Delhi District Court
Fir No. 341/2014 State vs . Sonu Pathak & Anr. Ps Oia 1 Of 12 on 11 January, 2019
In The Court Of Ms. Sheetal Chaudhary Pradhan: Metropolitan
Magistrate02 (Mahila Court), SouthEast, Saket Courts:New Delhi
State v. Sonu Pathak & Anr.
FIR No. 341/2014
U/s: 498A/406/34 IPC
P.S Okhla Industrial Area
JUDGMENT
Date of Institution : 27.08.2016
Criminal Case No. : 96983/2016
Name of the complainant : Kanchan Pathak
D/o Sh. Vishwa Mitra,
W/o Sh. Kanchan Pathak,
R/o H. No. 883, Adhyapak Nagar,
Nangloi, New Delhi.
Name & address of the accused : 1. Sonu Pathak,
S/o Sh. Om Prakash Pathak,
R/o H. No. 883, Adhyapak Nagar,
Nangloi, New Delhi.
2. Kalindi Pathak,
W/o Sh. Om Prakash,
R/o H. No. J12, Third Floor,
Adhyapak Nagar, Nangloi, New Delhi.
Offence complained of : U/s 498A/506/406/34 IPC
Offence charged of : U/s 498A/406/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of arguments : 11.01.2019
Date of announcing of order : 11.01.2019
FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 1 of 12
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
1. Brief facts of the case are that complainant got married to accused Sonu Pathak on 25.04.2008. Further, that after marriage her husband was working in a shoe factory but did not give any financial assistance or maintenance to the complainant and did not take care of the minor children and would give away all his salary to his mother. Further, accused Sonu Pathak was instigated by his family members as they wanted accused Sonu Pathak to solemnize another marriage and did not wish the complainant to reside with accused Sonu Pathak. Further, complainant was taunted by her motherinlaw that she belonged to a low caste family and on several occasions demanded dowry from her and when complainant refused, she was given beatings by fists and blows. On one occasion, father of accused Sonu Pathak in connivance with accused Sonu Pathak even tried to strangulate the complainant and when complainant filed a complaint, they both apologized and promised to keep the complainant properly. When the complainant was blessed with her second child (daughter), all the family members of the accused persons started harassing the complainant for giving birth to a girl child and they again started demanding dowry from her. Further, that her father had spent a huge amount in her marriage, more than his capacity and had given Rs. 10,000/ in cash to accused Sonu Pathak. Further, all her jewelery articles were kept in possession by her motherinlaw. Further, the accused Sonu Pathak would neglect her and not give her day to day expenses and on several occasions she had been given several beatings by accused FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 2 of 12 Sonu Pathak and he had also taken loan from the parents of the complainant and she had been shunted out her house by accused Sonu Pathak. She had further stated in her complaint that she wanted to save her marriage and wanted to live with the accused and only wanted that accused Sonu Pathak should realize his responsibility towards the minor children and the complainant.
2. Pursuant to this complaint of October 2013, FIR was registered on 15.05.2014 and the accused Sonu Pathak and Kalindi Pathak were summoned. Charges framed against the accused persons for the offences punishable under section 498A/406/34 IPC, to which accused persons pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined only one (01) witness during trial: PW1 complainant/victim deposed that she was the complainant in the present matter. She did not wish to pursue the matter since she was residing with her husband i.e. accused Sonu Pathak for the past two years. She was having two children aged eight years and six years who were also residing with her and now the accused was keeping her peacefully. She had no complaints with the accused at present. Earlier, she had filed her complaint Ex. PW1/A bearing her signatures at point A against the accused since at that time, accused had not treated her well upon the birth of her girl child and had asked her to leave the matrimonial house. Accused Kalindi FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 3 of 12 Pathak was also keeping her peacefully and was residing separately from them for past two years. She did not wish to pursue her present matter as she wish to live with the accused persons peacefully now. The photograph of marriage were Ex. PW1/B (colly 13). Further, that she had deposed truly and voluntary after understanding the consequences in Hindi. She wanted to finish the present case filed by her against the accused persons.
Thereafter, the witness was crossexamined by Ld. APP as she was resiling from her previous statement recorded u/s 161 CrPC. During crossexamination on behalf of Ld. APP for State PW1 / complainant deposed that the contents of complaint Ex. PW1/A were correct but she was not willing to pursue the present matter.
Opportunity to crossexamine PW1 was granted to the accused but he did not question anything to the witness.
4. The statement of the accused was recorded u/s 294 CrPC and copy of FIR was Ex. A, Rukka was Ex. B and record pertaining to CAW Cell and final report was Ex. C. Further, CW Nirmala Devi was dropped from the list of witnesses as she had expired.
5. Prosecution had cited about seven witnesses in all and among them PW1 complainant was the star witness/complainant and the victim in the present matter but she did not depose on the lines of her complaint and were declared hostile as she did not support the story of prosecution.
FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 4 of 12 Further, remaining public witnesses included only the parents of the complainant and even the mother of the complainant were dropped from the list of witnesses as she had already expired and no other public witness was the eyewitness to the incident narrated by the complainant in her complaint and only police witnesses were left. Therefore, PE was closed.
6. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was dispensed with as nothing incriminating came on record against the accused persons.
7. No defence witness was examined on behalf of the accused persons.
8. Complainant was the only material prosecution witness. She was declared hostile. In the absence of any incriminating evidence against the accused revealed from the testimony of the complainant, there was no purpose in examining the remaining formal witnesses. Since the material eye witnesses of the incident did not depose on the lines of her complaint, there was no chances of further improvement in the case of the prosecution even after examining the remaining witnesses. Therefore, PE was closed in order to save the precious time of the court as well as harassment to the accused. Final arguments were advanced from both sides.
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9. It is argued by learned APP for State that in the present matter the complainant by her complaint Ex. PW1/A have levelled specific allegations against the accused of torturing her after marriage and demanding money and dowry on one pretext or the other and also of harassing her. He has argued that even though the complainant has started living with the accused, the offence against the accused persons is still made out and both accused persons are liable to be convicted, as the contents of complaint Ex. PW1/A stands proved against the accused persons.
10. On the other hand, it is argued by the learned counsel for the accused that in the present matter the star witness of the prosecution was the complainant, however, she has already stated that she is not willing to pursue the matter against the accused persons and has been living with the accused for past 23 years and both the parties are peacefully residing. He has further argued that there is no other witness who has testified against the accused persons and the mother of the complainant has already expired. He has further argued that in the present matter since the complainant has been examined, but has not deposed anything on the lines of her complaint, no offence is proved against accused persons and the complainant herself has been cross examined by the prosecution and therefore accused persons are liable to be acquitted. Further, apart from PW1, remaining witness cited by the prosecution are formal in nature. He further submits that the complainant has already stated that she is residing with the accused persons and therefore no FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 6 of 12 incriminating evidence has come on record against the accused and accordingly they are liable to be acquitted.
11. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
Observations qua offence u/s 498A/406/34 IPC :
(i) The case of the prosecution rests on the assertion that after the marriage of the complainant with accused on 25.04.2008 she lived with the accused till the year 2014 and thereafter she filer her complaint with the police in Ocotber 2013 and FIR was registered on May 2014. Further, that almost during six and a half year of the marriage between the parties, complainant was subjected to physical and mental cruelty on account of failure by her to meet unlawful demands of dowry raised by the accused. It is admitted by the accused that the marriage between the parties were solemnized on 25.04.2008 and thereafter, she remained with accused in Delhi.
(ii) It is the foremost defence of the accused that the prosecution has miserably failed to prove its allegations of cruelty of any nature upon the complainant by the accused and since both the parties are presently residing together, no offence is made out against the accused persons and accused persons are liable to be acquitted. It is further argued that even the contents of the allegations of complaint have not been proved as the complainant has FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 7 of 12 been examined and has turned hostile and the remaining witnesses are formal in nature. The allegations in the aforesaid complaint have not been reiterated in the testimony of PW1.
(iii) Further it is observed that the contents upon complaint Ex. PW1/A are not reiterated by her. Further in the present matter, prosecution had examined only one witness i.e. the complainant and PW Nirmala Devi being the mother of the complainant had already expired and was not examined by the prosecution. Further, PW1 had admitted during her crossexamination that she did not wish to pursue the present matter as she has been living with the accused peacefully. Credibility of such allegations is also dubious for the reason that there is not even any averment made by the complainant against the accused of having committed cruelty for demand of dowry which could lead the complainant to commit suicide.
(iv) It has been asserted by the complainant that there were demands made by the accused, however, there is no specification of the amount of cash demanded by the accused or his family members after few days of marriage or even the amount paid by the complainant to the accused in fulfillment of any of his demand. The allegation of demand are unspecified and also obscure. As such, the allegations of demand of dowry by the accused lack credence.
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(v) Further, as per complaint Ex. PW1/A there is no specification of the manner in which the complainant was mentally or physically harassed by the accused or his family. The complaint as well as testimony of PW1 is silent on the specific date, month, year, event or occasion of any beating given to the complainant by the accused or the manner of such beating i.e. slapping, kicking, keeping her without food for days etc. Admittedly, the complainant did not lodge any complaint regarding any such alleged beating or harassment prior to the present complainant and are, therefore ambiguous and vague.
(vi) Further, there is neither any averment nor any piece of evidence in the form of a medical report or otherwise, to draw a logical inference of such a threat to be of a nature likely to have driven the complainant to commit suicide or caused grave injury or danger to her life limp or health. In absence of any assertion to this effect, it cannot be assumed that such a threat or alleged callous or indifferent behavior of the accused was with a view to coercing her to meet any demand for property or valuable security or on account of her failure to meet such demand. Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : ".....Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
Explanation (b) to Section 498A provides that cruelty means harassment of the woman where such harassment is FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 9 of 12 with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the Section...."
(vii) Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, wherein Hon'ble Bombay High Court observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands. Hon'ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 10 of 12 reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section 498A IPC.
(viii) Even the allegations that the accused used to gave beatings to the complainant have not been corroborated by any reliable piece of evidence. There are discrepant statements regarding the allegations levelled by the complainant against the accused. Therefore, the allegations levelled by the complainant are discrepant and devoid of specific details and as such does not inspire confidence of the court.
(ix) Since the material prosecution witness/victim was declared hostile and none of the public witnesses supported the story of prosecution, therefore, the prosecution is miserably failed to establish the charge U/s 498A/406/34 IPC.
(x). The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 11 of 12 guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
(xi) Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted.
(xii) As such there is no convincing evidence on record to believe the allegations of the prosecution regarding commission of offence u/s 498A IPC. Accused Sonu Pathak and Kalindi Pathak are accordingly acquitted of offence U/s 498A/406/34 IPC.
12. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, both accused persons are acquitted for the offences U/s 498A/406/34 IPC.
Announced in Open Court (Sheetal Chaudhary Pradhan) On 11.01.2019 (Metropolitan Magistrate02,(Mahila Court), SouthEast, Saket, New Delhi.
Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY PRADHAN PRADHAN Date:
2019.01.11 16:59:04 +0530 FIR No. 341/2014 State Vs. Sonu Pathak & Anr. PS OIA 12 of 12