Delhi District Court
State vs . Pratap Singh on 4 April, 2013
IN THE COURT OF MS SHIVALI SHARMA: METROPOLITAN MAGISTRATE/MAHILA COURTS, WEST DISTRICT, DELHI FIR NO: 203/02 P. S. Maya Puri U/S 406/498A IPC and 3/4 Dowry Prohibition Act ID No. 02401R0473212010 04.04.2013 STATE VS. PRATAP SINGH Date of institution : 19.02.2003 Date of Commission of offence : 05.06.1983 and thereafter Name of the Complainant : Sheela Devi W/o Sh. Khcheru Ram Name, parentage & address : Pratap S/o Late Sh. of accused Mukh Ram, R/o Village Aya Nagar, PO Arjungarh, Mehrauli, New Delhi. Offence Complaint of : U/s 406/498A IPC Plea of the accused : Pleaded not guilty Final Order : Acquitted State Vs. Pratap Page No.1of28 Date for reserve of order : 03.04.2013 Date of announcing of order : 04.04.2013 BRIEF FACTS AND PRE TRIAL PROCEDURE
1 The present FIR has been registered on the basis of a type written complaint dated 12.02.2002 made by the complainant Sheela. The allegations as made in the complaint are that the complainant was married with accused Pratap on 05.06.1983 according to Hindu rites and customs. After marriage, the behaviour of her husband became cruel towards her and he started humiliating, torturing and harassing her without any rhyme or reason. He repeatedly raised the demand of cash from Sheela for his job. When Sheela showed her inability to fulfill the said demand, her husband Pratap Singh started beating her. In the year 1986 Pratap Singh tried to burn Sheela by pouring kerosene oil on her while she was preparing food. Prior to her marriage, it was also concealed by her husband and her in laws that he was a divorcee and it was his second marriage. His first wife had taken divorce from him as he used to even beat her.
2 Accused Pratap Singh also took a sum of Rs. 30,000/ from State Vs. Pratap Page No.2of28
the brother of complainant Sheela namely Jagar Singh for joining the service but did not return the said amount. Although the first child of the complainant was born at her matrimonial home however, her second daughter was born at her parental home because of the torture and beatings given to the complainant by her husband. In the year 1989, complainant had come to Delhi along with the husband on the death of son of her brother Jagar Singh but her husband left her at the house of her brother and did not take her back. All the jeweleries, cash and istri dhan articles of the complainant were lying in the custody of Pratap Singh. 3 Even during the time when the complainant was residing at her matrimonial home, her brothers were not permitted to meet her whenever they visited her matrimonial home for the purpose. Since 1989 the complainant had been residing with her brother as her husband Pratap Singh had deserted her. Till date he had not even given a single paise to her for her maintenance. The accused Pratap Singh had even visited her brother's house and misbehaved, abused, manhandled and threatened the brothers of the complainant. Hence, the complaint.
4 On the basis of the complaint, present FIR was registered State Vs. Pratap Page No.3of28
against accused Pratap Singh u/s 498A/406 IPC.
CHARGE 5 After completion of the investigation and recording the statement of the witnesses charge sheet was filed against accused Pratap Singh u/s 406/498A IPC and Section 3 & 4 Dowry Probhition Act. Other six accused persons were kept in Column No.2. However, only accused Pratap Singh was summoned by the Court. After completion of necessary formalities, charge was framed against accused Pratap Singh u/s 406/498A IPC on 03.11.2003 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
6 Prosecution has examined eight witnesses in all to bring home the guilt against the accused Pratap Singh. Their testimonies are touched upon in brief in order to have a better understanding of the case.
7 PW1 Complainant Sheela who deposed about her marriage with accused Pratap Singh in the year 1983. She further stated that the dowry articles given by her brothers in the marriage were entrusted to her husband Pratap Singh and his father in the marriage by her brothers namely Munna Lal and Jagar Singh.
State Vs. Pratap Page No.4of28 During her marriage, she had also entrusted her dowry articles and valuable articles to accused Pratap Singh and the same were taken to her matrimonial home at Village Aya Nagar, PS Arjun Garh, Mehrauli, New Delhi.
8 She further deposed that her brother had given clothes, jewelery, furniture, utensils and jewelery consisting of one mang tika of gold, one gold necklace and five other items made of silver.
The list of dowry articles has been proved as Ex. PW1/A. The admitted list given by accused Pratap Singh has been proved as Ex. PW1/C and the list of difference in articles have been proved as Ex. PW1/B. The seizure memo regarding seizure of handwritten valuation of the dowry articles given by the complainant (Ex. PW1/E) and a photocopy of the list of dowry articles dated 05.06.1983 (Mark A) has been proved as Ex. PW1/D. The witness further deposed that accused Pratap Singh had produced certain articles at Women Cell but she had not received the same as they were not her dowry articles. The list of the said articles produced by accused Pratap Singh and her statement to the effect that they are not her dowry articles by way of a memo has been proved as Ex. PW1/F. None of her dowry State Vs. Pratap Page No.5of28 articles were returned back by accused Pratap Singh and the same are still in his possession. She had demanded her dowry articles back from the accused Pratap Singh but he refused to returned back the same by saying that all her articles have been spoiled. She had demanded the return of her dowry articles during the proceeding before CAW Cell.
9 She further stated that after marriage, accused Pratap Singh started harassing her for more dowry and used to demand a sum of Rs. 50,000/ from her for his job. Her brothers somehow arranged Rs. 30,000/ and handed over the same to the accused at his house. But the accused was not satisfied and he continued to harass and torture her. On one ocassion, accused had spilled kerosene oil upon her in the year 1986. At that time she had seen the accused from the back side and then she managed to escape from him. Her brother Jagar Singh had made a complaint before PS Mehrauli in this regard. The accused did not return the amount of Rs. 30,000/ taken by him from her brother.
10 She further deposed that during the subsistence of her marriage, she had given birth to one son and one daughter. Her daughter was born at her parental home because she was turned State Vs. Pratap Page No.6of28 out of her matrimonial home by accused Pratap Singh in the year 1989 when she was in family way. Her husband had left her at parental home after giving beatings for the sake of gold and cash. She was left at her parental home in the year 1989 on the death of her nephew after giving her beatings and since then she was residing at her parental house. The accused never came to take her back to her matrimonial home. Both her children are also with her since then.
11 She further deposed that her husband used to give her maltreatment at the instigation of her jeth and jethanis. Whenever her brother used to visit her matrimonial home to meet her and she informed her brother about the maltreatment given to her, accused Pratap Singh also misbehaved with her brothers. Her husband had also not given any maintenance to her since the year 1989. Accused Pratap Singh was arrested in her presence vide memo Ex. PW1/D and personally searched vide memo Ex. PW1/I. Her statement was also recorded by the police.
12 In her cross examination by Ld. Defence counsel, the witness stated that her vidai had taken place from her parental home only. She had made a complaint in the year 1986 about State Vs. Pratap Page No.7of28 pouring of kerosene oil upon her. However, no action was taken in this regard. She denied the suggestion that police had come to a conclusion that it was a false case or that her brothers had admitted that all her jewelery articles were lying with them and they would return the same to her before police on 15.06.1986 but later on refused to return the same. She was also confronting with her statement u/s 161 Cr.PC Ex. PW1/DA where the incident of pouring of kerosene oil was not recorded.
13 She testified that her brothers had given Rs. 30,000/ to accused Pratap Singh for his job and the same was to be returned by him within 12 months. She further stated that her daughter was born within one month after she had gone to her brother's house in the year 1989. She denied the suggestion that when she had come to her brother's house in the year 1988 on the death of his son, she had stayed back and asked accused Pratap Singh to return back with an assurance that she would be taken back within 23 days. But he did not took her back thereafter. She also denied the suggestion that when accused Pratap Singh revisited her brother's house to bring her back in the year 1988, she had refused to return back. She further testified that no compromise State Vs. Pratap Page No.8of28 had taken place before any Panchayat or Bridari. A compromise took place only at PS Vasant Vihar. However, the accused had not taken her back. She denied the other suggestions given by Ld. Defence counsel.
14 PW2 is a neighour of the complainant namely Goverdhan who deposed that on 05.04.2008 that complainant Sheela was married with accused Pratap Singh about 2526 years back. He had attended the marriage. The marriage was a simple one and watch, cycle, radio and other articles as per the capacity of the family members of Sheela were given in the marriage. Sheela used to reside near his house. Sheela was beaten and sent back to her parental home. Pratap Singh and his father came to take Sheela and she was again sent back with them. She was again beaten and sent back to her parental home. People from the village went to the house of accused Pratap Singh and got a compromise affected and Sheela was left there. However, she was again beaten and when her brothers went to bring her back they were also beaten. Finally Sheela was again beaten and sent back to her parental home.
15 In his cross examination, the witness stated that he had not State Vs. Pratap Page No.9of28
told the police about the efforts of compromise. He could not tell the date of marriage of Sheela. He stated that a list of dowry articles was prepared but he had not signed the same. He further testified that he had heard in the Village about Sheela being beaten. He denied the other suggestions given by Ld. Defence counsel.
16 PW3 is a formal witness being the DO HC Kanwar Pal who proved the copy of the present FIR as Ex. PW3/A and the endorsement made on the rukka as Ex. PW3/B. 17 PW4 is the brother of the complainant Jagar Singh who deposed about the marriage of Sheela with Pratap Singh on 05.06.1983. He stated that since their father had expired prior to marriage of Sheela and he was elder brother of Sheela, sufficient dowry articles were given by him as per his status in the marriage of Sheela. Sheela remained well in her matrimonial home till 19.07.1989. However, even during this period there used to be constant quarrels between Sheela and Pratap Singh on account of dowry demands raised by Pratap Singh. On 19.07.1989, his son had expired and accused Pratap Singh left his sister Sheela at his home. Sheela informed him that Pratap Singh had clearly told her State Vs. Pratap Page No.10of28 that he would never take her back until all his dowry demands were fulfilled.
18 He further stated that he was informed by his sister Sheela that on previous ocassion, Pratap Singh had demanded that she should ask him to get a tap connected at her matrimonial home. He had also demanded a gold chain, Rs. 10,000/ in cash and clothes from his sister Sheela on the birth of her son. Out of this Rs. 5000/ were given to them on the said ocassion. The said demand was also raised from him directly by accused Pratap Singh when he had visited his house in the year 1986. 19 He further stated that Pratap Singh had also demanded Rs. 20 to 25,000/ in cash from him for his service. Out of the said demand, Rs. 5000/ was given by him to Pratap Singh from his PF account. The accused had also poured kerosene oil on Sheela in order to pressurize her for fulfilling his demands. A complaint in this regard was also filed at PS Mehrauli.
20 He further deposed that when accused Pratap Singh had left his sister Sheela at his home in the year 1989, he along with his sister had visited her matrimonial home. However, accused quarreled with him and had beaten him. He also escaped from State Vs. Pratap Page No.11of28 there after putting a lock on the door of the house and despite efforts he could not be traced. Finding no option, he had returned back to his home along with his sister. On 23 other ocassions also, he had gone to the matrimonial house of Sheela in order to meet the accused but he never met him. He was also abused by the relatives of accused Pratap Singh. Efforts were also made for compromise at CAW Cell, Vasant Vihar. However, the accused paid no heed to the said efforts of compromise. 21 At CAW cell accused had compromise the matter on 18.06.2002. The copy of this settlement is Mark D. After compromise her sister Sheela had taken back her complaint. However, accused Pratap Singh in order to harass Sheela made a complaint against her at Nari Raksha Samiti, Civil Lines, Delhi. They received summons from the said committee dated 08.07.2002 copy of which is Mark C. Accused also tried to threaten them by bringing gunda elements at the said samiti. Accordingly, they did not proceed further with the said samiti. Finding no other option, Sheela again made a complaint before CAW cell. All the istridhan articles of his sister Sheela were lying in the possession of accused Pratap Singh and despite repeated demands the same State Vs. Pratap Page No.12of28 have not been returned back to her.
22 The witness was declared hostile by the prosecution on the ground that he was resiling from his earlier statement given by him in u/s 161 Cr.PC. After seeking permission from the Court, witness was cross examined on behalf of the State. In his cross examination he admitted that Sheela had told him that the accused had demanded Rs. 50,000/ from her for his service. Since he was unable to fulfill the said demand the accused continued to make the said demand and continued harassing his sister for the fulfillment of the said demand. So he arranged Rs. 30,000/ from his PF, by selling his buffaloes and through his brother. He also stated that the said demand was raised by the accused prior to the demand of Rs. 20 to 25,000/ as deposed by him in his examination in chief. He also admitted that at the time of the marriage, all the original receipts with respect to the dowry articles were handed over to accused Pratap Singh.
23 In his cross examination by Ld. Defence counsel he was confronted with his statement recorded u/s 161 Cr.PC wherein the incident of pouring of kerosene oil on her sister by accused Pratap Singh had not been recorded. He was also confronted regarding State Vs. Pratap Page No.13of28 his deposition regarding the demands allegedly raised by accused Pratap Singh at the time of birth of his son as deposed by the witness in his examination in chief. He admitted that he had not stated in his statement u/ 161 Cr.PC that all the istri dhan articles of Sheela were lying in possession of the accused and had not been returned back to her despite repeated demands. He also admitted that he had not stated in his statement u/s 161 Cr.PC about the efforts of compromise made by him as deposed in his examination in chief.
24 He showed ignorance when asked about the decree of divorce granted in favour of the accused Pratap Singh and Sheela on the ground of desertion and cruelty by the Court of Ms. Anju Bajaj Chandana on 16.01.2007. He admitted that on 15.06.1986, he had promised to return the jewelery of Sheela lying with him at PS Mehrauli. But he denied the suggestion that he had not returned the same. He also admitted that the documents mark Band C were never produced before the police during the course of investigation of the case. He denied the other suggestion given by Ld. Defence counsel.
25 PW5 is brother of complainant namely Munna who deposed State Vs. Pratap Page No.14of28
that on 05.06.1983 his sister was married with accused Pratap Singh. Since their father had expired prior to marriage of Sheela, sufficient dowry articles were given in the marriage by him and his brother Jagar Singh as per their status.
26 Sheela remained well in her matrimonial home till 19.07.1989. However, even during this period there used to be constant quarrels between Sheela and Pratap Singh on account of dowry demands raised by Pratap Singh. On 19.07.1989, son of his brother Jagar Singh had expired and accused Pratap Singh left his sister Sheela at his brother's home. Sheela informed him that Pratap Singh had clearly told her that he would never take her back until all his dowry demands were fulfilled. 27 He further stated that Pratap Singh had also demanded Rs. 20 to 25,000/ in cash for his service. Out of the said demand, Rs. 5000/ was given by his brother Jagar Singh to Pratap Singh from his PF account.
28 Accused has also demanded Rs. 50,000/ from his sister Sheela. Sheela told about the said demand to him and his brother Jagar Singh. However, they were unable to arrange the said amount. The accused continued pressing his demand and State Vs. Pratap Page No.15of28 torturing his sister again. Somehow they arranged Rs. 30,000/ from his brother Jagar Singh's PF account, by selling his buffaloes and some amount was arranged by him. This demand was raised by the accused prior to the demand of Rs. 20 to 25,000/ stated earlier. At the time of marriage all the original receipts of the dowry articles were handed over to accused Pratap Singh. 29 After accused had left his sister Sheela at Jagar Singh's house in the year 1989, Jagar Singh had tried to settle the matter and had even visited her matrimonial home. However, accused had quarreled with him and beaten him. Finding no option her sister made complaint before CAW cell. All the istri dhan of Sheela were lying in the possession of accused Pratap Singh and despite demand the same have not been returned to her.
30 In his cross examination, the witness stated that he did not remember the dates when the demands of dowry was raised from his sister by the accused due to lapse of time. He also testified that his brother Jagar Singh had given cash to accused on his demand in his presence on many ocassions. He admitted that his sister had been divorce. He also admitted that on 15.06.1986 his brother Jagar Singh had promised to return the jewelery of Sheela at PS State Vs. Pratap Page No.16of28 Mehrauli. However, he denied the suggestion that the said jewelery was never returned. He denied the other suggestions given by Ld. Defence counsel.
31 PW6 is IO ACP Achala Rampal who deposed that on 12.02.2002 she was handed over the investigation of the present case. During investigation she recorded the statements of the witnesses u/s 161 Cr.PC. Accused Pratap Singh was arrested vide memo Ex. PW1/B and personally searched vide memo Ex. PW1/I. The accused Pratap Singh had also produced some dowry articles at CAW cell but the complainant had refused to take the possession of the same on the ground that they did not belong to her. The said dowry articles were seized vide memo Ex. PW1/F. Vide seizure memo Ex. PW6/A a letter written by the complainant to SHO was also seized by her. She also seized documents given by the complainant at CAW cell with respect to total value of her istri dhan articles and list of her istri dhan articles dated 08.03.1983 vide seizure memo Ex. PW1/D. On completion of investigation charge sheet was prepared and filed before the Court. The witness was not cross examined despite opportunity.
32 PW7 is the inquiry officer W/SI Sunita Sharma who State Vs. Pratap Page No.17of28
deposed that on 25.09.2002 while she was posted at PS Vasant Vihar she had received the present matter for inquiry from ACP, Women Cell. During inquiry she tried to reconcile the matter between the parties but no compromise was affected. She prepared the final report Ex. PW7/A and send the matter back to ACP for appropriate directions and registration etc. 33 In her cross examination, she stated that while she was conducting inquiry it was alleged by the complainant that she and her brothers were beaten by the accused persons but no such incident had occured in her presence. She denied the other suggestions given by Ld. Defence counsel.
34 PW8 is Mrs. Saroj Kumari Principal of Primary School, Prathmik Vidalaya, Ghanghol, Greater Noida, Gautam Budh Nagar, UP. She deposed that Kunti daughter of Pratap Singh had studied in their school till Class V. She proved the copy of the register containing details of Kunti as Ex. PW8/A and her school leaving certificate as Ex. PW8/B. She further deposed that the date of birth of Kunti as per their record was 05.07.1990. 35 In her cross examination, she testified that the date of birth of the child mentioned in school records as told to them by his/her State Vs. Pratap Page No.18of28 concerned guardian and no affidavit or other document from any Municipal Authority, Gram Panchayat, Hospital, Dispensary, etc is taken from the parents of the child to verify the date of birth of the child.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE 36 Statement of accused Pratap Singh u/s 313 Cr.P.C was recorded wherein he had denied entire allegations made against him. He admitted his marriage with Sheela in 1983 but stated that the dowry articles as mentioned in the list Ex. PW1/A were not given in the marriage and only a few articles of daily use were given. When the articles were demanded from him, he had tried to return the same to the complainant at CAW cell however, she had refused to receive the same on the pretext that they did not belonged to her. He had himself deposited the dowry articles in the concerned PS and had never misused the same. The dowry articles were also not entrusted to him. He denied the other allegations of demand and harassment given to the complainant and stated that he had himself taken the complainant to her parental home after the death of her nephew. However, thereafter she refused to returned back despite several attempts made by State Vs. Pratap Page No.19of28 him to bring her back. She was not interested to reside with him and had falsely implicated in the present case. 37 Accused examined one witness in support of his defence. 38 DW1 is Sh. Kartar Singh being cousin brother of the accused. He deposed that wife of Pratap Singh was a lady of quarrel some nature and whenever she stayed with him, she used to quarrel with him. His house is just adjacent to the house of Pratap Singh and there is only one wall between the two houses. Accordingly, he could know what was happening at the house of accused Pratap Singh. He had attended the marriage of Pratap Singh with Sheela. Pratap Singh had never harassed Sheela for any dowry demand. He is a person of very good nature. Many times compromise was affected betwen Pratap Singh and Sheela but family of Sheela never sent her to reside with Pratap Singh. Marriage of Sheela was solemnized with Pratap Singh in the year 1983 and she had left her matrimonial house in the year 1988. When the girl child was born to Sheela in 1988 at her parental home, father of Pratap Singh had gone to her parental home with 5 kg desi ghee and Rs. 500/ cash but he was badly beaten and thrown out from there. Even when father of Pratap Singh had State Vs. Pratap Page No.20of28 expired Sheela did not come to pay her last tribute to him. Pratap Singh was not having any articles of Sheela.
39 In his cross examination by Ld. APP for State, he admitted that the marriage of Sheela and Pratap Singh was second marriage of Pratap Singh. However, he denied that Pratap Singh had concealed the factum of his first marriage from Sheela prior to their marriage. He denied the other suggestions given by Ld. APP for State.
40 Final arguments have been heard and record has been meticulously perused.
APPRECIATION OF EVIDENCE AND LAW 41 The offence for which the accused persons have been charged is u/s 498A IPC. Section 498A IPC provides as under:
"498A. 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 State Vs. Pratap Page No.21of28
(a) any wilful 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."
42 Section 498A IPC has been interpretted and its scope has been elaborated and discussed in detail by our own High Court in case titled as SANJEEV KR. AGGARWAL VS. STATE cited as 2008 (2) AD (Delhi) 586. The crux of the interpretation is as discussed below.
43 From a bare perusal of Sec. 498A as enshrined in IPC, it can be said that for attracting Explanation (a) of Sec. 498A, the cruelty has to be of such gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health. 44 Explanation (b) to Sec. 498A IPC is attracted only where harassment is shown to have been committed for the purpose of State Vs. Pratap Page No.22of28 coercing a woman to meet the demands for dowry in the nature of property or valuable security or because such demands have not been met. Thus, harassment in order to constitute cruelty under Explanation (b) must have nexus with the demand of dowry and if this is missing, the case will fall beyond the scope of Sec. 498A IPC.
45 In the instant case, as per the original complaint the only demand for which the complainant was harassed and tortured by her husband accused Pratap Singh was a demand of cash for his service. The complainant has not specified in her complaint as to what was the cash amount which was demanded by her husband. In paragraph no.6 of her complaint she has also stated that the accused had taken Rs. 30,000/ from her brother Jagar Singh for joining the service but till date the said money has not been returned back to her brother by the accused Pratap Singh. As regards this demand, in deposition before this Court the complainant (PW1) had stated that her husband had demanded Rs. 50,000/ for his job from her and his brother had paid Rs. 30,000/. However, in her cross examination she has testified that the said amount of Rs. 30,000/ was to be returned by her State Vs. Pratap Page No.23of28 husband to her brother within one or two months and the same was not returned back. Her admission in this regard clearly show that the said amount of Rs. 30,000/ was not given to the accused Pratap Singh by her brother as dowry but as financial assistance. Thus, this cannot be considered to be a dowry demand as required in offence u/s 498A IPC. Beside this specific demand the complainant had not mentioned even a single demand which was raised by the accused Pratap Singh from her either in her original complaint or in her deposition before this Court. She has simply stated that she was beaten by her husband but what was the reason for the alleged beatings has not come on record in her deposition. It is a settled law that in order to bring the case within the four corners of the offence u/s 498A IPC, there should be a nexus between the dowry demands and the alleged harassment given to the complainant. Since this nexus is clearly missing in the present case as is absolutely clear from the evidence on record, there is no sufficient material available on record for convicting the accused for offence u/s 498A IPC.
46 As regards the other demands mentioned by the brothers of the complainant namely Jagar Singh who has been examined as State Vs. Pratap Page No.24of28 PW4 and Munna who has been examined as PW5, said demand have not been proved beyond reasonable doubts in the present case as the complainant had uttered even a single word about the said demand eithers in her complaint or in her deposition before the Court. Thus, the said demand as mentioned in testimony of PW4 and 5 have not been proved beyond reasonable doubt and therefore, no prima facie case is made out against the accused Pratap Singh.
46 The second evidence for which the accused has been charged is offence u/s 406 IPC.
47 For punishment for Criminal Breach of Trust (hereinafter referred to as "CBT") U/s 406 IPC, offence of CBT as defined u/s 405 IPC is to be proved.
Section 405 IPC reads as under:
"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contact, express or implied, which he has made touching State Vs. Pratap Page No.25of28 the discharge of such trust, or wilfuly suffers any other person so to do, commits "criminal breach of trust".
48 Considering the definition as mentioned above, the basic requirements to bring home the accusation u/s 405 IPC is to prove cojointly.
(1) entrustment with property or with any dominion over property,and (2) whether the accused was actuated by dishonest intention in misappropriating it or converting it to his own use to the detriment of the person who entrusted it.
49 In the present case, in her original complaint the complainant had stated that all her jewelery and cash were in custody of her husband Pratap Singh. However, in the entire complaint there is no allegation that she had demanded the return of the said jewelery articles from her husband and he had refused to return the same or had misappropriated the same. In cross examination of her brothers PW4 and 5, they have admitted that the jewelery articles of the complainant were lying with PW4 i.e brother of complainant Jagar Singh and he had undertaken to return the same on 15.06.1986. No evidence has been led on record to prove that the said jewelery articles were returned back by brother of the State Vs. Pratap Page No.26of28 complainant Jagar Singh and if returned to whom they were entrusted. This admission by brothers of the complainant clearly clouds the case of the petitioner regarding entrustment of her jewelery articles to the accused with doubt. It has also been duly proved in the evidence of the IO (PW6) that the accused had produced all the dowry articles of the complainant before CAW Cell on her demand. However, the complainant had refused to take possession of the said articles and stated that they did not belong to her. The same were accordingly taken into police custody. The complainant had failed to place on record any receipt of the dowry articles to prove that the dowry articles which were produced by the accused were actually not belonging to her. Moreover, since the accused has produced whatever dowry articles were in his custody before CAW Cell on the demand of the complainant the essential ingredients of offence u/s 406 IPC are not duly proved on record beyond reasonable doubts. Since the entrustment of jewelery articles as well as misappropriation of the jewelery articles by the accused is clouded with doubt, it is difficult to convict the accused Pratap Singh for the offence u/s 406 IPC on the basis of evidence which has come on record.
State Vs. Pratap Page No.27of28
CONCLUSION
50 In view of the reasons and findings given above accused
Pratap Singh is acquitted for the offence u/s 498A/406 IPC. Let the copy of judgment be given free of cost to the accused. However, his B/Bs & S/Bs shall stand extended for a period of six months u/s 437A Cr.PC.
ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA)
TODAY ON 04.04.2013 Metropolitan Magistrate,
Mahila Court/West/Delhi
State Vs. Pratap Page No.28of28