Delhi District Court
State vs . Afsar & Ors. on 13 July, 2011
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURTS, NEW DELHI.
Serial No. 1/09
Unique Case Identification No. 02406R1014252007
State Vs. Afsar & Ors.
FIR No. 503/99
P. S. Ambedkar Nagar
U/S U/s 498A/406 IPC
JUDGMENT:
1. Date of institution 07022007
2.Date of commission of offence On & After 198788
3.Name of the complainant State through Smt.
Aashma
4.Name of the accused (1) Afsar
S/o Sh. Chotey
R/o H.No. 603, Gali No.
26, Zafarabad, New
Seelampur, New Delhi
(2) Nizam
S/o Sh. Abdul Sayed
R/o Near Badi Masjid
FIR No. 503/99
P.S. Ambedkar Nagar Page No. 1 of 18
Asaba Baksar. P.O.
Simboli Distt. Galiya
Bode (UP).
(3) Allah Bandi
W/o Simboli
R/o H.No. 603, Gali No.
26, Zafarabad, New
Seelampur, New Delhi
(4) Rukhsana
D/o Chotel Khan
R/o H.No. 603, Gali No.
26, Zafarabad, New
Seelampur, New Delhi
(5) Khurshid
S/o Abdul Sayeed
R/o H.No. 603, Gali No.
26, Zafarabad, New
Seelampur, New Delhi
(6) Guddan
D/o Chotey Khan
R/o Badi Masjid Asba
Buxar, P.O. Simboli,
Distt. Galiya Bode.
5.Nature of offence complained of U/s 498A/406 IPC.
6.Plea of the accused person Accused persons pleaded
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P.S. Ambedkar Nagar Page No. 2 of 18
not guilty
7. Date reserved for order 27.06.2011
8.Final Order Acquitted
9.Date of such order 13072011
Date of Institution : 07022007
Date of reserving order : 27062011
Date of pronouncement : 13072011
BRIEF FACTS OF THE CASE:
1. The case of the prosecution is that all the accused persons namely Afsar, Nizam, Alabandi, Ruksana, Khurshid and Guddan subjected Smt. Aashma to cruelty with a view to coerce her and her parents to fulfill the unlawful demand of dowry and thereby they committed an offence punishable U/s 498A IPC. Afsar and Alabandi were entrusted with stridhan articles and thereby committed offence punishable U/s 406 IPC.
2. After complying with the provisions of section 207 Cr.P.C formal charge was framed against the accused persons on 08.07.2004 to which the accused persons pleaded not guilty and claimed trial. FIR No. 503/99 P.S. Ambedkar Nagar Page No. 3 of 18
3. Prosecution in order to establish its case relied upon 7 witnesses namely Aasma is the complainant. She deposed that she was married to the accused Afsar 1718 years back as per Muslim Rites. Dowry articles were given by her father to accused Afsar in marriage. All the accused persons started harassing her for not bringing scooter as she had only brought vicky. A demand of scooter and plot was raised. Once 25000/ was brought by her from her parents and were handed over to Alabandi. After few days she was again subjected to beatings by Ruksana and Guddan. Thereafter she brought 7000/ from her parents house. Then the accused persons demanded Rs. 50,000/ from her. Kerosene oil was poured over the complainant by Guddan, Ruksana, Alabandi, Nizam, Hussain, Chotey, Salim and Afsar. Guddan assaulted her with the knife and Ruksana hit her with the chimata. Afsar then left her outside her parental house with the demand of plot and Rs. 50000/ in cash and a scooter. No one from the matrimonial house came to take her back despite sending messages. Then she came to know that Afsar had remarried with the girl and had even divorced her. She then filed complaint before CAW Cell same is Ex. PW 1/A. List of dowry articles is Ex. PW FIR No. 503/99 P.S. Ambedkar Nagar Page No. 4 of 18 1/B. The dowry was entrusted to Afsar, Nizam, Khurshid who had come with the barat. Partial dowry articles were returned to her vide memo Ex. PW 1/C. Accused Chotey Afsar, Nizam and Khurshid sold the dowry articles of the complainant when she was turned out from the matrimonial house. All the three children are with the complainant and are being looked after by her.
4. In her cross examination she was confronted with the portion that accused Guddan had assaulted her with the knife and Ruksana beat her with the chimata. Alabandi and Ruksana ordered her to stand outside the house at night. The same is not Ex. PW 1/A. She was also confronted with the portion " I was left outside my parental house for scooter". She was further confronted with the portion that I had to remain at my parental house as the accused Afsar and others did not come to take me back despite sending messages and requests to them to take me back but none of the accused persons had come to take me back without fulfilling the above mentioned demands. She was further confronted with the portion that I had also mentioned that the accused Afsar had remarried with a girl belonging to Hasanpur and I came to know that the accused Afsar has even given talaq to her. Confronted FIR No. 503/99 P.S. Ambedkar Nagar Page No. 5 of 18 with the Ex. PW 1/A where the fact of remarriage is only mentioned. "I had also mentioned that the accused Chotey, Afsar, Nizam and Khurshid stated to sell my dowry articles when I was turned out my matrimonial house. Confronted with the Ex. PW 1/A where the names of the Hussain and Nizam are not mentioned". I had also mentioned in my complaint Ex. PW 1/A that my three children are with me who are being brought up by my parents and the accused Afsar and other accused persons never bothered about me and my children and they had not given even a single penny for me and my children confronted with my complaint Ex. PW 1/A where is not so recorded. I had also mentioned that the accused Afsar, Guddan, Rukhsana, Alabandi, Nizam, Hussain, Khurshid, Chotey and Abul Sayed started harassing and torturing me as I had not brought the scooter in my marriage and I had brought a Vicky. Confronted with Ex. PW 1/A where the names of all the above mentioned accused persons are not mentioned specifically and in the same manner. I had mentioned in my complaint Ex. PW 1/A that Rukhasan and Guddan asked their mother to demand more money from me. Confronted with Ex. PW 1/A. FIR No. 503/99 P.S. Ambedkar Nagar Page No. 6 of 18
5. Further down in her cross examination she stated that her father was a thekedar and used to sell sarees. Her father was the only earning member at the time of marriage. She admitted that she stayed with the accused persons in the joint family for 10 years. She denied that soon after the marriage she started living in a separate portion of the matrimonial house and she was given the custody of daughter and also used to cook separately. When she left the matrimonial house she took away both the sons but the daughter was left at her parental house by her mother in law after 89 months. She admitted that accused Nizam and Khurshid were known to her parents prior to her marriage. She admitted that an FIR was lodged against Nizam and Khurshid as their nephew had eloped with her sister. Certified copy of the order in the domestic violence case Ex. PW 1/G was shown to the complainant whereby her complaint was dismissed. She denied that accused Afsar and Alabandi had come to take her back. She also denied that accused persons had sent notice through a lawyer to her to join their matrimonial house. Photocopy of the notice mark B and C was shown to the complainant. She admitted that she had filed the present case only when Afsar got married to another lady. She FIR No. 503/99 P.S. Ambedkar Nagar Page No. 7 of 18 also admitted that she would not have filed the case against the accused persons in case Afsar had not remarried. She stated that she does not have any proof to show that dowry was given at the time of her marriage by her father. She denied that she had left the matrimonial house as per own will and had carried all the belongings with her. She further denied that she did not join the accused persons as she was living in adultry. She was confronted with the fact that plot at Buxar was demanded by father in law as mentioned in the complaint and in the examination in chief it is mentioned that plot was demanded by all the accused persons. In the complaint Ex. PW 1/A it is mentioned that Nana Mamu Afsar and mother in law tried to burn her confronted with the statement in chief where it is mentioned that Guddan Ruksana Alabandi, Nizam, Hussain, Chotey Abdul Salim and Afsar. She denied that her father in law had visited her parental home to take her back but she refused for the same. She denied that accused persons had never demanded scooter, dowry or plot.
6. PW 2 W/ASI Kailash deposed that on 14.10.99 she was posted as a duty officer. She recorded the FIR. Copy of the FIR is Ex. PW 2/A. FIR No. 503/99 P.S. Ambedkar Nagar Page No. 8 of 18
7. PW 5 Rtd. Sub Inspector Jalees Ahmad he deposed that he was assigned the investigation in the present case. He seized few dowry articles from the accused persons vide memo Ex. PW 1/C. Accused persons were arrested by him. Statement of witnesses was recorded by him and challan was filed in the Court.
8. In his cross examination he admitted that he did not collect any receipts or bills or dowry articles. He also admitted that he did not inquire about the ownership of the said articles. No neighbours joined as witnesses. He also did not enquire from the native place of the accused persons. He does not know since when the complainant was residing with the parents before she lodged the present complaint.
9. PW 7 Inspector Neeraj Tokas deposed that on 13.11.99 he was posted at PS Ambedkar Nagar he joined the investigation along with SI Jalees Ahmad. Accused persons were arrested in his presence and dowry articles were recovered at the instance of the complainant.
10.In his cross examination he admitted that he cannot recognize the complainant by photographs. He did not see any documents regarding the ownership of dowry articles. He also admitted that FIR No. 503/99 P.S. Ambedkar Nagar Page No. 9 of 18 Ex. PW 5/C and PW 5/D does not bear his signatures. However his name appear in the said memo as witness. He did not remember the name of persons who were asked to join the investigation or if IO asked any person to join the same. He did not remember the articles recovered on the day due to lapse of time.
11.The prosecution evidence was closed and the case was fixed for statement of accused persons. The statement of accused persons was recorded U/s 313 Cr.P.C in which they stated without oath they had been falsely implicated in the case and pleaded their innocence. They did not want to lead evidence in defence and the case was fixed for final arguments.
12.The case was argued by the Ld. APP for the State and counsel for the accused persons. It was argued by the Ld. APP that complainant had been a victim of physical violence and mental torture for the demand of dowry by the accused persons and the prosecution has succeeded in establishing its case against the accused persons beyond reasonable doubt. The accused persons are liable to be convicted. All the prosecution witnesses have supported the prosecution story in all material particulars.
13.Conversely, it has been argued by counsel for the accused that FIR No. 503/99 P.S. Ambedkar Nagar Page No. 10 of 18 complainant as per her own admission stayed in the matrimonial house for about 10 years. Therefore, since she has admitted that she was married in the year 1984 so she must have left the house sometime in the year 199495. The complaint filed by the complainant is dated 12.04.99. Prosecution has not explained the delay in filing the complaint. Complainant herself admitted that she filed the complaint only after she came to know that accused Afsar remarried and the only reason for filing the complaint was remarriage of Afsar. Secondly despite notice for restitution of conjugal rights sent to the complainant she did not join the company of the husband as she was already living in adultry. Thirdly, complainant has herself being confused while levelling allegations against the accused persons as in her original complaint she has levelled allegations against some accused persons while in her deposition in Court she had alleged the same offence against all the accused persons. Moreover there are no specific allegations against the accused persons with specific dates. No one other than the complainant has been examined to prove that the alleged dowry articles were given. No bills have been filed. Complainant has herself admitted that she had FIR No. 503/99 P.S. Ambedkar Nagar Page No. 11 of 18 received partial dowry articles. The IO and the member of the investigation team have admitted that the dowry articles have been released to the complainant without verifying the ownership. The said articles actually belong to the accused persons and have fraudulently been taken by the complainant. Two of the accused persons were minor at the time of incident. Accused Nizam and Khurshid were maternal uncles who were residing separately and have been accused of all the offences with which the other accused who are immediate family members have been accused. It is quite improbable the maternal uncle were present in the matrimonial house at all the times when admittedly they were residing at Buxar and running their own business.
14.I have heard Ld. APP for the State and counsel for the accused persons and bestowed my considerable thoughts to the material placed before me. Before concluding the case, I would first like to analyze the evidence adduced by the prosecution. The only material witness examined by the prosecution is the complainant who has deposed that she was tortured and harassed by all the accused persons however no specific role has been assigned to any of the accused persons. She has deposed that she had once FIR No. 503/99 P.S. Ambedkar Nagar Page No. 12 of 18 given Rs. 25000/ and 7000/ and demand of Rs. 50000/ a plot and scooter was constantly raised by all the accused persons. Although she has not stated who raised which demand and when. She has been confronted with several statements made by her in Court which are an improvement over the complaint filed by her initially which is certainly an after thought. Moreover she has herself admitted that she filed the present complaint only for the reason that Afsar had remarried that she would not have filed the case if Afsar had not remarried. It is quite clear that the present complaint has been filed only to wreck vengeance against the accused husband for marrying again. This solitary statement of the complainant is sufficient to disbelive the allegations levelled by her against the entire family. Even if assuming that she had brought the amount of Rs. 25000/ and 7000/ from her parental house then why no one from the parental family of the complainant came forward to depose that from where this money was arranged. Complainant in her deposition has accepted that at the time of her marriage her father was the only earning member in the family. Therefore, if the said demand was fulfilled the same should have been fulfilled by the father of the complainant who could not be FIR No. 503/99 P.S. Ambedkar Nagar Page No. 13 of 18 examined in Court. The benefit of the same accrues in favour of the accused persons. The complainant has not explained as to why she did not join the company of the accused Afsar despite receiving the notice. Both the IO and the PW 7 have admitted that no one from the neighbourhood was examined in order to adduce the truth. The IO had not even gone to the native place of the accused for investigation. Entire investigation has been done only in Delhi when admittedly the complainant had been residing with the accused persons at their native place. And all the allegations levelled against accused persons are that of native place of the accused persons.
15. In view of the aforesaid discussion, I conclude that the offence under Section 498A IPC is not established beyond reasonable doubt against the accused persons, as admittedly no specific instances of cruelty with date and time have been mentioned.
16.Regarding the offence under Section 406 IPC, the prosecution in order to establish its case was required to prove the following ingredients:(i) entrusting a person with the property or with any dominion over property.(ii) that person entrusted (a) dishonestly misappropriated or converted that property to his own use; or (b) FIR No. 503/99 P.S. Ambedkar Nagar Page No. 14 of 18 dishonestly used or disposed of that property or willfully suffered any other person so to do in violation
(i) of any direction of law prescribing the mode in which such trust is to be discharged,
(ii) of any legal contract made, touching the discharge of such trust.
17.At the outset, I find that there is no specific date, time mentioned when the stridhan articles were entrusted by the complainant to the accused and as to when she demanded them back or that the accused refused to return the same.
18.Reference may be made to Maninder Singh & Ors. Vs. State of Haryana & Anr. II (1993) DMC 605 where it was held that in view of the vagueness of the allegation regarding entrustment of dowry articles and the alleged maltreating, the continuance of the proceedings in pursuance of the FIR would amount to any abuse of the process of the Court and it was observed that in that case there was no evidence as to which article was entrusted to which of the accused persons.
19.In Shanti Devi Vs. State of Harayana I (2000) DMC 697 it was observed that it was not clear from the complaint which was the FIR No. 503/99 P.S. Ambedkar Nagar Page No. 15 of 18 basis for prosecution as to when the accused persons demanded articles or money or misappropriated the articles given to the bride or the bridegroom at the time of marriage.
20. Again in Rai Singh Vs. Smt. Gurdev Kaur 1989 (1) RCR 647 it was observed that there was no specific allegation that any specific article had been entrusted to the petitioners therein at the time of solemnization of marriage and there was no detail concerning individual acts of cruelty or harassment and as such no offence under Sections 406 or 498A IPC was made out.
21.In Neera Singh Vs. State 138 (2007) DLT152, it was observed by Honourable Justice S.N. Dhingra in Para 4 as under, "......... Now a days, exorbitant claims are made about amounts spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed........."
Further, it was observed it para 5 of the same decision that, ".... Court should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn...."
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22.In the entire complaint complainant has nowhere mentioned that when she had entrusted her jewellery to husband Afsar on Alabandi, mother in law or that same was refused on demand. No bill have been filed by the complainant.
23.From the material placed on record, I find that the case against the accused persons has not been proved beyond reasonable doubt. The prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt.
24.I feel that the prosecution has not been able to discharge the onus of proving the guilt of the accused persons beyond reasonable doubt. The accused persons deserve to be given benefit of doubt. Accused persons are accordingly acquitted.
Announced in open court ( POOJA TALWAR )
on 13072011. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 503/99
P.S. Ambedkar Nagar Page No. 17 of 18
FIR No. 503/99
P. S. Ambedkar Nagar
13072011
Present : Ld. APP for State.
Accused persons with counsel.
Accused persons are acquitted vide my separate judgment dated 13072011. Bail bond cancelled. Surety stands discharged. Endorsement, be cancelled, if any. File be consigned to record room.
( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi.
FIR No. 503/99 P.S. Ambedkar Nagar Page No. 18 of 18