Delhi District Court
Fir No.498/01, Sarita Vihar State vs . Sushil Kumar & Ors on 22 April, 2014
FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE - 01
MAHILA COURT, SAKET COURTS, NEW DELHI
FIR NO.498/01
PS- Sangam Vihar
UID No: 0246R0253402002
STATE
Versus.
SUSHIL KUMAR& ORS
JUDGMENT U/S 355 Cr. P.C.
a) Date of offence : 1999 to 2001
b) Date of Institution of case : 04.04.2002
c) Date of judgment : 22.07.2014
d) Offence complained of : 498-A IPC & 406 IPC
e) Name of accused, :(1) Sh.Sushilkumar
(Husband)
S/o Sh. Satbir singh
R/o R-1 Old Uttam Nagar
New Delhi
(2) Ms. Anita (Jethani)
W/o Sh.Jai Prakash
Pronounced in open court on 22.07.2014 Page no 1 of 20
FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
R/o R-1 Old Uttam Nagar
New Delhi
(3) Sh. Jai Prakash Malik
(Jeth)
S/o Sh.Hari Singh Malik
R/o R-1 Old Uttam Nagar
New Delhi
(4) Ms. Babita (Jethani)
W/o Sh. Anil Kumar
R/o R-1 Old Uttam Nagar
New Delhi
(5) Sh. Anil Kumar (Jeth)
S/o Sh.Hari Singh
R/o R-1 Old Uttam Nagar
New Delhi
(6) Smt. Shanti Devi
S/o Sh. Hari Singh
R/o R-1, Old Uttam Nagar
New Delhi.
d) Plea of accused : Pleaded not guilty.
e) Final Order : Acquitted
JUDGMENT
1. All accused persons have been sent to face trial on the allegations that the accused persons had subjected the complainant Smt. Seema @ Sadhna to cruelty by harassing her and her parents to meet unlawful demand of Pronounced in open court on 22.07.2014 Page no 2 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors dowry and thereby committed offence punishable u/s 498A/406/34 IPC. After conclusion of the investigation, Challan was filed.
2. Accused J.P. Malik (Jeth), Sushil (Husband) , Anil (Jeth), Shanti Devi (Mother in law), Babita and Anita (Both Jethani's) were formally charged for offence punishable u/s 498-A/34 IPC.
3. Accused Sushil, Shanti Devi, Babita and Anita were formally charged for offence U/s 406/34 IPC.
4. Matter was then listed for Prosecution Evidence. Prosecution has produced nine witnesses. The statement of all the accused were recorded U/s 313 CrPC read with Section 281 CrPC. The accused did not lead any evidence in defence and the matter was listed for final arguments.
Final arguments heard on behalf of all the parties. Pronounced in open court on 22.07.2014 Page no 3 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors Carefully perused the record.
5. Seema/ Complainant was examined as PW-1 and proved stridhan articles as per list Ex.PW1/A, B & C, list of recovered stridhan articles is Ex.PW1/F. ASI Shanti was examined as PW-2 , She proved the copy of FIR Ex- PW2/A. ASI Anju Tyagi /PW-3 proved the list of returned dowy articles Ex.PW-1/F and the inquiry report is Ex.PW-3/A. The father of Seema, Sh. Vikram Singh was examined as PW-4 and proved the FIR EX-PW2/A and seizure memo Ex- PW1/F. Smt. Krishna, the mother of Seema was examined as PW-5 and her brother Sh. Jitender was examined as PW-6. SI Sanjeev Dhodi was examined PW-7 Sh. Uma Shankar was numbered as PW-7 (for sake of convenience, herein after he is referred to as PW7A). Sh. Jaswant Singh, friend of Vikaram Singh was examined as PW-8 and another friend Sh. Pawan Kumar was examined as PW-9. Incidentally the IO Anil Kumar was also examined as PW-8 (for sake of convenience, herein after he is referred to as PW8A ) Pronounced in open court on 22.07.2014 Page no 4 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
6. Section 498A IPC is reproduced here for ready reference:
"Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: Cruelty means--
a] any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health [whether mental or physical] of the woman; or b] harassment of the woman where such harassment is 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."
7. A bare perusal of section 498 A IPC shows that, neither every cruelty nor every harassment has element of criminal culpability. Ingredients of 'cruelty' as contemplated U/s. 498 A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage. In constituting 'cruelty' Pronounced in open court on 22.07.2014 Page no 5 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors contemplated by section 498 A IPC , the acts or conduct should be either such that may cause danger to life, limb or health or cause 'grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be 'willful' that is intentional. So to invoke provisions of section 498 A IPC, the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or in-supportable that she may be driven to commit suicide because of having been fed up with marital life.
8. PW-3/ ASI Anju Tyagi and PW-7/ Sanjeev Pronounced in open court on 22.07.2014 Page no 6 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors Dodi are formal witnesses.
9. PW Uma Shankar does not have personal knowledge about the facts of the case but has admitted that there was no dispute between the parties prior to the birth of the child which negates the case of the prosecution.
10. PW-8 Jaswant Singh had disclosed that he became aware about the differences between the parties through Sh. Vikram Singh and did not have any personal knowledge about the facts of the case. Accordingly, not much reliance can be placed on the testimony of this witness, his testimony being hearsay.
11. PW-9 Pawan Kumar did not have any personal knowledge about the facts of the case. This witness becomes totally unreliable as he had no personal knowledge but had introduced an entirely new story about payment of Rs. 30,000/- by Vikram Singh to accused and about a meeting at Mehrauli Vatika. Accordingly, not much reliance Pronounced in open court on 22.07.2014 Page no 7 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors can be placed on the testimony of this witness as he has neither supported the case of the prosecution and also because he does not have any personal knowledge about the facts of the case.
12. PW-6/ Jitender Singh, brother of Seema derived his knowledge about the alleged demand of dowry and subsequent harassment from Seema only. He further deposed that both he and seema were given beatings when he accompanied Seema back to her matrimonial home in October 2000. However, his own father / PW-4 has contradicted him by saying that it was only a minor quarrel which took place. PW-6 has further contradicted himself by deposing that he visited the matrimonial home of seema only once immediately after marriage for Fera ceremony and never visited there again. This testimony of this witness becomes unreliable as he has contradicted his own version and also because he does not have personal knowledge about the alleged cruelty or demand of dowry. Pronounced in open court on 22.07.2014 Page no 8 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
13. PW-5/ Smt Krishna, mother of Seema also did not have any personal knowledge about the facts and her only source of knowledge is Seema. She further claimed she gave Rs. 31,000/- to Seema which is not corroborated by testimony of any other witness. Her testimony is, at best, hearsay and for this reason, much reliance cannot be placed upon it.
14. PW-1 Seema and PW4, her father Sh.
Vikram Singh are two main witnesses in the present case.
15. PW-4 Sh. Vikram Singh himself does not have any personal knowledge about the alleged beatings given by accused to Seema. This witness has contradicted his daughter Seema in several material aspects. The main theory of the prosecution was that there was an electricity raid at the place of the accused and a fine of two lakhs was imposed upon the accused and in turn accused had made a demand of Rs. 1,00,000/- for the purpose of starting business. While Seema admitted that electricity raid of DESU Pronounced in open court on 22.07.2014 Page no 9 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors occurred prior to her marriage, PW-4 deposed that Sushil visited him after one month of marriage and demanded money on the ground that electricity raid had taken place. While Seema deposed that this money was demanded by the accused for starting business, her father deposed that the accused was already in the business of welding business.
16. There are several other material contradictions between the testimonies of PW1 and PW4. While Seema admitted that she was diagnosed with T.B prior to marriage, PW-4 stated that she was not suffering from any disease. While Seema stated that she used to visit the doctor for T.B treatment with her brother and father, PW-4, the father contradicted her by saying that she never got any treatment done for T.B. While Seema stated that Rs. 15,000/-, Rs10,000/- and Rs. 6,000/- were given by her father to partly satisfy the demand of Rs. 1 lacs raised by the accused, PW-4 , during his cross examination admitted that all the money given to his daughter was by way of custom only. Pronounced in open court on 22.07.2014 Page no 10 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
17. During her cross examination, PW-1 had admitted that none of the accused persons made any demand before or at the time of marriage and all the gifts given by her father were given at will. No cash was demanded or given as dowry. No gifts, cash or any other article was gifted by Seema's relatives at the time of marriage.
18. On one hand, Seema deposed that the accused started beating and abusing her on account of non- fulfillment of demand of dowry after 2-3 months of the marriage. Seema admitted that she was detected with T.B one week prior to her marriage but did not take any treatment for the same. She got her treatment from Jeevan Hospital, Ashram after her marriage which went on for about one year. Seema has admitted that the behaviour of the accused was cordial till the time her treatment for T.B was going on. Impliedly, the behaviour of the accused persons was cordial till one year atleast. As per her own admission, Seema never went back to the matrimonial home after October 2000 I.e, Pronounced in open court on 22.07.2014 Page no 11 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors after 08 months of the marriage. Thus, there was no occasion for the accused persons to have tortured Seema for alleged demand of dowry.
19. Interestingly, PW-1 has deposed that she went to Hospital every fortnight for T.B treatment with her father and brother, whereas the father had denied that Seema got any treatment done for T.B and that she was never diagnosed with T.B. Necessary corollary is that the T.B treatment was got done by the accused persons, If not by her parents. In these circumstances, it is slightly difficult to believe that on one hand the accused were torturing Seema on account of non fulfillment of demand of dowry while on the other hand they were regularly getting her treated for T.B .
20. First complaint against the accused persons was made in the month of May 2001, while the Seema got married on 10.12.1999. There is no prior complaint. As per her own admission, Seema used to frequently visit her parents place and was in touch with them over telephone. Pronounced in open court on 22.07.2014 Page no 12 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors She had several opportunities, where she could have disclosed the alleged wrongful treatment meted out to her by the accused persons and make complaint to the police station. However, this was not done and there is not justification for the same on record.
21. Seema had alleged that she had suffered internal injuries as an outcome of the alleged beatings given by the accused. As per her own admission, she was visiting the Doctor for T.B treatment every fortnight. None of her prescriptions show any internal injury suffered by her at any point of time.
22. Seema deposed that she had brought amount of Rs. 10,000/- , Rs.15,000/- and Rs.6,000/- on various occasions but that did not satisfy the demands of the accused and she was abused and beaten for bringing less amount. No MLC is on record. The father, Sh. Vikram Singh has admitted during his cross examination that it is customary to give gifts and cash to the daughter whenever she visits Pronounced in open court on 22.07.2014 Page no 13 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors home after marriage and the amount given to seema was in accordance with customs only.
23. Though, Seema has made several allegations of beating, abuse and demand of the money, she has not been able to give specific or even relative date and time of such occurrences.
24. Seema had alleged that she was kept nicely at the matrimonial house for 2-3 months and thereafter had started demanding of Rs.1 lac for purpose of starting business. She deposed that she was abused and beaten upon her refusal to fulfill this demand. She deposed that this demand was made after a raid was conducted by the DESU in the premises of her husband and a fine of Rs 2 lacs was imposed upon them. During her cross examination, she admitted that the DESU raid was conducted prior to her marriage and not thereafter.
25. A daughter having deformed fingers was Pronounced in open court on 22.07.2014 Page no 14 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors born to Seema on 05.02.2001. Seema, in her examination in chief, stated that the mother in law and Babita came to see the daughter at the Hospital and had went back without saying any thing and that later on the mother in law called her mother and demanded Rs.3 lacs and one plot for the new born daughter's marriage as she had some deformity. During her cross examination, she admitted that there was no discussion at the Hospital with anyone about the child's condition.
26. PW-1 has further admitted that only made one complaint against the accused and that complaint was not on record. Resultantly, the instant complaint on which the case was registered, was not made by Seema as per her deposition. She further admitted that the police did not make any inquiries from her during investigation nor was her statement ever recorded by the police. She admitted that all communication with police was done by her father Sh. Vikram Singh. Vikram Singh himself did not have any personal knowledge about the alleged beatings given to Seema and all Pronounced in open court on 22.07.2014 Page no 15 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors his knowledge was based upon what may have been disclosed to him by Seema. But no investigation or inquiries were made from Seema.
27. As per Seema version, the demands of money and beating started 2-3 months after the marriage and she had left the matrimonial home in August 2000 and finally in October 2000 but she did not make any complaint against any of the accused persons to the police till May 2001. In her cross examination, she has admitted that she did not make any complaint against the accused person prior to May 2001 as there was no reason for filing the same. In these circumstances, if the statement of Seema is accepted, the entire prosecution case stands falsified. The complainant has further admitted that the complaint was made by her to the police when the settlement talks failed and accused refused to pay money which was demanded by her father.
28. The allegation of cruelty and beatings are not corroborated by medical evidence when the same could have Pronounced in open court on 22.07.2014 Page no 16 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors been brought on record. There is no prior complaint by Seema, as per her own admission the relations remained cordial for one year and she resided with the accused only for about eight months. She herself has stated that she had not filed any prior complaint as there was no reason to do so. Further, there are material contradictions in the testimonies of main prosecution witnesses which go to the root of the case. The prosecution has not been able to prove its case beyond the pales of reasonable doubt. On the basis of contradictions as pointed out earlier the benefit of doubt which has accrued, necessarily has to go in favour of the accused persons. Accordingly accused J.P. Malik (Jeth), Sushil (Husband) , Anil (Jeth), Shanti Devi (Mother in law), Babita and Anita (Both Jethani's) are given benefit of doubt and are acquitted for offences under Section 498 A IPC.
29. Now coming to allegations in respect of offence u/s 406 IPC, as per her own admission, all the gifts given in the marriage were at will and no cash was demanded by the accused persons in dowry. Seema had further admitted that Pronounced in open court on 22.07.2014 Page no 17 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors till the time she resided at the matrimonial house, she was using all the articles. She had further admitted that she had not made any demand for return of Stridhan and the same was demanded for the first time before CAW Cell. The accused had returned the Stridhan articles of Seema which were taken by her vide receipt PW1/F which is signed by seven witnesses from the side of the accused and six witnesses from the side of the complainant. PW-4 also admitted that her daughter never made any demand for return of Stridhan articles after 15.07.2000 and that she was using all her articles till she was at her matrimonial home.
30. The receipts of alleged Stridhan articles which are stated to be unrecovered has not been filed by the complainant. Ex-PW1/L (7/37) is only an estimate of the jeweler and not a jewellery receipt. PW18/37 is only a list of utensils and not their receipt. This does not bear the description of any item or the name of the shop from which these were purchased.
Pronounced in open court on 22.07.2014 Page no 18 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors
31. There are no allegations of entrustment of dowry against to the accused persons. Even when the complainant deposed in the court, she did not alleged regarding the entrustment. As such, there is no evidence of entrustment of the streedhan to accused. There is no evidence of any demand of return of streedhan from them. There is no evidence of refusal to return the streedhan articles are their misappropriation or conversion by accused persons. In these circumstances, the offence under Section 406 IPC is not made out against any of the accused persons namely Sushil, Shanti Devi, Babita and Anita.
32. On the basis of the above discussion and the evidence, put forth by the prosecution, all the accused persons are entitled to benefit of doubt and accused J.P. Malik (Jeth), Sushil (Husband) , Anil (Jeth), Shanti Devi (Mother in law), Babita and Anita (Both Jethani's) are hereby acquitted for the offence u/s. 498A/34 IPC and accused Sushil, Shanti Devi, Babita and Anita are hereby acquitted for offence under S.406/34 IPC. Bail Bond and surety bond of all Pronounced in open court on 22.07.2014 Page no 19 of 20 FIR No.498/01, Sarita Vihar State Vs. Sushil Kumar & Ors the accused persons are further extended for six months as per S.437 A Cr.P.C.
File be consigned to record room.
Announced in the open (Shivani Chauhan)
court on 22.07.2014 Metropolitan Magistrate
Manila Court,SED/Saket
New Delhi/ 22.07.2014
Pronounced in open court on 22.07.2014 Page no 20 of 20