Delhi District Court
State vs Chhote Lal Etc. on 24 July, 2008
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IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI
FIR No. 60/97
P.S Ashok Vihar
State V/s Chhote Lal Etc.
1. S.No. of the case : 621/2/98
2. Date of Institution : 01.09.1998
3. Date of Commission of offence: Since 15.05.1989
4. Name & Add. of Complainant : Smt. Sunita D/o Sh. Sant Ram
Verma, R/o G-239, J J Colony,
Wazirpur, Delhi.
5. Name & Address of Accused : 1). Chhote Lal Verma S/o Late
Sh. Harbhajan, R/o Village
Dumchipur, Mauja Umedjot,
Distt. Gonda, U.P. (aged
around 69 yrs)
(Sr. Citizen)
2). Smt. Chandra W/o Sh.
Chhote Lal, R/o Village
Dumchipur, Mauja Umedjot,
Distt. Gonda, U.P.(aged
around 65 yrs)
(Sr. Citizen)
3). Rajesh Kumar S/o Sh.
Chhote Lal, R/o Village
Dumchipur, Mauja Umedjot,
Distt. Gonda, U.P.
4). Ramesh Kumar S/o Sh.
Chhote Lal, R/o Village
Dumchipur, Mauja Umedjot,
Distt. Gonda, U.P.
6. Offence complained of : U/s 498 A/406/34 IPC
7. Plea of the Accused : Pleaded not guilty.
State V/s Chhote Lal Etc. FIR No. 60/97 JK
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8. Date on which Judgment : 23.07.08
has been reserved
9. Date of Delivery of the Order : 24.07.08
10. Final Order : Acquitted.
JUDGMENT
1. The brief resume of the prosecution case is that the accused Kamlesh Verma S/o Sh. Chhote Lal, was allegedly married on 15.05.1989 to one Sunita, the complainant, who had lodged a complaint on 24.09.1996 to CAW Cell, Nanakpura, New Delhi, regarding cruelties and mal-treatment at the hands of the accused persons i.e husband Kamlesh Verma, the father in-law Chhote Lal, the mother in-law Smt. Chandra, the sister in-law (nanad) Smt. Baby, the three brothers in-law (devar) Rajesh Kumar, Ramesh Kumar and Janardan Prasad, during the subsistence of her marriage, thereby alleging that they all in furtherance of their common intentions, committed the offences punishable U/s 498 A/406/34 IPC.
2. On the complaint of the complainant Sunita, the matter was investigated upon by the police officials of P.S Ashok Vihar and on completion of investigation of the matter, a charge-sheet for the offences punishable U/s 498 A/406/34 IPC was filed in the court against all the seven accused persons keeping the three accused persons namely Kamlesh, Janardan and Baby, in Column No.2 and rest of the four accused persons namely Chhote Lal, Chandra, Rajesh Kumar and Ramesh in Column No.4.
3. Vide order dt. 01.09.1998, the cognizance was taken by the predecessor court only against the four accused persons namely State V/s Chhote Lal Etc. FIR No. 60/97 JK 3 Chhote Lal, Chandra, Rajesh Kumar and Ramesh kept in Column No.4 and vide its order dt. 31.05.2000, the predecessor court of Smt. Reena Singh Naag, the then Ld. M.M, Delhi, framed charges only against the two accused persons Chhote Lal, the father in law and Smt. Chandra, the mother in law for the offences punishable U/s 498A/406/34 IPC to which they had pleaded not guilty and had claimed trial, while rest of the two accused persons namely Rajesh Kumar and Ramesh were discharged from both the offences punishable U/s 498A/406 IPC and thus, the trial had commenced only against the two accused persons namely Chhote Lal and Smt. Chandra i.e the parents in-law.
4. For proving its case, the prosecution has relied on the ocular evidence of 11 prosecution witnesses, mentioned in the list of witnesses, as per the charge-sheet, and during the long trial of around 8 years of evidence between 2000-2008, the prosecution could produce only 8 prosecution witnesses in all.
Out of these eight prosecution witnesses, PW-1 Sunita was the complainant herself and the alleged victim of the case as per the allegations against the accused persons and thus, she was the material star witness of the prosecution who could prove the circumstances for proving the allegations against the accused persons.
Whereas, PW-2 W/ASI Pushpa was the formal witness being the duty officer (D.O) who came to the witness box to authenticate the registration of the case and proved the copy of the same as Ex.PW-2/A and deposed that on 27.01.1997, while being posted at P.S Ashok Vihar, on the complaint of the complainant Sunita, she recorded the FIR bearing No. 60/97, U/s 498A/406 IPC with P.S Ashok Vihar. Thus, this witness is being treated as a formal witness who had come to the witness box only to authenticate the registration State V/s Chhote Lal Etc. FIR No. 60/97 JK 4 of the case.
Similarly, PW-3 Ct. Bhopal Singh and PW-7 Lady H.Ct. Anita, were the police officials who accompanied the investigating officer during the course of investigation and testified regarding the arrest of the accused persons namely Chhotey Lal and Rajesh, and of the accused Chandra. As they had nothing to say about the occurrence and about the allegations as they had reached on the spot only after occurrence, thus, they are treated as formal witnesses but necessary witnesses to prove the circumstantial evidence on record.
Similarly, PW-4 H.Ct. Satya Prakash was the police official who executed the process U/s 82/83 Cr.P.C against the accused Kamlesh, during investigation. Thus, he was also the formal witness to testify regarding the execution of process U/s 82/83 Cr.P.C against the accused Kamlesh. As he had nothing to say about the occurrence and about the allegations, thus, he is also treated as formal witness but necessary witness to prove the circumstantial evidence on record.
PW-5 Dharamveer Rana, PW-6 Sant Ram Verma and PW- 8 Gobind Prashad, were the public witnesses being the neighbourers of the complainant who had attended the marriage of the complainant, the father of the complainant and Uncle (Chacha) of the complainant, who were produced for proving the allegations against the accused persons but these witnesses were not the direct evidence either regarding the alleged harassment or mal-treatment to the complainant or for the demands of dowry or for demand of stri-dhan/dowry items or refusal of such dowry items. Thus, these witnesses are the witness of circumstances only and their testimony is treated as circumstantial evidence.
That is all for the ocular evidence of the prosecution.
State V/s Chhote Lal Etc. FIR No. 60/97 JK 5
5. Apart from the ocular evidence, the prosecution also produced the documentary evidence in support of its case, the same includes the complaint of the complainant Ex.PW-1/B, the copy of FIR Ex.PW-2/A, list of dowry articles Ex.PW-1/A, telegrams mark A to D, personal search of the accused persons Chhote Lal and Chandra was conducted vide memos Ex.PW-3/A and Ex.PW-7/A respectively.
That is all for the prosecution evidence.
6. The statements of both the accused persons were recorded under section 313 Cr.P.C wherein when all the incriminating evidence and documents were put to the accused persons, they denied all the allegations and incriminating evidence and documents put to them as incorrect, taking the plea that the witnesses have deposed falsely against them being the interested witnesses and they are innocent and have been falsely implicated in this case by the complainant as their son Kamlesh had come to Delhi to take back the complainant Sunita to his native place, sometime in 1996 but his son was found missing thereafter and they lodged a complaint regarding missing of their son Kamlesh at his native place at Ghonda, on which the complainant and her father were booked and thereafter, the present case was filed as a counter-blast of the said complaint.
In support of their defence, the accused persons did not lead defence evidence (D.E).
7. I have heard the final arguments of both the parties, Ld. APP on behalf of the State and of Ld. Defence counsel Sh. Rajeev Kumar on behalf of the accused persons.
It was submitted by Ld. APP that the complainant Sunita State V/s Chhote Lal Etc. FIR No. 60/97 JK 6 and her father Sant Ram Verma examined as PW-1 and PW-6 have supported the prosecution case on the point of dowry harassment and the other public witnesses examined who were the relatives of the complainant family have proved the entrustment of the dowry articles to the family of the accused persons at the time of marriage and also about the fact that the dowry articles were not returned on demand, to prove the offences punishable U/s 498A/406/34 IPC submitting that the other witnesses were the formal witnesses being the police officials who proved the formal evidence on record.
However, Ld. Defence counsel Sh. Rajiv Kumar has vehemently countered the prosecution case submitting that the complainant leveled allegations against the seven accused persons roping all the family members of the in-laws of the complainant but the court had taken cognizance only against the four accused persons at the time of filing of charge-sheet and at the time of framing of charges, the trial proceeded further only against the two accused persons namely Chhote Lal and Chandra i.e parents in law, showing the vagueness of the complaint of the complainant and that for proving the allegations, the prosecution has examined 8 prosecution witnesses and out of these 8 prosecution witnesses, 4 were the public witnesses and out of these four also, except the complainant, all were the witnesses whose evidence is inadmissible being hear-say, based on the narrations given by the complainant and that the complaint contains material contradictions in her testimony and also contains material non- corroboration on material points with her own version given to the police and that the complaint was counter blast of the FIR registered against her, at the instance of the accused persons.
Thus, it was requested that none of the allegations pertains to any of the offences against any of the accused persons, are proved State V/s Chhote Lal Etc. FIR No. 60/97 JK 7 by the prosecution beyond doubt and they are entitled for acquittal due to benefit of doubt.
8. Before appreciation of the evidence on record, it is worth to re-produce the provisions to appreciate the law on the points of allegations for the offences alleged against the accused persons.
Section 498A IPC reads :
Husband or relative of husband of a woman subjecting her to cruelty :
'Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, "cruelty" means-
a). any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b). harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
9. The plain reading of the section shows that whoever being the husband or relative of the husband of a woman, subjects such woman to cruelty, shall be held guilty for an offence punishable U/s 498 A IPC, and for proving cruelty, the legislative intentions are clarified by way of explanation defining cruelty two fold; one is 'willful conduct' on the part of the accused persons that was likely to drive the woman who commits suicide or cause grave injury or danger to the life or limb and second is in the form of harassment to the woman with a view to cocercing her to meet any unlawful demand for any property or valuable security or on account of failure by her to meet such demand.
State V/s Chhote Lal Etc. FIR No. 60/97 JK 8
10. For the purposes of the present case, as the case is not connected with any kind of suicide or injury or danger to the life and limbs of the complainant, explanation (b) of the section 498 A IPC is applicable, as the complainant has placed allegations regarding harassment caused to her at the hands of the accused in view to coerce her to meet the unlawful demands of dowry.
Thus, for proving an offence punishable U/s 498 A IPC, against the accused persons, the prosecution had to establish :
Firstly, that there was an unlawful demand of property or valuable security of dowry;
Secondly, the cruelty or harassment was for non-fulfillment of the same or to coerce the complainant to meet such demand and;
Also, for proving the offence U/s 498 A IPC, as per the settled law, the prosecution has to establish the specification of the specific demands and the persons who made such demands and that the demands were unlawful and that the complainant was harassed for non-fulfillment of such demands and/or to coerce her to meet such demands.
11. For proving its case, the prosecution has examined total number of 8 prosecution witnesses, out of these 8 prosecution witnesses, the prosecution has heavily relied on the testimony of the complainant Sunita, her father Sant Ram Verma and her uncle(Chacha) Govind Prasad, examined as PW-1, 6 and 8 respectively as the other witnesses were the police officials who came to the court to prove the documents either collected or prepared by them during the course of investigation or on neighbours of the complainant to prove the factum of giving of certain dowry articles to the complainant by her parents at the time of her marriage or regarding State V/s Chhote Lal Etc. FIR No. 60/97 JK 9 the facts and circumstances of the arrest of the accused persons during trial.
12. It is observed that all these three material witnesses PW-1, PW-6 and PW-8 who were produced to prove the allegations against the accused persons were absolutely within the list of interested witnesses, being complainant and her father and uncle, who were interested in positive result of the trial and thus, a close scrutiny of facts as stated by them is required while appreciating the evidence on record to reach to the right conclusion of the trial, in view of the observations made by the higher courts in this regard.
13. Now, on appreciation of evidence on record in the light of contentions of both the parties, it is observed that the complainant Sunita examined as PW-1 had testified in the court that her parents in law i.e the accused herein, were not happy with her parents regarding the facts that her parents had not given gold chain and gold ring to her husband. But in her entire testimony, she has not brought any facts to prove the fact that the un-happiness on this aspect of the accused persons had resulted any kind of cruelties or harassment to her, at the hands of the accused persons. Thus, these allegations do not attract the provisions U/s 498 A IPC.
14. Further, she has alleged that during her stay at her matrimonial home, she was given beatings and subject to cruelties and that she was not given proper food and she was treated by the accused persons like a maid servant. So far as these allegations are concerned, these are not specific to indicate the accused persons specifically that the present accused persons facing trial had given beatings or State V/s Chhote Lal Etc. FIR No. 60/97 JK 10 subjected her to cruelties or all the seven accused persons did that and thus, the allegations are found vague, non-specific and general in nature. Thus, these are also not attracting the provisions of section 498 A IPC in view of the law settled in a case titled as Hukami Devi and Ors. V/s State of Haryana cited as 1992 (1) RCR 357, wherein it was observed that, 'to establish of an offence punishable U/s 498 A IPC, the allegations have to be specific against each and every accused and general allegations of cruelty in terms of section 498 A IPC have been deprecated.'
15. Further, for the manner of harassment in the form of not providing proper food to the complainant and for giving her a treatment like a maid servant, it is observed that she has roped all the accused persons without specifying as to whether, the word 'accused persons' was indicative of two accused persons facing trial or against all the seven accused persons against whom the complaint was lodged, that is also without attributing any particular incident or particular role of one accused who did not provide her proper food or treated her as a maid servant.
Thus, these allegations are also 'general' in nature and are not sufficient to attract the provisions U/s 498 A IPC, in view of the observations made in a case titled as Dharam Pal V/s State cited as 1997 (3) CC Cases 1 (HC), wherein it was observed that, 'to attract the provision of section 498 A IPC, the allegations made should be specific and not vague..., the provisions of law requires that the deceased (complainant) should have been subjected to cruelties and harassment for demands of dowry...'.
16. Also, she has not mentioned anywhere that she was not State V/s Chhote Lal Etc. FIR No. 60/97 JK 11 given proper food or was treated as a maid servant, for the reasons of not bringing sufficient dowry or for non-fulfillment of any further dowry demand and thus, these allegations could not be connected with the dowry in any manner to cover it within the ambit of 'harassment' envisaged within the provisions U/s 498 A IPC.
17. The complainant in her testimony has specifically mentioned the incident of 23.03.92, during the period when she had given birth to a female child at her matrimonial home. She had deposed that her parents in law i.e the accused persons demanded Rs.10,000/- cash, a gold chain, 2 kg of pure ghee and 5 kg of dry-fruits from her parents. She has further deposed in the court that when her father could not arrange all these items, she was subjected to cruelties, by her parents in-law i.e the accused persons, her husband, Dewar and sister in law that, they 'tried' to kill her by pouring kerosine oil on her body and she could save herself with great difficulties and came out of the house where her neighbourers saved her life.
Regarding these allegations, it is observed that she has not specifically attributed the specific activities of cruelties towards any specific accused person to prove the allegations specifically against any of the accused persons as she has roped a large number of accused persons without attributing specific role to the particular accused person, as to who did what, thereby such allegations also could not be proved beyond reasonable doubts to cover it within the ambit of section 498 A IPC.
For this view, the reliance is placed on the observations made in a case titled as Dr. V.N Sharma & Ors. Vs. State in a case cited as 1995 JCC 558, wherein it was observed that :
State V/s Chhote Lal Etc. FIR No. 60/97 JK 12 'the story regarding the allegations against all the accused persons appear to be highly improbable and un-acceptable and keeping in view the allegations, that the allegations give rise to a suspicion, the probabilities and likelihood of willful conduct but do not prove beyond reasonable doubt with specifications regarding the reactions specifically of the individual accused on non- fulfillment of a particular demand and under these circumstances, the cruelty against the individual accused is not being attributed to any of the accused persons on the basis of allegations made, during description of the events by the complainant.'
18. Further, the incident referred appears, improbable as she has testified in the court that after such incident, the neighbourers of the area also approached the accused persons to make them understand but then also, the accused persons repeated their demands that the complainant should bring Rs.20,000/- and then only she would be allowed to be kept in the house but to support her testimony about further unlawful demand by the accused persons, none of such neighbourer was cited as a witness nor produced in the court to prove such allegations, though they were the alleged eye witnesses/participants of such incident for proving unlawful demand of dowry made to the complainant in their presence.
Also, to this extent, not only the investigation was found faulty but also the prosecution has not tendered any explanation to resolve the lacuna nor the prosecution has taken pain to call such independent witnesses, in the court during trial and only witnesses produced in the court were her relatives i.e her father and her uncle, examined as PW-6 and PW-8, for tracing such incident, when her testimony was compared with the testimony of PW-6, it was observed that this witness had produced lengthy depositions detailing out all the instances also referring the occasion of birth of the female child to her State V/s Chhote Lal Etc. FIR No. 60/97 JK 13 daughter and also regarding the demand of Rs.20,000/- cash as alleged by the complainant as PW-1 but in an absolutely different context having no corroboration at all with the facts testified by PW-1 on these facts and he has not even referred anything regarding the attempt of burning of the complainant by accused, by pouring kerosine oil on her body and saving her life by her neighbourers and gravity of the incident referred by the complainant was such that such incident with all such descriptions cannot be omitted from the memory of a father whose daughter has been allegedly harassed in such a serious manner, that was with intentions to kill her, at the hands of the accused persons.
However, the complainant, as PW-1, has deposed that she had sent an information of such incident to her father at Delhi through one of her 'relative' who had gone to Delhi. Such 'relative' was also not produced to prove and connect the accused with such incident.
These 'omissions' and material 'discrepancies' in the testimony of PW-1 and PW-6, are fatal to the prosecution case creating a doubt on the prosecution story, making such incident highly improbable.
19. Further, it is observed that her father (PW-6) has not reported such incident of an attempt to burn her daughter by pouring kerosine oil on her body in the manner, as was described by the complainant, but has referred as a passing reference, hence his testimony, contains material omissions and improvements on these aspects, making both the testimony of PW-1 and PW-6 absolutely non- corroborative particularly, when the complainant testified that this incident had taken place after the birth of her female child but PW-6 described it, as an incident prior to the birth of such female child. Also State V/s Chhote Lal Etc. FIR No. 60/97 JK 14 he has not deposed anything regarding the facts that some neighbourers also tried to pacify the matter and that he was also informed about it by some relative and that some 'relative' had given an information to him, sent by his daughter.
Also, PW-6 Sant Ram Verma has deposed that her daughter was given beatings after 2-3 months of 'Gauna' ceremony, for demand of money amounting to Rs.20,000/- but such facts regarding the demand of dowry after 2-3 months of 'Gauna' and such harassment for non-fulfillment of such demand were not mentioned anywhere in her testimony regarding any such harassment on that occasion of 'Gauna', rather testified in the court that the demand of Rs.20,000/- was made before the neighbourers who saved her on 23.03.97 when she made noise on the incident of pouring of kerosine oil on her body by the family of the accused persons i.e also after the birth of her female child.
On both these aspects, the testimony of both these material witnesses contains material contradictions to each other, not only on date, time and occasions, but also on the point of demand of dowry and also on the manner of harassment allegedly caused to her; affecting the credence of both these witnesses.
20. It is further observed that regarding the incident of 09.07.96, the complainant has testified that during her stay in her parental house, when she had left the matrimonial house, the accused Chhote Lal along with other relatives and two gunda type persons reached there and asked her father to send the complainant and on that occasion, her father had answered that she will be sent only through 'panchayat' of the biradari, after settling all the disputes and on ensuring the safety and security of the complainant, whereas, PW-6 has deposed in the court that on 09.07.96, one 'panchayat' was called after one year of State V/s Chhote Lal Etc. FIR No. 60/97 JK 15 such incident. And if, the dates are calculated accordingly, as per his depositions, then his witness has not mentioned anywhere in his testimony about the incident of 09.07.96, regarding the facts that the accused and some of the relatives along with two gundas, entered in their house and the gundas threatened him about consequences for not sending her daughter with them. To the contrary the complainant has not referred any such 'panchayat' after such incident of 09.07.96 in her testimony.
Thus, on these aspects also, both the witnesses have produced absolutely different stories making the prosecution story highly improbable, either on the point of demand of dowry or harassment at the hands of accused persons or regarding panchayat to ensure her safety and security, before sending her back to her matrimonial house.
21. Thus, it is observed that the material witnesses produced by the prosecution were containing material contradictions making the story improbable. The reliance is placed on a case titled as Jandel Singh Vs. State of Madhya Pradesh 2003 (4) JT 558, wherein it was observed that :
"if vital improvements and contradictions are found in the testimony of the witnesses without any satisfactory explanation, thereby, the testimony of PWs- do not inspire confidence and cannot be relied upon."
Further, the eye-witnesses of the incidents referred i.e the neighbourers or persons of the 'panchayat' or the relative through whom information was sent, were not produced by the prosecution to prove the authenticity of such persons and keeping them aback leads to an adverse inference that on their production, they may not support State V/s Chhote Lal Etc. FIR No. 60/97 JK 16 the prosecution case. For such observations, the reliance is placed on a case titled as AIR 1975 SC 1453, wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case."
Thus, it is observed that the testimony of material witnesses PW-1 and PW-6 produced by the prosecution, could not produce the corroborative version and their testimony, being infirm due to omissions and improvements with material contradictions on material points, lost the credence of their version, thereby, it could not prove the allegation U/s 498 A IPC against any of the accused persons, facing trial.
22. Thus, on the above observations on law and facts, it is observed that through the evidence on record the prosecution could not prove the case, beyond reasonable doubt as the material ingredients necessary to attract the provisions U/s 498 A IPC were not proved to prove the allegations against any of the accused persons on the basis of such evidence.
23. Now, coming to the allegations for an offence punishable U/s 406 IPC. For this offence also, before the appreciation of evidence on record, it is worth to produce the provisions under which the allegations are levied against the accused persons, that reads as under
:
Section 406 :- Punishment for criminal breach of trust 'Whoever commits criminal breach of trust shall be punished with imprisonment of either State V/s Chhote Lal Etc. FIR No. 60/97 JK 17 description for a term which may extend to three years, or with fine, or with both.
24. In the light of the above provisions of law and on the law settled for the nature of offences alleged in the present case, for proving an offence punishable U/s 406 IPC, the prosecution was under
an abundant duty to prove the following basic ingredients :
1).that the dowry items were entrusted upon the accused persons by the complainant at a particular point of time;
2). that the same were demanded by the complainant; and,
3). that the same were not returned back on demand, by the accused persons, who kept the same with dishonest intentions of mis-appropriation for their own use.
25. On meticulously going through the ocular evidence on record, It is observed that the number of dowry articles were mentioned by the three public witnesses PW-1, 6 and 8, produced to prove such facts but all these three witnesses have given different description of such dowry articles.
Also it has come on record that no list was prepared at the time of marriage for such dowry articles to make it certain as to what dowry articles were given at the time of marriage of the complainant and the list was also prepared only after the registration of complaint in the P.S i.e after 8 years of the marriage, when most of the articles must have lost its description. Thus, on record it could not be proved with certainty as to what were the dowry articles 'entrusted' upon the accused persons.
Moreover, in a vague manner it has been deposed by all these three witnesses that the dowry articles were given at the time of marriage to the accused persons without any specification as to who State V/s Chhote Lal Etc. FIR No. 60/97 JK 18 was entrusted upon with what property. Thus, the 'entrustment' of a particular dowry article could not be proved by the prosecution beyond reasonable doubts.
26. Thus, on the basis of evidence produced on record, the element of entrustment of dowry articles, was not proved to attract the provisions U/s 406 IPC against any of the accused persons.
Moreover, the prosecution could not prove through any direct or circumstantial evidence that the dowry articles given in the marriage was ever demanded by the complainant from accused persons, and that they refused the same on demand at any particular point of time. And it is a well settled principle of law that for proving an offence U/s 406 IPC, it has to be proved that there was a specific entrustment of dowry articles to accused, who refused to return on demand with dishonest intentions to convert such property for their own use.
Thus, the allegation was not proved for offence Us/ 406 IPC in view of the observations made in a case titled as Anu Gill V/s State cited as 2002 (1) RCR (Criminal) DHC 82, wherein it was observed that :
'to constitute the offence under section 406 IPC, there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant, that the accused was dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of stri-dhan were even entrusted to her. In the absence of the allegation of entrustment, question of misappropriation or conversion to her use does not arise. Thus, the most vital ingredient to constitute the offence U/s 406 IPC is missing. In view of the above, no case U/s 406 IPC is State V/s Chhote Lal Etc. FIR No. 60/97 JK 19 spelt out against the petitioner.'
27. Thus, on the basis of above observations on law and facts, the court is of the considered view that through the ocular evidence with the supporting documentary evidence on record, the prosecution could not successfully prove its case beyond reasonable doubts, against any of the accused persons Chhote Lal and Chandra, for any of the offences punishable U/s 498A/406/34 IPC.
28. Therefore, on the basis of principles of criminal justice system, as the prosecution has miserably failed to prove its case beyond reasonable doubts, a benefit of doubt is given to the accused persons Chhote Lal and Chandra, and both of them are accordingly acquitted from the charges levied against them for the offences punishable U/s 498A/406/34 IPC.
File be consigned to R/Room.
Announced in the open court On 24th Day of July, 2008 (Dr. ARCHANA SINHA) Metropolitan Magistrate, Tis Hazari Courts, Delhi State V/s Chhote Lal Etc. FIR No. 60/97 JK