Delhi District Court
Ritu Sethi vs State on 21 February, 2018
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
CR. APPEAL NO. 29/2016
RITU SETHI
D/o LATE SHRI R.K. CHOPRA
R/o HOUSE NO. 68, GF,
SECTOR 27, GURGAON
...PETITIONER
VERSUS
1. STATE
2. VIVEK SETHI
S/o LATE SHRI KAPIL SETHI
R/o S83, G.K.I, NEW DELHI
ALSO AT :
A27, GULMOHAR PARK,
NEW DELHI.
...RESPONDENT
Date of filing : 10.11.2016 First date before this court : 02.05.2017 Arguments concluded on : 17.02.2018 Date of Decision : 21.02.2018 Appearance : Shri Sharad Chandra, proxy counsel for appellant Shri Rakesh Mehta, Ld. Addl. Public Prosecutor for State Shri Amarjit Singh Bedi, counsel for respondent no. 2 J U D G M E N T
1. The complainant defacto of the magisterial trial titled State vs Vivek Sethi for offence under Section 498A IPC has preferred the Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 1 of 12 pages present appeal, challenging the judgment dated 17.09.2016 of the learned trial court whereby the accused (respondent no. 2 herein) was acquitted of charge for offence under Section 498A IPC. State did not support this appeal, so was impleaded as respondent no. 1. I have heard learned substitute Addl. Public prosecutor for State as well as learned counsel for appellant and learned counsel for respondent no. 2 who took me through trial court records. I have also perused the written synopsis filed on behalf of the appellant.
2. According to prosecution case, on 10.12.2001 appellant got married with respondent no. 2 according to Hindu marriage rites and ceremonies and their matrimony unfortunately fell in rough weathers, which ultimately culminated into prosecution of respondent no. 2 for offence under Section 498A IPC in case FIR No. 36/03 registered by PS Greater KailashI on complaint of the appellant. In her said complaint dated 05.08.2002, the appellant alleged that she knew respondent no. 2 even prior to their marriage, so respondent no. 2 was fully aware of her family background but from the very beginning, conduct of respondent no. 2 and his family members was inimical towards her. The appellant alleged in the said complaint that respondent no. 2 and his family members demanded dowry and treated her with cruelty, mental as well as physical by beating her up on various occasions.
3. The chargesheet was originally filed against respondent no. 2, his widowed mother and two unmarried sisters for offence under Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 2 of 12 pages Section 498A/406/34 IPC. However, as regards mother of respondent no. 2, the proceedings abated vide order dated 08.11.2012 of the learned Magistrate after she passed away. By way of detailed order of learned trial magistrate, sisters of respondent no. 2 were completely discharged while respondent no. 2 was discharged of offence under Section 406 IPC but was charged for offence under Section 498A IPC. The complainant defacto challenged order dated 10.03.2013 of the learned trial magistrate by way of revision petition, which was dismissed vide order dated 10.05.2013 by learned ASJ04, SouthEast, Saket, New Delhi. Charge for offence under Section 498A IPC was framed against respondent no. 2 to which he pleaded not guilty and after full fledged trial, respondent no. 2 was acquitted by way of the impugned judgment.
4. In the impugned judgment, the learned trial magistrate after recording in detail the entire prosecution case and evidence, arrived at reasoned conclusion that the allegations of dowry demand in the typewritten complaint of appellant are vague; that prosecution case suffered with lack of evidence to show expending of the alleged money/dowry; that there are discrepancies in the allegations of harassment and cruelty; and that the allegations of prosecution witnesses are not convincing.
5. Learned counsel for appellant argued that the appellant has mentioned specific instances of cruelty and dowry harassment, which the learned trial court ignored; that respondent no. 2 admitted that stridhan Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 3 of 12 pages of appellant was in possession of his mother, who later passed away; that the appellant was granted interim injunction from being forcibly dispossessed of her matrimonial home in a suit, though on technical grounds, the said interim injunction order was setaside in FAO (OS) 235/03 of the Hon'ble Delhi High Court after which, the appellant was thrown out of her matrimonial home; that the learned trial magistrate erred in disbelieving the medical prescription which reflected bruise over chin of the appellant; and that the investigating officer in his testimony admitted having not investigated the case on many aspects.
6. Keeping in mind the extent of arguments advanced on behalf of appellant, learned counsel for appellant was directed to file a short synopsis of his arguments for record. The same was complied with by way of appellant's written synopsis dated 17.02.2018. In the said written synopsis, learned counsel for appellant also referred to a number of judicial precedents, which have been examined by me. There is no dispute to the propositions of law laid down in the said judgments, but those propositions are not the points of dispute in this case.
7. Per contra, learned counsel for respondent no. 2 strongly argued that had there been any substance, the State would have preferred an appeal or would have atleast supported the present appeal. It was argued by learned counsel for respondent no. 2 that barring the police witnesses, there are only two prosecution witnesses namely the complainant defacto and a private doctor whose testimonies do not Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 4 of 12 pages inspire confidence.
8. Learned substitute Addl. Public Prosecutor for State also submitted that there is no infirmity in the impugned judgment of the learned trial court.
9. In the light of above mentioned rival contentions, the evidence adduced during trial has to be analysed.
10. Complaint dated 05.08.2002, lodged by the appellant before Crime against Women Cell was proved during trial as Ex. PW1/B. But the allegations leveled in the same lack specificity as to when the alleged demands were raised and as to whether the said demands were meted out. It is not mentioned specifically in Ex. PW1/B as to when respondent no. 2 demanded that second floor of house no. S83, Greater KailashI be furnished by appellant's parents so that the same could be used as matrimonial home of appellant and respondent no. 2. In complaint Ex. PW1/B, it has also been vaguely alleged that appellant's parents invested their life savings to fulfill the demands of the respondent no. 2. Neither the alleged demand has been spelt out specifically in the complaint nor the money allegedly spent by parents of appellant to fulfill the same has been mentioned. Not only this, in her testimony as PW1, the appellant did not testify on oath a number of allegations that find place in her complaint Ex. PW1/B. Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 5 of 12 pages
11. The allegation forming part of Ex. PW1/B complaint to the effect that on the night of Reception dated 11.12.2001 respondent no. 2 assaulted the appellant finds no mention in her chief examination as PW1 and no corroboration also from any medical or even ocular evidence. Similarly, the allegation forming part of Ex. PW1/B complaint to the effect that on 16.12.2001, appellant's motherinlaw suggested that family of appellant should pay Rs. 50,000/ for their honeymoon to Mauritius and when the appellant expressed inability, respondent no. 2 and his mother and sister abused the appellant, threatening to throw her out finds no mention in her chief examination as PW1.
12. In her complaint Ex. PW1/B and her chief examination, the appellant alleged that on 17.12.2001 she was assaulted by respondent no. 2 at behest of his mother, which made her call her father and on the next morning, her father along with Jimmi and Shorty, the cousins of respondent no. 2 came and they advised respondent no. 2 to try and make the marriage work and before them respondent no. 2 assured not to repeat his misconduct. But Jimmi @ Tanuj Sehgal the said cousin of respondent no. 2 in his testimony as DW1 did not support such an allegation.
13. Further, according to the appellant, on 17.12.2001 she was assaulted by respondent no. 2 with fists and kicks to such an extent that even on next day she had bruises all over her body and finger marks Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 6 of 12 pages around her neck, on seeing which her father got very scared for her safety but she did not lodge any police report. Failure to lodge police complaint despite such an assault is explained by the appellant in Ex. PW1/B by stating that she wanted to make her marriage work. But there is no explanation for not producing a shred of medical record even by way of any medical prescription for treatment of bruises. As mentioned above, on this allegation, Jimmi named by the appellant as eye witness in complaint Ex. PW1/B did not support her case in his testimony as DW1.
14. Further allegation of the appellant that she was made to contribute financially to the household expenses cannot be over stretched to be read as dowry torture keeping in mind her own job profile as an employee of the Australian High Commission, as reflected from her cross examination dated 06.06.2016. Being an earning member of the family if she was called upon to share the household expenses, it cannot be said that she was harassed for dowry.
15. In her chief examination, the appellant tendered in evidence as Ex. PW1/A, the letter dated 22.01.2002 allegedly written by her to her father to apprise him about the atrocities allegedly committed on her. I have perused the said letter Ex. PW1/A which is on two sheets (3 pages of a notebook paper) without any postal record. The said letter raises a suspicion that the appellant was trying to manufacture evidence. In her cross examination dated 31.05.2016, the appellant PW1 stated that she had posted that letter to her father since she was unable to visit her Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 7 of 12 pages parents due to ailment of her elder sister and because her father did not have a mobile phone at that time, though he had landline phone but the same was mostly unavailable. As mentioned above, it is undisputed that the appellant was a working lady and there is nothing on record to suggest that during the relevant period of January 2002 she was confined to home and was not attending to her office. In such circumstances, the natural conduct would be that the aggrieved lady would personally visit her parents while going to her office or on her way back home or she would speak with her parents over telephone but the conduct of an aggrieved lady writing such a letter, that too without any postal record raises strong suspicion about fabrication of evidence. Further, an aggrieved lady writing to her father about her husband would, in the natural course of conduct describe her husband by name only and not as "my husband Vivek", which is how the appellant described respondent no. 2 in letter Ex. PW1/A. It would be unsafe to convict respondent no. 2 ignoring such suspicious circumstance.
16. Another important aspect is that the appellant having compromised all her matrimonial disputes with respondent no. 2 by way of order dated 08.05.2014 of learned Principal Judge Family Courts, Central District, copy whereof is Ex. DW1/A, the appellant backed out of the settlement on 22.05.2014. In her cross examination dated 18.05.2015, the appellant PW1 admitted her signatures and thumb impression on the ordersheet Ex. DW1/A and admitted having read the same before signing it and also admitted that she was not pressurized by Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 8 of 12 pages anyone to sign the same and she signed it voluntarily. Of course, it is not being inferred that the prosecution from which the present appeal has arisen stood quashed merely on the basis of Ex. DW1/A without further appropriate proceedings. What is being pointed out is the veracity and reliability of such a witness from the point of view of criminal trial for an alleged matrimonial offence.
17. Another circumstance on which prosecution before the learned trial court tried to achieve conviction of respondent no. 2 was the alleged injuries caused by respondent no. 2 to the appellant for which she took treatment. In that regard prosecution examined the concerned doctor as PW2. In her chief examination as PW1, the appellant stated that on 26.07.2002 at about 12:10 am when she was watching TV, respondent no. 2 demanded Rs. 2,00,000/ and threatened to divorce her and hit on her jaw with fist, so she got herself medically examined by Dr. Sachhar vide medical document mark A and her photograph mark B. In her cross examination on this aspect, the appellant stated that earlier she had never clicked any photograph of hers in injured condition despite having suffered lump on her head and bruises all over her body; and that Dr. Sachhar did not call police to get prepared her MLC.
18. The said photograph mark B was seized by police but without its negative. It is nobody's case that the said photograph was taken from digital camera and in any case, if that was so, in the absence of a certificate under Section 65B of the Evidence Act, the said Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 9 of 12 pages photograph is inadmissible in evidence. Besides that technicality, looking at the photograph mark B, it cannot be said with certainty that the spot depicted at chin of the appellant was a bruise and not any allergic reaction, to rule out which possibility was the duty of prosecution.
19. Coming to the medical evidence as regards the alleged assault dated 26.07.2002, the doctor who had examined the appellant appeared as PW2 during trial and identified his signatures on the photocopy of prescription mark A. The said prescription is only a photocopy which was seized by police during investigation and the original prescription has not seen light of the day. PW2 Dr. Sachhar introduced himself as Senior Consultant with a medical institute, where be is working after retirement as Additional MS from Safdurjung Hospital and stated that he is aware about the procedure to be adopted by a doctor to whom a case of the present kind is reported, so he had referred the appellant to the casualty of Safdurjung or AIIMS since he did not maintain MLC book. PW2 specifically stated that he could not comment whether the injury observed by him on the appellant could have been self inflicted. PW2 also stated that at the time of preparing mark A, he was practicing as General Physician having retired as Additional MS from Safdurjung Hospital but was under no obligation to report the matter to the police. PW2 Dr. Sachhar was a retired Additional MS of a government hospital but in his private practice opted not to maintain MLC book and rather stated that he was under no Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 10 of 12 pages obligation to report the matter to police. Also admittedly, PW2 did not even maintain his parallel record as a doctor and maintained the prescription book even with unnumbered sheets which were open to fabrication. These are vital factors which make the medical evidence in this case unreliable. More significantly, it remains unexplained as to why the appellant did not get herself medically examined at any government hospital for preparation of reliable MLC, when according to her she got herself photographed because she intended to file a complaint.
20. Thus, there is also no clear and reliable medical evidence to establish any injury suffered by the appellant, much less connecting any injury with any assault allegedly committed by respondent no. 2.
21. In her testimony as PW1, the appellant also alleged that her father had to sell away his immovable property to meet dowry demands of respondent no. 2. But the appellant failed to give any specific particulars of the property allegedly sold by her father and date, month or even year thereof. Rather, in cross examination, the appellant was not even certain about this aspect and initially stated that the said property was sold in the year 200102 after her marriage but subsequently taking a somersault she stated that the property was sold prior to her marriage. No reliable documentary evidence was adduced by prosecution to establish that father of the appellant had to sell away his immovable property, much less to fulfill any dowry demand of respondent no. 2.
Cr. Appeal No. 29/2016Ritu Sethi vs State Page 11 of 12 pages
22. Prosecution also did not bring on record even shred of documentary evidence related to the purchase of the alleged dowry articles enlisted by the appellant vide Ex. PW1/C and Ex. PW1/D.
23. Learned trial court in the impugned judgment has elaborately analyzed the entire prosecution evidence threadbare and I find no anomaly in the same. I am in complete agreement with learned trial court that prosecution failed to prove its case beyond reasonable doubt. Therefore, the impugned judgment is upheld and the appeal is dismissed.
24. A copy of this judgment along with trial court record be sent back to the learned trial court and appeal file be consigned to records.
Announced in the open court on this 21st day of February, 2018 (GIRISH KATHPALIA) District & Sessions Judge GIRISH South East, Saket Courts KATHPALIA New Delhi 21.02.2018 (a) Digitally signed by GIRISH KATHPALIA Date: 2018.02.22 12:45:25 +0530 Cr. Appeal No. 29/2016 Ritu Sethi vs State Page 12 of 12 pages