Delhi District Court
33. In The Case Of Anu Gill vs State 92 (2001) Delhi Law Times on 27 July, 2018
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-01,
MAHILA COURT, CENTRAL: DELHI
1. FIR No. 117/2016 PS Chandni Mahal
2. Case No. 306594/2016
3. Title State v. Mohd. Nasir
3(A) Name of complainant Sayyed Anjum Farid, S/o late Sh.
Sayyed Nawab Ali, R/o H.No. 2087,
Kucha Challan, Chandni Mahal,
Darya Ganj, Delhi.
3(B) Name of accused person Mohd. Nasir, S/o Late Mohd.
Suleman, R/o H. No. 1051, Gali
Madarsa Hussain Baksh, Jama
Masjid, Delhi.
4. Date of filing of charge- 09.09.2016
sheet
5. Date of Reserving Not reserved. Pronounced on the
judgment same day.
6. Date of pronouncement 27.07.2018
7. Date of alleged 14.05.2016
commission of offence
8. Offence complained of Under Section 4 of the Dowry
Prohibition Act 1961 and Section
406 IPC
FIR No.117/2016 State v. Mohd. Nasir Page 1 of 18
9. Offence charged with Accused Mohd. Nasir is charged for
the offences punishable Under
Section 4 of the Dowry Prohibition
Act 1961 and Section 406 IPC.
10. Plea of the accused Pleaded not guilty
persons
11. Final order Accused Mohd. Nasir is convicted
for the offence punishable Under
Section 4 of the Dowry Prohibition
Act 1961 and is acquitted from the
offence punishable under Section
406 IPC.
BRIEF REASONS FOR THE DECISION OF THE CASE:-
"Any young man, who makes dowry a condition to marriage, discredits his education and his country and dishonor womanhood"
-Mahatma Gandhi.
Dowry is one of the most pertinent social evil, which had engulfed Indian society. This evil had encompassed within its purview every section of Indian population irrespective of caste, creed, religion, region and community. Such deep roots exists of this menace that despite enactment of various stringent penal laws the tentacles of this evil still appear writ large. It not only causes financial burden upon the bride's FIR No.117/2016 State v. Mohd. Nasir Page 2 of 18 family but also makes the girl child unwanted and considered as a burden. It is one of the predominant factor which had given rise to further evils of dowry deaths, cruelty to a married woman, domestic violence and female infanticide and foeticide. The newly wed brides are made to suffer because of dowry demands. At times the marriages fixed are also broken because of this evil which further cause emotional distress and societal ridicule for the girl and her family. It is the need of hour to curb and eradicate this evil from our societal fabric.
Prosecution case in brief:
1. FIR Ex. PW-2/A was registered on 15.05.2016 on the complaint of complainant Sayyed Anjum Farid against accused Mohd. Nasir.
It was complained by the complainant by way of his complaint Ex. PW-1/A dated 15.05.2016, that he alongwith his uncle Sh. Islamuddin had fixed the marriage of his sister Ms. Shahima with the accused. They had informed the accused that Shahima was a divorcee and had a minor daughter aged 8-10 years from her previous marriage. Accused had agreed for marriage. On 12.05.2016, he had sent, as dowry articles, one old iron almirah, two old sandooks, one blanket, one glass dinner set, one plastic dinner set, ten bronze utensils, ten steel utensils, five suits, five bed sheets and one steel dinner set at the house of accused Nasir. There the accused alongwith his two relatives was present. He had handed over those articles to the accused. He FIR No.117/2016 State v. Mohd. Nasir Page 3 of 18 had told them to keep the said articles and had further said that they would give other articles later on. On 14.05.2016, he received a phone call of accused Nasir wherein the accused demanded a motor cycle and Rs. 1 lakh in marriage on the ground that his sister had one small daughter as well, who has to be maintained. The accused further laid down the condition that if the demand is not fulfilled, the accused would not marry his sister. When he told him that he does not has the financial capacity to give Rs. 1 lakh and motor cycle, accused Nasir refused to marry his sister Shahima and stated that he can get his sister Shahima married somewhere else and the accused is not ready for marriage. Thereafter, on 14.05.2016, he got his sister Shahima married to one Mobin.
2. It was further complained by the complainant that accused had refused to marry his sister as he could not give Rs. 1 lakh and motor cycle to the accused in dowry. It was further complained by him that the accused had also not returned the dowry articles.
Investigation Conducted:
3. On the complaint of the complainant, FIR under sections 498-A and 406 IPC was registered. The matter was investigated. Statement of witnesses were recorded. Accused was interrogated and was bound down. Dowry articles were seized from the FIR No.117/2016 State v. Mohd. Nasir Page 4 of 18 accused, as per the list given by the complainant and were handed over to the complainant on the spot. Statement of sister of complainant was also recorded wherein she stated that after the accused refused for marriage, her brother and uncle on the same day got her married to Mobin. After investigation, section 4 of Dowry Prohibition Act was added in the present case and section 498-A IPC was removed.
Trial proceedings:
4. Charge sheet was filed before the Court on 09.09.2016. Cognizance was taken of the offences and summons were directed to be issued to the accused. After hearing arguments on the point of charge, charge for the offences punishable under section 406 IPC and section 4 of the Dowry Prohibition Act was framed against the accused to which he pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case against the accused in total had examined as many 6 witnesses. PW-1 Shri Sayyed Anjum is the complainant, PW-2 ASI Rafeek Deen is the duty officer. PW- 3 Ms Saima is the sister of the complainant. PW-4 ASI Sher Ali is the first investigation officer of the present case. PW-5 SI Mohd. Usman is the second investigation officer of the present case. PW-6 Constable Ankit Kumar is the witness of investigation.
FIR No.117/2016 State v. Mohd. Nasir Page 5 of 18Prosecution evidence was closed on 24.10.2017 on submissions of Ld. APP for the State that all the prosecution witnesses have been examined.
6. Statement of accused U/s 313 read with Section 281 Cr.P.C. was recorded before the Court on 09.11.2017, wherein all the incriminating material on record was put to the accused. It was submitted by the accused that he is innocent and had been falsely implicated in the present case by the complainant in connivance with his family members. The marriage was cancelled by the complainant and his family members out of their own will. He had not demanded any dowry from the complainant or his family members nor had refused for marriage. As it was submitted by the accused that he does not wish to lead any evidence in his defence, defence evidence was closed vide order of the same date and the matter was fixed for final arguments.
7. I have heard the final arguments as advanced by the Ld. APP for State and the Ld. Counsel for accused.
Prosecution evidence:
8. PW-1 Shri Sayyed Anjum had deposed that he had arranged the marriage of his sister Shahima with accused and had informed the accused that his sister is a divorcee and has a daughter aged FIR No.117/2016 State v. Mohd. Nasir Page 6 of 18 10 years from previous marriage. The date of marriage was fixed as 14.05.2016. He and his family members gave dowry articles consisting of one second hand iron almirah, two second hand trunks, one blanket, one dinner set, 10 bronze utensils and 10-12 utensils of steel. They dropped the said articles at the house of the accused situated at Darya Ganj. On 14.05.2016, accused Nasir called and demanded one motor cycle and Rs. 1 lakh in dowry. The accused said that he was demanding the same as he would have to take care of the daughter of the sister of the witness and if the demands are not fulfilled, he would not marry the sister of the witness.
9. It was further deposed by PW-1 that as they were unable to fulfill the demand of the accused, the accused refused for marriage and stated that he can get his sister married somewhere else. Therefore, on 14.05.2016, he solemnized the marriage of his sister with one Mobin.
10. The complainant identified his signatures on complaint Ex. PW- 1/A and stated that he complained to the police on 15.05.2016. Police went alongwith him and his cousin to the house of the accused. IO seized the dowry articles at the house and prepared seizure memo Ex. PW-1/B. The articles were handed over by the IO to him in the presence of witnesses vide handing over memo Ex. PW-1/C and the list of the handing over memo is Ex. PW-1/D. FIR No.117/2016 State v. Mohd. Nasir Page 7 of 18 The witness correctly identified the accused before the Court.
11. PW-1 in his cross examination admitted that he knew accused Nasir for the last five years and was working with him in the same office at Karol Bagh. At the time when articles were delivered, only one lady was present in the house of the accused and he does not know the name of the said lady. No other family member was present in the house of the accused. He got his sister married on the same day to another person. He was told about that person by a lady named Nazima Begum. He does not know how much money was spent in the arrangement of the marriage of his sister with the accused. His uncle would be aware about the same.
12. PW-2 ASI Rafeek Deen had proved before the Court the registration of FIR Ex. PW-2/A(OSR).
13. PW-3 Ms Shahima is the sister of the complainant. She had deposed that her brother fixed her marriage with the accused on 14.05.2016. Her brother and other family members had send the dowry articles at the house of accused one day prior to marriage. However, on the day of marriage, one hour prior to the Nikah, accused Mohd. Nasir demanded one bike and Rs. 1 lakh as dowry. When her brother and family members expressed their inability to fulfill the said demand, accused denied for marriage.
FIR No.117/2016 State v. Mohd. Nasir Page 8 of 18All the preparation of marriage were done. Her brother solemnized her marriage with another person on the same day. She correctly identified the accused before the Court.
14. PW-3 in her cross examination, deposed that the accused had called on her mobile phone at 7.30 p.m. on 14.05.2016 and had denied for marriage. She admitted the suggestion that her second marriage was solemnized with her consent. She further deposed that the same was fixed by her maternal sister.
15. PW-4 ASI Sher Ali had deposed on the same lines as that of the charge-sheet. He had further deposed about preparation of rukka Ex. PW-2/C on the basis of the complaint of the complainant. He correctly identified his signatures on the complaint Ex. PW-1/A, on the seizure memo of list of articles Ex. PW-1/B and on the seizure memo and the handing over memo of the articles Ex. PW-1/C.
16. PW-4 in his cross examination deposed that complainant had given him the list of dowry articles given in marriage. He had seized those articles from the accused.
17. PW-5 SI Mohd. Usman had deposed that he had on 20.07.2016 inquired from the sister of the complainant and had thereafter FIR No.117/2016 State v. Mohd. Nasir Page 9 of 18 prepared charge-sheet and had filed the same before the Court.
18. PW-6 Ct. Ankit Kumar had deposed on the same lines as that of the charge-sheet and as that of PW-4. He identified his signature over the seizure and handing over memo of articles Ex. PW-1/C, over seizure memo of list of dowry articles Ex. PW-1/B and also correctly identified the accused before the Court.
Appreciation of law and evidence:
19. Accused Mohd. Nasir is charged for the offences punishable under Section 4 of the Dowry Prohibition Act and under section 406 IPC.
20. Section 4 of the Dowry Prohibition Act makes punishable the demand of dowry. It states that if any person demands, directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom, any dowry he shall be punishable with imprisonment for a term which shall not be less then six months but which may extend to two years and with fine which may extend to ten thousand rupees:
provided that the Court may for adequate and special reasons to be mentioned in the judgment imposed a sentence of imprisonment for a term of not less then six months.FIR No.117/2016 State v. Mohd. Nasir Page 10 of 18
21. It is a cardinal principle of criminal law that the prosecution has to prove its case against the accused beyond the shadow of all reasonable doubts. The accused has a pious right of not to be convicted for an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts upon the accused.
22. Complainant and his sister are the only public witnesses examined in the present case by the prosecution. Though they are interested witnesses and their testimony should be seen in that perspective, however, it is well established principle of evidence that reliance can be placed upon solitary testimony of witness/victim if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. Section 134 Indian Evidence Act also states that no particular number of witnesses are required for proof of any fact.
23. Thus, even if the complainant and his sister are the only witnesses examined reliance can be placed upon their testimonies if the same inspires confidence and is not saddled with contradictions and variations.
FIR No.117/2016 State v. Mohd. Nasir Page 11 of 1824. PW-1/complainant and PW-3/sister of complainant/victim had categorically deposed before the Court that the marriage of PW-3 with accused was fixed for 14.05.2016, however, accused refused to marry PW-3 as his demands for dowry were not fulfilled. He refused for marriage and broke the same at the eleventh hour of marriage when the complainant was unable to fulfill his demand of motor cycle and Rs. one lakh. Thereafter, on the same date, as preparations of marriage were already made, PW-3/ victim was married with some other person by her family members.
25. The social evil of dowry demand is a stark reality plaguing Indian Society. In order to curb this menace stringent laws have been enacted. However, the deep roots of this social evil still eclipse the happiness of innocent brides and their family members.
26. Accused , in his statement U/s 313 Cr.P.C admitted that his marriage was fixed with the sister of complainant. However, it was his case that the complainant out of his own will canceled the marriage and married his sister somewhere else. He had not refused for marriage with the sister of complainant.
27. It is argued by Ld. Counsel for the accused that the complainant is unable to disclose the telephone number by which accused FIR No.117/2016 State v. Mohd. Nasir Page 12 of 18 demanded dowry from him. It is further argued that it is highly improbable that if marriage function is scheduled for a particular date and the proposed bridegroom refuses for the same then within a nick of time another bridegroom could be found and marriage could take place. It is further argued that sister of the complainant wanted to marry that person with whom the marriage was solemnized and therefore the complainant refused the marriage of his sister with the accused.
28. I have considered the arguments as advanced by the Ld. Counsel for the accused. The complainant / PW-1 and his sister / victim / PW-3 had categorically identified the accused before the Court as the person with whom the marriage of PW-3 was arranged and had further categorically deposed that accused refused for marriage on the same date when the marriage was fixed, when his demands for dowry were not fulfilled. Nothing has come in their cross examination in order to impeach their credibility before the Court. Their testimonies have corroborated each other and have remained reliable and trustworthy. Merely because on the same date and venue PW-3 / victim got married with some other person the case of the prosecution with respect to the alleged dowry demand cannot be seen with suspicion. It is manifest from the deposition of the prosecution witnesses that all arrangements of marriage were made on 14.05.2016 and the complainant was not of good financial back ground. It is further admitted by PW-3 FIR No.117/2016 State v. Mohd. Nasir Page 13 of 18 that the second groom was contacted through her maternal sister. High respect in society is not dependent upon financial status. The bonafides of a person to marry a lady whose marriage is jeopardized due to the evil of dowry cannot be attacked merely because he agreed for marriage on the same day. Human beings live in a social fabric and the society comes to the rescue of others at times. Further in this age of mobile phones it would be hard to expect people to remember the mobile phone numbers of others, except their family members and therefore, the argument of the Ld. Counsel for the accused that the complainant or his sister were unable to disclose the mobile phone number from which the call of refusal was made by accused Nasir and therefore there was no refusal, holds no force.
29. PW-1 and PW-3 have categorically deposed regarding the dowry demand of Rs. 1 lac and motorcycle by accused Nasir and that on their inability to fulfill the said demand accused Nasir refused for marriage. Nothing has come in their cross-examination which can impeach their credibility before the Court and their testimony had remained non-controverted and unrebutted. They had further corroborated each other in all material particulars.
30. In view of the un-impeached testimonies of both the public witnesses with respect to dowry demand and subsequent refusal to marry by accused Nasir, the prosecution is able to prove FIR No.117/2016 State v. Mohd. Nasir Page 14 of 18 beyond shadow of all reasonable doubts that accused Mohd. Nasir had made the demand of dowry from the brother of the bride, that is, the complainant and had also subsequently refused for marriage on the non fulfillment of the said dowry demand. Accordingly he is convicted for the offence punishable U/s 4 of the Dowry Prohibition Act 1961.
31. Accused Mohd. Nasir is also charged in the present case for the offence punishable under Section 406 IPC.
32. In order to establish the offence punishable under Section 406 IPC, the prosecution has to prove before the Court that there was an entrustment by the complainant to the accused of any property and the accused with an dishonest intention misappropriated or converted to his own use, to the detriment of the complainant, that property.
33. In the case of Anu Gill Vs State 92 (2001) Delhi Law Times 179, it was held by Hon'ble High Court of Delhi that :
"To constitute the offence under Section 406, IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the FIR No.117/2016 State v. Mohd. Nasir Page 15 of 18 allegations appearing against the petitioner do not show that the articles of Istridhan were even entrusted to her. In the absence of the allegation of entrustment, question of misappropriation or conversion to her use does not arise. Thus, the most vital ingredient to constitute the offence under Section 406, IPC is missing. In view of the above, no case under Section 406 IPC is spelt out against the petitioner."
34. It is complained in complaint Ex. PW-1/A that the complainant had entrusted the seized dowry articles Ex. PW-1/D to the accused at his house at Darya Ganj on 12.05.2016 in the presence of his two relatives whose name he is not aware. However, PW-1 had deposed before the Court that when he had delivered the said articles at the house of the accused only one lady was present in the house whose name he is not aware and no other family member was present in the house of the accused. Further more, it is the case of the prosecution that marriage was refused on 14.05.2016 and articles were seized from the house of the accused on 15.05.2016 by the investigating agency.
35. It is deposed by the IO that all the articles mentioned in the list given by the complainant were seized and handed over to the complainant. It is not the case of the State that there was any effort by the accused to hide the said articles or that accused had refused to hand over the said articles to the investigating agency.
FIR No.117/2016 State v. Mohd. Nasir Page 16 of 1836. Further more, the entire deposition and the complaint of the complainant is silent to the effect as to when the said articles were demanded back by the complainant from the accused.
37. Thus, firstly in the present case it is evident from the cross examination of the complainant that the articles were not handed over personally to the accused and were delivered in his house. Secondly, in the entire deposition of the prosecution witnesses there is not a single whisper when the said articles were demanded back by the complainant or his family members from the accused. Thirdly, the accused had handed over all the articles to the investigating agency the moment he was interrogated about the same.
38. In order to establish the offence punishable U/s 406 IPC it has to be established by the prosecution that there was an entrustment of property by the complainant to the accused person and the accused despite demand refused to return the said articles to the complainant. In the present case neither entrustment nor demand is proved before the Court and therefore, the ingredients of Section 406 IPC are not proved before the Court.
39. Thus, the prosecution has not been able to prove the offence under Section 406 IPC against accused Mohd. Nasir. In view of FIR No.117/2016 State v. Mohd. Nasir Page 17 of 18 the same accused Mohd. Nasir is acquitted from the offence punishable U/s 406 IPC.
Conclusions/findings:
40. In view of the above said discussions and findings, accused Mohd. Nasir is convicted for the offence punishable U/s 4 of the Dowry Prohibition Act 1961 and is acquitted from the offence punishable under Section 406 IPC.
41. Let he be heard separately on the quantum of sentence for the offence punishable U/s 4 of the Dowry Prohibition Act 1961.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2018.07.31
15:21:33 +0530
Announced in the Open Court (Neha Paliwal)
on 27th July, 2018 Metropolitan Magistrate-01
Mahila Court, Central Distt.
Tis Hazari Courts, Delhi
It is certified that this judgment contains 16 pages and each page bears my signatures. Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.07.31 15:21:43 +0530 (Neha Paliwal) Metropolitan Magistrate-01, Mahila Court, Central Distt.
Tis Hazari Courts, Delhi FIR No.117/2016 State v. Mohd. Nasir Page 18 of 18