Delhi District Court
St. vs . Sh. Radhey Shyam on 30 April, 2011
: 1 :
IN THE COURT OF MS. SHUCHI LALER,
MM (MAHILA COURTS, KKD COURT: DELHI
FIR NO. 667/95
UNIQUE I.D. NO. 02402R0000131997
P.S. BHAJANPURA
U/SEC. 498A/406/304A34 IPC
ST. VS. SH. RADHEY SHYAM
& ORS.
1. Date of commission of offence: 10121994
2. Name of the complainant : Smt. Jaya
w/o Sh. Babulal
3. Name of the accused persons : 1. Sh. Radhey Shyam
their parentage and address. s/o Sh. Jai Narain
: 2. Sh. Jai Narain
s/o Sh. Sita Ram
: 3. Smt. Kalawati
w/o Sh. Jai Narain
: All r/o D111, Gali No. 7,
Gawri Vistar,
Delhi.
FIR NO. 667/95 P.........1/11
: 2 :
4. Offence complained of or : 498A/406/304A34
5. The date of order : 30042011
6. The final order : 30042011
THE BRIEF REASONS FOR THE DECISION :
The present FIR has been registered on the complaint of Smt. Jaya w/o Sh. Babulal r/o Q. No. 2, TypeI, Staff Quarters, ITI Vivek Vihar, Delhi to SHO, Bhajanpura, Delhi wherein it has been stated that the daughter of the complainant Ms. Hema got married with the accused Sh. Radhey Shyam s/o Sh. Jai Narain r/o D111, Gali No. 7, Gawri Vistar, Delhi on 10121994 as per Hindu Rites and Customs at the residence of the complainant i.e. Q. No. 2, TypeI, Staff Quarters, ITI Vivek Vihar, Delhi. It has been alleged that since the day of marriage, her daughter Ms. Hema was harassed and prior to three months of lodging of the present complaint, a scooter was demanded from her daughter Ms. Hema and on refusal, the daughter of the complainant Ms. Hema was beaten by FIR NO. 667/95 P.........2/11 : 3 : her husband and was thrown out of her matrimonial home. The complainant invited the father in law of her daughter Ms. Hema and told him that whatever dowry was decided at the time of marriage, has been given in the marriage and on every ceremony, all the ritual demands have been fulfilled by her and the demand of scooter will also be met by her and the complainant had sent her daughter Ms. Hema to her matrimonial home after giving 45 thousand. It has been stated that at the time of delivery of her daughter Ms. Hema, the complainant suggested the accused persons to admit her in the Hospital and if, they have any problem then, the complainant could take her daughter Ms. Hema for delivery to her house, however, the father in law of her daughter Ms. Hema assured the complainant that he will take care of her daughter Ms. Hema. It has been alleged that the condition of the daughter of the complainant Ms. Hema deteriorated and she was admitted in Kastruba Hospital. On 20091995, the complainant was informed telephonically FIR NO. 667/95 P.........3/11 : 4 : that the child had expired at night and the daughter of the complainant Ms. Hema was unconscious. The daughter of the complainant Ms. Hema expired on 2109195 at about 6.30 a.m. It has been alleged that the accused persons did not take proper care of the daughter of the complainant Ms. Hema and due to their negligence Ms. Hema expired. It has also been alleged that Ms. Hema was teated with cruetly in furtherance of demand of dowry.
2. Subsequent to the present FIR, investigation was conducted and after completion of chargesheet, same was filed in court against accused persons. Accused persons were summoned by my Ld. Predecessor Judge and a charge u/s 498A/406/304A/34 IPC r.w.s. 4 of Dowry Prohibition Act, 1961 was framed against accused persons.
3. The prosecution has examined fifteen witnesses. Sh. Nanak Chand appeared as PW1, HC Shri Niwas appeared as PW2, the complainant Ms. Jaya appeared as PW3, the brother of the deceased Ms. Hema, Sh.
FIR NO. 667/95 P.........4/11
: 5 :
Dharamvir appeared as PW4, HC Devender appeared as PW5, the aunt of the deceased Ms. Hema, Ms Kunti appeared as PW6, Sh. Karan Singh appeared as PW7, Retired ASI Bishan Chand appeared as PW8, the brother of the deceased Ms. Hema, Sh. Rajesh Kumar appeared as PW9, Sh. Devender Pal appeared as PW10, Sh. Mangat Ram Goswami appeared as PW11, Sh. Bhanwar Pal appeared as PW12, Lady Constable Ms. Bimla appeared as PW13, Dr. P.R. Dhokaria appeared as PW14 and Constable Suresh Kumar appeared as PW15.
4. The statement of accused persons u/s 313 Cr.P.C. was recorded in which they claimed to have been falsely implicated in the present case. The accused persons examined Sh. Rajvir as DW1.
5. I have heard the Ld. APP for State and Ld. Defense counsel. It is argued by Ld. APP that prosecution has proved the present case beyond reasonable doubts. However, I am not in agreement with the submissions made by the prosecution. There are major contradictions made by the FIR NO. 667/95 P.........5/11 : 6 : witnesses during their examination on record, which has shaken the credibility of the prosecution story. It be observed that the Complainant / PW3 and her sister / PW6 have deposed that deceased Ms. Hemlata was tortured and taunted for not bringing sufficient dowry. The fact as to what was found lacking in the dowry articles has not been specified. In the entire evidence, neither the Complainant nor her sister mentioned of any specific demand of dowry being made by the accused persons. It is only the brother of the deceased Ms. Hemlata who made a vague mention that there was a demand of scooter by the accused persons. Further at no stage, there is mention of any specific date, month or year when the deceased Ms. Hemlata was harassed and / or compelled, coerced for fulfillment of any demand by the accused persons. The complainant has alleged that the deceased Ms. Hemlata told her that her husband, mother in law and sister in law had given beatings to her whereas the brother of the deceased Ms. Hemlata has attributed the role of beatings only to FIR NO. 667/95 P.........6/11 : 7 : mother in law and husband. The brothers of the deceased Ms. Hemlata have deposed that their mother had paid a sum of Rs.4,000/ to Rs. 5,000/ to the accused persons, however, the mother in her evidence has nowhere deposed about any payment being made by her to the accused persons pursuant to the demand. The accused to whom the alleged amount was handed over and how the amount was arranged has also not been revealed which further cast a doubt on fulfillment of demand. In view of the major contradictions made by the witnesses and in the absence of specific allegations of harassment and or coercion for fulfillment of demand, the prosecution has miserably failed to prove the commission of offence u/s 498A IPC r.w.s. 4 of Dowry Prohibition Act, 1961 by the accused persons beyond reasonable doubt.
It be observed that all the accused have been charged for having misappropriated the istridhan articles of the complainant to their own wish. In order to to establish the charge of Section 406 IPC, the FIR NO. 667/95 P.........7/11 : 8 : 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 domination over the articles of the complainant and with dishonest intentions the articles entrusted to them, have been misappropriated. In her entire testimony, the complainant has not stated the month, time and year when the entrustment was made and specifically to whom it was made. The complainant has merely stated that all the dowry articles went to the house of the accused persons. The list of dowry articles Ex.PW1/A is not witnessed by any of family members of the complainant. Further the list of the dowry articles Ex.PW1/A has not been proved as the complainant in her cross examination admitted that the list is not in her handwriting and she cannot identify in whose handwriting that list is prepared. The complainant has also deposed that she cannot say which list was handed FIR NO. 667/95 P.........8/11 : 9 : over to the police whether it was the list prepared at the time of marriage or another list which was prepared at the time of making of complaint to police. The said deposition of complainant further cast a doubt on the genuineness of the list Ex.PWE1/A. 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, I am of the opinion that entrustment in favour of the accused persons is not established. There is no demand of articles back from the accused persons till the filing of the present complaint. 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.
It be also observed that all the accused persons have also been charged of offence punishable u/s 304A IPC. In order to make out an FIR NO. 667/95 P.........9/11 : 10 : offence u/s 304A IPC, it is necessary to prove negligence on the part of the accused persons and it is further necessary to prove a direct nexus between such negligence on the part of the accused persons and cause of death of deceased. In the present case, deceased Ms. Hemlata expired on 21091995 at 6.45 a.m. because of increasing Jaundice leading to Hepatic Comma and Unconsciousness. Expert opinion was sought by the investigating agency from the Medical Superintendent, Kasturba Hospital and the said hospital formed an expert committee to enquire into the matter and finally submitted the report dated 06121995 to the investigating agency through Dr. P.R. Dhokaria who has been examined by the prosecution as PW14. The said doctor exhibited the opinion with respect to the death of deceased Ms. Hemlata as Ex.PW14/A and as per the said document the expert committee came to the conclusion that the deceased Ms. Hemlata died because of increasing Jaundice leading to Hepatic Comma and Unconsciousness and that there was no evidence of FIR NO. 667/95 P.........10/11 : 11 : any foul play in the death of Ms. Hemlata. The cause of death of Ms. Hemlata was the disease itself and nothing more. Thus as per the expert opinion deceased Ms. Hemlata died because of the disease (increasing Jaundice leading to Hepatic Comma and Unconsciousness) and not becasue of the negligence on the part of any of the accused persons. Accordingly, no offence u/s 304A IPC is made out against any of the accused persons.
In view of the aforesaid discussion, I am of the opinion that no material evidence has been produced in order to secure conviction. Accused persons are accordingly acquitted. Bail Bond of accused persons remain in force and sureties of accused persons shall not be discharged for a period of 6 months in view of section 437A Cr.P.C.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 30042011 MM/MAHILA COURTS FIR NO. 667/95 P.........11/11