Delhi District Court
Fir No. 70/94 State vs . Arun Kumar Jain Etc Page 1 Of 1 on 20 September, 2013
IN THE COURT OF MS. SAVITRI, METROPOLITAN MAGISTRATE
(MAHILA COURT-I), SHAHDARA, KKD, DELHI
Unique ID No. : 02402R0000491994
FIR No. : 70/94
u/s : 498-A/406/34 IPC
Police Station : Mansarovar Park
Date of institution : 02.07.1994
Judgment reserved on : 12.09.2013
Date of Judgment : 20.09.2013
Acquitted or convicted : Acquitted u/s 498-A & 406 IPC
Convicted u/s 4 Dowry Prohibition Act
State
Versus
1 Arun Kumar Jain
s/o Mahendra Prasad Jain
r/o H. No. 1/2642, Ram Nagar,
Shahdara, Delhi.
2 Smt. Saubhagya Wati (since expired) - proceedings
w/o Mahendra Prasad Jain abated on 20.09.2005
r/o H. No. 1/2642, Ram Nagar,
Shahdara, Delhi.
3 Sushma Jain
d/o Mahendra Prasad Jain
r/o H. No. 1/2642, Ram Nagar,
Shahdara, Delhi.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 1 of 1
JUDGMENT:
Challan was filed in the present case on 02.07.1994 against accused persons on the basis of FIR No. 90/94, u/s 498-A IPC in PS Mansarovar Park registered on 12.04.1994, on the complaint of complainant Smt. Vrishti Jain made to DCP, Women Cell, Nanak Pura on 11.10.1993 to the effect that she got married to the accused husband Arun Kumar on 24.11.1992. All the accused persons had harassed and tortured and committed cruelty upon her for demanding more and more money from her and her parents. Before the sagaai ceremony, accused mother-in-law (since expired), sister-in-law and husband asked the father of complainant that they should be given maximum sum in cash because the accused husband was anxious to construct an extra room and a kitchen in the matrimonial house and on this pretext all the accused persons extracted a sum of Rs.47,000/- in cash from her father. It was handed over to all the accused persons on 05.10.92 but no room was got constructed.
2 She was subjected to physical violence. Accused persons demanded godrej furniture from her parents to be given in the marriage. When her father expressed his inability to afford the furniture, all the accused persons said that they would purchase the furniture themselves and in turn her parents should give her gold kangans. Her parents gave kangans at the time of marriage but furniture was not purchased by the accused persons. Soon after marriage, the jewellery given to her by her parents were entrusted to accused persons. She has mentioned various FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 2 of 2 items of gold and silver which were separately entrusted to accused mother-in-law (since expired), accused Sunita Jain (unmarried Nanad) and accused husband. Further, it is mentioned in the complaint that accused persons had criminally misappropriated these articles and streedhan and have not returned the same despite repeated demands. Within a few days of marriage, all the accused persons demanded that father of complainant should give a VCR and a sum of Rs.75,000/- for construction of an additional room and a kitchen. When the complainant told them her father did not have financial resources, all the accused persons started torturing and threatening her in various ways. Accused mother-in-law told her that she would not allow her to use the bath room or take bath in the house until and unless their demands were met. She was made to do all the domestic work from morning till going to office and upto late in the night after coming from office by all the accused persons. The maid servant was dismissed after her marriage and she was clearly and repeatedly told that she was nothing else but an educated, earning domestic maid servant. She used to do all the household work such as sweeping the premises, washing and ironing of clothes, cleaning utensils in addition to preparation of tea and breakfast and cooking food for the entire family and also for the pet dog. All these tortures were inflicted upon her to compel her to meet their demand of VCR and Rs.75,000/- in cash. On 09.01.93, accused Sushma Jain (Nanad) and mother-in-law threatened to burn her by pouring kerosene oil on her. She was not permitted to take bath on 17.01.93 and on the same day all the accused persons caught hold of her and threatened to burn her. On the same night, her husband gave campose tablet so that next morning she was FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 3 of 3 unable to perform her shift duty in Doordarshan where she was employed. On 18.01.93, accused sister-in-law (Nanad) set the pet dog upon her which jumped upon her. She was able to save herself with great difficulty. She was not given food several days repeatedly and her health deteriorated badly. She was not allowed to take rest. All these cruelties were meted out to her only with a view to compel her to bring from her father VCR and cash of Rs.75,000/-. Ultimately, as pre-planned by all the accused persons, on 22.02.93 accused husband played a fraud upon her. He made her to sit on his scooter and dropped her at her father's house in bare three wearing clothes. Since then, she was living with her parents. Her parents and she made efforts for reconciliation which were frustrated by all the accused persons. All the dowry articles mentioned in the list annexured had been misappropriated by the accused persons and they refused to return the same despite repeated demands. She requested for legal action against father-in-law, mother-in-law (both expired), her Nanad Sushma Jain and accused husband Arun Kumar Jain.
3 After, this complaint was filed with the CAW Cell, reconciliation proceedings went on for some time and some other statements of complainant were also recorded. Based on one of them, present FIR has been registered. The statement on which FIR is based was supplementary statement recorded on 22.03.94 before the CAW Cell. There have been certain additions in this statement which was not there in the original complaint to CAW Cell. In this statement, she has mentioned that accused Sushma Jain used to make scheme of torture and other family members used to implement the same and further all FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 4 of 4 other family members used to taunt and abuse her. She has mentioned some details of her streedhan given to her by her parents in the marriage. She has further mentioned that accused persons attempted to burn her alive on 17.01.93. Further, she has mentioned that accused persons told her that if their demands were not fulfilled she would be sent back to her parents' house. She has further mentioned that she had visited the matrimonial house along with her parents on 27.06.93, 25.07.93, 08.08.93 and 19.09.93 where they were ill-treated by accused persons and the streedhan was not handed over despite demands. Further, she has mentioned that in the proceedings before the CAW Cell her husband had abused her and further that on 24.02.94 her husband made attempt on her life in the presence of Enquiry Officer Insp. Mahabir Singh and she suffered injuries (with respect to this incident dated 24.02.94, a separate FIR has been registered wherein the accused husband was convicted).
4 On the basis of complainant of complainant, investigation was conducted. Accused persons were arrested and later on released on bail. Initially, two accused persons namely Arun Kumar Jain and mother- in-law were chargesheeted. Other two accused persons i.e. father-in-law and Nanad were summoned later. Later on, accused father-in-law (Sh. M.P. Jain) was discharged at the stage of charge and other accused persons were charged for the offence u/s 498-A/406/34 IPC to which they pleaded not guilty and claimed trial. Accused mother-in-law died during trial of the present case and proceedings abated qua her. Father-in-law Sh. M.P. Jain is also no more. Now, only two accused persons have been left i.e. accused husband and unmarried Nanad of complainant.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 5 of 55 To prove its case, prosecution examined the complainant as PW-1. In her evidence, she has supported the case of prosecution and has deposed on the lines of her complaints and statements before the CAW Cell. She has mentioned that list of her dowry articles was handed over to accused persons along with the dowry. She has made some improvements during her examination-in-chief in the court. She has mentioned that on the next day after marriage, accused persons said that dowry articles were of inferior quality and less in number. They also said "kis bhikmange ki ladki gale pad gai". She has stated that before leaving for honeymoon on 27.11.92, the accused husband and mother-in-law asked her to hand over her jewellery to them and she handed over major portion of her jewellery to her mother-in-law. She has stated that the articles entrusted by her to accused persons were not returned to her by them and whenever she used to go to some function, she used to ask for these articles from accused and the same were given to her but after the function they used to take back these articles from her. Regarding her visits to the house of accused to demand the streedhan articles, she has stated that accused persons said that nothing had been given in her marriage and if anything was there that could be taken from the court. She has further stated in her chief that on 17.01.93, she was not given food. All the accused persons caught hold of her and threw her on the bed and said "kerosene le kar aao isko aaj hi jinda jala denge". She tried to free herself from the hold of accused persons. Accused husband had closed her mouth with his hands. She gave a bite on his hand and he took out his hand from her mouth. She raised cries and the neighbours started peeping. Accused persons then left her and she was saved and FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 6 of 6 on the same night she was given campose by her husband while she was having headache. It is mentioned in her chief that when she could not get up on time in the next morning, accused Nanad finding her sleeping in the room said to her "maharani der tak so rahi hain". She taunted her and quarreled with her. She has further stated that after she was left at the parental house by the accused persons, the negotiations for compromise went on for four months. Accused never came to take her back, while she and her relatives made many attempts to arrive at a compromise but everybody was abused by accused persons. Thereafter, she demanded her streedhan from the accused but they refused to hand over the same. In her evidence, she has proved the statements made by her, photographs of marriage and receipts regarding purchase of dowry articles.
6 PW-1 complainant was extensively cross-examined by ld. counsel for accused persons. In her cross-examination by ld. counsel for accused persons, regarding dowry list she stated that the list of dowry articles Ex.PW1/B filed along with her complaint to CAW Cell was prepared in the office of Sh. S.K. Duggal, advocate but it is in her own handwriting and she prepared this document on the basis of the list prepared by her father at the time of marriage. Regarding the complaint to CAW Cell, she stated that it was typed by typist in Tis Hazari Court in the office of her advocate. She denied the suggestion that she did not file original dowry list prepared at the time of marriage because that list is different from Ex.PW1/B prepared by her. She admitted that she did not give or show the original list in CAW Cell or to the police after the FIR.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 7 of 7She stated that her complaint to CAW Cell Ex.PW1/A was dictated by her advocate to his typist. Regarding her supplementary statements to CAW Cell Ex.PW1/C and Ex.PW1/D (on which present FIR is based) she stated that she has written them herself and handed over to the IO/ASI Brahm Singh. She admitted that on holidays and Sundays, she used to go with her husband to attend function and dinner etc and once she visited the house of Mr. A.K. Jain, cousin of her husband at Lajpat Nagar, after the marriage. Further, she admitted that she visited with her husband the maternal grand father of her husband at Vivekanand Puri. She also admitted that she had gone along with her husband to the house of her married sister-in-law in Dilshad Garden. She further admitted that once she had visited along with both accused husband and accused Nanad to someone's house in the neighbourhood. She admitted the photographs of her honeymoon as produced by the accused side. With respect to artificial jewellery worn by her in the marriage as shown in photograph, she denied the suggestion that she was wearing this jewellery because her father could not gift any gold set to her.
7 In her cross-examination, she further stated that on 26.11.92 i.e. two days after marriage, she went to her parents' house. Again she went to their house and stayed there for one night along with her husband. One day, she and her husband went to the house of her brother Vijay and they were invited to lunch. One day, she attended the lunch along with her husband when invited by her sister Prabha Jain. She also admitted that she along with accused husband attended the birthday party of the daughter of her friend Vijay at Vikas Puri. Further she attended the FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 8 of 8 marriage of her friend Sunita Gupta at Pitampura, Rohini. She stated that she did not remember whether she went along with her husband to the house of Mr. Naveen Mehra at Vikas Puri. She admitted that she went to the house of Renu Aggarwal i.e. sister of her husband, along with her husband. She did not remember as to for how many days before she last resided in the house of in-laws that she went along withher husband to any of the visits for lunch or dinner. She did not remember as to when she visited the house of Mr. A.K. Jain, cousin of her husband before she last resided in the house. She did not remember whether it was night of 21.02.1992. She admitted that she never made any complaint to any person visited by her throughout the period she lived in the matrimonial house. She admitted that her parents also visited her in-laws' house during her stay in the matrimonial house which was a short period of less than even three months. She denied the suggestion that her living in that house was absolutely normal and there was nothing wrong with her husband and any other member of family and that is why she did not make any complaint during the period of her living there, against any of the accused persons.
8 In her cross-examination, she further admitted that cooking in the house was done with a gas cylinder with two burners and no stove run from kerosene oil was there. She again said that there was a stove but it was not generally used. She stated that her office timings were between 9.30 am to 5.30 pm. She denied the suggestion that her parents-in-law being Jains, used to cook dinner themselves so that they were able to eat it before dark and then the food was kept in a hot-case for whoever who FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 9 of 9 came later on. She admitted that sagaai function did not take place in her presence and all the talks of payment of Rs.47,000/- and the payment itself at the function of the sagaai did not take place in her presence but she stated that she was present in the other room in the house where sagaai took place and after the sagaai, god bharai took place in the same function. She admitted that her father was already retired. While admitting that there was shortage of room/accommodation in her in-laws' house, she denied that she used to tell her husband that they should have one another room and a separate kitchen in the house or that she was unhappy with the shortage of space. She further denied the suggestion that her husband told her that she should have some patience and construction would be done after some time. She volunteered to say that she never told about the same and stated that it is the accused who was anxious to built a kitchen and another room. She denied the suggestion that she used to press her husband for a VCR so that they could watch the marriage cassette whenever they desired as there was no VCR in the matrimonial house. She denied the suggestion that accused persons never wanted from her Rs.75,000/- for additional construction or that they never asked for a VCR and it was always her idea. She denied that she was very uncomfortable in the house. She denied the suggestion that she has cooked up the story of doing all the work herself and in fact everybody in the house worked together for doing the household work as well as cooking. She denied the suggestion that knowing the weak financial condition of her father the accused could not have demanded Rs.75,000/- and VCR.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 10 of 109 PW-1 further stated in the cross-examination that her two sisters were yet to get married, however, her elder sister was married before she was married (complainant has three sisters other than herself). She denied the suggestion that she was taking revenge from the accused because her two sisters could not get married due to her failed marriage. She denied the suggestion that the question of asking for any money or VCR by the accused did not arise as the accused knew that the father of complainant was yet to marry his two daughters. She denied the suggestion that she was not having any part-time maid servant in her natal house. She admitted that talks between her father and in laws regarding demand of Rs.47,000/- for construction of room and a kitchen and cutting short of expenses of marriage did not take place in her presence. She also admitted that the talks regarding purchase and demand of godrej furniture and in lieu thereof gold kangans to be given by her father did not take place in her presence. She admitted the suggestion that there was no room in her in laws' house for any additional furniture at all. She volunteered to say that furniture was desired by them for the showroom of the husband and not for the house. She denied the suggestion that no such furniture was demanded and there was no such arrangement that her parents should give kangan instead of furniture. She further admitted that she had given a reply to the notice sent by counsel for accused husband for restitution of conjugal rights. She admitted that she had sent list of dowry articles along with reply. She admitted the photocopy of list of dowry articles sent by her along with her reply sent through her counsel (It was produced by defence). She denied the suggestion that on 09.01.93 neither accused Sushma Jain nor FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 11 of 11 accused Saubhagyawati Jain (mother-in-law) were at home and in fact Saubhagyawati Jain was unwell and Sushma Jain had taken her to hospital. She stated that she did not remember whether she had told her colleagues on 19.01.93 that pet dog was left on her and that she was given campose tablet by her husband. She told about the treatment meted out to her in the matrimonial house to her three sisters and brother and also brother-in-law (Jeejaji) Rajeev Jain. She stated that she did not remember whether she told her colleagues on 19.01.93 that her in laws attempted to kill her on 17.01.93. Further, as per her she could not attend office on 18.01.93 as she was under the influence of campose and her duty hours on that day were from 08.00 am to 3.20 pm. She stated that she stayed at her matrimonial house till 22.02.93 and stayed there willingly. She admitted that she would have continued to stay in matrimonial house if the accused husband had not left her at her parental home by fraud. She volunteered to say that she could have stayed to save her married life. She denied the suggestion that she had a happy married life and has falsely alleged the incidents of 18.01.93 and 19.01.93 of demand of dowry. She denied that the present complaint was false and fabricated.
10 In answer to court question, she stated that she remembered telling her colleagues Santosh Sharma and Kewal Kumari about the attempt to kill her by accused persons and their dowry demands. She stated that she also told her colleagues about the accused persons not giving her proper food and not letting her to take bath but she did not remember telling about the incident when the dog was left at her on FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 12 of 12 18.01.93 as she had talked to them only on 12.02.93. She admitted that the amount of Rs.47,000/- (Rs.41000/- + Rs.2000/- + Rs.2000/- + Rs. 2000/-) mentioned in the list of dowry articles Ex.PW1/D1 sent with the reply Ex.PW1/DX to the notice for restitution of conjugal rights did not mention that this amount was given in pursuance to the demand to the accused persons nor it is mentioned that it was given for construction of room and a kitchen in the house of in laws but she denied the suggestion that the story of alleged Rs.47,000/- was an afterthought and no such amount was ever given. She denied the suggestion that the amount of Rs.41,000/- mentioned in the list was shagan given at the relevant occasion of sagaai. She denied that the shagan given at the time of sagaai was only Rs.4100/- i.e. Rs.3100/- to accused husband Arun and Rs.500/- each to parents-in-law. She denied the suggestion that payment of Rs.75,000/- for construction of room and a kitchen in the house was cooked up by her after she had decided to show amount of Rs.47,000/- i.e. shagan money as a money given for construction.
11 She further denied the suggestion that neither Rs.47,000/- were given nor Rs.75,000/- was demanded by the accused persons for the purpose whatsoever. With respect to the receipts regarding purchase/making jewellery articles and other dowry articles, she denied the suggestion that all these receipts had been handed over to her by her friend Sunita who got married only one year prior to her marriage and was staying in Krishna Nagar and had purchased the jewellery from the same jeweller namely Ravi Verma who she stated to be her jeweller. She denied the suggestion that she has filthy tongue and she used to abuse FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 13 of 13 all the accused persons while she stayed in matrimonial house. She denied the suggestion that since inception of her marriage she wanted accused husband to live separately from his family and to live near her parents' house. She denied the suggestion that she made out a false story to implicate the accused. She denied the suggestion that her marriage broke only because of her attitude and selfish nature and because of her insistence to stay separately from her in laws.
12 PW-2 Retd. HC Mahavir Parsad is the duty officer who registered the FIR. He was not cross-examined.
13 PW-3 Rajiv Kumar Jain is the Jeejaji of the complainant. In his evidence, he stated that on the date of sagaai in Shahdara in 1992, a cash of Rs.47,000/- was given to accused Arun Jain and his father in his presence. The amount was given by father of complainant and this amount was given in separate room in the presence of other persons and at that time father of complainant had said that this money was given as needed by accused for making room and kitchen. He further stated that on 25.12.92 he went to matrimonial house of Vrishti (complainant) as it was a holiday. While he was climbing the stairs to her first floor house, he heard some noise and found that accused husband, complainant and mother of accused husband were standing outside room in verandah and some arguments were going on. The complainant was holding her clothes in one hand and her mother-in- law was telling her that if she wanted to take bath in bathroom she would have to bring money for construction of a room and a kitchen from her father. Complainant said that money had FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 14 of 14 already been given for this purpose on the occasion of sagaai. At this, accused husband slapped the complainant. This witness further stated that he tried to make accused husband understand many time after he had dropped her (complainant) at her natal house in the month of February, 1993 and he made many efforts to patch up the differences between the complainant and accused.
14 In his cross-examination by ld. counsel for accused persons, this witness was confronted with his statement u/s 161 CrPC wherein the fact that transaction of Rs.47,000/- took place in a separate room was not mentioned and also it was not mentioned that father of complainant disclosed that this amount was demanded by accused persons for construction purpose. The incident of 25.12.1992 was also not mentioned in his statement u/s 161 CrPC. He denied the suggestion that complainant was never slapped by accused husband at the matrimonial house in his presence nor at any other place in his presence and he was merely trying to fill the lacunae in the evidence of complainant. He denied the suggestion that he was lying. He denied suggestion that he was making false statement the complainant being his close relative.
15 PW-4 Smt. Kewal Kumari Kapoor is the colleague of the complainant. In her chief examination she stated that she was employed as receptionist in Doordarshan at relevant time. On 12.02.93 at about 5.00 pm, the accused came in the office and told her that he wanted to meet the complainant. After the complainant was called by this witness to meet the accused, both the parties had some conversation and the FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 15 of 15 witness could hear only that accused was asking the complainant "Munirka gayi thi aur tune mera kaam kiya ?" and then she saw accused slapping the complainant. She further stated that another staff member Mrs. Santosh Sharma was also sitting with her at that time. After some time,the complainant came to the reception weeping and when inquired by the witness she told that her husband was demanding money from her.
16 In her cross examination by the ld. counsel for accused persons, she denied the suggestion that no such incident took place and she was appearing in the court only to oblige the complainant being her old friend and colleague. She denied the suggestion that the complainant told her at the fag end of investigation when the chargesheet was almost ready that police wanted some witnesses to fill up the gap in her case and that is why she agreed to make false statement regarding slapping complainant and this way she wanted to support the case of complainant. She admitted that she agreed to become the witness in the present case at the request of complainant.
17 PW-5 is one Jinesh Kumar Jain. He is a witness to the marriage and is the son of bua of complainant. In his evidence, he stated that at the time of negotiations for marriage, he was present along with father in law of complainant Sh. M.P. Jain, accused Sushma Jain (unmarried Nanad), Arun Jain (husband) and Jagdish Chandra Jain (father of complainant) and one Prem Chand and stated that accused husband told at the time of negotiation that they did not have sufficient rooms in their house and suggested that they should be given cash for FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 16 of 16 making kitchen and room before marriage. He further stated that the accused persons wanted godrej furniture when the complainant's father expressed his inability to give the same, accused Sushma Jain (Nanad) suggested that the girl side should given a pair of kangan to complainant and they will themselves buy the furniture. He further stated that it was settled that a sum of Rs.51,000/- shall be given for construction of room and kitchen but the father of complainant could not arrange more than RS. 41,000/- and the witness along with father of complainant and one Virender Jain along with PW-3 Rajeev Jain visited the house of the accused persons and told them that they could arrange only Rs.41,000/- cash. Accused side was annoyed and stated that the settled amount was Rs.51,000/- and not Rs.41,000/-. At this time, Prem Chand Jain and Virender Jain were outside room in the house of the accused persons. Father of complainant came out of room and talked to Prem Chand Jain regarding the rest of the money. From Prem Chand he could arrange Rs. 6,000/- more and in this way father of complainant could hand over Rs. 47,000/- cash to father of accused Arun. Accused persons were assured that remaining Rs.4,000/- cash would be given later on and thereafter they all went to attend the sagaai ceremony where tilak ceremony was performed and a cash of Rs.501/- and a suit cloth and some ornaments were given to accused husband Arun. A sum of Rs.4,000/- was spent for Milni ceremony (Rs.101/- cash to each of relative). Thereafter, he has also made mention of efforts made by him for reconciliation between the parties. He has mentioned about one occasion (the date is not given) when he along with complainant and her parents went to house of accused husband where accused Arun, accused Sushma Jain along with FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 17 of 17 their parents were present. The complainant side requested them to change their behaviour towards the complainant. At this, accused Sushma expressed her grudge against the complainant and there was exchange of some hot words between both complainant and accused Nanad and the atmosphere became tense.
18 In his cross-examination by the ld. counsel for accused, he has been confronted with his statement u/s 161 CrPC wherein there is no mention of Rs.51,000/- and efforts for reconciliation. In his statement u/s 161 CrPC there is no mention of incident when he allegedly went to the house of accused husband and accused husband abused the complainant and her father. There was exchange of hot words between accused and the complainant. He denied the suggestion that he was making various allegations against the accused husband at the behest of complainant and father of complainant. He denied that his statement was recorded with a view to fill the lacunae and gaps in the case.
19 Father of complainant Sh. Jagdish Chandra Jain was also cited as prosecution witness but he died before he could be examined and his name was deleted from the list of witness.
20 PW-6 Sushila Jain is the mother of complainant. In her evidence she has supported the case of prosecution and has led her evidence on the lines of the same. In her cross-examination,she has stated that the amount of Rs.47,000/- was given to the father of accused husband in her presence and this amount was for construction of room FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 18 of 18 and a kitchen and at that time, accused Sushma and accused Arun, their parents and this witness and her husband (father of complainant) were present.
21 In her cross-examination, she stated that she and the complainant used to talk to each other through telephone from the office of the complainant as there was no telephone connection at the house of accused husband. She denied the suggestion that the complainant could not live with the parents of accused husband and accused husband should take a separate accommodation near her house. She denied the suggestion that the complainant i.e. her daughter is very short tampered, does not respect anybody and has filthy tone and uses abusive language and always ready to fight with others.
22 PW-7 is one Prem Chand Jain. He has not supported the case of prosecution and has resiled from his statement as given to the police. In his statement he did not remember anything about the present case. He also did not identify any of the accused present in the court but denied the suggestion that since he has been won over, that is why he is not disclosing true facts and deposing falsely. He was not cross- examined by ld. counsel for accused persons.
23 PW-8 is the IO of the case. In his evidence, he has proved the documents relating to investigation of the matter. In his cross- examination, he denied the suggestion that he never went to Munirka i.e. natal house of complainant. He denied the suggestion that he did not FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 19 of 19 record any statement of any person or that he was deposing falsely.
24 After conclusion of prosecution evidence, statements u/s 313 CrPC of accused Arun Jain and Sushma Jain were recorded wherein all the incriminating evidence was put to them. They denied the prosecution case in toto and have stated that this was a false case as the complainant was very adamant personality and wanted to register the false case to implicate their whole family in a criminal case. She and accused husband regularly used to go to functions, dinners and lunches together and enjoyed each holiday after their marriage and no act of cruelty was committed by her or by her family members. They did not even make any demand from the complainant or her family members at any point of time. The complainant had a very short temper and was adamant that her brother should live with her separately from his family members and live with her in a South Delhi accommodation and for this she was regularly harassing her and her family members.
25 Both the accused persons have admitted in their examination u/s 313 CrPC that they were tenants in the matrimonial house and that their landlord had died before the marriage of the complainant and accused husband took place.
26 Accused persons have led no defence evidence in support of their case.
27 I have heard detailed final arguments by ld. APP for State as FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 20 of 20 well as ld. counsel for accused persons and carefully gone through the entire record.
28 The complainant in her evidence has admitted that she had given in writing before the CAW Cell that she was prepared to live with accused husband if he stayed with her separately from in laws.
29 Today, accused husband Arun Jain has also on my oral asking admitted having filed reply to the list of dowry articles as submitted by the complainant before the CAW Cell. (I have taken judicial note of the proceedings before the CAW Cell in the present matter).
30 Complainant has made some improvements in her evidence given in the court. She has mentioned certain things which were not mentioned by her in any of her statements made before the police. She has stated that the accused persons on the next day of marriage stated that the dowry articles are of inferior quality and less in number. They also said "kis bhikmange ki ladki gale pad gai", whereas no such thing has been mentioned by her in any statement made to the police. There are three previous statements made to the police.
31 She has stated that before leaving for honeymoon just three days after the marriage i.e. 27.11.92, she handed over major portion of her jewellery to her mother-in-law (since expired). In her complaint to CAW Cell, she has given list of jewellery articles separately, entrusted, by her to accused husband, accused mother-in-law and accused nanad.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 21 of 21This does not happen in normal course of things that a newly married woman would hand over her dowry articles in piece meal to family members of accused husband. This has been done for the purpose of implicating all the three accused persons in offence u/s 406 IPC. I discard this part of her testimony as it is not believable at all. It is quite understandable that being a newly married girl, on asking by mother-in- law she might have handed over her jewellery to the mother-in-law. It is also her case that whenever she was attending any function, lunch, dinner etc with her husband or was going out, the accused persons used to give her whatever jewellery articles she demanded. As regards her visits to the house of accused persons to demand jewellery and dowry articles on four specific dates mentioned in her statement Ex.PW1/D (on which the present FIR is based); this statement has been recorded at fag end of investigation i.e. in March, 1994, whereas original complaint made to CAW Cell was made by her on 11.10.93 i.e. after about five months from the original complaint. Not only this, she has admitted in her evidence that her complaint to CAW Cell was drafted by her counsel Mr. S.K. Duggal and he got it typed from his typist along with list of dowry articles. Under these circumstances, when the complaint has been made after due deliberations with an advocate and considering that legal brains have been used, the authenticity of the contents mentioned therein is diminished to a great extent, as there is ample room for tampering with facts and making a fool proof concocted story to fit u/s 498-A/406/34 IPC. This is particularly so in view of the fact that just two months before the complaint before the CAW Cell in the month of August, 1993, a reply was sent to the notice of counsel for accused husband for restitution of FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 22 of 22 conjugal rights wherein a different list of dowry articles and cash was mentioned. I have been through both the lists. Even the first list i.e. in the reply to restitution of conjugal rights, the amount of Rs.47,000/- has been shown in the break up of Rs.41,000/- + Rs.2,000/- + Rs.2,000/- and it is nowhere mentioned that this amount was given for construction of kitchen and room though in the other list that complainant has given before CAW Cell which was filed within two month of this, it is clearly mentioned that this amount was given for construction of additional room and kitchen. The original list of dowry articles as prepared at the time of marriage was never produced by the complainant at any stage and both the lists as given by her have been confronted by the defence. Therefore, correctness and authenticity of the list of dowry articles is doubtful and I hold so.
32 Now, coming to the stand of accused side that the present was a simple marriage and no dowry (cash and jewellery) was given to them. The giving of cash has already been held to have been proved. Now coming to jewellery, it is totally unbelievable that no jewellery was given. Both the sides belong to Jain community and it was the first marriage of both the parties and particularly being an Indian arranged marriage, jewellery has to be given to a girl from both the sides. Indian marriages are, in fact, not complete without jewellery. Both the parties appear to belong to a reasonable middle class family background and do not belong to such a poor strata of society so as to be as unable to afford the jewellery.
33 Not only this, accused husband has filed a reply to the list of FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 23 of 23 dowry of the complaint filed before the CAW Cell wherein he has admitted that the complainant was given jewellery from both the sides. This ground of dowryless marriage, as taken by accused side, is therefore, false.
34 The amount of Rs.47,000/- as claimed by the complainant to have been paid at the time of sagaai, has been confronted by the accused persons in one breath. In the same next breath, a suggestion has been put to the witness that this amount of Rs.47,000/- was given to accused husband as shagun. The accused side is, therefore, blowing hot and cold at the same time.
35 In the cross-examination, a question has been put to which mother of complainant PW-6 Sushila Devi has stated that the parties belong to Jain community where dowry to be given is decided before hand. Under these circumstances, particularly, in view of the admission of the accused persons in their statement u/s 313 CrPC that they were living in a rented property and their landlord had already died before the marriage took place and in view of the fact that the matrimonial house was a small accommodation consisting of only two rooms and was not sufficient for five members excluding one pet dog (two members of which are a newly wed couple needing privacy and separate room), it is very much possible that an amount was agreed to be paid between the parties for construction of additional room and a kitchen and it lends credence to the story of prosecution that after the death of landlord the tenants (accused herein) were enjoying the property as owners and were in a position to make additional construction in the tenanted premises and that FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 24 of 24 is why the amount was demanded.
36 Therefore, I hold that the sum of Rs.47,000/- was demanded and given in the marriage towards construction of additional room and kitchen. It is not clear throughout the evidence as to whom this amount has been given. While two witnesses (PW-5 and PW-6) says it was given to father of accused husband, the other says it was entrusted to father of accused husband as well as to him (PW-3). On the other hand, the complainant in her statement/complaint before CAW Cell stated that this amount was given to all the accused persons collectively.
37 The counsel for accused has referred to various judicial pronouncements, ratio of which is that to bring home conviction u/s 406 IPC, a specific and accurate accused has to be named who has been entrusted with the articles. Secondly, there has to be proved a demand to give back the articles and thirdly refusal to give back the articles has to be proved. In this light, it is difficult to convict the accused persons u/s 406 IPC and I hold that offence u/s 406 IPC is not proved beyond reasonable doubts with respect to amount of Rs.47,000/-. In this light, I hold that though the amount of Rs.47,000/- in total (Rs.41,000/- + Rs.2,000/- + Rs. 2,000/- + Rs.2,000/-) and some jewellery was given in the marriage, the evidence regarding its entrustment to the accused persons is not trust- worthy.
38 Now I will deal with the aspect of section 406 IPC with respect to jewellery. The whole story of entrustment of the same is false on the face of it. The complainant could not have entrusted her jewellery FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 25 of 25 in pieces to each accused. Not only the entrustment but the demand to return back the same is also doubtful as averment regarding the dates on which the dowry articles were demanded back has been made for the first time after about a gap of more than one year from the date when the complainant finally left the company (or was made to leave the company of accused husband). The dates on which she visited the house of accused to demand back her articles were not mentioned even in her complaint to dowry cell which was made eight months after the date of separation of the couple on 11.10.93. Therefore, considering the delay, there is ample scope for concoction and introduction of falsity. I am not inclined to believe the version of the complainant regarding entrustment of dowry articles. I, therefore, acquit both the accused persons so far as offence u/s 406 IPC is concerned.
39 Now, coming to the question of offence u/s 498-A IPC. The complainant has mentioned some instances of dowry related cruelties. One is on 09.01.93 when she was threatened to be burnt alive by accused Nanad and mother-in-law. Thereafter, on 17.01.93, she was caught hold of by accused mother-in-law, accused Nanad and accused husband and they tried to kill her by setting her on fire with the help of kerosene oil. Accused husband put his hand on her mouth so that she could not cry, she bite his hand and was able to free herself. The neighbours started peeping in. The detailed incident has not been mentioned in any of her previous statements. Interestingly, in her original complaint to CAW Cell, she has mentioned that on 17.01.93, all the accused persons had only threatened to burn her alive and it was not her case that they had actually FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 26 of 26 attempted to burn her alive. This statement was given by complainant in her evidence before the court.
40 If such instances were true, there was no question that any educated working women such as complainant who is a qualified diploma holder in electronic engineering and is doing Govt. job in Doordarshan, would continued to stay in the same matrimonial house with the same persons and shall not make even a PCR call much less a written complaint to the police. She admitted having attended so many functions and parties including lunches and dinners along with accused husband during the period of her stay in matrimonial house which barely lasted two months and odd days. She has stated in her cross-examination that had accused husband not dropped her at parental home, she would have continued to stay with him to save her married life. Further, she admitted that till the time she stayed in matrimonial house, she stayed there willingly. No reasonable prudent girl, much less an educated and aware female, can be expected to live with her in-laws under these circumstances. Interestingly, just the next day, after the incident she had an opportunity to call her family members freely from office telephone without being under surveillance of the accused persons (as there was no telephone in the house of the accused husband) and she had the opportunity to tell the same to her colleagues and inform the police, but surprisingly, she kept mum and did not talk regarding the said incident with anybody and continued to stay in the matrimonial house. This belies the truth of the allegations and I hold that she has not been able to prove the dowry related cruelty on account of two instances mentioned above.
FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 27 of 2741 Now, coming to the incident of being not allowed to take food for several days and not being given any medical care in case of need. Regarding this also, there has not been made any previous complaint and an educated lady attending office on each and every day, firstly, she had an opportunity to eat food outside, secondly she cannot be expected to continue to live in such an atmosphere. These allegations also, therefore, do not hold ground.
42 Now, coming to the allegations regarding not being allowed to take bath. This allegation is against the mother-in-law that she did not allow the complainant to take bath for days. She has expired and other accused persons cannot be convicted on the basis of cruel conduct of deceased accused.
43 Some allegations of dowry related cruelty have been mentioned by PW-3 who claimed to be an eyewitness to the incident where accused husband had slapped the complainant. Interestingly, the complainant has herself also nowhere mentioned in any of her statement made before the CAW Cell nor in her evidence that she was slapped by the accused husband at the time when she wanted to take bath in the bathroom and her mother-in-law refused to permit her to take bath. 44 Secondly, the witness Smt. Kewal Kumari has also mentioned of incident of complainant being slapped by the accused husband for not meeting dowry demand in her office and she was weeping after the same. No such incident has been mentioned anywhere FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 28 of 28 by even by the complainant herself. The suggestion given by the counsel for the accused to both the above mentioned witnesses to the effect that the incidents have been introduced only with a view to fill up the gaps in the case of the complainant is valid, particularly, in view of the fact that witness Kewal Kumari admitted in her evidence that she agreed to become a witness in the present matter only on the request of complainant. Therefore, the evidence of these witnesses on the aspect of dowry related cruelty inspires no confidence and is accordingly discarded.
45 In this light, prosecution has miserably failed to prove any dowry related cruelty or any willful conduct of such type on the part of the accused persons which was sufficient to drive the complainant to commit suicide.
46 Therefore, the accused persons cannot be convicted for the offence u/s 498-A IPC. They are accordingly, acquitted of the offence u/s 498-A IPC as well as offence u/s 406 IPC.
47 Ld. APP for State has argued that the accused persons can definitely be convicted u/s 4 Dowry Prohibition Act for demanding dowry. I have already held above that the sum of Rs.47,000/- is proved to have been demanded by the accused and paid by the father of the complainant. In the cross-examination, a suggestion has been put by the counsel for accused to the complainant that this amount of RS.47,000/- was a shagan given on the occasion of sagaai; implying thereby that this FIR No. 70/94 State Vs. Arun Kumar Jain etc Page 29 of 29 amount is admitted by the defence to have been paid to the accused (though not as dowry). This amount was demanded on the pretext of constructing a room and a kitchen so as to create additional accommodation for the newly wedded couple. It is also quite possible in the circumstances that this amount was spent by the accused persons on the occasion of marriage and they demanded the amount afresh for construction of additional room and a kitchen. The evidence of the complainant has been consistent on this aspect and in my opinion she is not a wholly unreliable witness.
48 Therefore, I hold both the accused persons namely Arun Kumar Jain and Sushma Jain guilty for the offence u/s 4 Dowry Prohibition Act, though, they were not charged for this offence as it is an offence of lesser degree than the offence u/s 498-A IPC.
Announced in the open (SAVITRI)
court on 20.09.2013 MM (Mahila Court-I)
Shahdara/KKD/Delhi
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