Delhi District Court
St. vs . Vijay Kumar Sharma & Others. on 27 June, 2014
1
IN THE COURT OF MS. MONA TARDI KERKETTA:
MM (MAHILA COURTS) :TIS HAZARI COURTS: DELHI
FIR NO. 117/2000
P.S. Roop Nagar
U/SEC. 498A/406 /34 IPC
UID No. 02401R0112052001
ST. VS. VIJAY KUMAR SHARMA & OTHERS.
1.Date of commission of offence since : During subsistence of marriage 24.02.1993
2. Name of the complainant : Smt. Ranjana Sharma W/o Sh. V.K. Sharma
3. Name of the accused persons and their : 1. Sh. Vijay Kumar Sharma parentage and address. S/o Late Sh. Om Prakash
2. Sh. Satish Kumar Sharma S/o Late Sh. Om Prakash
3. Sh. Ashok Kumar Sharma S/o Late Sh. Om Prakash
4. Smt. Siya Devi W/o Late Sh. Om Prakash All R/o D170, Kamla Nagar, Delhi. ( Since expired)
4. Offence complained of : 498A/406/34 IPC
5. Plea of accused persons : Pleaded Not Guilty
7.The final order : Acquitted
8. Date of Such Order : 27.06.2014 Counsels for the parties:
For the State : Sh. A. B. Asthana For the Accused persons : Sh. U. K. Shandilya THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as disclosed in the statement of complainant Smt Ranjana Sharma W/o Sh. V. K. Sharma r/o House no. 43, Bunglow Road, FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 2 Delhi, wherein it is stated that complainant was married to accused V.K. Sharma at Delhi on 24.02.1993 and after marriage they started living at H. No. 170 D Kamla Nagar Delhi along with accused persons Smt Siya Devi (Mother inlaw), Ashok Kumar & Satish Kumar ( both brotherinlaw ) and fatherin law ( Since expired). It is further stated that accused V.K. Sharma had taken another flat on rent at House No. 43, Bunglow Road, Delhi, where they used to spend their nights. It is further stated that from the very first day of marriage, complainant was harassed by accused persons for some reasons or the other as they were not happy with the dowry brought by the complainant in the marriage, inspite of the fact that her widow mother had spent about five Lacs and given other dowry articles in the marriage.
2. It is further stated that in June 1994, she was turned out of matrimonial house in three wearing clothes and permitted to come to matrimonial house only in November 1995 after intervention of elders . But after some time, she was again treated in most inhuman manner by accused persons, accused Siya Devi and V.K. Sharma used to tell that they were expecting much more dowry and they turned down many marriage because uncle of complainant had promised to give good dowry. It is further stated that in January 1996, she was again turned out of matrimonial house in three clothes. Thereafter in December 1997, a Panchayat of both families was called to sort out the matter. The mother and uncle of complainant gave Rs 30,000/ in cash to FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 3 accused V.K. Sharma for purchase of household articles of the choice of other accused, so that complainant could be kept properly thereafter, complainant remained happy for few days but after some time, accused Siya Devi & V.K. Sharma again started taunting over the quality of dowry articles and demanded cash of Rs. 50,000/ and a car. Accused V.K. Sharma told her that she should bring her share of money in joint family property situated at Farrukhabad.
3. It is further stated that complainant had to leave for Farrukhabad as health condition of her widow mother became serious and she was to be operated in June 1998 at Pant Hospital, Delhi for heart problem but none of the accused came to visit her ailing mother despite her repeated requests, which caused her grave mental torture. It is further stated that in April 1998, her fatherinlaw expired but she was not informed by accused persons and on learning about the same, she came to Delhi leaving her ailing mother alone at Farrukhabad but accused persons treated her very badly and again repeated their demands. She was again turned out of matrimonial home by accused person, accused Ashok Sharma threatened that she shall be eliminated if she dared to come again to matrimonial home without money and car. It is further stated that gold jewelleries of complainant are still in the custody of accused Siya Devi. It is further stated that in February 1999, she brought her mother to Delhi for medical treatment and telephonically informed accused FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 4 V.K. Sharma and requested them to visit her ailing mother but no one paid any heed to her request and even in such condition, accused Siya Devi & V.K. Sharma taunted and repeated their demands of Rs. 50,000/ and car. It is further stated that in May 1999, uncle of accused V.K. Sharma expired then she came to Delhi and started living at Banglow Road House but could not gather courage to face accused without money and car.
4. It is further stated that in November 1999, a meeting took place in the presence of her uncle Sh. Rajesh Bajpayee at accused's house but accused V.K. Sharma refused to keep her and accused Siya Devi endorsed his stand. It is further stated that on 03.12.1999 she had gone to attend marriage ceremony of accused Satish Sharma but she was not allowed to attend. At that time, accused Siya Devi snatched her Mangalsutra, accused Ashok Sharma slapped her and they all repeated their demands and refused to return her jewellery and other stridhan articles. It is further stated that she had no money to survive and she was completely dependent on others. Accused V.K. Sharma did not pay house rent for over 15 months with the motive to dispossess her from rented house and land lady used to ask her to vacate the house. Thereafter finding no other alternative, complainant reported the matter to police. On the basis of her statement a case u/s 498A/406/34 IPC was registered against accused persons.
5. Subsequent to registration of FIR, investigation was conducted and after FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 5 its completion, chargesheet was filed in the court against the accused persons. They were summoned by my Ld. Predecessor and supplied with copy of charge sheet in compliance of provisions given u/s 205 Cr. PC. Accused persons were heard on the point of charge and vide order dated 27.11.2001 charge u/s 498A/406/34 IPC was framed against them, to which they individually pleaded not guilty and claimed trial. Subsequent thereto, matter was fixed for prosecution evidence. During the course of trial, accused Siya Devi expired, on receiving death verification report, proceedings against her were abated.
6. The prosecution has examined following 8 witnesses in order to prove its case :
(i) Smt. Ranjana, complainant, appeared as PW1 and proved list dowry articles list Ex PW1/AB, complaint Ex. PW 1/C, list of goods lying at Bunglow Road House Ex. PW1/D, marriage card Ex. P1, marriage photographs Ex. P 24 and seizure memo Ex. PW 1/EF. She also identified the accused persons and case properties Ex. P1 and P2 consisting of bunch A to E and other articles.
(ii) W/Ct. Kamlesh appeared as PW2 and proved seizure memo EX PW2/A
(iii) Sh. Rajeshwar Dayal, Landlord, appeared as PW3.
(iv) Ct. Singh Raj Bhati appeared as PW4, FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 6
(v) Sh. Sunil Awasthi, Brother in law of complainant & Smt. Kalpna Awasthi, sister of complainant, appeared as PW5 and PW6 respectively,
(vi) SI Vipin appeared as PW7 and proved personal search memo of raiding staff Ex PW7/A, arrest memos Ex. PW 7/B to Ex. PW 7/E
(vii) W/Inspector Usha Sharma appeared as PW8.
7. Subsequent thereto matter was fixed for recording of statement of accused persons u/s 313 Cr. PC, wherein entire incriminating circumstances appearing on record were put to them, to which they denied as false and incorrect and stated that they have been implicated in a false case. The allegations are false and incorrect. They stated that complainant wanted her husband accused V.K.Sharma to leave his Government Job and settle abroad, who told that leaving a permanent job in India and settling abroad with unsecured future would not be a wise thing. After continuously pressurizing and nagging her husband, she deserted him and filed number of cases in various courts. Accused persons preferred to lead evidence in their defence and examined three witnesses i.e. DW 1 Vijay Kumar Sharma (on permission in terms of provisions given u/s 315 Cr. PC), who proved complaints dated 11.5.2000 vide Ex. DW 1/A to C, bills of sarees Ex. DW 1/DE and gist of various legal proceedings Mark DW 1/F, invitation card of marriage dated 4.12.1999 Ex. DW 1/G, Sh. Dhirender Bhatnagar as DW2 and Sh. S. K. Bhargava FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 7 as DW3 .
8. Subsequent thereto matter was fixed for final arguments. Written arguments and certain rulings were filed on behalf of the parties. During the course of arguments, Ld. APP for the State and complainant made the following submissions: ( a) The prosecution has been able prove the guilt of accused persons beyond reasonable doubts through prosecution witnesses
(b) Complainant as well as other material witnesses have specifically deposed about various incidents of cruelties committed upon complainant in connection with dowry demands and nothing could be elicited during cross examination of prosecution witnesses to discredit them,
9. On the other hand, Ld. counsel for accused persons made the following submissions :
(i) Complainant has failed to show entrustment of dowry articles in favour of accused persons. She has admitted that dowry articles were given to her and not to accused persons at the time of marriage. ( reference made to Ran Singh and others Vs. State of Haryana and Anr. 1(2008)DMC384.
(ii) Police had taken away dowry articles without ascertaining the ownership of articles. Many of the articles seized by police actually belonged to accused,
(iii) Complainant has also failed to prove her presence at matrimonial house since 29.04.1994 to 3.12.1999 as such the F.I.R. dated 09.05.2000 is not FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 8 maintainable being time barred,
(iv) PW3 Shri Rajeshwar Dayal, soninlaw of landlady & DW2 Dhirender Bhatnagar, have deposed about absence of complainant from matrimonial house from MayJune 1994 till Dec.1999,
(v) accused persons have been able to prove their plea of defence through testimonies of DW13, who have deposed about main reason of dispute between the couple i.e. insistence of complainant to settle abroad,
(v) PW5 Shri Sunil Awasthi, Brotherinlaw of complainant, has admitted during cross examination that he has no personal knowledge of the case,
(vi) PW6 Smt Kalpana Awasthi, sister of complainant, has admitted during cross examination that she never stayed at complainant's matrimonial house and never saw accused VK Sharma beating complainant. During cross examination in divorce petition, she has deposed that complainant had left matrimonial house in the month of June 1994 on her own , which is also proved in this case,
(vii) During cross examination PW SI Vipin has admitted that copies of statement of witnesses recorded u/s 161 Cr. PC. were not supplied to accused persons. ( reference made to Shamshad Ali @ Shamshad and others Vs. State 28(1985) DLT 66)
(viii) While recording statement of accused persons U/s. 313 Cr. PC, such unproved questions were put up to accused persons, which is against the FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 9 settled law.( reference made to Devraj Arora Vs. State (CBI) Crl. Appeal No. 301/99 DOD 4.1.2012)
(xi) There is delay in recording the statement of witnesses u/s 161 Cr. PC ( reference made to Ganesh Bhawan Patel and others Vs. State of Maharashtra (1978) 4 SCC 371,
(x) Investigation of the case was already initiated before recording of FIR ( reference made to Ganesh Gogoi Vs. State of Asam Crl. Appeal No. 1018/2007 decided on 7.7.2009),
(xi) Basic ingredients of section 406 and 498A IPC are missing. ( reference made to Sukhbir Jain and Anr. Vs. State 1993 JCC (1991) ,
(xii) Wilful conduct of accused is not proved on record ( reference made to Omkar Nath Mishra and others Vs. State 1(2008)DMC 265(SC),
(xiii) No investigation has been done to verify the source of purchase of dowry articles ( reference made to Narender Kumar and Anr. Vs. State 1(2008) DMC
337.
10. The court has heard the submissions of both the sides and also gone through entire record including judgments placed on record. Before appreciating evidence on record, let's first discuss the relevant legal provisions given U/s 498 A/406 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: FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 10
(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 section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it,
(ii) that he (a) misappropriated it or(b) converted it to his own use or © used it or (d) disposed of it.
11. In the light of aforesaid legal provisions, I 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 and they are guilty of criminal breach of trust u/s 406 IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation (b) of section FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 11 498A IPC. Admittedly the complainant has built her case on explanation(b) to section 498A IPC. In the judgement 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 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) of section 498A IPC.
12. Now adverting to facts and circumstances of the present case, it be observed that complainant has levelled various allegations against accused persons but appreciation of evidence shall be confined only to allegations, which come within the purview of section 498A/406/34 IPC. The complainant has leveled following allegations which are disclosed in her FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 12 examination in chief that :
12. 1) From the very beginning of the marriage, the behaviour of accused persons was not good towards her , particularly accused Siya Devi, other accused abused her for bringing insufficient dowry. In this regard, it be observed that the allegations are general in nature. The specific details of any particular incident of cruelty or harassment are not mentioned. (12.2) It is further alleged that accused Siya Devi was not satisfied with the cash given for furniture. It be observed that allegation is against her mother in law, who has expired and this fact does not find mention in her statement given to police. It is also alleged that accused V.K.Sharma used to demand money very often and other accused used to give her beatings on this account. Again allegations are general in nature and specific details of any particular incident of cruelty or harassment is not mentioned.
(12.3) It is further alleged that whenever she used to come to matrimonial house, accused used to demand one or other thing and she had to leave the matrimonial house because of their constant beatings and demand. It be observed that these fact are not mentioned in her statement Ex PW1/C. Again allegations are general in nature and specific details of any particular incident of cruelty or harassment is not mentioned.
(12.4) It is further alleged that in June, 1994, she was turned out by accused V.K. Sharma, Siya Devi and Ashok Sharma. She was not given food for FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 13 three days and they took advantage of absence of Mr. Bhatnagar's family, their neighbour, which was away to attend last rites of his Chachi. It be observed that these facts are not mentioned in her statement Ex PW1/C, wherein she merely stated that in June 1994, she was turned out of matrimonial house in three wearing clothes. Neither has she assigned reasons as to why she was turned out of matrimonial house nor has she stated that she was turned out because of non fulfillment of dowry demands.
(12.5) It is further alleged that she was allowed to join matrimonial house only in November,1995 after intervention of elders. It be observed that no evidence has come on record to prove such intervention by elders. It is further alleged that after she joined matrimonial house in November 1995, she was forced to come back to parental house in January,1996 because of their continuous demand of car & Rs 50,000/. it be observed that in her statement Ex PW1/C, she has merely stated she was treated in most inhuman manner and was again turned out of matrimonial house in three clothes. She has not stated that she was turned out of matrimonial house in connection with dowry demand. She has not mentioned if she was treated in inhuman manner in connection with dowry demand. She has not mentioned specific details of any particular incident of cruelty or harassment is missing. In this regard, it also be observed that in her examination in chief she has not mentioned about inhuman treatment and stated about demand of Rs 50,000/and car , which FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 14 does not find mention in her complaint at that particular para. Again allegations with regard to inhuman treatment are general in nature and specific details of any particular incident of cruelty or harassment is not mentioned.
(12.6) It is further alleged that accused Siya Devi used to say that her uncle had agreed to give more dowry but she had not brought the same and she should bring the same from him. It be observed that this particular fact is not mentioned in her statement Ex PW3/C, wherein she has stated that accused V.K. Sharma &Siya Devi used to tell that they were expecting much more dowry and they turned down many offers of marriage because her uncle had promised to give good dowry in the marriage. In this regard, it be observed that allegations do not disclose details of any specific incident of cruelty and harassment.
(12.7 ) It is further alleged that in December,1997, her family contacted accused persons and she again came back to matrimonial house and she had to leave as her mother fell sick. Whereas in her statement given to police Ex PW3/C she stated that in December 1997, Panchayat of elderly members of both families was organized and with their intervention matter was sorted out and accused agreed to take the complainant back to matrimonial house. In pursuant to said settlement mother and uncle of complainant gave 30,000/ in cash to accused V.K.Sharma for purchase of household articles according to FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 15 choice of accused persons. It be observed that all these facts are not mentioned in her examination in chief. There is no evidence with regard to Panchayat meeting and giving of Rs 30,000/ . She has not mentioned the date, time and place when Rs 30,000/ was given and she has not disclosed the source of said money. During cross examination she has stated that she did not know who had given Rs 30,000/and who received the same and she also did not know whether Rs 30,000/ was paid in cash or by cheque. She has denied the suggestion that the communication given to her regarding payment of Rs 30,000/ is false. The complainant has specifically stated that she left the matrimonial house on account of illness of her mother and she has not stated that she was turned out by the accused persons.
(12.8) It is further alleged that she was not informed when her father in law expired in April, 1998 but she contacted the accused and came to matrimonial house leaving behind her ailing mother alone but when she came at matrimonial house, accused Ashok Sharma & Siya Devi misbehaved with her and sent her back to parental house and accused V.K. Sharma also insisted that she should not stay at matrimonial house and she should go back. Whereas in her complaint Ex PW3/C she has stated that when she reached at matrimonial house she was treated very badly and started harassing her over the demand of car and Rs 50,000/ and was turned out of her matrimonial home in three clothes by accused Ashok Sharma, who threatened her that if FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 16 she dared to come again to the matrimonial home without the money or the Car she shall be eliminated from this world. In this regard, it be observed that DW 1 in his evidence has proved that the complainant was duly intimated but she did not care to come to attend his last rites. During cross examination she has denied the suggestion that she had received information with respect to information of death of her father in law. She has further denied that Sh. Umesh Awasthi and Sh. Munna Lal came to inform her about the death of her fatherinlaw. She has also denied that both above named persons informed about the same in the presence of her mother and she persuaded her to go to matrimonial house. The facts regarding misbehaviour and insistence of accused to send her back to parental house are not mentioned in her complaint Ex PW3/C. It also be observed that in her examination in chief she has not mentioned about alleged demand made during this period by the accused, whereas the same finds mention in her statement Ex PW3/C. (12.9) It has further been alleged that in June,1998 her mother was operated at G.B. Pant hospital, at that time she contacted accused persons but none of them came to see her , which caused mental pain to her. It be observed that the allegation is not accompanied by demand and therefore no cruelty is meted out to the complainant in terms of section 498A IPC, (12.10) It has been further alleged that in November,1999, her uncle came from abroad and contacted accused persons but accused V.K.Sharma & Siya FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 17 Devi refused to keep her at matrimonial house without any reasons and asked him to take her away despite request of her uncle. It be observed that the allegation is not accompanied by any demand of dowry and not supported by any cogent evidence therefore no cruelty is meted out to the complainant within the purview of section 498A IPC, (12.11) It has been alleged that on 02.12.1999, she went to the house of accused on the occasion of marriage of accused Satish Sharma then she was grossly ill treated and accused Ashok Sharma slapped her. Thereafter she went to Dharamshala, where marriage was being performed but accused Vijay Sharma asked her to go away and 34 persons whom she did not know also misbehaved with her and threatened her not to come again at matrimonial house or else she would be eliminated. In this regard it be observed that the allegations are not accompanied by any demand and therefore no cruelty is meted out to the complainant within the purview of section 498A IPC, (12.12) It is further alleged that at that time she went to visit accused Siya Devi and touched her feet but she did not behave properly with her and snatched her Mangul Sutra. In this regard it be observed that the allegation is not accompanied by cruelty in terms of explanation attached to section 498A IPC and therefore no cruelty is meted out to the complainant. (12.13) It is further alleged that rent of the house was not being paid by the accused persons and they repeatedly persuaded the landlord to throw her FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 18 out. It is also alleged that she was made to pay electricity and water charges. The accused persons especially accused Ashok Sharma harassed and threatened her repeatedly so that she vacates the house. In this regard, it be observed that the allegations are not accompanied by any demand and therefore no cruelty in terms of Section 498A IPC is meted out to the complainant.
13. While appreciating the evidence in cases involving matrimonial disputes the court has to be on its guard to not to be swayed by the general and bald nature of allegations which are bound to emanate from the mouth of family members of the girl after the relations between the two sides have gone to the extreme opposite end so a strict interpretation needs to be taken of the various allegations.
14. PW 5 Sh Sunil Awasthi, brother in law of the complainant, has deposed that at the time of recovery proceedings, brother of accused V.K.Sharma came at about 0304 pm came and threatened the complainant in his presence that he will kill her. Later on , the matter was reported to police also. In this regard, it be observed that this fact is not mentioned in the testimony of complainant and this allegation is not accompanied by any demand. During cross examination he has admitted that he knew only those facts regarding matrimonial life of complainant, which were narrated to her. PW 6 Smt Kalpana Awasti, sister of complainant has deposed as under : FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 19 (14.1) after marriage her sister was threatened, harassed and beaten for demand of cash of Rs 50,000/ and car. She has further deposed that accused Ashok Sharma threatened her to kill and accused V.K.Sharma used to say that he will not keep her sister in his house and her sister was harassed, and tortured by accused persons till she remained at her matrimonial house. It be observed that allegations are general in nature. She has not specified as to when and by whom such demand was raised. She has not specified the date, time and place when such harassment was caused to complainant. During cross examination she has stated that she never went to stay with her sister and she had not seen accused V.K.Sharma beating her sister. These facts make clear that her deposition in this regard is based on hearsay information. (14.2.) She has further deposed that accused persons used to demand a sum of Rs. 50,000/ cash from her sister and once her sister had given a sum of Rs. 30,000/ as demanded and her chacha arranged the same but accused persons were not satisfied with the same amount and turned out her sister from her matrimonial house. In this regard it be observed that this fact is in contradiction with that of the complainant , who has stated that money was given by her uncle. The allegations do not specify date, time and place. No source of income as to how Rs. 30,000/ was arranged by her uncle has been specified. Mother and uncle of complainant have not been made witness to prove this fact.
FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 20 (14.3) She has further deposed that demand of cash and car was made even to her by accused V.K.Sharma It be observed that this fact is not mentioned in the testimony of complainant as well as in her own examination in chief, it appears that this allegation has been leveled by PW 6 in order to make out some case in favour of complainant.
15. Now dealing with plea of defence of accused persons, it has been argued that complainant has failed to prove her presence at matrimonial house since 29.04.1994 to 3.12.1999 as such allegations levelled by her during this period are not proved. During crossexamination, PW1/complainant at different point of time has admitted that she was not residing at matrimonial house. She has claimed to have been turned out of matrimonial house by accused but it has already been observed that complainant left for parental house on her own accord for different reasons and not necessarily because of dowry demands. The testimony of PW3 Shri Rajeshwar Dayal, soninlaw of landlady further throws light upon this fact. He has deposed that the rent of the house was used to be paid by accused V.K.Sharma from the beginning, which is in contradiction with the claim of complainant, who has stated that accused stopped paying rent of the house with the motive to oust her from said rented house. He has further stated that between June,1994 to December,1999, he did not see the complainant.
16. The accused have further claimed that complainant wanted her husband FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 21 to settle abroad after leaving his govt. job in India, who advised that leaving a permanent job in India and settling abroad with unsecured future would not be a wise thing but after continuous pressure and nagging, she deserted her husband and filed number of cases in various courts. In order to prove their defence accused have examined 03 witnesses, DW1 has deposed that before marriage, both the parties found out about respective status and a dowry less marriage was performed. He has further deposed that initially relation with complainant was cordial but after some time she insisted that they should settle abroad and her uncle Rajesh Vajpayee, would help him in getting job abroad, to which her husband answered that leaving a permanent job in India and leaving behind all securities and permanent retirements benefits would not be wise. He has further deposed that this became a daily routine and she would pester and nag on this issue, which became a perpetual nuisance for him In this regard, it be observed that no question on above mentioned facts has been asked to rebut these facts. No direct suggestion has either be given in this regard during crossexamination. Certain questions have been asked and suggestions have been given related to divorce case between the parties but the same has not been proved as per law.
17. DW2 & 3 have also deposed on similar line. DW2 has deposed that the main reason behind dispute between the couple was insistence of complainant to settle abroad on taking job with the help of her uncle. He has FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 22 further deposed that accused V.K.Sharma was working as class one officer with Delhi administration and was having fair chance of good career and if continued with service then his position would be equal to position after settling abroad. During crossexamination he has denied that that main reason of dispute was not settling outside India. He has also denied that being neighbour of accused, he has deposed in his favour. It be observed that on the asking of Ld. APP for State, he has stated that complainant told in a family gathering, where he was also present that accused V.K.Sharma being highly qualified should settle out of India. He has stated that accused did not agree to shift out of India and therefore complainant left him. It be observed that no suggestion has been given to negate this fact. Similarly DW3 has also deposed that after 2/3 month of marriage, he received call from accused about matrimonial discord on the issue of settling abroad as his wife was pressurizing him to settle abroad with the help of her uncle. Thereafter they had a meeting with complainant, whom he asked as to why she wanted to settle outside India then she told that accused will have no problem in getting job as her uncle is settled there and accused will get more salary and benefits. He suggested that it would be difficult for accused at such age to settle in a new venture and he would have fair chance of promotion etc. but she did endorsed his view and insisted to settle outside India then he asked her to take some time for reconsideration but he did not get any response. It be observed that FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 23 again neither question has been put nor suggestion has been given to discredit this witness in this regard.
18. DW1 has further deposed that on 29.4.1994 complainant was ready with full bag and baggage at the residence and told her husband that neither you will leave Delhi nor India nor your nears and dears and she will leave this place for good . He protested against her wishes but insisted to go against his wishes and left the house with bag and baggage . During cross examination he has denied the suggestion that complainant did not leave on 24.02.1994 or that she had not taken her belongings. He has further denied that he turned his wife out of house in June 1994. He has also denied that on 29.04.1994 complainant did not leave him but it was he who pressurized her to leave by his willful conduct. DW2 and 3 have also deposed on similar line about this fact. DW2 has deposed that in April, 1994, accused V.K.Sharma came to his house in a hurry and requested him to accompany, when he went there, he found complainant was leaving the matrimonial house along with her sister after packing bags. When he asked for the reasons of packing, she told him that she was leaving the house as she can not live with her husband and after that she never came back to house till 1999. During cross examination, he has denied the suggestion that main reason of dispute was settling outside India. He has also denied that being neighbour of accused, he was deposing in their favour. Similarly DW3 has also deposed that he received call from accused FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 24 V.K.Sharma, who requested him to come at his house immediately, on reaching there he found complainant was ready to leave matrimonial house with bag baggage. He requested her not to do so and told that she was doing wrong by leaving matrimonial house. It be observed that presence of these witnesses at the time of leaving of complainant is proved through testimonies of PW1,5 & 6 also. It be observed that neither any question has been asked nor any suggestion has been given regarding these facts to discredit their claims during crossexamination, in fact nothing substantial could be elicited during their crossexamination.
19. DW1 has further deposed that the complainant entered into the house without his notice by breaking open the door. He has further deposed that on 4.12.1999 marriage of accused Satish Sharma was solemnized, the complainant was not invited by either side but she came with one person namely Rameshwar Sharma and created scene while wedding was taking place. Thereafter she filed a complaint with police. It be observed that during crossexamination, nothing could be elicited to discredit these facts. He has denied the suggestion that PW1/complainant had been treated badly and ¾ persons misbehaved with her.
20. It be also observed that accused through Ex DW1/AE has been able to explain as to how recovery proceedings of dowry articles were not as per rules and some of the articles did not belong to complainant but police seized all at FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 25 the instance of complainant. The said complaints were made on the same day and therefore it can not be stated to have been filed to create evidence against the complainant. During cross examination DW1 has stated that he did not go to higher authority when police did not take action but this admission does not negate the fact that no complaint was filed against the complainant. During crossexamination he has denied that these are false and fabricated documents and had been filed after due deliberation at the instance of accused V.K.Sharma to create false evidence. He has denied that articles do not belong to them hence they never filed any applications to get the same released from Maalkhana as he had knowledge that said articles do not belong to them.
21. It is also pertinent to note that in the present case, the complaint was made to police much after the alleged incident of being turned out from the matrimonial home for the reason of nonfulfillment demand of dowry. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an after thought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of the coloured version, exaggerated account of the incident or a concocted story as a result or deliberations and consultations, casting a serious doubt on its FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 26 veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. (2008 V AD (Cr.) (SC) 577) State of Andhra Pradesh Vs. M. Madhusudhan Rao). In the present case, no explanation worth the name for delay in filing the Complaint with the police has come on record.
22. In view of the aforesaid discussion, the court is of the considered opinion that prosecution has not been able to discharge its onus whereas accused persons have been able to prove their defence and therefore no offence under section 498A IPC is made out against them.
23. Now dealing with charge u/s 406 IPC, in order to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused persons and they were having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to them, have been misappropriated. In this regard the complainant has deposed as under : (23.1) that at the time of marriage, her uncle gave dowry articles and approximately Rs 5 Lacs were spent. She was given jewelleries i.e. gold set, gold karas, gold bangles, gold top and balies, gold ring and wrist watch for accused V.K. Sharma, silver and gold coins, one pearl set etc., cash amount of Rs 1.51 Lacs, Rs 21,000/on Tilak & Rokka ceremony respectively and additional amount of Rs 40,000/ was given to accused Siya Devi for purchase of furniture FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 27 and imported articles worth Rs 65,000/brought by her Buaji. Besides these clothes, utensils and other household articles were given to her. It be observed that all these items are not mentioned in her statement given to police. She mentioned about the same for the first time in the court. From her testimony, it is revealed that she has nowhere stated that these articles were entrusted to accused persons rather she has clearly stated that these articles were given to her. During crossexamination she has stated that she was not present when Rs 40,000/ was given and the same was told by her uncles. She has stated that she did not whether the money was paid in cash or cheque. Whereas her sister PW6 has stated that dowry articles were entrusted to accused V.K.Sharma, his parents and other relatives , which were taken to matrimonial house and this fact is not mentioned in the testimony of complainant. It be also observed that accused have denied the claims of the complainant. DW1 has testified that articles mentioned in Ex PW1/A is an imaginary list and it has been prepared with a view to extort money.
(23.2) PW1 has further deposed that her in laws presented her one diamond set, gold tangri, four gold bangles, one mangalsutra, one pair of gold earring, 10 sarees and three gold set. It be observed that there is no evidence on record to prove the same.
(23.3) It be observed that in entire testimony of complainant, there is no mention of month, time and year when the entrustment was made and FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 28 specifically to whom it was made. The list of dowry articles Ex. PW 1/A and B are not witnessed by any of the family members of both the sides and it bears the signatures of the complainant only hence genuineness of said list is doubtful. It be further observed that the complainant has not clarified any where as to when this list was prepared either at the time of marriage or after police asked for the same. It be further observed that during cross examination complainant had admitted the list Ex. PW 1/A B were prepared by her. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant is revealed. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152. The court is of the view that gift articles are given at the time of marriage to the couple for their personal and joint use being customary in nature and therefore the same cannot be said to be given exclusively to the husband and his family members only. It be also observed that no evidence has been collected with regard to giving of dowry or resources of complainant's family claiming spending of huge amount.( Narender Kumar Vs State(Govt. Of NCT of Delhi )supra) (23.4) No evidence has come on record to show that dowry articles were misappropriated by accused persons with dishonest intention or they used it for their own use or disposed off the same. It is observed that some of the articles, which were seized during investigation at the instance of FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others 29 complainant, actually belonged to the wife of accused Satish Kumar, which has been proved in defence evidence. In defence evidence it has been proved on behalf of accused persons that said articles were purchased for wife of accused Satish Kumar but complainant claimed that those articles belonged to her. I am of the opinion that entrustment in favour of the accused persons is not established. In view of the fact that none of the ingredients of section 405 IPC is established, I am of the view that no case u/s 406 IPC is made out against the accused persons.
24. 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 person are accordingly acquitted. Bail bonds of accused are cancelled,sureties are discharged. Documents if any be returned to its owner against receiving. Endorsement if any be cancelled.
25. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 27.06.2014 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
DICTATED, CORRECTED & SIGNED ON 10.07.2014.
FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others
30
FIR No. 117/00
PS: Roop Nagar
u/s 498A/406/34 IPC
State Vs Vijay Kumar & Others
27.06.2014
Present : Ld. Sub. APP for the state
All accused are on bail with Ld. counsel
Complainant in person.
Matter is fixed for orders. It is seen that applications of parties seeking permission to file certain documents are lying on record. Arguments have already been heard. In this regard, the court is of the view that these documents have been filed at belated stage and can not be taken on record and read in evidence. Hence both applications are dismissed.
Vide separate detailed order, announced in the open court, accused persons are acquitted from the charge framed under section 498A/406/34 IPC. Fresh bail bonds in compliance of provisions given under section 437A CrPC have been furnished. Same are accepted. Bail bonds shall remain in force for a period of six months .
File be consigned to record room (MONA TARDI KERKETTA) MM02 / MAHILA COURTS TIS HAZARI COURTS, DELHI FIR no. 117/00 PS Roop Nagar. State Vs. Vijay Kumar Sharma and Others