Delhi District Court
St. vs . Rajiv Bakshi Etc. on 15 March, 2008
1
IN THE COURT OF MS. NIRJA BHATIA : METROPOLITAN
MAGISTRATE : KARKARDOOMA COURT : DELHI
FIR NO. 558/96
P.S. SHAKARPUR
U/SEC. 498A/406/34 IPC
ST. VS. RAJIV BAKSHI etc.
1.Date of commission of : Since 06.12.1992 to 27.08.1995 offence.
2. Name of the complainant : Sarita
3. Name of the accused, his : 1. Rajiv Bakshi parentage and address. S/o Sh. Bal Krishna Bakshi
2. Bal Krishna Bakshi S/o Sh. Bhagat Ram
3. Smt. Kailash Bakshi W/o Sh. Bal Krishna Bakshi
4. Smt. Pooja W/o Sh. Vijay Kumar
5. Smt. Seema W/o Sh. Chandra Shekhar
6. Kumari Meenu D/o Sh. Bal Krishna Bakshi All R/o 721/5, Panjabi Park, Anand Parvat, Delhi.
4. Offence complained of or : 498A/406/34 IPC
5. The date of order : 15.03.2008
6. The final order : 15.03.2008 THE BRIEF REASONS FOR THE DECISION :
The facts of the case have been disclosed in statement made by complainant Sarita D/o Inder Raj Bakshi R/o C5/718, Ganesh Nagar, Shakarpur, Delhi, aged around 28 years stating that she was married State Vs. Rajiv Bakshi etc. 2 with accused Rajiv Bakshi on 06.12.1992 as per Hindu Rites and Rituals. She claimed that few months after her marriage her husband Rajiv Bakshi, fatherinlaw Bal Kishan, motherinlaw Kailash, Nanand Seema, Nanand Pooja, Nanand Meenu started torturing and beating the complainant for having brought insufficient dowry. The complainant was physically as well as mentally tortured in furtherance of demand of Rs. 20,000/ for which she wrote a letter to her parents informing them that the amount of Rs. 20,000/ given earlier has been given to the inlaws due to which she was treated properly for few days. She alleged that the accused have made a fresh demand due to which she is under going mental tension. The complainant stated that her parents refused to give more money.
She claimed that her husband had lodged a false complaint at Tis Hazari claiming that the complainant does not wish to live at the matrimonial home, since the complaint was false, it was dismissed by the magistrate.
The complainant furthered that the marriage of her brother was solemnized on 22.01.1994 and to celebrate the marriage when she asked for her jewellery and clothes from the accused, her motherinlaw and sisterinlaw got her beaten from her husband. She was tortured due to which she alone came to the house of her parents though the accused later on attended the wedding of her brother. The accused after attending the marriage of her brother did not take her back and when her father took her to her matrimonial home, her father was insulted in her presence and she was not allowed to enter in the matrimonial home. In fact the complainant and her father were pushed out by her husband, parentsinlaws as well as sistersinlaw and told by the accused that she shall not be allowed to live in the matrimonial State Vs. Rajiv Bakshi etc. 3 home unless the amount of Rs. 25,000/ is brought.
The complainant claimed that she again visited her matrimonial home along with her mother on which occasion she was told that she has no business left in the matrimonial home and she must not came back. Due to which she moved a complaint at PS Anand Parvat and after the intervention of the police she was permitted to rejoin the matrimonial home.
The complainant claimed that she lived at her matrimonial home for few months however again she was pressurized for fulfilment of demands. She alleged that on 21.08.1995 she was being forced to sign the blank papers on which accused want to write her suicide note when she sensed that the accused wanted to kill her she called her parents who came and took her back along with her minor child. She stated that she was brought back with the assistance of police and all her jewellery articles were retained at the matrimonial home.
On her statement rukka was prepared and an FIR was registered. Subsequent to the completion of the investigation, the chargesheet is filed in the court. Accused persons were summoned and were later on granted regular bail. On subsequent dates documents were supplied, arguments on the point of charge were heard by my Ld. Predecessor who was pleased to frame charge on 12.05.1997 against the accused persons. The matter thereafter was listed for recording of evidence.
The complainant appeared as PW1 and stated that on 06.12.1992 she had married with the accused Rajiv. After marriage she claimed to have been harassed by the accused persons as the demand of Rs.
State Vs. Rajiv Bakshi etc. 4 20,000/ was made. She stated that the amount of Rs. 20,000/ was given to her fatherinlaw by her mother. After receiving the said amount she was not harassed for a short period however again after 23 months the accused started demanding an amount of Rs. 25,000/ which her parents could not arrange. She also gave birth to a male child. The accused did not allow her to give milk to the child nor she was permitted to go to the market for getting the milk.
She claimed that on 22.01.1995 her brother's marriage was held when she demanded her jewellery for attending the marriage however the accused refused to give the same and her husband Rajiv beat her up. She alone came at her parents home for attending the marriage as she was sent without clothes and jewellery and was told "APNE MAMMI PAPA SE JAKAR KAHO KE JAB TAK WO HAMARE PAREO MAIN AA KE MAFIYA NAHI MANGATE HUM TAB TAK WAHA NAHI JAYANGE" She stated to have disclosed the facts to her parents. The complainant claimed that thereafter her parents and other relatives went to the house of accused persons and later on it was disclosed to the complainant that the Mama of the accused Rajiv was also present at the time of the visit of parents of the complainant and he had played a crucial role in pacifying them. She stated that she thereafter went to her matrimonial home on 15.01.1995 when she was inquired by the accused as what articles she had brought from her parents house in Shagun. She was again harassed and on 22.01.1995 at the time of marriage of her brother she came alone. She stated that the marriage of her brother was attended by her husband alone who thereafter went without taking her. She thereafter made phone calls to her husband who protested to take her back and thereafter her father took her to the matrimonial home, where both the complainant and her father were pushed and were told "HAME NAHI RAKHNI KYO KI TUM HAMARI DEMANDS PURI NAHI KAR SAKTE". She stated to State Vs. Rajiv Bakshi etc. 5 have come back at her parents home along with her father. Then again she was taken by her mother, brother, mami and other relatives but the accused did not talk to them and called the police. The police took them to PS where a compromise was reached upon and the accused husband agreed to live with the complainant.
After the settlement she was allowed to live for a period of around 45 months where after she was again harassed and money was demanded as her fatherinlaw was constructing a new house and the previous house was sold, demand of money for construction was made and the complainant was taunted and due to which she felt mentally harassed. The complainant claimed that her husband told her "MAINE TUMHE RAKHNA NAHI HAIN YA TO APNE AAP CHALI JAO YA MEIN TUMHE MAAR DUNGA". Complainant stated that her husband had filed a petition u/s 9 HMA in Tis Hazari Court which was dismissed. After dismissal of the said case her husband started harassing her more. On one night when she came down from her room which was situated on 3rd floor accused were making a conspiracy to kill her. She made a telephonic call to her parents who came with the police.
She also stated that she never demanded her istreedhan articles from accused however it was claimed again that articles were demanded at the time of proceedings at CAW Cell.
She stated to have visited the matrimonial home along with police and had got the possession of the articles vide seizure memo Ex. PW1/A bearing her signatures at Point A. Her statement made before the police dated 12.11.1996 was Ex. PW1/B. The seizure memo was exhibited as Ex. PW1/A. State Vs. Rajiv Bakshi etc. 6 During crossexamination she claimed to have named of the accused including 'Kitto Sudhan' in her statement made before the police. She was confronted with the statement Ex. PW1/B where the said fact was not recorded. She stated that her Nanand Pooja is residing at Patna which fact she did not reveal to the police. She claimed that since it was not inquired from her she did not reveal to the police that her Nanand Pooja was not residing at Delhi and was residing at Patna. She stated that she did not mention the address of her Nanand Pooja as of Delhi which she was confronted and it was found that the address of Pooja was mentioned of Delhi. The suggestion that her Nanand did not visit Delhi after the marriage of complainant was denied. However she could not provide the dates on which her Nanand Pooja visited Delhi. It remained admitted by the complainant that Pooja was married even prior to her marriage.
The complainant claimed that Rs. 20,000/ was demanded in 1992 however she could not remember the date and month. She stated that she had told the police that the amount of Rs. 20,000/ was demanded in the year 1992 however the said fact was not mentioned. She could not give the date and month when the amount of Rs. 20,000/ was given to the accused. She also could not provide any date, month or occasion when the accused made the demand of Rs. 25,000/. She claimed to have told the police that none provided milk to the child however she was confronted with her statement which was found not regretted. The suggestion that when she came to attend the wedding of her brother her jewellery was with her was denied. She claimed that she does not remember to have told the police that accused told her "APNE MAMMI PAPA SE JAKAR KAHO KI JAB TAK WO HAMARE PARO MEIN AAKER MAFI State Vs. Rajiv Bakshi etc. 7 NAHI MANGE GE HUM TAB TAK WAHA NAHI JAIGE". She was confronted with the statement where the said words were not recorded. She could not provide the date, month when she along with her parents and other relatives went to the matrimonial home. She further denied that she remained at her parents home after Sagun till marriage. The suggestion that her husband had come along with his family members to attend the wedding of her brother was denied.
She denied having told the police that accused Rajiv lived with her parents at Shakarpur for one month. The suggestion that she refused to live with her husband after seeing the condition of rental house was denied and that she also insulted him. She claimed that she does not remember the exact date and month when she along with her parents had gone to the matrimonial home. She denied that she is making a false statement and had gone to matrimonial home only after receiving the summons of petition filed by her husband and till then she was living separately.
She admitted that in July 1994 miscarriage had taken place at Shakarpur. She denied that she herself did the same without taking consent of her husband. She allged that miscarriage took place as she was pushed by her husband from stairs due to which it happened and since the accused refused to get her treated her husband called her mother who took her to Shakarpur and got her treatment done. She admitted that prior to her making this statement nowhere including the proceedings before police and or in divorce case she has mentioned about the fact of her being pushed by her husband due to which she allegedly suffered the miscarriage.
State Vs. Rajiv Bakshi etc. 8 She claimed that she cannot recollect the dates, months etc. when the accused gave beatings to her. She volunteered that she was beaten continuously. She could not provide the date, month etc. when she allegedly heard the accused making conspiracy for killing her. She also could not provide any month of the said incident. She stated that she could not state as how many times her statement was recorded. She admitted that she has filed a maintenance case and her statement was recorded by Ld. Smt. Mamta Tayal, MM. She denied that she was making a false statement and the accused has never harassed her.
Subsequent to her statement SI/DO Dhan Singh appeared and exhibited the FIR no. No crossexamination of this witness was done since he was a formal police witness.
Subsequent to the statement of DO, Sh. Indra Raj father of complainant appeared as PW3 and stated that her daughter complainant Sarita got married in the year 1992 with accused Rajiv in which he had given the jewellery articles as per his status except refrigerator. He stated that all the articles were taken after Vidai ceremony by the accused Rajiv along with Doli. He stated that his daughter was maintained properly for 23 months thereafter the accused started harassing his daughter. A demand of Rs. 20,000/ was made by the fatherinlaw about which the witness informed by the complainant when she had come to him at his house. She stated that his daughter informed him that if the demand will not be fulfilled she would not be kept in matrimonial home, due to which he gave Rs. 20,000/ to his daughter. The said money was taken and handed over to fatherinlaw. He claimed that thereafter for few days his daughter was kept well. On 22.01.1995 on occasion of marriage State Vs. Rajiv Bakshi etc. 9 his son Sanjay, the complainant came and all the family members including inlaws also came and attended the marriage. He stated that in the month of February he took the complainant to matrimonial home and greeted the fatherinlaw of his daughter who was sitting outside the house. However he did not receive any response and was told inturn, point blank that if he had not brought the amount of Rs. 25,000/ then she would not to permitted to live in the matrimonial home. He claimed that he came back with her daughter and after few days his wife Durga Devi and sisterinlaw Ram Murti took the complainant to her matrimonial house where again the accused husband turned them out by holding their arms. The police was called by mother of complainant and thereafter the complainant was taken in the matrimonial home.
He claimed that the accused filed a case that the complainant had left the matrimonial home along with all her articles, the summons of which case were received and subsequently the brother of complainant attended the court and on hearing him the said case was dismissed. It was stated by the witness that after the dismissal of the case his daughter was beaten by the accused Rajiv.
The witness stated that all the family members of the accused pressurized the complainant to sign blank papers. As the complainant got suspicious, he informed him on telephone whereafter he approached the police and took the complainant back to their home. It was stated that since then the complainant is residing with him at the parents home. She stated that when she had came she had not brought, istridhan articles with her. Part of the recovery of the articles have been made however it was alleged that the jewellery is still lying with accused Rajiv or his father and has not been returned.
State Vs. Rajiv Bakshi etc. 10 In the crossexamination the witness stated that he know Seema who is residing in Anand Parvat and is married. He admitted of knowing Pooja who also stated to be married. He claimed that he cannot tell the address of Pooja and she might be residing in Patna. It was admitted that Pooja got married prior to marriage of Sarita, complainant herein.
It was stated by the witness that he cannot give the details of the articles given in marriage, the police did not record his statement he also could not tell the exact date, month and year when the money was demanded by the father of Rajiv. The suggestion that he did not remember the date as no amount was given was denied.
He claimed that he does not remember as when he retired and it was claimed that at the time of marriage of the complainant, the son of the witness was employed in a private service at Darya Ganj. It was stated that the witness, father of complainant retired after the marriage of complainant. He denied that at the time of marriage of complainant he was not earning anything however he could not state for want of memory as what was the amount earned by way of salary at that time. He denied that he was earning only Rs. 1,000/ per month.
He alleged that he was informed by his daughter of being harassed by the accused. He admitted that his daughter was not harassed in his presence. The suggestion that his daughter did not inform him about the harassment was denied. In response to a specific query he replied that after 34 months of marriage the complainant came and told that the accused was used to harass her for demand of money. He claimed that initially no report was State Vs. Rajiv Bakshi etc. 11 lodged as they wanted the marriage of the complainant to be saved.
He claimed to have been informed by his daughter that an amount of Rs. 20,000/ was handed over to the fatherinlaw. The suggestion that no amount of Rs. 25,000/ was demanded by the father inlaw was denied. He claimed that he did not remember the exact date and month when his wife and sisterinlaw had gone to the house of the accused along with the complainant. The suggestion that he did not remember the date as such the incident had taken place was denied. It was denied that the complainant was living with the witness at the time when the first petition u/s 9 HMA was filed and had again came back after receiving the summons. The suggestion that the brother of the complainant had pressurized the accused for taking a house near their residence was denied. It was denied that complainant was not beaten after dismissal of the case and was not pressurized to sign at blank papers. The suggestion that no telephone was installed at the house of the witness at that time was denied. Rest of the suggestions were also denied.
Subsequent to the statement of the father of complainant, her mother Smt. Durga Devi appeared as PW4 and stated that after the marriage of her daughter on 06.12.1992 after about 67 months her daughter complainant herein came to their house and told them that an amount of Rs. 20,000/ have been demanded by her in laws as she has taken less dowry at the time of marriage. She stated that as the amounts, more than their capacity had been spent in the wedding of the complainant they borrowed an amount of Rs. 20,000/ from the relatives and gave that amount to the complainant Sarita, whereafter for some time she was kept well however again an amount of Rs. 25,000/ was demanded. When she made enquiries from her State Vs. Rajiv Bakshi etc. 12 daughter she was told that her husband Rajiv, fatherinlaw Bal Kishan, motherinlaw Kailash, Nanand Pooja etc. all harassed her and gave beatings in furtherance of demand of more dowry. She thereafter placed on record the letters Ex. PW4/A and Ex. PW4/B which she claimed to have received from her daughter in furtherance of their demands.
In her crossexamination she admitted that the Nanand of her daughter namely Pooja got married prior to the marriage of her daughter and is residing at Patna. She could not disclose the make of T.V. Which was given in dowry. She claimed that it was a colour T.V. She stated that she gave a necklace, two gold ear rings, four gold bangles, a gold ring for the boy, a gold ring for fatherinlaw, gold tops for motherinlaw and total 12 tola gold were given. However she stated that she does not have any receipt of purchasing the gold jewellery. The suggestion that she had not given the gold jewellery in marriage was denied. She admitted that she has no proof regarding money however she stated that she had arranged the same by taking loan from her brothers and sisters. She stated that she had taken an amount of Rs. 10,000/ each from her brothers.
She could not give any date, month, time when she went to meet her daughter at her matrimonial home. She admitted that she has not produced the letters earlier before any authority before producing them in the court. She volunteered that she has shown the letters to police. She stated that she does not remember the date when she received the letters and does not recollect the month or year of receiving the said letters. She stated that even after seeing the letters she cannot tell the month State Vs. Rajiv Bakshi etc. 13 or year etc. of receiving the same on the pretext that she has not brought her specs. The suggestion was given that the said letters were forged after filing of the case to create evidence which was denied. It was denied that a false complaint has been made by her daughter.
Subsequent to her statement Sanjay Bakshi brother of complainant appeared as PW5. He stated that an amount of Rs. 20,000/ was given to complainant at their house as the accused Rajiv and the complainant had come to their house at that time. He claimed that thereafter his sister was kept well for some time however they again started demanded cash of Rs. 25,000/. He again claimed that when his marriage was fixed for 22.01.1994 his sister was allowed to attend the marriage with great difficulty and when she managed to come she was alone and did not bring any cloth or jewellery. He claimed that after about one week of his marriage his father has visited the matrimonial home of the complainant to leave her there however she was not allowed and was turned out along with her father on the ground that unless the demand of Rs. 25,000/ is fulfilled she shall not be permitted to live in the matrimonial home. As a result his sister came back and again on 24.04.1995 the complainant was sent back after the compromise was made by the police of Police Station Anand Parvat.
He stated that during the stay of the complainant at her matrimonial home the accused falsely filed a case u/s 9 HMA which was dismissed as the complainant was residing in the matrimonial home. He stated that on 27.08.1995 his sister told their neighbour that beating was given and she feel danger to her life. Thereafter PW5 along with some persons and police visit the matrimonial State Vs. Rajiv Bakshi etc. 14 home of complainant and brought her back without any valuable and wearing clothes. The complaint was thereafter made at CAW Cell and part recovery was made on 19.12.1996 vide seizure memo Ex. PW1/A. In his crossexamination he stated that around 9 tola of gold jewellery was given in marriage . He could not tell the exact weight of these articles. He stated that some of the jewellery was purchased from Panchsheel Jeweller, Krishna Nagar however rest of the jewellery he could not state from where was purchased. He thereafter stated that he can produce the receipts of purchase. The matter was deferred on request and was again fixed for evidence however subsequently in further crossexamination held on 28.09.2001, the witness showed his inability to produce the receipt as he claimed that the same was not traceable.
He again claimed that after around 34 months of marriage the demand of Rs. 25,000/ was made somewhere in the month of June/July. The suggestion that no such fact was told to him by the complainant herself was denied. He stated that an amount of Rs. 20,000/ was given by his mother to complainant Sarita in his presence when the complainant along with accused husband visited them. He stated that the amounts were arranged from the brothers of her mother. He claimed that he does not remember that the aforesaid fact was told to the police along with the date, month and time.
He stated that the complainant had come around 24 days before his marriage. He stated that it is possible that she may have come along with her husband Rajiv Bakshi in his marriage. It was stated that she had brought few clothes and no jewellery was brought by her. The suggestion to the contrary was denied. It was denied that the accused have been falsely implicated. The suggestion State Vs. Rajiv Bakshi etc. 15 that the petition under Section 9 was filed by the accused at the time when the complainant was living at her parents' home was denied. It was denied that the complainant did not suffer any injury on 27.08.1995. He further stated to have told the police while the statement under Section 161 that he had informed to the police about the fact that complainant had told their neighbours qua the danger of her life. Rest of the suggestions were denied.
I.O. appeared as PW6 however he was not completely cross examined.
S.I. Inquiry Officer Rammo Devi appeared as PW7. She exhibited the statement of complaint dated 13.03.1996, 1.10.1996, 08.10.1996, 15.10.1996, 22.10.1996 as Ex. PW7/B1 to Ex. PW7/B5 bearing her attestation at point A. She also recorded the statement of accused on the aforesaid dates which were Ex. PW7/C1 to C4. She stated that after completion of the inquiry she tendered her recommendation vide Ex. PW7/D. The proceeding sheet was Ex. PW7/E. In cross examination she admitted that in her proceedings she had mentioned that the husband was ready to take the complainant whereas the complainant herself was not ready to go. In her further crossexamination she admitted that the accused persons had produced istreedhan articles in the CAW Cell but the complainant refused to accept the same. She volunteered that since the jewellery articles were incomplete the complainant refused to accept them. Subsequently the statement of accused persons was recorded u/s 313 Cr.P.C. in which they pleaded innocent and alleged to have been falsely implicated. The opportunity of defence evidence was granted.
State Vs. Rajiv Bakshi etc. 16 Mr. Dhan Kumar appeared as DW1 who claimed that the bone of contention between the parties was that complainant wanted to reside with her parents and her treatment towards the accused was not proper however in his crossexamination he admitted that he does not have any knowledge of personal matters of the accused though he claimed that the accused have been falsely implicated at the instance of complainant who wanted her husband Rajiv to be a Ghar Jamai.
After completion of the aforesaid proceedings matter was kept for final arguments. Detailed arguments were submitted by both sides. I have heard the same and have carefully gone through the record. It be observed that it is argued by Ld. APP that the case is made out for the conviction of accused as prosecution has discharged the liability of proving the same beyond reasonable doubts, however I am not in agreement with the arguments made as it be observed that despite taking an opportunity for trial subsequent to framing of charge and proceedings of material witnesses including complainant, her parents, her daughter and inquiry officer no specific date, day, month or time has been given when the complainant was subjected to the acts of mental or physical cruelty at the hands of the accused. In all the statements including that of the complainant and her parents nowhere any date, day, month is specifically mentioned though it is vaguely alleged that the complainant was incessantly treated with beatings by all the accused persons including Nanand which is admitted to have been married before the marriage of complainant and living at a distance of more than one thousand kilometer away at Patna. Nowhere it is disclosed as on which occasion the said Nanand Pooja happens to have visited the house of complainant and during which of her visits she made a demand and or subjected the complainant to beatings.
State Vs. Rajiv Bakshi etc. 17 Similarly no date, month or time is mentioned when the demand of Rs. 20,000/ is stated to have been made. The complainant alleged that the demand was made within a few days of her marriage whereas the said statement was contradicted by the statement of PW3 Inderraj who claimed that the demand was made after around 23 months of her marriage till when she was treated properly. Similarly her statement has been contradicted the other two statements made by PW4 Durga Devi who claimed that the demand of Rs. 20,000/ was made after about 67 months of the marriage of complainant and by her brother Sanjay Bakshi PW5 who claimed that after around 45 months of marriage of complainant the amount of Rs. 20,000/ was demanded. There is no consistency in the alleged time when the demand of Rs. 20,000/ is made.
The complainant has not been able to corroborate the allegation qua fulfilment of demand when the said demand was fulfilled in view of the fact that none of the witnesses has categorically come up about the same. The complainant stated that she handed over the amount of Rs. 20,000/ to her inlaws though she did not provide any date or month when the amount was handed over. In the statement of PW3 Inderraj it is claimed that an amount of Rs. 20,000/ was given by the father PW3 herein whereas Smt. Durga Devi PW4 uttered that the amount of Rs. 20,000/ was arranged by her from her brothers and she gave the amount of Rs. 20,000/ to her daughter. In the crossexamination PW3 could not even specify when the amount of Rs. 20,000/ was given he could not tell the source of his income and even denied the suggestion that he was earning an amount of Rs. 1,000/ per month at the time of marriage of complainant.
State Vs. Rajiv Bakshi etc. 18 None of the witnesses have been able to state the source of the arrangement of the amount of Rs. 20,000/. Though it is claimed by PW4 & PW5 that an amount of Rs. 20,000/ was got from the brothers of PW4 no such fact is mentioned by either of the witness before the police during investigation and or inquiry and no effort has been made by I.O. to produce the brothers of PW4 as witnesses as it is only they who could have corroborated the said fact. In the absence of the aforesaid the averment that an amount of Rs. 20,000/ was arranged and was handed over to complainant remains unproved for want of even the requisite details.
The complainant as well as other witnesses also could not specify when the amount of Rs. 25,000/ was demanded. The petitioner did not hand over the copy of the proceedings u/s 9 HMA and the Order and the I.O. did not make any effort to investigate qua the proceedings of Section 9 HMA which have been alleged to have been falsely made by the accused despite the complainant living with him. It is admitted that the summons of section 9 HMA petition were received. The fact that the accused Rajiv lived at the parents home of the complainant is admitted by PW3 Inderraj when he stated in crossexamination that "I do not know if Rajiv lived at our house for about 3 months on that occasion". Being father of complainant he happens to be a material witness and in view of the vague denial which otherwise indicates to the admission of the fact that the accused in fact lived with the complainant at her parents home and subsequently came back only after being insulted by the complainant and thereafter filed the petition u/s 9 appears to be the logical conclusion of the proceedings and the allegation that petition u/s 9 has been falsely made is traversed by the aforesaid proceedings.
State Vs. Rajiv Bakshi etc. 19 Similarly the statement of the complainant that she alone attended the wedding of her brother is contradicted by the brother of complainant who uttered that "it is possible that she might have come with her husband Rajiv Bakhsi." He also could not stated as who other from the side of the accused had attended the wedding whereas the fact that marriage was attended by all in laws has been admitted by PW3 father of complainant.
The complainant lastly alleged that as she feared for her life she made a call to her parents who in turn came and took her back to the matrimonial home. In examinationinchief she stated to have made a call to her neighbiour. She could not disclose the name of the neighbour to whom she had made such call and or the telephone no. at which the call is made. Her brother PW5 herein also stated to have received the information from the neighbour however the name of neighbour remained undisclosed and his statement and no such neighbour is even cited by the prosecution as a witness in the absence of which the allegations made by the complainant have not been duly corroborated.
The complainant though alleged to have written the letter to her mother, did not produce the same in her examination, cross examination. The mother of the complainant produced the alleged letters written by the complainant as PW4/A & B. Nowhere she identified the handwriting of the complainant nor she could state even the date, month or year of her receiving the letters. The prosecution did not disclose any reason for not getting the letters proved through complainant who herself was a witness of this case. The authenticity of the letters remained doubtful and State Vs. Rajiv Bakshi etc. 20 could not be established for want of the aforesaid the complainant could not establish the allegations on the basis of which charge u/s 498A IPC was framed. The complainant in fact went on to make improvements in her earlier statement by alleging that she was harassed by the accused who did not provide milk for the child and that she was made to sign on blank papers without specifying any time, date, month or year of the alleged happenings. The aforesaid facts have also not been mentioned in her complaint Ex. PW1/A on the basis of which the FIR was registered for unexplained reasons. In view of the aforesaid discussion and in view of judgements of Ashok Vishnu Davare Vs. State of Maharashtra (SC) 2004 (1) JCC 493 and Badruddin Vs. State of Maharashtra (SC) 1981 Cr.L.J. 729, I am of the opinion that charge u/s 498A is not established by the prosecution.
As regards the offence for which accused are charged u/s 406 IPC the testimony of PW7 Inquiry Officer is significant. It is specifically stated by Inquiry Officer in her inquiry proceedings Ex. PW7/E that the accused has produced the articles during the CAW proceedings but the complainant refused to accept the same. Merely that the articles was allegedly incomplete no right accrued to complainant to refuse acceptance of rest of the articles. It is apparent that the articles were refused only with the intention to get the accused charged under the offence of 406 IPC. Further the complainant could not produce any receipt of the articles which are mentioned in the list to establish any ownership. There is no specific statement regarding the entrustment in favour of any of the accused. In such circumstances, as none of the ingredient of Section 405 IPC is State Vs. Rajiv Bakshi etc. 21 established, reliance on SUKHBIR JAIN & ORS. V/S STATE 1993 JCC 91 I am of the opinion that the offence u/s 406 IPC is not proved. Accused deserve to be acquitted and are accordingly acquitted.
Announced in the open
on 15.03.2008 (NIRJA BHATIA)
Metropolitan Magistrate
KKD COURT, DELHI
State Vs. Rajiv Bakshi etc.