Delhi District Court
Fir No. 77/10 State vs . Rakesh Awana Page 1 Of 12 on 6 April, 2018
IN THE COURT OF MM (MAHILA COURT02)
(SOUTHWEST), DWARKA COURTS, DELHI
PRESIDING OFFICER: NEHA, DJS.
IN THE MATTER OF :
State v. Rakesh Awana & ors.
FIR No. 77/10
PS Nanakpura
Date of Institution : 05.04.2011
Date of reserving of order : 04.04.2018
Date of Judgment : 06.04.2018
JUDGMENT
1. Serial No. of the case : MC No. 387/16
2. Name of the Complainant : Smt. Sushma
3. Date of complaint : 27.01.2010
4. Name of accused person : (1) Kulprakash Awana
S/o Sh. Mam Chand,
R/o 34, Eroz Garden,
Block3, Distt. Faridabad
Haryana.
(2) Mahavir Awana
S/o Sh. Chander Pal
R/o B225, Power Station
NTPC, Badarpur.
(3) Rajesh Awana
S/o Sh. Mam Chand
R/o 50, Villge Mithapur,
Delhi.
FIR No. 77/10 State Vs. Rakesh Awana Page 1 of 12
PS Nanakpura
5. Offence charged : Under Section
498A/406/34 IPC.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
Counsels for the parties.
Ms. Rajesh Kumari, Ld. APP for the State.
Sh. K. G. Sharma, Ld. Counsel for the accused persons.
BRIEF REASONS FOR ORDER:
1. All accused persons have been charged for committing offences punishable under Section 498A/406/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It has been alleged by the prosecution that after marriage of accused Rakesh Awana (since P.O) with complainant Smt. Sushma, all accused persons in furtherance of their common intention, subjected the complainant to cruelty for fulfillment of demand of dowry. It is also alleged that the accused were also entrusted with isridhan of complainant which they refused to return on demand.
2. Complaint was made and an FIR was registered. IO conducted the investigation. After completion of investigation, the present chargesheet has been filed for offences punishable under Section 498A/406/34 IPC against accused Rakesh Awana (husband), Kul Prakash Awana (father in law), Mahavir Awana (cousin brotherin FIR No. 77/10 State Vs. Rakesh Awana Page 2 of 12 PS Nanakpura law) and Rajesh Awana (brother of fatherinlaw).
3. Cognizance of offence was taken and accused persons were summoned to face trial. The copies were supplied under Section 207 Cr.P.C.
4. Arguments on charge was heard and vide order dated 24.08.2012, charge for offence u/s 498A/406/34 IPC was directed to be framed against all accused persons to which they pleaded not guilty and claimed trial.
5. During trial, accused Rakesh Awana stopped appearing and process under Section 82 Cr.P.C was issued against him. Accused Rakesh Awana was declared absconder vide order dated 15.07.2015 by the Ld. Predecessor of this Court.
6. Prosecution Witnesses have been summoned for evidence and total 8 prosecution witnesses have been examined to prove the case of the prosecution against the accused.
7. PW1 Sushma is the complainant. She has deposed that she got married on 17.08.2006 to Rakesh Awana according to Hindu Rites and ceremony. It was love marriage. They started living in a rented premises at Jaitpur, Delhi. They remained there for about 23 months. Thereafter they shifted to DDA Flat no. 3 at Prahladpur on the advise of her mother in law. When they were residing at Jaitpur, her husband was working as driver but when they shifted to Prahladpur, her husband stopped going for duty. He started beating her when she asked as to why he had stopped doing job. She also FIR No. 77/10 State Vs. Rakesh Awana Page 3 of 12 PS Nanakpura complained about the same to her mother in law. On 15.04.2007, she got miscarriage due to ill treatment at the hands of her husband and after about 7 days she was forcibly sent to her parental home. On 25.05.2007, her husband came at her parental home to take her and they went to house no. 37, street no. 13, main market, Molar Bandh, Delhi. On the first anniversary, her parents gave furniture and electronic items, kitchen utensils, garments, beddings etc. On 25.02.2008, she was blessed with a baby girl and all the expenses were incurred by her sister Amita and her husband. At that time, her parents gave gold jewellery and garments/ gifts etc. Her husband was still doing nothing and she had to ask for money from her parents for household expenses. Whenever, she complained regarding not doing of any work by her husband, her parents in law abused and assaulted her.
8. PW1 has further deposed that during 2009, her husband started taking excessive liquor and he also used to come late in night. On her inquiry, he used to assault her. On 30.12.2009, in the morning, her daughter was suffering from fever and on her request to her husband to provide medical treatment to the daughter, he assaulted her. She told her husband that she could not live in such atmosphere with him and told that she would go to her parental home. She took her bag and daughter and moved out. But her husband chased her and caught hold of her in the market. He again assaulted her in presence of his cousin brother and parental uncle.
FIR No. 77/10 State Vs. Rakesh Awana Page 4 of 12PS Nanakpura Her husband took the daughter from her and sent her at DDA Flat, Prahladpur and she was made to reside under supervision of her mother in law. On 01.01.2010, she called her parents from a STD booth and also lodged complaint in PS Badarpur. Her husband was called in police station and he handed over the daughter to her. She used to complain regarding behaviour of her husband to her in laws but they did not do anything. She became fed up with behaviour of her husband and came to her parental house on 30.12.2009 and she did not join her matrimonial home. Thereafter, she moved complaint before CWC, Nanakpura which is Ex. PW1/A.
9. PW1 has also deposed that her husband used to demand car which she refused. On that account, she was ill treated at the hands of her husband. Her husband used to beat her up severely for bringing money from her parents. Whenever, she demanded her istridhan comprising belongings of her daughter, her husband did not return even a single item. During investigation, she had given copy of marriage certificate mark A1, four photographs Ex. P1 to P4 and list of articles given by her parents Ex. PW1/B.
10. PW2 Sh. Govind Ram is the father of the complainant. He has deposed that his daughter Sushma married to Rakesh Awana in August 2006 according to Hindu Rites and Ceremonies. The matrimonial house of his daughter was at Molar Bandh, Badarpur which she joined after marriage. He came to know through his daughter that her husband used to beat her and he also used to take FIR No. 77/10 State Vs. Rakesh Awana Page 5 of 12 PS Nanakpura excessive liquor. Accused Rakesh used to demand money from her. Rakesh also visited his home and demanded money. He gave Rs. 2,000/, Rs. 5,000/ etc. a number of times. He also advised Rakesh a number of times to do the work sincerely and behave properly with his daughter. He also spoke to father of Rakesh but he also remained indifferent. Thereafter, his daughter moved complaint before CAW Cell.
11. PW3 Sh. Varun Sethi is the brother of the complainant. He has deposed that Sushma is his younger sister who got married to Rakesh Awana in August, 2006. Rakesh and his sister started residing in a rented accommodation at Jaitpur near Badarpur. His parents gave necessary household articles to them. Later on, he came to know through his sister that she was being harassed and beaten up by her husband. After about two months of marriage, Rakesh took his sister to the house where his parents were residing.
12. PW4 Sh. Vikal Singh is the neighbour of father of complainant. He has deposed that he was running a dairy adjacent to the house of Govind Ram Sethi. Govind Ram Sethi's daughter was married to Rakesh Kumar. About 67 years ago on the day of Lohri Rakesh Kumar came with his friend and banged on the door of Govind Ram Sethi's house. He was sitting outside his shop. Govind Ram Sethi was not in his house. Accused banged door for some time and when no one answered, he hurled abuses and thereafter left.
FIR No. 77/10 State Vs. Rakesh Awana Page 6 of 12PS Nanakpura
13. PW5 Smt. Sarla Sethi is the mother of the complainant. She has deposed that Sushma is her daughter. In the year 2007, her daughter got married to Rakesh Awana whom she met at Petrol Pump at Surajkund, where she used to work. It was a clandestine love marriage. Her daughter remained at the matrimonial home for about 11 & ½ years. For sometime everything was alright. However, after sometime her daughter was harassed and beaten up over dowry demand by her husband and mother in law. She also suffered a miscarriage. Thereafter, she gave birth to a daughter and even since her daughter and grand daughter are staying at her parental house. They had also lodged a complaint at PS Badarpur, however, no action was taken.
14. PW6 ACP Sunita Sharma is the official, who received the complaint of CAW Cell and conducted inquiry. The report is Ex. PW6/A.
15. PW7 SI Anju Tyagi is the official, who had conducted investigation and recoded statement of father and brother of complainant. She also made inquiry from the neighbours of the complainant's matrimonial house.
16. PW8 SI Saran Chand is the official who prepared the chargesheet after interrogating accused Rakesh Awana. He also made inquiry from the neighbours of complainant's parental house.
17. All witnesses were cross examined. The prosecution evidence FIR No. 77/10 State Vs. Rakesh Awana Page 7 of 12 PS Nanakpura was closed vide order dated 22.03.2018. Accused were examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to them separately. Accused denied all the incriminating evidence and have stated that they have been falsely implicated as they are family member / relative of accused Rakesh Awana.
18. The accused did not examine any witness in defence. Therefore, the matter was fixed for final arguments.
19. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts against accused. The complainant and her family members have proved that accused persons used to harass the complainant for dowry and they used to demand dowry from the complainant. The prosecution witnesses have also proved that accused have not returned the jewelery/istridhan to the complainant despite demand. The prosecution has proved all the ingredients of the offences punishable under Section 498A/406/34 IPC and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.
20. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against accused beyond reasonable doubts. There are various contradictions in the testimony of the prosecution witnesses. The complainant and other prosecution witnesses have made false allegation against accused persons. The FIR No. 77/10 State Vs. Rakesh Awana Page 8 of 12 PS Nanakpura prosecution has failed to prove beyond reasonable doubts that accused persons had ever beaten the complainant or demanded dowry or that they were ever entrusted with the istridhan of the complainant which they converted to their own use. Hence, it is prayed, the benefit of doubts may be given to the accused persons and they may be acquitted.
21. I have heard the rival submissions and carefully perused the material available on record.
22. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts.
23. In the present case, the accused persons have been charged for the offences punishable under Sections 498A/406/34 IPC. This Court shall examine whether the prosecution has been able to prove beyond reasonable doubts that the accused persons had subjected the complainant to cruelty as contemplated under Section 498A IPC or that the accused had committed criminal breach of trust in respect of istridhan articles entrusted to them by the complainant.
24. Perusal of testimony of prosecution witnesses would show that none of the prosecution witnesses have deposed that accused Kulprakash Awana or Rajesh Awana or Mahavir Awana had harassed the complainant for fulfillment of any illegal demand or any of them was entrusted with the istridhan of the complainant.
FIR No. 77/10 State Vs. Rakesh Awana Page 9 of 12PS Nanakpura
25. The complainant in her entire evidence has not made any specific allegation against accused Kulprakash Awana (fatherin law), Rajesh Awana (uncle) and Mahavir Awana (cousin). It is only alleged that when she complained regarding not doing of any work by her husband/accused Rakesh Awana, the parentsinlaw abused and assaulted her. There is no allegation that accused Kulprakash Awana, Rajesh Awana and Mahavir Awana had ever assaulted the complainant or demanded any dowry.
26. PW2/the father of complainant has also stated that he has come to know through the complainant that her husband used to beat her and he used to take excess liquor and used to demand money. He has also not made any allegations of demand of dowry or harassment by accused Kulprakash Awana, Rajesh Awana or Mahavir Awana. The brother of complainant namely Sh. Varun Sethi has also not deposed that accused namely Kulprakash Awana, Rajesh Awana or Mahavir Awana had ever harassed the complainant in any manner for fulfillment of demand of dowry. Similarly, witness Vikal Singh / PW4 has not deposed anything against accused Kulprakash Awana, Rajesh Awana and Mahavir Awana.
27. PW5/the mother of complainant has deposed that after sometime of marriage, complainant was harassed and beaten up over dowry demand by husband and motherinlaw. There is no allegation against accused Kulprakash Awana (fatherinlaw), Rajesh Awana (uncle) and Mahavir Awana (cousin).
FIR No. 77/10 State Vs. Rakesh Awana Page 10 of 12PS Nanakpura
28. It is clear from the aforesaid discussion that the prosecution witnesses have not made any specific allegation against accused persons namely Kulprakash Awana, Rajesh Awana and Mahavir Awana. There is nothing to show that accused Kulprakash Awana, Mahavir Awana or Rajesh Awana ever demanded dowry from the complainant or harassed her for fulfillment of any illegal demand or treated her with cruelty as contemplated u/s 498 A IPC.
29. The prosecution has also alleged that accused persons were entrusted with the istridhan of the complainant, which they converted to their own use/ refused to return on demand.
30. Perusal of the testimony of complainant would show that the complainant has not made any allegation of entrustment of her istridhan articles with accused Kulprakash Awana or Rajesh Awana or Mahavir Awana. She has categorically stated that whenever she demanded her istridhan, her husband did not return even a single item. There is nothing to show that accused Kulprakash Awana or Rajesh Awana or Mahavir Awana were ever entrusted with the istridhan or dowry articles of the complainant.
31. In view of the discussions herein above, this Court holds that prosecution has failed to prove beyond reasonable doubts that accused Kulprakash Awana or Rajesh Awana or Mahavir Awana had subjected the complainant to cruelty in connection with demand of dowry or they were entrusted with the istridhan articles of the FIR No. 77/10 State Vs. Rakesh Awana Page 11 of 12 PS Nanakpura complainant, which they converted to their own use. Accordingly, benefit of doubts is given to accused persons namely Kulprakash Awana or Rajesh Awana and Mahavir Awana and they are acquitted of the charges alleged.
32. Bail bond and surety bond of all three accused namely Kulprakash Awana or Rajesh Awana and Mahavir Awana u/s 437A Cr.P.C have been furnished with their photograph and address proof Digitally signed which have been considered and accepted.
by NEHA NEHADate:
2018.04.06 16:09:40 +0530 Pronounced in the open court (NEHA) th On 06 April, 2018 Metropolitan Magistrate Mahila Court02/Dwarka New Delhi FIR No. 77/10 State Vs. Rakesh Awana Page 12 of 12 PS Nanakpura