Delhi District Court
Fir No. 38/13;Ps H.N. Din State vs . Himanshu Jawa. Page 1 Of 14 on 9 January, 2019
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila Court (SouthEast), Saket Courts, New Delhi.
FIR No: 38/2013
PS: H.N. Din
U/s : 498A IPC
State v. Himanshu Jawa
JUDGMENT
Date of institution : 01.07.2014
Cr.C No. : 93918/2016
Name of the complainant : Natasha Gogna
D/o Late Sh. Satpal Gogna
R/o 35/1, Pant Nagar, Jangpura,
New Delhi.
Name & address of the accused : Himanshu Jawa
S/o Sh. Sunder Lal Jawa
R/o A245, Kalkaji, New Delhi.
Offence Complained of : U/s 498A/406 IPC
Offence Charged of : U/s 498A IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted.
Date of arguments : 09.01.2019
Date of announcing of order : 09.01.2019
FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 1 of 14
BRIEF FACTS:
1. Brief facts of the case are that since the marriage of the complainant Natasha Gogna with accused Himanshu Jawa, he subjected the complainant to cruelty and harassed her for bringing less dowry and committed cruelties upon her.
2. As per the complaint of the complainant, she was married to the accused on 12.02.2010 at Delhi. After marriage, she alongwith accused lived in her matrimonial house at H.No. A245, Kalkaji, New Delhi for 15 days and thereafter, she went to Canada to manage sponsorship for her husband and the same was successfully done and thereafter, she came back to India to take the accused to Canada. When she had returned she had stayed with accused for three months in the aforesaid matrimonial house. During that time, she was asked to arrange dowry by her family, but she never informed, despite she was physically and mentally tortured by the accused. She alongwith accused went to Canada on 16.08.2010, however, behavior of the accused changed towards the complainant as he was often tortured and misbehaved with her and demanded Rs.40 lakhs from her. Further, due to the aforesaid torture she filed her complaint with the police in India upon her return.
3. Pursuant to this complaint dated 21.07.2012 against the accused, FIR was registered on 02.02.2013 and the matter was investigated. Charge sheet was filed on 01.07.2014. The Court took cognizance of offence and summoned the accused u/s 498A IPC. Charge was framed against accused FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 2 of 14 persons u/s. 498A IPC. Accused Himanshu Jawa pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead. Statement of the accused Himanshu Jawa was recorded u/s 294 Cr.PC and copy of FIR was Ex. A and rukka was Ex. B.
4. In order to prove its case, prosecution examined three witnesses:
PW1 Poonam (sisterinlaw of complainant) deposed that complainant got married to accused Himanshu Jawa on 12th February. However, she did not remember the year of marriage. After marriage, complainant alongwith accused Himanshu Jawa stayed in Delhi for about 15 20 days and thereafter, complainant went back to Canada and accused remained in India for about 56 months and thereafter, went to Canada. The marriage was performed as per Hindu rites and rituals at Chattarpur Farms.
She deposed that both the parties lived together with her inlaws in Canada. The parents of the complainant were already residing in Canada prior to the marriage of complainant with the accused. Thereafter, some problems arose between the complainant and accused. There was some communication problem between the parties. While their cohabitation at Canada when accused received his permanent residency card, both the complainant and accused started residing separately in Canada and accused left the company of complainant to live separately almost for six months. Thereafter, they got in touch with the family of accused persons and asked them to intervene for settlement between both the parties and complainant and accused were called back from Canada to India. Thereafter, after several family meetings, matter FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 3 of 14 could not be settled between the parties. Subsequently, both the parties filed cases against each other in India. As per her knowledge, both the parties sought divorce in Canada court and they were presently residing separately for past three years. Complainant had informed her that accused was not supported towards family because of which there were differences between them.
Upon being asked leading questions PW1 deposed that it was correct that he was informed by complainant that within 56 months of her marriage, accused and his family members had started taunting the complainant to bring more dowry. She was told regarding the same when complainant visited India. She did not remember if complainant had told her that accused had demanded Rs.10 lakhs from her since he wanted to purchase a house in Canada. It was wrong to suggest that she was told by the complainant regarding the aforesaid fact. It was correct that initially, they did not file any complaint against the accused since they wanted to save the marriage of complainant. She deposed that to her knowledge, complainant got married on 12.02.2010. Police had inquired about the matter from her and recorded her statement.
During crossexamination on behalf of accused, PW1 deposed that her marriage was solemnized in the year 1994 with Deepak Gogna (brother of the complainant). She deposed that she was married but inadvertently the name of her husband Sh. Deepak Gogna was not mentioned in her examination in chief. There was good relation with complainant Natasha and her parental family members. It was correct that there was no dowry demands FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 4 of 14 made by accused persons as well as his family members prior to the marriage with complainant. However after marriage they started demanding dowry. She did not remember the exact date of aforesaid demand. It was correct that her parents inlaws were green card holder of Canada. It was correct that when the accused Himanshu Jawa went to Canada after marriage and started residing there with his wife and inlaws and complainant made a phone call to her from Canada that she had been harassed by accused Himanshu Jawa for demanding money as he wanted to purchase a house in Canada. It was wrong to suggest that accused Himanshu had never demanded aforesaid money as a dowry and he was falsely implicated in the present case. She and her family members had made several requests to accused Himanshu to come back India from Canada to settle the matter between him and the complainant and thereafter, upon several requests made to him, he came back India. There was several meetings conducted between family member of the complainant and family member of accused but accused was not ready to settle the matter. As per she heard from complainant that the divorce between complainant and accused Himanshu was done in Canada. In the family meetings she did not remember the exact date, month and year, accused Himanshu had misbehaved with complainant. It was wrong to suggest that accused was falsely implicated in the present case.
PW2 SI Sanjay (first IO) deposed that on 02.02.2013, he was posted at PP Jangpura, PS H.N. Din, New Delhi and the further investigation of the present case was marked to him by SHO concerned after registration of FIR. During investigation, he had collected the original rukka Ex.PW2/A, copy of FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 5 of 14 FIR, documents supplied from CAW cell, Sriniwaspuri and the same were analyzed and after discussion with senior officer, further line of investigation was decided. Thereafter, he had interrogated complainant/ victim Natasha Gogna and he recorded her supplementary statement u/s 161 Cr.P.C and another statement on 11.02.2013 Ex.PW2/B. Thereafter, he also interrogated other witnesses namely Sushil Gogna and Poonam Gogna and recorded their statements on 11.02.2013 Ex.PW2/C and Ex.PW2/D. Thereafter, he also appeared before the sessions court during the anticipatory bail application of the accused. He had also applied for approval of arrest of accused Himanshu Jawa vide application dated 12.02.2013 which was Ex.PW2/E. During investigation, it came to his knowledge that alleged accused was having ten years Visa from Canada and the same was intimated to FRRO to give prior intimation to him whenever the accused exited India. Thereafter, he was transferred from the aforesaid Police station and the file was handed over to MHCR. He correctly identified the accused.
During crossexamination on behalf of accused, PW2 deposed that he had not filed the chargesheet. It was wrong to suggest that few documents of the proceedings held in CAW Cell were missing and entire documents were not on record. He had not conducted investigation in Canada regarding present case but he had interrogated the complainant and recorded her statement u/s 161 Cr.P.C. It was wrong to suggest that he had not conducted investigation fairly. He had not collected any of the medical certificate of the complainant and Canada police report of dt. 05.05.2012 incident from the FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 6 of 14 complainant. Apart from statements of the witnesses he had not collected any evidence regarding injuries on body of the complainant.
PW3 SI Nanak Chand (Second IO) deposed that on 06.03.2013, he was posted at PS H.N Din as ASI. On that day, present case was marked to him for conducting pending investigation. During investigation, he inquired the complainant and asked her to produce the documents pertaining to cruelty committed upon her by the accused, complainant handed over him one police report of Canada and medical report which he seized vide seizure memo Ex.PW3/A. The police report and medical documents were marked as Mark P3. He deposed that on 08.03.2013, accused Himanshu alongwith his parents namely Sunder Lal Jawa and Smt. Prem Jawa came to PP Jangpura alongwith istridhan in compliance of order of the Court. He collected the admitted istridhan vide handing over memo Ex.PW3/B. Photographs of the istridhan articles returned to the complainant was mark P3/1. He collected the disputed articles and seized vide seizure memo Ex.PW3/C and thereafter, deposited the same in malkhana. On 29.03.2013, accused produced two gold articles and Rs.45,000/ before the Court and handed over the same to the complainant. He deposed that on 31.03.2013, he formally arrested the accused Himanshu vide arrest memo Ex.PW3/D and his personal search was conducted vide personal search memo Ex.PW3/E. During investigation, he was transferred and he deposited the case file with MHC (R). He correctly identified the accused present in the Court.
During crossexamination on behalf of accused, PW3 deposed that he had not got verified police report and medical record Ex.PW3/A. He had FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 7 of 14 not conducted investigation in Canada. He had not examined any eye witness pertaining to the cruelty. It was correct that no allegation of cruelty was substantiated during the investigation against parentsinlaw of the complainant. It was correct that no other eye witness was examined apart from the complainant regarding cruelty committed upon the complainant by the accused Himanshu Jawa. He had not conducted investigation from the members of CAW Cell. It was wrong to suggest that he had not conducted investigation fairly. It was wrong to suggest that he was deposing falsely.
5. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
6. Accused persons did not examined any witness in their defence.
7. It is argued by learned APP for State that in the present matter the complainant by her complaint Ex. PW2/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 could not step in the witness box as she was not traceable, PW1 Poonam Gogna being the relative of the complainant has deposed on the lines of the complaint Ex. PW2/A and therefore accused is liable to be convicted.
FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 8 of 148. 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 was never examined by the prosecution and was found untraceable and subsequently dropped form the list of witnesses. He has further argued that in the present matter since the complainant was not examined, her complaint does not stand proved and PW1 examined by the prosecution has herself stated during her crossexamination that no dowry was demanded before marriage by the accused. Further, PW1 is only a hearsay witness as she was never present when the alleged incidence of harassment or torture was committed with the complainant. Further, apart from PW1, remaining witness examined by the prosecution are formal in nature. He further submits that the complainant has already sought a divorce from accused in Canada and therefore the complainant purposely did not appear before the Court only with intention to harass the accused and therefore no incriminating evidence has come on record against the accused and accordingly he is liable to be acquitted.
9. 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 IPC :
(i) The case of the prosecution rests on the assertion that after the marriage of the complainant with accused on 12.02.2010 she lived with the accused till FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 9 of 14 June 2012 and thereafter she filer her complaint with the police on 21.07.2012. Further, that almost during one 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 12.02.2010 and thereafter, she remained with accused in Delhi as well as in Canada till June 2012. Accused has denied the allegations of cruelty or harassment or demanding of dowry and raised manifold defences.
(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. As per complaint Ex. PW2/A, the complainant lived with the accused for first 15 days of her marriage at H. No. A245, Kalkaji, New Delhi and thereafter both the parties started residing together in Canada and occasionally visited India. It is further argued that even the contents of the allegations of complaint have not been proved as the complainant has not been examined and the remaining witnesses are formal in nature. The allegations in the aforesaid complaint have not been reiterated in the testimony of PW1. It has also come in evidence in the testimony of PW1 that she came to know regarding the alleged incidence only through the complainant and was never present when the alleged incidence occurred.
FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 10 of 14(iii) Further it is observed that the contents upon complaint Ex. PW2/A are not reiterated by her bhabhi as PW1. Further in the present matter, prosecution had examined only three witnesses and complainant, PW Sushil Gogna being the mother of the complainant, PW Jitender Gogna being the father of the complainant and public witness G.D. Batra (since had expired) were never examined by the prosecution and the only public witness examined by the prosecution was PW1 who being the relative of the complainant was an interested witness. Further, PW1 had admitted during her crossexamination that she did not remember the exact date of any demand and she further admitted that she did not remember the exact, date month or year when the accused had misbehaved with the complainant. Credibility of such an allegation 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.
FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 11 of 14(v) Further, as per complaint Ex.PW2/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. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 12 of 14 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. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 13 of 14 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) 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.
(x) 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 Himanshu Jawa is accordingly acquitted of offence U/s 498 A IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 09.01.2019 Digitally signed
Metropolitan Magistrate,
by SHEETAL (Mahila Court02), SouthEast,
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN Saket, New Delhi.
PRADHAN Date:
2019.01.10
17:01:44 +0530
FIR No. 38/13;PS H.N. Din State Vs. Himanshu Jawa. Page 14 of 14