Delhi District Court
State vs Sumitra Tuli Etc. on 22 December, 2007
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IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI.
FIR No. 433/96
P.S Kirti Nagar
State V/s Sumitra Tuli Etc.
1. S.No. of the case : 292/2/02
2. Date of Institution : 19.08.97
3. Date of Commission of offence: Since 19.11.1995
4. Name & Add. of Complainant : Alpana Tuli D/o Sh. Ved
Prakash, R/o G-69, Kirti Nagar,
New Delhi.
5. Name & Address of Accused : 1). Dwarka Nath Tuli S/o Sh. Labh
Chand, R/o Wz-283/24, Gali No.4,
Vishnu Garden, New Delhi.
2). Sumitra Tuli W/o Sh. Dwarka
Nath Tuli, R/o Wz-283/24, Gali
No.4, Vishnu Garden, New Delhi.
3). Yashpal Tuli S/o Sh. Dwarka
Nath Tuli, R/o C-4 E/330,
Janakpuri, New Delhi.
4). Vijay Kumar Tuli S/o Sh.
Dwarka Nath Tuli, R/o Wz-
283/24, Gali No.4, Vishnu
Garden, New Delhi.
5). Asha Rani Tuli W/o Sh.
Vijay Kr. Tuli, R/o Wz-283/24,
Gali No.4, Vishnu Garden,
New Delhi.
6. Offence complained of : U/s 498A/406/34 IPC.
7. Plea of the Accused : Pleaded not guilty.
8. Date on which Judgment : 20.12.07
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK
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has been reserved
9. Date of Delivery of the Order : 22.12.07
10. Final Order : Acquitted
JUDGMENT
1. The brief resume of the prosecution allegations against the accused persons Yashpal Tuli, the husband of the complainant, Dwarka Nath Tuli, the father in law, Sumitra, the mother in law, Vijay Kumar Tuli, the brother in law and Asha Rani Tuli, the sister in-law, were that the complainant Alpana was married to the accused Yashpal Tuli on 19.11.95 as per Hindu rites and ceremonies at Delhi but no issue has been born out of the wed-lock. It was alleged that subsequent to marriage, the complainant was not treated properly in her matrimonial home and was treated with cruelties at the hands of the accused persons who were her husband and the in-laws and they harassed her in furtherance of their common intentions for non- fulfillment of the dowry demands raised by her husband and his family members and that at last she was compelled to leave the matrimonial home to save her life.
2. For the above allegations, the matter was referred for registration of case and an FIR No. 433/96 was registered with P.S Kirti Nagar.
3. On completion of investigation of the matter, a charge-sheet was filed against the five accused persons for the offences punishable U/s 498A/406/34 IPC, on which cognizance was taken by the Ld. Predecessor court vide its order dated 19.08.97.
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 3
4. Further, vide order dt. 30.07.98, the predecessor court of Sh.
D.S Sidhu, the then Ld. M.M framed charges against all the five accused persons namely Dwarka Nath, Sumitra, Yashpal Tuli, Vijay Kumar and Asha Rani Tuli, for the offences punishable U/s 498A/34 IPC and against the accused Dwarka Nath, Sumitra and Yashpal for an offence punishable U/s 406/34 IPC, to which all the accused persons had pleaded not guilty and had claimed trial. However, in the meanwhile, one of the accused namely Dwarka Nath expired and the proceedings against him were abated vide order dt. 17.02.05.
Thus, the trial had commenced only against the four accused persons namely Sumitra Tuli, Yashpal Tuli, Vijay Kr Tuli and Asha Rani Tuli.
5. For proving its case, the prosecution examined total number of six prosecution witnesses.
Out of these six prosecution witnesses, PW-1 Alpana was the complainant and the alleged victim of the allegations against the accused persons and thus, was the material star witness of the prosecution who could prove the circumstances for proving the allegations against the accused persons.
Whereas PW-2 Brij Lal Sharma was the formal witness being the duty officer (D.O) who had come to the witness box to authenticate the registration of the case and proved the copy of FIR as Ex.PW-2/A and deposed that on 01.10.96, on receiving one complaint from CAW cell, he recorded FIR bearing No. 433/96 U/s 498A/406 IPC with P.S Kirti Nagar. Thus, this witness is being treated as a formal witness who had come to the witness box to authenticate the registration of the case.
Similarly, PW-3 Ct. Pawan Kumar and PW-4 Lady Ct. Rajni were the police officials who had testified in the court that during State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 4 investigation, they had participated in the investigation with the Investigating Officer SI Rajmal (herein after referred as IO) and the accused Dwarka Nath and Sumitra were arrested in their presence and the household articles were taken into possession from the house of accused by the IO vide seizure memo Ex.PW-3/C, in their presence.
Thus, these witnesses were the formal witnesses though necessary to prove the circumstances in which, some of the articles were seized during the course of investigation by the IO, from Wz-283/24, Gali No.4, Vishnu Garden, Delhi but these witnesses were nothing to say about the other allegations and to that extent, they are treated as formal witnesses.
In this series, SI Rajmal was examined as PW-5. He was the investigating officer (IO) who deposed about the circumstances in which the investigation was conducted, the case was registered on the complaint of the complainant, the alleged dowry articles were recovered and the accused persons were arrested and that on completion of the investigation, he filed the charge-sheet in the court, as final report of investigation.
As this witness was to prove the proceedings conducted by him during the course of investigation, thus, this witness was the necessary material witness for proving the recovery of the dowry items but as he was not the witness to any other events or allegations made against the accused persons, thus, he was nothing to say anything regarding the allegations and thus, to that extent, he is being treated as formal witness.
Whereas, PW-6 Ved Prakash was the father of the complainant Alpana who had testified nothing except the facts regarding witnessing of the arrest of the accused Dwarka Nath, against whom the proceedings had already been abated. Thus, this witness is also treated State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 5 as formal witness only.
Thus, basically for proving the allegations against the accused persons, the prosecution case rests on the sole testimony of PW-1 Alpana and for proving circumstances, on the testimony of PW-3 Ct. Pawan Kumar and PW-4 Lady Ct. Rajni, through their circumstantial evidence; also, for proving the documents, prepared or collected by the IO, the testimony of PW-5 SI Rajmal was material to the extent of proving the investigation and the factum of formal arrest of the accused persons.
6. In addition to the ocular evidence of the above mentioned six prosecution witnesses, the prosecution has produced documentary evidence consisting of complaint of the complainant Ex.PW-1/A, copy of FIR Ex.PW-2/A, arrest memos of accused Dwarka Nath and his wife Sumitra as Ex.PW-3/A and Ex.PW-3/B, seizure memo of the dowry articles Ex.PW-1/B. That is all for the prosecution evidence.
7. Statement of the accused persons were recorded under section 313 Cr.P.C wherein when all the incriminating evidence and documents were put to the accused one by one, they denied almost all the allegations and incriminating evidence and documents put to them as incorrect submitting that the witnesses were the interested witnesses and as the complainant wanted to live with her husband by taking a separate residence from rest of the accused persons, near the residence of her parents and as the said demand was not fulfilled, she filed a false case against the accused persons.
In support of their defence, no defence evidence (D.E) was led by the accused persons.
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 6
8. I have heard final arguments from both the parties, Ld. APP on behalf of the State and Ld. Defence counsel Sh. Subhash Chandra, for all the accused persons.
Ld. APP has submitted that the prosecution has successfully proved the offences U/s 498A/406 IPC against all the accused persons, by producing six prosecution witnesses for ocular evidence and with the supporting documents duly exhibited in the court and the witnesses Alpana and her father Ved Prakash examined as PW-1 and PW-6 has supported the prosecution case in totality and the police witnesses have proved the investigation of the matter, during the course of investigation.
However, Ld. Defence counsel Sh. Subhash Chandra, for all the accused persons have vehemently countered the prosecution case, submitting that the complainant left the matrimonial home on the day of marriage itself i.e 19.11.95 and the marriage was without any dowry demand and no dowry item was given at the time of marriage of the complainant to any of the accused.
It was further argued that the allegations regarding the cruelty for dowry were false and the accused persons have treated the complainant in a proper manner.
It was further argued that the allegations against the accused persons are vague in nature and are not specific without any kind of specific incidents and thus, do not constitute and satisfy the ingredients of either for sections 498 A IPC or section 406 IPC.
It was further submitted that no dowry articles were handed over by the complainant's family at the time of marriage and the list of articles provided by the complainant at the time of filing of the case was containing the articles belonging to the accused persons and the same have already been recovered during investigation from separate State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 7 residence of the complainant, where she was residing with her husband i.e the accused Yashpal only and that there was no demand of return of any such dowry articles as alleged, during the subsistence of marriage at the time of her residence at her matrimonial house and there was no specific denial of such articles and thus, question of the misappropriation of any such dowry articles did not arise for proving an offence U/s 406 IPC, against any of the accused persons and that the allegations regarding threats by the accused husband Yashpal are vague and not specific to prove any kind of harassment, thereby all the allegations are not proved on record by the prosecution, beyond reasonable doubts.
It was further submitted on behalf of accused persons that the complainant after marriage resided in her matrimonial house for one day and left the matrimonial house on the same day of marriage and did not return back, till 01.04.96, when her parents demanded a separate residence for her and her husband, for revival of conjugal relations and on such demand, she was provided a separate residence at Tilak Nagar, New Delhi, with her husband and even from that place on 22.06.96, she left with all household items in the absence of her husband and lodged a complaint, only afterthought, after 4 months of such incidents, as she lodged the complaint on 01.10.96 but then also, after a delay of further 2 months, the FIR was registered only on 22.12.96. Thus, the delay itself makes the case an after thought concocted story of the complainant.
It was further argued that during the course of trial after obtaining decree of mutual divorce, both the parties compounded the allegations made by the complainant against all the accused persons and agreed to go for quashing of FIR in this case along with proceedings arising out of FIR and that the petition was filed before the Honb'le High Court but as the complainant did not co-operate their for her ulterior designs, the same was withdrawn on 10.09.02 and the compromise deed State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 8 executing an agreement between the complainant and the accused Yashpal, duly Ex.PW-1/1 was produced as documentary evidence during the course of trial, showing that the offences have already been compounded by the complainant vide such compromise deed but the case was not compounded and the FIR could not be quashed, for the ulterior design of harassing the accused persons at the hands of the complainant as the complainant never appeared before Hon'ble High Court for making her statement despite the compromise deed signed by her in which it was undertaken by the complainant that she shall make her statement and file her affidavit for disposal of the present criminal case.
It was also submitted that the complainant's testimony is not only full of exaggerations, contradictions but also without any support from any independent evidence and being an interested witness, her sole testimony cannot be made basis for conviction of the accused persons and her testimony suffers from legal technicalities making it inadmissible as the complete case property was never produced in the court and to this extent, her testimony is incomplete.
It was also argued that the complainant has already signed the compromise deed submitting that she has no claims regarding her stri-dhan and thus, the offence U/s 406 IPC is not made out against any of the accused persons, particularly, when she has never entrusted any of the articles to any of the accused persons and there was no specific demand, for return of any such articles and denial by any of the accused persons.
To counter the arguments of Ld. Defence counsel, Ld. APP has submitted that the complainant has testified in her testimony that on 22.06.96, she was beaten by her mother in law, father in law and husband and even, in the month of May-96, she was beaten by her State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 9 husband and that her dowry articles were recovered from the possession of the accused, showing that the dowry articles were kept in custody of the accused persons and were not returned, before the poice intervened. Thus, it was submitted on behalf of the State that specific incidents above mentioned for dowry harassment and a breach of trust, regarding stri-dhan has been proved by the prosecution, during trial to prove the offence.
To counter the arguments, Ld. Defence counsel has submitted that the complainant has not supported her version through any independent evidence, though available at that time, on record for these instances and even, she has material improvements and contradictions in her testimony, in comparison to her complaint made to the police, making her evidence full of infirmities and cannot be relied upon.
It was further argued on behalf of the accused persons that the complainant is the sole evidence to prove the allegations regarding harassment or threats or misappropriation of dowry articles and as the complainant has material contractions in her testimony, improving her version several a times, her testimony cannot be relied upon for her version stated in the court and on this ground only, the accused persons are entitled for benefit of doubts and thus, it was requested on behalf of accused persons that accused persons be given benefit of doubt.
9. On taking into account the evidence on record, consisting of ocular as well as documentary evidence, in the light of contentions of both the parties, it is observed that for proving the alleged offences against the accused persons, the prosecution had produced total number of 6 prosecution witnesses but except the witness Alpana, examined as PW-1, all other witnesses had deposed in the court for proving the facts State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 10 regarding the investigation of the matter to the extent of either arrest of the accused persons or the recovery of alleged dowry items, during the course of investigation but none of these witnesses were the alleged eye-witness of the occurrence that could prove the ingredients necessary to prove the offences punishable U/s 498A/406 IPC, thus, the case of prosecution is basically relied on the sole testimony of PW-1, the complainant.
10. But, before appreciation of evidence on record, it is worth noting to re-produce the provisions to appreciate the law on the point of allegations, alleged against the accused persons.
Section 498A IPC : -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.
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 State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 11 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 or 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.
11. 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 limb of the complainant, explanation (b) of the section 498 A IPC is applicable, as the complainant has placed allegations regarding harassment caused to her in the hands of the accused in view to coerce her to meet the unlawful demands of dowry.
Thus, for proving and offence punishable U/s 498 A IPC, the prosecution had to establish :
Firstly, that there was an unlawful demand of property or valuable security of dowry;
Secondly, the harassment for non-fulfillment of the same or to coerce the complainant to meet such demand and;
And thus, 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.
12. Also, regarding the allegations for an offence punishable U/s 406 IPC, section 406 IPC is reproduced as below; that reads :
Section 406 :- Punishment for criminal breach of trust State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 12 'Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Further, for proving an offence punishable U/s 406 IPC, for which the accused was charged with, the prosecution had to prove that :
1).the dowry items were entrusted upon the accused persons by the complainant;
2). the same were demanded;
3). the same were not returned back on demand.
13. On appreciation of evidence on record, it is observed that the case of the prosecution is basically based on the sole testimony of the complainant Alpana PW-1, who was the only eye witness of the occurrence for the allegations under section 498A/406 IPC as alleged in the prosecution story, thus, her version is appreciated in the light of the documents placed on record and the submissions made by both the parties on the floor of the Court.
As per the evidence on record, the complainant Alpana, PW- 1 has testified, in the court regarding the incidents of alleged harassment and cruelties at the hands of the accused persons for proving an offence punishable U/s 498A IPC. Her version is compared to the document Ex.PW-1/A, the complaint running into 9 pages that contains number of incidents without any specification of the events regarding specific activities attributed to any of the accused persons and also regarding date of such incidents and in her version, she has given a long story narrated from the date of marriage on 19.11.95 till the date she left at last, from her matrimonial home to her parental home and in the same line, she has reproduced the version in the court in her testimony and it State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 13 was observed that her testimony had material contradictions, improvements and exaggerations of facts when compared with her complaint made to the police and only for one or two instances for which the dates are given, the other allegations regarding harassment and cruelty were produced in a vague manner, sometimes making the facts unbelievable due to severe infirmities.
14. From the record, it was observed that after her marriage on 19.11.95, she had stayed in her matrimonial home with her in laws for few days only and it is an admitted fact that since 01.04.96, she started living with her husband at a separate residence at Vishnu Garden and that was as per the compromise dt. 30.03.96 arrived between her parents and in laws.
Further, as per record, the compromise dated 30.03.96 was not made part of the evidence as the same was not exhibited, in the court but as its reference has been made by the complainant in her testimony regarding this compromise and the compromise was in writing, it has been taken into account, treating the same as circumstantial evidence and it was observed that as per the compromise above mentioned, signed by six members from the parents side and six members from the in laws side, all the matters of differences were resolved by both the parties regarding differences prior to 30.03.96 and it was decided upon that from 01.04.96 the accused Yashpal and the complainant shall shift in a separate residence and they will have no interference from any side. This compromise also mentions that all the jewellery articles owned and possessed by the parties have been taken back and all the dowry items were settled with the conditions that the complainant shall not claim any such dowry items from her in-laws and she will have no claim on such dowry articles.
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 14 Thus, the document though not exhibited in the court and was not made part of evidence, by prosecution, but placed on record, yet proves the circumstances and an admission on part of the complainant, given in her testimony that she was residing with her in-laws only between 19.11.95 till 01.04.96. Thus, regarding allegations of harassment if any, pertaining to all the other accused persons, this period is to be considered separately.
15. As per the testimony of the complainant Alpana during this period, she has deposed regarding ' cruelty and harassment' firstly for the 3rd day of her marriage. As per her testimony, on the 3rd day of her marriage, she was beaten by her husband on the cleaning of the house and also for money, further deposing that her mother in-law told her that the room in which, she was staying was constructed with money and same was to be given by her father. Thus, in her testimony, she has revealed the factum of beating by her husband on the 3rd day of her marriage, for cleanliness of the house and also for money. She has not specified as to whether any money was ever demanded during first three days by her husband or in laws and that she was harassed for non- fulfillment of such unlawful demand of money. She has also pointed out that her mother in-law Sumitra had asked her for money for construction of the room, she was staying but she has not testified as to whether the demand for money for construction of that room was ever fulfilled or she was harassed by the accused Sumitra for non-fulfillment of such demand of money for construction of that room, in which she was staying.
Thus, the harassment reportedly caused by the accused Yashpal was not pertaining to non-fulfillment of unlawful demand of money and the demand raised by the accused Sumitra was not accompanied with the harassment or torture of any kind. For this State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 15 incident, she could not testify as to who made demand and who caused harassment and in what manner. Thus, this incident could not be proved in consonance of proving all the ingredients necessary to prove the allegations for an offence punishable U/s 498 A IPC. Regarding this incident, no other accused has been referred by the complainant in her testimony.
16. Further, when the testimony of the complainant for these facts was compared with her complaint Ex.PW-1/A, it was observed that even in her complaint, she has referred the incident of 3rd day of her marriage but in an absolutely different manner describing facts in different context and in her complaint, she has not mentioned that her husband has beaten her on that day. She has also not referred anything regarding demand of money as deposed in her testimony, that she was beaten for 'cleanliness' and for 'money'. Also the presence of number of persons at the time of such incident was improved. As per her testimony, at the time of such incident, her husband and mother in-law were present and caused harassment and demanded dowry but in her complaint, she reported that her husband, mother in-law and father in-law were present and were seeing the incident as 'silent spectators' (Tamashaa Dekh Rahe The). The taunts made by these persons referred in the complaint were absolutely different and it was mentioned in the complaint that her mother in-law threatened her saying that the marriage was arranged with the complainant for the expectation of more cash and a Maruti car and to this extent, the testimony has clear 'omissions' and for the above facts mentioned, the testimony of the complainant has 'improvements' regarding the factum of beatings given to her by her husband.
It was further observed that the other statements of other form of harassment regarding not providing of food was also vague in State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 16 nature as it was not referring to a particular accused by whom she was refused food and when and how many times, she was refused food and for what reason, as to whether it was for non-fulfillment of any unlawful demand made by any of the accused persons, thus, the testimony of PW-1 was found vague and full of infirmities on material aspects regarding the cause of harassment with material improvements and omissions from her own complaint made to the police, on material points.
Thus, for the incident of 3rd day of marriage, the version of the complainant could not be found trustworthy to prove the allegations regarding harassment caused by any of the accused persons for non- fulfillment of any dowry demand or for not bringing of sufficient dowry.
17. Further, the complainant has deposed regarding the demand of money for taking a bus and testified in the court that 'on 10.01.96, she was not offered any food and even on 11.01.96, when she went to kitchen to prepare a tea for her husband, her mother in law snatched her and she was beaten on the pretext that her father has not given money for food. To this extent, regarding this incident, when the facts were searched from her complaint, no such incident was reported in her complaint, in the manner, it was deposed and as the witness is an interested one, being the complainant who was interested in positive result of the prosecution and has no other independent evidence to support her, this incident is being treated as clear improvements with exaggerations and has shaken the reliability and trustworthiness of its testimony, on this count, her testimony is found lacking in-credit of her version and thus, these facts are also not proved against any of the accused persons.
Same is the case of the incidents reported for 14.01.96, 15.01.96 and 19.01.96, incidents of these days are testified in the Court State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 17 but not reported in the manner, described in court, to the police in the complaint and even, there is no other independent evidence on record to prove its trust worthiness, as PW-1, is the sole witness to come the court.
The matters reported in the compliant was absolutely different for such dates in a different canotations and were vague and were suffering with infirmities when compared with the testimony of the complainant apart from the fact that there was number of contradictions, improvements in this regard, in both the evidence of the complainant i.e ocular as PW-1 and documentary evidence Ex.PW-1/A.
18. Thus, it is observed that the allegations regarding unlawful demand by the accused persons for more money and harassment at the hands of the accused persons for non-fulfillment of such demands, were vague in nature as it was not pointing out to any particular accused with particular specification of date or particular specific activities attributed to any of the accused persons, thus, not proved U/s 498 A IPC, as settled 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 provision of law requires that the deceased (complainant) should have been subjected to cruelties and harassment for demands of dowry and not vague and stray taunts for bringing less dowry'.
19. Further, it is observed that as per her testimony from 19.01.96 till 28.03.96, she was at her parental home as she had deposed that during this period, nobody from her matrimonial home came to take State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 18 her back from her parental home.
The complainant, further, deposed that on 31.01.96, she approached one non-Government organization named "Jagriti Mahila Samiti", wherein one Nirmala Sharma took her to Chowki and all the accused persons were called in the Chowki and that her parents and in laws arrived at a compromise, in writing that she would be provided a separate room and residence with her husband to save her married life and, in execution of such compromise, on 01.04.96, she has shifted to her rented house with her husband i.e accused Yashpal.
20. Thus, as admitted, since 01.04.96 till 22.06.96, the day she left for her parent's house, the complainant was with the accused Yashpal, in the separate residence. In this regard, it is observed that no independent person as a witness from 'Jagriti Mahila Samiti' was either cited as a witness or produced in the court during trial, though these persons could have produced the material evidence on record to prove these facts but were kept aback by the prosecution as well as by the investigating agency during trial leading to an adverse inference that on their production, they may not support the prosecution case, as settled in a case titled as Karnesh Kumar Singh & Ors. Vs. State of U.P cited as AIR 1968 Supreme Court 1402, wherein it was observed that :
"it is the duty of the prosecution to examine the material witnesses and non-examination of some of the witnesses leads to the adverse inference to their non-support of the prosecution case."
After 01.04.96, she has reported the incident of the month of May/June 1996, that her husband told her to bring Rs. One lakh in cash State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 19 from her parents and she refused the same and her husband accused Yashpal brutally beaten her.
As per her complaint, on 23th May, she was sent to her parental home for taking money and she returned back on 24th May with her maternal cousin Sachin and her husband i.e accused Yashpal returned back in the house at around 11 pm in a drunken state and asked her for bringing money and on her refusal, she was beaten and her maternal cousin tried to save her, then he was also beaten, who ran away from that house and called up her parents and her parents reached there and all the neigbbourers were collected and then, the matter was reported to the police in the P.S but these facts as reported in the complaint were produced in the court, in her testimony with material contradictions, she deposed that on such incident, when her parents reached there, some neighbourers gathered, her parents wanted to lodge a complaint to the police but the matter was not reported to the police due to the intervention of neighbourers as the accused husband apologized and her parents went back to their residence.
21. Thus, regarding the reporting of the matter to the police, the complaint and her testimony have clear discrepancies. Also, it is observed that neither the alleged eye-witness Sachin was cited as witness nor he was produced in the court, to prove these facts and even PW-6, her father did not support the complainant, regarding these facts in the court as he did not utter a single word to state anything regarding this event, and her mother was not produced during trial. Also the neighbourers gathered at the time of such incident, were not made witnesses nor were produced to prove the facts.
22. Further, it is observed that as per her complaint, her husband State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 20 had undertaken before the neighbourers that he will neither cause any beating nor drink anymore but regarding these facts, she has not deposed in the court and to this extent, her version has clear 'omissions'. Thus, regarding the incident of 24th May, the witness testimony was found without support and having number of omissions, improvements in producing the incident in the court, when compared with her complaint despite the presence of number of persons at the time of such incident, the alleged eye-witness Sachin, the mother of the complainant and neighbourers were not examined in the court, though they were material witnesses, yet kept aback and it is a well settled principle of law that if any material witnesses are kept aback by the prosecution, then adverse inference, can be drawn that on their production, they may not support the prosecution case as observed in a case titled as Karnesh Kumar Singh & Ors. Vs. State of U.P cited as AIR 1968 Supreme Court 1402 (the observations referred above).
It was also observed that the father of the complainant did not support the complainant on this aspect, regarding this incident, thus, the testimony of the complainant was found without any support of independent witness, though available and her testimony was suffering with infirmities and improvements, thus her testimony loses its credibility and makes the prosecution case doubtful.
23. Further, as per complaint Ex.PW-1/A, the complainant had reported that the matter again taken to 'Jagrti Mahila Samiti' on 25.05.96 where another compromise was made and an undertaking was given by the accused Yashpal for more terms and conditions and she stated that as per compromise dt. 25.05.96, during the period of 01.06.96, till 22.06.96, her husband has not caused any harassment to her but she was beaten by her mother in law and father in law and the relatives of State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 21 the husband. These allegations were vague being non-specific as did not refer particular activity attributed to any of the accused nor assigned any reasons for such beatings as to whether it was related to dowry demand or otherwise nor specifying a particular manner, by which she was harassed by these accused persons and it is a well settled law as 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.'
24. It was further observed that regarding these facts, her testimony has clear omissions, contradictions and improvements as the facts deposed in the court are found in an absolutely different manner as reported in the complaint and as her testimony has no support or corroborative evidence on record, these facts could not be proved against any of the accused with moral certainty to the extent of all the probabilities, to prove these facts.
25. Further, it is observed that regarding the incident of 22.06.96, the complainant had deposed in the court that on 22.06.96 at 6 am, her mother in law and father in law came to her residence and started beating her. She also deposed regarding abusing her with filthy languages by them but when these facts were compared with the documentary evidence i.e. complaint Ex.PW-1/A of the complainant, it was observed that she described that her mother in law and father in law reached in her house at 6 am and started abusing her and on her resistance to such abusings, she was slapped, but it was not mentioned State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 22 specifically who slapped her.
Thus, the testimony of the witness reveals regarding the beatings given by her father in law and mother in law just on the entry in her house and did not mention anything regarding slapping as was reported in her complaint, thus, having a clear contradiction and improvements in her testimony, destroying the trustworthiness of this witness and also it was observed that the specific attribution of the activities of harassment is not made either in the complaint or in her testimony, to prove as to who had given beatings to the complainant and by what manner.
Thus, regarding the incident of 22.06.96, the prosecution could not prove with specification as to what happened on that day with confirmation to prove that a particular harassment was caused by a particular accused in a specific manner to attribute a particular activity on one's part. Moreover, in the testimony of the complainant, it was not proved anywhere that such beatings or slapping, was the consequence of non-fulfillment of any unlawful demand of dowry made by the accused persons who caused harassment of a particular nature. Thus, it was found that there are number of discrepancies in the evidence of the complainant who was the sole witness for proving the facts regarding the incidents of harassment.
26. Further, it was observed that the discrepancies were not only with her version given in the testimony of the court but also her testimony was found incoherent with the version given by her in the complaint regarding the manner of activities conducted by the accused persons and without any specification to attribute the particular activity to a particular accused at a particular point of time. It is also found that at some of the places, even the presence of persons at the time was having State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 23 a discrepancy and even, the person mentioned who was present at the time of one or the other incident was not produced as a witness to prove the veracity of these facts, stated by this witness. Thus, even the version stated by the complainant in the court was also found apparently contradictory at places to the FIR version, based on the complaint made by the complainant before ACP, CAW cell. Thus, these facts are making the testimony of this witness unworthy of credibility.
The reliance is placed on the observations made in a case titled as Idrish Bhai Daud Bhai Vs. State of Gujarat JT 2005 (2) SC 411, wherein it was observed that :
'in case of discrepancies in the evidence (of the witness)..... in-coherent statements regarding the presence of persons. .it was difficult to place reliance upon the witness (es) particularly when the statement(s) is/are apparently contradictory to FIR version.'
27. Further, for the 'omissions', the reliance is placed on the observations made in the case titled as Hemraj Vs. State of Punjab 2003 (7) JT 614, wherein it was observed that:
'the prosecution witness(es) is/are non-credible being possessing omissions in her/their version from her/their previous version given to the police regarding omissions reflecting the credibility of the witness(es).'
28. Further, for the infirmities material in nature in the testimony of the complainant PW-1, the reliance is placed on the observations made in a case titled as Sikander Kumar Vs. State cited as 1998 (72) DLT 547, wherein it was observed that :
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 24 'in case of infirmities in the testimonies of prosecution witness(es), making the entire story of the prosecution inherently improbable, titles the accused with benefit of doubt.'
29. Further, it was observed that PW-1, the complainant was the interested witness being the complainant interested in the result of prosecution of the accused persons and being the first informant, her version was found full of improvements, contradictions and exaggerations, thus, cannot be found truthful for the version stated by her. The reliance is placed on a case titled as Jaskaran Singh Vs. State cited as 1997 SCC (Crl) 651 (HC), wherein it was observed that :
'When the evidence of first informant is found to be full of contractions, exaggerations and improvements, he cannot be held to be a truthful witness'
30. It is also observed that the prosecution has not produced one Sachin who was the alleged eye-witness of the incident of 24.05.96 as alleged and even not cited as witness though he was the material witness, was kept aback, and his non production leads to an adverse inference that on his production, he may not support the prosecution case. The reliance is made on the observations made in a case titled as Karnesh Kumar Singh & Ors. Vs. State of U.P cited as AIR 1968 Supreme Court 1402.
31. It was also observed that the court has found vital improvements and contradictions in the testimony of the sole witness i.e PW-1, the complainant Alpana, without any satisfactory explanation making the testimony of PW-1 does not inspire confidence and thus, State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 25 cannot be relied upon regarding the version stated by her.
Thus, on the basis of evidence of sole witness Alpana for the above stated observations, the case of the prosecution is doubtful and offences U/s 498 A IPC against any of the accused could not be proved by the prosecution beyond reasonable doubts.
32. Now, for the allegations regarding an offence punishable U/s 406 IPC, the charges were framed against three accused persons namely Sumitra, Dwaka Nath and Yashpal and out of these three accused persons, the proceedings against the accused Dwarka Nath have already been abated in the event of his death and the trial was proceeded with only against the two accused persons, Sumitra, the mother in law and Yashpal, the husband of the complainant, for the offence punishable U/s 406 IPC and it was alleged against them that some of the dowry articles were entrusted upon them as per list mark A at the time of marriage and the stri-dhan/dowry articles were converted by them for their own use and they refused to return the same on demand by the complainant and thereby committed an offence punishable U/s 406/34 IPC.
33. Again, it is observed that for proving these allegations, the prosecution could produce only one witness ie. PW-1 Alpana, the complainant, as no other public witness could be produced during trial and the police officials Ct. Pawan Kumar examined as PW-3 and SI Rajmal examined as PW-5, the State could state only one fact that some of the household items vide seizure memo Ex.PW-1/B could have been recovered from the house at Vishnu Garden.
Also, for proving the recovery of the alleged dowry items, only these two witnesses PW-3 and PW-5 were produced and both of State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 26 these police officials were in contradiction, on the point of number of articles recovered though both of them had exhibited the seizure memo as PW-1/B but as per PW-3, the number of articles were 70 in number and as per PW-5, number of articles were 17 in number and unfortunately all the case property i.e dowry items allegedly seized were not produced in the court, before these witnesses.
It is worth to note that the case property was taken on 'Superdari' by the complainant, examined as PW-1 and she could only produce, few of the articles and she deposed in the court that rest of the articles, she could not produce. Thus, all the articles as per seizure memo were never produced in the court for exhibition of the same in the court during trial, to prove that such articles were recovered and were belonging to the complainant, as her stri-dhan. Thus, on these aspects, the prosecution has failed to prove the recovery of dowry articles, in the court and thus, has a clear dent on the prosecution story for proving an offence U/s 406 IPC.
Thus, the only evidence placed on record was the testimony of Alpana, PW-1, the complainant. Thus, for proving an offence U/s 406 IPC, the case of the prosecution rests absolutely on the sole testimony of the complainant.
34. On going through the record placed with the file, it is observed that the list of alleged dowry articles, was an annexure to document Ex.PW-1/A, the complaint, however the evidence on record does not mention anywhere, the date of preparation of such list. Thus, it is assumed that it was prepared on the date of complaint, as it was an annexure to the complaint Ex.PW-1/A and does not bear any date on itself. Thus, it is clear that no list of dowry articles was prepared at the time of marriage.
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 27 Further, it was deposed by the complainant in her testimony that the dowry articles as per list were given to the accused persons at the time of marriage and that all the dowry articles were taken to matrimonial home at Vishnu Garden, Delhi.
Thus, from the evidence on record, it is clear that there is no evidence, either ocular or documentary to show that the dowry articles/stri dhan of the complainant were entrusted upon to any particular accused either Sumitra or Yashpal specifically, even at the time of marriage to attract, the allegations for offence punishable U/s 406 IPC and it is a well settled principle of law settled in Hukami Devi and Ors. V/s State of Haryana cited as 1992 (1) RCR 357, that for attracting an offence punishable U/s 406 IPC, the prosecution had to prove specifically that the istri-dhan/dowry articles of the complainant was specifically entrusted upon to the accused persons at any point of time. It was only deposed 'vaguely' that some of the dowry articles were given to the accused persons and same were taken to the matrimonial home and nowhere it is mentioned that at that time who were the persons, possessing the matrimonial house and to whom the dowry articles were entrusted upon.
Thus, there is no evidence of specific entrustment of dowry articles of the complainant to any of the accused facing trial for the offence punishable U/s 406 IPC and thus, this basic ingredient is not proved by the prosecution to prove the allegations specifically against any of the accused persons.
35. Further, it has come on record that on 30.03.96, one compromise was entered between the parents and in laws of the complainant at P.P Khyala vide which the clarifications regarding settlement on jewellery articles and dowry items were made. Though this State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 28 compromise is not exhibited in the court but PW-1 has admitted the factum of separate residence for the complainant with accused Yashpal, was decided upon and acknowledged and there was an admission on part of the complainant that from 01.04.96 in execution of such agreement, the complainant started residing at a separate residence with her husband/accused Yashpal. Thus, it is presumed that all the dowry articles were first co-possessed by the complainant along with her other in laws including the husband in the matrimonial home before 01.04.96 and thereafter with her husband Yashpal at a separate residence at Vishnu Garden and as she has left her separate residence on 22.06.96 and did not return back, till she lodged the present complaint in the CAW cell that resulted in the registration of FIR of the present case. Thus, such dowry articles if any, were co-possessed by the complainant during the subsistence of her marriage.
36. Regarding the jewllery, vide compromise dt. 30.03.96, both the parties have agreed that there was no dispute regarding the jewellery articles. Thus, regarding the accused Sumitra, the question of mis- appropriation or conversion of any of the dowry articles in her use, are not proved, through any direct or indirect evidence on record and also there is nothing on record that such dowry articles were ever refused on demand, at any point of time, by the accused Sumitra.
Thus, neither the specific entrustment of any of the dowry articles, on accused Sumitra nor any breach of trust or mis-appropriation of any kind by her and refusal of such dowry articles, were proved by the prosecution against the accused Sumitra, through any of the evidence i.e either ocular or documentary. Thus, the offence punishable U/s 406 IPC is not proved against the accused Sumitra, in any manner, rather appears to have been compounded vide compromise dt. 30.03.96, State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 29 through an admission on the part of complainant in her testimony.
37. For the allegations for an offence punishable U/s 406 IPC against the accused Yashpal, though it has come on record that he was the co-possessor of dowry articles, though not proved that it was specifically entrusted upon him, by the complainant at any point of time, yet, there is nothing on record to show that such dowry articles were ever demanded by the complainant from her husband/accused Yashpal and that the same were ever refused by him and were mis-appropriated or converted to his own use.
Thus, the specific entrustment or mis-appropriation or refusal on demand, were not proved, through any evidence on record, against the accused the Yashpal, who was the husband of the complainant.
So far as, the contention of the prosecution, through Ld. APP is concerned, regarding the recovery of dowry articles from the house of the accused Yashpal, shows that it was possessed by him at the time of recovery, it is observed that possession of any of such dowry articles of the accused itself, does not prove the factum of entrustment of such property and mis-appropriation or conversion those of by him, until, there is an evidence to prove that such dowry items were ever refused on demand at any point of time, by the accused to the complainant.
Further, it is observed that the recovery of specific number of dowry articles could also not proved for the want of non production of the case property in the court during trial.
Also, the ownership and belongingness/title of the articles with the complainant could not be proved, that recovered household articles were of the nature of stri dhan or were the dowry articles belonging to the complainant. Thus, the question of mis-appropriation or conversion of the same by the accused Yashpal, does not arise.
State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 30 Therefore, neither the allegations of entrustment or refusal on demand, were proved nor the misappropriation or criminal breach of trust was proved by the prosecution against the accused Yashpal.
It is further observed that the recovery of some of the household articles without proof that these were such dowry articles of the complainant, that were shown in the list annexed with the complaint, does not itself become proof of any kind of entrustment upon the accused persons at any point of time, the recovery of some of household articles cannot itself prove the ingredients necessary for proving an offence punishable U/s 406 IPC, until and unless, it is specifically proved that a particular specific dowry items were entrusted upon the accused at a particular point of time and that the same were refused on demand by the accused and all these three ingredients had to be proved 'causa- casans' (mutually dependent on each other), but not proved beyond reasonable doubt, and thus, only recovery of some of the household articles, from a particular place belonging to some of the accused, without proving the other ingredients, cannot prove an offence punishable U/s 406 IPC, beyond reasonable doubts.
Thus, it is observed that none of the material ingredients could be proved by the prosecution for proving an offence punishable U/s 406 IPC against any of the accused in any manner and it is a well settled principle of law that for proving an offence punishable U/s 406 IPC, there must be clear and specific allegations regarding entrustment, then of mis-appropriation or conversion and of refusal on demand of such dowry articles, by the accused. For such observations, the reliance is placed on 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 State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 31 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 spelt out against the petitioner.' Further, it is also well settled principle of law that for establishing an offence punishable Us/ 406 IPC, the specific entrustment on each and every accused is to be proved and the general allegations of entrustment or refusal to return the same, cannot prove an offence punishable U/s 406 IPC. For such observations, the reliance is placed on a case titled as Hukami Devi and Ors. V/s State of Haryana 1992 (1) RCR 357, wherein it was observed that, 'to establish of an offence punishable U/s 406 IPC, the allegations have to be specific against each and every accused and general allegations of entrustment and refusal to return the dowry items have been deprecated.'
38. It was further observed that the allegations regarding non return of dowry articles by the accused persons in the testimony of the complainant PW-1 Alpana, the allegations were found vague and non- specific and were not sufficient to proceed with the matter. For such observations, the reliance is placed on a case titled as Sunita @ Pinky V/s Sunita cited as 1997 (2) RCR 447, State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 32 wherein it was observed that :
'the allegations regarding criminal breach of trust and cruelty vis-a-vis, the accused persons are vague and not specific and thus, are not sufficient to proceed with the matter.'
39. Further, it is observed that the record produced before the witness/complainant PW-1, exhibited as Ex.PW-1/DC, DE and DG, clearly shows that the complainant has obtained divorce by mutual consent by making a compromise and a joint statement before the court of Ld. ADJ Sh. Sukhdev Singh, vide which she has compounded the claims regarding her dowry articles against all the accused persons and as the statement was made on oath and was a joint statement, made before the court of law, thus, the offence punishable U/s 406 IPC, against all the accused persons facing trial, was compounded before the court of law and being the offence punishable U/s 406 IPC, being compoundable in nature, as per the provisions of section 320 (2) Cr.P.C, is treated as compounded against the accused persons.
Thus, even this offence has been duly compounded by the complainant with the accused persons, in the court of law and thus, despite the fact that the ingredients for an offence punishable U/s 406 IPC are not proved against any of the accused persons facing these allegations, yet, the compounding itself makes the accused persons entitle for discharging of their liability regarding an offence punishable U/s 406 IPC, due to compounding of the offence.
40. Moreover, there was a delay of four months in filing of the FIR and the delay is absolutely unexplained on the point of prosecution during trial, that also makes the prosecution case doubtful, creating a doubt of filing of the complaint an 'afterthought', for fabrication, for ulterior State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 33 designs, as contended by Ld. Defence counsel on behalf of the accused persons.
Thus, accused persons become entitled for a benefit of doubt, on the basis of principles of the criminal justice system. For such observations, the reliance is placed on the observations made in a case titled as Kollam Brahamand Reddy Vs. A.P cited as 1999 Cr.L.J 2368, wherein it was observed that:
'the delay in lodging of FIR not satisfactory explained..., infirmities in the FIR..., contradictions in the ocular evidence of the witnesses makes the prosecution case doubtful.'
41. Thus, it is observed that on appraisal of law on the point of allegations against the accused persons, on appreciation of evidence on record, in the light of rival contentions of both the parties and observing that the prosecution could not prove any of the material ingredients necessary to prove either for an offence punishable U/s 498 A or for 406 IPC, against any of the accused persons, beyond reasonable doubts and the prosecution story was found full of doubts, unexplained. Thus, the court is of the considered view that the prosecution has miserably failed to prove its case against any of the accused persons for any of the offences punishable U/s 498A/406 IPC, beyond reasonable doubts.
42. Therefore, on the basis of principles of criminal justice system, a benefit of doubt is given to the accused persons and the accused Sumitra, Yashpal Tuli, Vijay Kumar Tuli and Asha Rani are accordingly acquitted from the charges levied against them.
File be consigned to R/Room.
Announced in the open court State V/s Sumitra Tuli Etc. FIR No. 433/96 JK 34 On 22th Day of December, 2007 (DR. ARCHANA SINHA) Metropolitan Magistrate, Tis Hazari Courts, Delhi State V/s Sumitra Tuli Etc. FIR No. 433/96 JK