Delhi District Court
State vs . Ramesh Sharma on 26 March, 2018
IN THE COURT OF MS. SALONI SINGH, METROPOLITAN
MAGISTRATE02, MAHILA COURT, SAKET COURTS, SOUTH
DISTRICT, NEW DELHI
FIR No: 066/2002
Under Sections: 498A/406/174A/34 Indian Penal Code, 1860.
Police Station: Sangam Vihar
CNR No: DLST020143622017
State
v.
1.Mr. Ramesh Sharma, Aged 38 years, S/o, Sh. Rati Ram, R/o, Village Fatehpur, Tehsil Ballabh Garh, District Faridabad, Haryana.
2. Mr. Rati Ram, R/o, Village Fatehpur, Tehsil Ballabh Garh, District Faridabad, Haryana.
3. Smt. Radha Sharma, W/o, Sh. Rati Ram, R/o, Village Fatehpur, Tehsil Ballabh Garh, District Faridabad, Haryana. ...Accused persons Date of Reserving order : 19.09.2003 Date of Judgment : 26.03.2018 Final Order : Acquittal Judgment:
1. The accused Mr. Ramesh Sharma was sent to stand trial under Sections 498 CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 1/22 A/406 of the Indian Penal Code, 1872 (for short, "IPC") and the suspects, Mr. Rati Ram and Ms. Radha, were kept in column no. 2 of the charge sheet in respect of the first information report (FIR) dated 30/12/2002, bearing no. 666/02, Police Station (P.S.) Sangam Vihar. The accused Ramesh Sharma was produced in custody and was admitted to bail on 19/09/2003 by executing a personal bond in the sum of Rs. 25,000/ (Rupees Twenty Five Thousand Only) with surety of like amount. The copy of the charge sheet was supplied to the accused in compliance with Section 207 of the Code of Criminal Procedure, 1973 (for short, "CrPC"). On perusal of the charge sheet and after hearing the submissions, charge under Sections 498A/406 of IPC were framed against the accused on 31/10/2003, to which accused pleaded not guilty and claimed trial. The complainant was summoned for prosecution evidence. The accused stopped appearing before the Court after 14/09/2005 and to compel his appearance, firstly nonbailable warrants were issued against him, which were returned unexecuted and, thereafter, process under Sections 82/83 of CrPC was issued against the accused. This process had to be issued twice against him in the present case and on its execution vide order dated 10/12/2013, the accused was declared an absconder and the file was consigned to the record room.
2. The accused was arrested again on 21/05/2017 and produced before the Court on 22/05/2017 and he was sent to judicial custody for fourteen days. An application for bail was moved on behalf of the accused and vide order dated 25/05/2017, he was admitted to bail on furnishing personal bond in the sum of Rs. 10,000/ (Rupees Ten Thousand Only) with two sureties of like amount. A supplementary charge sheet was filed by the Investigating Officer CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 2/22 (I.O.) on 21/08/2017, wherein both the accused Rati Ram and Radha were placed in column no. 11 and because of their old age, they were bound down by the I.O. to appear before this Court.
3. Based on the material on record, on taking cognizance under Section 190(1)
(b) of CrPC with respect to offence under Sections 498A/406/34 of IPC and Section 174A of IPC, the accused Rati Ram and Radha and the accused Ramesh respectively were summoned. The accused Ramesh also accepted the notice on behalf of accused Rati Ram and Radha and copy of the charge sheet was supplied to him on their behalf. At the request of the accused Ramesh, he was provided free legal aid for himself and the accused Rati Ram and Radha. All the three accused were represented by the same Legal Aid Counsel (LAC) and submissions on point of charge were made on their behalf.
4. Having considered the charge sheet and having heard the submissions made, charge under Section 498A of IPC were framed against both the accused Rati Ram and Radha and charge under Section 406 of IPC was framed against the accused Radha. The accused Ramesh Sharma was also charged under Section 174A of IPC. At the same time, an application for exemption from personal appearance on behalf of accused Rati Ram and Radha was filed claiming that the said accused persons were very aged and were suffering from various ailments. The said accused persons were exempted through the Learned LAC subject to the condition that they would not dispute their identity, that they would be represented by their Counsel on all dates of hearing and that they would be present in Court as and when directed to do so. The accused Ramesh and the accused Rati Ram and Radha (through their Counsel) pleaded not guilty and claimed trial. To prove their case, the CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 3/22 prosecution examined the following witnesses: i. The complainant as PW1;
ii. The brother of the complainant, Mr. Harish Chand as PW2; iii. Head Constable (HC) Sarvan as PW3;
iv. SubInspector (S.I) Satbir Singh as PW4;
v. Inspector/I.O Sanjeev Dhodi as PW5;
vi. S.I/I.O Vivek Singh as PW6;
vii.Constable (Ct.) Pawan Kumar as PW7; and viii. Assistant SubInspector (ASI) Bijender as PW8.
5. The following documents were relied upon and placed on record by the prosecution: i. List of dowry articles, Exhibit PW1/A;
ii. Complaint/Statement of complainant dated 08.11.2002, Exhibit PW1/B; iii. Complaint dated 27.09.2002, Exhibit PW1/C;
iv. Seizure memo, Exhibit PW1/D;
v. Arrest memo, Exhibit PW3/A;
vi. Personal search memo, Exhibit PW4/B;
vii.Notice under Section 41A of CrPC, Exhibit PW6/A;
viii. Pabandinama of accused Rati Ram and Radha, Exhibit PW6/A and Exhibit PW6/B; and ix. Kalandara, Exhibit PW7/A. CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 4/22
6. On completion of prosecution evidence, the statement of the accused persons was recorded under Section 313 of CrPC, wherein all the incriminating evidence was put to them. With respect to the accused Rati Ram and Radha, their written statement was filed in compliance with the said Section 313 of CrPC. The accused persons did not lead any defence. Final arguments were advanced on behalf of both parties. Learned LAC for the accused submitted that there are several discrepancies in the testimony of the complainant in terms of the number of the days she had resided in her matrimonial house and the period for which she had returned to her parental house. He further argued that the complainant had not filed any medical documents or complaints stated to have been made by her to show that she had been beaten by all the accused persons and had sustained injuries as a result thereof. Learned LAC submitted that the brother of the complainant, Mr. Shiv Kumar, has not been cited as a witness and the testimony of the complainant is not corroborated or supported by the testimony of PW2. He further submitted that there is also no statement of the sisterinlaw of the complainant, which the complainant claims was recorded by the police when the police was called by her/ her sisterinlaw from the parental house. It has been argued and submitted that prosecution has failed to establish their case and the accused persons are entitled to benefit of doubt. Learned Assistant Public Prosecutor (APP) for the State has submitted that the testimony of PW1 is consistent and that all charges framed against all the accused have been proved by the prosecution.
7. The submissions have been heard and court record perused. The following legal points arise for determination: i. Whether the accused Ramesh, Rati Ram and Radha subjected the CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 5/22 complainant to cruelty by such willful conduct so as to cause grave injury or danger to the life, limb or health (mental/physical) to the complainant and harassed her with a view to coerce her and her relatives to meet their unlawful demands for dowry?
ii. Whether the accused Ramesh and Radha were entrusted with the dowry articles of the complainant including jewelry, which they dishonestly misappropriated and did not return it to the complainant? and iii. Whether the accused Ramesh failed to appear before the Court as required in the proclamation under Section 82 (2) of CrPC?
8. The 1st legal point for consideration is whether the prosecution has led evidence to prove that all the three accused persons had subjected the complainant to cruelty within the meaning of Section 498A of IPC. Cruelty has been defined in the explanation to the said section to mean, firstly, any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, or limb or health, whether physical or mental, of the woman and secondly, harassment with a view to coercing her or any person related to her to meet the unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. The case of the prosecution is that the complainant was subjected to cruelty within its meaning given both in clauses (a) and (b) of the explanation to Section 498A of IPC. To fall in clause (a) of the said explanation, the allegations of the complainant against all the accused persons need to be read as a whole to arrive at a finding of whether the conduct of the accused persons was such to CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 6/22 cause 'grave' injury or 'grave' danger to her mental or physical health.
9. In her 1st complaint dated 27/09/2002, Exhibit PW1/C, the allegations of cruelty made against the accused persons are that after a few days of her marriage, the accused Ramesh Sharma had started returning home in a drunk condition and used to beat the complainant without any reason. That the complainant returned to her parental house from where the family of the complainant, after making her understand, sent her back with the accused Ramesh to the matrimonial house. The accused Ramesh continued to drink alcohol and beat the complainant. That the accused Ramesh had demanded that the complainant ask her brothers to bring a scooter and when the complainant tried to reason with him, he had in turn beaten her. That in June 2001, the complainant again came to her parental house and again on the assurance of the accused Rati Ram and Radha that such conduct would not be repeated, the family of the complainant sent her back to her matrimonial house. That there was no change in the behaviour of the accused persons. The accused Ramesh had stopped going to work despite insistence by the complainant. For a few days the accused Ramesh went to work and took advance from people/customers and did not finish their work for which these people had beaten the accused. The accused Ramesh used the advanced money to buy liquor. All the three accused persons continued to beat the complainant and demanded that she should bring Rs. 20,000/ (Rupees Twenty Thousand Only), to which the complainant objected stating that her brothers did not have the means to give this money because of which the complainant was beaten by all the accused persons. Thereafter, all the three accused persons started selling the dowry articles. That the accused Radha kept the gold and silver jewelry with herself on the pretext of safe keeping CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 7/22 and when the complainant requested the accused Radha for jewelry and clothes to wear in the marriage of her brother, the accused Radha refused to give them to her. The complainant used to do all the household work, however, the accused Radha did not let the complainant live in peace. The complainant lived with her brothers for three months and again all the accused persons came to take her and, on their assurance, the family of the complainant sent her to the matrimonial house in January 2002. All the accused persons on the day of her return itself started torturing her and taunted her saying that the brother of the complainant is engaged in work dealing with airconditioners (AC) despite which the complainant could not bring an AC. When the complainant told them that her brothers were only technicians and they could not buy and give an AC, the accused Rati Ram and Radha told the accused Ramesh to pour kerosene oil on the complainant and set her on fire as she would not bring anything. The complainant came to live with her brothers in May 2002 and when she was alone in the house, the accused Ramesh came and took her inside and after closing the door had beaten her and had forcibly taken her from there to the matrimonial house. In the matrimonial house all the three accused persons then locked the complainant and gave her beatings because of which she sustained injuries on her head, hands and legs. The accused Rati Ram and Radha told her that she had not brought anything and none of the accused persons had got her medically treated for the injuries she had sustained. The accused persons forcibly made the complainant make a call and the brother of the complainant then came. On seeing the state of the complainant, her brother had got her medically treated and that the accused persons told her brother to take her back as they did not want to keep her. That the father of the complainant had gone to the matrimonial house but the accused persons threatened him that if CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 8/22 he brought the complainant without the articles, they would kill her. In July 2002, the father of the complainant brought the complainant to Sangam Vihar and the accused persons had threatened to kill the family of the complainant.
10.The complainant has stepped into the witness box as PW1 and on 17.11.2017 deposed that her parents had gifted her presents/articles in the marriage, a list of which is Exhibit PW1/A. She has alleged that from the 2 nd day of the marriage, the accused Ramesh started beating her and after 4 to 5 days, all the accused persons had started demanding dowry from her. That initially the demand of a scooter was made by the accused persons and the accused person had also prepared documents of divorce. She further stated that she had gone back to her parental house with her brother and after a few days her husband and fatherinlaw came to take her back to the matrimonial house. That the father of the complainant was assured by the husband and fatherinlaw of the complainant that they would not harass her in future and on this assurance, the complainant was sent back to the matrimonial house. It is further alleged that as soon as she returned to her matrimonial house, all the accused persons started harassing and beating her. They used to taunt her that she had not brought anything from her parental house and that she had not brought the scooter and AC that they had demanded. It is further alleged that all the accused persons had raised the demand of Rs. 20,000/ (Rupees Twenty Thousand Only) and because the complainant was unable to meet those demands, the accused kept harassing her and beating her. Further, PW 1 has alleged that her motherinlaw had taken all her jewelry and saris and kept them with herself and did not give it to the complainant, whenever the complainant visited her parental house. It is also alleged that her husband used to drink alcohol and every night he used to harass and beat her and at CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 9/22 times he used to also tear the clothes of the complainant. It is alleged further that the accused persons had planned to kill the complainant but somehow the complainant came to know about the plan and she ran away from the matrimonial house. That the husband of the complainant and his cousin brought her back to the matrimonial house after which the complainant's movements were restricted and she was not allowed to speak to anybody. Then the complainant came to attend the marriage of her brother after which she refused to go to her matrimonial house and resided at Sangam Vihar for around eight months. During these eight months, the motherinlaw of the complainant used to visit and at times they also brought police personnel with them and had also beaten the complainant in the absence of her family members. It is alleged that because of the cruelty meted out to the complainant, her father fell sick and was unable to speak properly and he was brought to Delhi for his medical treatment. Again, husband of the complainant came to take her to the matrimonial house, however, the complainant refused to accompany them. Thereafter, in April 2002, only upon the assurance given by the cousins/relatives of husband of the complainant that she returned to her matrimonial house. The complainant was again tortured by the accused persons and on one such occasion her husband and her fatherinlaw had hit her head on the wall because of which she sustained injuries on her head. That despite trying the complainant could not contact her family members over the telephone and it was the landlord of the brother of the complainant, who had informed her brother about the incident. Then, the brother of the complainant with other family members went to the matrimonial house of the complainant and got complainant medically treated. Again the cousin of the husband of the complainant assured the brother of the complainant that if the conditions did not improve in fifteen days, she could CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 10/22 return to the parental house. The accused persons ensured that this cousin did not come to know about what was happening in the matrimonial house. That in the month of April 2002 the complainant became pregnant and in May 2002, the complainant wrote a letter to her father informing him that the accused persons had made her life hell and she was unable to live in peace. The father of the complainant came to her matrimonial house and took the complainant to Sangam Vihar and from there to their native place at Aligarh. That the complainant stayed in Sangam Vihar till the delivery of her baby. After one or two months, the accused persons came to Sangam Vihar and had beaten the complainant and the complainant had called the police, however, by the time the police arrived, the accused had run away from there. It is further stated that after 6 days of the delivery of the baby, the accused persons came to Sangam Vihar and tried to forcibly take away the baby and the police was called, who had then arrested the accused persons.
11.Besides the complainant, the prosecution has examined the brother of the complainant, Mr. Hari Chand, as PW2 to corroborate the version of the complainant that she was subjected to cruelty by the accused persons. Let's see to what extent PW2 has supported the version of PW1. As per the version of the complainant/PW1, after a few days of the marriage, her brother had come to take her from the matrimonial home to her parental home and that, thereafter, she had refused to return to her matrimonial home and had told her father about being harassed and beaten by the accused persons, however, on the assurance of the accused Ramesh and Rati Ram, her father had sent her back to the matrimonial house. The complainant has not specified which of her brothers had come to take her back. During her cross examination, PW1 has stated that after a few days of her marriage there were CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 11/22 around seven to eight persons including her three brothers, her sisterinlaw and other relatives, who had come to take her from the matrimonial house to the parental house. Mr. Hari Chand/PW2 in his deposition has stated that he had gone for the first time to the matrimonial home of the complainant after a few days of her marriage to bring her to the parental home as a customary practice (livane). It cannot be said as to whether other family members had come to take her back to the parental home or not. However, it does not seem to be disputed that PW1, after a few days of her marriage, had gone to her parental home with her brother.
12.The question is whether any of the family members of the complainant (particularly PW2) had witnessed the conduct of the accused persons towards the complainant or whether the accused Ramesh and his family had ever raised demand(s) of scooter, AC and cash of Rs. 20,000/ (Rupees Twenty Thousand Only) in her presence from them (PW2) or whether the complainant had told any of her family members (PW2) about the accused persons. PW1 has stated that she had told her father about being harassed by the accused persons and then only on the assurance of the accused Ramesh and accused Rati Ram given to the father of the complainant that they would not harass her in future, the complainant was sent back to her matrimonial home. The name of the father of the complainant has not been cited as a witness in the list of prosecution witnesses to support the case of PW1, however, it is noted that the father of the complainant has already expired. PW2 has stated in his examinationinchief that at this time, he had come to know that the accused persons had demanded a scooter from his sister and used to beat her to meet their illegal demands. PW1 has stated that sometimes she used to call her brother to her matrimonial house, where the CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 12/22 accused persons used to create an unnecessary scene in front of him. Which of her brothers, she used to call to come to her matrimonial house has not been specified by her. During his crossexamination, PW2 has stated that he had gone to the matrimonial home of the complainant only once or twice and that his sister had not told him about the accused persons harassing/beating her and he had been told about it by his parents.
13.Next PW1 has alleged that after she returned to her matrimonial house, the accused persons had continued to torture her and has further alleged, for the first time in her examinationinchief, that all the accused persons had planned to kill her, however, she had come to know about their plan and had run away from her matrimonial home. She has further stated that accused had brought her back to her matrimonial home after which they had restricted her movements and did not allow her to talk to anybody else. Where had she run away to and from which place the accused persons had brought her back has not been specified by her. She has also not specified as to how she had come to know that the accused persons had planned to kill her. The said allegations do not find mention in her complaint, Exhibit PW1/C.
14.PW1 has further stated that she had come to her parental home to attend the marriage of her brother, Mr. Shiv Kumar, and after that she had refused to return to her matrimonial house and stayed there in Sangam Vihar for eight months, during which period the accused persons used to visit her and had beaten her in the absence of her family members. That again due to assurance given by her brotherinlaw and relatives of her husband, she had returned to the matrimonial house where she was again harassed by the accused and that on one such occasion the accused Ramesh and accused Rati Ram had hit her CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 13/22 head against a wall because of which she had sustained injuries on her head and her inlaws had compelled her to contact her family members, however, she had been unable to directly speak with them. That her brother, Mr. Shiv Kumar, had come to know of the incident from his landlord and he with other family members had reached the matrimonial house and he had got her medically treated. Further PW1 has stated that her brother had told her brotherinlaw/relatives of the husband of the complainant about their behavior and that her brother had been assured that the complainant can stay for fifteen days and if it is repeated then she can return to her parental home. During her crossexamination, PW1 has stated that she was compelled by her inlaws to call her brother, Mr. Shiv Kumar, and she had made the call from a PCO and that her brother had reached her matrimonial house the next day. PW1 was unable to disclose to which hospital (private or government) she had been taken to by her brother for treatment and why she or her brother had not called the police or made any complaint against the accused persons in this regard. PW1 has identified this relative of her husband (brotherin law/jeth), who had given the said assurance to her brother, however, the name has not been specified and no such person is cited as witness in the list of witnesses. On the other hand, PW2 states that he and his brother, Mr. Shiv Kumar, had only gone to meet the complainant at her matrimonial home at that time, when they had found that she had injured her forehead and a cloth was tied around her head and that they had taken her to get medicines. Both have stated that at that time, PW1 had an injury on her forehead. PW1 specifically states that it was her brother, Mr. Shiv Kumar, who had taken her for medical treatment. The statements of PW1 and PW2 are not consistent as to how PW2 had come to know about the incident and the total number of the family member(s) of the complainant that had reached the matrimonial CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 14/22 home. PW2 has also been unable to give any reason for not calling the police or making a complaint against the accused persons at that time. Most importantly, Mr. Shiv Kumar, has not been cited as a witness by the prosecution and the said incident cannot be stated to be proved because of the inconsistent statements.
15.Next the complainant has stated that she had attended the marriage of her brother, Mr. Shiv Kumar, and had stayed in Sangam Vihar for around eight months, during which period, the accused persons used to visit her and had beaten her in the absence of her family members. In this regard, the complainant/PW1 has stated that she and her sister had several times made calls at 100 number to the police from her parental house and had even given one to two written complaints to P.S. Sangam Vihar against the accused persons and the police used to come and had recorded her's and her sister's statements. There is no record of any 100 number call or any such written complaints made by her or her family members against the accused persons. The complainant alleges that she used to be beaten by the accused persons in her parental home and which was mostly at the times, when she used to be alone in the parental house. The complainant was residing in Sangam Vihar and her brother, Mr. Shiv Kumar, was married and she had two other brothers and certainly there must have been several family members in the house at the same time. It seems improbable that all the accused persons only came to her parental home and had beaten her, when no one else used to be present in the parental home. It is not the case of the complainant that on those occasions, all her family members had gone outstation or someplace else for a function etc. The complainant had allegedly been beaten and she had even called the police at 100 number and she was also taken by her brother for her CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 15/22 medical treatment for the injuries sustained by her in these beatings, however, there is no documentary evidence on record in proof thereof of the complaints or medical records. The I.O./Inspector Sanjeev Dhodi as PW4 during his crossexamination stated that he had not received any other complaints from the complainant except, Exhibit PW1/C. He has admitted that he had not done any enquiry regarding any other complaints having been made by her against the accused persons. He also admitted that he had not recorded the statements of the landlord/neighbours of the complainant/the PCO owner and had not done any enquiry regarding the clinic(s) from where the complainant's brother had got her treated or the landline numbers on which she had contacted her brother, Mr. Shiv Kumar. He also admitted that he had not recorded the statement of said brother of the complainant and has not given any reason for not having done so. Evidently, the I.O. does not seem to have conducted a thorough or proper enquiry/investigation in this case.
16.Next let's consider the allegations made by the complainant of the illegal demands being made by the accused person. The complainant/PW1 has alleged that the accused Ramesh had demanded a scooter and all the accused persons had demanded that she ask her brothers to get an AC and cash of Rs. 20,000/ (Rupees Twenty Thousand Only). As correctly pointed out by the Learned Counsel for the accused that these allegations have been made against the accused persons in chorus. PW2 has stated in his examinationin chief that he had come to know that the accused persons had demanded a scooter from his sister and as regards him they had demanded from him Rs. 20,000/ (Rupees Twenty Thousand Only) at one time and Rs. 50,000/ (Rupees Fifty Thousand Only) at another time. During his crossexamination, PW2 has first admitted that no demand had been raised by the accused CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 16/22 persons from him, however, he again clarified the said statement by stating that the accused Ramesh had demanded Rs. 50,000/ (Rupees Fifty Thousand Only) from him at one time and Rs. 20,000/ (Rupees Twenty Thousand Only) from him another time. He was unable to disclose the date, month or year when the said alleged demands had been raised by the accused persons and clarified stating that the demands had been made several years ago because of which he was unable to collect the said details. PW2 also stated that both the demands had been made by the accused Ramesh in the presence of the other accused persons. PW1 seems to have not told her father or brothers about any of the alleged demands being made because then in such a case, the parents of the complainant or her brothers would have either agreed to meet the demands or expressed their inability to do so. Even if the complainant had told her family that these alleged demands had been made, she has not mentioned what were the reactions of her family members (especially her brothers from whom the accused had wanted an AC) to those demands because most of the times she used to be sent back by her father or brother to her matrimonial house. PW1 has alleged in her complaint, Exhibit PW1/C, that her father had come to her matrimonial home and the accused persons had threatened him that they would not take the complainant till she brought the articles. In her examinationinchief, the said allegations of her father being threatened has not been stated and instead the complainant has stated that she had written a letter to her father telling him about the accused persons harassing/beating her and after which her father had come and taken her back to Sangam Vihar and from there to her native place at Aligarh. No such letter has been placed on record by the complainant. Further, the complainant has made grave allegations against the accused persons in her complaint, Exhibit PW1/C, that the accused Rati Ram and Radha had CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 17/22 instigated the accused Ramesh to pour kerosene oil on her and set her ablaze. No such allegations have been made by the complainant in her examination inchief. Further, the complainant alleges that the accused persons had started selling the present/dowry articles that she had got in the marriage, however, no such allegations have been made in her examinationinchief. There also appears to be a variance in the examinationinchief of the complainant regarding the arrest of the accused persons. In her examinationinchief, the complainant has stated that after few days of the delivery of her baby (in February 2003), when she was discharged from the hospital, all the accused persons had come to Sangam Vihar and had tried to forcibly take away her baby. However, she has further stated that at that time her sisterinlaw had called the police and the police had come and arrested the accused persons. There is only one arrest memo in the court record which is that of the accused Ramesh dated 22.07.2003 at around 08.00 pm from Gali no. 7, E block, Sangam Vihar as Exhibit PW4/A. PW4/I.O has stated that during the investigation he had come to know that the accused Ramesh had gone to the house of complainant, which is where he went with Ct. Sarvan and had then arrested the accused. PW4 during his cross examination stated that the accused Ramesh was alone at the time of the arrest and that he had not received any complaint at the PS from the side of the complainant other than the complaint, Exhibit PW1/C. The prosecution has not produced any other evidence/ documents on record to show that the accused person(s) had been arrested earlier at that time by the police, when he allegedly had tried to forcibly take custody of the baby. It is reiterated that there is no record of said calls/ complaints being made by the complainant or her family members.
CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 18/2217.To fall within the definition of cruelty, the acts alleged are to be of a grave nature to adversely affect and imperil the physical or mental health of the complainant. The complainant has not completely stood by her own testimony and there is not much consistency in the statement of the complainant and PW2. PW1 has admitted in her crossexamination that the accused Ramesh was not the person whom the complainant was shown to be her groom. It could be a possibility that the complainant did not want to reside with the accused Ramesh, however, no conclusive finding can be given in this regard.
18.From the above analysis, the Court is of the view that the prosecution has failed to discharge the onus on them to prove beyond all reasonable doubts the ingredients of Section 498A of IPC against all the accused person.
19.Next coming to the second issue i.e., whether the accused Ramesh and Radha were entrusted with the dowry articles of the complainant including jewelry, which they dishonestly misappropriated and did not return it to the complainant. The complainant has stated that her family had given dowry articles in the marriage, which included the items mentioned in the list, Exhibit PW1/A, bearing the signatures of the complainant. It is to be seen as to whether any of the items mentioned in the list recovered from the accused or whether the accused had admitted having received these articles from the family of the complainant. Evidently, neither the complainant and her family nor the accused and his family maintained a duly signed/acknowledged list of presents given in the marriage from both sides in compliance with Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985. Further, no corresponding list of the dowry articles admittedly CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 19/22 given by the family of the complainant to the accused and his family or vice versa was given/collected from the accused or the complainant. PW2, during his examinationinchief, has stated that they had given dowry articles in the marriage of the complainant including a gas stove, a gold ring and earrings. These articles find mention in the said list of dowry articles, Exhibit PW1/A. Further the accused Ramesh in his statement recorded during his examination by the Court under Section 313 of CrPC has corroborated the version of the prosecution to the extent by stating that the family of the complainant had in the marriage given one gold ring and one watch, which he stated had been lying at the Police Station. Both these articles also find mention in the said list of dowry articles, Exhibit PW1/A. There were a few articles, which had been seized by the police and were identified by the complainant and are mentioned in the seizure memo, Exhibit PW1/D, which includes a watch. Even though there are no corresponding bills of the said dowry articles, it is an admitted case that one gold ring, one watch and the articles mentioned in the seizure memo, Exhibit PW1/D, had been given by the family of the complainant in the marriage. No gold ring or any other jewelry items had been recovered or seized during the investigation. The question that arises is whether the continued possession of the gold ring with the accused Ramesh amounted to firstly entrustment of the property of the complainant with the accused Ramesh and then its misappropriation by the accused Ramesh on his failure to return the ring despite demand/request made by the complainant for return of the same. Firstly, it is not proved that the said one gold ring was the property of the complainant and had been given for the complainant by the family of the complainant. Secondly, if the ring had been given as a gift to the accused Ramesh, it cannot be stated that he had misappropriated the said ring, when the ring was his property. Further, the claim of the complainant is CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 20/22 that the accused Rati Ram had kept all her jewelry with herself on the pretext of safe keeping and not returned them despite the complainant requesting her to allow her to wear it when she visited her parental home. It is not proved that other than the gold ring, any other jewelry had been given by the family of the complainant as gifts in the marriage to the complainant. Therefore, it cannot be said that the accused persons had criminally misappropriated the presents given for the complainant in the marriage by her family and that the ingredients of Section 406 of IPC are not satisfied qua the accused Ramesh and the accused Rati Ram.
20.Coming to the third and last issue. Section 174A of IPC requires that the person should have failed to appear at the specified place and the specified time as required by the proclamation published under Section 82(1) of CrPC. As per the court record, the accused Ramesh Sharma was declared an absconder by order passed by the Court of Ms. Shelly Arora, Learned Metropolitan Magistrate, Mahila Courts, SouthEast, Saket on 10.12.2013 after the process issued under Section 82 of CrPC had been issued and executed against the accused Ramesh Sharma by the process server HC Satya Prakash. The said process server or any other person has not been cited as a prosecution witness to prove the due execution of the said process/publication of the proclamation. It is pertinent to note that even though no plea has been raised on behalf of the accused Ramesh such as that the proclamation had not been duly published as per Section 82 of CrPC or that the accused had not been served the summons at the first place, the prosecution has failed to lead/tender any evidence to prove that the accused Ramesh had failed to appear before the court on 10.12.2013 in compliance with proclamation published under Section 82(1) of CrPC. Therefore, it is stated that the CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 21/22 prosecution has failed to prove the charge of Section 174A of IPC against the accused Ramesh.
21. In view of the above, the accused Ramesh, accused Rati Ram and the accused Radha are acquitted of the offence under Sections 498A/406/174A of IPC, Section 498A of IPC and Sections 498A/406 of IPC respectively. All the accused persons to comply with Section 437A of CrPC. Requirements of Section 437A of CrPC to be complied with.
Pronounced in Open Court
today March 26, 2018 (SALONI SINGH)
Metropolitan Magistrate02,
Mahila Court, Saket, South,
Digitally signed
New Delhi, 26.03.2018
by SALONI
SALONI SINGH
Date:
SINGH 2018.03.27
17:15:31
+0530
CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 22/22
CR Cases 2872/2016
STATE Vs. RAMESH SHARMA
FIR 666/2002
Sangam Vihar
26.03.2018
Present: None for the State.
Mr. Amjad Malak, Advocate for accused persons (LAC) with accused Ramesh Sharma in person.
Vide separate judgment, accused Ramesh, accused Rati Ram and the accused Radha are acquitted of the offence under Sections 498A/406/174A of IPC, Section 498A of IPC and Sections 498A/406 of IPC respectively. Bail bond furnished by the accused are extended in compliance with Section 437A of Cr.PC. Put up for filing of affidavit mentioning his present address and an undertaking to file fresh address in case of change of his address on 28.03.2018 at 12.30 pm. (Saloni Singh) MM02 (Mahila court), South Saket Courts/N.D./ 26.03.2018 CrCNo. 2872/2017 State v. Ramesh Sharma & Ors. Page No. 23/22