Delhi District Court
Sharma & Anr vs Monica Dated 27 July, 2009 Arising Out Of ... on 25 April, 2018
IN THE COURT OF MM (MAHILA COURT02)
(SOUTHWEST), DWARKA COURTS, DELHI
PRESIDING OFFICER: NEHA, DJS.
IN THE MATTER OF :
State v. Satpal Solanki & Ors.
FIR No. 936/07
PS Dabri
Date of Institution : 23.05.2009
Date of reserving of order : 22.03.2018
Date of Judgment : 25.04.2018
JUDGMENT
1. Serial No. of the case : MC 318/16
2. Name of the Complainant : Smt. Sunita
3. Date of complaint : 20.06.2007
4. Name of accused person : 1. Satpal Solanki
S/o Sh. Azad Singh
2. Azad Singh
S/o Sh. Bhane Ram
3. Smt. Bharpai
W/o Sh. Azad Singh
All R/o Village Nasirpur,
PO Palam, New Delhi45.
FIR No. 936/07 State v. Satpal Solanki & Ors. Page 1 of 15
PS Dabri
5. Offence charged : Under Section
406 IPC.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
Counsels for the parties.
Ms. Rajesh Kumari, Ld. APP for the State.
Sh. Jai Dev Solanki, Ld. Counsel for all accused person.
BRIEF REASONS FOR ORDER:
1. Accused Satpal Solanki, Azad Singh and Bharpai have been charged for committing offences punishable under Section 406, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It has been alleged by the prosecution that after marriage of complainant Sunita with accused Satpal Solanki, accused persons were entrusted with the istridhan of the complainant which they did not return even on demand and converted the same to their own use.
2. Complaint was made and an FIR was registered. IO conducted the investigation. After completion of investigation, the present charge sheet has been filed for offences punishable under Section 498 A/406/34 IPC against accused Satpal (husband), Azad Singh (father in law), Bharpai (mother in law), Om Pal (devar/ brother in law), Poonam FIR No. 936/07 State v. Satpal Solanki & Ors. Page 2 of 15 PS Dabri (nanad/ sister in law), Sunita (nanad/ sister in law) and Sanjit (nandoi/ brother in law).
3. Cognizance of offence was taken and all accused were summoned to face trial. The copies were supplied under Section 207 Cr.P.C.
4. After hearing the parties, vide order dt. 18.05.2011, accused Ompal, Kumari Poonam, Sunita and Sanjit were discharged for offences U/s 498A/406 IPC and Satpal, Azad Singh and Bharpai were discharged for offence under section 498A IPC. Charge for offence u/s 406 IPC was directed to be framed against accused Satpal, Azad Singh and Bharpai. Accordingly, charge was framed against accused Satpal, Azad Singh and Bharpai to which they pleaded not guilty and claimed trial.
5. Prosecution Witnesses have been summoned for evidence and total 8 prosecutions witnesses have been examined to prove the case of the prosecution against the accused persons.
6. PW1 Mukesh is the brother of complainant. He deposed that marriage of his sister Sunita was solemnized on 13.02.2005 with accused Satpal according to Hindu rites and ceremonies. The marriage was solemnized in decent manner. Since his father expired in the year 2002, hence, he made all the arrangements pertaining to marriage of his sister Sunita. His sister gave a complaint in CAW Cell wherein she FIR No. 936/07 State v. Satpal Solanki & Ors. Page 3 of 15 PS Dabri complained that accused persons were harassing her. He is living separately, therefore, he does not know the exact cause of dispute.
7. PW2 Sunita is the complainant/ victim in this case. She has deposed that her marriage was solemnized on 13.02.2005 with accused Satpal according to Hindu Rites and Ceremonies. In her marriage, sufficient dowry articles were given to her by her parents. She also received gifts from the side of her husband as well. Her complete list of dowry articles is running into two pages which is Mark X1. The list Mark X1 is the same list which was prepared at the time of marriage and contains the articles which were given at the time of marriage from her parental side. The list of istridhan articles is Ex. PW2/A contains the articles which were given to her by her husband's side. Admitted list given by her husband is running into two pages which is Ex. PW2/B.
8. She has further deposed that after her marriage, she was taken to her matrimonial house at Nasirpur. Within a short period of time, accused persons started harassing her for want of cash from her parents.
Her husband, motherinlaw and fatherinlaw raised demand for bringing cash from her parents on the pretext of securing work for her husband as her husband was not working. Accordingly, her brother on 28.02.2005 gave about Rs. 60,000/ to her mother in law and husband. However, the conduct of accused persons did not change and they again FIR No. 936/07 State v. Satpal Solanki & Ors. Page 4 of 15 PS Dabri stated that they need more money and consequently they used to raise quarrel with her on regular basis to pressurize her and her family to bring cash for them. Accordingly in the month of April 2005, her mother and brother gave Rs. 50,000/ to her husband and fatherinlaw. However, the conduct of accused persons never changed and they did not stop to raise quarrel with her for demand of more and more money. Thereafter, accused persons raised demand of Rs. 2 lacs from her to bring from her parents. Accused persons used to harass her physically and mentally by beating her to pressurize her to fulfill their demand of Rs. 2 lacs. Accused persons also used to throw her out of the house. Accused persons used to bolt the kitchen so that she could not take food for herself.
9. She has further stated that her husband started taking liquor and thereafter gave beatings to her. Lastly in the year 2007 accused persons had thrown her out of the house stating that she should come back in her matrimonial home only with Rs. 5 lacs. Thereafter, she went to police station for lodging the complaint against the accused persons but her complaint was not filed in the police station as her husband apologized for his conduct and assured her that he would mend his behaviour towards her in the future. Since her fatherinlaw and motherinlaw and her husband gave written apology and assurance that they would treat FIR No. 936/07 State v. Satpal Solanki & Ors. Page 5 of 15 PS Dabri her properly and she also wanted to save her married life, she went back alongwith them. The written apology given by her husband is Ex. PW2/C. But even thereafter the behaviour of accused persons did not change and their harassment never stopped. They threw her out of the house and she went to her mother's home. She filed her complaint in CAW Cell, Nanak Pura Ex. PW2/D.
10. She has further deposed that after 23 days of her marriage, her gold and silver jewelery were taken by her husband as he stated that she could not manage to safeguard that jewelery on her own and he handed over her entire jewelery articles to her motherinlaw on the pretext of safe custody of the same. Her entire istridhan articles including her jewelery are still in the custody and possession of her motherinlaw. When she was thrown out of her matrimonial house, she was empty handed and came to her mother's home only in plain clothes. She gave her list of istridhan articles so that same could be recovered from the accused persons but accused persons never produced any of her istridhan articles including jewelery even during the CAW Cell proceedings. During investigation, IO seized her marriage card vide seizure memo Ex. PW2/E. Marriage card Ex. P1. She produced all the bills of istridhan articles which were in her possession. Rest of the bills were handed over to the accused persons.
FIR No. 936/07 State v. Satpal Solanki & Ors. Page 6 of 15PS Dabri
11. PW3 Sanjay Kumar Jain is the record clerk of Syndicate Bank, who proved the statement of account of Mukesh Kumar as Ex. PW3/A.
12. PW4 Bhim Singh is partner of M/s Jewar Mahal, Sadar Bajar, Gurgaon. He proved bill dated 09.10.2006 as Mark X1.
13. PW5 Amit Jindal is proprietor of Jindal Abhushan Bhandar, Gurgaon. He proved bill no. 6429 dated 25.09.2006 as Ex. PW5/A.
14. PW6 Bhunesh Malhotra is proprietor of Prabhu Dayal Malhotra & Sons Jewellers. He proved invoices no. 8619, 8620 and 8771 as Ex. PW6/A colly.
15. PW7 S.S. Rathee is the official of CAW Cell, who had conducted inquiry on complaint. He prepared the report Ex. PW7/A after the counseling failed.
16. PW8 SI Asha Rani is the IO of the case, who conducted the investigation and filed the chargesheet. She proved arrest memo of accused Satpal as Ex. PW8/A, arrest memo of Ompal Solanki, Poonam, Sanjeev and Sunita as Ex. PW8/B to Ex. PW/D.
17. All the witnesses were cross examined. PE was closed vide order dated 08.02.2018 and statements of accused persons were recorded U/s 313 Cr. P.C, wherein all incriminating circumstances and evidence were put to accused persons. Accused persons denied all the allegations against them and pleaded false implication.
FIR No. 936/07 State v. Satpal Solanki & Ors. Page 7 of 15PS Dabri
18. The accused persons did not examine any witness in defence. Therefore, the matter was fixed for final arguments.
19. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts against accused. The complainant has proved that accused persons were entrusted with the istridhan of the complainant and they have not returned the jewelery/istridhan to the complainant despite demand. The prosecution has proved all the ingredients of the offence punishable under Section 406/34 IPC and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.
20. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against accused beyond reasonable doubts. There are various contradictions in the testimony of the prosecution witnesses. The complainant and other prosecution witnesses have made false allegation against accused persons. The prosecution has failed to prove beyond reasonable doubts that accused persons they were ever entrusted with the istridhan of the complainant which they converted to their own use. Hence, it is prayed, the benefit of doubts may be given to the accused persons and they may be acquitted.
FIR No. 936/07 State v. Satpal Solanki & Ors. Page 8 of 15PS Dabri
21. I have heard the rival submissions and carefully perused the material available on record.
22. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts.
23. In the present case, the accused persons have been charged for the offence punishable under Sections 406/34 IPC. This Court shall examine whether the prosecution has been able to prove beyond reasonable doubts that the accused persons were entrusted with the istridhan articles of the complainant and they had committed criminal breach of trust in respect of those articles
24. The material witnesses examined by the prosecution are the complainant and her brother.
25. Perusal of the testimony of brother of the complainant would show that he did not have any personal knowledge about the alleged incidents of demand or about handing over / entrustment of istridhan articles to the accused persons.
26. In the examination in chief, PW1 Mukesh has not deposed anything against the accused persons and therefore, PW1 / the brother of the complainant was cross examined by Ld. APP for the State.
27. In the cross examination by Ld. APP for the State, PW1 Mukesh FIR No. 936/07 State v. Satpal Solanki & Ors. Page 9 of 15 PS Dabri has admitted that he had withdrawn amount of Rs. 2 lakhs from his account. He has voluntarily stated that he handed over the said amount to his mother and he did not know to whom his mother had given the said amount. He denied the suggestion put by the Ld. APP for the State that after fulfillment of demand of Rs.2 lacs, the behaviour of the accused persons did not change and they again raised demand of Rs.5 lacs or that the accused wanted the ownership of residential house of his mother situated in Sadhnagar or that in order to pressurize the complainant to meet the demand, they had thrown the complainant out of the matrimonial house after giving her beatings.
28. Though in the cross examination by Ld. APP for the State, witness has stated that entire istridhan articles of the complainant including her jewellery are in the custody and possession of accused persons who did not return the same to his sister and the complainant had come to the parental house empty handed. However, during cross examination by Ld. Defence Counsel, witness has stated that he did not see the complainant coming to the house of the Sadh Nagar with empty hand as he was not present and this fact came to his knowledge by information of his mother and sister. He has stated that his mother and sister / complainant had informed that all the istridhan of his sister and articles given in the marriage were kept in the custody of the accused FIR No. 936/07 State v. Satpal Solanki & Ors. Page 10 of 15 PS Dabri persons when she left matrimonial house.
29. The testimony of PW1 Mukesh is not of any help to the prosecution story that accused persons were entrusted with the istridhan of the complainant or that they refused to return on demand.
30. Another material witness examined by the prosecution is complainant /PW2.
31. In the examination in chief, the complainant has stated that after 23 days of marriage, all gold and silver jewellery were taken by her husband / accused Satpal Solanki stating that she would not manage to safeguard the jewellery on her own and accused handed over her entire jewellery articles to mother in law / accused Bharpai Devi on pretext of safe custody. Her istridhan articles including her jewellery are still in the custody and possession of mother in law and when she was thrown out of the matrimonial house, she was emptyhanded.
32. In the complaint to CAW Cell Ex.PW2/D, there is no allegation of the complainant that she had ever entrusted her istridhan articles to the accused persons at any time after the marriage.
33. The statement of the complainant was also recorded under section 161 CrPC by the IO on 24.11.2007, 25.11.2007, 15.01.2008 and 15.02.2009. In all the statements under section 161 CrPC, there is no allegation of the complainant that she had given her jewellery to the FIR No. 936/07 State v. Satpal Solanki & Ors. Page 11 of 15 PS Dabri accused / husband on his demand for safe custody after two three days of marriage as alleged in the examination in chief. In all the statements under section 161 CrPC, it is only stated that istridhan articles are lying with the inlaws and the same may be returned.
34. As discussed above, there are material contradictions in the statement of the complainant as regards the handing over / entrustment of jewellery articles to accused Satpal or motherinlaw after marriage. There is no such averment either in the complaint to CAW cell or in the statement under section 161 CrPC that she had ever entrusted her istridhan to accused persons on their demand or that accused persons had got / taken possession of her istridhan articles during the time she lived in matrimonial house.
35. The list of stridhan articles of the complainant is Mark X1.
36. In the cross examination, the complainant has stated that list was prepared during the period of marriage itself. She has further stated that her marriage was fixed 23 months before solemnization of the marriage and she started purchasing the jewellery six month prior to solemnization of the marriage. She has further stated that jewellery of which bill has been placed on record were purchased in the presence of her mother.
37. The bills produced by the complainant are MarkX1, Ex. PW5/A FIR No. 936/07 State v. Satpal Solanki & Ors. Page 12 of 15 PS Dabri and Ex. PW6/A(colly.). Total 5 invoices have been placed on record.
38. One invoice in respect of gold ornament is dated 09.10.2006 and the same is Mark X. Another invoice of gold ornament is dated 25.09.2006 which is Ex. PW5/A. The marriage was solemnized on 13.02.2005. These two invoices relate to purchases made after one year of marriage. It can not be believed that the article or jewellery which were purchased one year after marriage was given in the marriage of the complainant.
39. There are three invoices of Prabhu Dayal Malhotra and Sons jewellers dated 16.09.2004, 17.09.2004 and 23.06.2004 which is Ex.PW6/A colly. These three invoices are alleged to be of gold ornaments which were purchased before the marriage of the complainant by her mother and the same was gifted to complainant in her marriage.
40. The bills Ex.PW6/A colly are of one gold chain, one gold pendant and one gold ring. Perusal of the list of dowry articles mark X1 would show that in the entire list there is no mention of a gold pendant or a gold chain having been gifted to her by her maternal side on her marriage. No such gold chain or gold pendant was given in marriage to the complainant as per list mark X1.
41. All these circumstances create doubt over the allegation of the FIR No. 936/07 State v. Satpal Solanki & Ors. Page 13 of 15 PS Dabri complainant that the jewelry articles as per the list Mark X was given to her by her family members in the marriage.
42. Hon'ble Supreme Court of India in the matter of Bhaskar Lal Sharma & Anr vs Monica dated 27 July, 2009 arising out of SLP (Crl.) Nos. 41254126 of 2008 has discussed the law of Section 406 IPC.
"The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:
(i) entrusting any person with property or with any dominion over property;
(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.
43. It is settled that in a case under Section 406 IPC, the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property.
44. In the present case, there is no allegation against the accused persons that complainant had entrusted her istridhan with any of the accused or any of the accused had taken her jeweleries. There can not be FIR No. 936/07 State v. Satpal Solanki & Ors. Page 14 of 15 PS Dabri any presumption of entrustment or dominion over the property. There is nothing to show that any accused was entrusted and/or had dominion over istridhan of the complainant. In these circumstances, this Court holds that the prosecution has failed to prove beyond reasonable doubts that the accused persons were entrusted and / or had dominion over the istridhan of the complainant or that they refused to return the same on demand. Accordingly, benefit of doubts is given to the accused persons and they are acquitted of the charges alleged.
45. Bail bond and surety bond of all three accused namely Satpal Solanki, Bharpai and Azad Singh u/s 437A Cr.P.C have been furnished with their photograph and address proof which have been considered and accepted. Digitally signed by NEHA NEHA Date:
2018.04.25 16:10:37 Pronounced in the open court (NEHA) +0530 th On 25 April, 2018 Metropolitan Magistrate Mahila Court02/Dwarka New Delhi FIR No. 936/07 State v. Satpal Solanki & Ors. Page 15 of 15 PS Dabri