Delhi District Court
State vs . Prabhu Dayal & Ors. on 17 August, 2011
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURTS, NEW DELHI.
Serial No. 564/02
Unique Case Identification No. 02406R0253212002
State Vs. Prabhu Dayal & Ors.
FIR No. 724/01
P. S. Sangam Vihar
U/S U/s 498A IPC
JUDGMENT:
1. Date of institution 08072002
2.Date of commission of offence On and after 15.05.1983
3.Name of the complainant State through Smt.
Munni Devi
4.Name of the accused (1) Prabhu Dayal
S/o Sh. Gilli Ram
R/o J433, Seva Nagar,
New Delhi
(2) Ram Swaroop
S/o Sh. Gilli Ram
R/o J433, Seva Nagar,
New Delhi
FIR No. 724/01
P.S. Sangam Vihar Page No. 1 of 15
(3) Shakuntla
W/o Sh. Ram Swaroop
R/o J433, Seva Nagar,
New Delhi
5.Nature of offence complained of U/s 498A IPC.
6.Plea of the accused person Accused persons pleaded
not guilty
7. Date reserved for order 10.08.2011
8.Final Order Acquitted
9.Date of such order 17082011
Date of Institution : 08072002
Date of reserving order : 10082011
Date of pronouncement : 17082011
BRIEF FACTS OF THE CASE:
1. The case of the prosecution is that all the accused persons namely Prabhu Dayal, Ram Swaroop and Shakuntla subjected Smt. Munni Devi to cruelty with a view to coerce her and her parents to fulfill the unlawful demand of dowry and thereby they committed an offence punishable U/s 498A IPC.
2. After complying with the provisions of section 207 Cr.P.C formal FIR No. 724/01 P.S. Sangam Vihar Page No. 2 of 15 charge was framed against the accused persons on 21.07.2003 to which the accused persons pleaded not guilty and claimed trial.
3. Prosecution in order to establish its case relied upon 8 witnesses PW 1 Head Constable Praveen he was the duty officer. He recorded the FIR. Copy of the same is Ex. PW 1/A.
4. PW 2 Munni Devi she is the complainant. She deposed that she was married to the accused Prabhu Dayal on 15.05.1982. Dowry articles were given by her parents at the time of her marriage. She was taken to her matrimonial house where her husband, Jaith Ram Swaroop, Jaithani Shakuntla, Devar Raju and sister in laws were residing. After 23 years of marriage jethani raised a demand of vehicle. Thereafter, both jeth and jethani asked her to bring Rs. 25000/ from her parents. She was threatened and assaulted by her husband that she shall not be kept in the house if the cash and vehicle was not brought. She was turned out of the house in the year 1997 by the accused persons. Her husband filed a case in Agra Court. She won the case and thereafter she was taken back to the matrimonial house in the year 2000. Her husband took her to Sangam Vihar in a rented accommodation on 11.05.2000. On 06.08.2000 his husband called his brother and bhabhi at her FIR No. 724/01 P.S. Sangam Vihar Page No. 3 of 15 house. She was at the house of son of her bhua which was nearby. Her husband came there along with his brother and bhahi. They sat on the terrace of the said house her jeth and jethani called her in the room. Her jeth caught hold of her and jethani poured kerosene oil. She made hue and cry so her jeth and jethani ran away. She called up at 100 no. and reported the matter to the police. No FIR was recorded on her complaint. However, she filed a complaint in CAW Cell on which the present FIR was registered. Again a compromise arrived at between the parties and she was taken to Raghubir Nagar. On the occasion of Rakhsha Bandhan she was taken to her parental house by her father. Thereafter he husband did not come to take her back. So she filed a case restitution of conjugal rights at Agra. Her husband had married again but had also left the second wife due to his connection with his Bhabhi.
5. She was cross examined by Ld. APP where in she stated that her jethani was not satisfied with marriage and used to taunt and beat her. When she was three or four months pregnant and was suffering from slight fever and headache her jethani gave her tablet due to which she suffered miscarriage. Whenever she FIR No. 724/01 P.S. Sangam Vihar Page No. 4 of 15 reported the matter to her husband she was abused and beaten and demand of Rs. 20000 along with scooter was rescued. She also stated that she was offered a glass of juice by her husband which has something like poison in it. Due to being apprehension she did not consume the same. She informed about the same to her relatives and her landlord.
6. She was cross examined by counsel for accused wherein she admitted that none of the accused had demanded any dowry from her. That she has not taken divorce from accused. She denied that a decree of divorce passed by family court of Agra. She admitted that she had not filed any complaint In the PS against the accused persons except Ex. PW 1/A. She admitted that prior to the filing of the complaint she had received the notice of the divorce petition filed by accused Prabhu Dayal. She further stated she has been staying apart from the accused since the year 1996 but as per the settlement she stayed with him in the year 2000 for few months. She further admitted that she had filed the present complaint after a period of more than one year of separation. She also admitted that the present complaint was drafted in consultation with her advocate. But she denied that the incidents mentioned in the FIR No. 724/01 P.S. Sangam Vihar Page No. 5 of 15 complaint are false and fabricated. She denied that she was never harassed by the accused persons. She further admitted that she has never been medically examined in any hospital to substantiate her allegation contained in Ex PW 1/A.
7. PW 3 Head constable Suresh deposed that records pertaining DD NO. 18A have been destroyed by order of Additional DCP.
8. PW 4 Tikkam Singh deposed that he was neighbour of the complainant. On 05.08.2000 at about 88.30 PM he heard the alarm raised by the complainant that kerosene oil was poured by Prabhu Dayal and one lady. He reached the spot and saw that kerosene was sprinkled on clothes of Munni. Public had gathered and PCR was called. But before the coming of the PCR accused persons had left the spot. He identified Prabhu Dayal but could not identify Shakuntla.
9. He was cross examined by Ld. APP wherein he stated that he cannot identify Shakuntla present in the court to be same person who poured kerosene oil on the complainant. But the person who was pouring kerosene oil on complainant was her jethani. He admitted that in his statement Ex. PW 4/A he had stated that when he reached the house of complainant he saw that she was held by FIR No. 724/01 P.S. Sangam Vihar Page No. 6 of 15 her jeth and her jethani was pouring kerosene oil.
10.He was cross examined by counsel for accused. In his cross examination he stated that when he reached at the sport there were 1020 people present there. The incident was happening in the bedroom. When he reached at the spot he did not see Prabhu Dayal and Shakuntla in the house. He further said when he reached he saw Munni Devi was held by Accused Prabhu Dayal and only these persons was present in the house. And except them only the neighbours were present. Kerosene was sprinkled on the clothes of the Munni Devi and her clothes. He gave the statement to the police at that time. He over heard the name of Shakuntla from people and so he named her. The police had taken the cane of kerosene oil from the place of incident. However no recovery memo came on record.
11.PW 5 Bhudi Ram he was the father of the complainant. He deposed that his daughter was married to accused on 15.05.83 he had given sufficient dowry at the time of marriage and sum of Rs. 25000/. Her daughter was kept well for sometime but was given beatings thereafter. Accused Prabhu Dayal used to beat her on instigation of his Bhabhi and brother. The accused persons used FIR No. 724/01 P.S. Sangam Vihar Page No. 7 of 15 to demand of dowry from her. After the seeing the condition of his daughter he brought her to his house after 34 years of marriage. Once a daughter was suffering from fever accused persons gave her tablet due to which she suffered miscarriage. Incident was narrated to him by her daughter. Once in the year 2000 her daughter was taken to the matrimonial house but she was not kept well. His daughter also told him that the accused persons tried to burn her by pouring kerosene oil.
12.PW 6 Ramesh deposed that on 05.08.2000 he was present at the roof of his house. At about 830PM complainant came at the roof of his house. In the meantime Shakuntla and Ram Swaroop also came at the roof of the house and took away Munni Devi. He heard a noise after sometime and he came down and saw Ram Swroop held the hand of Munni Devi and Shakuntla was pouring oil. He informed the police Shakuntla and Ram Swaroop escaped and Prabhu Dayal also came there.
13.PW 7 Ramvilas deposed that at about 8 PM when he was present in the house of Tikkam Singh he saw that kerosene oil was poured on Munni Devi. Shakuntla and Ram Swaroop were also present there. Due to noise some neighbours came there. Ram Swaroop FIR No. 724/01 P.S. Sangam Vihar Page No. 8 of 15 and Shakuntla left from there in an auto. He was cross examined by Ld. APP wherein he stated he cannot say that Ram Swaroop had held the hand of Munni Devi and Shakuntla poured kerosene oil on her.
14.PW 8 SI Kishan Kumar deposed that on 20.12.2000 he was posted at PS Sangam Vihar. He recorded the statement of witnesses. He arrested the accused persons. He recorded supplementary statement of complainant and filed the challan in the Court. He was cross examined by counsel for accused wherein he stated that he had not carried out any search and seized any cane of kerosene and the complainant did not want to take back her stridhan.
15.The prosecution evidence was closed and the case was fixed for statement of accused persons. The statement of accused persons was recorded U/s 313 Cr.P.C in which accused Ram Swaroop and Shakuntla stated that they have been falsely implicated in the case. At the relevant time they were living separately with their family 15 KM away from the house of Prabhu Dayal. Since the day complainant joined the company of her husband they have never visited her house. No proper investigation has been carried out. FIR No. 724/01 P.S. Sangam Vihar Page No. 9 of 15 The chargesheet has been filed only on the records of CAW Cell. All the witnesses are interested witnesses. The complaint has been filed to vent out anger and grudge against Prabhu Dayal and as the counterblast to divorce petition.
16.It has been stated by accused Prabhu that he has been falsely implicated in the present case. Complainant has filed to this case to vent out anger against him and as a counterblast to the divorce petition filed by him. They did not want to lead evidence in defence and the case was fixed for final arguments.
17.The case was argued by the Ld. APP for the State and counsel for the accused persons. It was argued by the Ld. APP that complainant had been a victim of physical violence and mental torture for the demand of dowry by the accused persons and the prosecution has succeeded in establishing its case against the accused persons beyond reasonable doubt. The accused persons are liable to be convicted. All the prosecution witnesses have supported the prosecution story in all material particulars.
18.Conversely, it has been argued by counsel for the accused that the complainant has herself admitted in her cross examination that none of the accused demanded any dowry from her. This FIR No. 724/01 P.S. Sangam Vihar Page No. 10 of 15 statement of the complainant is sufficient to acquit the accused persons. Secondly, the main allegation of cruelty by the accused is the incident of pouring kerosene oil and setting her ablaze. Admittedly, no clothes and bottle of kerosene has been recovered. Thirdly, the FIR has been belatedly registered. Lastly, in case the complainant was actually harassed and tortured them why did she chose to file a case for Restitution for Conjugal Rights, the same has not been explained.
19.I have heard Ld. APP for the State and counsel for the accused persons and bestowed my considerable thoughts to the material placed before me. Before concluding the case, I would first like to analyze the evidence adduced by the prosecution. There are 8 witnesses examined by the prosecution. The material witnesses are PW 1 Munni Devi the complainant, PW 4 Tikjam Singh, PW 5 Bhudi Ram, PW 6 Ramesh and PW 7 Ramvilas.
20.The witness to the factual matrix of the case is complainant herself. Going through the solitary admission of the complainant that no demand of dowry was ever raised by any of the accused persons negates the other allegations levelled by her against the accused persons. Since the complainant has herself admitted that FIR No. 724/01 P.S. Sangam Vihar Page No. 11 of 15 no demand was raised for dowry, therefore, now the allegations of cruelty and harassment are to be looked into. The one major allegation of cruelty is that of pouring kerosene oil and trying to kill the complainant. Admittedly, no recovery has been made of clothes or of kerosene oil to prove the offence. Complainant has herself accepted that she has never been treated in any hospital.
21.Reliance in this regard may be placed on Hans Raj Sharma & Ors. V. State Govt. of N.C.T. of Delhi, Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A of IPC.
22.Smt.Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18 where it was observed:"It is not every harassment or every type of cruelty that would attract Section 498A IPC Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.
Similar view was taken in Richhpal Kaur Vs. State of Haryana & Anr. 1991 (2) RCR 53 where it was observed that in case of beatings given to bride by husband and his relations due to FIR No. 724/01 P.S. Sangam Vihar Page No. 12 of 15 domestic disputes and not on account of demand of dowry, offence under Section 498A would not be made out. The Hon'ble Supreme Court in Kans Raj Vs. State of Punjab & Ors. 2000 (5) SCC 207 held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and in State of Himachal Pradesh Vs. Nikku Ram & Ors. (1995) 6 SCC 219 it was held that harassment to constitute cruelty under Section 498A Explanation (b) must have nexus with the demand of dowry and if this is missing the case would fall beyond the scope of Section 498A.
Similar was the view expressed in Raj Kumar Khanna Vs. State (NCT of Delhi) 95 (2002) DLT 147 (DB) where after referring to various authorities the Hon'ble High Court held that it is not every harassment or every type of cruelty that would attract the provision of Section 498A IPC and that harassment to constitute cruelty under Section 498A IPC must have nexus with the demand of dowry and if that was missing the case would fall beyond the scope of Section 498A IPC.
23.As far as other witnesses to this incident are concerned they have FIR No. 724/01 P.S. Sangam Vihar Page No. 13 of 15 given contradictory statements. PW 4 has said the kerosene oil was sprinkled by accused Prabhu Dayal and one lady. But could not identify the lady. PW 6 Ramesh has stated that kerosene was being poured by accused Ram Swaroop and Shakuntla Devi and as per Ramvilas PW 7 kerosene was poured on Munni Devi but he did not see that by whom it was poured.
24.Benefit of contradictory statements of prosecution witnesses accrues in the favour of accused persons.
25.Complainant along with filing of the present case, alleging serious allegations against the accused persons had also filed a case of Restitution of Conjugal Rights. It is quite improbable that inspite of being a victim of grave domestic violence the lady still wants to reconsile and reside with her husband.
26.From the above the case against the accused persons is not said to be proved beyond reasonable doubt. The benefit of same accrues in favour of the accused persons. Accused persons are accordingly acquitted.
Announced in open court ( POOJA TALWAR )
on 17082011. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 724/01
P.S. Sangam Vihar Page No. 14 of 15
FIR No. 724/01
P. S. Sangam Vihar
17082011
Present : Ld. APP for State.
Accused persons with counsel.
Accused persons are acquitted vide my separate judgment dated 17082011.
Be put up for furnishing of bail bonds on 18.08.2011.
( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi.
FIR No. 724/01 P.S. Sangam Vihar Page No. 15 of 15