Delhi District Court
State vs . Vishal Verma & Ors. on 27 April, 2015
IN THE COURT OF MS. MONA TARDI KERKETTA :MM: MAHILA COURT:
TIS HAZARI COURTS :DELHI
FIR NO. 12/02
PS : Chandni Chowk
U/S 498A/406 /34 IPC
02401R0215802003
STATE VS. VISHAL VERMA & ORS.
1.Date of commission of offence : During subsistence of marriage since 30.01.2001
2. Name of the complainant : Smt. Sulaxna Verma W/o Sh. Vishal Verma D/o Sh. Mahender Kumar Verma
3. Name of the accused persons their parentage and address : 1. Sh. Vishal Verma S/o Sh. Prem Narayan Verma
2. Sh. Prem Narayan Verma S/o Late Sh. Daulat Ram Verma
3. Ms. Nisha D/o Sh. Prem Narayan Verma
4. Smt. Rani Verma W/o Sh. Prem Narayan ALL R/o 5886, Jogiwara, Nai Sarak, Delhi
5. Sh. Narender Kumar S/o Sh. Ram Bharose
6. Sh. Ram Bharose S/o Late Sh. Daulat Ram
7. Smt. Shakuntala W/o Sh. Ram Bharose FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 1/13
8. Smt. Geeta W/o Sh. Narender Kumar All R/o D330, Gali No. 6, Hardev Puri, Shahdara, Delhi
9. Sh. Ram Narayan Verma S/o Sh. Saroop Singh R/o 1374, Gali Sunaro Wali, Jawahar Chowk, Najaf Garh, Delhi
4. Offence complained of : 498A/406/34 IPC
5. Plea of accused persons : Not Guilty
6. The final order : Acquitted
7. Date of Order : 27.04.2015 Counsels for the parties:
For the State : Ms. Sarita Rani For the Accused person : Sh. Sanjeev Kumar THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as disclosed in the statement of complainant Smt. Sulaxna Verma W/o Sh. Vishal Verma, R/o A268, Sudhershan Park, Moti Nagar, New Delhi wherein, it is stated that complainant was married to accused Vishal Verma on 30.01.2001 at Town Hall, in front of Old Delhi Railway Station according to Hindu Rites and Ceremonies. It is further stated that prior to the marriage, there were no demands by the accused persons, however, complainant's father had spent around 12 to 13 Lacs in her marriage and also given Rs. 3 Lacs in cash for the car. It is further stated that accused persons used to make demands of cash of Rs. 50,000/ and 20 tolas of gold. It is further stated that grand father in law Sh. Ram Narayan, grand father in law and maternal father in law Sh Vinod were also involve in the demand.
2. It is further stated that complainant's father had given Rs. 51,000/ in cash FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 2/13 apart from the car and money for 20 tolas of gold out of which 15 tolas of gold was to be utilized for making the jewelery of complainant and remaining 5 tolas for making the jewelery for accused Vishal but accused Prem Narain only got made a Nath and out of the remaining gold, he got made the articles for her husband and other family members. It is further stated that complainant's father had given all the amount in cash to accused Prem Narain for making arrangements for wedding place, wedding dinner and clothes as he had told her father that they will make arrangements themselves. It is further stated that accused Ram Bharosey and his wife accused Shakutala had resided with them for around 22 ½ months after the marriage. The accused Ram Bharosey, Prem Narayan, Shakutala, Rani, Nisha and Vishal used to ask the complainant to get more money for car as they wanted to purchase a car of around Rs. 7 to 8 lacs and there was further demand of 20 tolas of gold. It is further stated that on her refusal to bring cash of Rs. 50,000/ and 20 tolas of gold and the remaining amount of Rs. 4 or 5 lacs for the car, accused Vishal and Prem Narain did not allow complainant to make phone calls to her parents and told her that now she would have no relations with her parental home till their demands were met. It is further stated that at that time, she had sent some letters also to her parents.
3. It is further stated that the accused persons told her that her father should sell this house to fulfill their demands. It is further stated that one day accused Rani and Nisha pushed her from the staircases and her brother Bunty and Aunti ( chachi) picked her up and accused Rani told her to apply moove (ointment) and did not take her to any doctor. It is further stated that accused Ram Bharose, Prem Naraian, Rani, Vishal, Nisha and Shakuntala used to taunt her for not fulfilling their demands of money for a luxury car. It is further stated that accused Vishal used to do unnatural sex with her. It is further stated that on 28.02.2001, she had gone to Shimla alongwith accused Vishal, brother in law and his wife Geeta, where she has alleged that accused Vishal generally used to remain with his sister in law namely Geeta and on her objection, Geeta, Narender and Vishal had threatened her to push from the mountains.
FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 3/13
4. It is further stated that after returning from the tour, all the accused persons again started pressurizing to fulfill their demands. The in laws, Jagdish Prasad and his wife also used to pressurize by making telephone calls and on her refusal, accused Vishal used to beat her with belt. It is further stated that accused Vishal even tried to strangulate her with dupatta. It is further stated that all accused persons used to threaten her that they would get the accused Vishal remarried. It is further stated that on one occasion, accused persons had beaten her after closing all the doors and opening the TV with loud volume and tried to burn her with the hot press (iron) and gave her a last warning that if she did not get their demand fulfilled, then they would get her killed.
5. It is further stated that her jewellery were taken by accused Prem Narayan and Ram Bharose and had been hidden by them some where. It is further stated that on 18.04.2001, her father met with an accident and her parents in law left her at the hospital and even in the hospital, accused Rani told her to give back all the jewellery worn by her and took all the jewellery that she was wearing with herself. It is further stated that after 18.04.2001, none from her in laws called her and nobody had come to take her back and thus complaint dated 28.11.2001 was filed in CAW Cell , where settlements efforts were made but the the matter could not be sorted out. Subsequently, on the basis of complainant's statement, a case under section 498 A/406/34 IPC was registered against the accused persons.
6. Subsequent to registration of FIR, investigation was conducted and after its completion, chargesheet was filed in the court against accused persons, who were summoned by Ld. Predecessor for the offence allegedly committed by them. Copy of the chargesheet was supplied to them against receiving in compliance of provision of Sec.208 Cr.PC. Arguments on the point of charge were heard and vide order dated 26.08.2008 charge u/s. 498A/34 IPC was directed to be framed against accused persons Vishal, Prem Narayan, Ram Bharose, Rani Verma, Shakuntala and Nisha and U/s 406/34 against accused Vishal, Prem Narayan, Ram Bharose, Rani. Whereas, other accused persons were discharged. Respective charges U/s 498A/406/34 IPC FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 4/13 were framed against accused persons on 04.03.2010, to which they individually pleaded not guilty and claimed trial. Subsequent thereto, matter was fixed for Prosecution Evidence.
In order to prove its case the prosecution produced following witnesses :
(i) PW1/complainant Smt. Sulaxna Verma, appeared as PW1 and proved letters dated 27.03.2001, 02.04.2001 & 14.04.2001 addressed to his father vide Ex.
PW1/A to PW1/C, list of articles Ex. PW1/D, complaint to CAW Cell Ex. PW1/E, seizure memos of Xray sheet and Video Cassettes of God Bhrai & Marriage Ex. PW1/F & Ex. PW1/G respectively, house search memo Ex. PW1/H, seizure memo of clothes Ex. PW1/I . She also identified video cassettes Ex. P1 & P2 and case properties Ex. P 3 to P5 ,
(ii) HC Ram Niwas, Duty Officer, appeared as PW2 and proved FIR Ex. PW2/A,
(iii) WSI Satyawati, appeared as PW3 and proved seizure memo of idols Ex. PW3/A, house search memo Ex. PW3/B,
(iv) HC Rajender Singh, appeared as PW4,
(v) Inspector Yog Bandhu, appeared as PW5 and proved seizure memo of six photographs vide Ex. PW5/A & six photographs Ex. PW5/B,
(vi) Sh. Subhash Verma, appeared as PW6,
(vii) Sh. Prabhat Sharma, appeared as PW7,
(viii) SI Ramesh Thakur, appeared as PW8 and proved seizure memo of Inland letters, some bills, marriage card and OPD Card Vide Ex. PW8/A, house search memo Ex. PW8/B, list of items refused to be accepted by the complainant vide Ex. PW8/C, seizure memo of photocopies of xray report and its receipt dated 27.03.2001 vide Ex. PW8/D and seizure memo of istridhan articles vide Ex. PW8/E,
7. The court examined following witnesses/process servers, who made efforts to trace out complainant and other public witnesses :
(i) HC Navratan, appeared as CW1. He was entrusted with the task of serving summons upon complainant Ms. Sulaxna Verma. He proved the statement of Sh. Sonu vide Ex. CW1/A, report on the summons vide Ex. CW1/B, report forwarded by FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 5/13 the SHO Vide Ex. CW1/C,
(ii) Const. Sri Bhagwan, appeared as CW2 . He was entrusted with the task of serving summons upon complainant Ms. Sulaxna Verma. He proved the statement of Sh. Vinod Kumar vide Ex. CW2/A and report on summons Ex. CW 2/B,
(iii) SI Ramesh Thakur appeared as CW3. He was entrusted with the task of serving summons upon complainant Ms. Sulaxna Verma, Sh. Mahender Kumar Verma & Sh. Sanjeev Verma. He proved the statement of Sh. Vinod Kumar vide Ex. CW3/A and report dated 16.04.2014 vide Ex. CW3/B.
8. It is pertinent to mention here that complainant and public witnesses i.e. her father and brother remained untraceable. The examinationinchief of complainant was recorded but she did not present herself for cross examination. Process sent to them were received back unexecuted. They were directed to be served through IO as well as DCP concerned but they remained untraceable. There were consistent reports regarding their untraceability at the given addresses. During the course of trial, statements of IO and concerned process servers regarding their untraceability were recorded separately and their detailed reports were exhibited. The remaining prosecution witnesses were formal witnesses related to the field investigation of the case. It would have been futile exercise to conduct further trial in the absence of complainant and her family members. Sufficient opportunities were given to the prosecution to examine its most material witnesses but despite availing several opportunities, their presence could not be secured by the prosecution. With these observations, Prosecution Evidence was closed. Since no incriminating circumstances had appeared against the accused persons, hence, recording of statement of accused persons U/s. 313 Cr. PC was dispensed with. In the absence of any prosecution evidence, accused persons did not prefer to lead evidence in their defence.
9. Subsequent thereto, matter was fixed for final arguments. During the course of final arguments, Ld. APP for the State, submitted that the guilt of accused persons have been proved beyond reasonable doubt. On the other hand, Ld. counsel for FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 6/13 accused submitted that accused persons deserved acquittal.
10. The court heard the arguments of both the sides and perused the entire record with their assistance. Before appreciating evidence on record, let us first discuss the relevant legal provisions given U/s 498 A IPC. Section 498A IPC provides punishment to husband or relatives of the husband of a woman subjecting her to cruelty. The prosecution must prove that :
(I) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand.
Section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it, that he (a) misappropriated it or(b) converted it to his own use or (c) used it or (d) disposed of it.
11. In the light of aforesaid legal provisions, the court shall now appreciate the evidence brought on record to ascertain if the alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A IPC and if they are guilty of criminal breach of trust under section 406/34 IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. Admittedly, the complainant has built her case on explanation (b) of section 498A IPC. In the judgment of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J page 3019, the court observed that cruelty by itself without demand would not be FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 7/13 sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of section 498A IPC observed that harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
12. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements. The court is in agreement with the submissions made on behalf of the accused persons. In the present case, examination in chief of complainant/ PW1 was recorded and cross examination was deferred. It is pertinent to observe that complainant of the present case became untraceable after recording her examination in chief and public witnesses i.e. her father and brother were dropped from the list of witnesses being untraceable. The statement made by the complainant in her examination in chief is not readable and cannot be imparted any credence. Reliance is placed on the judgment titled as Dwarka Dass Vs. State 1979 Crml. Law Journal 550 wherein it has been observed that the right of cross examination, not only is referable to section 138 of Evidence Act, itself but one of the principles of natural justice is that the evidence may not be read against a party if the same has not been subjected to cross examination or at least an opportunity has not been given for cross examination. Reliance is also placed upon judgments titled as Gopal Saran Vs. Satyanarayan AIR 9 SC 1141, Chandan Vs. FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 8/13 State of Rajasthan AIR 1988 SC 599, Urava Konda Vijayaraj Paul Vs. The State 1986 Criminal Law Journal 2104, wherein, it has been observed that right to cross examine a witness is an indispensable right of the accused and if the accused has not been given an opportunity to cross examine the witness, his testimony cannot be read into evidence.
13. In these circumstances, as the prime witnesses of the prosecution, the complainant, her father and brother being untraceable and having been dropped from the list of witnesses , specific allegations of harassment and / or coercion, for fulfillment of demand has not been proved by the prosecution to prove the commission of offence u/s 498A/34 IPC by the accused persons.
14. It be observed that the accused Vishal, Prem Narayan, Ram Bharose and Rani Verma have been charged for having misappropriated the istridhan articles of the complainant to their own wish. In order to to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused persons and they were having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to them, have been misappropriated.
15. As observed above no credence can be imparted to the statement of complainant recorded in examination in chief for want of cross examination, which could not be conducted on account of her being untraceable. In the entire testimony available on record, no entrustment has been proved. No witness has stated about the month, time and year when the entrustment was made and specifically to whom it was made. So far as testimony of PW7/ Sh. Prabhat Sharma is concerned, it be observed that he is merely a recovery witness of case property i.e. the idols of Laxmi and Ganesh, which were seized by the police during investigation. During cross examination, it has been clearly established on record that said idols did not belong to complainant so the question of entrustment and misappropriation do not arise. During cross examination, he has deposed that he had been noticing those FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 9/13 idols at the place of worship in the shop of late father of accused Prem Narayan since childhood. The place of worship was visible also from his shop. He has further deposed that the complainant did not produce any proof in respect to the ownership of the idols. At the time of seizure, he and accused Prem Narayan objected to the removal from the place of worship but the idols were forcefully taken away by the complainant. So far as testimony of PW 6 Sh. Subhash Verma is concerned, it be observed that during cross examination, he has deposed that complainant had not produced any evidence of ownership regarding seized properties at the spot in his presence. The deposition of PW 6 clearly proves that seized articles did not belong to the complainant.
16. The list of dowry articles is not witnessed by any of the family members. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant is revealed. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152 , the court is of the opinion that entrustment in favour of the accused persons is not established. In view of the fact that none of the ingredients of section 405 IPC is established, no case u/s 406 /34IPC is made out against the accused persons.
17. In view of foregoing discussions, the court has come to the conclusion that no material evidence has been produced in order to secure the conviction of accused persons. They are acquitted from the charge framed under section 498A/406/34 IPC.
ANNOUNCED IN THE OPEN COURT (MONA TARDI KERKETTA)
ON 27.04.2015 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 10/13
1/
FIR No. 12/02
P.S. : Chandni Chowk
U/S 498/406 /34 IPC
STATE VERSUS VISHAL VERMA & OTHERS
27.04.2015
Present : Ld. Sub. APP for the state.
All accused on bail in person with Ld. proxy Counsel
Matter is fixed for proper orders.
At this stage, Ld. proxy counsel for accused persons submits that an application seeking release of seized idols of Laxmi and Ganesh is lying on record. He further submits that the said application was kept pending by the order of Ld. predecessor, who had opined that claims of complainant and accused persons in respect to release of seized idols could be decided only after leading evidence. He further submits that from the testimony of PW 7/ Sh. Prabhat Sharma, it has already come on record that said idols do not belong to complainant.
Heard. Record perused.
Complainant of the present case is untraceable. She is personally not present to contest the said application. The court has heard arguments on her behalf through Ld. Sub. APP.
After having heard the parties and perused the record, the court finds force in the submissions of Ld. proxy counsel for accused persons. The court in its separate detailed order at para no. 15 has already observed that nothing has been brought by the complainant to prove that said seized idols belong to her. Hence, the application of the complainant seeking its release is dismissed. Accused persons are at liberty to get the same released. In case, accused persons opt to get the same released then SHO PS Chandni Chowk is directed to release the same to its rightful owner upon proper receiving and identification.
So far as proper orders is concerned, it be observed that complainant and public witnesses i.e. her father and brother have remained FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 11/13 2/ untraceable. The examinationinchief of complainant was recorded but she did not present herself for cross examination. Process sent to them were received back unexecuted. They were directed to be served through IO as well as DCP concerned but they remained untraceable. There were consistent reports regarding their untraceability at the given addresses. Statements of IO and concerned process servers regarding their untraceability have already been recorded separately and their detailed reports have also been exhibited. The remaining prosecution witnesses are formal witnesses related to the field investigation of the case. It would be a futile exercise to conduct further trial in the absence of complainant and her family members.
Sufficient opportunities have already been given to the prosecution to examine its most material witnesses but despite availing several opportunities, their presence could not be secured. With these observations, Prosecution Evidence is closed. Since no incriminating circumstances have appeared against the accused persons, hence, recording of statement of accused persons U/s. 313 Cr. PC is dispensed with. In the absence of any prosecution evidence, accused persons do not want to lead evidence in their defence.
Final arguments heard.
Put up for orders at 2:00 pm. Be awaited.
(Mona Tardi Kerketta) MM02/Mahila Court, THC/Delhi/27.04.2015 FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 12/13 3/ It is 2:30 pm Present : Ld. Sub. APP for the State.
All accused on bail in person with Ld. proxy counsel.
Vide separate judgment announced in the open court, all accused persons are acquitted from the charge framed U/s 498A/406/34 IPC.
Previous Bail Bonds of accused persons stand cancelled. Sureties are discharged. Original documents if any be returned against receiving. Endorsement if any be cancelled.
In compliance of provision given under section 437A Cr. PC, fresh personal bail bonds in the sum of Rs. 10,000/ each with one surety in the like amount have been furnished. Same are attested and accepted. Bail bonds shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court THC/Delhi/27.04.2015.
FIR No. 12/02 PS: Chandni Chowk State Vs. Vishal Verms & ors. 13/13