Delhi District Court
State vs . Sunil Kumar & Ors. on 29 April, 2015
IN THE COURT OF MS. MONA TARDI KERKETTA: MM:MAHILA COURT:
TIS HAZARI COURTS : DELHI
FIR NO. 258/07
PS : Sarai Rohilla
U/s. 498A/406/34 IPC
UID No.02401R1478702008
STATE VS. SUNIL KUMAR & ORS.
1. Name of the complainant : Smt. Renu D/o Kalu Ram.
2. Name of the accused persons, their 1. Sunil Kumar S/o Sh. Kishan Lal
Parentage & address R/o E4/258, Nand Nagri, Delhi
2. Nahar Singh S/o Sh. Kishan Lal
(Since Discharged)
3. Raghu Raj S/o Sh. Kishan Lal
(Since Discharged)
4. Sri Devi W/o Sh. Kishan Lal
(Since Discharged)
5. Krishan Lal S/o Sh. Hari Singh
(Since Discharged)
6. Meena Devi W/o Sh. Nahar Singh
(Since Discharged)
7. Geeta Devi W/o Sh. Raghu Raj
(Since Discharged)
All R/o H No. E4/260, Nand Nagri,
Delhi.
3. Offence complained of : 498A/406/34 IPC
4.Plea of accused : Pleaded not guilty
5.The final order : Acquitted
FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 1/17
6.Date on which matter was reserved
for order : 29.04.2015
7. Date of order : 29.04.2015
Counsels for the parties:
For the state : Ms. Sarita Rani
For the accused persons : Sh. Hari Om Gupta
THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the statement made by the complainant Smt. Renu @ Manju D/o Sh. Kalu Ram R/o New F18, 1282, Shastri Nagar, Delhi, wherein it is stated that the marriage between complainant and accused Sunil Kumar was solemnized on 02.05.2005 according to Hindu Rites and Ceremonies and after the marriage, they lived together at H.No. E4/262, Nand Nagri, Delhi. One female child Was born from the wedlock, who is under the care and custody of complainant.
2. It is further stated that accused Sunil Kumar was playing in the hands of other accused persons, who used to dislike the complainant and wanted her to leave the matrimonial house. Several times they threatened her to vacate the house and go back to the parental home. They openly told of being dissatisfied with the dowry items given in the marriage. It is further stated that more than Rs. 3,00,000/ were spent in the marriage and sufficient dowry items like colour T.V. fridge, washing machine, furniture, motorcycle, cooler, utensils, costly gold jewelery of about 300 grams, silver items and costly clothes for the accused persons were given. The amount of Rs. 50,000/ in cash was also given but in laws were unsatisfied with it. It is further stated that accused persons illtreated, abused and beaten the complainant several times despite her pregnancy , due to which her health suffered greatly. Accused persons pressurized her to vacate the house and go to parental house till the demand of Rs. 2,00,000/ was fulfilled.
FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 2/17
3. It is further stated that at the time of marriage, accused Sunil Kumar was told to be working with an Export company but the same was found false and incorrect. After the marriage, accused Sunil Kumar was not seen going for work but he used to roam around whole day. It is further stated that accused Sunil Kumar also threatened the complainant to vacate the matrimonial house as he did not want complainant to be there. Due to repeated threats, the life of complainant became miserable as complainant did not get any other place to live and she was completely neglected by the accused persons. It is further stated that accused Sunil Kumar stopped coming home regularly. On inquiry, she came to know that her in laws had sent him to an unknown place. The complainant apprehended danger to her life and property in the hands of accused persons. When no clue was found about whereabouts of accused Sunil Kumar then father of complainant got lodged a missing report on 27.11.2006. It is further stated that when the accused came to know of the same, he returned the house angrily on 12.12.2006 and started beating and abusing for lodging the report. The complainant narrated the incident to her father, who reported the matter to police at 100 number and complainant was taken to parental house in pregnancy and on 23.12.2006 a female child was born at the parental house. It is further stated that finding no other alternative, complainant filed a complaint before SHO PS Nand Nagri, which was forwarded to CAW Cell, Sarai Rohilla, where on failure of reconciliation proceedings, an FIR under section 498A/406/34 IPC was directed to be registered against the accused persons.
4. Subsequent to registration of FIR, investigation was conducted and after completion of investigation, chargesheet was filed in the court against the accused persons. Cognizance of the offence was taken and accused persons were summoned by Ld. Predecessor to face the trial for the offences allegedly committed by them. Accused persons were supplied with copies of charge sheet in compliance of provision given under section 207 Cr.PC. After completion of scrutiny of documents, arguments on the point of charge heard. Vide order dated 08.03.2011,charge U/s 498A/406 IPC was directed to be framed against accused Sunil Kumar and FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 3/17 remaining accused persons were discharged. Charge was framed to which accused pleaded not guilty and claimed trial.
5. Subsequent thereto matter was fixed for Prosecution Evidence. In order to prove its case, the Prosecution produced following witnesses :
(i) WASI Anita, Duty Officer, appeared as PW1 and proved FIR vide Ex. PW1/A and endorsement on rukka Ex. PW1/B,
(ii) Ms. Renu Bala, complainant, appeared as PW2 and proved written complaint dated 15.11.2006 made to SHO PS Nand Nagri vide Mark A, complaint dated 27.11.2006 vide Mark B, DD Entries in respect to PCR calls vide Mark C & D, complaint dated 02.02.2007 Ex. PW2/A, seizure memo Ex. PW2/B, marriage card Ex. PW 2/C, photographs Mark A, list of dowry articles Ex. PW2/D (colly), admitted list of articles Ex. PW2/E, list of receiving articles Ex. PW2/F, other list of articles Ex. PW2/G, house search memo Ex. PW2/H, complaint dated 12.02.2007 addressed to ACP, CAW Cell, Sarai Rohilla vide Ex. PW2/I, DD entry Ex. PW2/J and complaint dated 15.11.2006 addressed to SHO PS Nand Nagri Ex. PW2/K,
(iii) HC Narender appeared as PW 3 and proved arrest memo Ex. PW3/A and personal Search memo Ex. PW3/B,
(iv) SI Veer Sain appeared as PW4 and proved admit list of istridhan Ex. PW4/A, hand over memo of returned articles before CAW Cell Ex. PW4/B and inquiry report Ex. PW4/C,
(v) Smt. Maya Devi, mother of the complainant, appeared as PW5,
(vi) Sh. Kalu Ram, father of complainant, appeared as PW 6,
(vii) ASI Inderjeet Singh appeared as PW7 and proved arrest memos Ex. PW7/A to Ex. PW7/F,
6. After completion of prosecution evidence, matter was fixed for recording of statement of accused under section 313 Cr. PC. The statement of accused u/s 313 Cr.P.C. was recorded on 01.07.2014, wherein entire incriminating circumstances appearing on record were put to him, to which he denied as false and incorrect and claimed to have been falsely implicated but did not prefer to lead evidence in his FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 4/17 defence. Subsequent thereto, matter was fixed for final arguments.
7. During the course of final arguments, following arguments were made on behalf of the accused:
(i) that the fact of discharge of remaining accused persons should be seen in favour of the accused,
(ii) that complainant and other PWs have not mentioned the exact date, month and year of alleged cruelties committed upon her,
(iii) that the specific role of accused persons has not been mentioned and only general and vague allegations have been leveled,
(iv) that testimonies of parents of complainant are based on hearsay informations,
(v) that no independent witness has been cited to corroborate the version of complainant,
(vi) that no investigation in the present case has been done and all the documents have been prepared at police station,
(vii) that real sister of complainant is married to real brother of accused, who has been happily living in the matrimonial house. She has not filed any complaint in respect to demand of dowry against her husband and in laws. The complainant used to quarrel with the accused over petty issues and no such demand of dowry etc., was ever made.
8. The arguments of the prosecution are mentioned below:
(i) that the guilt of accused has been proved beyond reasonable doubt,
(ii) that no evidence has been led by the accused to prove his defence,
(iii) that testimonies of PWs are consistent, reliable and trustworthy.
9. The court has heard the submissions of both the sides and also gone through the entire record including testimonies of witnesses. Before appreciating evidence on record, let us first discuss the relevant legal provisions given U/s 498A/406 IPC. Section 498A 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, FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 5/17
(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, 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 own use or © used it or
(d) disposed of it.
10. In the light of aforesaid legal provision, I would now appreciate the evidence brought on record to ascertain if alleged acts of accused amount to cruelty in terms of provision given U/s 498 A IPC and is guilty of criminal breach of trust u/s 406 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 judgment 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 FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 6/17 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 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.
11. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements.
Testimony of PW2/Ms. Renu Bala is reproduced and appreciated as below: (11.1) She has deposed that after some time of the marriage, accused persons started harassing her for bringing more dowry including cash. It be observed that allegations are general in nature without there being any specific detail. She has further deposed that after retirement, her father had given Rs. 50,000/ to each sister but she refused to receive the same. On her refusal, her father got issued an LIC Policy of Rs. 50,000/ in her favour. She has further deposed that her father in law had taken loan of Rs. 50,000/ from her father therefore, her husband and in laws wanted her to take the said amount in cash so that he could repay the said loan. In this regard, it be observed that expectation of her husband and in laws would not amount to cruelty in terms of section 498A IPC.
(11.2) She has further deposed that her husband and in laws started pressurizing her to bring cash from her parents. Her mother in law and Jethanis used to taunt her for not bringing cash from the parental house. She has further deposed that she disclosed the demands of accused persons to her parents, who made her understand that with time everything would be alright. It be observed that mere taunting does not amount to cruelty. The allegations are general in nature without there being any specific detail and not supported by corroborative evidence. The allegations are against in laws, who have been discharged in the present case. It further be observed FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 7/17 that during cross examination, she admitted not recollecting the exact date, month and year when she disclosed the demand of accused to her parents. (11.3) She has further deposed that on 30.04.2006 her husband left her at the parental house with the promise to take her back after few days but he did not come back. Many times she called him on telephone but he did not respond and came to take her back to the matrimonial house. He placed the condition that she could come back only after fulfillment of demand of Rs. 2 lacs . She has further deposed that she was taken back to the matrimonial house by her parents on 16.08.2006 with the understanding that things would be fine with the passage of time. In this regard, it be observed that these facts are not mentioned in her complaint Ex. PW2/A. It also be observed that allegations are not supported by corroborative evidence. During cross examination, she denied leaving the matrimonial home as per her choice. (11.4) She has further deposed that accused used to beat and confine her in furtherance of more dowry. It be observed that the allegations are not supported by corroborative evidence. During cross examination, she admitted of not being medically examined and not disclosing the fact of being beaten to neighbours. Absence of MLC or medical record of complainant goes on to suggest that she was not subjected to beatings in furtherance of demand. The complainant has not clarified as to why she did not inform her neighbours despite being beaten by the accused. She has admitted not visiting any doctor after receiving beatings. (11.5) She has further deposed that her brother in laws Nahar Singh and Raguraj and their wives also used to taunt for bringing less dowry. Nahar Singh wanted to invest money in the business so he expected monetary help money from her husband, who in turn made the plan to demand money from her. It be observed that allegations are against the accused persons, who have already been discharged. Besides that the allegations are not supported by corroborative evidence, (11.6) Complainant has further deposed that on 15.11.2006 she filed a written complaint vide Mark A to SHO PS: Nand Nagri regarding the harassment caused by her husband and in laws. Thereafter on 27.11.2006 her father also lodged a missing FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 8/17 report of her husband before PS: Nand Nagri vide Ex PW6/A and Mark 'A'. She also filed complaint Ex PW2/I and Ex PW2/K against the accused persons. In this regard, it be observed that the facts mentioned in these complaints are against the in laws, who have already been discharged in the case. The allegations levelled against the accused are again general in nature without there being any specific detail. It further be observed that during cross examination, complainant admitted filing of complaint by her father and that prior to her complaint dated 15.11.2006, she never filed complaint against the accused persons. It further be observed that document Mark 'B' pertains to missing report of accused and does not disclose anything in respect to harassment or torture allegedly caused to complainant in furtherance of demand, (11.7) She has further deposed that on 12.12.2006 the accused had beaten her mercilessly after he came to know of lodging of missing report. Due to beating of accused, the matter was reported to police at 100 number. The DD entries in respect to said incidents are Mark C and D. She has further deposed that on receiving information , police as well as her parents reached and took her to parental house. In this regard it be observed that again no medical record of complainant has been produced on record to prove that complainant was beaten by the accused. Documents Mark C and D suggest domestic quarrel between the parties and not of cruelties in furtherance of some demand. Document Mark 'D' and Ex PW2/J also indicate that the complainant left the matrimonial house on her own accord being pregnant and was not driven out by the accused. She has further deposed that the matter could not sorted therefore, she gave a complaint Ex.PW2/A before CAW Cell on 02.02.2007. In this regard, the court is of the view that accused alone should not be faulted for failure of reconciliation proceedings. It is clearly mentioned in CAW cell proceedings that settlement efforts were made but both the parties could not agree for the same.
12. It is worthwhile to mention that while appreciating the evidence involving matrimonial disputes, the court has to be on its guard and not to be swayed by the FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 9/17 general and bald allegations, which are bound to emanate from the mouth of family members of complainant after the relationship turns sour, so a strict interpretation of the various allegations levelled by the complainant and her relatives is required to be done.
13. Testimony of PW5/Smt. Maya Devi, mother of complainant, is reproduced as below: (13.1) She has deposed that at the time of marriage, they had given dowry articles such as jewelery, double bed, watch, gold ornaments, clothes and other customary items to the accused persons. She has further deposed that prior to marriage, father in law of complainant had taken Rs. 50,000/ on credit but did not return. In this regard, it be observed that no evidence has come on record to prove the allegation. No evidence has been collected in respect to source of dowry. During cross examination, she admitted not recollecting the date and month on which Rs. 50,000/ was taken on credit. She denied the suggestion that Rs. 50,000/ was not given on credit.
(13.2) She has further deposed that accused and his family members used to abuse her daughter in furtherance of demand Rs. 2,00,000/. She has further deposed that accused and his family members did not provide food to her daughter and used to beat and harass her even while pregnancy for bringing insufficient dowry. She has further deposed that after six months of the marriage, accused Sunil Kumar left her daughter at the parental house on the pretext that she would be taken back but he did not come. In this regard it is noticeable that allegations are general in nature without there being any specific detail and not substantiated by corroborative evidence.
(13.3) She has further deposed that her daughter used to tell her about physical and mental torture on telephone. In this regard, it be observed that this fact is not mentioned in the testimony of complainant. She has further deposed that they reported the matter at PS Nand Nagari when complainant was not taken back to the matrimonial house. In this regard, it is again noticeable that allegations are not FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 10/17 supported by corroborative evidence. The root cause of dispute appears to be temperamental differences between the parties so the accused alone should not be faulted for failed relationship between the parties. She has further deposed that in laws of her daughter refused to bear the delivery expenses and despite having information, no one came to see the child. In this regard, it be observed that these facts are not mentioned in the testimony and complaint of the complainant. (13.4) The falsity of PW5/mother of complainant is further proved during cross examination, where she deposed that she did not remember the date and month on which in laws of her daughter demanded Rs. 2,00,000/. She denied the suggestion that in laws of her daughter had not demanded Rs. 2,00,000/ as dowry from them. She further deposed that she did not remember the telephone number on which her daughter used to inform them about the demand of dowry. She denied the suggestion that accused as well as his family members did not torture and abuse her daughter. She further denied that her daughter filed the complaint with malafide intention without their being demand of dowry or harassment by her daughter's in laws.
14. Testimony of PW6/Sh. Kallu Ram, father of complainant, is reproduced and appreciated as below: (14.1) He has deposed that accused and his family members harassed and tortured her daughter for demand of more dowry. He has further deposed that after retirement, he received funds from his office, out of which he wanted to give Rs. 50,000/ each to his daughters. The complainant refused to receive the same as her father in law had already borrowed Rs. 50,000/ from him. He has further deposed that the said amount of Rs. 50,000/ was not returned to him. In this regard, it be observed that allegations are without any basis. No evidence has been collected to prove the fact of borrowing Rs. 50,000/ by the father in law of complainant and its nonreturn.
(14.2) During crossexamination, PW6 has deposed that said amount of Rs. 50,000/ was withdrawn from his saving bank account with Delhi Nagarik Sarkari Bank but he FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 11/17 did not remember the exact date of withdrawn. He admitted not bringing the bank statement in the court. He further admitted that he had not given the bank statement to the police. It be observed that he claimed to have disclosed the fact of payment of Rs. 50,000/ to the family members of accused before marriage on demanded to police but stated that he did not remember whether the said fact was mentioned in the FIR by police or not, infact this fact is not mentioned in the statement given to police. He denied the suggestion of not disclosing said fact to the police and the same was not found mentioned in the FIR. He admitted not disclosing the expenses of Rs. 2 to 2.5 lacs in respect of his daughter's marriage in ITR despite being an Income Tax Assessee.
(14.3) He has further deposed that elder brother of accused Nahar Singh used to instigate by saying that articles or money was given only in the name of complainant and not the accused. He has further deposed that he and his wife used to tell the complainant to have patience but things did not improve and their daughter was continued to be harassed, tortured and abused . It is noticeable that allegations are against accused, who has already been discharged in this case. The allegations are again vague and general in nature and without any basis, (14.4) He has further deposed that in the month of April,2006, accused left the complainant at the parental house at advance stage of pregnancy and asked to get herself medically examined on her own and told of coming back after one week but he never turned up. It is noticeable that the fact of getting medical examination done on her own is not mentioned in the testimony of any other witness. During cross examination, he admitted of not getting done medical examination of his daughter . He deposed that he did not know whether his daughter got conducted any medical examination on her own.
(14.5) He has further deposed that through telephonic conversation, accused told to bring back the complainant to matrimonial house only after fulfillment of demand of Rs. 2,00,000/ out of what he received after his retirement. He has further deposed that he spoke about the demand to his Samdhi Sh. Kishan and elder son in law Sh.
FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 12/17 Anokhe Lal but they refused to intervene into the matter. He has further deposed that the accused continued to commit torture upon the complainant even after she was taken back at the matrimonial house. It is noticeable that the fact of discussing the issue with Samdhi and elder son in law is not mentioned in the testimony of any other witness. The allegation of continuous torture is not supported by corroborative evidence.
(14.6) He has further deposed that on 15.11.06 an application under DV act was moved against the accused. Thereafter on 27.11.06 another application in respect to cruelty by accused and his family members was filed . He also filed another complaint after the accused went missing. He has further deposed that on 12.12.06, his daughter telephonically informed about beatings given to her by the accused for lodging missing report. Thereupon , matter was reported to police and complainant was brought back to the parental house. In this regard the court in preceding paras has already given finding that first complaint pertains to in laws of complainant, who have been discharged in this case. Second complaint is in respect to missing report of accused, which clarifies that the complaint was not related to causing harassment in furtherance of demand and PCR call was made in furtherance of quarrel between the husband wife as the accused was angry upon the complainant for lodging missing complaint.
(14.7) He has further deposed that neither accused nor his family members came to see the newly born child or participated in ceremonies. He has further deposed that after filing of complaint before CAW cell, efforts were made for reconciliation but accused and his family members did not agree for the same. In this regard the court feels that the same were consequence of kneejerk reactions of the accused after the incident dated 12.12.2006. The court has already opined that the accused can not be faulted alone for the failed relationship between the parties and in reconciliation proceedings both the parties could not agree for mutual settlement.
15. In the case of Narender Kumar Vs State ( Govt. of NCT of Delhi) I (2008) DMC 337, It has been very aptly held by HMJ(Retd.) S.N. Dhingra that : FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 13/17 " it must be understood that god had not made any two persons same with the same ideas, qualities and it must be acknowledged that marriages do fail and there is a mismatch not only in arranged marriages but even in love marriages. The mismatch is discovered during the continuation of married life...................................... Every marriage that fails does not fail due to dowry demand or cruelties. The marriages do fail for several other reasons including the reason of incompatibility of the persons. A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible.............. Involving each of the family members of the husband is another arm in the armory of the complainants of failed marriages. Not only close relatives but distant relatives and even neighbours are being implicated under Section 498A and other provisions of IPC in cases of failed marriages. The Courts must be very cautious during trials of such offences.... ''. The present case also appears to be the outcome of incompatibility between the complainant and accused. The overall conduct of complainant and accused as appearing from testimonies of witnesses and materials placed on record, clearly divulge that their relationship was not cordial from the beginning and ultimately, it led to breakdown of their marriage. PW5/mother of complainant has admitted during crossexamination that her elder daughter has been married with the elder brother of accused and she was never demanded dowry or money by her in laws. Similarly, PW6/father of complainant has also deposed that his elder daughter has been married to elder brother of accused. Though he has claimed that his elder daughter also had some dispute with her laws but this fact does not find mention in others testimonies. PW6 has admitted not filing complaint against in laws of his daughter when she had faced problems from her in laws. He denied that he did not make any complaint as she did not have any problem with her in laws. PW6 has also deposed that he came to know about the problems after 04 months of the marriage and he did not consult anyone about the same as he wanted to make his daughter understand. He denied that accused and in laws of his daughter did not torture and beaten her at any point of time in furtherance of dowry demand . He further denied that his daughter left the matrimonial home on her own wish. He further denied that complaints made by his daughter are false and frivolous and nothing has been paid to the accused and his family members .
FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 14/17 In view of the aforesaid discussions, the court is of the considered opinion that charge u/s 498A IPC is not established against the accused .
16. It be observed that accused has also been charged under section 406 IPC for having misappropriated the stridhan articles of the complainant to his own wish. In order to to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused and he was having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to him, have been misappropriated.
17. The list of dowry articles Ex.PW2/ D is not witnessed by family members of the parties, which casts a serious doubt over the genuineness of above mentioned list. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant has been proved on record. 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. Admittedly, accused already returned substantial dowry articles before CAW Cell proceedings and for alleged remaining articles, no evidence has been collected.
18. It be also observed that in the present case, there is no investigation regarding source of dowry articles. In the judgment of Narender Kumar & Anr.Vs State (Govt. of NCT of Delhi) I (2008) DMC 337, it has been held by the Hon'ble court that "the court must be very cautious during trial of offences under section 498A/406 IPC as in all such cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by the police. Police does not verify any circumstantial evidence nor collect any other evidence about claims made by the complainant. This all results into gross misuse of provision of law and investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by complainant. The courts should always be careful in considering credibility and truthfulness of statement of complainant and FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 15/17 relatives".
19. In the present case also, admittedly no investigation in respect to source of dowry articles, alleged LIC policy has been conducted . The court in preceding paras has already opined while appreciating the testimonies of PW5 and PW6 i.e. parents of the complainant, in respect to absence of cogent evidence for entrustment and misappropriation by the accused. PW7/IO ASI Inderjeet has also conceded the absence of evidence in respect to source of dowry articles. He has deposed that he inquired from the complainant in respect to marriage expenses bills but he was told that those were not available with them. He admitted that the complainant and her father did not disclose the name of shopkeeper from where the dowry articles were purchased. He has further admitted that he did not enquire from the neighbors of complainant in respect to marriage expenses. He further admitted that he also did not inquire about service and other things of complainant's father.
In view of the facts and circumstances, the court is of the view that none of the ingredients of section 405 IPC is established and therefore no case u/s 406 IPC is also made out against the accused.
20. In view of aforesaid discussions, the court is of the opinion that no material evidence has been produced in order to secure the conviction of accused. Accordingly, accused Sunil Kumar is acquitted from the charge framed under section 498A/406 IPC .
21. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 29.04.2015 (MONA TARDI KERKETTA) MM02 , MAHILA COURTS TIS HAZARI COURTS, DELHI FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 16/17 FIR No. 258/07 P.S. Sarai Rohilla U/s 498A/406 IPC State Vs. Sunil Kumar & ors.
29.04.2015
Present : Ld. APP for the State.
Accused Sunil Kumar on bail with Ld. counsel.
Other accused persons have been discharged.
Vide separate detailed order announced in the open court, accused
Sunil Kumar is acquitted from the charge framed u/s 498A/406 IPC.
Previous bail bond is cancelled, surety is discharged. Documents if any, be returned against receiving and endorsement if any be cancelled.
Fresh bail bonds in the sum of Rs.10,000/ in compliance of provision given under section 437A Cr.PC. has been furnished, same is attested and accepted. Bail bond furnished shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court THC/ Delhi/29.04.2015 FIR NO. 258/07 PS: SARAI ROHIllA STATE VS. SUNIL KUMAR & ORS. 17/17