Delhi District Court
) Sh. Arun Kumar Jain vs State on 9 May, 2014
Criminal Appeal No. 25/14 & 26/14
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 25/14
Unique I.D. No. : 02402R0347272013
In the matter of :-
1) Sh. Arun Kumar Jain
S/o Late Sh. Mahendra Prasad Jain.
2) Ms. Sushma Jain
D/o Late Sh. Mahendra Prasad Jain.
.....Appellants
Both appellants are R/o :
House No. 1/2642,
Ram Nagar, Shahdara,
Delhi-110032.
VERSUS
State ...... Respondent
Date of Institution : 23/10/2013
Date of receiving the case in this court : 07/02/2014
Date of reserving order : 22/04/2014
Date of pronouncement : 09/05/2014
Decision : Appeal is allowed
AND
Criminal Appeal No. : 26/14
Unique I.D. No. : 02402R0353632013
In the matter of :-
Ms. Vrishti Jain
D/o Sh. J.C. Jain,
R/o A-41/D, DDA Flats,
Munirka, New Delhi
.....Appellant
(Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Page 1 of 39 Karkardooma Courts, Delhi
Criminal Appeal No. 25/14 & 26/14
VERSUS
1) Sh. Arun Kumar Jain
S/o Late Sh. M.P. Jain,
R/o 1/2642, Gali No. 3,
Ram Nagar, Loni Road,
Shahdara, Delhi-110032.
2) Ms. Sushma Jain
D/o Sh. M.P. Jain
R/o 1/2642, Gali No. 3,
Ram Nagar, Loni Road,
Shahdara, Delhi-110032.
3) Smt. Saubhagyawati Jain
(since expired - proceedings abated on 20.09.2005) W/o Late Sh.M.P. Jain, R/o 1/2642, Gali No. 3, Ram Nagar, Loni Road, Shahdara, Delhi-110032.
4) The State (Govt. of NCT of Delhi) ...... Respondents Date of Institution : 28/10/2013
Date of receiving the case in this court : 07/02/2014 Date of reserving order : 22/04/2014 Date of pronouncement : 09/05/2014 Decision : Appeal is dismissed.
JUDGMENT IN APPEAL
1. Vide this common judgment, I shall decide two appeals, which were preferred against the judgment dated 20.09.2013, passed by Ms. Savitri, ld. Metropolitan Magistrate, Karkardooma Courts, Shahdara, Delhi in FIR No. 70/94, PS- M.S. Park, Delhi. Appeal no. 25/14 has been preferred by two convicts namely Sh. Arun Kumar Jain and Ms. Sushma Jain, who have challenged their conviction for offence U/s 4 of Dowry Prohibition Act, 1961.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 2 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Appeal no. 26/14 has been preferred by the complainant namely Ms. Vrishti Jain, who has challenged the acquittal of accused persons for offence U/s 498-A/406/34 IPC. Since in both these appeals, the respective appellants have challenged the same judgment, therefore, I intend to dispose off both these appeals vide this common judgment. For the sake of convenience, clarity and to rule out any confusion, I would refer to the parties, as per their status before the trial court i.e. as complainant and accused persons.
2. Vide impugned judgment, the trial court acquitted accused persons namely Arun Jain and Sushma Jain U/s 498-A/406/34 IPC and they were convicted for offence U/s 4 of Dowry Prohibition Act, 1961. In order to appreciate the contentions raised in both appeals, I would discuss the evidence led before the trial court for each offence separately, in order to find culpability of the accused persons for such alleged offences.
3. Briefly stated, the case set-up by the prosecution is as follows :-
Complainant was married to accused Arun Jain on 24.11.1992 at Delhi. Accused Sushma Jain is sister of accused Arun Jain. Accused Saubhagyawati Jain was mother of accused Arun Jain. On 11.10.1993, complainant made a written complaint before Crime against Women Cell Delhi, alleging that her husband and in-laws (accused Sushma Jain, Smt. Saubhagyawati Jain and Sh. M.P. Jain) had been harassing her and had been treating her cruelly and they had been making demand for more and more money and articles from her and from her parents. She further alleged that in the ceremony of 'sagai', accused had demanded maximum cash amount to construct an extra room and kitchen in the matrimonial house and on that pretext, they had extracted Rs.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 3 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 47,000/- in cash, which were given to accused Arun and Sh. M.P. Jain (father of Arun) on 05.10.1992. However, such rooms were never constructed. Accused persons had also demanded for Godrej furniture from the parents of the complainant, at the time of marriage and when her father expressed his inability to give such costly furniture, the accused persons said that they would purchase the furniture themselves and they demanded gold bangles instead of money being spent on furniture. Parents of the complainant gave gold bangles in the marriage, however, accused persons did not purchase the furniture. Soon after marriage, the jewellery given to the complainant were entrusted by her to accused Saubhagyawati Jain, accused Sushma and Arun Jain in three parts and the accused persons criminally misappropriated these articles apart from other articles, which were mentioned in the separate attached list and which were part of her 'stridhan'. After sometime of their marriage, accused persons demanded a VCR and Rs. 75,000/- for construction of an additional room and kitchen in their house. When complainant expressed inability of her father to satisfy these demands, they started torturing and threatening her in various ways. Mother-in-law (Saubhagyawati Jain) did not allow the complainant to take bath. The accused persons made the complainant to do all works in the house viz. washing and ironing the clothes, cleaning utensils and cooking food for whole family as well as for the pet dog etc. Complainant was a working lady, who was employed with Doordarshan. On 09.01.1993, accused Sushma and Saubhagyawati threatened the complainant to burn her. On 17.01.1993, complainant was not permitted to take bath and on the same day, accused Arun, Sushma and Saubhagyawati caught hold of her and threatened to burn her in order to end the (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 4 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 matter once for all. On the same night, accused Arun Jain gave a compose tablet to the complainant so that she was unable to perform her duty on the next day. On 18.01.1993, accused Sushma Jain set free their pet dog upon the complainant, who jumped upon her and complainant was somehow able to save herself. Complainant was not given food for several days. All these cruelties were meted out with only view to compel the complainant to bring VCR and cash of Rs.75,000/-. On 22.02.1993, accused Arun Jain played a fraud upon the complainant in as much as he made her to sit on his scooter and thereafter, he dropped her at her father's house in bare three clothes. Thereafter, efforts were made by the parents of the complainant and the complainant for reconciliation but in vain. All the articles mentioned in the list had been criminally misappropriated by the accused persons and they had refused to return the same despite repeated demands. On the basis of such complainant, conciliation proceedings were conducted in CAW Cell for sometime, but the matter could not be reconciled and finally vide order dated 10.03.1994, an order was passed by DCP, CAW Cell for registration of case and this FIR was finally registered on 12.04.1994 at PS-M.S. Park, U/s 498-A IPC. After aforesaid complaint dated 11.10.1993, complainant had given additional complaints as well on 21.01.1994 and 22.03.1994.
Police after concluding the investigation, filed charge-sheet in the Court for offence U/s 498-A IPC, against accused Arun Jain, Saubhagyawati Jain, M.P.Jain and Sushma Jain. Accused M.P. Jain was discharged by the trial court and remaining three accused persons were put on the trial for offence U/s 498-A/406/34 IPC. Prosecution Evidence :-
4. Prosecution examined 8 witnesses in support of its case, which are (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 5 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 as follows :-
(i) PW-1 was the complainant herself, who was examined at length. She deposed in her examination-in-chief besides other things that in her marriage, she was given dowry articles and was loaded with gifts. She had taken all these articles to her matrimonial house at Shahdara Delhi. Her parents had handed over a list of dowry articles to her in-laws i.e. her husband Arun Jain, Sushma Jain and parents-in-law. She used all her dowry articles, which were also used by her in-laws. On the very next day, her mother-in-law and sister-in-law started murmuring before other relatives that the dowry articles were of inferior quality and were lesser in number. Her mother-in-law, sister-in-
law and her husband taunted about dowry articles. On 27.11.1992, she went for honeymoon along with accused Arun (husband) and after about 10 days, she came back from honeymoon. Before leaving for honeymoon, her husband and mother-in-law asked her to hand-over her jewelleries, which consisted of a pair of a gold bangles, a set of gold necklace, ear-rings and ring, to her mother-in-law. The accused persons had removed a maid-servant from the house and put all burden of house-hold work upon her. They demanded a VCR and Rs.75,000/- from the complainant. Rs. 75,000/- was demanded for construction of a room and kitchen in their house. During negotiations for the marriage, the accused persons had told the father of the complainant/PW-1 to cut-short the expenses for 'sagai' and to give cash for construction of room and kitchen in their house. At 'sagai' ceremony, Rs. 47,000/- was entrusted to father-in-law and husband of the complainant for this purpose, but later on, on the same pretext, they demanded Rs. 75,000/-.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 6 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Accused persons did not construct a room and kitchen with Rs. 47,000/-. After 'sagai' ceremony, parents of the complainant went to the house of accused persons for negotiating for the marriage and accused Arun and Saubhagyawati asked her father to give Godrej furniture in her marriage. Her father told accused persons that he could not afford the same. The accused persons had decided to give gold bangle to the complainant, but they said to her father to give gold bangle in the marriage and they would buy the Godrej furniture themselves. Her father gave gold bangle in the marriage of the complainant and all these facts were told to the complainant by her parents. After coming back from the honeymoon, she entrusted 4 bangles, 2 gold rings and 2 pairs of gold ear tops to the accused persons. She also entrusted silver pajeb, 4 silver coins, 1 silver key bunch without keys, 1 gold chain with pendant, 1 mangalsutra with gold beats, 1 silver statue of God, 1 gold-plated half set and few other small articles. All these entrusted articles to the accused persons were not returned to her by them. She used to ask for these articles from the accused, whenever she used to go to any function and it was so given to her but after coming back from the function, they used to take back those articles from her. Thus, all her dowry as well as 'vari' articles (gifts given by groom-side) and her jewelleries were in possession of her in-laws. The accused persons repeatedly asked complainant to give Rs. 75,000/- and a VCR and for such demands, she was physically harassed. Her mother-in-law did not allow her to take bath for days together. She was not given food for several days and she was threatened by these accused persons that she would be burnt (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 7 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 alive by sprinkling kerosene oil on her. On 09.01.1993, her sister-in-law and mother-in-law threatened her to burn alive. On 17.01.1993, she was not given food and all three accused persons caught hold of her and threw her on the bed. They said "kerosene lekar aao, isko aaj hi zinda jala denge". Her father-in- law was also present at that time. She tried to free herself from their clutches. Her husband (Arun) had closed her mouth with his hands and she gave a bite on his hands, due to which he took off his hand. Thereafter, she raised cries and the neighbourers started peeping in and then accused persons scattered away. On the same night, she was having headache and she asked her husband to give her some medicine. He gave her a tablet and on next day, she came to know that it was a compose tablet. Since, she was under influence of that tablet, she could not get-up in time in the morning and she could not attend her office. Her sister-in-law (Sushma) taunted her, when she saw her sleeping and set free the pet dog upon her and she was able to save herself with great difficulty. On 22.02.1993, at about 6.30 PM, her husband fraudulently left her at her parents' house. On the next day, her brother-in-law (jija) went to the shop of accused Arun for compromise talks and then both of them came to her office. Her 'jija' tried to counsel accused Arun and he became ready to take the complainant back after her duty hours, but he did not turn-up. Thereafter, various attempts were made by the complainant and her relatives to arrive at a compromise and such negotiations went on for about four months. Thereafter, the complainant demanded her 'stridhan' from the accused persons but the same were not returned to her and on 11.10.1993, she made a complaint in CAW Cell (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 8 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Nanakpura. This complaint was proved as Ex.PW1/A and the list of dowry articles filed with this complaint was proved as Ex.PW1/B. During the proceedings in CAW Cell, her husband made a murderous assault on her, due to which, her tooth was broken and FIR was registered in this regard. Complainant proved her other statement dated 22.03.1994 as Ex.PW1/C and one other statement recorded at CAW Cell on 21.01.1994 as Ex.PW1/D. She also produced certain receipts of purchase of dowry articles, which were given Ex.P3 to 3/1-12.
(ii) PW-2 Sh. Mahavir Prasad was the duty officer, who had recorded FIR on 12.04.1994. He proved the carbon copy of FIR as Ex.PW2/A.
(iii) PW-3 Sh. Rajiv Kumar Jain was brother-in-law of the complainant. He deposed interalia that in October 1992 on the day of 'sagai', his father-in-law had given a cash amount of Rs. 47,000/- to accused Arun and his father in his presence. This amount was given in a separate room. His father-in-law told the accused persons that he was giving this money, as per their demand and for making a room and one kitchen. He further deposed that in November 1992, marriage had taken place and on 25.12.1992, he went to the matrimonial house of the complainant to meet her. Her matrimonial house was situated on the 1st floor and when he was climbing the stairs, he heard the noise and saw that accused Arun, his mother and the complainant were standing outside the room in varanda and were having some arguments among them. He heard the mother-in-law of the complainant saying that if complainant wanted to take bath in the bath-room, then she should bring money for construction of room and kitchen from her father. He (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 9 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 also heard the complainant replying that the money was already given by her father for this purpose in 'sagai' ceremony and on this, accused Arun slapped the complainant. PW-3 further deposed that he came back after seeing all this. In February 1993, he received a telephonic call from the house of her father- in-law that accused Arun had left the complainant at her parental house. He was worried and on the next day, he went to the shop of accused Arun and tried to counsel him. He told the accused that he should mend his behaviour towards the complainant and he should patch-up the matter with the complainant and should bring her back to his house. Next day again, he went to the shop of accused Arun and asked him to have the meeting with the complainant to sort out the differences between them and for this meeting, he accompanied accused Arun and reached a restaurant near office of the complainant. The meeting between complainant and Arun was held in his presence and in this meeting,he made efforts to make both of them understand and he asked the accused Arun to take back the complainant. Accused Arun agreed for the same and assured that he would take complainant back in the same evening but he did not turn-up. Thereafter, also at many times, the efforts were made for compromise but in vain.
(iv) PW-4 Smt. Keval Kapoor was working as Reception Office in DG AIR and Doordarshan. She deposed that she knew the complainant being her colleague. On 12.02.1993, at about 5.00 PM, she was present on the reception when accused Arun came to her and told her that she wanted to meet the complainant. She asked the accused about place where (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 10 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 complainant was working and the accused told her that she was working in Doordarshan. PW-4 made contact in Doordarshan Department, Duty Room through telephone and talked to the complainant. Complainant came downstairs, where accused Arun was also present. Both of them had conversation and this witness could hear that accused Arun was asking the complainant "Munirka gai thi aur tune mera kam kiya". On this complainant said something to the accused, which could not be heard by this witness and she saw that accused Arun slapped the complainant. Since there were the number of visitors present, this witness turned both of them out. After sometime, complainant came back weeping and when this witness asked for the reason, she told her that her husband was demanding money from her.
(v) PW-5 Sh. Jinesh Kumar Jain was cousin of the complainant. He deposed interalia that at the time of negotiations of the marriage, he was present along with Sh. M.P. Jain, Sushma Jain, Arun Jain and Sh. Jagdish Chandra Jain (father of complainant). During the discussions, accused Arun told them that they do not have sufficient rooms at their house and he suggested that the girl side should give them cash in making kitchen and a room before marriage. He further deposed that the girl side wanted to give furniture but not of expensive type, but accused Arun desired that he should be given furniture of Godrej brand. Father of the complainant expressed his inability to give such expensive furniture and then accused Sushma suggested that they should give a pair of bangles to the complainant and they would themselves buy a furniture. The 'sagai' was fixed for 05.10.1992 and it was settled that the girl (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 11 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 side shall give Rs. 51,000/- in cash for construction of room and kitchen. On the day of 'sagai', this witness along with father of the complainant, Sh. Prem Chand Jain, Sh. Virender Jain and Sh. Rajeev Jain visited the house of the accused persons. He along with father of the complainant and Rajeev Jain went inside the premises, where accused Sushma, Arun along with their father Sh. M.P. Jain were present. The girl side told them that they could arrange Rs. 41,000/- only on which, the accused persons showed their annoyance. Father of the complainant came out of the room and contacted Sh. Prem Chand regarding money. Sh. Prem Chand could arrange Rs. 6,000/- more and father of the complainant could hand over Rs. 47,000/- in cash to father of the accused Arun. They assured the accused persons that they would give remaining Rs. 4,000/- in cash, later on. Thereafter, they all went to attend the 'sagai' ceremony. He further deposed that after around 2½ months of marriage,complainant telephoned him and made complaint regarding behaviour of her in-laws. She told him about abusing and beating and about demand of cash. She also told him about demand of cash for construction of a room and kitchen. This witness was having good terms with accused Arun, therefore, he made request to accused to come at Connaught Place for a meeting with the complainant in order to solve the problem. PW-5 did not remember the date of the meeting but deposed that it was arranged and he made efforts to make accused Arun and complainant understand and he asked them not to quarrel with each other. He also advised both of them to go home and live peacefully. Complainant once again called him after around 6 days and informed that accused Arun was not following his (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 12 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 advise and was behaving in the same manner. He once again arranged another meeting between the complainant and Arun and both of them once again agreed to go back home and live peacefully. After around 10-12 days, mother of the complainant telephoned him and informed that accused Arun had left Vrishti Jain at their house, but Arun did not take her back. He along with complainant and her parents went to the house of accused Arun and met Arun, Sushma as well as their parents. The accused persons were requested to have mercy upon the complainant and to change their behaviour towards her, on which accused Sushma expressed her own grudge against the complainant and there was exchange of some heated words between Sushma and the complainant. Accused Arun also became annoyed and started abusing complainant and her father and therefore, they all came back. Thereafter also, efforts were made to get the matter compromised but in vain.
(vi) PW-6 Smt. Sushila Jain, who was mother of the complainant, interalia deposed that before ceremony of Sagai, they had given accused persons i.e. to father of accused Arun an amount of Rs.47,000/-, which was demanded by accused persons for construction of a room and a kitchen. However, they did not get constructed a room and kitchen. She also deposed that in Sagai, her son-in-law, nephew Jinesh, Dinesh, Rajiv Jain, Prem Chand Jain and other accused persons were present. She further deposed that when they had gone to negotiate the talk of marriage at the house of accused at Shahdara, accused Saubhagyawati demanded Godrej furniture as dowry, which could not be given by them. Thereafter, accused persons asked to give a gold bangle to the (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 13 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 complainant and they had given jeweleries and a number of articles in the dowry. The in-laws of complainant had also given jewelries and other articles. All the articles were sent to the matrimonial house of the complainant. Complainant had told her that her in-laws were taunting, because of lesser dowry received by them and they had removed the housemade. They had also stopped giving food to the complainant. All accused persons asked Rs.75,000/- and VCR in dowry, which was so told by her by complainant on telephone. When they could not satisfy their demand, then accused persons tried to burn the complainant and accused Sushma instigated the pet dog to attack on the complainant. Accused Arun gave sleeping pill to the complainant, so that she could not go to her office. This witness further deposed that complainant used to tell her that her in-laws used to beat her. On 22.02.1993, complainant was fraudulently left at Munirka parental house, thereafter, they all tried to get the compromise done, but accused persons treated them badly.
(vii) PW-7 Sh. Prem Chand Jain could not remember anything to give a concrete testimony before the Court and he was cross- examined by ld. APP. In his cross-examination, he deposed that he knew Jagdish Chand, who was one of his friends and there was a ceremony of Sagai of his daughter on 05.10.1992, but he did not know whether father of accused Arun had called Sh. Jagdish (father of complainant) in another room and demanded cash from him. He did not know any demand made by father of Arun, though he admitted that Jagdish Chand and Titoo were present there. He did not know whether Rs.47,000/- was paid to father of the accused Arun. He denied that Jagdish stated to (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 14 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 him that he was not in position to pay Rs.75,000/- nor did he remember that any such demand was told to him by Jagdish. He denied that complainant made any complaint to him. Thus, he did not give his statement as projected by the prosecution.
(viii) PW-8 SI Brahm Singh was posted in CAW Cell on 12.04.1994. He had made endorsement on the complaint of complainant/PW-1 for registration of FIR. On 13.04.1994, he went to the house of father of complainant at Munirka and recorded statement of complainant and her father. He requested them to join the investigation for recovery of dowry articles, but complainant and her father requested for the date of 19.04.1994 and, thereafter, he was transferred and hence, he did not continue any further investigation.
5. Statement of accused Arun and Sushma were recorded under Section 313 Cr.P.C. They did not lead any evidence. Plea and arguments of the complainant :-
6. The complainant Ms. Vrishti Jain challenged the impugned judgment relating to its part, vide which, accused persons have been acquitted of the charges U/s 498-A/406 IPC, on the following grounds :-
(i) That the trial court did not consider the evidence that accused Sushma instigated the dog to attack upon the complainant on 18/01/1993.
(ii) That no-one from the family of the accused persons came to take complainant back to her matrimonial house after 22/02/93.
(iii) That the trial court did not appreciate the reasons given by the complainant to visit the place of different relatives that she was doing so for the prestige of her in-laws.
(iv) That the trial court did not appreciate that complainant denied (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 15 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 the suggestion that she was living in the matrimonial house a happy married life. Though, she deposed that she could have stayed there to save her married life. Complainant did not make complaint to police in order to save her married life and to make her husband understand the nefarious influence of accused Sushma and other members of family.
(v) That the trial court did not appreciate that complainant denied that she was anxious to build a room and kitchen and she deposed that this was accused (Arun), who was anxious to build a kitchen and another room. Complainant was not anxious to live in a separate house.
(vi) That the complainant was not present when the amount of Rs.
47,000/- was demanded and given to the accused persons because all these talks are done by the parents / elder relatives of the parties. Therefore, absence of complainant on these occasions should not be taken adversely.
(vii) That the trial court did not consider the testimony of PW-3 regarding his visit to matrimonial house of complainant on 25.12.92 and that he saw the ill treatment given to the complainant by the accused persons.
(viii) That the trial court did not consider testimony of PW-4 because complainant did not mention about her in the previous statement given to the police, which was wrong.
(ix) That the trial court erred in differentiating the list of dowry articles given by the complainant in CAW Cell and sent by her with the reply to notice of accused Arun because the list given in CAW Cell was purely a list of 'stridhan'.
(x) That the trial court did not consider that a newly wedded lady cannot refuse to hand-over her jewellery and dowry articles to her (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 16 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 in-laws.
(xi) That the trial court made observation regarding the fact that demand for construction of additional room and kitchen was there and that Rs. 47,000/- was demanded and given in the marriage in order to raise presumption of guilt U/s 4 of Dowry Prohibition Act. Such finding given by the Court was correctly given.
(xii) That a complaint in the CAW Cell was filed, after all attempts made by the complainant to settle the disputes amicably failed, therefore, there was no delay in filing the complaint.
(xiii) That the trial court did not consider that the accused persons adopted all tactics to delay the decision in this case and it did not consider the issue related to continuous demand of Rs. 75,000/- and VCR, after marriage of the complainant. The accused persons on refusal to fulfill such demand imposed physical and mental cruelties upon the complainant, which constituted offence U/s 498- A IPC.
(xiv) Ld. counsel for complainant argued that this was a matrimonial dispute and first of all attempt was made to reconcile the dispute. When such attempts were not successful, then only as last option complaint was filed before CAW Cell. Accused Arun had caused grievous injury to the complainant, even in presence of police in CAW Cell, therefore, presumption could be raised that even at house he could beat complainant. Accused Arun was convicted under Section 325 IPC and conviction was converted by Sessions Court under Section 335 IPC. He further argued that PW- 3, PW-4 and PW-6 corroborated the allegations made by PW-1. Accused persons did not give the articles as per their own list furnished to CAW Cell. Hence Section 406 IPC was well established on the record. Ld. MM did not discuss the demand of (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 17 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Rs.75,000/- and since cross-examination of complainant/PW-1 continued for 4 years, hence, some discrepancy was natural to take place. Still, there were cogent evidence of demand, cruelty, beatings and breach of trust to convict the accused persons under Section 498-A/406 IPC.
7. Complainant Vrishti Jain has relied upon the following judgments :-
(i) The case titled as Narwinder Singh Vs. State of Punjab, 2011 (1) JCC 334, wherein Supreme Court has held as under :-
"Mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record."
(ii) The case titled as Dinesh Seth Vs. State of NCT of Delhi, 2008 (4) JCC 2317, wherein Supreme Court has held as under :-
"There may be discrepancy on the issue of demand of dowry but the beating given to deceased and harassment to which she was subjected had direct bearing on her committing suicide. Therefore, there was no error in convicting the appellant under Section 498-A."
(iii) The case titled as Sudhir Kumar Jain & Ors. Vs. State, 1994 JCC 437, wherein the Hon'ble High Court of Delhi has held as under:-
"Evidence collected establishes prima facie that the complainant was subjected to cruelty by the husband and the other petitioners causing grave injury to her mental health and she was subjected to harassment to coerce her and her relatives to meet unlawful demand for property. Her letters and statements unfold a pathetic story of cruelty falling within four corners of Section 498-A. It was held that the Magistrate cannot be faulted for framing the charges."
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 18 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14
(iv) The case titled as Rammi @ Rameshwar Vs. State of Madhya Pradesh, 1999 (4) RCR (Criminal) 246, wherein Supreme Court has held as under :-
"When an eye-witness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant."
(v) The case titled as Surinder Singh Vs. State of Haryana, 2014 Crl. L. J. 561, wherein Supreme Court of India has held as under:-
"Evidence showing that accused was unhappy over dowry received and deceased was ill treated all throughout her short married life. Cruelty on any day would be cruelty "Soon before" her death."
"Evidence that accused was unhappy over quantity and quality of dowry received. Words 'insufficient and inferior' indicate that transaction of giving dowry was not complete. Demand of money made after marriage was therefore to complete transaction of dowry. Demand made even though was for business had connection with marriage and therefore constitutes dowry."
(vi) The Crl. M. No. 9052/2007 and W.P. (Crl.) 1045/2007 decided on 13.08.2007, wherein Hon'ble High Court of Delhi has held as under :-
"I consider that CAW Cell has no power to investigate the crime. It is not a police station where FIRs are registered. Investigation in any crime can be done only after registration of FIR. CAW Cell only makes reconciliatory efforts between the parties that also up to the stage of pre-registration of FIR."
Plea and arguments of accused persons :-
8. The accused persons namely Arun Kumar Jain and Sushma Jain (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 19 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 have challenged the impugned judgment in respect of its part, vide which, they were convicted for offence U/s 4 of the Dowry Prohibition Act on the following grounds :-
(i) That the trial court erred in law by holding that offence U/s 4 of Dowry Prohibition Act is an offence of lesser degree, than the offence U/s 498-A IPC, because there is nothing in law to suggest that these two offences cognate with each other.
(ii) That the ingredients of Section 498-A IPC are totally different from the ingredients of Section 4 of Dowry Prohibition Act and ingredients of Section 4 of Dowry Prohibition Act do not constitute to be a minor offence. No charge was framed for offence U/s 4 of the Dowry Prohibition Act and the accused persons were taken by surprise for being convicted under such section.
(iii) That the evidence of the prosecution did not prove the offence U/s 4 of the Dowry Prohibition Act because the observation of trial court regarding Rs.47,000/- alleged to have been demanded by the accused persons, is contrary to the evidence of the prosecution, which has not proved it beyond reasonable doubts.
(iv) That the trial court convicted the appellants mere on the basis of submissions of ld. APP, without having sufficient material on the record.
(v) That the trial court did not consider that in the statement U/s 313 Cr.P.C., no question was put to the accused persons regarding alleged demand of Rs. 47,000/- or any alleged dowry demand and therefore, they could not have been convicted on the basis of such circumstances.
(vi) That the trial court on one hand, rejected the reliability of Ex.PW1/A but on the same hand, based conviction U/s 4 of the Dowry Prohibition Act on the same, which is contrary to the norms (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 20 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 of criminal jurisprudence.
(vii) That the trial court did not consider and appreciate the delay in lodging the complaint Ex.PW1/A, which was lodged after about 10 months and was a creature of an after-thought.
(viii) That the trial court relied upon the suggestions given by ld. Counsel for the accused to PWs to conclude that there was an admission by the defence to have received Rs. 47,000/-, which is contrary to law. The suggestions given to any witness could not have been presumed to be an admission of the accused persons.
(ix) That the trial court imposed severe sentence upon the accused persons despite there being special circumstances, that around 20 years had passed since the alleged incident.
(x) Ld. defence counsel argued that there was 10 month's delay in filing complaint before CAW Cell. He further argued that how complainant/PW-1 was believed for Dowry Act, if not believed for 498-A/406 IPC. Her evidence in respect of demand and payment of Rs.47,000/- is hearsay only. The judgment is silent that when accused demanded Rs.47,000/- and admission of accused was found by the trial court from a suggestion, though court stated that accused did not admit it as dowry. He further argued that evidence of demand of Rs.47,000/- was not put in statement under Section 313 Cr.P.C, therefore, the trial court could not have concluded that such demand was ever made by accused. Ingredients of Section 406 IPC were not satisfied in this case, as prosecution failed to answer that which article was entrusted to whom and when. No date of last entrustment was disclosed by PW-1. He further argued that Section 4 of Dowry Act makes out a distinct offence and it is not a minor offence, if compared to 498-A IPC, as Section 4 relates to dowry in connection with marriage and Section 498-A refers to (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 21 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 harassment for unlawful demand. Furthermore, punishment under Section 498-A IPC may extend upto 3 years, while Section 4 of the Dowry Act prescribes a minimum sentence for 6 months. Moreover, Section 8-A of this Act puts onus on accused persons, but no opportunity to discharge that onus was provided to the accused persons.
9. Accused persons have relied upon the following case laws :-
(i)The case titled as Appasaheb & Anr. vs. State of Maharashtra, 2007 (1) Crimes 110 (SC), wherein Supreme Court has held as under :-
"9. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning.
A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 22 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. Demand for dowry is not established the conviction of the appellants cannot be sustained."
(ii) The case titled as Vinita & Anr. vs. State N.C.T. Of Delhi, 2012 (1) JCC 340, wherein Hon'ble High Court of Delhi has held as under :-
"93. If it is to be presumed that money was demanded by the appellants for the construction of one portion on the terrace of the house, then that demand for money on account of some financial stringencies or meeting some urgent domestic manure cannot be termed as demand of dowry, as is decided in Appasaheb & Anr. (supra).
94. The Trial Court has not considered the facts which were in favour of the appellants and has convicted the appellants only on the evidence led by prosecution against them. Any evidence which is in favour of the accused has equal weight and Court has to weigh evidences from both sides before reaching to any particular conclusion.
95. In the present case, both the families had attended, as discussed above, as many as 12 festivals. Had there been any harassment or cruelty being committed by the appellants, there would have no such type of cordial relations between both the families."
(iii) The case titled as Sujit Biswas vs. State of Assam, V (2013) SLT 493, wherein Supreme Court has held as under :-
"12. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313, Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 23 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 with him, and the Court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the Court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence withing the meaning of Section 3 of the Evidence Act, as the accused cannot be cross- examined with reference to such statement.
13. This Court held, that any circumstance in respect of which an accused has not been examined under Section 342 of the Code of Criminal Procedure, 1898 (corresponding to Section 313, Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in catena of judgments of this Court uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him."
(iv) The case titled as State of Andhra Pradesh Vs. M. Madhusudhan Rao, 2008 (4) Crimes 350 (SC), wherein Supreme Court of India has held as under :-
"18. Having gone through the depositions of PW-1 and PW-3, to which our attention was invited by learned counsel for the State, we are convinced that in the light of the overall evidence, analysed by the High Court, the order of acquittal of the respondent is well merited and does not call for interference, particularly when the First Information Report was lodged by the complainant more than one month after the alleged incident of forcible poisoning. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report more often than (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 24 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained.
(v) The case titled as Sakariya Vs. State of M.P., 1991 Crl. L. J.
1925, wherein Hon'ble High Court of Madhya Pradesh has held as under :-
"14. Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross- examination as has been erroneously done by the learned Judge of the trial court in the instant case. The proof of guilt required of the prosecution does not depend on the suggestion thrown to a witness.
15. On the basis of mere suggestion about consent thrown to the prosecutrix, the learned Judge of the trial Court has virtually dispensed with proof of offence of rape. An accused, as has been discussed above, is not bound by such a situation or implied admission made by the counsel."
FINDINGS
10. I have already recorded a gist of relevant testimony of all the (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 25 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 witnesses as given in their examination-in-chief. Now I shall evaluate the evidence of prosecution in respect of each offence, by making reference to their testimonies in cross-examination and on the basis of comparison of their over all testimony with each other.
11. Section 498-A IPC says that whoever being husband or relative of husband of a woman, subjects such woman to cruelty shall be punished. For the purpose of this Section, 'Cruelty' means any willfully conduct, which is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health. 'Cruelty' also means harassment of a woman, if it is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure to satisfy such demand. In the present case, three demands have been alleged to be made by accused persons. As per allegations, the first demand was for Rs.47,000/- for the purpose of construction of a room and a kitchen in the house of the accused persons. The second alleged demand was for a Godrej furniture and in lieu of the same a gold bangle. The third alleged demand was raised after marriage for additional amount of Rs.75,000/- and VCR. The accused persons have denied having made such demand, therefore, it is to be seen whether the prosecution has proved the factum of making such demand by the accused persons. In respect of such allegations the star witnesses of the prosecution are PW-1, PW-3, PW-5 and PW-6.
12. PW-1 alleged that such demand of Rs.47,000/- and Godrej furniture was made by accused persons. However, she herself admitted that such demands were not made in her presence. Therefore, it goes without any further saying that these allegations made by PW-1 regarding aforesaid two demands are based on (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 26 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 hearsay evidence. PW-3, PW-5, PW-6 claimed that such demand was made in their presence. However, from the comparison of relevant part of testimony of these three witnesses, one can find that their statements are not consistent with each other. PW-3 deposed that his father-in-law had given a cash of Rs.47,000/- to accused Arun Jain and his father, in his presence in a separate room, where other guest were not present. In his cross- examination, he deposed that he had gone to a room in a building and the arrangement for food etc. was done at a distance of around 200 meters from that room. He further deposed that his father-in- law had taken some more money from his relative and for this purpose, he had gone out of the room and he again came back with the money and paid it to accused Arun and his father. However, he could not tell that who else were present there at that time. He could not tell the name of such relatives, from whom the money was taken by his father-in-law. Later on, he deposed that he had told police that transaction of Rs.47,000/- had taken place in a separate room, in which there were accused Arun and his father on one side and this witness along with his father-in-law on the other side. Though, it was found that no such statement was given to the police.
13. On the other hand, PW-5 deposed that at the time of negotiations of the marriage, Sh. M.P. Jain, accused Sushma Jain, Arun Jain, Jagdish Jain and himself were present. During those talks, Arun had told them that they did not have sufficient room at his house and he suggested that they should give cash to him for making a kitchen and a room before marriage. He further deposed that it was settled that the girl side would give Rs.51,000/- in cash for construction of room and kitchen. However, PW-6 did not depose (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 27 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 anything about such talk of negotiation for marriage and a demand being made by accused persons during such talk. She also did not say anything about settled amount of Rs.51,000/-. In fact PW-1, who had made complaints regarding alleged demand of cash for construction of room and kitchen on the basis of information given to her by her parents, did not say about a settlement for Rs.51,000/- for the purpose of construction of a room and a kitchen. PW-3 is also silent in respect of such settled amount.
14. Furthermore, PW-5 also claimed to be present at the time of handing over Rs.47,000/-. But he stated that on that day they had visited the house of accused persons, where such amount was paid. On the other hand, PW-3 claimed that such amount was delivered at the venue of 'Sagai', in a separate room, which was 200 meters away from the arrangements for food etc. Had this place been house of the accused persons, then nothing prevented PW-3 to say that such amount was delivered at the house of accused persons. It has been stated by PW-1 that venue of 'sagai' was some neutral place.
15. Furthermore, PW-3 did not mention the presence of PW-5 at that moment. PW-6 did not give any detailed account in her examination-in-chief, regarding the manner of payment of such amount to accused Arun and his father. In her cross-examination, though she deposed that amount of Rs.47,000/- was paid in her presence by her husband to father of accused Arun and at that time accused Sushma, Arun, father and mother of accused Arun besides this witness and her husband were present. She further deposed that no other relative was present there and all persons were out side the room. PW-3 and PW-5 did not refer to presence of PW-6 at the time of delivery of Rs.47,000/- and most importantly (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 28 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 as claimed by PW-5 that father of complainant (Jagdish Jain) came out of the room and took Rs.6,000/- from Sh. Prem Chand Jain, is not supported by PW-7 Sh. Prem Chand Jain. Therefore, the delivery of such Rs.47,000/- to accused Arun and his father is not consistently deposed by those witnesses, who claimed to be present there at that moment. Hence, I find that this fact is not proved beyond doubts. Furthermore, as far as the allegations that it was so demanded by the accused persons, is concerned, I find some inconsistency regarding such allegations in the three written complaints given by PW-1 on different dates. The first complaint is Ex.PW-1/A dated 11.10.1993, the second complaint/statement is Ex.PW-1/D dated 21.01.1994 and the third complaint/statement is Ex.PW-1/C dated 22.03.1994.
16. In the first complaint, she alleged that accused asked her father that they should give maximum cash in Sagai, because accused Arun was anguish to construct an extra room and kitchen and on this pretext accused persons extracted Rs. 47,000/- in cash. In Ex.PW-1/C, she alleged that Rs.47,000/- was given to accused persons for such purpose and on such "terms" that before marriage they would get constructed a room and a kitchen for complainant. I find a complete turn around of the tone of allegations in these two complaints and the third complaint given on 21.01.1994 Ex.PW-1/D is also on the same lines as that of Ex.PW-1/A. These three complaints also create an alternative impression to the effect that even if there was some talk of construction of a room and a kitchen, then there was no demand as such which was against the wishes of the complainant side or was made compulsory for complainant's family. Probably it was an arrangement out of mutual discussion that an additional room and a kitchen be constructed (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 29 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 before marriage. Such arrangement could have been there for obvious reason that there were only two rooms in the matrimonial house of the complainant and it could have been a matter of concern even for the family of complainant that there were no sufficient space at her matrimonial house. Therefore, any financial gift or assistance, if agreed between the parties and given by the complainant side cannot be brought into the ambit of mischief explained under Section 498-A IPC for two reasons. Firstly, such arrangement if any, had taken place before marriage and could not be reason for harassment of the complainant. Secondly, such arrangement cannot be termed to be a demand in literal sense.
17. Section 498-A IPC talks about cruelty and, therefore, in other kind of arrangement between the parties regarding financial assistance cannot be covered therein and, therefore, I do find that the judgment referred by accused persons as passed in Appasaheb and Vinita (supra) make a distinction between a demand for money on account of some financial need or for making some urgent domestic purpose from the demand of dowry.
18. The allegations made by PW-1 regarding demand of a VCR and Rs.75,000/- in cash for construction of a room and kitchen, is once again found to be not so convincingly established on the record. First of all, PW-1 has not deposed that on what particular dates or occasions such demands were being repeatedly made by the accused persons. Most importantly, PW-3, PW-5 and PW-6 were not present at the time of such demand being made. According to PW-1, she used to tell PW-3 and others about the harassment caused to her, but none of these witnesses have deposed about any particular instance, when they had meeting with the family of accused Arun to discus about such alleged demand of Rs.75,000/-
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 30 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 and a VCR. Had there been any demand from the side of accused persons, followed by harassment of the complainant/PW-1 on this account, then as per natural course of action, the family members of PW-1 must would have held meeting with the family members of accused Arun to discuss the problem and to sort out this problem. PW-3 and PW-5 have deposed that they arranged the meeting to sort out the differences between the complainant and Arun, but they have not referred to any such meeting to sort out the alleged demand of Rs.75,000/- and VCR. Hence, I do not find this allegation to be proved beyond doubt.
19. Similarly, the alleged demand for a Godrej furniture is not shown to be a reason for any harassment of the complainant nor is it convincingly shown to be a kind of aggressive demand from the side of accused persons. As deposed by PW-5, accused Sushma suggested that they should give a pair of gold bangle to the complainant in lieu of furniture. Similar is the testimony of PW-1 and PW-6 in this regard, which again reflect that it would not have been a kind of aggressive demand, rather it could have been at the most, a kind of mutual arrangement in respect of the articles to be given by girl side to the complainant on the occasion of this marriage. One cannot be oblivious of the fact that in a marriage, the family of bride do give jeweleries and articles out of their own wish and sweet will, and it is not improbable to have discussion with groom side, to discuss the articles to be given, in order to suit the requirement of the couple to the most.
20. Therefore, I find that the allegations that PW-1 was being harassed in connection with demand for any article is not proved beyond doubt.
21. As far as the allegations of cruel acts as alleged by PW-1 are (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 31 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 concerned, I find that the same are also not very convincing. I start with the alleged incidence of 09.01.1993, when allegedly accused Sushma and Saubhagyawati threatened to PW-1 to burn her. PW-1 has deposed in her cross-examination that she used to tell PW-3 about the treatment given to her. In fact it would have been natural course of action for PW-1 to tell all of her family members about such threats to her life. But from the evidence of PW-3, PW-5 and PW-6, I do not find any kind of alarm being caused to them, if they had received such information from PW-1. In such circumstances, they could not have let such allegations go by in casual manner, rather they must would have acted with all urgency to take up this matter with family members of accused Arun to either sort it out or or they would have made complaint to police. But, none of them have deposed about any such action taken by them.
22. Similarly, the allegations regarding attempt made by accused Sushma, Saubhagyawati and Arun in the presence of Sh. M.P. Jain to catch hold of PW-1 and to throw her on bed with threats to burn her and eliminate her, is not very convincing. First of all, if such incident would have taken place then PW-1 herself would have acted further to inform her family members at least, if not to the police. Secondly, if such incident had taken place, wherein PW-1 had allegedly bitten the hands of accused Arun to free herself, she would not have talking terms with any of them so as to demand a medicine from accused Arun on same night, to cure her problem of headache. This was not such a light kind of incident, which could have been shrugged of so easily by PW-1. Therefore, there was no possibility to ask for medicine from accused Arun. The explanation given by PW-1 that on that evening, accused Arun took her out in order to patch up and to tell her not to make complaint to any one, (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 32 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 is not convincing. On the same day, PW-1 alleged that the pet dog was instigated to attack on her and she could free herself with great efforts. However, it is tendency of a pet dog that whoever feeds him, he does not attack on that person. Rather he remains friendly to him or her and regards that person as his master. He obeys that person, who feeds him. In this case, PW-1 herself has deposed that she was given task to cook for this pet dog and to feed him and that she used to feed him. Therefore, it is least probable that such pet dog would have attacked on her. For such reasons, I find the allegations regarding incident of 17.01.1993 and the incident of 18.01.1993, to be more artificial in nature, rather than being realistic.
23. Thus, I find that the alleged incident of cruelty as deposed by PW-1 are not at all convincing and proved beyond doubt. In these circumstances, the trial court was justified to conclude that offence under Section 498-A IPC is not proved against any accused persons.
Section 406 IPC
24.Section 405 IPC requires that a property or dominion over property is entrusted to other person and that person dishonestly misappropriate or converts that property for his own use. Therefore, first of all it has to be seen that whether there was any entrustment of any property of complainant/PW-1. PW-1 has proved her list of 'stridhan' as Ex.PW-1/B. The trial court did not believe such list of 'stridhan', on the basis of the fact that during cross-examination, PW-1 admitted that another list Ex.PW-1/DY was also sent by her counsel on her behalf. I do find that description of Rs.47,000/- as mentioned in admitted list Ex.PW- 1/DY is much different from Ex.PW-1/B. However, the core (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 33 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 question remains that any such property was entrusted to the accused persons or not. Before the Court, PW-1 deposed that she had handed over major part of her jeweleries to her mother-in-law. Besides mother-in-law, she has not deposed about any other accused as to whom she had entrusted any of jeweleries or other property. There is no element of entrustment, which is made out from the testimony of PW-1. The jeweleries which were allegedly given to mother-in-law, were readily available to her whenever she required the same. She admitted visiting a number of persons along with accused Arun. She admitted having attended some functions and other occasions at other places using her articles and, therefore, it cannot be said that the possession of her jeweleries were beyond her reach. This conclusion of mine is further fortified with the testimony of PW-1 in her cross- examination. In her cross-examination, PW-1 deposed that there were boxes containing goods of her parents-in-law as well as his sister-in-law, which used to be kept in her room. PW-1 did not state that such boxes were kept in locked condition. She further said that her own boxes also remained in her room, which were also not locked. In these circumstances, it is difficult to assume that any of her articles could have been in exclusive dominion of any other person, barring her possession. She alleged in her complaint Ex.PW-1/A regarding entrustment of different parts of her jeweleries to accused Arun, accused Sushma and accused Saubhagyawati. This complaint shows that her jeweleries were allegedly divided into three parts and one part each was entrusted to these three accused persons. I am unable to understand any logic behind this division and entrustment if any, to three different persons. PW-1 has not explained any such reason for alleged (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 34 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 entrustment to three different accused persons. To me, it makes no sense to entrust Silver Pajeb, Bichchua or Mangalsutra to accused Arun. PW-1 has not helped the Court to understand any logic behind such divided entrustment. It appears to be more likely that out of vengeance such allegations of entrustment were artificially alleged against the accused persons. When there was no entrustment, there could not be any breach of trust. Therefore, even if it is assumed that the complainant did not take along her articles to her parents' house, the accused persons would not be guilty of offence under Section 406 IPC. It would be a different scenario that the goods would be lying at the matrimonial house of PW-1 and she deserves return of those articles. But that situation cannot invite an assumption of guilt under Section 406 IPC. Rather testimony of PW-8 shows that complainant and her father themselves were reluctant and casual in their approach, to visit the house of accused persons with police officials to recover those articles. In that situation, it is difficult to assume even the correctness of allegation regarding demand made by complainant and denial on the part of accused persons.
25.On the basis, of my aforesaid findings and observations, I find that the trial court was justified in concluding that accused persons are not guilty under Section 406 IPC.
SECTION 4 OF DOWRY PROHIBITION ACT
26. Section 4 of Dowry Prohibition Act provides for penalty if any person demands directly or indirectly from the parents or other relatives or guardian of a bride any dowry. The term dowry has been defined in Section 2 of this Act and the same has been explained by Supreme Court in S. Gopal Reddy Vs. State of Andhra Pradesh, AIR 1996 SC 2184 in following terms "property (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 35 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 or valuable security so as to constitute dowry withing the meaning of the Act must, therefore, be given or demanded as consideration for the marriage."
27. Therefore, the term 'consideration' assumes importance because if any article is not given as a consideration for a marriage, then it would not be covered with definition of dowry. In the present case, the trial court convicted accused persons under Section 4 of the Act, on the basis of observations that the amount of Rs.47,000/- is proved to have been demanded by the accused and paid by the father of the complainant. The trial court referred to a suggestion given by ld. Counsel for accused to PW-1 that the amount of Rs.47,000/- was a Sagun given on the occasion of Sagai and the Court implied that this amount was admitted by the defence to have been paid to the accused. The trial court also noted down that it was not admitted as dowry, but it observed that this amount was demanded on the pretext of constructing a room and a kitchen. Two questions arise before this Court regarding aforesaid observations and conclusion of the trial court. The first question is that whether there is any admission on the part of accused persons that they had demanded Rs.47,000/- as dowry. The simple answer is no. Just because a suggestion is given on behalf of the accused, and suggestion is denied by the witness, it cannot be said that the suggestion given by accused is in the form of admission of the accused. The judgment in Sarkaria case (supra) also leaves no doubt in respect of this position of law.
28. Further more, I find that there is no correct appreciation of evidence to assume that it was so demanded by the accused persons. In my foregoing discussion, I have already observed that no demand is established regarding Rs.47,000/- or the other alleged demands.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 36 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Therefore, I find that such conclusion of trial court is erroneous.
29. The second question involved is that even if such demand would have been found established, then could the trial court convict the accused persons? The trial court has not discussed that how it found the offence under Section 4 of this Act to be a minor offence vis a vis offence under Section 498-A IPC. Section 498-A IPC, has maximum punishment for three years with fine. On the other hand, under Section 4 of this Act. The maximum punishment is for 2 years with fine, but with further rider that the minimum punishment would be at least 6 months. This rider of having minimum punishment of 6 months, makes this offence distinct from the offence under Section 498-A IPC. Though, ambit of Section 498-A IPC is wider than Section 4 of this Act. The minimum punishment provided for Section 4 makes it more stringent from Section 498-A IPC, irrespective of the maximum punishment provided for these offences. Therefore, it cannot be said to be a minor offence in comparison to Section 498-A IPC. Furthermore, Section 464 (1) Cr.P.C says that no finding shall be deemed invalid merely on the ground that no charge was framed, unless a failure of justice has in fact been occasioned thereby. In respect of offence under Section 4 of this Act, an onus is cast upon the accused persons vide Section 8-A to prove that they had not committed any offence under this Act, which means that if accused is aware of such charges leveled against him, he would lead his own evidence to satisfy the Court that the charges are baseless. In the present case, no charges were framed against accused persons and the charges of 498- A/406 IPC did not require them mandatorly to bring their own evidence. They had right to say that it was for the prosecution to prove the case beyond doubt and even if an opportunity was (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 37 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 granted to lead evidence, they were entitled to take it lightly, keeping in view the onus cast upon the prosecution. In the present case, they were certainly not aware of any charges under Section 4 of this Act, because no such charge was framed and, therefore, for them there was no occasion to be conscious of the onus cast upon them to bring their own evidence to discharge this onus. Therefore, I do find that the accused persons were not given the opportunity to discharge such onus, in order to show their innocence and hence, it was a case of failure of justice. Furthermore, from the statement recorded U/s 313 C.r.P.C., I do find that no such question was put to the accused persons alleging that they had demanded Rs. 47,000/-. When the demand for Rs. 47,000/- was not put as incriminating evidence appearing against the accused persons, then the trial court could not have based the order of conviction on the basis of a conclusion that there was demand of Rs. 47,000/-. If the demand for Rs. 47,000/- was not to be considered against the accused persons, then the ingredient of Section 4 of the Act could not have been found satisfied. Thus, on the basis of reasons mentioned herein-above, I find that conviction of both accused persons for offence under Section 4 of Dowry Prohibition Act is not sustainable and hence, such conviction is liable to be set aside.
30. In view of my aforesaid findings and observations, criminal appeal no.25/14 preferred by accused Arun Jain and Sushma Jain is hereby allowed and the conviction of these two accused persons under Section 4 of Dowry Prohibition Act is set aside. Appeal bearing no. 26/14 preferred by complainant Ms. Vrishti Jain is dismissed and acquittal of the accused persons under Section 498- A/406/34 IPC is sustained.
31. File of both appeals be consigned to record room, as per rules.
(Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 38 of 39 Karkardooma Courts, Delhi Criminal Appeal No. 25/14 & 26/14 Copy of this judgment be placed in both the files.
32. TCR be sent back along with copy of this judgment, to the concerned Court through ld. CMM (Shahdara) Karkardooma Courts, Delhi.
Announced in the open court (Pulastya Pramachala) today i.e 09.05.2014. Additional Sessions Judge Shahdara, Karkardooma Court, Delhi (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Page 39 of 39 Karkardooma Courts, Delhi