-A/406 IPC
c) Name of complainant : Smt. Renu Kumari
d/o Sh. R.S. Bhandari r/o
RZ-139/D, Raj Nagar,
Part-II, Palam Colony,
New Delhi-110045.
d) Name of accused, his parentage, : Kapil Dev Singh
local & permanent residence s/o Sh. Goverdhan Singh
r/o D-35, Mayapuri,
Phase-I, New Delhi.
e) Plea of accused : Accused is falsely
implicated.
f) Final order : Acquitted
FIR no. :116/99 PS: Dwarka Page no. 1/32
St vs. Kapil Dev Singh
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, accused Kapil Dev Singh has been charged for the offence u/s 498-A/406 IPC on the ground that from the date of marriage of accused on 24.01.1996 with complainant Smt. Renu, he subjected the complainant to cruelty in
-connection -with demand of dowry and committed criminal breach of trust in respect of stridhan articles of complainant.
2. Prosecution has examined seven witnesses on its behalf to prove its case.
3. Pw1 is Smt. Renu Khandari who stated that she got married with accused on 24.01.1996 as per Hindu rites and ceremonies at Delhi and she was taken to her matrimonial house at Mayapuri. Pw1 has stated that accused Kapil Dev Singh was working as constable in Delhi Police and he started harassing her and torturing her for demand of Rs. 5 lacs from her parental house and also gave beatings to her on various occasions. Pw1 has stated that she gave birth to a son on 01.11.1996 and accused used to threaten her that he would so something wrong with her son and he used to send her to her parental house to fulfill his demands. Pw1 further stated that when she could not fulfill his dowry demand, accused had taken exparte divorce from her and remarried one Hemlata and due to this, she filed case u/s 494 IPC FIR no. :116/99 PS: Dwarka Page no. 2/32 St vs. Kapil Dev Singh vide DD No. 67B u/s 155 Cr.P.C on 18.09.2006 against accused, photocopy of which is Ex. Pw1/D(original seen and returned).
4. Pw1 has further stated that on 10.04.1997, she made complaint at police post Rajouri Garden since her husband had given her beatings and the copy of DD entry is Ex. Pw1/C(OSR). She stated that she made compromise with accused and started residing with him but thereafter also, accused continued to demand Rs. 5 lacs and at last she lodged complaint in Women Cell in month of May 1997. She exhibited her complaint as Ex. Pw1/A and list of dowry articles as Ex. Pw1/B(running in two pages). Pw1 stated that accused had produced some of the articles at CAW Cell but she had not taken them on Superdari because those articles were not dowry articles. She alleged that all the dowry articles and jewelery, clothes, furniture and utensils are still in possession of accused. She stated that she had demanded her dowry articles back, but accused refused to return the same. Further examination-in-chief dated 17.07.2008 was deferred for production of bills.
5. In her examination-in-chief dated 08.12.2008, Pw1 stated that she had handed over photocopies of 31 bills of jewelery, clothes and other Stridhan articles to IO alongwith photographs of marriage which were seized vide seizure memo Ex. Pw1/E. She exhibited the photograph as Ex. P1 and exhibited the original bills FIR no. :116/99 PS: Dwarka Page no. 3/32 St vs. Kapil Dev Singh as Ex. P2 to P33. The list of all the bills was exhibited as Ex. P34. She stated that articles seized by IO vide seizure memo dated 02.07.1999 do not belong to her. She stated that she had handed over the second list of articles dated 18.05.1999 to IO which is exhibited as Ex. Pw1/F and F1(running in two pages). Cross- examination of Pw1 was deferred at request of Ld. Defence Counsel.
6. In her cross-examination dated 23.10.2009, Ld. Defence counsel confronted the complaint Ex. Pw1/A to the complainant in which various facts had not been mentioned by the complainant in her original complaint but they had been asserted by the complainant in her examination-in-chief. The remaining cross- examination was deferred but on next date i.e. on 03.11.2010, counsel for accused failed to cross-examine Pw1 due to which opportunity of cross-examination was treated as nil.
7. Application of accused u/s 311 Cr.P.C for recalling Pw1 was allowed by the Ld. Predecessor Court on 25.11.2011 and thereafter Pw1 was partly cross-examined on 20.07.2012. In her cross-examination dated 20.07.2012, Pw1 stated that the list of articles Ex. Pw1/B was prepared at the time of marriage but she again said that list was prepared on the date when the complaint was got typed but no list was prepared at the time of marriage. She stated that she is living separately from accused Kapil Dev FIR no. :116/99 PS: Dwarka Page no. 4/32 St vs. Kapil Dev Singh Singh since April 1999 but admitted that she has not written in her complaint Ex. Pw1/A that she is living separately since April 1999. She stated that she had gone to her parents house in April 1999 alongwith her brother Mukesh for giving exams of final year but admitted that she had not mentioned this fact in her complaint.
8. Pw1 denied the suggestion that she is not living with the accused since 10.04.1997. She was confronted with portion A to A of her written complaint Ex. Pw1/A wherein it was stated that "after April 1997, they had not met each other and not made any kind of communication in between". She stated that her statement that she lived with accused Kapil Dev Singh uptil April 1999 is correct. She stated that she does not remember the date of her exam. She admitted that she had not lodged any complaint with the police regarding quarrel on the date when she left matrimonial home in April 1999 . She stated that she had not given any written complaint to the police on 10.04.1997 and stated that she had made only oral complaint and matter was compromised. She admitted that on 10.04.1997, she alongwith her father and brother went to her parent's house.
9. Pw1 was recalled for further cross-examination on 23.11.2012 and in her cross-examination dated 23.11.2012, Pw1 denied the suggestion that DD no. 24 dated 10.04.1997 is not lodged on her complaint and it was lodged on complaint of FIR no. :116/99 PS: Dwarka Page no. 5/32 St vs. Kapil Dev Singh accused. She further denied the suggestion that accused had not given her beatings on 10.04.1997 and rather she alongwith her father and brother went to the house of accused and quarreled with them and caused injuries to accused, his mother and father. Pw1 stated that she came back to the matrimonial house in July 1997. She further stated that she had gone to the house of her parents in April 1998 to give her exams. Pw1 stated that she is living separately from the accused since April 1999 . She further stated that she came to know in May 1999 about the exparte divorce from the court and she had filed WS in the divorce case after getting the exparte decree set aside.
10. Pw1 has admitted that accused had filed the divorce case on the ground of cruelty and said case is still pending in Tis Hazari court. She has admitted that she had filed a case for permanent alimony. She further stated that she does not know whether the said case has been decided on 03.01.2008. Pw1 has denied the suggestion that no dowry articles were given to accused at the time of marriage. She has further denied the suggestion that no stridhan is lying with the accused nor it was ever entrusted to the accused. Pw1 stated that she had written in her complaint Ex. Pw1/A that her dowry articles were not returned. She was confronted with her complaint Ex. Pw1/A wherein it was not so recorded. Pw1 has denied the suggestion that on 10.04.1997 she FIR no. :116/99 PS: Dwarka Page no. 6/32 St vs. Kapil Dev Singh took all her remaining clothes alongwith gold ornaments from the matrimonial home. She further denied the suggestion that Ex. P-2 to P-33 are forged and fabricated bills.
11. Pw1 stated that accused started beating her after two months of marriage on the pretext of not bringing sufficient dowry. She stated that accused was demanding cash of Rs. 5 lacs and a house from her father. She stated that there was no house with her parents at that time and there was only one plot. She stated that she did not tell anything about demand of accused to her father as he was posted at Assam and she told her father for the first time in 1997 about this demand, when he had retired from Army. She stated that she had mentioned in her complaint Ex. Pw1/A in year 1999 about the demand of Rs. 5 lacs and plot by the accused. She admitted that she filed present complaint after she came to know about the exparte divorce taken by accused and the fact of his getting remarried.
12. Pw1 further admitted that in December 1996, accused had suffered serious head injuries in the accident and remained admitted in the hospital. She denied the suggestion that she had not gone to visit the accused there but she stated that she does not know as to how many days the accused remained admitted in the hospital. She stated that she does not remember the date and month of her visit in the hospital but she had gone to hospital FIR no. :116/99 PS: Dwarka Page no. 7/32 St vs. Kapil Dev Singh alongwith her mother and son. She denied the suggestion that she or her mother never visited the hospital. She denied the suggestion that she had committed cruelty upon the accused due to which accused had filed divorce petition against her. She stated that she does not know whether accused had filed divorce petition in July 1997. She voluntarily stated that she came to know about the divorce petition only in year 1999. She denied the suggestion that accused never demanded even a single penny from her or her parents. She admitted that in her complaint Ex. Pw1/A, she had not mentioned the fact about demand of Rs. 5 lacs or the house by the accused. She further admitted that accused had not compelled her to go out of matrimonial house to bring amount of Rs. 5 lacs from her parents. She denied the suggestion that accused had never tortured her or harassed her on account of insufficient dowry.
13. Pw2 is Duty Officer ASI Sharmila who exhibited copy of FIR as Ex. Pw2/A(OSR).
14. Pw3 is Smt. Vijayshwari Devi i.e. mother of Pw1. She stated that her daughter got married with accused Kapil Dev Singh about 12 years ago. She correctly identified the accused in the court. She stated that accused used to harass her daughter for the demand of Rs. 5 lacs and used to say that he would distribute the amount amongst his two brothers and house of Mayapuri would be FIR no. :116/99 PS: Dwarka Page no. 8/32 St vs. Kapil Dev Singh in his name. She stated that her husband was posted in Assam at that time and was not at home. She further stated that accused used to come to their house and threatened her and her daughter by saying that he was in police. She stated that when her daughter gave birth to a son, none of the family members of accused came to see her daughter and her son in the hospital and when the child was about 12 days old, she sent her daughter and the child to the house of accused at Mayapuri.
15. Pw3 further stated that accused took a rented accommodation at Palam and kept her daughter and the child there but accused himself went away to his house at Mayapuri. She stated that her daughter was hungry for three days and neighbours informed her and then she brought her daughter back to her house. She stated that thereafter accused met with an accident and she sent her daughter back with the child at Mayapuri but when accused recovered, he again started physically and mentally torturing her daughter . She stated that whenever her daughter and the child fell ill, accused used to send them to her house and accused also used to harass her daughter for the sake of dowry. She stated that accused had taken exparte divorce from her daughter and got remarried with one Hemlata. She stated that all the dowry articles which were given in marriage including jewelery are still in possession of the accused and none of the FIR no. :116/99 PS: Dwarka Page no. 9/32 St vs. Kapil Dev Singh jewelery articles have been returned to her daughter. She stated that they had demanded the dowry articles back at CAW Cell but accused did not return the articles, rather he produced the articles which did not belong to her daughter.
16. In her further cross-examination dated 27.06.2013, Pw3 stated that she does not remember when her daughter lodged the present complaint but she stated that her daughter was living with them for the last 16 years. She stated that police had not recorded her statement during investigation and she never visited the police station. She stated that police came to make inquiry from her but her statement was not recorded by the IO. She further stated that she does not remember whether police recorded her statement or not. Her statement u/s 161 Cr.P.C dated 18.06.1999 was exhibited as Ex. Pw3/D1 and the entire statement was readover to the witness and then she admitted that she had given statement to the police. She stated that she does not remember whether she had given the statement at home or at police station since so many years have passed from the date of recording of statement.
17. Pw3 stated that she came to know through her daughter within 3-4 months of marriage that accused had started demanding dowry. She stated that she and her husband were at home when her daughter told them about this fact. She stated that she does FIR no. :116/99 PS: Dwarka Page no. 10/32 St vs. Kapil Dev Singh not remember the date, month or year when her daughter had told about this fact. She stated that they had not fulfilled the demand of Rs. 5 lacs. She stated that her daughter alone came to her house when the child was about six months old and now her son is 17 years old and she is still residing with them and has not gone to her matrimonial house even once within this period. Pw3 further stated that they had gone to the hospital to visit the accused on the second day after the accident but accused was unconscious and when she went to see him again alongwith her son after 2-3 days, accused told his brother by way of gestures that he does not want to meet them. She stated that after 1-2 days of discharge of accused, Jeth of her daughter came and she sent her daughter to her matrimonial house. She stated that when the son of her daughter was born in the hospital, accused was present in the hospital. She denied the suggestion that accused was not in the hospital at that time and they had not informed him about the birth of the child.
18. Pw3 further stated that after discharge of accused from hospital, after 2-3 days, she went to leave her daughter at her matrimonial house alongwith the child and thereafter her daughter lived there for about six months and then came back to her parental house. She stated that her daughter did not go back to her matrimonial house again and since then she is residing with FIR no. :116/99 PS: Dwarka Page no. 11/32 St vs. Kapil Dev Singh them. She admitted that after recovery of accused from accident, his parents held Navratra Puja in month of March and her daughter came to her parental house during Navratra Puja.
19. Pw3 admitted that on 10.04.1997, her daughter went to her matrimonial house. She voluntarily stated that her daughter went there to take her clothes but accused did not permit her to take the same. She stated that accused gave her beatings and she was bleeding from her nose but admitted that she had not made any complaint about this incident. She admitted that her daughter had gone to her matrimonial house with her father but denied the suggestion that she had gone there to quarrel with accused persons and had assaulted the accused and his parents in respect of which complaint was also lodged by the accused with the police. She admitted that it is correct that accused had filed criminal complaint case against her husband. She admitted that after the said incident, her daughter did not go to her matrimonial house and accused Kapil Dev Singh also did not visit her house till date.
20. Pw3 further stated that accused did not demand anything else except amount of Rs. 5 lacs. She stated that her daughter told this fact of demand for the first time when her husband was in service. She stated that her husband retired from his service when the child of the accused was about six months old. She admitted that accused had never demanded any amount from her or her FIR no. :116/99 PS: Dwarka Page no. 12/32 St vs. Kapil Dev Singh husband directly. She further admitted that all the articles were given in marriage on their own and there was no demand of articles from the side of accused. She also admitted that they had never gone to the house of the accused to demand the articles and accused had never refused to give the articles which were lying with them. She voluntarily stated that they never took the articles. She stated that she does not remember the date, time, month of year when accused used to come to their house to give threats to them. She stated that she does not remember whether she had told this fact to the police at the time of recording of her statement. She denied the suggestion that accused had never threatened them.
21. Pw3 admitted that no list of articles was prepared at the time of marriage. She stated that they had demanded dowry and stridhan articles at CAW Cell, Nanakpura. She admitted that accused had brought some articles at CAW Cell but voluntarily stated that those articles were not stridhan articles of the complainant and therefore they refused to take back the articles. She denied the suggestion that accused had brought all the articles to CAW Cell and they wrongly refused to take back the articles. She admitted that they had not made any complaint prior to present complaint against the accused. She denied the suggestion that accused had taken rented accommodation on their FIR no. :116/99 PS: Dwarka Page no. 13/32 St vs. Kapil Dev Singh instance since they insisted that accused should live separately from his parents. She admitted that parents of the accused were above 60 years of age at that time and there was no one to look after them except the accused. She admitted that rented accommodation of accused and complainant was near her house. She admitted that all the articles given by them in marriage were shifted to the rented accommodation and they had brought their daughter from the rented accommodation leaving all the articles there. She denied the suggestion that all the jewelery articles of the complainant are lying with her and none of the articles is with the accused.
22. Pw4 is Sh. Vijay Singh Bhandari i.e. Paternal Uncle(Tauji) of complainant. He stated in his examination-in-chief dated 08.12.2008 that complainant Renu is his Bhatiji i.e. daughter of his younger brother and she was married on 24.01.1996 with accused Kapil Dev Singh(correctly identified by the witness in court). He stated that all the dowry articles as per their capacity alongwith Rs. 30,000/- in cash were given to the accused at the time of marriage. He stated that accused asked Renu to bring Rs. 5 lacs from her father because her father was going to receive gratuity amount on his retirement and Renu told about this demand and when they failed to fulfill his demand, accused started beating and torturing Renu. He stated that one child was born from their FIR no. :116/99 PS: Dwarka Page no. 14/32 St vs. Kapil Dev Singh wedlock and accused took Renu to rented accommodation when the child was 14 days old and he left her there and she was not provided with food and ration and she remained hungry for three days and then, her neighbours called on telephone to the parents of the complainant Renu, and her mother reached at the rented accommodation and brought her back to her parental house. He stated that thereafter present complaint was lodged but no article was returned by the accused and they are still in his possession. His cross-examination was deferred at the request of Ld. Defence counsel.
23. In his cross-examination dated 10.10.2011, he stated that Renu is living with her parents since April 1999. He stated that he cannot tell the exact date when Renu met him for the first time after marriage. He admitted that accused had not demanded the amount of Rs. 5 lacs in his presence and Renu had told about the said demand. He stated that he cannot tell the exact date when Renu told about the same but she told about this fact after the birth of the child. Most of his cross-examination is on the same lines as the cross-examination of other main witnesses and it need not to be repeated for the sake of brevity and to save precious time of the court. Pw4 stated that he is residing in Noida. He admitted that he was not present at the matrimonial house of the complainant when she was given beatings. He admitted that he had never gone FIR no. :116/99 PS: Dwarka Page no. 15/32 St vs. Kapil Dev Singh to police station in this case and police never came to him for inquiry and police had not recorded his statement.
24. In his further cross-examination dated 25.11.2011, Pw4 admitted that accused had brought some articles to the police station but they refused to accept the articles stating that it was not of complainant. He stated that he was not present at police station when the accused had brought the articles and he had not seen those articles. Pw4 is merely hearsay witness, hence his cross- examination need not be discussed in detail.
25. Pw5 is W/Constable Santosh who stated that on 21.06.1999, she was posted at CAW Cell, Vasant Vihar and she was present with IO/WASI Sumitra and they alongwith complainant Renu, her father and other police staff raided house no. 35D, Maya Puri, Phase-I, New Delhi and found there, Sh. Goverdhan Singh i.e. father of the accused on the road but house was found locked and no other accused was found there and Sh. Goverdhan Singh was arrested by IO in her presence.
26. In her cross-examination dated 08.09.2011, Pw5 stated that it is correct that on the said day, no other proceedings were conducted except arrest of father of accused.
27. Pw6 is Enquiry Officer/ACP Jagpal Kaur who stated that original inquiry register had been destroyed vide order dated 02.04.2008 as per rules and the order was exhibited as Ex.
FIR no. :116/99 PS: Dwarka Page no. 16/32 St vs. Kapil Dev Singh
Pw5/A. She stated that she had conducted inquiry prior to registration of FIR but no amicable settlement had been arrived due to which she recommended registration of FIR.
28. Pw7 is IO/SI Sumitra Sharma who stated that on 15.06.1999, she was posted at CAW Cell, Vasant Vihar and investigation was assigned to her after registration of FIR from P.S. Dwarka and she recorded statement of the complainant and her parents and arrested father-in-law of the complainant but accused Kapil Dev Singh was not arrested since he had secured seven days pre- arrest notice. She correctly identified the accused in the court and stated that accused Kapil Dev Singh produced articles of the complainant but complainant refused to receive the same on the ground that it was damaged and do not belong to her. She exhibited the list of articles as Ex. Pw7/A and stated that articles were deposited in malkhana of P.S. Dwarka. She stated that she collected copies of bills which are already Ex. P1 to P30 and also collected one photograph of complainant and accused and thereafter accused was formally arrested and released on bail vide memo Ex. Pw7/B and after completion of investigation she prepared chargesheet and filed it in the court.
29. In her cross-examination dated 24.09.2013, Pw7 stated that she had arrested father-in-law of complainant from below the house and inquired from him about his wife and son but he told FIR no. :116/99 PS: Dwarka Page no. 17/32 St vs. Kapil Dev Singh that his wife was not at home and keys of the house had been taken away by his wife and house was found locked. She denied the suggestion that father of accused was arrested inside the house. She admitted that accused had not refused to give the articles which were lying with him. She stated that she does not remember whether she had verified the bills/receipts of the articles from the shopkeepers and whether she had recorded statements of shopkeepers who had issued the bills/receipts. She went through the entire judicial file and found that there was no statement of any shopkeeper. She denied the suggestion that she had recorded false statement of the complainant and her relatives regarding harassment, torture and demand of dowry.
30. After closure of P.E, statement of accused was recorded in which he stated that he is innocent and preferred to lead Defence Evidence.
31. Accused filed application u/s 315 Cr.P.C for standing as witness himself which was allowed and he stepped into witness box as Dw1. Dw1 in his examination in chief has exhibited the documents Ex. Dw1/1 to Ex. Dw1/12. Ex. Dw1/1 is certified copy of divorce petition, Ex. Dw1/2 is certified copy of statement dated 02.11.2007 of Sh. R.S. Bhandari(father of complainant), Ex. Dw1/3 is certified copy of complaint dated 02.05.1997 to Commissioner of Police, Ex. Dw1/4 is certified copy of complaint FIR no. :116/99 PS: Dwarka Page no. 18/32 St vs. Kapil Dev Singh dated 10.04.1997 to Chowki Incharge, MIG Flats, Rajouri Garden, Ex. Cw1/5 is certified copy of MLC of Devashwari Devi(mother of accused) dated 10.04.1997, Ex. Dw1/6 is certified copy of MLC of Dw1, Ex. Dw1/7 is certified copy of summoning order of Sh. R.S. Bhandari in complaint case u/s 452/323 IPC, Ex. Dw1/8 is certified copy of judgment and decree dated 03.01.2008 in Divorce Petition filed by accused, Ex. Dw1/9 is original bill dated 16.01.1996, Ex. Dw1/10 is bill dated 13.11.1995, Ex. Dw1/11 is cash memo dated 26.05.1995 and Ex. Dw1/12 is cash memo dated 04.11.1996.
32. After closure of Defence Evidence, final arguments were heard and case was fixed for order for today .
BRIEF REASONS FOR DECISION AND DECISION THEREOF
33. During final arguments, Ld. APP vehemently argued that it is a fit case for conviction of the accused since complainant and public witnesses have specifically mentioned that accused used to commit cruelty upon complainant and used to beat her for demand of Rs. 5 lacs as dowry.
34. On the other hand, Ld. Defence counsel argued that it is fit case for acquittal of the accused since there are various discrepancies in the evidence of witnesses. Ld. Defence counsel has pointed out to main complaint dated 18.05.1999 Ex. Pw1/A and argued that in her complaint, complainant Renu Khandari had FIR no. :116/99 PS: Dwarka Page no. 19/32 St vs. Kapil Dev Singh stated in para (b) that she has not understood the reason of regular harassment. The Ld. Defence counsel argued that though the complainant has stated that accused pressurized her several times in-connection-with demand of dowry but no specific amount was mentioned in the complaint and no specific date, time and place of demand was mentioned and it is merely a vague allegation and complainant has herself stated that she did not understand the reason of harassment.
35. The Ld. Defence Counsel argued that real fact was that the complainant and accused could not reside together due to temperamental differences and due to adamant behaviour of the complainant and complainant had herself left the matrimonial house without any reasonable cause and thereafter when accused had filed divorce petition against the complainant, the complainant filed present complaint u/s 498-A IPC as a counter blast to the divorce case and accused had never committed any cruelty in- connection-with demand of dowry upon complainant and he had not caused any harassment to the complainant.
36. Ld. Defence counsel further pointed out that Pw1 has categorically stated in her complaint Ex. Pw1/A at para(c) from point A to A that "after April 1997 we did not meet each other and even have not made any kind of communication in between", but in her cross-examination dated 20.07.2012 at first page, she stated FIR no. :116/99 PS: Dwarka Page no. 20/32 St vs. Kapil Dev Singh that she is living separately from the accused since April 1999 and this is a very grave discrepancy.
37. Ld. Defence counsel further argued that complainant/Pw1 has not mentioned anywhere in her examination-in-chief that she also lived with accused at rented accommodation but her mother i.e. Pw3 Vijayshwari Devi has stated in her examination-in-chief dated 17.07.2008 that accused took the complainant to rented accommodation at Palam and left her and her son there, and this amounts to grave discrepancy between the statement of Pw1 & Pw3.
38. The counsel further argued that though certain bills of articles were exhibited by Pw1 as Ex. P-2 to P-33 but the bills have not been verified by IO and IO had not made any shopkeeper as witness to testify on oath in court that he had genuinely issued the bills and hence the bills of the articles remained unverified and unauthenticated and have no value in the eyes of law without evidence of the authorized person who had signed and issued the bills.
39. Moreover, the Ld. Defence counsel argued that accused had genuinely brought all the articles of the complainant to police station in order to return all the articles which were seized by the IO vide memo Ex.Pw7/A but the complainant refused to take her articles back without any reasonable ground. The counsel FIR no. :116/99 PS: Dwarka Page no. 21/32 St vs. Kapil Dev Singh vehemently argued that accused had never refused to return the articles of the complainant on demand and hence no offence of criminal breach of trust is made out against the accused.
40. Ld. Defence Counsel further argued that main witness is Pw1 Renu Khandari but perusal of her examination-in-chief dated 17.07.2008 reveals that she has leveled very vague allegation of demand of Rs. 5 lacs against accused and very vague allegation of beating without specifying any date of such demand and date of any such beating. The counsel stated that no MLC has been placed on record to show that any injuries were suffered by the complainant due to beatings given by accused.
41. Counsel further argued that complainant has stated in her examination-in-chief that on 10.04.1997, she made complaint at police post Rajouri Garden since her husband had given her beatings and she exhibited the DD entry as Ex. Pw1/C. But the perusal of said DD entry which is on record, reveals that it was not lodged by the complainant, rather it was lodged on the complaint of accused Kapil Dev Singh that complainant and her parents had entered his house and quarreled with them and caused injuries to her mother and offence u/s 323 IPC was found to have been committed.
42. Ld. Counsel for accused further argued that there is no other specific date of incident except incident dated 10.04.1997 and on FIR no. :116/99 PS: Dwarka Page no. 22/32 St vs. Kapil Dev Singh that day, the complaint was made by the accused against the complainant and her parents and complainant has failed to place on record any DD entry or any prior complaint to show that accused used to persistently commit cruelty and harassment upon her in-connection-with demand of dowry. The counsel further argued that complainant has nowhere stated that she or her parents gave any amount to the accused in fulfillment or partial fulfillment of the alleged demand of dowry on any specific date. The counsel argued that complainant filed present complaint in the year 1999 i.e. after two years of leaving the matrimonial house, only as a counter blast to the divorce petition filed by the accused.
43. Accused had stepped into witness box as Dw1 and exhibited certified copies of court proceedings and orders of various cases pending between parties. Ex. Dw1/1 is the petition of divorce on ground of cruelty u/s 13 of Hindu Marriage Act, 1955, filed by accused against complainant Renu Khandari. Ex. Dw1/2 is the certified copy of statement on oath of Sh. R.S. Bhandari i.e. father of complainant dated 02.11.2007 given in the court of Sh. Gurdeep Singh, Ld. ADJ in said H.M.A case no. 630/97. In the said statement, the Ld. Defence counsel pointed out to portion of the statement of Sh. R.S. Bhandari at page no.2 and argued that father of complainant had himself admitted that the marriage was very simple and there was no demand at the time of marriage and FIR no. :116/99 PS: Dwarka Page no. 23/32 St vs. Kapil Dev Singh no dowry was given in marriage and father of the complainant had further admitted that his daughter told him that petitioner(accused herein) is harassing her and she is not able to find out the reason for such harassment. Ld. Counsel argued that father of the complainant had admitted that no dowry was given in marriage and complainant was not able to find out the reason of harassment and hence it is not a case of demand of dowry and cruelty in- connection-with demand of dowry.
44. Ex. Dw1/3 is the certified copy of complaint dated 02.05.1997 to the Commissioner of Police, which was filed by accused Kapil Dev Singh due to harassment of his in-laws i.e. parents of the complainant. The counsel for accused argued that reason for disputes between complainant and accused was that her parents were interfering in the matrimonial life of the complainant too much due to which accused was compelled to file complaint against parents of complainant to Commissioner of Police on 02.05.1997.
45. Ex. Dw1/5 is certified copy of MLC dated 10.04.1997 of Devashwari Devi i.e. mother of the accused and Ex. Dw1/6 is certified copy of MLC dated 10.04.1997 of accused himself and Ex. Dw1/7 is summoning order dated 26.05.2011 of court of Sh. Dharmender Rana, Ld. MM, Delhi in CC no. 1821/01 u/s 452/323 IPC vide which Raghunath Bhandari i.e. father of complainant was summoned in criminal complaint case filed by Kapil Dev Singh in FIR no. :116/99 PS: Dwarka Page no. 24/32 St vs. Kapil Dev Singh respect of incident of house trespass and injuries caused on 10.04.1997. The counsel further argued that summoning order of Ld. M.M itself reflects that it was the complainant and her parents who trespassed into the house of the accused on 10.04.1997 and beat him and his mother and caused several injuries to them due to which the father of the complainant was summoned as accused in the said case.
46. Ex. Dw1/8 is certified copy of judgment and decree of divorce dated 03.11.2008 on ground of cruelty, granted to accused by the court of Sh. Gurdeep Singh, Ld. ADJ, Delhi. The counsel for accused argued that grant of divorce to accused on ground of cruelty by the Ld. ADJ itself reflects that it was complainant who was committing cruelty upon accused due to which the Ld. ADJ court was pleased to grant decree of divorce in favour of accused, and accused has never committed cruelty upon complainant.
47. After hearing arguments on behalf of both the parties and perusal of the entire case file, this court is of the opinion that various doubts and discrepancies have been found in evidence of prosecution witnesses. On the other hand, accused Kapil Dev Singh has reasonably proved that he and his mother were sufferers of the injuries caused in quarrel on 10.04.1997 and it was accused who had filed complaint to police post Rajouri Garden but complainant had not lodged any such complaint.
FIR no. :116/99 PS: Dwarka Page no. 25/32 St vs. Kapil Dev Singh
48. Perusal of the entire examination-in-chief of the complainant reveals that she has leveled just vague allegations of demand of Rs. 5 lacs upon accused but she has neither mentioned any date, time or place of demand nor mentioned any specific date on which accused committed cruelty upon her for non-fulfillment of the said demand. She has stated in her cross-examination that she did not remember the date, month or year when demand was raised by accused and she also admitted that accused did not compel her to go out of matrimonial home to bring the amount of Rs. 5 lacs from her parents and she further admitted that fact of said demand is not mentioned in her original complaint Ex. Pw1/A. Hence, it seems that the fact of demand was mere afterthought and just a false allegation leveled by the complainant against the accused just to cover her case under purview of section 498-A IPC and this is the reason that she had not mentioned about any such demand in her original complaint Ex. Pw1/A.
49. Perusal of evidence of other witnesses reveals that they are merely hearsay witnesses and they have not seen any offence of cruelty or harassment happening before their eyes. Pw3 Smt. Vijayshwari Devi i.e. mother of complainant and Pw4 Vijay Singh i.e. uncle of the complainant have categorically stated that complainant had told them about the said demand and accused had not directly demanded anything from them and they were not FIR no. :116/99 PS: Dwarka Page no. 26/32 St vs. Kapil Dev Singh present at the time of any quarrel between accused and complainant. No MLC has been placed on record to show that any serious injuries were caused to the complainant due to beating caused by accused. Complainant has mentioned only one incident dated 10.04.1997 in her complaint and examination-in-chief. The case u/s 498-A IPC cannot be made out on the basis of single incident of quarrel. Moreover, accused has reasonably proved with documentary evidence that he and his mother had suffered injuries at the hands of complainant and her parents on 10.04.1997. The allegations leveled by the complainant against the accused are so vague and general in nature that case cannot be covered under definition of section 498-A IPC.
50. Section 498-A IPC is being reproduced herein for ready reference:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-- For the purpose of this section, "cruelty" means---
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or FIR no. :116/99 PS: Dwarka Page no. 27/32 St vs. Kapil Dev Singh
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
51. As per definition of section 498-A IPC, two types of cruelty can be covered under the definition of offence u/s 498-A IPC: (i) cruelty or harassment in-connection-with demand of dowry (ii) cruelty must be of such a nature which is likely to compel the woman to commit suicide or to cause grave injury/danger to her life or limb.
52. But in the present case, the cruelty is not of such extreme nature which might have compelled the complainant to commit suicide. Moreover, complainant has not been able to prove categorically and specifically what amounts were demanded by the accused on which date and on which date she brought any specific amount for fulfillment of demands of accused .
53. In a case titled as Sushil Kumar Sharma Vs U.O.I & Ors.
2005(2) JCC 1193 the Hon'ble Supreme Court of India has held that to bring the case within definition of cruelty in the explanation u/s 498-A IPC, the consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the FIR no. :116/99 PS: Dwarka Page no. 28/32 St vs. Kapil Dev Singh woman is required to be established beyond reasonable doubt.
54. In another case titled as Appasaheb & ors. Vs. State of Maharastra 1 (2007), DMC 143, the Hon'ble Supreme Court of India held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties must be established to bring the case within definition of dowry.
55. The Hon'ble Supreme Court in case reported as Pawan Kumar & Ors. Vs. State of Haryana, I(1998) CCR 265(SC) has held that the Courts must adopt that construction which "suppresses the mischief and advances the remedy". In this case, it was held that while bringing the provision of Section 498-A IPC on the Statute book, the Legislature did not define the word "cruelty". It has been used in relation to human conduct and human behaviour. Reading of Explanation (a) of Section 498-A IPC makes it clear that it deals with cruelty arising out of willful conduct to harm the woman and that willful conduct has to be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury to her life, limb or health. On the other hand, Explanation (b) deals with cruelty related to demand of property or valuable security. Demand is a pre-condition to attract the provision of Explanation (b) of Section 498-A IPC.
FIR no. :116/99 PS: Dwarka Page no. 29/32
St vs. Kapil Dev Singh
56. In case titled as Smt. Sarla Prabhakar Waghmare Vs.
State of Maharashtra & Ors. 1990(2) RCR page 18 the Hon'ble Bombay High Court has held that it is not every harassment or every type of cruelty that would attract Section 498-A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.
57. Similar view was taken by Hon'ble Punjab & Haryana High Court in the case titled Richhpal Kaur Vs. State of Haryana & anr. 1991(2) RCR 53 wherein it was held that if beatings are given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry, offence under section 498-A IPC is not made out.
58. Hon'ble Supreme Court in another case reported as Kans Raj Vs. State of Punjab & Ors. II(2000) CCR 156(SC) has held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand to cover the case u/s 498-A IPC.
59. In the present case also, the complainant and public witnesses have failed to show any live link between harassment and demand of dowry. Thus, the abovestated discussion reveals that prosecution has failed to prove the case beyond reasonable doubt for the offence u/s 498-A IPC. Hence, accused stands acquitted from offence u/s 498-A IPC.
FIR no. :116/99 PS: Dwarka Page no. 30/32 St vs. Kapil Dev Singh
60. As far as offence u/s 406 IPC is concerned, it is clear from the evidence on record that it is not the accused who had refused to give back the articles of the complainant on her demand, it was rather complainant who had refused to take back her articles deposited by the accused in police station. Moreover, the bills filed by complainant on record have not been verified and the shopkeepers who allegedly signed and issued the bills have not been brought in witness box to depose on oath that they had genuinely issued those bills. Complainant has also not placed on record any photographs of articles given in marriage. It is pertinent to note that evidence of father of complainant in divorce case Ex. Dw1/2 itself reflects that no dowry articles were demanded or given at the time of marriage and it was very simple marriage. Hence, whatever articles might have been given in marriage, they were gifts by father to his daughter but they cannot be given the name of "Dowry" since no demand was raised from side of accused at the time of marriage. The ingredients of section 405 IPC for covering the case under offence of criminal breach of trust are not made out. Complainant has failed to mention any specific date when articles were entrusted to accused and she failed to specify what all articles were entrusted to him and she further failed to prove that accused had refused to return those articles on demand. Rather evidence on record shows that it was the FIR no. :116/99 PS: Dwarka Page no. 31/32 St vs. Kapil Dev Singh complainant and her father who refused to take back the articles which were returned and deposited by accused in Malkhana of police station and accused had never refused to return the articles on demand. Thus all the ingredients of offence of criminal breach of trust have not been proved in this case. Therefore, accused stands acquitted from the offence punishable u/s 406 IPC also. Personal bond and surety bond of accused stand discharged. Original documents, if any, be released to the authorised person on proper receipt and endorsement, if any, be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 23rd January, 2014. MM-01(SW), Mahila Court Dwarka Courts: New Delhi FIR no. :116/99 PS: Dwarka Page no. 32/32 St vs. Kapil Dev Singh