Delhi District Court
State vs . Gyan Chand on 30 August, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. GYAN CHAND
FIR No. 16/01
P.S. : R.K. Puram
U/S 406/498A IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 04.12.2002
2. SERIAL NUMBER OF THE CASE : 467/2
3. DATE OF COMMISSION OF OFFENCE : 07.12.1996 (date of
marriage)
4. NAME OF THE COMPLAINANT :Mrs. Santosh
5. NAME OF THE ACCUSED & ADDRESS :Gyan Chand S/o Late Sh.
Ram Chander, R/o V.P.O.
Dhansa, New Delhi.
6. OFFENCE COMPLAINED OF :U/S 406/498A IPC
7. THE PLEA OF THE ACCUSED :Pleaded not guilty.
8. DATE OF RESERVE OF JUDGMENT : 29.06.2012
9. THE FINAL JUDGMENT : Acquitted.
10.THE DATE OF FINAL JUDGMENT : 30.08.2012
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram
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BRIEF REASONS FOR THE DECISION:
1. The case of the prosecution is that during the subsistence of marriage of complainant Smt. Santosh with accused Gyan Chand which was solemnized on 07.12.1996 accused Gyan Chand subjected the complainant to cruelty. Further the accused was entrusted with the dowry articles and he converted the same to his own use and committed criminal breach of trust in respect of the said entrusted property. The FIR was registered on the complaint of the complainant against the accused and investigation was carried out.
2. Charge sheet under Section 498A/406 IPC was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C. Vide order dated 29.10.2003 charge was framed against the accused for offence u/s 406/498A IPC, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined eight witnesses and the prosecution evidence was closed vide order dated 02.01.2009.
4. PW1 W/HC Vidya Devi is the Duty Officer. He proved the registration of the FIR No. 16/01 which is Ex. PW1/A.
5. PW2 is the Complainant. Her sworn deposition shall be discussed later.
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 3
6. PW3 Smt. Mewa is the mother of the complainant. She stated in her evidence that the marriage of her daughter Smt. Santosh was solemnized with accused Gian Chand on 07.12.1996. After one year of marriage, he started beating and harassing her daughter for demand of dowry. She and her husband tried for an amicable settlement but he refused to live with her daughter. He took her daughter with him 23 times but started beating and harassing her daughter after few days. In the year 1998, her daughter returned to her house and started living with them. She has two children. In the year 2000 she made a complaint against her husband and her statement was recorded by the IO in January, 2001.
7. In her cross examination, she stated that she had no landline or mobile telephone number. She admitted that she or her husband received no written letter from their daughter during her stay in the matrimonial house. She also stated that her daughter disclosed to her regarding the harassment meted out to her and this was informed after about 3 months of her marriage. She stated that she does not remember the date or month or year when her daughter complaint to her regarding the harassment. She also stated that whenever she used to visit the parental house she told her about the harassment given to her at the matrimonial house. She does not remember the date, or month or year on which the accused demanded dowry and harassed her daughter. She stated St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 4 that she was never taken to hospital after being beaten by the accused. She denied the suggestion that due to adamant and non adjusting attitude of the complainant the marriage between her and the accused failed. She also denied the suggestion that since the accused was not following their dictates they filed a false complaint against him.
8. PW4 Sh. Mange Ram is the father of the complainant. He deposed that on 07.12.1996 his daughter Santosh got married with accused Gyan Chand (correctly identified) according to Hindu Rites and Ceremonies. After about one year of the marriage, the in laws of his daughter started beating and harassing her for demand of dowry. He stated that he has given the Istridhan to his daughter according to his means and capacity. After one year, his daughter came to his house. He tried to compromise between his daughter and son in law but no result came out. After that 23 accused took his daughter to his house and she was sent back after beating. His daughter has two children. In the year 2000 his daughter made a complaint to the police and in January 2001 his statement was recorded. The accused has opted not to cross examine PW4.
9. PW5 Ct. Dharamvir deposed that on 22.11.2002 he was posted at CAW Cell, Maya Puri. On that day, he along with SI Jaspal went at Village Dasa, New Delhi to arrest the accused Gyan Chand. The accused Gyan Chand (correctly identified) was arrested from there vide arrest memo Ex. PW5/A and personal St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 5 search memo Ex. PW5/B. The accused was medically examined at RTR Hospital at Jafarpur, New Delhi. IO had recorded his statement.
10.During his cross examination, he denied the suggestion that he was deposing falsely and no arrest was carried out in his presence. He further denied the suggestion that no investigation or formalities were conducted in his presence. He further denied the suggestion that he was deposing falsely being a police official under the pressure of his seniors. The accused has opted not to cross examine PW5.
11. PW5 Pawan (in fact PW6) deposed that he has been running a jewellery shop in the name of Pawan Jewellers at E108/4/1, Baba Gang Nath Market, Munirka, New Delhi since 1992. The bills of jewellery i.e. Mark A, A1, A2, AB, A4 had been issued by him and same are Ex. PW5/A1, A2, A3, A4 and Ex. PW5/A5. The same were issued on 03.11.1995, 30.03.1996, 02.10.1996 and 02.12.1996. The accused has opted not to cross examine the said witness.
12.PW6 Sh. Abrar (in fact PW7) deposed that he was running a shop in the name of Abrar Furniture House at shop no. 34, Janta Market, Munirka, Main Road, New Delhi. The bill of furnitures lying on record was issued by him in the year 1996 vide Ex. PW6/A. St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 6
13.During his cross examination, he stated that he did not issue any receipt for the furniture and articles purchased from his shop but only given a writing to this effect on his letter pad. He stated that he does not remember if he had signed the said writing. He denied the suggestion that the bill was taken from him later. He does not remember when final payment was made to him and by whom. He denied the suggestion that he was deposing falsely or no bill was issued by him. He also denied that he was not running any shop nor at present he is running any such shop. He also denied that bill was prepared by him after getting some amount.
14.PW7 SI Yashpal (in fact PW8) deposed that on 13.01.2001 the investigation of the present case was marked to him. He gave the notice to call the complainant. On 19.01.2001 the complainant along with her father and mother came to CAW Cell and they gave him the marriage proof i.e. Card, Photographs of marriage and receipts of Jewellers and the furnitures. He deposed that he did not arrest the accused as he was told by the parties that they were residing together and they will go f or the quashing of the FIR. They remained together for about one and half year and after that they started residing separately. And then, accused (correctly identified) was arrested and his personal search was conducted vide memo Ex. PW5/A & B. Thereafter, he completed the investigation and sent the challan for trial.
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 7
15.During his cross examination, he stated that at present notice given to the complainant to join the investigation not placed on record, the same may be kept in CAW Cell or police file. He stated that he had not verified the receipts given by the complainant and her parents. He had not taken any of Istridhan items of complainant in his possession. He was told by complainant that Istridhan items were in the possession of her husband. He had gone to the house of accused for his arrest. As the complainant did not accompany with him therefore, he was not able to identify the Istridhan items. He had called the complainant when he went to the house of the accused but she was not available at that time. He several times tried to call the complainant for the recovery of Istridhan but she was not available. He had not served any notice to the complainant. The facts were verified from the parents of the complainant. He admitted that he cannot tell to whom he made the inquiry regarding the address of the accused in the village nor he had called any responsible person from the village before making the arrest. Neither he had issued any written notice to independent witness those who were present there. He stated that he asked the responsible persons from the villages to join the investigation but none has joined. He could not take the action against them as they left the place without disclosing their names and addresses. He stated that they were in civil dress and went to arrest the accused at his place. Accused was known to him and he knew him very well as the accused several times came to CAW Cell for joining the investigation. He does not remember exact time but he reached there at about 12.00/1.00 pm and St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 8 remained there for about an hour and then they came back by bus but he does not remember the bus number. He denied the suggestion that no proper investigation was carried out by him or any efforts were made to solve the case as per requirement. He denied the suggestion that he had only done the formal investigation and deposing falsely by getting swayed by emotions of the victim. He denied the suggestion that he was deposing falsely being police officer.
16.The statement of accused was recorded u/s 313 Cr.P.C., in which he denied all the allegations leveled against him and stated that he is innocent and has been falsely implicated in the case. The accused opted not to lead DE.
17. I have heard the Ld. APP for State and Ld. counsel for accused and carefully perused the material on record. It is argued by counsel for accused that prosecution has failed to prove its case against the accused beyond reasonable doubt. The Ld. APP has contended the contrary.
18.The complainant stated in her examination in chief regarding the allegation of cruelty that her marriage was solemnized with accused Gian Chand on 07.12.1996 according to Hindu Rites and Ceremonies. She was working in Gurgaon at the time of her marriage and she disclosed the said fact to her husband before her marriage and wanted to continue her job after the marriage. The accused expressed his no objection for her doing a job after marriage but St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 9 later started objecting it and wanted her to stay at home. Thereafter, she left her job. Whenever she used to demand anything from the accused for her basic needs, he used to beat her. She disclosed the same to her father and her father came to the matrimonial house. He plainly refused to allow her to do the job and told her father that he can take her to his house. This happened after about four months of her marriage. She came to her father's house with her father and stayed there for two months, Thereafter, the accused along with his relatives came to her father's house and apologized for his previous conduct and also assured for not repeating the same. Then, she came back to her matrimonial house. She kept well only for 3 months and thereafter, she became pregnant,. On knowing about her pregnancy her husband asked her to bring some money from her parents by saying that he has no money fro her expenses. She brought Rs.5000/ from her parents. Again said, that pressure was exerted upon her by the accused to bring Rs.50006000 from her parents but she had not brought the same. She give birth to first a male child in the Matrimonial house but the accused never provided any care to her and even she was not given proper food. When her son was 20 days old she was badly beaten by the accused under the influence of liquor. The reasons for the beating was that accused was unemployed and not earning anything. He used to drink a lot. In the inebriated condition, he used to beat the complainant for demanding money for her personal basic needs. When her son was 27 days old, Kua Pujan Ceremony was performed and her parents gave gifts of value of about St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 10 1600017000. When her parents left, the accused beaten her after consuming liquor. She also stated that three or four of her colleagues came to her house to see her newly born child. One of her colleague came with her brother and all of them were sitting with her. The accused started casting aspersions on her character and accused her of having affair with the brother of her colleague. He also started beating her. Next day, she along with her son came to her parental house and it was month of July 1998. she remained with her parents for about six months but accused had no communication with her during that period. After about 6 months, he came to her parents house with his Chacha and again apologized. She again went to her matrimonial house with him but accused kept her well only for about 56 months. thereafter, he again started harassing her physically as well as mentally. She again got pregnant and was beaten mercilessly when she was on family way. She again came to her parents house and gave birth to her another son during her stay at parents house. She filed complaint in a CAW Cell, Nannkpura, Ex. PW2/B bearing her signatures at point A when her second son was about 34 months only. She also stated that her husband demanded cash of Rs. 50006000 from her after about 78 months of her marriage. He again raised demand of Rs.4000/ when she was second time pregnant and on her refusal she was beaten up by the accused.
19. In her cross examination, she stated that she cannot say when the quarrel took place between her and the accused for first time but it was after about 6 months St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 11 of her marriage, She made no complaint regarding the same as it was a family dispute . On first occasion when her father took her to his house she remained there for around two months. The said two months were calm and quite in her parental home. The accused again quarreled her after she joined the matrimonial house but she made no complaint regarding the same to the police nor she was medically examined. She cannot tell the date, time or year when she finally left her husband but she left the matrimonial house due to quarrel and beatings given to her. She stated that she made no complaint to concerned PS even at that time nor she got herself medically examined. She also stated that she again resumed cohabitation with the accused after intervention/order of the Ld. Presiding Officer of Court Room No. 25. She also stated that there was no demand from the accused except demand of cash but she cannot tell the date , month or year of the said demand. She also stated that she once gave Rs.5000/ to her husband given by her father but she cannot tell the date, month or year. She denied the suggestion that she is making false statement and she left the matrimonial house as she was not satisfied with the status of her husband and filed the false complaint in order to extort money from the accused.
20.As regards section 498A IPC, it shall be useful to reproduce the same for ready reference. Section 498A IPC reads as under:
"498A Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 12 such woman to cruelty shall be punished with imprisonment for a terms which may extend to three years and shall also be liable to fine.
Explanation: For the purpose of this section, "cruelty" means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to like, limb or health (whether mental of physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
21.The provision is embedded with essentially two ingredients under the head of 'cruelty'. The first aspect deals with the willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. All these allegations are argued to have been covered under Exp. (a) to S. 498A IPC. It is borne out from the evidence of the complainant the reason for the disputes and differences between the complainant and accused was the consumption of alcohol by the accused, and his refusal to give household expenses for the maintenance of the complainant and children. But this only proves a case of 'domestic violence' . The prosecution has also not filed any medical documents of complainant to substantiate her claim that the accused was regularly beating her. Nor the complainant filed any complaint before birth of St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 13 his second child to any authority for any harassment meted out to her by her husband Gian Chand. Moreover, the said allegations appear more general than specific and it would be highly unsafe to convict an accused on the basis of unsubstantiated piece of evidence. Apart from that in the present case the whole evidence as adduced by the PWS does not point towards any such incidence which could be categorized under Expln. (a) of S. 498A.
22.The second aspect is covered by the Exp. (b) to S. 498A IPC. And deals with the harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
23.It is settled law that it is not every harassment which comes within the purview of Section 498A but there should be demand coupled with cruelty; it must be established that beating and harassment was with a view to force the wife to harm herself or to fulfill illegal demands of husband and in laws.
24. Reliance in this regard may be placed on Smt. Sarla Prabhakar Waghmare v. State of Maharashtra & Ors. 1990 (2) RCR 18 where it was observed:
"It is not every harassment or every type of cruelty that would attract Section 498A IPC - Beating and harassment must be to force the bride to commit St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 14 suicide or to fulfill illegal demands.".
25. Similar view was taken in Richhpal Kaur v. State of Haryana & Anr. 1991 (2) RCR 53 where it was observed that in case of beatings given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry, offence under Section 498A would not be made out. The Hon'ble Supreme Court in Kans Raj v. State of Punjab & Ors. 2000 (5) SCC 207 held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and in State of Himachal Pradesh v. Nikku Ram & Ors. (1995) 6 SCC 219 it was held that harassment to constitute cruelty under Section 498A Explanation (b) must have nexus with the demand of dowry and if this is missing the case would fall beyond the scope of Section 498A.
26. Similar was the view expressed in Raj Kumar Khanna v. State (NCT of Delhi) 95 (2002) DLT 147 (DB) where after referring to various authorities the Hon'ble High Court held that it is not every harassment or every type of cruelty that would attract the provision of Section 498A IPC and that harassment to constitute cruelty under Section 498A IPC must have nexus with the demand of dowry and if that was missing the case would fall beyond the scope of Section 498A IPC.
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 15
27. In the instant case, the evidence of the prosecution witnesses do not prove that the complainant was harassed by the accused person in relation to demand for dowry. The complainant PW1 as well as her parents only made general allegation against the accused for harassing complainant in relation to demand for dowry. The complainant has also not quoted any specific incident of her harassment in relation to demand of dowry. It is settled law that allegations of cruelty should not be vague and general in nature nor should they be wanting in details and substance. In the case of cruelty specific acts of cruelty and the occasions when, and the place where such acts were committed have to be pleaded and vague allegations of cruelty are not sufficient to convict the accused. In fact, the complainant has taken vacillating stand in her evidence with regard to any payment of dowry/cash by the complainant or her parents, pursuant to demand of dowry raised by the accused. In her evidence, the complainant first stated that she brought Rs.50006000/ from her parents but in the very next breath retracted from that statement. Thereafter, in her cross examination, she again stated that she gave a sum of Rs.5000/ in cash to teh accused after bringing it from her father. But the father of the complainant, PW4 never stated in his evidence that he handed over any amount to the complainant for giving it to the husband in pursuance to his demand for cash. I have, therefore, no hesitation in holding that the prosecution has failed to prove the offence under section 498A IPC against accused beyond reasonable doubt.
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 16
28.Coming to Section 406 IPC,Section 406 IPC deals with criminal breach of trust. Section 406 IPC reads as under: "whoever commits criminal breach of trust shall be punished with imprisonment of either description for a terms which may extend to three years, or with fine, or with both"
Section 405 IPC defines criminal breach of trust. The relevant portion of the definition reads as under: "405 Criminal breach of trust - Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescriting the mode in which such trust is to be charged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits "criminal breach of trust".
29. As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, their dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.
30. As regards 406IPC, the complainant stated in her evidence that in her marriage, St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 17 her parents had given her all the dowry articles mentioned in the list in her handwriting submitted by her to the police, Ex. PW1/A, and bearing her signature at point A. All her dowry articles went to her matrimonial home in village Dhansa near Najafgarh, Delhi. All the dowry articles were handed over to the family members of the accused at the time of her marriage by her parents. Her parents have not given any fridge in the marriage. She submitted bills of few dowry articles with the IO. The bills of the jewellery articles purchased from Pawan Jeweller and bills of furniture articles purchased from Abrar Furnitures house is mark A to A4 and mark A5 respectively. Her in laws had given her five dresses, silver Pajeb, Silver Pandant, silver Tagri, silver ring, watch and one gold tika. She also stated that when she finally left her matrimonial house at the time when her son was 34 months old, she had not brought any dowry articles with her. She was only in three wearing clothes with one gold ear ring, one gold nose pin and a pair of one silver pajeb. All her dowry articles remained in the possession of the accused. In the CAW Cell, accused did not attend all the dates, He appeared only twice or thrice, and he refused to return the dowry articles when she raised the demand in the Women Cell. In the Women Cell, accused had submitted the admitted list of her dowry articles Ex. PW2/C bearing signature of accused at point A and her signatures at point C. Till date, she has not been returned any dowry articles.
31. In her cross examination relating to allegation made by her for criminal St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 18 misappropriation of her stridhan by accused, she stated that when she got married her father was Chowkidar in MCD. At present in 2008, he earns rs, 7500/ per month. In 1996 his earning was about 4500/. per month. She has seven brothers and six sisters. She is 10th pass. At the time of her marriage all her sibling were married except her younger sister. Her brothers are married and residing separately. Her brothers are motor mechanics. She cannot say about their income. The talks for marriage had not taken place in her presence but she knows things which were given in the marriage. She added voluntarily that things are generally shown to the girl. He father asked her about jewellery, clothes and furniture. Her Jewellery articles were purchased from Pawan Jewellers. and one set about 10 tolas (gold) one Hath Phul of silver about 10 grams, pajeb of 11 tolas of silver, one set of silver was given but she does not know the weight of one mangalsutra Pendent, ear rings and gold pandent. Except this no ornament was purchased or given by her father in dowry. She cannot say how much payment was made ,as the payment of money was not done in her presence though she was present at the time of purchasing ornament. The receipt of ornaments received by her father. AT the time of purchasing ornaments her parents and elder brother were also present wither her but she cannot tell the date of purchasing the ornaments. The clothes were not purchased in her presence. No transaction regarding purchase of furniture was carried out in her presence. She cannot tell the name of the shop owner or the name of the shop from where the furniture was purchased. She was given St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 19 one double bed, two wooden chairs, one table, one dressing table and except that no other furniture was given by her father to her. She added that T.V. was also given to her by her father and it was Videocon T.V. which was purchased by her brother. Besides T.V. one sewing machine, one cooler, fridge, almirah were given by her father in the marriage. She further stated that her father spent total amount of Rs. 2 Lac in her marriage but again said that it could be even more than that and she cannot say with a certainty. She denied the suggestion that no such articles which are mentioned in her statement was provided by her parents at the time of marriage nor any gold articles were given in dowry. She admitted that her father with a salary of Rs. 4500 per month was able to provide food, shelter,clothes only to her, her sister and her mother. She stated that her parental house is about 118 Sq. yards and his father is having fridge, cooler, sofa set etc, but not A.C.
32. As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, his dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.
St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 20
33. In Jaswant Lal Vs. State AIR 1968 SC 700, the Hon'ble Supreme Court laid down that entrustment is an essential ingredient of an offence u/s 406 IPC. In Reshan Lal Vs. State AIR 1983 SC 631, Hon'ble Supreme Court held that proof of entrustment is an essential ingredient of the offence. Similarly, in Ram Narayan Vs. CBI 2003 (3) SCC 641, Hon'ble Supreme Court, held that no constitute an offence of criminal breach of trust, there must be an entrustment. As such, entrustment is one of the essential ingredients for the offence u/s 406 IPC.
34. The bare perusal of complaint Ex. PW2/B, there is no specific statement qua entrustment of any articles in favour of any article in favour of accused. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that all the dowry articles were handed over to the family members of the accused at the time of her marriage by her parents. The complainant has not stated that which of the articles was entrusted to which family member of the accused and under what circumstances.
35. The complainant has stated that in the Women Cell, accused had submitted the admitted list of her dowry articles Ex. PW2/C bearing signature of accused at point A and her signatures at point C. However, the admissions made by the St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 21 accused in CAW Cell are not binding on him. The proceedings at CAW Cell are conciliatory in nature.Any views, suggestions and admissions made by either party in a CAW Cell cannot be relied upon as evidence.(see Vinod Sharma vs. State in Crl. R.EV.P. 720/2007 decided on 11th July, 2011).
36. From the aforesaid, even the basic requirement of entrustment having been made in favour of the accused is not established. Moreover, the IO clearly stated in his cross examination that the complainant failed to accompany him to the house of the accused for recovery of Istridhan despite his repeated efforts to take her along with him for recovery of Istridhan. She was not available whenever he visited her for taking her for recovery of Istridhan. The prosecution has not explained the reluctance of complainant in identifying and recovering her Istridhan.
37. In judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon'ble High Court of Delhi observed the mandate of for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side, in terms of provision of 2 of Dowry Prohibition Act. Further, the increasing trend of making exaggerated claims by the complainant and his family regarding Istridhan given to the complainant was also noticed. To curb the same, it was held that the complainant and her family members, are bound to disclose the source of such expenditure on marriage. In St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram 22 the instant case, no list of dowry articles was prepared at the time of marriage signed by both sides. The complainant in her testimony while describing jewellery given to her in marriage by her parents, mentioned certain gold ornament which do not find mention in list of stridhan Ex. PW 1/A. No bill of such jewellery has also been produced. Apart from that the complainant also stated in her evidence that his father was earning only Rs. 4500/ p.m at the time of her marriage in 1996. But she claimed that her father spent Rs 2 lacs or more in her marriage. The prosecution has not explained the source of expenditure incurred by father of the complainant in her marriage, which appears to be much beyond his capacity. In view of the above, I am of the considered opinion that the prosecution has failed to bring home the guilt of the accused u/s 406 IPC beyond reasonable doubt. Therefore accused Gian Chand is also acquitted for offence under Section 406 IPC. Bail bonds & Surety bond discharged. Endorsement, if any stands cancelled. File be consigned to record room. Announced in the open court on this th day of 30 August 2012 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi St. Vs. Gian Chand FIR No.16/01, P.S. R.K. Puram