Delhi District Court
Unknown vs State (Govt. Of on 26 April, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE
(MAHILA COURT) -02 CENTRAL DISTRICT, TIS HAZARI
COURT, DELHI
Presided by : Ms. Sonam Singh
State v. Sanjay Kumar Jain and Others
FIR No. 91/01
Police Station : Chandni Chowk
Under Sections: 498A/406/34 of the Indian Penal Code, 1860 (in short "IPC")
CIS No. 288521/16
Date of institution : 28.03.2002
Date of pronouncement: 26.04.2018
JUDGMENT
a) Serial number of the case : 341/2/09
b) Date of commission of : Since 12.03.1986 offence
c) Name of the complainant : Ms. Rita Jain
d) Name, parentage and : 1. Sanjay Kumar Jain address of the accused S/o Sh. Narender Kumar Jain,
2. Meenu Kapoor W/o Sh. Sanjay Kumar Jain Both R/o H.No. B-147, Anand Puri MD Road, Jaipur, Rajasthan.
3. Narender Kumar Jain S/o Sh. Nepal Singh Jain
4. Smt Sushila Jain, w/o Sh. Narender Kumar Jain State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 1 of 22 Both R/o B-18, Preet Vihar Delhi.
e) Offences complained of : Sections 498A/406/34 IPC
f) Plea of the accused : Accused persons pleaded not guilty
g) Final order : Vide order dated 17.03.2005 passed by the learned Appellate Court, accused Meenu Kapoor was discharged from the offence punishable under Section 494 IPC and Section 109 IPC and accused Sanjay Kumar Jain was discharged for the offence punishable under Section 494 IPC. Vide the same order, the accused Narender Kumar Jain and Sushila Jain were also discharged from the offences punishable under Section 406 IPC.
Proceedings qua accused Narender Jain already stand abated vide order dated 08.10.2010 passed by learned predecessor of this court.
Accused Sanjay Kumar Jain and Sushila Jain stand acquitted of the offence punishable under Section 498A/34 IPC and accused Sanjay Kumar Jain is also acquitted for the offence punishable under Section 406 IPC.
h) Date of final order : 26.04.2018 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused persons Sanjay Kumar Jain and Sushila Jain are being acquitted from the offence punishable under Sections 498A/34 IPC and accused Sanjay Kumar Jain is being also acquitted for the offence punishable under Section 406 IPC in this case for the reasons mentioned below.
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 2 of 22 THE CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that the accused persons, namely, Sanjay Kumar Jain, Narender Jain (since deceased) and Sushila Jain, during the subsistence of marriage between the complainant Ms. Rita Jain, and accused Sanjay Kumar Jain, since 12.03.1986, subjected the complainant, Ms. Rita Jain to cruelty by making unlawful demands of dowry in furtherance of their common intention. Further, according to the prosecution, the willful conduct of the accused persons was of such a nature, which was likely to drive the complainant to commit suicide or cause her grave injury or danger to her life, limb or health. It is also alleged that the accused Sanjay Kumar Jain was entrusted with istridhan, which he misappropriated for his own use and refused to return the same. Thus, the case of the prosecution is that the accused Sanjay Kumar Jain has committed offences punishable under Section 498A/406 read with Section 34 IPC and accused Sushila Jain has committed an offence punishable under Section 498A read with Section 34 IPC
3. The investigation was done by the IO SI Surender Dalal and Insp. Raj Pal Singh. The police report under Section 173 of the Cr. P.C. in respect of the offences punishable under Section 498A/406/494/109 read with Section 34 IPC was filed.
COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 28.03.2002. On 24.01.2003, the accused persons were supplied with the copies of police report and documents.
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 3 of 22
5. Vide a detailed order dated 08.06.2004 passed by learned predecessor of this court, the complaint case, which was filed by the complainant and the case arising out of the police report were tried together as if both the cases were instituted on a police report, in view of Section 210 (2) Cr.P.C.
CHARGE
6. Vide order dated 01.08.2005, the learned predecessor of this court framed the charge against the accused persons Sanjay Kumar Jain, Narender Jain and Sushial Jain for the offence punishable under Section 498A read with Section 34 of the IPC and also framed charge under Section 406 IPC against the accused Sanjay Kumar Jain, to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
7. Thereafter, the matter was listed for prosecution evidence.
(i) Prosecution Witnesses In order to prove and substantiate its case, the prosecution the prosecution in all has examined Thirteen witnesses, namely:
Sr. Designation and Name Role in the present case No of the Witness
1. PW 1 Rita Jain Complainant
2. PW 2 Sh. Vishal Aggarwal Employee of the accused Sanjay Kumar Jain
3. PW 3 ASI Nirpal Singh Witness/police official who joined the investigation with the IO.
4. PW 4 W/ASI Suman Duty officer State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 4 of 22
5. PW 5 Sh. Parag Jain Witness to seizure memo Ex.
PW1/C
6. PW 6 Ms. Sweety Medical Record Technician, Shanti Mukund Hospital, Delhi
7. PW 7 Smt.Vineet Benerjee Administrative officer at LIC
8. PW 8 SI Rakesh Kumar Witness/police official who joined the investigation with IO SI Surender Dalal
9. PW 9 Sh. Chandan Mal Father of the complainant Jain
10. PW 10 SI Surender Dalal 1st Investigating officer
11. PW 11 (Retired ACP) 2nd investigating officer Sh. Rajpal Singh
12. PW 12 Sh. Puneet Jain Son of the complainant
13. PW 13 Sh. Anil Mendiratta Assistant Administrate Officer at LIC
(ii) Documents on record:
The prosecution witnesses relied on the following documents:
Sr. Exhibits/ Nature of documents
No Marks
1. Ex.PW1/A List of total items gifted to the
complainant
2. Ex.PW1/B Complaint of the complainant to the
police
3. Ex. PW 1/C Part of istridhan List
4. Ex.PW1/D and Ex. Seizure memos of istridhan articles PW1/E
5. Ex.PW1/F Seizure memo regarding handing over list of istridhan articles
6. Ex. PW1/G List of remaining jewellery articles which were yet to be recovered
7. Ex. P1 (colly) Jewellery articles
8. Ex. P2 (colly) Other articles State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 5 of 22
9. Mark A Photocopy of an Inland letter written by the complainant to her father.
10 Ex. P-1 to P-21 Photographs of marriage
11. Ex. PW3/A Seizure memo of photograph of child
12. Ex. PW3/B Arrest memo of accused Sanjay Kumar Jain 13 Ex. PW3/C Arrest memo of accused Narender Kumar Jain
14. Ex. PW3/D Arrest memo of accused Sushila Jain
15. Ex. PW3/E Arrest memo of accused Sanjay Jain
16. Ex. PW3/F Inspection memo of accused Sanjay
17. Ex. PW4/A FIR bearing no. 91/01
18. Ex. PW4/B Endorsement on rukka
19. Ex. PW7/A Notice under Section 91 Cr.P.C.
20. Ex. PW7/B Written reply of notice under Section 91 Cr.P.C.
21. Ex. PW8/A Arrest memo of accused Meenu Kapoor
22. Ex. PW10/A Medical documents of Meenu Kapoor's child
23. Ex. PW11/A Notice to Area Manager, LIC
24. Ex. PW11/B Reply of policy no. 112805623 and 112805581
25. Ex. PW12/DA Statement of Sh. Puneet Jain under Section 161 Cr.P.C.
26. Ex. PW13/A Status report of LIC policy no.
112805623, date of commencement 27.02.2000
27. Ex. PW13/B Status report of LIC policy no.
112805581, date of commencement 27.02.2000
28. Mark A Prescription of Shanti Mukund Hospital Thereafter, prosecution evidence was closed vide order dated 22.12.2017. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
THE STATEMENT OF THE ACCUSED PERSONS UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED PERSONS
8. The accused persons in their statement under Section 313 Cr.P.C., recorded on 25.01.2018 denied the entire evidence put to them. They stated that they are State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 6 of 22 innocent and have been falsely implicated in the present case by the complainant. Further, the accused Sanjay Kumar Jain stated that the complainant used to raise unnecessary demands of money from him and used to pressurize him in order to live separate from his parents. Further, he stated that due to these circumstances, he got a heart attack on 18.11.1996 and was hospitalized for 11 days but the complainant did not pay a single visit. He also stated that on 06.12.1996, the complainant on her own accord left the matrimonial house. Accused persons submitted that they did not wish to lead defence evidence and in view of the statement given, the opportunity to lead defence evidence was accordingly closed and matter was fixed for final arguments.
FINAL ARGUMENTS
9. The Court heard the final arguments on 27.02.2018.
ANALYSIS AND FINDINGS
10. I have heard the submissions of Sh Vikas, Learned Assistant Public Prosecutor for the State assisted by Sh. V.K. Jain, Ld. Counsel for complainant as well as that of Sh. Pawan Kumar Jain, Ld. counsel for the accused persons. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
11. In order to decide the present case, it is important to discuss the provisions. In order to establish the charge under Section 498A IPC against the accused persons, the prosecution was required to prove the following:
i) that the accused Sanjay Kumar Jain and Sushila Jain were either the husband or relative of the husband of the complainant Smt. Rita Jain; and State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 7 of 22
ii) that the accused Sanjay Kumar Jain and Sushila Jain had subjected the complainant to cruelty.
12. The term "cruelty" has been defined in the Explanation to Section 498A I.P.C. There are two limbs of the section i.e. the first type of cruelty is when there is willful conduct of a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. The willful conduct can be either physical or mental. The second type of cruelty as per the section is harassment with a view to coerce her or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand. The Hon'ble apex court in the case of State v. Prem Chand and Ors 2016 SCC OnLine Del 3667 : (2016) 231 DLT 204 (DB) :
(2016) has also explained the two types of cruelties contained in Section 498A, in the following words, as reproduced below:
"17. Section 498A IPC lays down two types of cruelties. The first, being, wilful conduct of a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. Wilful conduct can be both mental and physical but it must relate to a woman. The second, being harassment with a view to coercing her or any person related to her to meet unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand. The second aspect is relatable to the property, and should be with a view to coerce her or any other person related to her to meet any unlawful demand of property or valuable security. Further, the harassment should be on account of her failure or failure of any other person related to her to meet the said demand."
13. Let us now appreciate evidence on record and first see whether the first ingredient is made or not i.e. Whether the accused persons Sanjay Kumar Jain and Sushila Jain are the husband or relative of the complainant, Ms. Rita Jain?
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 8 of 22 Whether the accused persons Sanjay Kumar Jain and Sushila Jain are the husband or relative of the complainant, Ms. Rita Jain?
14. As per the case of the prosecution, the accused Sanjay Kumar Jain is the husband and the other accused namely, Sushila Jain is the mother in law of the complainant respectively. PW1/complainant Ms. Rita Jain has deposed that she got married with Sanjay Kumar Jain on 12.03.1986. Further, even PW 9/Sh. Chandan Mal, who is the father of the complainant deposed that the accused Sanjay Kumar Jain is his son in law. The said prosecution witnesses have not been cross examined on the said aspects. Further, the factum of marriage between the complainant and the accused Sanjay Kumar Jain and that of the accused namely Sushila Jain being the mother-in-law of the complainant have not been disputed by the accused persons in their statement recorded under Section 313 Cr.PC. either. Hence, it stands proved that accused Sanjay Kumar Jain is the husband of the complainant and accused Sushila Jain is the mother in law of the complainant respectively. Thus, the first ingredient of the offence stands established.
Whether the accused Sanjay Kumar Jain and Sushila Jain and had subjected the complainant Ms. Rita Jain to cruelty?
15. As already discussed, the prosecution is required to prove that the complainant was subjected to cruelty in terms of Explanation to Section 498A by the accused persons. Let us for the purpose of convenience only, firstly examine the second limb i.e. whether the complainant faced harassment with a view to coerce her or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand.
Whether the accused persons harassed the complainant with a view to coerce or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 9 of 22 person related to her to meet such demand?
16. The case of the prosecution is that the accused persons were given dowry by the family of the complainant, at the time of marriage. Specifically, the complainant/PW-1 Ms. Rita Jain had stated in her complaint Ex. PW1/B that at the time of marriage, the accused persons were given dowry as per the status of her family and in her testimony before the court, she deposed that her parents gave gold jewellery weighing around 50 tolas, furniture comprising of sofa, dining table, bed, electronic items and household items etc. The specific description of the aforesaid articles was an improvement made by the complainant in her testimony. Further, she omitted to state as to whom the articles were given. It is also pertinent to note that the complainant has nowhere stated in the said complaint that the aforesaid articles were demanded by the accused persons and hence, merely because articles were given as dowry, does not qualify as a dowry demand and hence, the said allegation even if proved will not amount to an offence punishable under Section 498A IPC. Even in her deposition before the court, she did not state that the dowry was demanded by the accused persons from either her or her family members, at the time of marriage.
17. Apart from the allegation that dowry was given by the family of the complainant to the accused persons, there is neither any allegation in the said complaint nor in the testimonies of the prosecution witnesses regarding any harassment being caused to the complainant with a view to coerce her or any person related to her to meet an unlawful demand for dowry or on account of her failure to fulfill the same during the course of marriage.
18. In view of the aforesaid discussion, it is apparent that the prosecution has failed to prove the second limb of cruelty punishable under Section 498A IPC.
19. It was also argued by the prosecution that the first limb of Section 498A is also clearly attracted in the present case i.e. the accused persons' conduct towards State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 10 of 22 the complainant was of a nature which was likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health. Let us not examine this aspect.
Whether the accused persons' conduct towards the complainant was of a nature which was likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health?
Unbelievable testimony of the complainant/PW-1 Ms. Rita Jain due to various material improvements made by her and vague allegations made
20. The main grievance of the complainant as stated in her complaint Ex. PW1/B was that till 8-10 years from the date of marriage, the relationship between her and the accused persons was cordial but suddenly in the year 1995, a woman, namely, Ms. Meenu Kapoor entered her husband's life and they indulged in an illegitimate relationship which subjected her to mental cruelty. Further, she stated that Ms. Meenu Kapoor was an employee in her husband's company i.e. M/s. Sheela Rodium Platters and because of their affair, the attitude of the accused Sanjay Kumar Jain changed towards her and he started to give her beatings. She stated that the accused Sushila Jain and accused Narender Jain (since deceased) also supported the accused Sanjay Kumar Jain, due to which also she suffered physical and mental injury. She has also stated that due to the trouble caused by the accused persons to her, she felt like committing suicide but she thought of her children and also had a hope that things would improve and she gave up the idea of suicide.
21. It is also relevant that the testimony of the complainant is full of material improvements and contradictions. Hence, her testimony cannot be relied on, as it does not inspire the confidence of the court. In her examination-in-chief, she deposed that at the time of recovery of the istridhan articles recovered vide seizure memo Ex. PW1/C, the accused Sanjay Kumar Jain and his father were present but State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 11 of 22 in her cross-examinatio, she denied their presence. The following are the marked improvements made by her as given below:-
(i) That she had gone with her husband accused Sanjay Kumar Jain to Kolkata in August 1995 and when she was purchasing a dress for herself, he asked her to buy a dress for Meenu Kapoor also.
(ii) That after returning to Delhi, she received a phone call from the office of her husband and she was informed that her husband was having an affiair with Ms. Meenu Kapoor.
(iii) That when she confronted her husband regarding his relationship with Meenu Kapoor, he got angry and confined her in the house. She was not permitted to meet any outsider and provided only two dresses to wear.
(iv) That her mother-in-law in collusion with her husband had filed a civil suit for eviction against her and her husband from the accommodation at Preet Vihar.
(v) That her husband had filed a case under the Guardianship and Wards Act as he was evading his responsibilities of their children.
(vi) That while the complainant was residing in matrimonial house, Ms. Meenu Kapoor visited several times and threatened her that she would snatch her husband from her.
(vii) That she received a notice of divorce from her husband in the month of January, 1997 and she was shocked to read the aspersions made by him against her.
(viii) That her brother and her received several calls from her husband, who threatened to kill her, in case she did not leave her husband.
(ix) That the accused persons Sushila Jain and Narender Kumar Jain indulged in her character assassination in the society and spread the fact that she had taken away all her articles.
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 12 of 22
(x) That the accused persons Sanjay Kumar Jain did not visit their son Puneet Jain, even when he was admitted in the hospital.
(xi) That in August 1997, accused Narender Kumar Jain called her to the matrimonial house on the pretext of reconciliation but subsequently called the police and falsely accused her of taking the children at gun point. That her in- laws kidnapped her children.
(xii) That accused Sanjay Kumar Jain and Narender Jain filed various false complaints against her.
(xiii) That accused Sanjay Kumar Jain had remarried Meenu Kapoor in the presence of accused persons Sushila Jain and Narender KumarJain and they gifted a large part of complainant's jewellery to Ms. Meenu Kapoor and also made her a director.
(xiv) That the complainant had gone to Pooja Apartments and saw that Meenu Kapoor was living with accused Sanjay Kumar Jain. She was wearing complainant's jewellery and both of them gave beatings to the complainant. That on hearing the commotion, certain neighbours had gathered and informed the police.
Allegation regarding beatings given to the complainant
22. Throughout the complaint of the complainant Ex. PW1/B and in the testimonies of the prosecution witnesses before the court, there are allegations that the accused Sanjay Kumar Jain had given beatings to her. However, the same were not been proved by the prosecution as neither any MLC nor any other medical document was filed to show that she had suffered any injury. Moreover, it is surprising that despite the complainant being given repeated beatings and being confined in a house, she did not make any complaint.
Vague allegations made bereft of date, time and place.
23. In the entire body of the complaint and the deposition of the complainant State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 13 of 22 before the court, the complainant has not stated any date, time and place when the incidents narrated by her had taken place. The allegations made by her are general and bald in nature. In a judgment pronounced by the Hon'ble Apex Court, in the case of Surender Kaur v. State of Haryana (2004) 4 SCC 109, it was held that statements which are omnibus in nature, sans particulars of the time and the date when a woman was harassed, lack in credibility and cannot be relied upon.
Allegation regarding second marriage or their illegitimate relationship not proved
24. The complainant/PW-1 Ms. Rita Jain had testified that the second marriage of the accused Sanjay Kumar Jain was performed with Meenu Kapoor, however, not a single document was brought on record to show that the marriage was performed. The prosecution had mainly relied on LIC policies Ex. PW13/A and Ex. PW13/B to proved the said marriage. It was argued by Ld. APP for the State alongwith assistance given by Ld. Counsel for the complainant that the accused Sanjay Kumar Jain had nominated Meenu Kapoor in policies bearing no. 112805623 and 112805581 which were earlier in the name of Ms. Rita Jain, which amounts to an admission of second marriage, however, the said argument cannot be accepted as mere admission by the accused of second marriage does not amount to evidence of it. For the same reason, the document Ex. PW10/A, which are allegedly the medical documents of Meenu Kapoor's child wherein the name of accused Sanjay Kumar Jain is mentioned as husband of Meenu Kapoor do not help the case of the prosecution from being proved. Further, even it is assumed that the accused Sanjay Kumar Jain and Meenu Kapoor shared an illegitimate relationship, even then it would not amount to cruelty in forms of offence punishable under Section 498A IPC. It is important to note that in a judgment passed by the Hon'ble Apex Court, titled as Ghusabhai Raisagbhai Chorasiya v. State of Gujrat, Criminal Appeal no. 262 of 2009, pronounced on 18.02.2015, it was held that even if the illicit relationship is proved unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, explanation (a) of 498A IPC which includes cruelty to drive the woman to commit suicide would not be attracted. Moreover, the State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 14 of 22 prosecution has failed to bring on record any evidence to show that the conduct of the accused persons was of such nature which had driven the complainant to commit suicide or that she suffered injury or danger to her life, limb or health. Although, the complainant in her complaint and testimony stated that she had thought of committing suicide, however, the allegation made is vague and without particulars as she failed to mention the date, time and place when she thought of commission of the act of suicide. Thus, the bald allegations without material particulars is worthless and does not help the case of the prosecution.
Copy of suits and petition allegedly filed by the accused persons against the complainant not filed
25. Though the complainant/PW-1 Ms. Rita Jain alleged that she was caused mental cruelty by institution of the civil suit by the accused persons Sushila Jain in collusion with Sanjay Kumar Jain and also the petition filed under the Guardianship Act by the accused Sanjay Kumar Jain, yet the said petitions were not filed on record. The prosecution also failed to prove how she was driven to suicide, suffered injury or it caused danger to her life, limb or health because of the institution of the suit.
Allegation regarding false complaint by the accused persons against the complainant/PW-1 Ms. Rita Jain
26. The complainant/PW-1 Ms. Rita Jain in her testimony stated that accused Sanjay Kumar Jain and Narender Kumar Jain had made various false complaints against her. However, those complaints were never brought on record nor the complainant specified the dates when the complaints had been made and to which authority.
Testimony of other material prosecution witnesses
27. PW-9 Sh. Chandan Mal Jain and PW-12 Sh. Puneet Jain, who are the father State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 15 of 22 and son of the complainant did not make any specific allegation regarding the mental or physical cruelty meted out by the accused persons upon the complainant. Further, the testimonies of these witnesses is mostly hearsay and therefore, inadmissible in law. They are also interested witness and it is settled position of law that Courts must be cautious and careful while weighing the evidence of witnesses who are partisan or interested as they have an axe to grind. Hence, their testimonies do not help in proving the case of the prosecution.
Non-joinder of independent witnesses
28. The prosecution could have brought any employee of the accused Sanjay Kumar Jain's company or neighbour or any other independent witnesses to prove that the accused Sanjay Kumar Jain and Ms. Meenu Kapoor were married or in an illegitimate relationship. However, neither any employee nor any other independent witness was cited as a prosecution witness to prove the said fact. PW-2 Sh. Vishal, who was an employee of the Sanjay Kumar Jain had stepped into the witness box but he failed to mention any fact in relation to the alleged marriage or illegitimate relationship between the accused Sanjay Kumar Jain and Meenu Kapoor.
29. The complainant/PW-1 Ms. Rita Jain stated that she had got to know about the affair between the accused Sanjay Kumar Jain and Meenu Kapoor by way of an anonymous phone call yet she failed to mention the name of the person regarding their affair. She could have brought that person to the witness box but keeping him away from the trial also raises a doubt on the story of the prosecution.
Inland letter written by the complainant to her father
30. The prosecution relied on a letter Mark A, which was allegedly written by the complainant to her father but the said letter was merely a copy and did not find any mention in the complaint Ex. PW1/B nor in the testimony of father of State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 16 of 22 complainant, PW-9 Sh. Chanden Mal Jain. Hence, the said letter also does not assist the prosecution to prove its case.
31. In view of the aforesaid discussion, it is apparent that the prosecution had failed to prove even the first limb of cruelty.
II. Charge under Section 406 I.P.C.
32. In order to establish the charge under Section 406 IPC against the accused Sanjay Kumar Jain, the prosecution was required to prove beyond reasonable doubt that the accused Sanjay Kumar Jain exercised dominion over the dowry articles gifted in the marriage and/or the stridhan of the complainant and misappropriated the same.
33. In Anu Gill v. State, 2001 (2) JCC (Delhi) 86, the Hon'ble High Court of Delhi observed in paragraphs 6 as under:
"To constitute the offence under Section 406 IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of istridhan were even entrusted to her.
34. Thus, to prove the charge under Section 406 IPC, the prosecution is required to prove the following:
i) that the complainant had entrusted her dowry articles and/or stridhan to the accused;
ii) that the complainant had demanded her dowry articles and stridhan from the accused; and
iii) that the accused has refused to return the dowry articles and/or stridhan of State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 17 of 22 the complainant.
35. Let us now examine whether the ingredients of Section 406 IPC are fulfilled in the present case or not:
i. Whether the complainant had entrusted her dowry articles and/or stridhan to the accused Sanjay Kumar Jain?
It is alleged in the complaint Ex.PW1/B of the complainant that in the marriage of the complainant her parents gave dowry articles as per their status and in her de- position she deposed that various furniture, electronic and household articles along- with gold of 50 tolas were given to the accused persons by her family. The prosecu- tion also relied upon a list of dowry articles filed alongwith the complaint, which is Ex. PW1/A.
36. It is relevant to note that although the prosecution has relied upon two list of dowry articles, which are Ex.PW1/A and Ex. PW1/G but perusal of the said list shows that the dates mentioned on the said lists are 20.04.2001 and 04.05.2001 re- spectively, although the marriage took place on 12.03.1986. Thus, they are not suf- ficient to prove that various articles mentioned therein had been given in dowry in the marriage of the complainant with the accused Sanjay Kumar Jain. Further, the prosecution has not filed, let alone proved, any photographs of the alleged dowry articles, which are claimed to have been given by the complainant's parents but not returned by the accused persons. No bills of aforesaid articles were filed by the prosecution. It was admitted by the complainant/PW-1 Ms. Rita Jain and IOs PW IO SI Surender Dalal and PW Raj Pal Singh, Retired ACP that not a single bill, invoice or cash memo was handed over by the complainant to show that the dowry articles seized belonged to the complainant. The prosecution also failed to file any bank statement or income tax return of the family members of the complainant to show the expenditure incurred in purchase of the dowry articles. In view of the aforesaid, the prosecution has failed to prove as to what all dowry articles were given by the parents of the complainant in her marriage.
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 18 of 22
37. In the said complaint, PW1/complainant Ms. Rita Jain did not specify the per- son(s) to whom the alleged articles were given by her family members in her mar- riage. There is no specific allegation of entrustment of any dowry/stridhan article of the complainant to the accused persons in the entire aforesaid complaint. The vague allegations against the 'in- laws' generally are not sufficient to hold that any property of the complainant had been entrusted to the accused Sanjay Kumar Jain. Only, at the time of deposition before the court, she made an improvement by stat- ing that all the dowry articles were entrusted to her father-in-law and mother-in-law by her parents at the marriage ceremony, however, they have already been dis- charged for this offence by the Ld. Appellate Court.
38. In Sukhbir Jain & Anr. v. State, 1993 JCC 91 / II (1992) DMC 259, the Hon'ble High Court of Delhi observed in paragraph 9 as under:
"Regarding offence under Section 406 IPC to spe- cific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence under Section 406 IPC it is essential that there must be a clear and specific al- legation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly mis- appropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be suffi- cient to prima facie make out a cognizable offence under Section 406 IPC. The allegations made by the complainant show that there are no clear, dis- tinct and specific allegations regarding entrustment to the petitioners, dishonest misappropriation by them or conversion to their own use and refusal by them to return back the articles. The most vital and essential ingredients of the offence under Section 406 IPC are missing and as such no prima facie case against the petitioners under Section 406 IPC State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 19 of 22 is spelt out from the allegations made in the com- plaint. The concerned Metropolitan Magistrate has rightly held it so but the learned Addl. Sessions Judge has misinterpreted the provisions Section 406 IPC and the allegations made in the com- plainant while ordering that Sushil Jain petitioner be also proceeded with under Section 406 IPC. No conviction can be made under Section 406 IPC on the basis of vague and general allegations made in the complaint". (emphasis supplied)
39. Even in the present case, there is no specific allegation regarding entrust- ment of the dowry or stridhan articles of the complainant to the accused Sanjay Ku- mar Jain in the entire complaint Ex. PW1/B. Further, no claim/allegation regarding entrustment of the dowry articles or stridhan of the complainant to the accused Sanjay Kumar Jain appears in the testimony of PW-1 Ms. Rita Jain. It is also rele- vant to note that there is omission to state any specific date when there was en- trustment of dowry articles or stridhan of the complainant to the accused Sanjay Kumar Jain in the complaint which is Ex.PW1/B and in the testimony of the com- plainant/ PW 1.
40. It is also material to note that in the case of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon'ble Delhi High Court au- thoritatively laid down that as per provision of Section 2 of Dowry Prohibition Act, there is mandate of law for preparation of list of dowry articles at the time of mar- riage duly signed from bride side as well as from groom side. The said mandate has not been followed by the family of the complainant in the present case. In view of the aforesaid, it is seen that the aspect of entrustment, could not be proved by the prosecution.
ii) Whether the complainant had demanded her dowry articles and strid han from the accused Sanjay Kumar Jain?
41. In the complaint Ex. PW1/B, the complainant has no where stated that she had ever demanded her dowry articles or stridhan from the accused Sanjay Kumar Jain. The examination-in-chief of PW-1 Ms. Rita Jain is also silent as to whether she had ever demanded return of the dowry/stridhan articles from the accused San-
State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 20 of 22 jay Kumar Jain. She has only made a sweeping statement that all the articles are in possession of her husband. Thus, the complainant has not specifically stated that at what time and place, she entrusted which of her dowry articles to whom and when she demanded the same. Her evidence is totally general and vague without any specific detail. No date(s) on which demand(s), if any, was/were made by the complainant to the accused Sanjay Kumar Jain to return the dowry articles or strid- han have been mentioned in the testimony of the complainant PW-1 or her father, Sh. Chandan Mal Jain/ PW-9 or her son Sh. Punee Jain/PW-12. Thus, the prosecu- tion has failed to prove that the complainant had demanded her dowry articles and stridhan from the accused Sanajy Kumar Jain. The said ingredient of the offence punishable under Section 406 IPC has also, therefore, not been established.
iii) Whether the accused Sanjay Kumar Jain refused to return the dowry ar- ticles and/or stridhan of the complainant?
42. While in the complaint Ex. PW1/B, the complainant has stated that all the dowry articles given by her family members are in the possession of the accused Sanjay Kumar Jain but there is not even a whisper regarding the fact whether he refused to return the alleged dowry articles/stridhan of the complainant. None of the prosecution witnesses deposed that there was refusal on part of the accused San- jay Kumar Jain to return the said dowry/ stridhan articles of the complainant.
43. In view of the above discussion, the prosecution has also failed to prove the charge in respect of the offence punishable under Section 406 IPC against the ac- cused Sanjay Kumar Jain.
44. It is a cardinal principle of criminal jurisprudence that prosecution is to prove the guilt of the accused beyond the possibility of any reasonable doubt. It is also a settled principle that thought there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, trustworthy and unimpeachable evidence before an accused can be convicted. This principle of law has been reiterated by the Hon'ble apex court in the State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 21 of 22 following cases : Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W. Singh v. State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P, (2006) 10 SCC 172.
45. In the aforesaid circumstances, this Court is of the opinion that the prosecution has failed to prove its case against the accused Sanjay Kumar Jain and Sushila Jain. Accordingly, the accused Sanjay Kumar Jain and Sushila Jain are acquitted of the offence punishable under Section 498A read with Section 34 I.P.C. and accused Sanjay Kumar Jain is also acquitted of the offence punishable under Section 406 IPC.
Conclusion
46. In light of the above discussion, in the considered opinion of this Court, the prosecution has failed to prove its case against the accused accused Sanjay Kumar Jain and Sushila Jain beyond reasonable doubt. Accused Sanjay Kumar Jain and Sushila Jain are entitled to the benefit of doubt. They are hereby acquitted of the offence punishable under Section 498A read with Section 34 I.P.C. and accused Sanjay Kumar Jain is also acquitted of the offence punishable under Section 406 IPC. In view of the same, the complaint filed by the complainant is also dismissed.
47. File be consigned to Record Room.
Digitally signedSONAM by SONAM SINGH Announced in open Court on 26.04.2018 SINGH Date: 2018.04.26 16:06:32 +0530 (SONAM SINGH) Metropolitan Magistrate (Mahila Court)-02, Central District, Tis Hazari Courts, Delhi. 26.04.2018 State v. Sanjay Kumar Jain and Others FIR No. 91/01 PS: Chandni Chowk Page 22 of 22