Delhi District Court
State vs Fasiul Husnain on 19 March, 2018
STATE V. FASIUL HUSNAIN Page No.1
IN THE COURT OF Ms. MAYURI SINGH: METROPOLITAN
MAGISTRATE:MAHILA COURT01: SOUTH DISTRICT: SAKET
COURT: NEW DELHI
State versus FASIUL HUSNAIN
FIR No.252/05
PS Lodhi Colony
U/s 498A/406 IPC
CNR No. DLST020000772007
J U D G M E N T
1. Serial No. of the case : 2032743/16
2. Date of commission : From the time of marriage till
registration of FIR in the year
2005.
3. Date of institution of the case : 03.04.2006.
4. Name of complainant : Ms. Nuzhat Farzana.
5. Name of accused person : Fasiul Husnain S/o Sh. Safdar Ali
R/o DDA Flat No.41B, Pocket C,
Siddharth Extension, New Delhi
110014.
6. Offence charged with : U/s 498A/406 IPC
7. Plea of accused : Pleaded not guilty
8. Arguments heard on : 16.03.2018
9. Final order : Acquitted.
10. Date of judgment : 19.03.2018
FIR No.252/05
STATE V. FASIUL HUSNAIN Page No.2
FACTS AS ALLEGED BY THE PROSECUTION:
1. It is the case of the prosecution that marriage of complainant was solemnized with accused Fasiul Husnain according to Muslim rites and customs and her parents incurred expenses of marriage beyond their capacity. She further complained that after one week of her marriage, accused started harassing and beating her by saying that parents of the complainant had not given sufficient dowry. After six months of marriage, accused asked her to bring Rs.35,000/ from her parents and accused gave beatings to complainant regarding abovementioned demand and asked complainant to bring Rs.35,000/ from her parents and she gave the same to accused. Even after giving money to accused, torture of accused continued and she bore all the atrocities of the accused being muslim, but behavior of accused did not change. Cruelty and atrocities increased due to her silence. Out of the wedlock, three children namely Arju, Nilofar and Aafreen were born. Accused always used to threaten the complainant to falsely implicate her in false case as he was working in CBI. After 4 - 5 years, complainant started small business of selling embroidered clothes from her house and she used to give her earnings to accused. Before marriage, accused had also mortgaged their house at Sidharth Extension and mortgage amount was paid from her saving account. Even telephone bill and electricity bills were paid from her savings account. Even after 15 years of marriage, behavior of accused did not change and accused used to beat her like before.
FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.32. On the basis of said complaint, FIR was registered for offence u/s 498A/406 IPC. Investigation was undertaken. During investigation, some articles of the complainant were recovered and seized by police on her identification. After completion of investigation, charge sheet was filed. Cognizance of the offence was taken and accused Fasiul Husnain was summoned. Summoning quo other accused persons was deferred vide order dated 17.09.2012.
CHARGE:
3. Charge was framed against the accused u/s 498A/406 IPC on 25.03.2013 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. Prosecution examined six witnesses to prove its case:
(a) Complainant PW1 Nuzhat Farzana has deposed that her marriage was solemnized with accused in Lucknow as per Muslim Rites and Ceremonies and her parents gifted her dowry/istridhan articles including utensils made of silver and copper, jewelery articles i.e a gold chain 20 gms, 4 gold bangles, two gold ear rings set, one gold finger ring, one Ruby studded gold set weighing about 60 gms and one pearl set weighing about 50 gms and furniture and FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.4 cash of Rs. 50000/ and other articles as per the list Ex.PW1/A. She further deposed that the amount of Mehar was fixed as Rs.2 lakhs and after her marriage, PW1 joined matrimonial home at Mubarik Pur, Azamgarh UP. She further deposed that after her marriage, accused was not happy with the dowry articles and used to taunt PW1 and accused used to object on trivial issues and taunt PW1 saying what had she learnt from her family. She further deposed that accused also used to abuse her in filthy language and taunt her for not bringing sufficient dowry for accused. PW1 further deposed that she lived in matrimonial home in Azamgarh in 1989 and accused used to tell her to bring money from her parents for accused and also used to threaten her that accused would falsely implicate her and her family members in false cases.
She further deposed that thereafter PW1 communicated to her parents about behavior and demand of accused. She further deposed that after around 6 months of the marriage, accused told PW1 to bring Rs. 35,000/ from her parents to help accused in his business, as accused had suffered loss and accused also threatened that if she does not bring such money, accused will divorce her and throw her out of the matrimonial home. PW1 also deposed that accused was looking after the business of Banarsi Sarees and Chit fund business. She further deposed that on asking of accused, PW1 visited her parental home at Lucknow and asked her father for money and he gave Rs. 35,000/ to save marriage of PW1, which was handed over by her to accused.
FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.5PW1 further deposed that in the end of year 1989, she alongwith accused and children shifted to Delhi and started residing at H. No. 41B, Pocket C, Siddharth Extension Delhi in own flat of accused. She further deposed that even in Delhi, behaviour of accused did not change and accused used to beat PW1 and children on trivial issues. She further deposed that on one occasion, when six months old daughter was not able to sleep, accused beat her up and closed her inside a room and while crawling on the floor, baby had bolted the door from inside and the bolt had to be broken by PW1 with the assistance of labour working near her house in order to rescue the baby. PW1 further deposed that after 45 years of marriage, she started a small business of selling embroided clothes from her house and the payments received in the business used to be deposited by her in her bank account of State Bank of Shaurashtra, Bhagwan Nagar, Siddharth Extension Branch. She further deposed that however, accused used to withdraw that amount from the bank without knowledge of PW1 after taking blank signed cheques from her. She further deposed that accused also mortgaged the house at Siddharth Extension and the mortgaged amount was given by PW1 from her savings. PW1 had also made several calls on 100 number as accused had beaten her several times over trivial issues. She further deposed that police used to arrive at home and after instructing accused to behave properly, they used to leave. PW1 further deposed that in the year 2002 she filed a FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.6 complaint in CAW Cell Amar Colony and accused and she were summoned there. She further deposed that accused apologized for his behavior there and promised the authority to keep PW1 properly and thereafter, that complaint was disposed of. She further deposed that after compromise in CAW Cell, his behavior was proper for some days, but later on, one day accused gave beatings to PW1 and demanded a cash amount from her which was kept with her as savings. She further deposed that accused also took away Rs.3 lakhs from her possession on that day. She further deposed that after few days, accused called his relatives namely Aziz Asgar, Hasim, Zafrul Husnain and Nafisa Bano and asked them to drag PW1 out of the house. She further deposed that thereafter those people started residing with both of them off and on and every day they used to taunt PW1 to leave the house and that they wanted to conduct second marriage of accused. She further deposed that this continued till November 2002. PW1 Nuzhat Farzana further deposed that on 10.11.2002 accused beat up PW1 mercilessly with belt for demand of cash and asked her to hand over all of her jewelleries to accused. She further deposed that thereafter accused snatched her wearing jeweleries and cash amount of Rs.20,000/ which she was having at that time. She further deposed that accused also used to bring one Maulana at his house often and used to ask him to perform divorce of accused and PW1. She further deposed that in the same month, accused threw out PW1 from matrimonial house after beating her FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.7 mercilessly. She further deposed that thereafter, PW1 went to Lucknow at her parental home and at that time, all three children were residing in Delhi. PW1 further deposed that her family members, relatives and neighbours contacted accused and tried to persuade accused to take PW1 back to matrimonial home, but accused did not pay any heed to it and threatened them stating that in case PW1 returns, they will be liable for any injury to her life and person. She further deposed that thereafter PW1 used to frequently visit Delhi to meet her children and she used to meet them in the house of neighbours and children communicated to her that accused were torturing them physically and mentally and her daughter Nilofar communicated to her that accused used to sexually abuse her and ask her to wear her lingerie in front of him. She further deposed that thereafter, accused threw their children out of his house in April 2004 and PW1 who had taken a rented accommodation in FebruaryMarch 2004 - (after more than an year of being thrown out) brought her children to that house after they were thrown out by accused. She further deposed that thereafter accused lodged a false complaint of theft against the three children and elder son was interrogated, but police did not find any evidence against his children. She further deposed that after 23 months i.e July August 2004 when Nilofar was returning from school and walking from her bus stop, accused tried to drag her inside his car, but she managed to escape and returned home and narrated the incident to PW1, who also learnt after some time FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.8 that accused had started living with another woman. PW1 has deposed that she filed a complaint in CAW Cell Ex.PW1/B and accused joined proceedings, but efforts for compromise failed. She further deposed that CAW Cell directed for registration of FIR. PW1 further deposed that after FIR, some istridhan articles were seized from his home vide Ex.PW1/C and released on superdari to PW1 and rest of the istridhan articles are still in his possession including jewelleries of PW1 and not returned despite requests of PW1. PW1 also deposed that she handed over list of transaction of her bank account done by accused, MarkA. PW1 also deposed that during her stay with accused in Siddharth Extension, accused used to bring unknown woman at his house and tell PW1 that accused had performed Muta marriage and they would reside with both of them and on protest of PW1, accused used to forcibly lock her and her children in a room. She further deposed that accused used to pay all the bills for renovation of house, household utilities and his credit card bills from account of PW1 i.e Ali Enterprises Account No. CA/204 in State Bank of Shaurashtra. She further deposed that accused were also running a business through a firm named Ali International and used to transfer money from account of PW1 to his firm account and accused snatched cheque book of the firm of PW1 after forcibly getting it signed by her. PW1 also deposed that statement of her firm is Ex.PW1/D. She further deposed that accused used to harass her son Arzu and due to it he left house in December 2011 and did not return home. She FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.9 further deposed that accused also used to visit office of his daughter at Hero Motor Corp. in Vasant Kunj and defame her amongst her colleagues and seniors and used to spread bad words about PW1 to his family and business acquaintances due to which her business suffered and later on finished. She further deposed that during her stay with accused, accused used to force her to write down good things about him in the letters sent to his relatives. She further deposed that accused also prepared a list regarding the amount due to the firm of PW1, Ex.PW1/E and PW1 identified accused during her testimony in the court.
(b) PW2 Sh. Nadeem Durrani has deposed that his sister was married to accused in the year 1986 and in the marriage his parents gave her all necessary household articles and other articles as per list Ex.PW1/A. He further deposed that after marriage, his sister joined her matrimonial home at Azamgarh. He further deposed that after around one month of her marriage, when his sister PW1 came to his home at Lucknow, she told him that accused used to fight with her and beat her on trivial household issues. He further deposed that she also told him that accused was also demanding Rs.50000/ from her and over this demand, her husband was harassing her. He further deposed that his sister (PW1) stayed with them for around one month and thereafter returned to her matrimonial home at Azam Garh. He further deposed that after 15 20 days, PW1 visited PW 2 alongwith accused in her home at Lucknow and informed PW2 that she was being harassed as FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.10 demand of accused was not being fulfilled by parents of PW1. He further deposed that in presence of PW2, accused raised demand of Rs. 50,000/ from parents of PW2 and abused them. He further deposed that parents of PW2 assured to arrange money in some time. He further deposed that accused went back leaving PW1 at home of PW2 and returned on the same day. He further deposed that after some time father of PW2 arranged Rs. 35,000/ and gave it to PW1 for handing over to accused. He further deposed that thereafter, for 46 months behaviour of accused was proper towards PW1 and after that one day when PW2 spoke to his sister on telephone, she told him that accused and his nephews namely Hasim, Bholu and Zafrul were not happy with the money paid and were quarreling with PW1 and taunting her. He further deposed that thereafter, on several occasion during telephone conversation, PW1 used to communicate to PW2 regarding quarrels by accused use to foul language, taunting and beating her as accused were not satisfied with dowry given in marriage and thereafter. He further deposed that after one year of marriage of PW1, her parents visited house of accused and tried to convince accused and PW1. He further deposed that during that period, one person namely Modh. Raza alongwith nephew of accused namely Hasim visited Lucknow from Azamgarh and told PW2 that accused had sent him to ask for money as accused owed some money to someone and thereafter the amount asked was given to Mohd. Raza. He further deposed that after 1 ½ FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.11 years, son of accused Arzu was born at his home and when PW2 visited his home to meet PW1 and child, PW1 communicated that ill behaviour of accused was continuing and accused were still dissatisfied. He further deposed that after 34 years of marriage accused purchased flat at Siddharth Extension and major portion of purchase money was given by PW1 who was doing business of chiken embroidery from said flat. He further deposed that thereafter accused stopped working while PW1 was earning and had to visit various places and meet various people in connection with business, including Lucknow. He further deposed that PW1 communicated to PW2 that accused were raising suspicion on her character and meeting with males during business transaction and used to physically assault on this issue and PW1 also communicated to PW2 that she was bearing entire household expenses and accused had stopped contributing. He further deposed that PW1 stayed with accused till 20034 and during this period, gave birth to one son and two daughters. He further deposed that in the year 200203, PW1 alongwith her children went to Lucknow and stayed for 34 months after being thrown out by accused and thereafter she came back to Delhi alongwith children and started residing in a rented house and continued her business. He further deposed that in year 2005, PW1 filed a complaint and FIR was registered later. He further deposed that police recorded statement of PW2 and witness correctly identified accused during his testimony.
FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.12(c) PW3 ASI Vinod Kumar has deposed that dowry articles seized were released on superdarinama and the relevant record of register no. 19 is Ex.PW3/A.
(d) PW4 Retd./SI Gopi Chand has deposed that on 29.09.2005, investigation of the present matter was marked to him and on 01.10.2005 he arrested accused vide arrest memo /court surrender form Ex.PW4/A. He further deposed that application for seeking two days PC remand was moved and search warrants of house of accused was obtained and thereafter case properly were seized vide memo Ex.PW1/C. He further deposed that on 05.12.2005 statement of Nadeem Durrani (brother of complainant) was recorded and search of accused Zafrul, Hasim, Nafisa Bano and other persons were made, but in vain and thereafter the said persons took anticipatory bail and PW5 formally arrested them vide memo Ex.PW4/B to Ex.PW4/E and case property was released on superdarinama.
(e) PW5 ASI Attar Singh has deposed that on 05.10.2005 he alongwith IO took accused from the lockup for recovery of istridhan articles. He further deposed that complainant also joined the investigation and IO seized the case property vide seizure memo Ex. PW1/C.
(f) PW6 ASI Rajinder Singh has deposed that on 23.09.2005, he registered the present on rukka brought by Inspector Ashok Kumar and his endorsement on the rukka is Ex/.PW6/A and copy of FIR, Ex/PW6/B. FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.13 STATEMENT OF ACCUSED PERSON U/S 313 Cr.P.C:
5. All incriminating evidence was put to the accused and he denied the same stating that he is falsely implicated and he chose to lead DE.
DEFENCE EVIDENCE:
6. Accused examined himself as DW1 and DW2 Zafar Khan in defence. He was crossexamined by Ld. APP for the State. Thereafter, DE was closed.
a) DW1 is Sh. Fasiul Husnain, who deposed that he is a post graduate and he belongs to well establish business family of Mubarakpur. He further deposed that he joined his ancestral business of Banarasi Silk Saree in 1981 and with his diligence and sincere efforts he established own firm M/s Ali International in 1981. He further deposed that the business of his M/s Ali International flourished during the decade 1980 to 1990 and 1990 to 2000 and during these periods, he also (apart from his flourishing business), booked one flat in Delhi in self financing scheme in 1983 and he paid almost 90 % of the installment from his business earning during 1983 and 1986. He further deposed that in August 1986 he was married to complainant Ms. Nuzhat FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.14 Farzana on 23.08.1986 and the marriage was solemnized in a Imam Baarah, Nakhas Road, Lucknow and before marriage, his only condition was that he will not accept a single item in the name of dowry because he hated the tradition of dowry in Indian society. He further deposed that knowing that the family of complainant is poor one, Late Mohammad Nawab, who was a mediator informed him that his terms and conditions are acceptable to the family. Complainant and even the baraties from his side were not given proper bed etc because there was no arrangement in the Imam Baarah for rooms or beds for baraties. He further deposed that since in Imamm Baarha there was no toilet etc, the baraties have to satisfy with the public toilet on the main road of Nakah and as per the tradition for Shia sect and shariat, a Nikhanama was filled up and signed by bride and groom and the witnesses of Nikah for the Mehar of Rs.14,000/. He further deposed that the Nikhanama duly signed was never handed over to him during the period and thereafter and the dowry as per his terms and conditions was not given by the side of bride's family and since no dowry was given by the side of bride, there was no question of signing of any dowry document as per tradition of Muslim marriage. He further deposed that in the next morning of marriage they alongwith bride and her aunty proceeded to Mubarakpur and reached Mubarakpur in the afternoon. He further deposed that after that he alongwith complainant stayed at Mubarakpur for one week thereafter, the month of Moharram was to begin and he was as per the tradition FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.15 accompanied with complainant reached to Lucknow and after staying there for one day in rented house of complainant, he came back to Mubarakpur. He further deposed that after the Tija of Immam Husain, i.e. 12th Moharram, he went again to Lucknow and stayed in the same house which has no bathroom (only service toilet) and came back to Mubarakpur alongwith complainant. He further deposed that after staying at Mubarakpur for a few days we went to Hyderabad for honeymoon and Bharat Darshan. He further deposed that from Hyderabad they went to Bangalore, Mysore, Ooti and Goa and then came back to Mubarakpur via Delhi after about 20 days. He further deposed that everything was fine. He filed on record one photograph of Goa beach Mark D1. He further deposed that after coming back from Bharat Darshan through Mubarakpur everything was fine. He further deposed that after few days the elder brother of complainant Mr. Sajid Ali Khan alongwith Nadeem visited their house at Mubarakpur and he came to know about there unemployment because their family condition was very poor and they showed interest about joining his business. He further deposed that Mr. Asad Ali Khan (his fatherinlaw) had 8 children and he was living in a rented house of Rs.12 per month, one room and one small courtyard. He further deposed that the house was in a very poor condition without bathroom (only service toilet was there) and he asked the complainant to advice their unemployed and grown up brothers to learn business with him and Mr. Sajid FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.16 and Nadeem had agreed to it. He further deposed that his father taught Mr. Sajid Ali how to write Bahikhata and accounts book and after about a month he took Mr. Sajid Ali Khan to Hyderabad where he had a camp office in a hotel called Sukhniwas and room No. 16 was booked in his name from where he was carrying out his business and he also got opened a saving bank account of Mr. Sajid Ali Khan i.e. Ex.DW1/A in Union Bank, Rastriyapati Bhawan, Sicundarabadh where he had already his current account in the name of M/s. Ali International. He further deposed that he also took Mr. Sajid Ali Khan to Bangalore and Mangalore to introduce Mr. Sajid Ali Khan to his customers there. He further deposed that he had his business since 1981 and carrying it out with his employee Imtiyaz Ahmad at Bangalore and Mangalore and was after making familiar Mr. Sajid Ali Khan with his customers at Secunderabad, Bangalore and Mangalore he came back to Mubarakpur. He further deposed that at Mubarakpur he had consultations with the complainant about employing Mr. Sajid Ali Khan to work for M/s. Ali International. He further deposed that on the request and recommendation of the complainant, he employed her brother Sajid Ali Khan as my firm's M/s. Ali International representative for carrying out his sales at Secundarabad and other cities of South India. He further deposed that copy of complaint dated 11.06.1989 to SubInspector Bangalore by Sajid Ali Khan, Ex.DW1/B. He further deposed that monthly payment to him for being paid to him in cash which has been mentioned in the FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.17 roznamcha/cash book by Sajid Ali Khan himself. He further deposed that apart from this, several business letters written by him to DW1 are, Ex. DW1/C, Ex.DW1/D, Ex.DW1/F and ExDW1/G. He further deposed that Sajid Ali was duly paid his salary of Rs.1,000/ per month regularly and same is shown in the copies of roznamcha /Cash book Ex.DW1/H (colly 4 pages) He further deposed that after about a month they came from honeymoon i.e. in October 1986 and they came to Mubarakpur and the complainant wrote a description of marriage and honeymoon in a old diary in Urdu and this was most probably in November, 1986. He produced the copy of the diary i.e. in her own handwriting in Urdu, Ex.DW1/I and its translation in English by a competent translator, Mark D2. He further deposed that they were living happily at Mubarakpur and celebrated the complainant's birthday on 26.12.1986 and as a gift, he opened savings bank account in union bank of India Mubarakpur on 26.12.1986 and also purchased jewellery for Rs.5000/ for the complainant. He further deposed that at the time of complainant's birthday at Mubarakpur, her two brothers Sajid Ali Khan and Nadeem Durrani were also present. He further deposed that he also deposited DD No.116/015826 on 05.05.1987 in the account of the complainant Nuzhat Farzana for Rs.25,000/ that is mentioned in his Roznamcha/cash memo. He further deposed that on 09.02.1988 an account was opened by him in the proprietorship name M/s. Ali Enterprises in the proprietorship of complainant Nuzhat Farzana of FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.18 Rs.501/ in Union Bank of India in Mubarakpur, Distt. Azamgarh. He further deposed that thereafter, he invested substantial amount in Ali Enterprises in the sum of Rs.14,175/, (Document Mark D3) on 19941995. He further deposed that in the year 199697, he further invested Rs.30,915.32 in Ali Enterprises (document Ex.DW1/J). He further deposed that the balance sheet 31.03.2001 of Nuzhat Farzana in which it is mentioned that total assets of Rs.7,29,407/and the credited amount of Rs.1,89,775.32/ is Mark D4. He further deposed that this amount is also corroborated in the balance sheet of Ali International in the proprietorship of Fasihul Husnain in the year of balance sheet of 2001 dated 31.03.2001 i.e. Ex.DW1/K (colly) Mr. Sajid Ali Khan bungled his business stocks at Secunderabad and cheated him for about more than a lakh. He further deposed that he removed him from his employment in 1991 due to this, complainant was not happy. He further deposed that in 1990 his father expired and he had to manage his business alone. He further deposed that in 1989 after getting possession of his flat 41B, Pocket C, Siddharth Extension, New Delhi he shifted from Mubarakpur to Delhi alongwith complainant and two children. He further deposed that he established his business in Delhi also. He further deposed that since he was alone in his business the complainant with due conspiracy of her younger unemployed brothers hatched a malicious conspiracy against him. He further deposed that they also at one time attacked him and the complainant insisted on FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.19 transferring the ownership of his flat to her which he flatly refused. He further deposed that with this their differences started growing and he applied to Maulana Sayyed Ali Taqvi, (now expired) for pronouncing Talak with the complainant. He further deposed that he applied for divorce on dated 07.11.2002 and the said Maulana tried his best to mediate between them, but the complainant ridiculed the moves set by the respected Maulana. He further deposed that the copy of the application in Urdu language i.e. marked as Mark D5 and the translated copy of abovesaid application is exhibited as Ex.DW1/L. He further deposed that the respected Maulana Sayyed Ali Taqvi Immam-E-Juma, Shia Jama Maszid, Kashmiri Gate, pronounced Talaq in presence of two witnesses and issued a certificate of divorce dated 16.11.2002 i.e. Ex.DW1/M. He further deposed that thereafter, on 16.08.2005 respected Maulana gave one affidavit confirming the divorce i.e. Ex.DW1/N. He further deposed that after divorce the complainant left his flat on her own will and went to Lucknow. He further deposed that on 16.11.2002 a copy of certificate of divorce was also given to the complainant and the children were left behind because they were studying in public school. He further deposed that after about 1 - 1 ½ years on 10.04.2004, the complainant alongwith her brother looted his flat and every item was taken away and the children also left his flat. He further deposed that his son Arzu Husnain left a note and the copy of note signed by Arzu dated 10.04.2004, is Mark D6. He further deposed that in this FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.20 regard he made three complaints to the police station addressing to SHO Sriniwas Puri, New Delhi, which are marked as Mark D7 (Colly). He further deposed that after divorce till the date the children left his house i.e. 10.04.2004, he looked after his children and fulfilled all their needs. He further deposed that after 10.04.2004, the complainant alongwith minor children filed two cases one u/s 125 Cr.P.C. for maintenance of the children and another civil suit in the court of Hon'ble Civil Judge, Tis Hazari Court, Delhi for the possession of his flat. He further deposed that he paid more than Rs.16 lakhs for maintenance of his children and that case is still pending. He further deposed that the civil matter of his flat was dismissed by the Hon'ble Civil Judge and no appeal was filed by the complainant. He further deposed that the certified copy of the judgment is Ex.DW1/O. He further deposed that Sh. Shahzad Husain, Advocate for the complainant filed a complaint addressing to the vice Chairman, DDA, Vikas Sadan, INA, New Delhi and the copy of that complaint is Mark D8. After failing in her evil designs everywhere, she filed a complaint No. C 310/CWC/SD dated 17.08.2005 to Incharge Women Cell, Amar Colony, New Delhi. He further deposed that the Incharge issued notice to him and in reply to the said notice, he gave details addressing the reply to the ACP concerned dated 17.08.2005 i.e. Mark D9. He further deposed that no action has been taken by Woman Cell despite the fact that very material fact was annexed in 17 pages of his reply. He further deposed that the complainant FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.21 has asserted that the loan amount on his flat was paid through her cheques and that the loan was compromised with the State Bank of Patiala on RBI's revised guidelines for settlement and letter of State Bank of Patiala dated 09.08.2003 is Ex.DW1/P. He further deposed that the account of Ali International in Union Bank of India, Mubarakpur was running satisfactorily since 1981 and proprietor of M/s Ali International Fasihul Husnain was carrying out his business in profit satisfactorily i.e. is Ex.DW1/Q. He further deposed that the account of Ali Enterprises was opened on 09.02.1988 i.e. Ex.DW1/R. He further deposed that he was paying income tax since 1985 and was assesse since 1982 i.e. Mark D 10.
b) DW2 Zafar Khan deposed that he knew accused since year 1972 and in the year 1982, he was permanent resident of Lucknow and in the year 1986, accused got married to the complainant and he had arranged for the Bharat of accused in Lucknow. He further deposed that marriage was contracted and ceremony took place in Nazim Sahab ka Imambara and parental home of complainant was in Lucknow. He further deposed that there were around 1011 Bharaties and nothing was demanded in the marriage. He further deposed that nothing was given to the complainant in the marriage from her parental side whereas accused had given some small jewelleries to her. He further deposed that he was not personally acquainted with parents of complainant and they lived somewhere in interior part of Lucknow. He further deposed that after marriage, FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.22 complainant had moved alongwith the accused to his place and for the first time, he came to know regarding the present case and to the best of his information, there was never any dispute or quarrel among the couple. He further deposed that as far as family of complainant is concerned, they had not taken good care of Bharatis and Bharatis were served food while sitting on ground and no arrangement for toilet was there. He further deposed that there was no proper arrangement for hosting the Bharatis. He further deposed that as far as he could make out, it seemed to him that family of the complainant were not in good financial condition. He further deposed that he learnt that family of complainant did not have the means for stay of their Damad i.e accused and during his visit to Lucknow, accused used to stay in hotel and guest houses considering the limited means of his Sasurwalas whose family consisted of as many as eight children living in a one room rented accommodation.
FINAL ARGUMENTS:
7. Final arguments have been heard and record has been carefully perused. Ld APP as assisted by Ld Counsel for the Complainant stated that prosecution witnesses are reliable and have duly proved the case of the prosecution.FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.23
8. Ld Counsel for the accused submitted that presumptions are not available to the prosecution in this case. Burden of proof is on prosecution and it has failed to discharge the same. It is not a case where lingering doubt is cast on accused. It was submitted further that on each and every point, case of the prosecution has been demolished.
It is also submitted that testimony of the complainant and other prosecution witness is vague, inconsistent and uncorroborated. It is also submitted that there is material contradictions in the case of the prosecution.
LEGAL PROVISIONS TO BE SEEN:
9. Charge has been framed against the accused persons for offence u/s 498A/406 IPC.
Section 498A IPC provides punishment for subjecting a woman to cruelty by the husband or relative of the husband. A bare perusal shows that the word cruelty encompasses any of the following elements:
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(b) Any wilful conduct which is likely to cause grave physical or mental injury to the woman; or
(c) Any wilful act which is likely to cause danger to life, limb or health whether physical or mental of the woman.
Any harassment of the woman with a view to meet any unlawful FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.24 demand for dowry.
Section 406 IPC provides for punishment for criminal breach of trust. Section 405 IPC defines criminal breach of trust, the ingredients of which are as follows:
a) The accused must be entrusted with property or have dominion over property; and
b) The accused must: (a) dishonestly misappropriate or convert the same to his own use; or (b) dishonestly use or dispose of that property or willfully suffer any other person to do so in violation of i) any direction of law; or ii) any legal contract.
Dishonest misappropriation of property has been defined u/s 403 IPC as dishonestly misappropriating or converting movable property by a person to his own use. 'Dishonestly' has been defined u/s 24 IPC as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person.
From the above stated it flows that the most important ingredient of the offence under section 405 IPC is 'entrustment' and 'misappropriation'. In order to constitute a legal entrustment the complainant must be the owner of property, there must be a transfer of possession, such transfer must be an actual transfer and such transfer must be made to somebody who has no right excepting that of a custodian. After entrustment, there must be dishonest misappropriation of the said property. Hence, the essential question is whether there was FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.25 entrustment of any property by complainant to the accused and thereafter was there any misappropriation.
ANALYSIS OF SUBMISSIONS AND DECISION FOR REASONS
10. Coming first to the allegation under section 406 IPC, it is imperative on the part of the prosecution to show that there was an 'entrustment' of the istridhan/any other good/s of the complainant to the accused. It is pertinent here to mention that in the complaint as well as in the testimony of the complainant there is nothing to suggest that after marriage, the alleged istridhan articles or dowry articles of aggrieved were handed over by her to the accused. In the complaint Ex.PW1/B, the only averment made is that on 10.11.2002, accused had snatched the amount of Rs.20,000/ kept in the purse of the complainant and her jewelleries were also snatched. Complainant (PW1) has not uttered a word in her complaint Ex.PW1/B to suggest that her jewelleries / istridhan were ever entrusted to the accused Fasiul Husnain. There is no averment on the part of the complainant in her testimony or complaint to the effect that she had ever entrusted any of her istridhan articles or any other goods belonging to her to the accused. During her testimony in the court, PW1 deposed that on 10.11.2002, accused had snatched all the jewelleries, which she was wearing. However, she did not specify what jewellery she was wearing on that day. It is not the case of the prosecution that the cash amount or any jewellery was entrusted to the FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.26 accused on 10.11.2002 or any other date. As far as the allegation regarding the snatching of money and jewellery is concerned, it is seen that the allegation is not only vague but also unsubstantiated. She has not explained from where the amount of Rs.20,000/ was arranged by her, the denomination of the currency notes and the reason for presence of the amount in her purse. She has also not disclosed anything to suggest that the money was withdrawn from the bank and if so, for what purpose. Further, she has not disclosed what items of jewelleries she was wearing on 10.11.2002, as was allegedly snatched by the accused. Moving further, it is seen that PW1 has not specified the date/s on which any istridhan article was handed over to accused by the complainant. Even the time, day and place of any entrustment of jewelleries or any other istridhan article to accused is not specified. It is further interesting to note that during her testimony, while PW1 made allegation against her husband that the jewelleries she was wearing was snatched on 10.11.2002, she did not whisper a word in her entire testimony to the effect what jewelleries, out of the jewelleries as mentioned in the list of dowry articles Ex.PW1/A, she was wearing on that day. She did not specify as to what articles were entrusted to the accused or snatched by him or when the same were demanded back from the accused. Though she deposed that rest of her istridhan articles are in possession of the accused and also her jewellery articles and the same have not been returned despite her request, she did not specify the date, time and year when the jewellery articles were asked to be returned. In Sukhbir Jain & Anr. vs. State, II (1992)DMC 249, Hon'ble Mr. Justice S.C. Jain, Delhi FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.27 High Court held that:
"Under Section 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demand by the complainant. Mere general allegations made in the complainant concerning entrustment of the articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to primafacie make out a cognizable offence u/s 406 IPC. The allegations made by the complainant show that there are no clear, distinct and specific allegations regarding entrustment to the petitioner, dishonest misappropriation by them or conversant to their own use and refusal by them to return back the articles. The most vital ingredient of the offence u/s 406 IPC are missing...."
11. There is nothing in the complaint Ex.PW1/B or the testimony of the complainant to show that any istridhan article was ever handed over to the accused by her. It is further seen that though list of dowry articles Ex.PW1/A is filed on record, however, neither there is any averment that the articles mentioned in the list or some of the articles mentioned in the list were handed over to the accused nor any bills are placed and proved on record regarding purchase of these articles/jewelleries. During FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.28 her crossexamination, though PW1 deposed that at the time of marriage, list of jewellery articles was prepared, she failed to disclose the date on which the such list was prepared. Though she deposed that she had given copy of the said list to CAW Cell, no such list is placed and proved on record. There is nothing on record to suggest that list Ex.PW1/A was prepared at the time of marriage. PW1 nowhere deposed that the bills in proof of the articles given in this list, were handed over to the IO during investigation and if not, why so. There is no whisper in the testimonies of PW1 & PW2 to suggest that the bills were misplaced. No specific description like date of purchase, make, brand and design of the jewelleries and other articles are specified by the complainant in her testimony. As far as the list Ex.PW1/A is concerned, the same was not prepared at the time of the marriage and prepared only after registration of FIR. PW1 has not given out a single date, time and place when the istridhan articles were demanded from accused and were not returned. There is no bill and specific description like model, make and design of the articles (as mentioned in the list Ex.PW1/A) given either in the list or in the testimony of PW1. According to the testimony of PW1, accused used to withdraw the payments received by her from her business by withdrawing money from her bank account without her knowledge after taking bank signed cheques from her. Again, PW1 has not uttered a word to suggest that the cheques were entrusted to the accused and if so, for what purpose and what was the directions given by her for discharge of those blank signed cheques. The description of the cheques is not given by her either. It is not the case of the complainant FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.29 that the cheques used to be given to her husband for safe custody or for some purpose whereas misused by the accused for his own gain. PW1 deposed regarding document mark A which is stated to be list of the transaction of the bank account of the complainant purportedly conducted by the accused. Document Mark A is not proved on record as per law. Further, a bare perusal of this document Mark A shows that it is a hand written record of some cheque numbers and the amount for which the cheques were drawn and the persons / company concerned, perhaps in whose name, the cheques were drawn. This list has several entries in the name of Ali International. The list is unsigned and undated. This in itself does not go to prove anything. The statement of account of the complainant Ex.PW1/D does not at all go to prove that the cheques were entrusted to accused, filled up by the accused and utilized against the instructions of the complainant. Hence, the alleged offence under section 406 IPC is not conclusively proved against the accused.
12. Coming now to the allegation u/s 498A IPC, it is seen that the complainant has alleged that accused used to taunt her over the dowry articles given in marriage and abused her in filthy language and that he also used to ask her to bring money from her parents. According to the complainant, accused had asked her to bring Rs.35,000/ from her parents to help him in his business as he had suffered loss.
In Vipin Jaiswal vs State of AP decided on 13.03.2013, Criminal Appeal no. 1431 of 2007, FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.30 Hon'ble Supreme Court observed that : "He has, thereafter, stated that the appellant used to work in a Xerox cum type institute in Nampally and in the six month after marriage, the deceased came to their house and told them the appellant asked her to bring Rs. 50,000/ from them as he was intending to purchase a computer and set up his own business. Similarly, PW4 has stated in her evidence that five month after the marriage, the appellant sent her away to their house and when she questioned her, she told that the appellant was demanding Rs. 50,000/ and that the demand for money is to purchase a computer to start his own business. Thus, the evidence of PW1 and PW1 is that the demand of Rs. 50,000/ by the appellant was made six month after the marriage and that too for purchasing a computer to start his own business. It is only with regard to this demand of Rs. 50,000/ that the Trial Court has recorded a finding of guilt against the appellant for the offence under Section 304B, IPC and it is only in relation to this demand of Rs. 50,000/ for purchase of a computer to start a business made by the appellant six month after the marriage that the High Court has also confirmed the findings of the Trial Court with regard to guilt of the appellant under Section 30 B, IPC. In our view, both the Trial Court and the High Court failed to appreciate that the demand, if at all made by the appellant on the deceased for purchasing a computer to start a business six month after the marriage, was not in connection with the marriage and was not really a 'dowry demand' within the meaning of section 2 of the Dowry Prohibition Act, 1961.
FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.3113. In the case at hand, the allegation regarding the asking by accused to bring Rs.35,000/ for the accused to start his business is vague and unsubstantiated and does not even suggest that the same was asked in the form of 'dowry'. There is nothing to show that any harassment was meted out to complainant in any form by accused in connection with any such demand. Though complainant deposed that accused had threatened to divorce her and throw her out of the matrimonial house if she does not bring money from her father, she has not specified the date, time and year in which such threat was given to her or money was demanded. Interestingly, complainant also deposed that her father had handed over Rs.35,000/ to the accused to save her marriage. Again, she did not specify the date and time when such demand was met and the source from which the money was arranged by her father. It is seen that the very allegation regarding the demand and the payment by father of the complainant towards the demand is also not proved. According to the complainant, she used to be beaten but not a single medical document in support of any physical assault on her is placed or proved on record. Complainant has not specified a single date, time and year when Maulana was brought to her house (for purpose of divorce) by her husband. According to complainant, several letters were written to Maulana by her husband, but no such letter is filed and proved on record. Even otherwise, the mere alleged intention of the accused to divorce his wife does not constitute cruelty on her. According to PW1, the matter was compromised after her complaint in CAW Cell in the year 2002 and after two days her husband had locked her in a room and FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.32 beaten her. PW1 did not specify the date of her compromise and the alleged incident of beating. According to PW1 she was beaten on 10.11.2002 and her jewellery and Rs.20,000/ were snatched. She has not specified the time of the incident and the item of the jewellery allegedly snatched. She has also not specified the source of the money and the reason for its availability in the house on that day. Rs.20,000/ is a fairly good amount and if the same was withdrawn from bank for any purpose or received by complainant in the course of business transaction, she could have at least accounted for the same to make her version probable. According to the complainant, she had got herself medically examined on few occasions, but she had not placed on record any medical document in support of any injuries sustained by her. While deposing so, PW1 did not give a single reason as to why the medical documents were not given to the IO or brought in the court. During her crossexamination, complainant failed to disclose a single date when she made calls to police on 100 number. Complainant deposed that "I had not given any complaint when the accused had thrown me out of the matrimonial house in November, 2002 as mentioned in my deposition". Complainant has not specified a single reason for not giving complaint to the police and filing the present complaint only in the year 2005. As far as the assertion of the complainant in having made a complaint in the year 2002 and compromise in that matter is concerned, the same is also not proved on record. Copy of no such complaint was brought in the court nor any witness was examined on the point of the alleged settlement. She also deposed that she had not given any complaint FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.33 against the accused for the blank cheques taken by him from her and she had not given stop payments instructions to her bank. The very factum that no complaint was made to bank manager and no step was taken for stop payment makes the version of the complainant as doubtful. According to the complainant, in the year 2002, after compromise in CAW Cell, behaviour of the accused was good for some days, but later he beat her up demanding cash amount and took Rs. Three lakhs from her possession. Again, she has not mentioned that date and time when she was beaten and there is no medical document in support of the allegation. She has also not mentioned the source and specific transaction/s from which Rs. three Lakhs were arranged and the denominations of the currency note and where in the house the said amount was kept and how could the accused get access to it. Further, there is no reason given as to why such amount was kept in home, instead of safe custody in bank. There is no complaint of the year 2002 on record to suggest that on any date, the money was snatched from the complainant as alleged by her.
14. According to the complainant in November 2002, she was thrown out of her matrimonial home after beating her mercilessly and she went to her parental home in Lucknow leaving behind her three children in Delhi. She has not mentioned the date on which she was thrown out of the matrimonial home. There is no medical document proved on record in support of the allegation of merciless beating. According to the complainant, she used to meet her children in the house of her FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.34 neighbours and her children used to complain that accused had been torturing them physically and mentally. Neither any neighbour of the complainant was examined by the prosecution nor any of the children were brought to the court in support of such allegation of the complainant. According to the complainant in February - March 2004 she took a rented house in Delhi and took her children to that home after her children were thrown out. Children of the complainant were not examined in the court to throw light on the alleged incident of being thrown out by their father. Further, while in her testimony complainant deposed that her children were thrown out in April 2004, in her complaint Ex.PW1/B, it is mentioned to the contrary that they had 'left' the house of the accused after being harassed by him. According to the complainant, her cheque book had been snatched (which was in the name of her firm Ali Enterprises) after getting it signed by her forcibly. Complainant has not placed on record and proved a single document to suggest that she used to run business in the name of the firm Ali Enterprises, apart from the document bank statement Ex.PW1/D. No bank official was examined with regard to this document. However, accused has not disputed this document and no question was put to complainant to suggest that she was not running business in the name of Ali Enterprises. During crossexamination of complainant, by Ld. Defence counsel she admitted that her husband was running business in the name of Ali International. Document Ex.PW1/D shows some payment having been made to Ali International on some dates, but this in itself does not lead to the assumption that cheques of complainant FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.35 were snatched and seized or that any payment was made against her direction. Complainant has also not specified particularly which transaction in the statement of account she wishes to rely on against the accused. As far as document Ex.PW1/E is concerned, this document cannot at all be read against the accused and at best goes to show some business transaction. Further, it is strange that she did not make any complaint to police or bank regarding the forcible snatching of cheque book with signed leaves and did not even take steps for stop payment. It is amusing to note that while according to PW2 Rs.50,000/ was demanded from the parents of complainant and Rs.35,000/ were arranged and given to complainant for payment to the accused, according to the testimony of the complainant, she was told to bring Rs.35,000/ from her parents and the same was arranged through her father and given to the accused. It is only during her crossexamination that she stated that when accused had demanded Rs.50,000/ from his father, the same was given to him. Even in the complaint Ex.PW1/A, there is no mention of any demand of Rs.50,000/. The contradictory version of PW1 and PW2 is not explained by the prosecution. There are other material contradictions as well in the testimonies of PW1 and PW2 which make the prosecution version as highly doubtful. According to the complainant, after six months of marriage, accused told her to bring Rs.35,000/ from her parents and then she visited her parental home at Lucknow and asked her father for money. However, according to PW2, PW1 had come to parental home after one month of marriage and narrated regarding dowry demand of Rs.50,000/. According to PW2, the FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.36 major part of the consideration amount for the Sidharth Nagar flat was paid by PW1, but PW1 did not depose anything to this effect and is silent on this. According to PW2, accused used to raise suspicion on her character and objected to her meeting with male during business transaction. However, neither in the testimony of the complainant nor in the complaint there is any averment to this effect. It is seen that PW2 deposed regarding visit of one Razak to his home and asking for money on behalf of accused and also being handed over money by his father. However, strangely PW1 has not disclosed any such fact. According to PW2, accused had stopped working while his sister was working, but complainant did not depose anything to this effect and instead at one point stated that her own business had suffered and ultimately ruined. According to the complainant after she was thrown out (in November 2002) of her matrimonial by the accused she went to Lucknow leaving behind her children with the accused and in April 2004, the children were thrown out of the matrimonial house and she had brought her children to the rented accommodation of her which was taken on rent in February - March 2004. However, according to PW2, in the year 200203, PW1 had come to Lucknow alongwith her children on being thrown out of the house by the accused and after 34 months she shifted to Delhi with children in a separate rented accommodation. Such material discrepancies in the testimony of PW1 and PW2 are not reasonably explained by the prosecution. DW1 deposed that the amount of Mehar for the marriage was Rs.14,000/. Complainant though deposed that the amount of Mehar was Rs.2 Lakhs, she never produced Nikhanama in FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.37 the court. No reasonable explanation could be given by PW1 for non production of the Nikhanama in the court. During her crossexamination, she dodged the question of Ld. Defence counsel by deposing that "I cannot say, if after marriage, one copy of the Nikhanama is given to each party i.e. the bride and the groom". She disclosed in her cross examination that she even could not tell if her Nikhanama mentioned the amount of Mehar in it, despite admitting that the Mehar amount should have been mentioned in the Nikhanama. It is further seen that when complainant was asked in her crossexamination that her brother Sajid has been employed by accused from 1988 till 1991, she feigned ignorance by stating that she did not know about it. It is strange that despite being sister of Sajid and herself running a business, PW1 could not depose anything in this regard and it cannot be readily bought that complainant was not aware regarding it and it appears to be an attempt on her part to conceal material facts. Such conduct of the complainant makes the defence raised by the accused of dispute with Sajid, him being fired by the accused and the grievance/dispute of the complainant with the accused on this count, as probable.
15. According to the complainant, accused used to forcibly take money from the account of her firm and used to transfer it in the account of his firm. However, she has not explained in what manner the money was forcibly taken and transferred from her account. Complainant did not explain as to why no complaint was made by her against the alleged forcible transfer. There is nothing on record to suggest that complainant FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.38 had ever asked the accused to return her cheques or the amount transferred in his firm from the firm of the complainant.
16. Ld. APP for the state submitted that the documents relied on by the accused in his defence are not proved as per law and DW2 is not an eye witness. In this regard, it is to mention that the prosecution case has to stand on its own legs and cannot drive any benefit from the loopholes, if any, in the defence case.
17. In Girdhar Shankar Tawade vs. State of Maharashtra, AIR 2002 SC 2078, Supreme Court held that : "Cruelty" for the purpose of section 498A IPC is to be established in the context of section 498A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provision of section 498A IPC. In the instant case, there is no evidence to suggest that accused subjected the complainant to cruelty as envisaged under section 498A IPC.
FIR No.252/05 STATE V. FASIUL HUSNAIN Page No.3918. In view of the foregoing reasons, I hold that the prosecution has failed to miserably prove the charge against the accused, beyond reasonable doubt. Hence, for the foregoing reasons, accused Fasiul Husnain is acquitted for offence u/s 498A/406 IPC.
Pronounced in open court (MAYURI SINGH)
On 19.03.2018. M.M./Mahila Court01/South
District Saket/New Delhi
Digitally
signed by
MAYURI
MAYURI SINGH
SINGH Date:
2018.03.19
17:11:34
+0530
FIR No.252/05