Delhi District Court
St. vs . Kamal Kataria & Ors. on 26 July, 2014
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IN THE COURT OF MS. MONA TARDI KERKETTA:
MM (MAHILA COURTS) :TIS HAZARI COURTS: DELHI
FIR NO. 181/99
UID No. 02401R5781882004
P.S. K. Gate
U/s. 498A/406 /34 IPC
ST. VS. Kamal Kataria & Ors.
1.Date of commission of offence : During subsistence of marriage since 23.01.1998
2. Name of the complainant : Smt. Rekha Devi D/o Sh. Jai Kishan Kataria
3. Name of the accused persons and their : 1. Sh. Kamal Kataria parentage and address. S/o Sh. Kiran Chand Kataria
2. Smt. Beena W/o Sh. Kamal Kataria Both R/o 4/9, Airport Authority of India, Mahipalpur, Delhi.
3. Sh. Nahar Singh S/o Sh. Om Prakash
4. Smt. Pushpa W/o Sh. Nahar Singh Both R/o RBlock, 62B, Dilshad Garden, Delhi.
5. Sh. Sanjay S/o Late Sh. Mam Chand
6. Sh. Rajiv S/o Late Sh. Mam Chand FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 2
7. Sh. Manoj Kumar S/o Late Sh. Mam Chand
8. Smt. Rimpy W/o Sh. Manoj Kumar
9. Ms. Archana D/o Late Sh. Mam Chand
10. Sh. Dinesh Kumar ( Since expired) S/o Late Sh. Mam Chand.
11. Smt. Raj Bala W/o Late Sh. Vinod Kumar
12. Smt Laxmi Devi w/o Late Sh. Mam Chand ( Since expired).
All R/o 9/5076, Seelampur, Delhi .
4. Offence complained of : 498A/406/34 IPC
5. The date of order : 26.07.2014
6. Plea of accused persons : Pleaded Not Guilty
7.The final order : Acquitted
8.Counsels for the parties:
For the State : Sh. Gaurav Dahiya
For the Accused persons : Sh. Kulbhushan Arora & Sh.
Amulya Dhingra
FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors
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THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the statement made by
complainant Smt. Rekha D/o Sh. Jai Kishan Kataria R/o 1/32, Ram Bazar, Mori Gate, Delhi, wherein it has been stated that the complainant was married to accused Dinesh Kumar on 23.01.1998 according to Hindu Rites and ceremonies at Delhi. At the time of marriage, the parents of complainant spent huge amount of more than Rs. 5 lacs. It is further stated that prior to solemnization of marriage, accused Nahar Singh told brother of the complainant that they had offer of Maruti Zen from other marriage proposals, so they were expecting a car in dowry but brother of the complainant remained silent. It is further stated that even on the day of marriage after Jaimala ceremony itself, accused Vinod, Manoj, Nahar singh, Kamal Kataria, and Sanjay humiliated complainant's brother for not giving sufficient dowry and they were not happy for not giving Maruti Zen car and other dowry articles as per their expectation. It is further stated that on the first day of marriage itself, the complainant was physically and mentally tortured for bringing insufficient and below standard dowry articles. Her mother in law Laxmi Devi addressed her as "Kulakshani", sister in law Pushpa abused by saying " Kameen Kii Bacchi, accused Archana as Haramjadi and other accused as randi. Accused Veena, who, mostly used to live at matrimonial house also subjected her with cruel treatment.
2. It is further stated that on 28.01.1998, Jeth Vinod Kumar died because of accident but accused Rajbala, Laxmi Devi, Veena and Pushpa held her inauspicious and commented " ISS KULKASHINI KE GHAR MEIN AANE KE BAAD AISA HUA HAI AUR NA TO YEH DAHEJ FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 4 LATI HAI OR NA HI YEH GHAR SE NIKLEGI, YEH TO HUM SAB KO MAAR KAR HI CHAIN KI SAANS LEGI, YEH TO DIAN HAI" . It is further stated that accused Dinesh Kumar never gave regards to complainant's parents and brother, whenever complainant requested him to give them due regards, accused used to taunt and abused her and her parents for giving less dowry. It is further stated that on 13.02.1998, complainant's parents, brothers and other relatives came and took complainant to her parental house as per custom for seven days. During this time, complainant and her parents went to visit Vaishno Devi. They requested accused Dinesh Kumar to accompany them but he did not agree. It is further stated that complainant's parents invited accused persons to celebrate Holi festival but they did not care to come however the relatives of complainant did not say anything on their refusal considering complainant's matrimonial future. They tried to reconcile the matter but nothing happened and accused persons remained adamant to their demands.
3. It is further stated that even after passing of two months , no one came to take the complainant back to matrimonial house and they also did not inquire about well being of complainant. The complainant was taken back to matrimonial house only on the intervention of the Mediator. It is further stated that on 23.06.1998, complainant's brother invited complainant and accused Dinesh Kumar for birthday celebration of his son but they did not attend the ceremony on account of not getting permission of mother in law Laxmi Devi. When the complainant requested accused Dinesh Kumar to attend the function, she was given beatings. The complainant informed about beatings to her brother through telephone, who came there and inquired into the matter then accused Nahar Singh told that complainant was not permitted to go as he was not invited in the function and FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 5 because of this reason, the complainant was beaten by accused Dinesh Kumar. It is further stated that after this incident, complainant was subjected to more and more torture and was also beaten mercilessly but she did not raise her voice considering her future at matrimonial house. The complainant's parents also tried to make accused persons understand but all in vain.
4. It is further stated that complainant was treated like a slave at matrimonial house. One day, accused Rajbala was washing clothes, she complained to accused Dinesh Kumar that it was difficult to wash clothes without washing machine then accused Dinesh Kumar started demanding washing machine from the complainant and also told her that she will be treated like a servant till washing machine, music system and video camera were brought from her parental house. It is further stated that accused persons kept demanding these items from the complainant all the time and started torturing and taunting more and more and kept pressurizing her to bring these items from her parental house. It is further stated that when accused Dinesh Kumar came to know about pregnancy of the complainant, he started torturing her more and more. The complainant fell ill but but despite request, accused Laxmi Devi did not take her to see a doctor. Accused Dinesh Kumar and Rajbala forced her to lift filled bucket of water and refused to provide proper diet and rest to the complainant. It is further stated that accused Dinesh Kumar used to prise the beauty of accused Rajbala by saying that her cheeks and hair were nice and he can not live without her. Accused Dinesh Kumar used to eat food served by accused Rajbala only . One day, when the complainant tried to serve him food, accused flatly refused to have food. It is further stated that whenever the complainant objected to such intimacy, her husband used FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 6 to beat her, which clearly showed that he was living in adulterous relationship with accused Rajbala.
(4.1). It is further stated that accused persons used to address her as Dayan, Kulkshani, Kamini, Kutia, Manhus, Randi, Kanjari and whenever she objected to the same, she was beaten by them. It is further stated that on 12.02.1998, on the occasion of Sindhara ceremon, complainant's brother came to matrimonial house to take her to parental house. At that time complainant was physically in bad condition therefore she went to her parental house but even after lapse of three months, neither anyone came nor enquired about her well being. Thereafter on 04.10.1998, the complainant was admitted in St. Stephan hospital and delivered a male baby there. The brother of complainant informed about birth of baby to accused persons but no one came to visit the child. After 04 days, accused Sanjay and Archana came and took the complainant and child back to matrimonial house. It is further stated that accused were expecting fulfillment of their demand on the occasion of Chochak but when those items were not given then accused persons taunted, tortured and abused the complainant and her parents. It is further stated that the complainant was not allowed complete bed rest after birth of child and just after 10 days of delivery, her husband told to accused Laxmi Devi that " Isko Uthao, yeh padi rehti hai aur Rajbala kaam karti hai" and thereafter accused persons made her work of washing clothes and preparing food etc,. It is further stated that accused Rajbala used to expose the child in cold due to which he also fell ill. When the complainant complained about the same then her husband beat her and due to continuous beating, taunting, the child as well as complainant fell ill but accused did not get them treated. It is further stated that on 24.01.1998, Jeth Vinod Kumar FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 7 committed suicide because of illicit relationship between her husband & accused Rajbala and after this her husband came more closer to accused Rajbala . It is further stated that accused persons in furtherance of their common intention hatched a conspiracy to get rid of the complainant and to get accused Dinesh and Rajbala married, started harassing and torturing her more and more so that she dies soon
5. It is further stated that on the occasion of second Holi, borther of complainant again invited the accused but they refused to come. It is further stated that during stay at matrimonial house, she was not only tortured, taunted, abused and beaten but she was also not provided proper food, due to which she used to fall ill and even during illness accused persons used to force the complainant to do entire household work and never gave proper food and medicine etc and ultimately on 07.03.98, the complainant called her brother to save her life. The complainant was beaten mercilessly and also threatened with dire consequences by accused Dinesh Kumar, Laxmi Devi, Pushpa, Veena, Rajbala and Nahar Singh. It is stated that all accused wanted to kill her in connivance with accused Nahar Singh. When brother of the complainant went to matrimonial house to enquire into the matter, the accused persons misbehaved with him, who ultimately brought the complainant in wearing clothes to parental house and got her admitted in the hospital. The complainant remained in the hospital till 19.03.1999. The brother of the complainant before coming to parental house, made an Itala Peshbandi at PS Kashmere Gate and on reaching home, narrated entire facts to police at Seelampur Chowki and requested to prosecute the accused persons as per law and sought time to furnish Stridhan & Dowry articles. Thereafter on the basis of statement of the complainant, a case under section 498 FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 8 A/406/34 IPC was registered.
6. Subsequent to registration of FIR, investigation was conducted and after completion of investigation, chargesheet was filed in the court against the accused persons. Cognizance of the offence was taken and accused persons were summoned by Ld. Predecessor Judge. They were supplied with copy of charge sheet in compliance of provision given under section 204 CrPC. Arguments on the point of charge heard and vide order dated 06.09.2002 charge u/s 498A/34 IPC was framed against all accused persons and charge under section 406 IPC was framed against accused Dinesh Kumar, to which they individually pleaded not guilty and claimed trial. During the course of trial, accused Dinesh Kumar and Laxmi Devi expired.
7. Subsequent thereto matter was fixed for prosecution evidence. In order to prove its case, the Prosecution produced following nine witnesses :
(i) Complainant Ms. Rekha appeared as PW1 and proved list of dowry articles Ex PW1/A, complaint made at CAW Cell, Nanakpura Ex PW1/B, seizure memo of returned dowry articles Ex PW1/C, seizure memo Ex PW1/D of recovered articles on house search, another statement made before CAW Cell Ex PW1/F, list of her remaining dowry articles Ex PW1/G, details of cash amount given by her parents on different occasion to the accused Ex PW1/H, application seeking recovery of remaining dowry articles Ex PW1/I, Itala Peshbandi Mark A, medical papers Ex P1 to P8, cash memo of gold bangles and bracelet Ex P9 and Cash memo of motorcycle Ex P10,
(ii) ASI Dharam Singh, duty officer, appeared as PW2 and proved FIR Ex PW2/A and endorsement made therein, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 9
(iii) ASI Shashi Gupta appeared as PW 3,
(iv) Inspector Nirmal Kaur appeared as PW4,
(v) Sh. Vinod, priest, appeared as PW5,
(vi) ASI Anupama appeared as PW 6,
(vii)Sh Anil Kataria, brother of complainant appeared as PW7,
(viii) SI Vipunesh appeared as PW8,
(ix) SI Dinesh Dahiya appeared as PW9 and proved seizure memo Ex PW9/A, seizure memo of photographs Ex PW9/B, photographs Mark A&B, marriage card Ex PW9/C, seizure memo of marriage card Ex PW9/D, bail bond Ex PW9/D(wrongly mentioned as PW9/D) to Ex PW9/M and conviction slips Ex PW9/N to Ex PW9/S, After completion of prosecution evidence, matter was fixed for recording of statement of accused persons under section 313 CrPC.
8. The statement of accused persons u/s 313 Cr.P.C. was recorded, wherein entire incriminating circumstances appearing on record were put to them, to which they denied as false and incorrect and claimed to have been falsely implicated and preferred to lead defence evidence but despite availing sufficient opportunities, they did not lead evidence and therefore Defence Evidence was closed and matter was fixed for final arguments.
9. During the course of final arguments, it was submitted on behalf of State that prosecution has not able to prove its case against all accused persons beyond reasonable doubts. Written arguments on behalf of the complainant was filed, wherein following submissions have been made : (9.1) during cross examination, no question was asked with regard to facts stated FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 10 in para no. 1 of examination in chief of complainant/ PW 1, (9.2) accused persons have failed to disprove illicit relationship between accused Rajbala and Dinesh Kumar, (9.3) there was specific demand of washing machine by accused Rajbala, who instigated accused Dinesh Kumar to raise such demand but no cross examination has been done on this point, (9.4) specific demand of Video Camera, Music System, Almirah and Washing Machine was also made by accused persons, which finds corroboration in the testimony of PW7. , (9.5) false allegation of illicit relationship between complainant and one person namely Sh. Shammi has been alleged but same not been proved during cross examination of PW1, who remained out of India most of the time and this allegation was levelled only after filing of complaint before CAW Cell. Divorce petition was also withdrawn by accused Dinesh Kumar on account of falsity of this allegation, (9.6) accused Manoj Kumar, Rinki, Nahar Singh, Kamal Kataria and Beena Kataria have failed to prove the factum of living separately. No proof of their residence has been placed on record to show that they were not residing at matrimonial house of complainant. On the contrary, the complainant has filed copy of voter list showing the name of accused persons and their address, (9.7) the factum of torture and harassment has been proved in the testimony of PW1/complainant and has been corroborated by PW7, (9.8) there is specific allegation with regard to demand of Car and big Refrigerator FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 11 some days before the marriage by accused Nahar Singh, Kamal Kataria, Vinod, Manoj and Sanjay, (9.9) during cross examination PW1 has denied that no dowry demand was made by accused Manoj and Rimpi and no specific allegation has been found against them, (9.10) only some of the dowry articles were returned out of the total dowry articles/jewellery and rest of the articles were also returned by accused on 17.03.2002, (9.11) the guilt of accused persons stands proved from the fact that in settlement dated 18.03.2009 arrived at before mediation cell, they had undertaken not to harass, humiliate and torture the complainant and her child in future, to provide ¼ th share of movable and immovable property of deceased husband of the complainant and to provide maintenance amount of Rs. 6,000/ per month out of the ancestral income but accused persons failed to honour said settlement and did not provide information with regard to total number of movable and immovable properties, (9.12) accused persons have not led evidence in their defence to prove their innocence despite availing sufficient opportunities, (9.13) specific dates and events have been mentioned by the complainant in her complaint, examination in chief and cross examination, which go on to suggest that she was subjected to cruelty in the hands of accused persons in furtherance of dowry demand and most of the cross examination done by Ld. Defence Counsel are beyond pleadings. No specific question regarding entrustment of jewellery and cruelty was asked in cross examination, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 12 (9.14) documents in support of the case have been placed and proved on record but no question was asked on those documents, which amounts to admission on the part of accused persons. During cross examination, no specific question was put on the point of cruelty on the complainant and her minor child, whereas, their medical papers have been proved on record to show cruelty on the part of accused persons, (9.15) the complaint was lodged within one year of marriage, which attracts the presumption given u/s 113 A of Indian Evidence Act.
The complainant has relied upon the following judgments :
(i) Sobha Rani Vs. Modhuka Reddy AIR 1999, SC 121
(ii) Adarsh Parkash Srivastava Vs. Sarita Srivastava AIR 1987 Delhi 203
(iii) Sita Vs. Brij Kishore AIR 1984 291.
(iv) Parkash Kaur Vs. Harjider Pal Singh AIR 1999 Rajasthan 46
(v) Krishan Pal & Ors Vs. UOI and Others 1994 Crl. L. J3472.
10. Accused persons also filed written arguments, wherein they claimed to have been falsely implicated. The brief arguments made on behalf of accused Manoj Kumar and Rimpy are as follow: (10.1) No specific allegations with regard to cruelty and torture is found mentioned in the testimony of PW 1 and 7, (10.2) In the name of the investigation nothing has been done by the IO except recording statement of witnesses and IO did not verify any circumstantial evidence or collected any other evidence (10.3) During cross examination, PW 1 has admitted that no beatings were given by both FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 13 the accused, (10.4) no detail with regard to allegations has been mentioned, (10.5) at the time of marriage of complainant, accused Manoj and Rimpy were living separately on the first floor with separate kitchen and they had nothing to do with alleged demand and dowry articles of the complainant, (10.6) the complainant was having grievance against her husband due to which she implicated other accused persons also. During cross examination she has admitted that she was not having cordial relations with her husband, (10.7) the allegations made in the FIR are general in nature and completely vague as in most of the cases, the complainant has named each and every members of the family with the ulterior motive. No complaint was ever made against the accused prior to registration of the present case, which clearly depicts the illintention of the complainant to implicate in false and fabricated case, .
11. The brief arguments of other accused persons are as follows: (11.1) Allegations are mainly against husband Dinesh Kumar, who has expired and there is no specific or direct allegation against other accused persons, (11.2) PW 7 / brother of complainant, has not corroborated the version of complainant, (11.3) material and irretrievable contradictions in the testimonies of material witnesses can be seen, which makes the prosecution case unbelievable and improbable, (11.4) there is evidence on record that complainant resided separately from her husband since 7.3.1999 till just before his death on 12.8.2008, (11.5) complainant has roped almost entire family of her husband with false allegations and FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 14 on the contrary she has filed a suit for partition of estate of her husband and fatherinlaw which is pending adjudication, (11.6) during his life time, husband of complainant had filed a divorce petition against her, wherein she was summoned. Her allegations in written statement to divorce petition and complaint before CAW Cell and in the present FIR are different and self contradictory, (11.7) there is no iota of allegations in the complaint that complainant ever entrusted her dowry articles and stridhan to any of the accused and therefore, no charge u/s 406 IPC was framed against other accused, (11.8) as per her own allegations, complainant resided at matrimonial house only for about two months and therefore, allegations of dowry demand are self created, (11.9) besides complainant and her brother/PW7 there is no independent or material witness examined by the prosecution and even PW 7 has failed to corroborate her allegations, (11.10) the bone of controversy was extra marital affair of complainant with one person namely Sh. Shammi, (11.11) the complainant resided with her parents at Singapore, as such she was accustomed to lead an uninterrupted and non interfered life with a view to lead independent life and she deserted and neglected her husband without any reason on his part and involved almost entire family of her husband with a view to extort substantial money from them, (11.12) allegations are general and not specific . Accused Kamal Kataria and Beena Kataria were already married for about 17 years and used to reside separately near Mahipal Pur and occasionally used to visit the matrimonial house of the complainant, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 15 (11.13) accused Rajbala got herself married hence the allegations of having intimacy with the brother of accused are malafide and self created. In her evidence the complainant has failed to do any of the essential ingredients against the accused persons. (12) Accused persons relied upon the following judgment :
(a) Tinku Ram Vs. State 2012 (1) JCC 136
(b) R. P. Kapoor Vs. State of Punjab, AR 1960 SC 866
(c) Dr. V. N. Sharma Vs. State 1996 Crl L.J. 1116
(d) Shanker Vs State of MP 1989 Cr L.J. NOC 151
(e) Narender Kumar Vs. State 1 (2008) DMC 337
(f) (2008) DMC 10 Hon'ble allahabad High court
(g) (2008)CC Case (SC 164
(h) Anu gill vs. State II(2004) DMC 690
(i) Gurdev Singh Case (1990) DMC 139 and II(1993) DMC 606 1991 Crl LJ 2333 , P and H
(j) Harish chandra Prasad Mani & Anr. 2007 II AD (SC) 354
(k) Leela Das Vs. UOI, 1999, Cr. LJ 1807 Cal
(l) 138 (2007) DLT 535 DH
(m) 1995 JCC 546 Rajinder Singh Sethia Vs. State
(n) 2002 (2) JCC 907 Devi Dutt Malhotra Vs. State of Delhi
(o) UOI Vs. Prafulla Kumar Samal and another ( 1979) 2 SCR 229,
(p) Bhim Singh Vs. State 1993 JCC Delhi 58
(q) Madhav Rajo Jiwaji Rao Vs Sambhaji Rao AIR 1988 SC 709
(r) Y Abraham Ajith Vs. Inspector of police, Chennai AIR 2004 SC 4286 FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 16
(s) Ramesh and Othrs Vs. State of MP 2007 (1) CC cases ( SC) 55
(t) Dinesh Kumar Sharma vs. State of Rajasthan (2006) 1 Femijuris CC 487 ( Raj). (u) Crl Mist no. 57529 by P&H 2006 (2) RCR ( Crl)101 2006 Crl L J 664;
13. The court has heard the submissions of both the sides and also gone through entire record including testimonies of witnesses. The court shall deal with charge framed under section 498A/34 IPC only as other charge was framed against accused Dinesh Kumar only, who has expired. Before appreciating evidence on record, lets first discuss the relevant legal provisions given U/s 498 A IPC. Section 498A IPC provides punishment to husband or relatives of the husband of a woman subjecting her to cruelty. The prosecution must prove that :
(i) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand.
14. In the light of aforesaid legal provision, the court would now appreciate the evidence brought on record to ascertain if alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. Admittedly the FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 17 complainant has built her case on explanation (b) of section 498A IPC. In the judgment of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J page 3019, the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of section 498A IPC observed that harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
15. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements. The examination in chief of PW1/complainant is reproduced and appreciated as follow : (15.1) PW1 has deposed that at the time of marriage, dowry articles such as sofa, double bed , dressing table , full size fridge, colour TV , VCR, electrical appliance Mixi, toaster , ice cream , hair dryer and many other household articles as well as gold jewellery consisting FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 18 gold heavy necklace, big ear ring, gold tikka, silver thagdi, 56 pair of silver payal, gold bracelet, gold bangles, many pairs of foot rings, gold tops for daily use, gold chain and gold jhumki, gold rings to all accused and chain to her husband were given. Five gold articles i.e. chain, tops, ring, nose pin to her mother in law, motorcycle and clothes for her husband and in laws were also given. She has further deposed that cash amount of Rs. 51,000/ to her husband and Rs. 50,000/ to other accused, which was distributed amongst the relatives of her husband. She has also deposed that at the time of birth of her son, one gold ring, gold nuth , gold ring etc were also given.
(15.2) In this regard, it be observed that complainant has not mentioned all these articles in her statement Ex PW 1/B and statement recorded under section 161 CrPC and mentioned about the same for the first time while regarding her examination in chief and there is no corroborative evidence on record in this regard. During crossexamination, she has denied that her marriage was performed in a simple manner and not with great pomp and show . She has stated that her parents had spent about Rs 7 to 8 lacs in the marriage and at that time her father was posted for about 10 years out of India and was earning good income and money was spent out of his savings. She has denied that her father was not having this much amount to spend in the marriage, whereas, in Ex PW1/DA/1, she has stated that at para 04 that marriage was solemnized with great pomp and show despite the fact that her father was not in a position to arrange such pomp and show and was not in position to pay rich dowry. In this regard, it be observed that IO has not collected evidence regarding source of dowry articles allegedly given at the time of marriage or other circumstantial evidence to prove this particular claim of the complainant, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 19 (15.3) She has further deposed that after marriage, she went to her matrimonial house at Seelam pur, which was a joint family, where her motherinlaw Laxmi Devi, Jeth Manoj Kumar his wife Rimpi, Rajbala with their family, unmarried brother in laws Rajiv and Sanjay, one unmarried sister in law Archana were residing besides her husband Dinesh. She has also deposed that her married sister in law Beena Kataria and her husband Kamal Kataria were also residing there and used to go to office from there and after office, they used to come back matrimonial house daily.
(15.4) In this regard it be observed that the complainant has not mentioned about the same in her statements given to police and mentioned about it for the first time while recording examination in chief. It be further observed that during cross examination, she has admitted that accused Kamal Kataria was employed with Air port Authority of India at Mahipal Pur and used to stay in rented accommodation at Mahipal Pur along with his family. Similarly, she has further admitted that accused Nahar Singh was employed with some government department and was residing at Dilshad Garden along with his family. Though complainant has claimed that both Nahar Singh and Kamal Kataria used to invariably stay at matrimonial home , but she has failed to prove this fact on record and there is no corroborative evidence in this regard. She has denied that both Nahar Singh and Kamal Kataria used to reside at their separate accommodation and never stayed regularly at matrimonial house and they used to visit occasionally during festival and social gathering. It also be observed that voter list filed by the complainant showing address of above mentioned accused as of her matrimonial house, cannot be read in evidence as the same FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 20 has not been proved on record as per law and application of complainant to this effect was already dismissed. Moreover, even in final report, address of said accused persons is shown at Mahipalpur and Dilshad Garden, (15.5) she has further deposed that marriage was solemnized by the accused persons specifically for getting Maruti Zen car but this fact is not mentioned in the statement given to police . She has further deposed that demand of Maruti Zen car was raised before the marriage but her brother remained silent. She has further deposed that even on the day of marriage, her brother was humiliated for not giving Maruti Zen by her brother Kamal Kataria Nahar Singh Vinod, Manoj and Sanjay and they showed their unhappiness over dowry articles given.
(15.6) In this regard, it be observed that PW7/brother of complainant has mentioned different facts in this regard. He has deposed that there was demand of car by accused Nahar Singh and when he showed his inability to arrange the car then matter was settled for motorcycle. It is also pertinent to mention that despite allegation of demand, strangely the complainant and her family members decided to go ahead with the marriage. If at all things were not alright, marriage would not have taken place. Moreover, during cross examination, she has admitted that no demand of dowry was raised by accused persons prior to her marriage as per her knowledge and she came to know about raising of demand of car on the day of marriage, when her motherinlaw and sistersinlaw told to her. she has denied that she has leveled false allegation about demand of car, (15.7) she has further deposed that from the very first day of marriage, behaviour of accused persons was not good towards her, accused Pushpa, Veena, Archna and other FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 21 accused mentally tortured by calling her not beautiful and also used abusive language for her and similar incident had happened even on 26.01.1998. It be observed that allegations are general in nature without any specific detail and these facts do not find mention in her statement given to police, (15.8) she has further deposed that on 26 th January 1998, her brother came to her matrimonial home as per custom but accused persons insulted him and she was not sent to parental house with him. whereas in the evening, she was taken by accused persons to her parental house and all of them were duly respected by her family members. In this regard it be observed that these facts are not mentioned in her statement given to police and also in the statement of PW7, (15.9) she has further deposed that on 28 January 1998, her jeth Vinod Kumar sustained injuries due to electric shock as live electric wire accidentally fell on him but he survived. About this incident, she was blamed by accused Pushpa, Veena, Raj Bala and was considered not auspicious for their family. They abused by saying '' Is Kulakashni key ghar main ane ke bad aisa hua hai or na to dahej late hai or na hi ye ghar se niklegi, yheh to hum sub ko marker hi chain ke sans legi, yhe to dian hai''. In this regard it be observed that the allegations are general in nature without any specific detail and not accompanied by any demand, (15.10) she has further deposed that her husband never talked to her parents and brothers in proper manner and used abusive language for them for giving insufficient dowry. it be observed that allegation is general in nature without any specific detail and not accompanied by any demand. she has further deposed that on 13 February 1998 her FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 22 parents and family member came to her in laws house to take her along with them as per custom but they were not properly treated and respected by accused persons. In this regard it be observed that allegations are general in nature without specific detail and not accompanied by any demand, (15.11) she has further deposed that her parents requested accused Dinesh Kumar to accompany them to Vaishno Devi but he refused. It be observed that refusal does not amount to cruelty in terms of section 498A IPC. She has further deposed that after her arrival from Vaishno Devi, none of the accused persons came to take her to matrimonial home, her parents requested the accused persons on telephone to take her back but they did not pay any heed to their request. It be observed that initial allegation is related to accused Dinesh Kumar, who has expired. There is no corroborative evidence to prove that complainant was not taken despite repeated request and there is no mention of this fact in the testimony of PW7, (15.12) she has further deposed that accused persons were invited on Holi festival but none of them came. In this regard, it be observed that allegation is general in nature without specific detail and not entertaining request does not amount to cruelty in terms of section 498A IPC, (15.13) she has further deposed that she made efforts to talk to accused Dinesh Kumar on telephone but her mother in law and sister in law did not inform him about her calls. It be observed that there is no corroborative evidence and this fact does not find mention in her statement given to police as well that of PW7. She has further deposed that she was taken back by accused persons to matrimonial house only after intervention of Mediator and FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 23 clothes and other gift items were taken for all accused and other relatives. In this regard, it be observed that no corroborative evidence is on record to substantiate the claim of complainant that she made efforts to talk to accused Dinesh Kumar and she was taken only after intervention of the Mediator. The evidence of Mediator is not on record to corroborate the factum of intervention. It also be observed that clothes and gifts were given to accused persons voluntarily and there was no demand on the part of the accused for the same, (15.14) she has further deposed that she was advised complete bed rest by the doctor but she was made to do all house hold work in that condition despite showing reports to accused Laxmi Devi and Dinesh Kumar. In this regard it be observed that allegations are not supported by any corroborative evidence, (15.15) she has further deposed that demand of video camera and washing machine music system was raised by accused Dinesh Kumar and other accused and she was tortured physically for not fulfilling their demands. Accused Dinesh Kumar used to give her beatings on provocation of lady members of the family. Her costly clothes were spoiled as she was not allowed to keep her entire clothes and her husband demanded another almirah if she wanted to keep her clothes safely. The demand of washing machine was raised by her sister in law Rajbala and she provoked her husband for fulfilling this demand. In this regard, it be observed that allegations are general in nature and without specific details and are against complainant's husband, who has already expired. PW1 has not mentioned any specific date time and place when such demand was raised, (15.16) she has further deposed that during pregnancy, she was not properly treated by accused persons. She was not taken to any doctor by her mother in law, husband and FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 24 sister in law and in fact she was more tortured mentally and physically. During pregnancy she was not given proper food and diet. It be observed that allegation are general in nature without specific details and not accompanied by demand, (15.17) she has further deposed that her husband used to praise the beauty of accused Rajbala by saying that her cheeks, lips and hair are very nice. Her husband used to eat food served by Rajbala only and refused to take food from complainant. Her husband used to say that he cannot live without Rajbala and in fact he was having illicit relationship with Rajbala. In this regard, it be observed that allegations are not supported by corroborative evidence and appear to be figment of her imagination, which is evident from her cross examination too, wherein she has admitted that she never used to speak to accused Rajbala as she did not like speaking to her. She doubted that her husband and Rajbala were having illicit relationship as told by her husband and in laws. She has further stated that she never thought it necessary to speak about the same to her Jeth. She has denied that her deposition in this regard is false. It is on record that after death of her husband, accused Rajbala remarried with her younger brother in law, which would not have been possible, if at all she was having illicit relation with the husband of complainant. It also be observed that there is no mention of this fact in the testimony of PW7, (15.18) she has further deposed that accused person used to call her as kulkashni Manhoos Dayan, Kanjari and other words which have been mentioned in her complaint and whenever she used to object to use of such language, she was given beatings for raising objections. It be observed that allegations are again general in nature without any specific detail and not accompanied by any demand, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 25 (15.19) she has further deposed that her brother had invited her and accused Dinesh for birthday celebration of his son on 23.6.1998 but she was not permitted to go as accused Nahar Singh was invited for the function, due to which accused Dinesh Kumar gave beatings to her at the instigation of accused Nahar Singh. in this regard, it be observed that allegation is against accused Dinesh Kumar, who has expired and this allegation is not supported by any corroborative evidence, (15.20) she has further deposed that on 17.12.1998, her brother had come to her matrimonial home for taking her parental house for sindhara ceremony. She was sent by accused persons along with her brother in a very bad physically condition. She was neither taken back nor was she contacted her husband and other accused persons for taking her back to matrimonial house . Even they did not inquire about her health and well being. It be observed that allegations are again general in nature without any specific detail. PW1 has not explained if her bad physical condition was on account of harassment and cruelty committed in furtherance of dowry demand, (15.21) she has further deposed that on 4th October 1998, she was admitted at St. Stephen hospital and gave birth to a male child. Her brother informed about birth of the child to her husband, mother in law and other family members but they did not care to visit and only after 4 days of delivery, accused Sanjay and Archana came to hospital and took her to matrimonial home along with them. It be observed that these allegations do not amount to cruelty in terms of section 498A IPC, (15.22) she has further deposed that her husband and all his family members wanted big item like Almira, music system, washing machine and video camera in the ceremony of FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 26 Chhochak. But when these items were not given by her brother, they again started harassing by giving her beatings. She was not provided proper food and rest required after birth of the child. She was not cared and looked after by her husband at all he even did not want to see her and child . It be observed that allegations are again general in nature without any specific detail and not supported by corroborative evidence. she has further deposed that accused Dinesh Kumar used to beat her at the instigation of accused Rajbala and she was not given medical treatment whenever she and her child fell ill. It be observed that allegations are again general in nature without any specific detail. Moreover, allegations are against accused Dinesh Kumar, who has expired, she has further deposed that on
24..01. 1999 her jeth Vinod Kumar committed suicide because of illicit relationship of her husband with her jethani Rajbala and after his death, her husband became more free with her Jethani. she has further deposed that her mother in law, sister in law , brother in law and other accused persons wanted to arrange marriage of Rajbala with her husband to get rid of her and because of this, they harassed her more and more. It be observed that again allegations are general in nature without any specific detail and are not supported by any corroborative evidence, (15.23) she has further deposed that her brother called accused persons to celebrate Holi at his residence but they all refused. It be observed that alleged refusal does not amount to cruelty in terms of section 498A IPC. She has further deposed that she was not keeping well because of bad behaviour of accused persons. She was made to do the entire house hold work in that condition by them. In this regard, it be observed that allegations are general in nature without specific detail, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 27 (15.24) she has further deposed that she got fed up with adverse behaviour of accused persons and therefore she called her brother on 07.03.1999 to take her to parental house as none of the accused persons were ready to look after her during illness. It be observed that allegations are again general in nature without specific detail. she has further deposed that on 06.03.1999 a quarrel had taken place and she was given beatings by all accused except Rimpy with intention to kill her. At that time, accused Archana caught hold of her hair. It be observed that allegations are again general in nature and date of this incident is not mentioned in her statement given to police, (15.25) she has further deposed that after coming back to parental house , she was admitted at St Stephen Hospital on the same intervening night of 7 and 8th March, 1999 and remained admitted there till 9th March 1999. Thereafter she was again admitted in AAA Hospital and was discharged on 19th March 1999. She has further deposed that during hospitalization, accused persons did not care to visit her or inquired about her. In this regard it be observed that all these facts are not mentioned in her statement given to police with such details, (16) Now dealing with documents produced and exhibited in the testimony of PW1/complainant. Ex P1 to P8 are medical treatment papers of St. Stephen hospital and AAA Hospital. Perusal of these medical papers disclose that she was admitted in the hospital for treatment of cough, fever and weakness and not for beatings given by the accused persons. There is no mention by the doctor concerned in complaint and history that she was physically or mentally tortured by the accused persons or that her illness was on account of harassment and cruelty committed by the accused persons. PW1 has also FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 28 filed list of dowry articles Ex PW1/A cash memo of gold bangles and bracelet from Singapore Ex. P9 and cash memo of purchase of Motor cycle Ex. P10. She has also proved seizure memo Ex PW1/C, recovery memo Ex PW1/D, list of remaining dowry articles Ex PW1/GI and details of cash amount Ex PW1/H. In this regard, it be observed that list of articles have not been witnessed by family members of both the sides and its genuineness is doubtful. Cash memos are not verified and proved by those witnesses, who have prepared the same. Moreover, charge under section 406 IPC was framed against accused Dinesh Kumar, who has already expired.
(17) The complainant/PW1 has further proved her written complaint before CAW Cell Ex PW1/E & Ex PW1/F. It be observed that these documents are not complaints but are mere reproduction of Ex PW1/B. These documents are not addressed to any authority or have been received against receiving by police or any other authority. It also be observed that these documents have been prepared subsequent to registration of present case and appear to have been filed during reconciliation proceeding before CAW Cell. It be further observed that despite serious allegations of continuous harassment and cruelty being committed upon the complainant, she did not choose to file any complaint against accused person before any authority prior to registration of this case. Perusal of Ittlah Pesh Bandi Mark X also discloses that the complainant chose to leave matrimonial house with her own free will. She has mentioned therein that certain jewlelery articles and other clothes were also taken by her before leaving.
(18) It is worthwhile to mention that while appreciating the evidence in such type of cases involving matrimonial disputes, the court has to be on its guard and not to be swayed FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 29 by the general and bald nature of allegations which are bound to emanate from the mouth of family members of a woman after the relations between two sides have gone to the extreme opposite end. It is for this reason a strict analysis of allegations leveled by the family members of the complainant shall be done. Clearly , the accused has faced trial for penal provisions and the consequence of which are very grave in nature so a strict interpretation needs to be taken of the various allegations leveled by the complainant and her relatives.
(19) The examination in chief of PW7/ brother of complainant, Sh Anil Kataria is reproduced as below : (19.1) he has deposed that accused Nahar Singh asked him to give a car in the marriage as accused Dinesh Kumar was getting such marriage proposal, where car was offered as dowry. When he showed his inability to arrange for the car and then matter was settled for a motor cycle and accordingly he arranged for motor cycle. He has further deposed that accused also made a demand of whirlpool refrigerator of 350 Ltrs. (19.2) In this regard, it be observed that allegations are general in nature without any specific detail . No time, date and place has been mentioned of such demand. No other corroborative evidence has come on record to prove this fact. During cross examination, he has admitted that he mentioned about demand of car and refrigerator to other family members except his sister but no statement of other family members has been recorded to prove this fact. He has denied that no such demand was made by accused Nahar Singh or other accused at the time of negotiation for marriage. He has admitted that accused never made any other demand except car and fridge. He has further admitted that he has not FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 30 specified the name of accused, who made demand of fridge, (19.3) he has further deposed that accused Kamal Kataria, Nahar Singh, Manoj and Sanjay abused him on the day of marriage after dinner and they kept on taunting till Fera ceremony by saying that they had brought so much gold for the complainant and in return nothing was being given in dowry. He has also deposed that they went to matrimonial house of the complainant for pag fera ceremony but accused persons did not treat them properly. In this regard, it be observed that taunting and not treating properly do not amount to cruelty in terms of section 498A IPC, (19.4) he has further deposed that he had invited accused Dinesh Kumar for Vaishno Devi trip but he refused. He also invited him as his father was leaving for Singapore but he ignored the same. In this regard, it be observed that allegations are against accused Dinesh Kumar, who has expired. During crossexamination he has admitted that he did not remember in whose presence he had invited the accused for said trip. He has denied that accused refused to accompany or visit his father before he left for Singapore as he was busy in family business. It be also observed that these facts are mentioned in his statement given to police, (19.5) he has further deposed that accused did not take the complainant back to matrimonial house for about three months and with the intervention of the relatives, the complainant was taken to matrimonial house. It be observed that no corroborative evidence is on record to substantiate this claim. No statement of such relatives is there on record to prove this fact, (19.6) he has further deposed that on 23.6.1998 he invited accused Dinesh Kumar for FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 31 birthday celebration of his son but neither accused came nor was complainant allowed to come. The accused gave beating to his sister on the pretext that accused Nahar Singh was not invited and accused stated to him that since Nahar singh was not invited therefore neither he nor his other family members would come for the function. It be observed that allegations are against accused Dinesh Kumar, who has expired. It also be observed that reasons stated for not going to function is not mentioned in his statement given to police. during crossexamination he has admitted that when the complainant informed him about beatings given by accused and that he was not examined medically either by him or herself. He has also admitted that on the next day, when they went to matrimonial house of complainant to make the accused understand then also complainant was not taken for medical examination. He has denied that no such incident had taken place. (19.7) He has further deposed that he made request to uncle of accused Dinesh Kumar to reconcile the matter, who tried to mediate but could not reach to fruitful conclusion. It be observed that this fact is not mentioned in the statement of the complainant and there is no corroborative evidence to prove this fact, (19.8) he has further deposed that accused also made demand of Videocon TV and washing machine and car. It be observed that he has not specified as to who raised such demands. The testimony of PW 1 in this respect is against accused Dinesh Kumar, who has expired. It also be observed that during cross examination, he has admitted that no demand was made in his presence but stated that complainant used to inform about their demand to him. This admission on his part, goes on to prove that his testimony regarding demand is based on hearsay information FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 32 (19.9) he has further deposed that he brought his sister in the month of July as per customs then his sister informed that being pregnant, she was advised not to do heavy work but accused were not taking due care and his sister remained at her parental home till October but no body came to take her back. In this regard, it be observed that his deposition is based on hearsay information and no corroborative evidence has come on record to prove this allegation. It also be observed that allegations are general in nature, (19.10) he has further deposed that on the day of delivery, he informed the accused about the same but he refused to take any responsibility for the delivery. So, he was compelled to get the complainant on his own at St. Stephen hospital. In this regard, it be observed that facts are not mentioned in the statement of complainant as well as his statement given to police. It also be observed that there is no corroborative evidence on record. During cross examination, he has stated that he did not remember as to who bear delivery expenses. He has denied that accused persons got the complainant admitted for delivery, (19.11) he has further deposed that accused Rajbala and Archana came there but did not take the complainant and child back. It be observed that this fact is not mentioned in the statement of the complainant. During cross examination, he has denied that accused Rajbala and Archana did not show any sympathy to his sister. He has further deposed that despite his efforts, accused Dinesh Kumar never cared to come and take back the complainant and child back and also did not talk to his sister over phone. it be observed that allegations are against accused Dinesh Kumar, who has expired, (19.12) he has further deposed that in the month of January, he along with his parents came to matrimonial house of complainant to give choochak but on that day also, accused FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 33 taunted that no washing machine was given. It be observed that mere taunting does not amount to cruelty in terms of section 498A IPC. He has further deposed that he came to know that husband of accused Rajbala had committed suicide because of her illicit relation with accused Dinesh Kumar. He has further deposed that even at the time of cremation, they were abused by accused persons without any fault. It be observed that allegations are based on hearsay information and not supported by other evidence. During cross examination, he has denied that accused persons did not abuse them during cremation, (19.13) he has further deposed that accused tried to compel him to take the complainant back to her parental home as whenever he went to complainant's matrimonial house he was always asked to take her back to parental house. He has also deposed that he made efforts to settle the matter for onetwo months. It be observed that these facts are not mentioned in the statement of the complainant and there is no corroborative evidence in this regard, (19.14) he has further deposed that when he learned that his sister was being given beatings by all the accused, he brought the complainant back to his house. It be observed that this allegation is general in nature without any specific detail. He has further deposed that both the complainant and her son were ill at that time and therefore they were admitted at St. Stephen hospital and thereafter got treatment also at Civil hospital. It be observed that he has stated that they fell ill account of cruelty committed by accused persons, (19.15) he has further deposed that initially when he received information regarding illness of the complainant, he along with other relatives went to her matrimonial home but FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 34 they were not allowed to enter the house by accused Sanjay, Manoj and Rajiv and complainant was taken to hospital with the intervention of police. It be observed that these facts are not mentioned in the statement of the complainant and no corroborative evidence is there on record, (19.16) he has further deposed that they made efforts to settle the matter but no settlement took place and the complainant was forced to make complaint at CAW Cell. He has further deposed that efforts were made to settle the matter but accused appeared there only once. Only some furnitures were returned but gold articles and utensils are still lying with the accused. In this regard, it be observed that all the allegations are against accused Dinesh Kumar, who has expired.
(19.17) during cross examination, he has denied that accused persons never demanded dowry to him and his sister and never gave beatings to his sister. He has further denied that his sister gave false complaint at CAW cell to grab the property of her fatherinlaw Lala Mam Chand. During crossexamination by Ld. Counsel for accused Manoj Kumar and Rimpy, he has admitted that there is no allegation against Rimpi in his testimony. He has admitted that there is no allegation of physical beatings against the accused Manoj also. He has also admitted that accused Manoj never tortured his sister in his presence and all allegations pertaining to cruelty in matrimonial home were told to him by his sister. He has further admitted that accused Manoj and Rimpi were giving separately living on 1st floor. He has denied that accused Manoj abused him at the time of Phera ceremony and he never taunted him regarding dowry. He has further denied that at the instance of his sister, he has deposed against accused Manoj and Rimpi in the present matter and accused Manoj never FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 35 stopped him to enter into matrimonial home of his sister and the same is concocted and false as there are no specifications. He has admitted that in comparison to other inlaws of his sister , they were having good relations with accused Manoj and Rimpi. He has denied that accused Manoj and Rimpi never harassed or done any cruel act towards his sister or with any of his relatives including him. He has also denied that the instant FIR is a result of dispute between his sister and her husband.
20. Now dealing with arguments of the complainant point wise : (20.1) during cross examination, no question was asked with regard to facts stated in para no. 1 of examination in chief of complainant/ PW 1. In this regard, it be observed that though no cross examination has been conducted but the court has already observed that details of these articles are not mentioned either in Ex PW1/B or statement of complainant recorded under section 161 CrPC and PW1/complainant gave such detail for the first time before the court, (20.2) accused persons have failed to disprove illicit relationship between accused Rajbala and Dinesh Kumar. It be observed that this is mere allegation and no evidence has been collected to prove this fact. It is on record that accused Rajbala got remarried after the death of his husband. had she been in adulterous relationship with accused Dinesh Kumar, she would have remarried, (20.3) there was specific demand of washing machine by accused Rajbala, who instigated accused Dinesh Kumar also to raise such demand but no cross examination has been done on this point. It be observed that the court has already held that allegations are general in nature and without specific details. PW1 has not mentioned any specific date time and FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 36 place when such demand was raised, (20.4) specific demand of Video Camera, Music System, Almirah and Washing Machine was also there by accused persons, which finds corroboration in the testimony of PW7. In this regard it be observed that allegations are general in nature and without specific details. PW1 has not mentioned any specific date time and place when such demand was raised, (20.5) false allegation of illicit relationship between complainant and one person namely Sh. Shammi has been alleged but not proved during cross examination of PW1, who remained out of India most of the time and this allegation was levelled only after filing of complaint before CAW Cell. Divorce petition was withdrawn by accused Dinesh Kumar on account of falsity of this allegation, (20.6) accused Manoj Kumar, Rinki, Nahar Singh, Kamal Kataria and Beena Kataria have failed to prove the factum of living separately. No proof of their residence has been placed on record to show that they were not residing at matrimonial house of complainant. On the contrary the complainant has filed copy of the voter list showing the name of accused persons and their address. It has already been held by the court that claim of complainant regarding stay at matrimonial has not been proved. No evidence has been collected to prove this fact. The voter list filed by the complainant showing address of above mentioned accused as of her matrimonial house, cannot be read in evidence as the same has not been proved on record as per law, (20.7) the factum of torture and harassment has been proved in the testimony of PW1/complainant and has been corroborated by PW7. It be observed that the court has already held that allegations are general in nature without specific detail and some of the FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 37 allegations can not be termed as cruelty in terms of section 498A IPC, (20.8) there is specific allegation with regard to demand of Car and big Refrigerator some days before the marriage by accused Nahar Singh, Kamal Kataria, Vinod, Manoj and Sanjay. The court has already held that no cruelty is meted out to complainant under section 498A IPC, (20.9) during cross examination PW1 has denied that no dowry demand was made by accused Manoj and Rimpi and no specific allegation has been found against them. It be observed that the court has already held that no offence is made out against them in above mentioned discussion and mere denial of particular suggestion would not suffice to secure conviction of accused persons, (20.10) only some of the dowry articles were returned out of the total dowry articles/jewelery and rest of the articles were also returned by accused on 17.03.2002. It be observed that present accused persons have not been charged under section 406 IPC, (20.11) the guilt of accused persons stands proved from the fact that in settlement dated 18.03.2009 arrived at before mediation cell, they had undertaken not to harass, humiliate and torture the complainant and her child in future and to provide ¼ th share of movable and immovable property of deceased husband of the complainant and to provide maintenance amount of Rs. 6,000/ per month out of the ancestral income but accused persons failed to honour said settlement and did not provide information with regard to total number of movable and immovable properties. It be observed that said settlement can not be taken into consideration as the same was done without prejudice to rights of accused persons and once it failed for whatever reasons, it can not have bearing on the final order, FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors 38 which is passed on the merits of the case, (20.12) accused persons have not led evidence in their defence to prove their innocence despite availing sufficient opportunities. In this regard, it can be said that the same can also not go against accused as complainant's case itself is judicially weak, (20.13) specific dates and events have been mentioned by the complainant in her complaint, examination in chief and cross examination, which go on to suggest that she was subjected to cruelty in the hands of accused persons in furtherance of dowry demand and most of the cross examination done by Ld. Defence Counsel are beyond pleadings. No specific question regarding entrustment of jewelery and cruelty was asked in cross examination. It be observed that most of the date and events mentioned in her testimony, do not find mention in Ex PW1/B and statement given to police. The other argument of complainant is not maintainable being misconceived, (20.14) documents in support of the case have been placed and proved on record but no question was asked on those documents, which amounts to admission on the part of accused persons. During cross examination, no specific question was put on the point of cruelty on the complainant and her minor child whereas their medical papers have been proved on record to show cruelty on the part of accused persons. In this regard, the court has already held that these medical papers disclose that she was admitted in the hospital for treatment of cough, fever and weakness and not for beatings given by the accused persons. There is no mention by the doctor concerned in complaint and history that she was physically or mentally tortured by the accused persons or that her illness was on account of harassment and cruelty committed by the accused persons.
FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors
39
(20.15) The complaint was lodged within one year of marriage, which attracts the
presumption given u/s 113 A of Indian Evidence Act. This argument is not maintainable being misconceived,
21. In view of the aforesaid discussion, the court is of the opinion that no material evidence has been produced in order to secure conviction. Accused persons accordingly deserve acquittal and are acquitted from the charge framed under section 498A/34 IPC .
22. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 26.07.2014 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
DICTATED, CORRECTED & SIGNED ON 06.08.2014
FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors
40
FIR No. 181/99
P.S. K. Gate
U/SEC. 498A/406/34 IPC
ST. VS. Kamal Kataria & Ors.
26.07.2014
Present : Ld. Sub. APP for the State.
Accused Dinesh Kumar and Laxmi Devi have expired
Remaining accused on bail with respective counsels
Vide separate judgment announced in the open court, accused persons are
acquitted from the charges framed u/s 498A/34 IPC.
Previous bail bonds are cancelled, sureties are discharged. Documents if any, be returned against receiving and endorsement if any be cancelled.
Fresh bail bonds in compliance of provision given under section 437A CrPC filed, attested and accepted. Bail bonds furnished shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta)
MM02/Mahila Court
Tis Hazari Courts, Delhi
26.07.2014
FIR No. 181/99, PS K. Gate State Vs Kamal Kataria & Ors