Delhi District Court
(Reliance Placed Upon 2001 V Ad (Delhi) ... vs . State And on 18 February, 2015
In The Court of Ms. Shefali Barnala Tandon, MM, Mahila Court, NW,
Rohini Courts, Delhi
State v. Vikas Harjai
FIR No. 250/08
U/s 498A/406 IPC
PS: Shalimar Bagh
JUDGMENT
S.No. of the Case : 02404R0040562010
Date of Commission of offence : Since 01.08.2005 to 20.07.2007
Name of the Complainant : Smt. Chetna Harjai
Name of the accused persons : 1. Vikas Harjai
S/o Shri Somdutt Harjai
R/o 791, Sector13,
PocketB, Dwarka, Delhi.
Offence Complained of : 498A/406 IPC
Plea of accused persons : Plead not guilty
Date of order : 18.02.2015
Final order : Acquittal
Brief Reasons For Such Decision:
1. The case of the prosecution is based upon the complaint made by the complainant wherein the complainant Smt. Chetna Harjai stated that she got married to accused Vikas Harjai on 01.08.2005 as per Hindu rites and customs. It was alleged therein that accused namely Vikas Harjai (husband) subjected the complainant to cruelty and harassment with a view to coerce her to meet unlawful demands of dowry. Accused was entrusted with istridhant articles of the complainant which he misappropriated and did not return the same despite her demand and accordingly chargesheet was filed u/s 498A/406 IPC.
2. After supplying documents to the accused as per Section 207 Cr.PC, charge for the commission of offence punishable U/s 498A/406 IPC was framed against accused Vikas Harjai on 27.04.2013 to which the accused pleaded not guilty and claimed trial.
FIR No.250/08 State V Vikas Harjai 1 of 28
3. In support of its case the prosecution examined eight witnesses namely PW1 Chetna Harjai, the complainant; PW2 SI Raj Devi; PW3 HC Charan Singh; PW4 Upavan Kumar; PW5 ASI Rishi Prakash; PW6 WSI Urmila; PW7 B.P. Singh and PW8 Retired IO/SI Ramesh Dutt.
Relevant portion of examination of witnesses is reproduced as under : PW1 / Ms. Chetna Harjai, the complainant deposed that her marriage was solemnized on 01.08.2005 with Vikas Harjai as per Hindu rites and ceremonies at Delhi. Her marriage was an arranged marriage and same was performed with great pomp and show and lavish arrangements by her parents at Richi rich Hotel. Card of marriage is Ex.PW1/A, photographs of marriage are Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. After her marriage, she went to her matrimonial home at H.No.1320/19, Sant Nagar, Rohtak. List of articles given by her parents on marriage and after marriage and on various occasions is Ex.PW1/G running into three pages bearing her signatures at point A , B, C, D, E, F, and G. It is further deposed that when she reached her matrimonial house, her husband, her fatherinlaw and sistersinlaw were not happy with the articles given by her parents at the time of marriage. They gave her a very bad treatment. She was not allowed to receive any calls from her parents and sister and she was not given proper food. It is further deposed that she was not allowed to go anywhere or meet anybody. They started using filthy language like 'randi', 'chheenal' and 'kutiya' etc. The accused persons used to harass her and used to torture her mentally and physically as they were expecting more dowry. It is further alleged that for ten days she was confined in a room and accused stayed away and marriage was not consummated for about one month.
FIR No.250/08 State V Vikas Harjai 2 of 28 It is further stated that the accused husband and inlaws repeatedly taunted and degraded and dishonoured the complainant with the intention of causing mental torture to her by stating that they have obliged her by marrying her.
On 12.08.2005, she alongwith accused came to Delhi from Rohtak where accused was having a flat at H.No.791, Sector 13B, Dwarka. In Delhi, accused husband used indecent words and lowered her dignity by repeatedly stating that she should go to his friends and have a child from them or stand on the road for the same. It is further stated that on the same date, the accused husband insisted that they should have a bank locker for jewellery to be kept in it as it was not safe to keep it at home and he insisted it to be opened in Cental Bank of India, Panchsheel Enclave, Delhi on the pretext that he had a saving account in the said branch though it was very inconvenient being very far from their residence yet due to the accused husband's wish she accompanied him with all the jewellery items of both the sides belonging to her. On reaching the bank, accused Vikas directed her to sign certain documents which she stated were required for opening of a locker in joint name with him. After some time he came back and told her that a joint locker has been opened. It is further stated that he took her to the locker room to keep the jewellery in the said locker. All the jewellery articles were handed over by her to the accused Vikas and after operation of said locker, accused kept the keys with him and assured her that she can operate the same as and when required. The accused, however, did not divulge any details regarding the said bank locker to her.
It is further stated that after the birth of her son in the month of June, 2006 accused Vikas said that they should close the locker since it is very far and they will open nearby, he took her signatures on blank papers stating that he will complete all the formalities of the said joint locker in FIR No.250/08 State V Vikas Harjai 3 of 28 the Bank itself. It is further stated that accused stated to her that after the closure, he will divulge all the details and he will bring all the jewellery and joint locker will be opened nearby. But nothing happened, to her surprise, when she approached the bank vide letter dated 03.11.2007 she got the reply vide letter dated 09.01.2008 through speed post that the said locker was operated by Sh. Vikas Harjai on several dates mentioned in the letter and nomination is in the name of Ms. Rajni Katyal i.e. sister of accused Vikas. The aforesaid letter is Mark PW1/A. It is further stated that through other communication letters between her and the bank it has been informed by the bank that the joint locker was opened in the name of Vikas Harjai and Chetna Harjai, however, only the specimen signatures of Vikas Harjai were there.
Estimates and bills of jewellery other than ancestral jewellery gifted to her, her son and to all the inlaws are Ex.PW1/H1 to Ex.PW1/H23 (OSR).
It is further stated that during the stay in Delhi he always used to behave in erratic, abusive and absurd manner and always used to call her parents on every Saturday with a condition and if they will not reach in time, they will face the worse otherwise as per he dictates, if no one from her family will come, he will not attend any function of her parental family.
PW1/Complainant produced seven type of documents from A to G mentioned in the list of documents which is Ex.PW1/I. A photographs depicting the injuries caused shown in two pages i.e. 1 and 2 to the witness by accused and the same is collectively Mark - X. B - photographs depicting the dowry articles on pages 3 to 6 given to the accused and his relatives and the same is collectively Mark Y. C - Original shopper stop purchase receipt on page 7 and the same is collectively Ex.PW1/J. D Original Bank statement of account of FIR No.250/08 State V Vikas Harjai 4 of 28 complainant on page 8 to 11 and the same is collectively Ex.PW1/K. E original Bank statement of joint account of complainant and her mother on page 12 and the same is Ex.PW1/L. F Certified copy of the original document filed in the domestic violence case including medical report and the same is collectively Ex.PW1/M. G three CD's of marriage function which is Ex.PW1/N. It is further stated that during her stay in matrimonial home at Dwarka she was constantly subjected to beatings, humiliation, insult and denial of meals. The situation became more worse after the birth of the son. Accused's sisters Rajni Katyal and Chand Kaura visited her matrimonial home after one week after the birth of her child and got her bedroom separated, they dumped her and her child in a room which was not even properly ventilated. They used to snatch the baby from her for more than 45 hours while the advise of doctor was to feed the baby after 2 hours. It is further stated that very often the toilet as well as kitchen was made inaccessible for her and her child by them. They used to state that the conditions would be made so horrid that either she would commit suicide or leave the matrimonial home as they had done the same with first wife of the accused's elder brother. It is further stated that the accused and inlaws made her and her child stay in uninhabitable conditions.
It is further stated that in September 2006 when her mama and her mother visited the accused, he demanded brand new car and 1 lac rupees. To meet his demand and make him happy, they presented a gold set to her, two gold karas to the child and cash to him. The bills are already exhibited. All this did not satisfy the accused and he again beat her mercilessly. In November 2006 the accused called her father and brother to the matrimonial house and insulted them and used filthy language which is stated as "bhangi, muh mein daant nahi, pet mein aant FIR No.250/08 State V Vikas Harjai 5 of 28 nahi" he also threatened them that he will do physical harm to her family.
It is further stated that in April, 2007 the accused attacked her with charger wire, beat her mercilessly, threw her down and stood on her chest. The accused again barred her access to kitchen and toilet by locking the door and told the servant, who was at the beck and call of the accused not to give her food. On asking for the reason of the same, the accused put chappal in her mouth and beat her and broke her mobile. Leaving her in severe pain, due to the inflicting of the blow, the accused went for a party leaving no other option for her but to take her and her child to her parents house. It is further deposed that with lot of persuasion and request from her parents and relatives, accused, his father and his sisters agreed to behave well with her. But when she returned to her matrimonial home on 28.07.2007, she was again subjected to physical and mental torture with denial of food for a period of about three months and she managed to survive by eating biscuits, rusks, bread etc. A small pooja and a party was organised on first birthday of her son at home. But the accused walked away from the party in front of the guests and said to her that no one from her family will attend the party as his demands of car and cash have not been met and he said to her "apna baccha utha yaha say, iska DNA test karvaunga".
It is further stated that on 17th July, 2007 she requested the accused to give her some of her jewellery till the time another locker is opened. On this, he became wild and furious and beat her with log of wood and hands and threw utensils on her. Further he himself called the police on the false pretext that she was beating him. He also made kitchen and toilet inaccessible by locking the door. It is further deposed that when the police came, they gave advice to the accused to live peacefully and they helped her by getting the locked door opened. But the moment the police left her house, the accused resorted to his inhuman behaviour and FIR No.250/08 State V Vikas Harjai 6 of 28 again gave beatings to her. Due to severe pains of inflicting of blows by the accused, she could not go to office. On 19th July, 2007 she approached Dwarka Police Station for counseling of the accused so that he lives in harmony and peace with her and take care of her and her child. Since she was having a contractual job she could not take too many leaves and she went to the office on 20th July, 2007 where she also went for medical checkup at a Govt. hospital (Hedgewar Hospital) nearby and medical report is already exhibited. When she returned from the office with her child in the evening, he beat her mercilessly and told her that he will kill her and her baby if she do not leave the matrimonial house. He finally threw her and her child out in the night on the same day i.e. 20 th July, 2007. She reported the incident to Sector13, Dwarka police chowki on 21st July, 2007.
It is further stated that accused had thrown her and her child in the night of 20th July, 2007. She have bore the intense and acute mental and physical torture by the hands of the accused and his family while her stay at her matrimonial house. She has borne all the tortures in vain hope that accused, his father and sisters will live with her and her child peacefully and stop physical and mental torture. But till date neither the accused nor any of his family member has made efforts for reconciliation. They are all greedy persons with sole motive of usurping the money, jewellery and all other articles as mentioned in Annexure A of the complaint dated 14.09.2007 and threw her out of matrimonial house to seek divorce from her. Her complaint to CAW Cell dated 14.09.2007 is already Ex.PW1/PA bearing her signature at point A. During her cross - examination, she failed to remember the exact date on which she was taunted as such but she deposed that she had narrated the entire story in her chief. Vol. Not a single day went without taunts and harassment.
FIR No.250/08 State V Vikas Harjai 7 of 28 It is further deposed that she had lodged many complaints against the accused on different cause of actions. Regarding dowry harassment she had made first complaint in CAW Cell, Dwarka and thereafter when she was thrown out of matrimonial home, she lodged detailed complaint in CAW Cell, Pitampura as she started residing with her parents at Shalimar Bagh. It is further deposed that she informed CAW Cell, Dwarka by a letter that she had filed a detailed complaint in CAW Cell, Pitampura. Only an intimation was given to CAW Cell, Dwarka without any request for closure or withdrawl of the said complaint, but she meant the complaint be disposed off at CAW Cell, Dwarka as per their rules.
During further crossexamination, she deposed that on every festival, her parents were directed to give gifts and cash to her inlaws and accused and to deliver them at Rohtak house.
She failed to tell exact money spent on her marriage because her parents have spent the money on the marriage function apart from other expenditures. She also failed to tell the exact amount demanded by the accused father before the marriage because the talks had happened between the elders during 'rooka' ceremony that held at Rohtak house. She further deposed that no specific jewellery items were demanded by the accused persons, but it was told to give jewellery to father in law, sisters in law and accused during the religious ceremony of the functions.
It was admitted that she was not present at the time of making of this demand before marriage. She derive knowledge from her parents regarding the demand made by accused persons before marriage. The alleged cash and jewellery were given at the marriage function to her in laws and their guests. She admitted that she was not present when the above said items were given to the accused persons as FIR No.250/08 State V Vikas Harjai 8 of 28 she was sitting at dais. She failed to say whether the cash and jewellery were made a pre condition for solemnization of marriage.
She failed to remember the exact date and it was a general discussion between her inlaws before her of their dissatisfaction of the items she had brought in her marriage and the same dissatisfaction and the need for more items i.e. cash etc. was conveyed to the accused by them, which was later told to her parents and relatives by the accused.
It is further deposed that father of the accused wanted more cash. On every festival they demanded gifts and cash to be delivered on the Rohtak house for entire family. She failed to tell the exact amount during the initial stage of her marriage but later the demand made was the cash of Rs.1,00,000/ which was later increased by them and car.
It is further deposed that she handed over all the jewellery items that is given to her on the day of marriage by her inlaws and her parents as mentioned in Annexure A to the accused in the bank for keeping in joint locker opened on 12.08.2005.
She was present at the time when accused kept those articles in the locker. Few signatures of her were taken on few documents of bank. She did not read the documents but she was signing wherever accused was signing before her as per instructions of bank officials. There was nothing suspicious during the entire activity. As per her knowledge, it was joint locker opened in the bank. She never asked for the key of the locker from the accused but she asked for the jewellery items.
It is further deposed that as on date she has no knowledge that bank locker is closed or not.
She failed to tell exactly whether the jewellery in possession of accused was in the locker on 20.07.2007 when she was thrown out of the matrimonial house. Vide letter dated 29.08.2007, she requested the FIR No.250/08 State V Vikas Harjai 9 of 28 bank authority to only allow the joint operation of the bank locker. She did not have any information or knowledge whether this locker was operated after 29.08.2007.
She further admitted that she was never insisted by the accused to celebrate the festival at Rohtak. Her parents were directed by her in laws and accused to visit Rohtak for delivering gifts and cash. She failed to tell the exact amount of cash which was given by her parents during every visit to Rohtak for delivering the gifts and cash in light of Para5, Clause xii of the complaint. She never celebrated any festival at Rohtak in presence of her parents.
It is further deposed that joint account in ICICI Bank, Dwarka was opened as per the directions of the accused to her, however, she did not oppose.
It is further deposed that both the account holders have been issued separate debit cards by the bank and also operated through cheques.
She failed to remember the exact the date when she was hit by the accused but stated that it was November 2005. It is further deposed that she did not get any medical assistance during the hitting episode by the accused. She failed to recollect the exact date in context of Para 5 Clause xvii of her complaint when she requested to accused persons to jewellery articles from the bank.
She further deposed that after the birth of the child in June , 2006 a car and cash was demanded by accused. A brand new car was demanded by the accused without specific mention of any brand. In context to Para No. 5 Clause xxi, Rs.1,00,000/ was demanded by in laws which was conveyed through accused. It is further deposed that her parents never told her what cash amount was being given to accused. On festival gifts and cash was given as per the demand of accused FIR No.250/08 State V Vikas Harjai 10 of 28 person and the same was delivered at Rohtak but gifts(gold jewellery) and cash demanded at the time of birth of her child was given by her parents as a ritual /custom in order to pacify the accused persons and specifically one gold set, one gold ring was given to her, two gold Karas were given to the child and cash was given to her husband Vikas Harjai which she cannot tell the exact amount.
It is further deposed that the demand was reminded to maternal uncle and mother by the accused. She failed to remember whether the said demand was reminded to her maternal uncle and her mother in front of her. Since she was not there she cannot say whether maternal uncle and her mother objected to the said demand or not. She failed to recollect whether her mother and maternal uncle talk to her regarding the alleged demand made by the accused. She further failed to remember whether she asked her parents to fulfill the demand or advised to contrary. The accused never demanded gold set for him and gold Karas to her child. Vol. They used to demand cash and car. She failed to recollect in context to Para 5 clause xxvii as how much amount was given to the accused.
She further deposed that accused was not there when she left the matrimonial home. Vol. He had gone for party after barring the kitchen and toilet and she had no option but to leave the house.
It is further deposed that she safeguarded her child from being given baygon spray by accused and his sister by pleading , begging and requesting them that she will convey the demand to her family. She further deposed that she did not leave her matrimonial home and did not call the police officials as to save her matrimonial life and she was thinking everything will be alright after some time but all efforts were gone in vain and nothing has been changed. She never mentioned that incident of feeding baygon spray in her complaint dated 19.07.2007 and FIR No.250/08 State V Vikas Harjai 11 of 28 21.07.2007.
The photographs which she had exhibited were taken on 21.07.2007. The said photographs were clicked by her family members however, she do not exactly remember who has clicked the same and the same were clicked at her home at Shalimar Bagh.
She admitted that she has information that accused has dishonestly misappropriated, converted and used istridhan jewellery and gold articles. Since all the jewellery articles were deposited in joint locker at Central Bank of India, Panchsheel Park and the accused had operated the same. She has only Bank letter regarding operation of the said joint locker by the accused alone which is already exhibited. She denied to have any other information regarding misappropriation and conversion of istridhan articles and jewellery since they have not been returned by the accused till date.
She failed to recollect whether she had given medical documents and other documents pertaining to jewellery to the IO.
PW2 SI Raj Devi deposed that 04.09.2007 she was posted at CAW Cell, Pitampura as ASI. On that day a complaint of Smt. Chetna Harjai was marked to her for an inquiry. During inquiry, she called the in laws of the complainant to join the inquiry proceedings. She also conducted the local inquiry and went to Dwarka where the complainant was earlier residing. She tried for reconciliation between the parties but in vain. She further deposed that complainant had given the list of her istridhan articles and accused husband had given the admitted list of istridhan articles. However, the complainant did not accept the admitted list of istridhan articles. As the reconciliation between the parties failed, she prepared the final report for legal action which is Ex.PW2/A bearing her signature at point A. After taking approval of senior officer the case file was sent to PS for registration of FIR.
FIR No.250/08 State V Vikas Harjai 12 of 28 During her crossexamination, she deposed that during the inquiry the neighbour namely Sardar Inderjeet Singh stated that the occupants of the matrimonial home were husband, wife, their son and mother of the complainant.
PW3 HC Charan Singh deposed that on 05.08.2008 he was posted at PS Shalimar Bagh as Constable. On that day, he joined the investigation with SI Ramesh Dutt. He alongwith IO went to Sector 13, Dwarka at the house of accused Vikas. The accused was not present at that time however, he came back at his house after some time and IO arrested him at the instance of complainant vide seizure memo Ex.PW3/A bearing her signature at point A. The personal search of accused was conducted by her vide memo Ex.PW3/B bearing her signature at point A. IO recorded her statement.
PW4 Upavan Kumar deposed that he is brother of the complainant. Her sister was married to accused Vikas on 01.08.2005 at Rich Rich Banquet Hall. His parents had given sufficient dowry articles to her sister in her marriage like jewellery, electronic items, house hold items and other items as per list of istridhan. On several occasions her sister had told him that her husband was harassing/beating her for demand of dowry like car (as the car was left out as per the demand of the dowry by the accused) and cash of Rs. Five lacs. As the dowry articles were not complete so her sister did not get the same which was seized by the IO as per seizure memo which is Ex.PW4/A bearing his signature at point A. He further deposed that on 05.08.2008, he alongwith his sister and police persons went to the house of the accused Vikas (correctly identified) at 791, Sector13, DDA Flats, Dwarka. IO arrested the accused vide arrest memo Ex.PW3/B bearing his signature at point B. IO recorded his statement.
FIR No.250/08 State V Vikas Harjai 13 of 28 During his crossexamination, he deposed that dowry was demanded even after marriage in his presence, when they went to meet his sister and accused at the birth of their child. The accused demanded a car as well as cash of Rs.5,00,000/ which was made in presence of his all family members including his parents and his sister Chetna. He failed to exactly remember the date of demand made but it was made within one month after the birth of child. He further failed to recollect the exact dates of the demand when his sister told him that she was being harassed and beaten for dowry demand of car and cash of Rs.5,00,000/. It is further deposed that they inform the accused that they do not have capacity to fulfill the demand of cash Rs.5,00,000/ and a car. There was no specific demand of cash of Rs.5,00,000/ however general demand of cash was made. It is further deposed that the accused did not beat his sister in his presence. He further admitted that it is correct that his sister told him that accused demanded Rs. 5,00,000/ as well as demand of car. Vol. accused specifically asked/ demanded Rs.5,00,000/ and car from thier family.
PW5 ASI Rishi Prakash deposed that on 09.05.2008, he was posted at PS Shalimar Bagh as Head Constable. On that day, he joined the investigation with SI Ramesh Dutt. Accused Vikas Harjai brought the istridhan of the complainant in PS Shalimar Bagh. He further deposed that the list of articles prepared vide a seizure memo from serial no. 1 to
15. The complainant refused to take the istridhan on the ground that the same was incomplete. Both complainant and the accused signed the said memo. Brother of the complainant was also present. The seizure memo already Ex.PW4/A bears his signature at point B. IO recorded his statement.
FIR No.250/08 State V Vikas Harjai 14 of 28 PW6 SI Urmila deposed that on 03/05/2008 she was posted in PS, Shalimar Bagh as a duty officer and her duty hours were from 9.00 AM to 5.00 PM. On that day SHO had marked the complaint of complainant Chetna Harzai for the registration of FIR. On the basis of the said complaint she registered the present FIR Ex.PW6/A(OSR) bearing her signature at point A. She further deposed that she made endorsement on the complaint Ex.PW6/B bearing her signature at point A. After the registration of FIR she handed over the copy of FIR and original complaint to SI Ramesh Dutt for investigation.
PW7 B.P. Singh (wrongly mentioned as PW6) deposed qua the original record pertaining to locker no.742. The attested copies of the said originals running into 13 pages are collectively Ex.PW6/A (OSR).
He deposed that on 02.04.2009, he had given a report sought by the investigating officer pertaining to locker no.742 on the basis of the records available with the bank at that time and proved the said report as Ex.PW6/B bearing his signature at point A. It is further deposed that Locker No.742 is in the joint name of Vikas Harjai and Dr. Chetna Harjai as per record. It was leased on 12.08.2005. At the time of leasing of the said locker they both gave the instruction that the locker shall be operated by anyone. But later, on 29.08.2007 Dr. Chetna Harjai submitted a letter to the bank with the instruction that joint operation only be allowed in the said locker.
It is further deposed that as per the record Ex.PW6/A one of the parties namely Dr. Chetna Harjai submitted a letter dated 29.08.2007 which was received by bank on 31.08.2007 requesting the joint operation. However, as to when the said operation was disallowed cannot be inferred from the record. He further proved original application form i.e. locker allotment agreement as Ex.PW6/C. He expressed his inability to say whether vide letter dated 09.01.2008 he had provided information FIR No.250/08 State V Vikas Harjai 15 of 28 regarding operation of the said locker. (confronted with document Mark DX wherein information was given by the bank to Chetna Harjai). He further deposed that it was not in his knowledge as he was not posted at that time in the said branch.
He further deposed that from the documents it appears so that the name of Chetna Harjai is struck down on specimen signature form of the Bank. He denied to have strike down the name of Chetna Harjai from the specimen signature form. He denied to have knowledge about when the matter of striking down the name of Chetna Harjai from the record in question brought to his notice or did he investigate it to ascertain the truth.
It is further deposed that as per the record no investigation was conducted however, a letter dated 25.09.2007 was written to Chetna Harjai intimating her that her specimen signatures are not appearing on the card.
It is further deposed that on 31.08.2007, a letter dated 29.08.2007 was received at bank from Chetna Harjai directing the bank to permit only joint operation in the said locker. However, there is no such complaint regarding her signature or name stuck down on the card.
It is further deposed that as per record Ex.PW6/A and Ex.PW6/C no notice was given to Vikas Harjai for payments qua locker no.742 after year 2009. It is further deposed that as per record they never changed the nominee to the said locker.
It is further deposed that as per the nomination Form SLIA dated 27.12.2006 Ex.PW6/A Mr. Vikas Harjai has nominated the said nominee bearing his signature only. The name of the nominee will be confirmed only after the consent and signature of both the account holders.
PW8 Retired IO/SI Sh. Ramesh Dutt (wrongly mentioned as FIR No.250/08 State V Vikas Harjai 16 of 28 PW7) deposed that after registration of the present case, investigation was marked to him. During investigation, he arrested the accused Vikas Harjai. At the time of arrest complainant and her brother were present. Arrest memo already Ex.PW3/A bearing his signature at point C. Personal search of the accused was conducted vide personal search memo already Ex.PW3/B bearing his signature at point C. The accused had brought stridhan articles which were seized vide a seizure memo already Ex.PW4/A bearing his signature at point C. However, the complainant did not take her stridhan articles by saying that the same was incomplete items of her stridhan articles. He further deposed that he had made inquiry regarding the joint locker of the accused Vikas Harjai and the complainant and received a report from the bank which is already Ex.PW6/D. During investigation, he recorded the statement of witnesses. He prepared the chargesheet and file the same.
During his cross examination, he admitted that he had not examined the parents of the complainant. He further deposed that he conducted investigation regarding the locker in the bank to know whether the same is a joint locker or not. It came out that the locker is in the joint name of accused and the complainant. He further deposed that he did not get the locker opened to recover the stridhan of the complainant. He failed to remember whether it was ascertained during investigation that the stridhan was lying in the said locker. He inquired from the then Bank Manager of Central Bank of India and made him as witness in this case. He failed to remember the exact date of which he had paralytic attack and consequently he had suffered partial memory loss.
Afterwards PE was closed.
4. Accused was examined U/s. 313 Cr.PC wherein all the incriminating evidence on record alongwith documents were put to him FIR No.250/08 State V Vikas Harjai 17 of 28 which was generally denied by the accused and he chose to lead Defence Evidence.
Accused examined himself as DW1 and deposed that on 01.08.2005, he married Chetna Anand in a very simple ceremony exceeding not more than 3 to 4 hours which is evident from the invitation card attached by the complainant. Doli left at around 10:00 PM. It was a simple marriage and no dowry was exchanged apart from customary gifts which were part of the rituals. Moreover, this marriage was fixed on a very short notice i.e. less than a week and hence, there were very few invitees from his side. Upon reaching his home, they spent approximately 34 days at his Rohtak residence alongwith his father. During these 34 days on request of the complainant, he has visited her ancestral home to make her meet her family members.
It is further deposed that after 34 days they have shifted to his residence at Dwarka bearing No.791, Sector 13B, New Delhi. After approximately 810 days they both had joined their respective work places and during these 810 days they had bought all the necessary household items as desired by the complainant. Approximately the entire first year was a normal married life.
It is further deposed that thereafter, after the birth of the child, the mother of the complainant joined them. As the brother of the complainant was childless, the complainant alongwith her mother started pressurizing him to give their only child to Upavan i.e. brother of the complainant for adoption.
It is further deposed that thereafter the torture started in terms of him being denied food for a period stretching approximately two months. It is further deposed that the complainant is a drunkard and is in the habit of consuming liquor on a regular basis. She used to even drink during her pregnancy period. One such instant is being mentioned for FIR No.250/08 State V Vikas Harjai 18 of 28 ready reference whereas during her pregnancy she was dropped to her sister's house as he had to travel to Jaipur for the day. It is further deposed that upon his return, the same night, he found the complainant heavily drunk and not in her senses. The mother of the complainant was also heavily drunk due to which the mother of the complainant was admitted to nearby Air Force Hospital. The complainant tortured him and the atrocities increased by the day. At times, on the behaviour of the complainant, he was so agonized that he had to report the matter to police. Atleast two of the said instances, he can recall.
It is further stated that on 17.07.2007, early in the morning, around 7:00 - 7:30 AM, the complainant started abusing him and said that "you will be thrown out of the house, if the child is not given to my brother for adoption". Thereafter, her mother also joined the verbal altercation and physically tried to assault him. During this fight, the complainant was cooking food in pressure cooker which was full of steam, he was standing approximately at a distance of 02 meters to the door of kitchen, his child, naked, was standing just behind him. Suddenly, she picked that steam filled cooker up and threw the same at him. He was hurt in a minor way, however, the child was hurt badly. Thereafter, Police was also called by him at that time and the matter was somehow resolved. Then all of a sudden, he came to know that she had filed a complaint in CAW Cell, Dwarka on 19.07.2007. It is further stated that as per his knowledge, she had attended her office on that day as well as lodged this complaint. After lodging this complaint, which was only against him for mental and physical torture, she left her matrimonial home on her own will alongwith the child.
It is further stated that thereafter, she filed another complaint to SHO, Dwarka which was almost identical to the first complaint made to CAW Cell, Dwarka. On 14.09.2007, she filed another complaint at CAW FIR No.250/08 State V Vikas Harjai 19 of 28 Cell, Pitampura which included names of five persons and present case was filed u/s 498A/406 IPC.
It is further stated that the present case is totally false and frivolous. The complaint dated 14.09.2007 is figment of imagination on behalf of the complainant and has no relevance, in whatsoever manner, to the truth. Major evidence in terms of email communication (internet generated copy) between him and the complainant in April, 2007 is Mark DW1/A (running into 8 pages) which reflects that she was not harassed or tortured for dowry demand. It is further deposed that it also reflects that she was in custody of all her istridhan and in no way he was in custody of the istridhan including gold and dowry articles. Moreover, this mail communication also confirms that he was denied food in his home whereas the complainant used to have her meals properly. Moreover, this mail communication also confirms that she was having possession to her salary which was earned by her and the same was not given to him, as alleged. It is further deposed that this mail communication also confirms that her mother was also an occupant in his house alongwith the complainant and his son. Moreover, this mail communication also confirms that complainant was living a lavish life and the household work was being done by full time maid including taking care of the child.
It is further deposed that no dowry articles were given to him or to any of his family members. He has never ever been entrusted any istridhan articles ever and hence no question arises of misappropriation of any of the dowry articles which were not even in his custody. It is further stated that he has never ever subjected the complainant to cruelty on the contrary, the complainant was violent physically as well as verbally to him.
It is further deposed that the complainant has destroyed documents in the custody of Central Bank of India, Panchshila Park, New FIR No.250/08 State V Vikas Harjai 20 of 28 Delhi. These documents are namely her application written to the Bank to withdraw her name from the coownership/ lease of locker no.742 , her application written to Bank on 27.08.2007 and 29.08.2007. It is further stated that the complainant in connivance with the bank officials has destroyed these original evidence i.e. two applications dated 27.08.2007 and 29.08.2007 written by the complainant to the Bank and planted fresh, (self written but back dated) applications in 2009, somewhere in April 2009.
It is further deposed that the complainant was in the habit of shouting and losing temper without any reason, which is evident from the mail conversation. The complainant was having one set of keys of their residence at Dwarka and she was having full custody and control of any articles including gold. It is further stated that there is another incident which is highlighted as a part of th email conversation whereas, the eye of the child was hurt due to her negligence and she was not even interested in taking care of their son. It is further stated that she was in the habit of deserting him at her own will and at multiple times.
DW1 also filed affidavit U/s 65B Evidence Act regarding the document already Mark DW1/A which were exhibited as Ex.DW1/A (colly). The certificate/affidavit was exhibited as Ex.DW1/C bearing his signature at point A.(Objected to by Ld.APP for the State on the ground of mode and manner of proving the said electronic record.
During his crossexamination, he deposed that on 05.05.2006, complainant first time told him to give their only son in adoption to her brother. He did not tell the said fact to any of his relatives.
The witness failed to have any documentary proof to show that complainant was a habitual drunkard nor he has any proof to show that she had consumed liquor during her pregnancy. Vol. She used to FIR No.250/08 State V Vikas Harjai 21 of 28 drink the liquor which was brought by his brother and which was placed at Rohtak and the same was brought by the complainant to Dwarka matrimonial home. He failed to remember the exact date on which he returned from Jaipur and found the complainant and her mother out of their senses. It is further deposed that he do not have any medical document to show that the mother of the complainant was admitted in Air Force Hospital. He failed to remember the dates on which he had reported to the police regarding the behavior of the complainant. It is further deposed that he had not given any written complaint against the complainant. His son was taken by him to nearby doctor's residence after the incident on 17.07.2007. Complainant was not with him when he took his son to the said doctor. He denied to have any prescription of the said treatment. Vol. The same prescription was handed over to the complainant and her mother for giving the child the necessary medication, as prescribed. No MLC of his son was prepared.
Thereafter, DE was also closed.
5. Final arguments were heard on behalf of Ld. APP for State and accused. During course of arguments, Ld. APP has submitted that he has already filed written synopsis qua the incidents and prosecution case has been proved whereas the accused has argued that testimony of PW8 i.e. Retired IO/SI Ramesh Dutt is discredited as the IO has himself admitted in his crossexamination that due to paralytic attack he has lost his partial memory.
The accused has further argued that testimony of PW7 Sh. B.P. Singh, Retired Chief Manager, Central Bank of India has not deposed anything incriminating against him and he is only witness for the offence u/s 406 IPC and as per his testimony the accused had a joint locker with the complainant therefore, he had no exclusive dominion over the same.
FIR No.250/08 State V Vikas Harjai 22 of 28 He has further argued that PW4 Upavan Kumar, brother of complainant is a hearsay witness and there have been contradiction in his testimony visavis testimony of the complainant qua the dowry demand. He has further argued that PW3 i.e. HC Charan Singh and PW5 ASI Rishi Prakash are only formal witnesses and nothing incriminating has been proved on record against him by them.
He has further argued that PW2 SI Raj Devi has deposed that as per her inquiry, mother of the complainant was residing with the complainant and accused in their home but she has not been made a witness and instead brother of the complainant who is a hearsay witness has been arraigned as a prosecution witness. He has further argued that the complainant made her first complain at CAW Cell, Dwarka only against him and only allegation of domestic violence was alleged in that complaint and there was no mention of dowry demand in the said complaint dated 19.07.2007. Thereafter the complainant made second complaint to Police Chowki, Dwarka for beating her and throwing her out of the matrimonial home without any allegation of dowry demand. Further on 14.09.2007, the complainant wrote an application to CAW Cell, Dwarka to close her complaint but has not requested or prayed for any transfer of the complaint to CAW Cell, Pitampura where she initiated her third complaint against all the family members of accused and it is apparent from the third complaint that it is an afterthought as it was well drafted and lengthy complaint wherein allegations of dowry demand were added. He has further argued that the complainant made an improvement in her complaint by alleging that her child was poisoned by accused in the month of July which was never mentioned in her earlier complaints.
Accused has further argued that bills of istridhan articles are not provided and proved on record. He has further argued that in the FIR No.250/08 State V Vikas Harjai 23 of 28 order of this Court on protest petition, falsity of allegations levied by the complainant are evident wherein she states that she was living with the family of the accused though she was living separately with the accused in Delhi. He has further argued that complainant in her complaint stated that her entire jewellery is in joint locker but in her chiefexamination as PW1, she deposed that she is not aware where her jewellery is.
He has further argued that between the period from 19.07.2007 and 14.09.2007 accused did not live with the complainant so there was no change of circumstances and further cruelty could not have been committed but the complainant in her third complaint has improved her version totally. He has further argued that he was never entrusted with the istridhan articles of the complaint so no question of their demand and refusal exists. He has further argued that it has not been proved by PW1/complainant that the marriage between him and complainant took place with great pomp and show and she has herself admitted that gifts in marriage were given as rituals and there were no demands for the same whereas in her complaint she has deposed that her parents conceded to the demands of accused's father.
He has further argued that parents of the complainant to whom alleged dowry demand was made have not been made witness in the present case. He has further argued that there was email conversation between him and complainant and nothing related to demand of dowry was ever alleged by the complainant in the aforesaid conversation.
The accused has further argued that the complainant has herself admitted that she left the matrimonial home in absence of accused so there is no question of forcibly throwing her out of the matrimonial home.
The accused has further argued that the present matter has FIR No.250/08 State V Vikas Harjai 24 of 28 only cropped up due to reason that the complainant wanted to give their only son to her brother Upavan Kumar for adoption as her brother was not having any child but he did not agreed with her and because of the same the complainant left his company and no cruelty whatsoever was ever committed upon the complainant in relation to dowry demand.
Per contra, the complainant has argued herself that first complaint was made only for conciliation and she resided with the accused for two days after first complaint.
In rebuttal, Ld. APP for the State submitted that the contradictions which the accused has alleged are not as per the Evidence Act and the State has not relied upon the testimony of PW8 Retired IO/SI Ramesh Dutt as he admittedly, lost his partial memory due to paralytic attack.
Written arguments/synopsis and their rebuttal filed by the accused, Ld.APP for State and complainant are already on record.
6. Heard. Entire record has been perused carefully.
7. In order to bring home the guilt of the accused persons for commission of offence U/s. 498A IPC, the prosecution was required to prove: a. That the complainant was subjected to cruelty or harassment; b. That the cruelty or harassment was caused by her husband or his relatives;
c. That cruelty was (a) with a view to drive her to commit suicide; or
(b) to cause grave injury or danger to her life, limb or health, either mental or physical;
d. That harassment of the complainant was (a) with a view to coerce her or any person related to her to meet unlawful demand of any property or valuable security; or (b) On account of failure of the complainant or her relation to meet such unlawful demand.
8. To constitute offence U/s. 406 IPC there must be clear and specific FIR No.250/08 State V Vikas Harjai 25 of 28 allegation that accused was entrusted with some property or domain over it, by the complainant, that the accused has dishonestly misappropriated or converted the same to its own use or that accused refused to return back the articles when the same were demanded by the complainant. (Reliance placed upon 2001 V AD (Delhi) 411 Annu Gill Vs. State and another).
9. Perusal of the record shows that PW2 SI Raj Devi, PW3 HC Charan Singh, PW5 ASI Rishi Prakash and PW6 WSI Urmila are formal witnesses. Testimony of PW8 Retired IO/SI Ramesh Dutt cannot be credited as admittedly he has lost his partial memory due to paralytic attack.
PW1/Complainant Chetna Harjai has deposed regarding the tauntings being made to her by the accused and her inlaws for bringing insufficient dowry at the time of her marriage and it would be relevant to mention here the observation made by the Hon'ble Supreme Court of India in AIR 1996 SC 67, wherein it is held that:
"mere tauntings for bringing insufficient dowry is distinct from demand of dowry. Though tauntings for bringing insufficient dowry is also an uncivilized act but does not come within the purview of section 498A IPC & hence, not sufficient to constitute offence U/s. 498AIPC."
The complainant has further deposed regarding the harassment and beatings given to her by the accused, but has failed to prove that they were in relation to dowry demand. Furthermore, the complainant has nowhere stated that dowry was demanded from her by the accused, but has deposed that it was demanded by the accused from her parents and was reminded to her mama(maternal uncle) and mother, but parents of complainant or her mama (maternal uncle) has not been cited as witness by the prosecution. Furthermore, the complainant has deposed that dowry i.e. car and Rs.1,00,000/ was demanded by the FIR No.250/08 State V Vikas Harjai 26 of 28 accused from her father and brother, but she failed to remember whether she was present at that time or not, whereas, PW4/Upvan Kumar, brother of complainant has deposed that accused demanded a car and Rs.5,00,000/ in cash in presence of her sister i.e. complainant in present matter.
PW4/Upvan Kumar, has also deposed that no beatings or harassment was committed upon complainant in his presence. Therefore, with regard to harassment and cruelty, he is a hearsay witness. Further, complainant has admitted in her evidence that she left the matrimonial home in absence of accused, as she was left with no other option, wherein, in her chief examination, she deposed that she was thrown out of her matrimonial home.
Needless to say, that there is inconsistency and contradictions in statement of PW1/complainant viz a viz, statement of PW4/Upvan Kumar, who are the material witness in the present matter.
With regard to commission of offence U/s 406 IPC, it is admitted by PW1/Complainant Chetan Harjai and PW7/ B.P. Singh, retired Bank Manager, from Central Bank of India, that there was a joint locker in the name of complainant and accused and in her testimony ,PW1/Complainant has admitted that in her presence her entire jewellery was kept by the accused in the said joint locker, which means that both the complainant and accused had common dominion over the said property in the joint locker. Complainant has further admitted herself that she has never demanded keys of the said joint locker from the accused and till date she is not aware that whether the joint locker is in operation or not, or the jewellery is still there in the joint locker or not.
With this background, it would be far fetched to say that specific entrustment of jewellery was made by the complainant to the FIR No.250/08 State V Vikas Harjai 27 of 28 accused and hence commission of offence U/s 406 IPC is not proved.
It would be also relevant to mention here, Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab and Haryana High Court wherein it was observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused".
10. Under the aforesaid discussion, it can safely be concluded that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. Accused Vikas is accordingly acquitted of the charge U/s. 498A/406 IPC. His surety stands discharged.
11. File be consigned to RR after due compliance.
Announced and dictated in the open Court today i.e. on 18.02.2015 (Shefali Barnala Tandon) MM, Mahila Court, NorthWest Rohini Courts, Delhi FIR No.250/08 State V Vikas Harjai 28 of 28