Delhi District Court
Fir No:295/96 1 State vs . Krishan Kumar Etc. on 12 March, 2012
FIR No:295/96 1 State vs. Krishan Kumar etc.
IN THE COURT OF MS. RACHNA T. LAKHANPAL, METROPOLITAN
MAGISTRATE: ROHINI, DELHI.
FIR No. 295/96
PS - Narela
U/s. 498A/406 IPC
ID No. 02404R0062501997
12.03.2012
STATE VS. KRISHAN KUMAR ETC.
Date of institution : 24.04.1997.
Date of Commission of Offence : Since 14.05.1995(date of marriage)
Name of the Complainant : Anju
Name, parentage & Add. Of the
Accused : 1) Krishan Kumar
S/o late Sh. Sardare Lal
2) Jaiveer
S/o late Sh. Sardare Lal
3) Virmati,
W/o Sh. Krishan
4) Jaswant
S/o late Sh. Sardare Lal
All R/o Village Dhankot,
Gurgaon, Haryana.
Offence complained of : U/s 498A/406/34 IPC.
Plea of the Accused : Pleaded Not Guilty.
Final Order : Acquitted
Date for reserve of Order : 14.02.2012
Date of announcing of order : 12.03.2012
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FIR No:295/96 2 State vs. Krishan Kumar etc.
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The present FIR was registered at PS Narela against accused persons namely Krishan Kumar, Jaiveer, Jaswant, Virmati, Sardare Lal (expired), Mishro Devi (proceedings abated) for the offences u/s. 498A/406/34 IPC. The present case was registered upon the complaint made by the father of victim Smt. Anju whereupon the IO had made an endorsement and the Duty Officer had subsequently recorded the FIR. Gist of the complaint is as under:
2. The marriage of the complainant was solemnized with accused Jaiveer on 14.05.1995 as per Hindu Rites and Ceremonies at Delhi. After marriage accused Jaiveer demanded a sum of Rs. 37,000/. The daughter of the complainant told this fact to her father/complainant but her father did not give money to the accused and sent back his daughter to her matrimonial home. The father of the boy, and the mediator had assured that the boy is doing job with printing press and earning Rs. 4000 - 5000/ per month. But after marriage it came into knowledge that the boy was not doing anything and even the boy was told to be aged about 2728 years but turned out to be not less than 3840 years. Complainant further alleged that when he went to see the boy, the boy was not shown to the complainant and the boy was engaged by his father who had short sight. Complainant further demanded their dowry articles. Complainant further alleged that he does not want to send his daughter back to her matrimonial home as accused persons are not good people as they beat her daughter and also tried to burn her. Complainant further alleged that accused persons Sardare Lal, Mishro Devi, Krishan Kumar, Virmati, FIR No. 295/96 State vs. Krishan Kumar etc. 2 of 15 FIR No:295/96 3 State vs. Krishan Kumar etc. Jaiveer and Satish beat the daughter of complainant and tried to burn her alive but one person namely Raje who is son of Sardare Lal informed the complainant and then he brought his daughter to the house in the night at around 12.
3. Investigation commenced and concluded by filing the charge sheet. Compliance of section 207 Cr.P.C was made. Arguments on charge were heard and charge U/s. 498A/406/34 IPC was framed against the accused persons to which they opted to the face trial.
4. In order to bring home the guilt against the accused prosecution has examined as many as five witnesses.
a) PW1 is ASI Madan Singh, who was posted at CAW Cell, Ashok Vihar.
b) PW2 is Smt. Anju who is the victim.
c) PW3 is W/ASI Anita who is Duty Officer on 27.7.96.
d) PW4 is Azad Singh who is complainant.
e) PW5 is Inspector Rajni Saroha who was IO of the case in
CAW Cell.
5. Statement of all the accused persons have been recorded u/s 313 Cr.P.C., wherein they have denied the allegations made against them and had stated that they have never demanded any dowry from the complainant or she was ever beaten by them or they never tried to burn her alive. Accused Jaiveer stated that at the time of marriage, the complainant had concealed this fact that she was already married and when this fact came into light victim made false allegations against him on the instance of her family members. As the first marriage of FIR No. 295/96 State vs. Krishan Kumar etc. 3 of 15 FIR No:295/96 4 State vs. Krishan Kumar etc. complainant was in existence, hence second marriage was not valid.
Accused further submitted that all the allegations regarding cruelty made against him and his family members are false. Complainant was interested to live with her devar Raje and even one panchayat also held in this regard. He further submitted that no dowry articles were ever given at the time of marriage hence nothing was recovered from his possession. Accused persons opted to lead defence evidence.
6. DW1 is Smt. Maya Devi who is sister of accused persons. She deposed that the marriage of complainant and accused was a simple marriage and even the arrangement of band was not done. Only Rs. 1/ was given as Shagan to the accused Jaiveer and only 1015 persons attended the marriage. No jewellery articles or cash were given in the marriage. She further deposed that complainant Anju wanted to live with her brother Raj Kumar @ Raje in illicit relation. The matter was also brought to the notice of girl's parents and matter was also taken up in village panchayat and panchayat of Mungeshpur. Complaint openly refused to live with Jaiveer and said that she wanted to live with Rajkumar. Complainant's parents also refused to send their daughter with accused Jaiveer as they wanted to send their daughter with Raj Kumar @ Raje. DW1 further deposed that all accused persons live separately and two of them work outside the village and to get rid of this marriage, complainant has filed false case and also filed a divorce suit. She further deposed that her brother Jaiveer came to know later on that Anju was already married before the marriage with him.
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FIR No:295/96 5 State vs. Krishan Kumar etc.
7. Final arguments were heard on behalf of accused persons as well as on behalf of the State and record has been meticulously perused.
8. The charges against the accused persons are of two fold first U/s. 498A IPC and second U/s. 406 IPC. Before proceeding further to prove and analyze various testimonies, I shall deem it appropriate to enumerate the essentials of offence which the prosecution is under a mandate to prove. I shall deal with them one by one.
For better appreciation of facts Section 498A IPC is reproduced as under: "Section 498A IPC provides as under;
498A. Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means
(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 heath (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 FIR No. 295/96 State vs. Krishan Kumar etc. 5 of 15 FIR No:295/96 6 State vs. Krishan Kumar etc. 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 her such demand."
The word 'harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to coerce any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by S.498A. Word 'Coercion' means persuading or compelling a person to do something by using force or threats. Thus to constitute offence following ingredients/tests are essential:
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation.
(ii) Such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
9. In the instant case, father of the girl Anju had filed a complaint before CAW Cell, it was alleged in that first original complaint that a fraud was played with him as the age of accused Jaiveer was told to be 2728 years but it turned out to be not less than 3840 years. Accused Jaiveer was not shown to him when he went to FIR No. 295/96 State vs. Krishan Kumar etc. 6 of 15 FIR No:295/96 7 State vs. Krishan Kumar etc. see the boy. The father of the complainant was compelled to engage with accused Jaiveer and at that time because of his old age he could not see the boy properly. He has further alleged that all the accused persons had beaten her daughter and tried to burn her daughter but at the right moment, she could be saved because of information given by one brother of accused Jaiveer i.e. Raje. Upon his complaint FIR was lodged.
10. In the court, father of the girl appeared as PW4, he testified that his father had fixed the marriage for her daughter and later on told him about the fixing of marriage. He was working as Subeydar in the Army. He has deposed that he came to house on three days leave and went to see the boy to the house of accused persons but he was not shown the boy on the excuse that he has gone for purchasing. He was not even shown the photographs of the boy. Next day father of accused Jaiveer and the relatives came to the house and immediately fixed the marriage of his daughter with accused Jaiveer. He deposed that on the day of engagement, PW4 alongwith his family reached at 11a.m. but it was told that accused Jaiveer has gone for shopping, till 7p.m. he was not shown and when it was dark the boy was produced. There was no light and he met Jaiveer in the dark and accused Jaiveer told him that he is earning Rs. 5000/ and working in a printing press and told his age as 27 years. But interestingly, PW4 himself has admitted that there was light of one Diya and the accused appeared to be around 37 years. Therefore, the main grievance regarding playing fraud upon the complainant by misrepresenting the age has no basis considering the fact that before the marriage FIR No. 295/96 State vs. Krishan Kumar etc. 7 of 15 FIR No:295/96 8 State vs. Krishan Kumar etc. boy/accused Jaiveer was shown to him and he accepted the proposal with his open eyes and he accepted the proposal even despite the fact that accused was around 37 years. Moreover, such misrepresentation has no connection with the alleged offence and offence cannot be proved upon this kind of misrepresentation. To prove the offence U/s 498A allegations should be of cruelty or harassment with a view to coerce her to meet any unlawful demand. In the original complaint filed before CAW Cell, PW4 Azad Singh has alleged that all the accused had beaten her daughter and tried to burn her. He has not disclosed the purpose of beating. It is not the case of PW4 that there used to be dowry demands and harassment for the purpose of the meeting unlawful demand. Furthermore, he has not specified that on which date and occasion accused persons had beaten and tried to burn his daughter. There is no single allegations dowry demand in FIR as contemplated U/s 498A. On this ground alone, although all of the accused are liable to be acquitted. Reliance is placed on "2002 (1) JCC 515 titled as Majhar @ Pappo Ustag". But, I will deal with all the testimonies also in detail.
11. If I go through testimony of PW4, he had tried to improve the prosecution case by deposing in examination in chief that 2nd time when his daughter visited his house. She told him that all the accused persons were demanding Rs. 37,000/ for starting new business. He had nowhere mentioned about this alleged dowry demand in his original complaint.
12. Victim Anju in her statement U/s 161 Cr.P.C., made before the police, had stated that once her in laws had demanded Rs. 37,000/ FIR No. 295/96 State vs. Krishan Kumar etc. 8 of 15 FIR No:295/96 9 State vs. Krishan Kumar etc. from his father and upon refusal of the same by her father, her father inlaw started harassing her. Whereas, in the court the victim Anju appeared as PW2 and she deposed that just after her marriage all the accused persons started threatening and scolding her on account of bringing insufficient dowry. Her husband has demanded Rs. 37,000/ from her. She informed about this demand to his father who could not fulfill the same and when she went back to her matrimonial home without Rs. 37,000/ she was given beatings by her in laws.
13. There are major contradictions in the testimonies of these two public witnesses regarding the alleged dowry demand of Rs. 37,000/. Reasons are, firstly there is no specific date has been mentioned about this alleged dowry demand.
14. Secondly, it has not been specifically mentioned as to which of the accused person demanded Rs. 37,000/. In her statement U/s 161 Cr. P.C. victim Anju stated that all the accused persons demanded Rs. 37,000/ from her father but before the court she testified that her husband demanded Rs. 37,000/. Her father Azad Singh i.e. PW4 deposed that her daughter told her that all the accused persons were demanding Rs. 37,000/ for starting new business. It is not probable that all the accused persons would demand together for Rs. 37,000/. The incident did not appear to be probable and contradictory testimonies of witnesses are not inspiring the confidence of this court.
15. Thirdly, PW2 has deposed that she was being threatened and scolded on account of bringing insufficient dowry and her husband has demanded Rs. 37,000/ from her. Whereas PW4 has FIR No. 295/96 State vs. Krishan Kumar etc. 9 of 15 FIR No:295/96 10 State vs. Krishan Kumar etc. deposed that all the accused persons demanded Rs. 37,000/ for starting new business. As he could not arrange the money, he did not send back his daughter for many days. Thereafter accused Jaiveer and Raj Singh came to them and they said that they need nothing and her daughter was sent back. It is not probable that if once a demand was made and then why all of sudden accused will take back her on their own without asking for anything. Furthermore, upon the testimony of PW4, presuming, but not admitting the said demand was made but he himself admitted that this was for starting new business. It is well settled that every type of demand is not dowry demand. It should have some connection with dowry or marriage. If certain kind of help is sought from family of the wife that cannot be considered as dowry demand.
16. Thereafter, PW4 has deposed another incident that her daughter was taken by him to condolence ceremony of death of nephew of PW4. All the accused persons came at Tehrwi and wanted to take back his daughter but she did not send his daughter on the ground that she should be taken back from his house not from the condolence ceremony. But, thereafter, brother of accused Jaiveer i.e Raje came, instead of other accused persons, to his house and upon his assurance that his daughter will not be harassed or no demand will be made, he agreed to send his daughter back. This fact of sending back the victim alongwith Raje has been substantiated in the testimony of the victim before the court. Victim has deposed that on some occasions beatings and abuses were given to her by all the accused persons except Raje. Her father has not testified to this regard that she FIR No. 295/96 State vs. Krishan Kumar etc. 10 of 15 FIR No:295/96 11 State vs. Krishan Kumar etc. was being harassed or tortured for non fulfillment of dowry demand of Rs. 37,000/ or for other dowry demand, had it been, then why the accused send her to attend condolence ceremony and why all the accused persons came to attend that ceremony. It is not probable that when once a demand is made, then in laws, without meeting of that demand, take back the girl normally without saying anything and they attend the ceremonies of relatives of girl's side too. In normal course of nature and things, if dowry demands are not fulfilled then harassment should have been followed. But that is not the case. On the other hand accused persons are coming to take back her, and attending ceremony of relatives of girl's side .
17. Thereafter, PW4 has mentioned about an incident that Raje came to his house and cried and asked to accompany him. Then he alongwith his father, brother in law and Raje went to matrimonial home of her daughter. There he saw his daughter has been given severe beatings. She was not even sent back with him. Accused persons refused to send her daughter back. She was sent only at 12 mid night, after taking away all her jewellery articles by in laws. He has failed to prove the specific role of all the accused persons in beatings. PW2 & PW5 have not specified manner of beating in this incident. Further, PW2 has testified that she would have burnt alive by all the accused persons in case her father and other members had not reached there. Accused persons particularly accused Krishan Kumar brought Kerosene oil and gave her beatings in late hours of night. Upon her testimony the specific role of all the accused persons and manner of beatings are not being proved. There is no MLC on record FIR No. 295/96 State vs. Krishan Kumar etc. 11 of 15 FIR No:295/96 12 State vs. Krishan Kumar etc. regarding alleged severe beatings.
18. Not only this, there are contradictions in the testimony of witnesses upon the time of the incident itself, because of the reason that as per PW4, he was informed in the early morning about the incident and he reached there immediately. PW4 is resident of Bawana (Narela) and accused persons are resident of Gurgaon. Meaning thereby he would have reached there within 23 hours (by taking liberal estimation) that means by afternoon the parents of the girl had reached at her matrimonial house and at that time he saw that her daughter is being beaten. Whereas victim has testified that accused persons brought Kerosene oil and gave her beatings in late hours of night and she could not have been saved if her parents had not reached. That means as per victim Anju this incident occurred in mid night and her parents reached at mid night, but as per the version of PW4, the incident occurred in day time. Hence, there are major contradictions regarding the time of incident, which creates a doubt upon the story of prosecution.
19. This incident of harassment has not been preceded by dowry demand. On the basis of testimonies of public witnesses, it is not at all even prima facie being proved that this above incident of beatings occurred because of non fulfillment of dowry demand. Hence, in view of the discussion above, I am of the considered opinion that there are major contradictions in the testimonies of public witnesses, which are fatal to the case of prosecution. Accused persons are entitled to get benefit of doubt.
20. Furthermore, admittedly a divorce petition no. 359/200, FIR No. 295/96 State vs. Krishan Kumar etc. 12 of 15 FIR No:295/96 13 State vs. Krishan Kumar etc. filed by the victim has already been dismissed by the family court. This petition was filed by the victim against accused Jaiveer on the ground of cruelty. It was held in that judgement dated 04.08.01 by the Ld. ADJ that respondent (accused Jaiveer herein) has not treated the petitioner (victim herein) with any cruelty after solemnization of marriage. It is also well settled that judgment rendered by the civil court is binding upon criminal court. Reliance is placed upon "Krishan Jeet Singh vs State of Haryana (P&H) 2003 (1) RCR (Crml.) 183".
21. Therefore, in view of discussion ensued above all the accused persons are acquitted U/s 498A IPC.
22. For punishment for criminal breach of trust (herein referred to as Criminal Breach of Trust) U/s.406 IPC, offence of Criminal Breach of Trust as defined under Sec.405 IPC is to be proved. Section 405 IPC is reproduced as under: Section 405 Criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or willfully suffer any other person so to do, commits "criminal breach of trust".
Considering the definition as mentioned above, the basic requirements to bring home the accusation u/s. 405 IPC is to prove cojointly (1) entrustment with property or with any dominion over FIR No. 295/96 State vs. Krishan Kumar etc. 13 of 15 FIR No:295/96 14 State vs. Krishan Kumar etc. property.
(2) whether the accused was actuated by the dishonest intention in misappropriating it or converting it to his own use to the detriment of the person who entrusted it.
23. In the instant case, PW2 has testified that her entire jewellery articles were kept by her in laws after giving beatings just after few days of her marriage and were not returned to her despite her repeated demand on many occasions. She has failed to prove that what specific dowry articles were kept by accused persons. She has not proved that which of the specific article was kept by which of the accused. She has further failed to prove the specific entrustment of specific dowry articles. She has further failed to prove on which date and occasion she demanded her dowry articles back. Furthermore, It is not her case that these articles were entrusted by her. The ingredients of entrustment are not present in her testimony. PW4 has testified that only at mid night her daughter was sent back with him after taking away all her istridhan and dowry articles but he failed to prove that who took away which specific dowry and istridhan articles. It is not probable that all the accused persons would take away together all the dowry and all her Istridhan articles. Entrustment is again not present in his testimony. Hence, as the prior ingredient of entrustment it is not proved, there is no need to apply the second test of misappropriation. Therefore, all the accused persons are acquitted U/s 406 IPC also.
24. In view of the discussion above, the prosecution has failed to the prove that the accused persons had committed the alleged FIR No. 295/96 State vs. Krishan Kumar etc. 14 of 15 FIR No:295/96 15 State vs. Krishan Kumar etc. offences, U/s 406 & 498A/34 IPC. Accordingly, accused persons stand acquitted of the offence U/s 498A/406 IPC. However, their surety bond shall remain extended till six months from today U/s 437 A Cr.P.C. File be consigned to record room after necessary compliance.
(RACHNA T. LAKHANPAL) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
Announced in the open court today i.e. 12.03.2012.
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