Delhi District Court
Asha Karki vs The State (Govt. Of Nct Of Delhi) on 7 November, 2022
IN THE COURT OF DR.JAGMINDER SINGH:
ADDITIONAL SESSIONS JUDGE-03 - (SOUTH-WEST)
DWARKA COURTS: NEW DELHI
CNR No.DLSW01-006952-2019
Reg. No.CA/256/2019
Asha Karki
W/o Sh. Rajesh Karki,
R/o F-50, Lado Sarai,
New Delhi-110030.
..... Appellant
Versus
1. The State (Govt. of NCT of Delhi).
... Respondent no1.
2. Rajesh Karki,
S/o Sh. D.S.Karki,
R/o Qr.No.178, Sector-II,
Sadiq Nagar, New Delhi-110049
... Respondent no.2.
3. Dan Singh Karki (since expired),
S/o Sh.Ram Singh Karki,
R/o Qr.No.178, Sector-II,
Sadiq Nagar, New Delhi-110049
... Respondent no.3.
4. Smt. Janaki Karki,
W/o Sh.D.S.Karki,
R/o Qr.No.178, Sector-II,
Sadiq Nagar, New Delhi-110049
... Respondent no.4.
5. Smt. Veena Bisht,
D/o Sh.D.S.Karki,
R/o Qr.No.182, Sector-II,
Sadiq Nagar, New Delhi-110049
... Respondent no.5.
Date of Institution of the appeal : 30.05.2019
Date of Arguments : 07.11.2022
Date on which judgment was pronounced : 07.11.2022
Final Order : Dismissed
CA No.256/2019 Page No. 1 of 9
Asha Karki vs. State & Ors.
JUDGMENT:
1. The present appeal has been preferred against the judgment dated 31.01.2019, passed by Ld.MM-01(SW), Mahila Court, Dwarka, whereby accused (respondent no.2 herein) Rajesh Karki has been acquitted for offence u/s 498A IPC in case FIR no.17/11 of PS CAW Cell, Nanakpura.
2. Brief facts necessary for deciding the present appeal are that the complainant/appellant Smt.Asha Karki filed a complaint on 05.05.2010 before CWC Nanakpura and in the said complaint, she has alleged about the cruelty inflicted on her by father-in-law, mother-in-law, sister-in-law and husband and also about the demand of money and dowry made by the in-laws including husband. On the basis of said complaint, an FIR bearing No.17/11, under Sections 498A/406/34 IPC was registered against the husband/respondent no.2, father-in-law namely Dan Singh Karki (respondent no.3 herein), mother-in-law namely Janaki Karki (respondent no.4 herein) and sister-in-law namely Veena Karki (respondent no.5 herein), of the complainant. Though FIR has been registered against the in-laws including sister-in-law Smt. Veena Karki of the complainant but charge-sheet was filed only against husband, father-in-law and mother-in-law of the complainant, putting Smt. Veena Kari in Column No.12 as not chargesheeted.
3. Vide order dated 06.11.2012, the learned Trial Court summoned the three chargesheeted accused persons i.e. Rajesh Karki, Janaki Karki and Dan Singh Karki.
4. The learned Trial Court, vide order dated 02.05.2013, though discharged the accused/respondent no.3 Dan CA No.256/2019 Page No. 2 of 9 Asha Karki vs. State & Ors.
Singh Karki (father-in-law), accused/respondent no.4 Janaki Karki (mother-in-law) for the offences punishable under Sections 498-A/406 IPC and accused/respondent no.2 Rajesh Karki (husband) for the offence punishable under Section 406 IPC on the ground of insufficient evidence but framed charge against accused/respondent no.2 Rajesh Karki (husband) for the offence punishable under Section 498A IPC. Thereafter, an application under Section 319 r/w 311 CrPC was moved by the complainant for summoning the accused persons who were discharged as well as for summoning accused Veena Karki who was kept in column No.12. However, this request was declined by the learned Trial Court vide order dated 31.10.2018 and matter proceeded further.
5. After trial, in view of the contradictions in the evidence led by the prosecution, the learned Trial Court, vide judgment dated 31.01.2019, acquitted the accused/respondent No.2 Rajesh Karki for offence u/s 498A IPC.
6. Feeling aggrieved, the appellant/complainant preferred the present appeal challenging the impugned judgment mainly on the ground that the learned Trial Court failed to appreciate that there was specific evidence against the respondents i.e. her in-laws in the testimonies of PW nos. 1, 3, 6 and 9 but the same was not considered in true spirit resulting into miscarriage of justice. It is further submitted that Ld. Trial Court failed to consider that there are settled propositions of law on the issues of Section 498A and 406 IPC but it took very technical view of the material evidence against the accused persons. It is also stated that Ld. Trial Court also failed to appreciate that the IO who played a very important role in the case was not CA No.256/2019 Page No. 3 of 9 Asha Karki vs. State & Ors.
summoned by the prosecution and the IO was examined only after the appellant filed an application u/s 311 CrPC which shows that the prosecution was not vigilant in pursuing the matter sincerely. It further stated that ld. Trial Court failed to appreciate that there was specific role of the accused persons but not a single piece of evidence was led by them in their defence. It is further submitted that the ld. Trial court failed to consider that provisions of Section 498A IPC was introduced with a view to protect the appellant/wife at the hands of the respondent/husband and her in-laws. Further, it is stated that ld. Trial court did not consider the mental cruelty caused to the appellant but has concentrated only on any sign of physical cruelty and ignored the fact of the case as well as settled law on the issue of cruelty and took hyper technical view. It is further submitted that ld. Trial court failed to appreciate that Section 319(1) CrPC empowers the Court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together alongwith accused. It is further submitted that the impugned order has done a great injustice to the appellant and the same may be set aside.
7. On the other hand, learned counsel for the accused persons/respondent No.2 to 5 has filed the written submissions on the ground that the vide detailed order dated 02.05.2013, ld. Trial court discharged respondent nos. 3 and 4 and during the entire trial, complainant/appellant did not file any revision against the said order and thus, the present appeal is not maintainable against respondent nos. 3 and 4 and also not maintainable against respondent No.5 who has not been CA No.256/2019 Page No. 4 of 9 Asha Karki vs. State & Ors.
summoned by the learned Trial Court. It is further submitted that during trial, after leading her evidence, complainant also filed an application U/s 319 CrPC r/w/s 311 CrPC for initiating proceedings against respondent nos.3 to 5 and to summon the I.O. of the case and ld. Trial Court was pleased to dismiss the said application vide order dated 31.10.2018. It is further stated that complainant did not file any revision against the said order. It is further submitted that the entire FIR and examination-in- chief of the complainant are vague as she mentioned only two dates in her FIR i.e. 19.01.2008 (date of marriage) wherein she did not mention any harassment to her. Secondly, she mentioned the date of incident as 20.08.2008 where she alleged a fight between her and her husband over a small domestic issue. It is further submitted that the incident dated 20.08.2008 does not fall under the ambit of Explanation (b) of Section 498A IPC. It is further stated that prosecution has failed to prove the cruelty against the husband/respondent no.2 as defined in explanation to Section 498A IPC. It is further submitted that the appellant failed to prove any specific demand of dowry and any specific instance of cruelty. It is further submitted that the deposition of the appellant and other witnesses is completely different from the statement given to the police officer. It is submitted that the judgment of learned Trial Court is reasoned one.
8. I have heard ld. counsel for the revisionist/complainant as well as Ld. Addl.PP for State/respondent no.1 and Sh.Pradeep Nawani, ld. counsel for respondent no.2 to 5. I have also gone through the entire record including the Trial Court Record file.
CA No.256/2019 Page No. 5 of 99. During pendency of this appeal, respondent No.3 has already expired on 21.03.2021 as per his death certificate. Therefore, the appeal proceedings qua respondent no.3 are abated. Respondent no.4 as well as respondent No.3 (since deceased) were already discharged by the learned Trial Court vide order dated 02.05.2013. All the accused persons were also discharged through that order for the offence punishable under Section 406 IPC. Admittedly, that order has never been challenged by the appellant/aggrieved party and the said order attained finality. The respondent No.5 was not chargesheeted by the IO. However, during evidence, an application was moved to summon her but same was also dismissed by the learned Trial Court vide order dated 31.10.2018 and that order was also never challenged by the aggrieved party, which attained finality. Moreover, the impugned order before this Court is judgment dated 31.01.2019 vide which respondent No.2 was acquitted. The other aforesaid orders are not subject matter of the present appeal. Therefore, the present appeal is not maintainable qua respondents No.3 to 5.
10. Prosecution had examined PW-1 i.e. complainant, who stated in her examination-in-chief that her in-laws family persons including the respondent No.2 i.e. her husband used to demand Rs.3,50,000/- from her. However, she had not specifically mentioned that they were demanding the aforesaid amount as dowry or otherwise. She had narrated other incidents of pity nature regarding her domestic quarrel with her husband. She had further stated that at the time of her marriage, her father gave Rs.75,000/- to her father-in-law as first installment to CA No.256/2019 Page No. 6 of 9 Asha Karki vs. State & Ors.
purchase a car which was demanded by him in marriage and she had further stated that the amount received by her during Mooh Dikhai ceremony was taken by her mother-in-law. However, in cross examination, she had voluntarily stated that before the marriage, her in-law family had not demanded any dowry but just before the marriage, they demanded the articles on the pretext of starting new life of their son. Therefore, these allegations are against parents of respondent No.2 and that are also before the marriage.
11. During cross examination, PW1 stated that during her fight with her in-laws, their neighbours used to come at her matrimonial home but she had not disclosed this fact in her examination-in-chief or in her statement under Section 161 CrPC. PW3 i.e. father of the complainant when specifically asked about the source of Rs.75,000/- which he allegedly handed over to the groom side at the time of marriage, he failed to tell the same. He further could not tell the name of any relative or guest in presence of whom the said amount was given by him. No any allegation of any physical assault/harassment for non- fulfilling of demand of any dowry has been levelled by the prosecution witnesses. PW6 i.e. sister of the complainant herself admitted that the complainant was never subjected to any physical harassment by the accused persons. She further admitted in cross examination that one of the reason of the dispute between accused and her sister was that she could not bear a child due to medical complications of respondent No.2.
12. For the purpose of Section 498A IPC, the cruelty must be either in connection with any unlawful demand for any CA No.256/2019 Page No. 7 of 9 Asha Karki vs. State & Ors.
property made from her or her relatives or it must be of such a nature as is likely to drive complainant to commit suicide or cause grave injury or danger to her life/limb/health.
13. The allegations levelled by the complainant in her examination as PW1 against her husband and in-laws are only in the nature of taunts as the articles given to her were not of a good brand. Further she was not allowed to wear jeans. Further she had no where mentioned that for non-fulfillment of any demand of dowry/property, she was subjected to any harassment or cruelty. Regarding the incident of beating by her husband/respondent No.2 in year 2008, CW1/complainant herself stated that she was beaten by kicks and fists on some small domestic issue and the same was not regarding any kind of dowry demand.
14. During appreciation of evidence, ld. Trial Court had rightly observed that the incident of 20.08.2008 when accused gave beatings to the complainant on small issue i.e. for giving him a shampoo sachet and regarding the incident of 15.11.2019 when she was given beating in auto rickshaw on the issue of attending a marriage function, are not sufficient to fulfill the ingredients of Section 498A IPC. The giving of money of Rs.75,000/- to the father-in-law of the complainant by father of the complainant was also not proved.
15. The other witnesses examined by the prosecution are procedural formal witnesses. The analysis and scrutiny of main witnesses examined by the prosecution reveals that the prosecution failed to prove the essential ingredients of offence under Section 498A IPC against respondent No.2. It is a settled CA No.256/2019 Page No. 8 of 9 Asha Karki vs. State & Ors.
law that prosecution has to prove its case against the accused beyond reasonable doubt, which has not been done by the prosecution in the present case.
16. In view of the aforesaid discussion, Court finds that there is no illegality or infirmity in the impugned judgment passed by learned Trial Court acquitting the respondent no.2/accused for the offence punishable under Section 498A IPC.
17. The present appeal is accordingly dismissed.
18. Trial Court Record be sent back alongwith copy of the judgment and appeal file be consigned to Record Room after necessary compliance.
Digitally signedPronounced in the open court on JAGMINDER by JAGMINDER SINGH Dated : 07.11.2022 SINGH Date: 2022.11.09 10:37:37 +0530 (DR. JAGMINDER SINGH) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/07.11.2022 Note: This judgment contains 9 (nine) pages and having my Digitally signed by JAGMINDER signature on each page. JAGMINDER SINGH SINGH Date: 2022.11.09 10:37:48 +0530 (DR. JAGMINDER SINGH) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/07.11.2022 CA No.256/2019 Page No. 9 of 9 Asha Karki vs. State & Ors.