Delhi District Court
State vs . Mohan Singh & Ors. on 30 May, 2012
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURTS, NEW DELHI.
Unique ID No. 02406R0252292002
State Vs. Mohan Singh & Ors.
FIR No. 91/01
P. S. Kalkaji
U/S 498A/406/34 IPC
JUDGMENT:
1. Date of institution 27.09.2002
2. Date of commission of offence On and after 11.04.1999.
3. Name of the complainant Maninder Kaur
4. Name of the accused 1. Mohan Singh S/o Sardar Dayal
Singh (Since deceased)
2. Gurudayal Singh S/o Sardar
Mohan Singh
3. Manvinder Pal Singh S/o
Mohan Singh
4. Smt. Harjinder Kaur W/o Sh.
Kirpal Singh
All R/o CA9A, Shalimar Bagh
5. Smt. Ajeet Kaur W/o Jujar Singh
R/o WZ34, Plot No. 28, Gali No.
2, Ravin Nagar, Khyala Village,
Delhi
6. Kavaljeet Kaur W/o Paramjeet
Singh
7. Paramjeet SIngh S/o Lt Sh.
Harnam Singh
Both R/o P14A, Jangpura
Extension, New Delhi
FIR No. 91/01 PS Kalkaji Page No. 1
5. Nature of offence complained of 498A/406/34 IPC
6. Plea of the accused Accused persons pleaded
not guilty
7. Date reserved for order 25.05.2012
8. Final Order Acquitted
9. Date of such order 30.05.2012
BRIEF FACTS OF THE CASE:
1. Brief narration of facts is that accused were arrested by police of PS Kalkaji and sent to this Court to face trial on the complaint of the complainant that all the accused persons on or after 11.04.1999 in furtherance of their common intention subjected the complainant to cruelty coupled with demand of dowry.
Secondly accused Mohan Singh(since deceased) and Maninder Pal Singh also entrusted with stridhan articles of complainant which were not returned back to her after demand. Hence the accused persons committed offence u/s 498A/406 IPC
2. After complying with the provisions of section 207 Cr. P.C charge was framed against accused persons on 17.09.2003 to which they pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined following 6 witnesses.
4. PW1 Manvinder Kaur is the complainant She deposed that she was married to accused Maninder Pal Singh on 11.04.1999. Her father spent more than Rs. Five lacs and presented her with stridhan articles as stated in Ex. PW1/A. Certain articles were also presented to her FIR No. 91/01 PS Kalkaji Page No. 2 from her husband's side. After four days of marriage, her husband, father in law, Jeth, jethani and sister in law started beating her for dowry. Her husband used to come back home late and used to sleep in the room of her sister in law as the TV was kept there. She was made to do the entire household work. On 10.11.1999 she informed her husband about her pregnancy. Her husband gave beatings to her. All the accused persons asked her to bring AC and scooter or to abort the child. She then informed her parents about their demands. On 16.11.1999 all the accused persons beat her and turned her out of the matrimonial house. They asked her to bring AC and scooter or else not to come back. On 17.06.2000 her daughter was born but no one from the accused family came to meet her. On 21.01.2011 she went to her matrimonial house to take her clothes. All the accused persons did not permit her to take the same however, she could carry only few clothes. She lodged a complaint Ex. PW1/B. She went to the police for the recovery of the articles but could not recover anything as the accused persons had hidden the articles. She identified the TV but the accused persons said that the TV belongs to them and so the TV was not seized. Her double bed was broken therefore she did not take back the same. None of the stridhan articles were returned to her.
She had to be cross examined by Ld. APP for State wherein she admitted that her husband used to take drugs, used to beat her and demand AC and scooter. All the accused persons told her that her father will get his tenanted property vacated and give it to her husband to start his business within 15 days. All of them tortured her for non fulfillment of the demands. Her husband used to go to her parental house and take money from her father and sister ie Rs. 1,000/, 1,500/ and Rs. 2,000/ and never returned it back. She came to know after her marriage that her husband was a divorcee. Her devar used to threaten FIR No. 91/01 PS Kalkaji Page No. 3 her that if in case she lodged a complaint he would eliminate his entire family as he had connections with VIPs.
In her cross examination, she stated that she does not know the income of her father but she knew of rental income of Rs. 8,000/ from his factory. An amount of Rs. Five lac was spent by contributions from relatives and her father. The receipts of dowry articles were given at the time of marriage but the same were not given to her personally. She admitted that accused was having a scooter at the time of marriage but the same was very old. On 16.11.1999 the accused persons gave her beatings but her 'Nanad' and 'Nandoi were not present on 16.11.1999. She did not report to any doctor or police station when she was given beatings. Her father might have called the accused persons 34 times.
Further in her cross examination she stated that on 16.11.1999 all the accused persons gave her beatings. She does not know whether all the persons not residing at her matrimonial house were called or had come on their own. The accused persons did not raise demand of any specific brand of scooter but all the accused persons used to demand scooter. No list of dowry articles was prepared at the time of marriage.
5. PW2 Inder Singh is the father of complainant. He could not be cross examined as he was stated to be unwell, therefore his testimony cannot be read.
6. PW3 H.C. Balbir is the duty officer.
7. PW4 Harbansh Kaur is the mother of complainant. She deposed that her daughter was married to accused Maninder Pal Singh. She was told by her daughter that she was harassed for demand of dowry ie AC and scooter. The husband of her daughter also demanded to give him their house for his business.
FIR No. 91/01 PS Kalkaji Page No. 48. PW5 Mahender Singh is the uncle of complainant. He deposed that the articles were given to accused Maninder Pal Singh at the time of marriage but after some time his niece was given beatings for non fulfillment of demand. She was asked to bring AC and scooter and some money.
In his cross examination, he admitted that the articles given at the time of marriage were customary and demand was not raised by the family members. He was informed about the harassment by father of complainant.
9. Again PW5 Atar SIngh is the IO. He deposed that on 04.02.2001 he received a complaint for registration of FIR. After registration of FIR he arrested the accused persons and conducted their personal search. He went to Govindpuri to the matrimonial house of complainant where he recovered dowry articles at the instance of the complainant and deposited the same in the malkhana. He recorded the statement of the witnesses.
10. PW6 H.C. Hans Kumar went to the PS and got the FIR registered.
11. Evidence of the prosecution was closed on the statement of Ld. APP. Statement of accused persons u/s 313 CrPC was recorded in which they stated that they have been falsely implicated in the case. Accused persons chose to lead evidence in defence. All the accused persons examined themselves as witnesses u/s 315 CrPC and passed the test of cross examination.
12. The case was argued at length by the Ld. APP for the State and the counsel for the accused persons. Ld. APP submitted that the FIR No. 91/01 PS Kalkaji Page No. 5 prosecution has substantially succeeded in establishing the case against the accused persons. From the deposition of the prosecution witnesses guilt of the accused persons is proved beyond reasonable doubt.
13. On the contrary, counsel for the accused persons argued that the accused persons have been falsely implicated in the case as the complainant never wanted to reside with the accused as she was financially supporting her parents and used to leave the house without informing the accused. No specific role has been assigned to any of the accused persons especially the married sister in laws and their husbands. The demand of scooter and AC has been reiterated without giving any dates when the said demand was raised. The complainant in her cross examination has herself admitted that her sister in law and her husband were not present when she was given beatings on 16.11.1999. She further stated that all the accused persons were present on 16.11.1999. She is not clear as to who were present when demand was raised. She has generally stated that all the accused persons used to raise demand without assigning specific role to each accused person. No receipts or bills have been filed to substantiate her claim for misappropriation of stridhan articles. Accused persons deserve to be acquitted.
14. I have heard the rival contentions of both the counsels as well as gone through testimonies of witnesses and perused the records. I am of the view that the material witnesses are complainant and her mother as the father has not appeared in the witness box due to his sickness and was dropped from the list of witnesses. The complainant has time and again reiterated the demand of scooter and AC without FIR No. 91/01 PS Kalkaji Page No. 6 giving any specific date when the demand was raised. She had simply stated that all the accused persons used to raise the demand of scooter. It is quite improbable that the married sister in laws and their husband would come to the matrimonial house of the complainant and collectively raise the demand of AC and scooter as she has categorically stated that that all the accused persons used to raise demands and then gave beatings for the non fulfillment of the same. The complainant herself is confused as at one place she says that her sister in law and her husband were not present on 16.11.1999 thereafter she states that all the accused persons were present. She has roped in the entire family of the accused Maninder Pal Singh without assigning any specific role to each of the accused persons. Generally stating that a demand was raised by all the accused persons would not prove the charges u/s 498A IPC.
15. She left the house in the year 1999 and the complaint has been filed in the year 2001. She has not explained the delay in filing the complaint after two and a half years as she has never herself approached for any reconciliation. She does not even know when her father had contacted for reconciliation. She had narrated another incident of 21.01.2011 when she had gone to her matrimonial house and the reasons stated by her for her visit was to collect her clothes and not for residing in the house. That means she has not made any effort for going back to her matrimonial house. She did not remember the various instances referred to by her in her complaint Ex. PW1/B and had to be cross examined by Ld. APP for the same. She had not stated that she had forgotten the same due to lapse of time. All the accused persons have stated on oath and have also passed the test of cross examination by reiterating their defence that they were not even FIR No. 91/01 PS Kalkaji Page No. 7 on talking terms with the complainant and had hardly met her due to the indifferent attitude of the complainant and the husband Maninder Pal Singh stated that she used to visit her parental house and would leave without his permission and information from the school itself and that she left his house on her on accord and did not return even on his request. He has stated that the father of complainant used to demand money from him and he had also given him Rs. Ten Thousand on13.08.1999. The complainant would never serve food to him and did not take interest in her matrimonial house.
16. I feel that in the absence of any specific date, month or year mentioned by the complainant when the demand was raised and without assigning specific role to each of the accused persons offence u/s 498A IPC is not proved. Reliance in this regard may be placed on Hans Raj Sharma & Ors. V. State Govt. of N.C.T. of Delhi, Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A of IPC.
Smt.Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18 where it was observed:"It is not every harassment or every type of cruelty that would attract Section 498A IPC Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.
Similar view was taken in Richhpal Kaur Vs. State of Haryana & Anr. 1991 (2) RCR 53 where it was observed that in case of beatings given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry, offence under Section 498A would not be made out. The Hon'ble Supreme Court in Kans Raj Vs. FIR No. 91/01 PS Kalkaji Page No. 8 State of Punjab & Ors. 2000 (5) SCC 207 held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and in State of Himachal Pradesh Vs. Nikku Ram & Ors. (1995) 6 SCC 219 it was held that harassment to constitute cruelty under Section 498A Explanation (b) must have nexus with the demand of dowry and if this is missing the case would fall beyond the scope of Section 498A.
Similar was the view expressed in Raj Kumar Khanna Vs. State (NCT of Delhi) 95 (2002) DLT 147 (DB) where after referring to various authorities the Hon'ble High Court held that it is not every harassment or every type of cruelty that would attract the provision of Section 498A IPC and that harassment to constitute cruelty under Section 498A IPC must have nexus with the demand of dowry and if that was missing the case would fall beyond the scope of Section 498A IPC.
At the outset the prosecution has failed to prove offence U/s 498A IPC the accused is accordingly deserves discharged for these offences as far as 498A is concerned.
Reliance in this regard was be placed on Hans Raj Sharma & Ors. Vs. State Govt. of N.C.T of Delhi. Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A IPC.
In view of the aforesaid discussion, I conclude that the offence under Section 498A IPC is not established beyond reasonable doubt against the accused as admittedly no specific instances of cruelty with date and time have been mentioned.
17. Regarding the offence under Section 406 IPC, the prosecution in order to establish its case was required to prove the following FIR No. 91/01 PS Kalkaji Page No. 9 ingredients:
(i) entrusting a person with the property or with any dominion over property.
(ii) that person entrusted (a) dishonestly misappropriated or converted that property to his own use; or (b) dishonestly used or disposed of that property or willfully suffered any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
At the outset, I find that there is no specific date, time mentioned when the stridhan articles were entrusted by the complainant to the accused and as to when she demanded them back or that the accused refused to return the same.
Reference may be made to Maninder Singh & Ors. Vs. State of Haryana & Anr. II (1993) DMC 605 where it was held that in view of the vagueness of the allegation regarding entrustment of dowry articles and the alleged maltreating, the continuance of the proceedings in pursuance of the FIR would amount to any abuse of the process of the Court and it was observed that in that case there was no evidence as to which article was entrusted to which of the accused persons.
In Shanti Devi Vs. State of Harayana I (2000) DMC 697 it was observed that it was not clear from the complaint which was the basis for prosecution as to when the accused persons demanded articles or money or misappropriated the articles given to the bride or the bridegroom at the time of marriage.
Again in Rai Singh Vs. Smt. Gurdev Kaur 1989 (1) RCR 647 it was observed that there was no specific allegation that any specific article had been entrusted to the petitioners therein at the time of FIR No. 91/01 PS Kalkaji Page No. 10 solemnization of marriage and there was no detail concerning individual acts of cruelty or harassment and as such no offence under Sections 406 or 498A IPC was made out.
In Dhan Devi Vs. Deepak 1989 (1) RCR 278 it was held that the allegation that the articles were entrusted to all the accused was vague and in the present case as well the allegation is regarding all the accused persons.
Further in Raj Kumar Khanna Vs. State (NCT of Delhi) & Ors. 95 (2002) DLT 147 (DB) it was observed that to attract Section 406 IPC there must be specific allegation of entrustment. Similarly in Sukhbir Jain & Anr. Vs. State 1993 JCC 91 it was observed: "Regarding offence Under Section 406 IPC no specific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence u/s 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to prima facie make out a cognizable offence under Section 406 IPC."
Accused persons are accordingly acquitted for the offences alleged against them.
Announced in open court ( POOJA TALWAR )
on 30.05.2012. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 91/01 PS Kalkaji Page No. 11
State Vs. Mohan Singh & Ors.
FIR No. 91/01
P. S. Kalkaji
U/S 498A/406/34 IPC
30.05.2012.
Present. Ld. APP for State.
Accused with counsel.
Vide my separate judgment of even date, accused is acquitted of the charges levelled against them. Now to come up for furnishing of bail bonds on 01.06.2012.
( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi/30.05.2012.
01.06.2012.
Present. Ld. APP for State.
Accused with counsel.
Bail bonds furnished. Accepted and attested. File be consigned to record room after due compliance ( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi/01.06.2012.
FIR No. 91/01 PS Kalkaji Page No. 12