Delhi District Court
State. vs . Balvinder Singh & Ors. on 13 August, 2014
1
IN THE COURT OF MS. MONA TARDI KERKETTA:
MM (MAHILA COURTS) :TIS HAZARI COURTS: DELHI
FIR NO. : 431/06
P.S. : Sarai Rohilla
U/SEC. 498A/406 /34 IPC
UID No. 02401R0554862007
State. Vs. Balvinder Singh & Ors.
1.Date of commission of offence : During subsistence of marriage since 29.06.2002
2. Name of the complainant : Smt. Mamta Rani D/o Late Sh. Meghraj
3. Name of the accused persons and their parentage and address : 1. Balvinder Singh S/o Amar Singh
2. Padam Singh S/o Amar Singh
3. Amar Singh (since expired) S/o Kaaga Singh
4. Smt. Krishna Devi (since discharged) W/o Sh. Amar Singh
5. Smt. Jaswanti Kaur (since discharged) W/o Sh. Padam Singh
6. Lakhvinder Singh S/o Sh. Amar Singh
7. Raj Kumar (since discharged) S/o Sh. Nanak Chand All R/o Village & FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 2 PO Murtzapur, PS Pehwa, Distt. Kurukshetra, Haryana.
4. Offence complained of : 498A/406/34 IPC
5. The date of order : 13.08.2014
6. Plea of accused persons : Falsely implicated
7.The final order : Acquitted Counsels for the parties:
For the State : Sh. Vinit Dahiya For the Accused persons : Sh. Shivcharan Sharma THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the statement of complainant Smt. Mamta D/o Late Sh. Meghraj , wherein it has been stated that the marriage of the complainant was solemnized with accused Balvinder Singh on 29.6.2002 at Delhi according to Hindu rites and customs. Accused Amar Singh is the fatherinlaw, accused Padam Singh and Raj Kumar are the elder brotherinlaws, accused Krishna Devi is the motherinlaw, accused Jaswanti is the sisterinlaw and accused Lakhvinder is the younger brotherinlaw of the complainant. It has been further stated that the father of the complainant had spent about Rs.4 lacs in the marriage beyond his capacity but inlaws of the complainant turned out to be greedy persons and they used to taunt her every now and then on the dowry issue.
2. It is further stated that the complainant lived for about only two weeks at FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 3 matrimonial house i.e. 30.6.2002 to 07.07.2002 and again from 8.7.2002 to 15.7.2002 but she was given tauntings for bringing less dowry and kept listening sattires of accused persons about herself and her parents. She was not allowed even to talk to anybody in the neighbourhood. It is further stated that these facts were brought into the knowledge of her parents, who convinced her to bear with it for their honour and sent her back to matrimonial house after Raksha Bandhan festival. It is further stated that the complainant came to know from her motherinlaw that her husband was already married with a son of aged about 9 years and was residing with his first wife at Kotdwar, UP. It is further stated that accused Balvinder Singh married her to keep as a maid servant in the house. On inquiry he confirmed the fact of previous marriage and showed her a bundle of love letters written to him by his first wife.
3. It is further stated that motherinlaw of the complainant used to beat her on lame excuses and accused Lakhvinder Singh used to knock at her door in the night in drunken condition to open the door. When she made complaints to her motherinlaw, she used to give her beatings instead of listening her complaints and her husband also used to tell that he could take no action against his brother. It is further stated that her motherinlaw used to ask her to bring clothes for all the family members on the occasion of all festivals and when she told that her father could not afford the same then she used to be given beatings with a danda.
4. It is further stated that when the father of the complainant brought her back to matrimonial house, her motherinlaw quarreled with him and gave a danda blow on her FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 4 head and she was forced to leave the matrimonial house in three plain clothes in the company of her father and on account of such misbehaviour and assault, her father was deeply shocked and expired a few days after the incident. It is further stated that the accused persons refused to return her stridhan articles on her demands. On the basis of the statement of complainant, a case U/s 498A/406/34 IPC was registered against the accused persons.
5. Subsequent to registration of FIR, investigation was conducted and after its completion, chargesheet was filed in the court and accused persons were summoned by Ld. Predecessor. Copy of chargesheet was supplied to accused persons against receiving in compliance of provision of Sec.204 Cr.PC. Arguments on the point of charge were heard and vide order dt. 01.02.2011, charge u/s. 498A/34 IPC against accused Balvinder Singh, Padam and Lakhvinder Singh and u/s. 406 IPC against accused Balvinder Singh was framed and remaining accused were discharged. Thereafter matter was fixed for prosecution evidence.
6. In order to prove its case prosecution produced following seven witnesses :
(1) Ms. Mamta Rani appeared as PW1 and proved her complaint Ex. PW1/A, seizure memo Ex.PW1/B, receipt Ex.PW1/C and list of dowry articles Ex.PW1/D, (2) HC Manju, Duty Officer, appeared as PW2 and proved copy of FIR Ex.PW2/A and endorsement on rukka Ex. PW 2/B, (3) HC Kuldeep, arrest witness, appeared as PW3 and proved arrest memo Ex.PW3/A and personal search memo Ex.PW3/B of accused Padam Kumar, FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 5 (4) Sh. Kailash Chand, brother of complainant, appeared as PW4, (5) Smt. Rano Devi, elder sister of complainant, appeared as PW5, (6) Retd. SI Chander Singh, inquiry Officer, CAW Cell, North District, appeared as PW6 and proved list of articles Ex.PW6/A, final report Ex.PW6/B and date wise proceedings Ex.PW6/C, (7) Insp. Bharat Ram, IO, appeared as PW7 and proved arrest memo of all accused except Padam Kumar vide Ex.PW7/A to E.
7. Subsequent thereto matter was fixed for recording of Statement of accused persons u/s. 313 Cr.PC., wherein entire incriminating circumstances appearing on record were put to accused persons, to which they denied as false and incorrect and stated that they have been falsely implicated in this case however, they did not prefer to lead evidence in their defence.
8. Subsequent thereto matter was fixed for final arguments. During the course of final arguments Ld. counsel for accused persons submitted that the allegations of the complainant are general in nature and no specific role of each accused and no specific date and time of incident have been mentioned. It was further submitted that no medical evidence has been brought on record that the complainant was manhandled or given beatings in furtherance of dowry demands. It was further submitted that mere taunting does not amount to cruelty u/s. 498A IPC. It was also submitted that no receipt of dowry articles has been collected and proved on record as per law.
9. Ld. APP for the State, on the other hand, submitted that the guilt of the accused FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 6 persons has been proved by the prosecution beyond reasonable doubt.
10. The court has heard the submissions of both the sides and also gone through entire record including testimonies of witnesses. Before appreciating evidence on record, lets first discuss the relevant legal provisions given U/s 498 A IPC. Section 498 A IPC provides punishment to husband or relatives of the husband of a woman subjecting her to cruelty. The prosecution must prove that :
(i) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand,
11. Section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it,
(ii) that he (a) misappropriated it or(b) converted it to his FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 7 own use or (c) used it or (d) disposed of it
12. In the light of aforesaid legal provision, the court would now appreciate the evidence brought on record to ascertain if alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. Admittedly the complainant has built her case on explanation (b) of section 498A IPC. In the judgement of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J page 3019, the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of section 498A IPC observed that harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 8
121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
13. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements. The examination in chief of PW1/complainant is reproduced and appreciated as below : (13.1) PW1 Smt. Mamta Rani, has deposed that her parents gave sufficient dowry in her marriage but her husband and inlaws were not happy with said articles and started harassing her for bringing less dowry. In this regard, it be observed that the allegations are general in nature and without any specific detail, (13.2) she has further deposed that accused Balwinder Singh used to beat her under influence of alcohol and taunt her for bringing less dowry. It be observed that the allegations are again general in nature without any specific detail. She has further deposed that he along with other family members started demanding more dowry and when she told that she could not bring more dowry then accused persons beaten her mercilessly. It be again observed that allegations are general in nature and without any specific detail, (13.3) She has further deposed that she lived for about two week at matrimonial house and kept listening taunts of accused persons and she was not allowed to talk to any body in the neighbourhood. It be observed that mere taunting does not amount to cruelty under section 498A IPC and these allegations are not FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 9 supported by any corroborative evidence, (13.4) She has further deposed that she brought this fact into the knowledge of her parents, who made her understand and sent her back to matrimonial home but behaviour of her husband did not change. One day she came to know her husband was already married and he had son of nine years and his second wife used to reside in Haridwar and her husband also confirmed this fact. In this regard, it be observed that the allegations are again general in nature and not supported by corroborative evidence. No evidence has been brought during trial to prove the allegation of second marriage of accused Balvinder Singh and having son from said marriage. Though photocopies of certain letters written to accused Balvinder Singh by a lady are on record but said letters have not been exhibited in the statement of any prosecution witness and there is no whisper about the same in the testimony of any of the witness, (13.5) She has further deposed that accused Lakhvinder used to drink at night and beat her regularly. It be observed that this fact is not mentioned in her statement given to police, wherein she has stated that accused Lakhvinder used to knock and ask her to open the door in drunken condition but she used to refuse. It also be observed that this allegation is general in nature and without any specific detail. It also be observed that the complainant in her examination in chief has not stated about the fact that her husband used to force her to have illegal relation with accused Lakhvinder Singh, whereas her family members FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 10 have stated so, (13.6)She has further deposed that her saas and Jethani used to say "Jo ghar ke male member kahenge woh tuje karna Parega". It be observed that this fact is not mentioned in her statement given to police and allegation is against accused persons, who have already been dischraged. She has further deposed that her husband and in laws forced her to live with her dever Lakhwinder Singh and her Jeth Padam Singh also used to beat her under the influence of liquor. It be observed that these allegations are again general in nature without any specific detail and are not supported by corroborative evidence, (13.7)She has further deposed that her mother in law used to ask her to bring suits for all family members on the occasion of festivals. When she told that her father could not afford then she gave her beating with Danda. When she could not meet with their demands of dowry accused persons forced her to leave the house. It be observed that initial allegation is against accused Krishna Devi, who has already been discharged and other allegation is general in nature without any specific detail and not supported by corroborative evidence,
14. It is worthwhile to mention that while appreciating the evidence in such type of cases involving matrimonial disputes, the court has to be on its guard and not to be swayed by the general and bald nature of allegations which are bound to emanate from the mouth of family members of a woman after the relations between two sides have gone to the extreme opposite end. It is for this reason a strict analysis of allegations FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 11 levelled by the family members of the complainant shall be done. Clearly , the accused has faced trial for penal provisions and the consequence of which are very grave in nature so a strict interpretation needs to be taken of the various allegations levelled by the complainant and her relatives.
15. The examination in chief of PW4/ brother of complainant, Sh Kailash Chand is reproduced and appreciated as below : (15.1) he has deposed that his sister Mamta told them that her husband and other in laws used to harass and beat her and used to tell her to get married with accused Lakhvinder Singh. It be observed that allegations are again general in nature without any specific detail and are not supported by corroborative evidence, (15.2) he has further deposed that complainant used to tell on telephone to his father regarding cruelty caused by the accused person, on which his father used to advise her to bear with the behaviour of accused persons to save her matrimonial life. It be observed that these facts are not mentioned in his statement as well as that of the complainant given to police and also in her examination in chief. Moreover , these facts have been mentioned on the basis of hearsay information. It is very unlikely that a father would ask his daughter to bear with all kinds of atrocities allegedly committed upon her just to save the matrimonial life, (15.3) he has further deposed that he made sincere efforts to make the accused FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 12 persons understand but they refused and they did not change their behavioiur. It be observed that no corroborative evidence in support of his claim has come on record. The factum of efforts for settlement does not find mention in the statement of the complainant, (15.4) he has further deposed that his sister told him that accused persons used to demand more dowry articles from her as they were not satisfied with the given dowry articles. It be observed that the allegation is general in nature without any specific detail. He has further deposed that accused persons used to confine the complainant in the room and threatened her to kill. It be observed that this fact is not mentioned in his statement given to police and also in the statement of the complainant, (15.5) During crossexamination, he has admitted that the complainant was not harassed in his presence by the accused persons. The admission on the part of PW4 proves that his statement is based hearsay information and no evidence has been collected or proved on record except recording the statement of the witnesses in order to prove the case,
16. Now coming to testimony of Smt Rano Devi PW6/ sister of the complainant, whose examination in chief is reproduced and appreciated as below: (16.1) she has deposed that in the marriage of complainant, her parents gave furniture, Alimarh, Cooler, jewelery articles i.e. ear ring, gold chain, silver payal, gold nose ring, bed and other customary articles. It be observed that these articles FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 13 are not mentioned in the testimonies of PW1 & 5 and it is nowhere stated by PW6 that these articles were demanded by the accused persons, (16.2) she has further deposed that when her father visited the matrimonial house of the complainant, he found her confined in the room and her brother in law was beating the door with stick in drunken condition. It be observed that these facts are not mentioned in the statement of PW1 & 5, (16.3) she has further deposed that her sister told that accused persons used to harass her daily by demanding more dowry articles from her and used to tease and comment upon her. It be observed that the allegation is general in nature without any specific detail, (16.4) she has further deposed that accused Lakhvinder used to beat the complainant and her husband used to ask her to have illegal relation with accused Lakhvinder. She has also deposed that her parents tried to make accused person understand but they did not agree to treat her sister well. It be observed that the allegations are general in nature and without any specific detail, (16.5) during crossexamination, she has deposed that the main reason of dispute was earlier marriage of accused but it has already been observed that no evidence has come on record to prove this fact,
17. Now dealing with charge under section 406 IPC, which has been framed against accused Balvinder Singh. The complainant has deposed that in her marriage, her parents had given sufficient dowry articles as mentioned in the list Ex.PW 1/ D but said FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 14 list of articles is not witnessed by any of family members of the parties. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant is proved on record. PW1 in her examination in chief has clearly stated that she can not produce the receipt of dowry articles. PW7 has also stated during crossexamination that complainant did not produce any bill of dowry articles except receipt of Tent House. He has further admitted that he did not verify the receipt of Tent House and that complainant did not tell the correct location of said Tent House. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152, the court is of the opinion that entrustment in favour of the accused is not established.
18. The court is of the view that gift articles are given at the time of marriage to the couple for their personal and joint use being customary in nature and therefore the same cannot be said to be given exclusively to the husband and his family members only. It be also observed that no evidence has been collected with regard to giving of dowry or resources of complainant's family claiming spending of huge amount. (Reference may be had to Narender Kumar Vs State(Govt. Of NCT of Delhi ). During crossexamination, PW4 has deposed that his father was working as a Fitter and his salary was Rs 10,000/pm. He has further deposed jewellery articles were purchased by him and receipts of dowry articles were given to his father. But there is no evidence in this regard on record. He has admitted that the list of dowry articles were not prepared in his presence.
FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 15
19. In view of the fact that none of the ingredients of section 405 IPC is established, the court is of the view that no case u/s 406 IPC is made out against the accused Balvinder Singh.
20. In view of the aforesaid discussion, the court is of the opinion that no material evidence has been produced in order to secure conviction of accused persons, accordingly, they are acquitted.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 13.08.2014 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors
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FIR NO. 431/06
P.S. S. Rohilla
U/SEC. 498A/406/34 IPC
ST. VS. BALVINDER SINGH & Ors.
13.08.2014
Present : Ld. APP for the State.
Accused Balvinder, Padam & Lakhvinder Singh on bail with Ld. Counsel Accused Amar Singh has expired Accused Krishna, Jaswant Kaur and Rajkumar are discharged Vide separate judgment pronounced in the open court, accused persons are acquitted from the charge framed u/s 498A/406/34 IPC.
Put up for furnishing of bail bonds in compliance of provision given under section 437A Cr.P.C on 19.08.2014 at 2.00 pm. (Mona Tardi Kerketta) MM02/Mahila Court Tis Hazari Courts, Delhi 13.08.2014 FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 17 FIR NO. 431/06 P.S. S. Rohilla U/SEC. 498A/406/34 IPC ST. VS. BALVINDER SINGH & Ors.
20.08.2014 Present : Ld. APP for the State.
Accused Balvinder, Padam & Lakhvinder Singh on bail with Ld. Counsel Accused Amar Singh has expired Accused Krishna, Jaswant Kaur and Rajkumar are discharged It be observed that accused persons have been acquitted from the offence under Section 498A/406/34 IPC. Fresh bail bonds in favour of accused persons in compliance of provision given under section 437A Cr.P.C have already been furnished on 19.08.2014.
Considering the same, previous Bail Bonds of accused persons are cancelled. Sureties are discharged. Documents if any be returned against recceiving to its original/lawful owner, endorsement if any be cancelled.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court Tis Hazari Courts, Delhi 13.08.2014 FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors 18 FIR No. 431/06 PS S. Rohilla State Vs Balvinder Singh & Ors