Delhi District Court
State vs . Gyan Chand on 26 June, 2013
IN THE COURT OF MS. JYOTI KLER
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
State Vs. Gyan Chand
FIR No. 258/01
P.S. : R.K. Puram
U/S : 498A/406/34 IPC
CASE ID: 02403R0036092002
JUDGMENT
1.DATE OF INSTITUTION OF CASE : 07.10.2002
2.SERIAL NUMBER OF THE CASE : 591/2/08
3.DATE OF COMMISSION OF OFFENCE : Since 06.05.1993 till the
year 2000
4.NAME OF THE COMPLAINANT : Smt. Sarla
5.NAME OF THE ACCUSED & ADDRESS : 1. Gyan Chand S/o Sh. Ram Phal R/o DII/105, Madangir J.J. Colony, New Delhi
2. Ram Phal (Discharged) S/o Sh. Khagedu Ram R/o DII/105, Madangir J.J. Colony, New Delhi State Vs. Gyan Chand FIR No. 258/01 Page No. 1/15
3. Ganga Devi (Discharged) W/o Sh. Ram Phal R/o DII/105, Madangir J.J. Colony, New Delhi
4. Nirmala (Discharged) W/o Sh. Satpal R/o DII/105, Madangir J.J. Colony, New Delhi
5. Vijay (Discharged) S/o Ram Phal R/o DII/104, Madangir J.J. Colony, New Delhi
6. Shimla (Discharged) W/o Sh. Vijay R/o DII/104, Madangir J.J. Colony, New Delhi
6. OFFENCE COMPLAINED OF : U/S 498A/406/34 IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty
8. DATE ON WHICH JUDGMENT RESERVED: 25.06.2013
9. THE FINAL JUDGMENT : Conviction u/s 498A IPC Acquitted u/s 406 IPC State Vs. Gyan Chand FIR No. 258/01 Page No. 2/15
10.THE DATE OF FINAL JUDGMENT : 26.06.2013 BRIEF REASONS FOR THE DECISION:
1. The present FIR was registered on the basis of a complaint dated 09.11.2000 lodged at CAW Cell, Nanak Pura, New Delhi by Smt. Sarla (hereinafter referred as "the complainant") against her husband Sh. Gyan Chand (hereinafter referred as "accused/husband") and other relatives of the husband.
2. It is alleged in the complaint that the complainant married to the accused/husband on 06.05.1993. Accused was unemployed. Hence, he used to demand money from the complainant time and again. In the year, 1996 complainant paid a sum of Rs. 15,000/ to the accused and in the year 1998 a sum of Rs. 10,000/ was again paid. In April, 1999, accused demanded Rs. 50,000/ from the complainant, who brought a sum of Rs. 20,000/ from her parents and gave it to the accused. However, accused got angry as the complainant did not bring the entire money. She was beaten up by him and was thrown out of the matrimonial house. Since then the complainant is residing at her parental house. It is alleged that there are three children out of the wed lock and at the time when the complainant was residing with the State Vs. Gyan Chand FIR No. 258/01 Page No. 3/15 accused in the matrimonial house. Accused forced her to adopt Christian religion and used to take her to the Church and on her objections, he used to beat her up. After that the complainant left the matrimonial house. Accused started living with another lady from Chandigarh and all his relatives including motherinlaw Ganga Devi, fatherinlaw Ram Phal, Jeth Vijay and Jethani Shimla and Nirmala have helped him in this.
3. It is further alleged that the Istridhan articles of the complainant were not returned to her. These articles included beds, almirah, washing machine, cooler, colour TV, sofa set, mirror, table, chairs, sewing machine, gas, water motor, 110 utensils, clothes and jewelery consisting of necklace, nath, maang tika, ear rings, two pairs of anklets; and one ring, chain, watch and cash of Rs. 7,051/, which was given to the boy by her parents.
4. Before registration of FIR, an attempt was made by CAW Cell to get the matter compromised. However, the compromise could not succeed and therefore, it was recommended that FIR be registered. After registration of FIR, IO arrested the accused/husband and prepared the site plan. No articles of Istridhan were recovered, as the complainant did not identify the articles handed over by the accused. Statements were recorded u/s 161 Cr.P.C.
State Vs. Gyan Chand FIR No. 258/01 Page No. 4/15
5. After completion of investigation, charge sheet was filed in the court on 07.10.2002. Court took cognizance of the offence on the same day and accused Gyan Chand, Ram Phal, Ganga Devi, Nirmala, Vijay and Shimla were summoned. Copy of the charge sheet was supplied to the accused persons in compliance of provisions u/s 207 Cr.P.C.
6. Arguments were heard on the point of charge. Vide order dated 09.02.2004, Ld. Predecessor Court held that a prima facie case for the offences punishable u/s 498A/406/34 IPC and section 3 & 4 of the Dowry Prohibition Act was made out against the accused/husband i.e. Gyan Chand and a prima facie case for the offence punishable u/s 498A/34 IPC was made out against the accused Ram Phal and Ganga Devi. Accused Vijay, Nirmala and Shimla were discharged.
7. Accused Ram Phal and Ganga Devi went in revision against the said order and they were discharged by the Ld. Sessions Court vide order dated 19.04.2004. Hence, only accused Gyan Chand has faced the trial in the present case.
8. As observed above, the accused was charged for the offences punishable u/s 498A/406 IPC and u/s 3 & 4 of Dowry Prohibition Act for raising the demands of the dowry and harassing the complainant due to non State Vs. Gyan Chand FIR No. 258/01 Page No. 5/15 fulfilment of the demand and further for misappropriating istridhan of the complainant.
9. In order to prove the aforesaid case, the prosecution has examined six witnesses in support of its case.
10. The most material witness of the prosecution is PW2 Smt. Sarla, who is the complainant. In her deposition, the complainant reiterated the contents of the complaint on oath and proved her complaint Ex.PW2/A. She specifically deposed that her husband raised a demand of Rs. 50,000/ in the year 1999, out of which she brought Rs. 20,000/ from her parental house but the accused was not satisfied. He hit her and threw her out of the matrimonial house. She also specifically deposed that prior to the said demand, a further sum of Rs. 50,000/ and Rs. 10,000/ was paid by her to the accused. She deposed that the accused used to say that she was not beautiful. She further deposed about her dowry articles as per the complaint Ex.PW2/A and stated that these were not recovered during investigation. She also proved her other complaints lodged before CAW Cell as Ex.PW2/D, Ex.PW2/E and Ex.PW2/B. Seizure memo of the marriage photographs i.e. Ex.PW2/C was also identified by her. This witness was not crossexamined by the accused despite opportunities and hence, right of the accused to cross State Vs. Gyan Chand FIR No. 258/01 Page No. 6/15 examine the witness was forfeited on 27.06.2012.
11. The remaining five witnesses are the police officials and public witness who turned hostile.
12. PW1 HC Ram Niwas is the duty officer, who registered the FIR Ex.PW1/A.
13. PW3 Tara Chand is the relative of the complainant, who did not support the case of the prosecution. He was declared hostile by the Ld. APP for State and during crossexamination, he deposed that he did not give any statement to the police. He denied the suggestion that the complainant was harassed for dowry at her matrimonial house or she was thrown out of the matrimonial house for nonfulfilment of dowry demands in the year 1999.
14. PW4 Inspector Manish Joshi deposed that he had conducted the investigation of the present case and during investigation, he seized the photographs of the marriage vide seizure memo Ex.PW2/C and also arrested the accused persons vide memo Ex.PW4/A to Ex.PW4/F. During cross examination he deposed that he does not recollect whether he had gathered any documentary record pertaining to payment of money towards the dowry as alleged by the complainant, or whether any Istridhan was recovered during investigation.
State Vs. Gyan Chand FIR No. 258/01 Page No. 7/15
15. PW5 ACP Suresh Chand deposed that he was posted at CAW Cell when the complaint Ex.PW2/A was lodged and he had conducted an enquiry into the complaint and prepared a report, copy of which is Mark A1 A2. Original record could not be produced as it had been destroyed vide order dated 21.07.2009 which is Ex.PW5/A. He also deposed that he had made best efforts to reconcile Orthe dispute but to no avail and therefore, he recommended for registration of FIR.
16. Entire incriminating evidence was put to the accused on 08.03.2013 U/s 313 Cr.P.C, which was denied by him. The accused stated that the real nexus of dispute between him and his wife was a custom in the family of his wife according to which they used to cut the head of a pig on the birth of a male child in the family and they would bury it with the placenta of the child. He also stated that the complainant wanted that he should stay with her as Ghar Jamai to which accused was not agreeing. As the accused did not fulfil the demands of the complainant, he was falsely implicated.
17. Accused examined two defence witnesses in his evidence. DW1 Om Prakash is the relative of the accused and DW2 Smt. Ganga Devi is the mother of the accused.
18. DW1 deposed that no demand of dowry was ever raised by the State Vs. Gyan Chand FIR No. 258/01 Page No. 8/15 accused and the reason of dispute between the complainant and the accused was the one disclosed by the accused during his statement u/s 313 Cr.P.C. However, during crossexamination, he admitted that none of the quarrel between the complainant and the accused occurred in his presence and it was the father of the accused, who had told him about the reason of dispute between the accused and the complainant. He also deposed that he had visited the parental house of the complainant with the accused but no beating or abusing of the accused occurred at the parental house of the complainant in his presence.
19. DW2 Smt. Ganga Devi also deposed in sync with the testimony of DW1 but admitted that the accused was never abused or beaten up by the complainant and her parents or other relatives in her presence. Pertinent to note, DW2 was one of the accused in the present case and was later on discharged by the Ld. Sessions Court.
20. Final arguments have been heard.
21. Ld. APP for the state submitted that the entire case depends upon the testimony of PW1, who has not been crossexamined and hence, the accused should be convicted.
22. Ld. Defence counsel argued that even though PW2 has not State Vs. Gyan Chand FIR No. 258/01 Page No. 9/15 been crossexamined by him, she failed to specify in her testimony about the date and place of demand and further she did not specify as to why the demands were raised by the accused. It was argued that since the purpose of demand was not specified by the complainant, it cannot be presumed that the demand was towards dowry and hence, the accused cannot be convicted.
23. I have considered the rival contentions. Record perused.
24. The case of the prosecution depends upon the testimony of PW2. Accused tried to raise a doubt upon the testimony of PW2 by examining two witnesses i.e. DW1 and DW2 whose testimony has been discussed in the preceding paragraphs.
25. It is clear from the testimony of DW1 that he was not an eye witness to either of the incidents alleged by the complainant and infact, he was not even personally aware of the dispute between the complainant and the accused as it was admitted by him that it was the father of the accused, who had disclosed about the same to him. Hence, his testimony cannot be said to be more than a mere hearsay which is not an admissible piece of evidence. Similarly, DW2 also specifically deposed that no beating or abusing of the accused ever occurred in her presence in the parental house of the State Vs. Gyan Chand FIR No. 258/01 Page No. 10/15 complainant. Hence, even her testimony can't be relied upon.
26. Court is now left with the testimony of PW2 alone. This witness was not crossexamined by the accused. She specifically deposed in her testimony that the accused used to torture her for the sake of dowry and used to demand money. It is clear from the narration of her testimony that the money was demanded by the accused towards dowry and not for any other purpose and hence, the argument of ld. defence counsel to the extent that ''no purpose was specified'' is futile and without merits. The complainant has specifically deposed that she was beaten up by the accused in April, 1999 for nonfulfilment of the dowry demand. Hence, there are sufficient allegations of demand of dowry and subsequent harassment. No crossexamination of the witness was conducted on this aspect and there is no reason to doubt her testimony, as far as the allegations of demand of dowry and harassment are concerned.
27. However, accused has also been charged for criminal breach of trust. ''Entrustment'' is one of important ingredient of the offence of ''criminal breach of trust'' punishable us/ 406 IPC. The offence per se has been defined u/s 405 IPC which reads as under :
Section 405 IPC : Criminal breach of trust State Vs. Gyan Chand FIR No. 258/01 Page No. 11/15 ''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 prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'.
28. PW2 could not produce any list of Istridhan articles prepared at the time of marriage as is required u/s 3 of Dowry Prohibition Act. The list produced by her is the one prepared by her after filing of the complaint. There are no specific allegations of entrustment of articles and demand for returning the articles as required for completion of offence punishable u/s 406 IPC. As per the record, on 02.03.2001, accused had admitted that certain articles were lying in his possession and these were handed over by him in the police station to the complainant but complainant refused to accept the same. In the absence of specific allegations of entrustment and demand for return of articles and further in the absence of list as per Dowry Prohibition Act prepared at the time of marriage, it cannot be conclusively said that certain articles of Istridhan were misappropriated by the accused. State Vs. Gyan Chand FIR No. 258/01 Page No. 12/15
29. The accused, in addition, has also been charged for the offence punishable under section 3 & 4 of Dowry Prohibition Act. These sections read as under: Section 3 of Dowry Prohibition Act : Penalty for giving or taking dowry (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than (five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more) Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than (five years) (2) Nothing in subsection (1) shall apply to, or in relation to,
(a) presents which are give at the time of a marriage to the bride (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:
(b) presents which are given at the time of a
marriage to the bridegroom (without any demand
having been made in that behalf):
Provided that such presents are entered in a list State Vs. Gyan Chand FIR No. 258/01 Page No. 13/15 maintained in accordance with the rules made under this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.
Section 4 of Dowry Prohibition Act : Penalty for demanding dowry If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.
30. It is clear from the perusal of the section 3 & 4 of Dowry Prohibition Act that the ingredients of these offences overlap with the offence punishable u/s 498A IPC which reads as under:
Section 498A IPC : Husband or relative of husband of a woman subjecting her to cruelty State Vs. Gyan Chand FIR No. 258/01 Page No. 14/15 ''Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine''.
31. All three aforesaid sections punish demand of dowry. In addition, section 498A IPC also punishes consequent harassment pursuant to the demand of dowry. Hence, section 498A IPC is more comprehensive.
32. Ingredients of aforesaid sections already stand proved from the testimony of PW2 beyond reasonable doubt. Accordingly, accused is convicted of the offence us/ 498A IPC. However, no separate conviction u/s 3 and 4 of Dowry Prohibition Act is warranted as the ingredients of these two sections overlap with the ingredients of the offence u/s 498A IPC.
33. But, the prosecution has not been able to prove the ingredients of section 406 IPC for the reasons mentioned in the preceding paragraphs and therefore, the accused is acquitted of the said offence.
34. Ordered accordingly.
Pronounced in open court (JYOTI KLER)
on 26th June, 2013 M.M/Mahila Court/South District
New Delhi/26.06.2013
State Vs. Gyan Chand
FIR No. 258/01 Page No. 15/15