Delhi District Court
State vs . Sanjay Kumar Naithani And Ors. on 30 January, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. Sanjay Kumar Naithani and ors.
FIR No.861/02
P.S. : Malviya Nagar
U/S 406/498A/34 IPC and Sec. 3 of D.P. Act r/w 34 IPC.
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 15.11.2003
2. SERIAL NUMBER OF THE CASE : 865/2
3. DATE OF COMMISSION OF OFFENCE : 04.05.1997 (date of
marriage)
4. NAME OF THE COMPLAINANT :Mrs. Laxmi Naithani
5. NAME OF THE ACCUSED & ADDRESS :1 Sanjay Kumar
Naithani s/o Sh. Bal
Mukund.
2. Ajay Kumar s/o Sh.
Bal Mukund.
3. Bal Mukund s/o Late
Sh. Chintamani,
4. Prema Naithani w/o
Sh. Bal Mukund
All R/o 76/10, Pushp
St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 2 Vihar, Sector I, New Delhi.
(accused no. 1 already discharged vide order dated 27.01.2007)
6. OFFENCE COMPLAINED OF :U/S 406/498A/34 IPC & Sec. 3 of D.P. Act r/w section 34 IPC.
7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
8. DATE OF RESERVE OF JUDGMENT : 14.12.2011
9. THE FINAL JUDGMENT : Acquitted.
10.THE DATE OF FINAL JUDGMENT : 30.01.2012 BRIEF REASONS FOR THE DECISION:
3. The case of the prosecution is that accused persons during the subsistence of marriage subjected the complainant with cruelty. Further the accused persons were entrusted with the dowry articles and accused persons converted the same to their own use and committed criminal breach of trust in respect of the said entrusted property. The FIR was registered on the complaint of the complainant against the accused persons and investigation St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 3 was carried out.
4. Charge sheet under Section 498A/406 IPC was filed in the court, accused were supplied the documents in compliance of section 207 Cr.P.C. Vide order dated 27.01.2007 accused Sanjay Naithani, the husband, was discharged and charge for offence under Section 498A/34 IPC and Section 3 of Dowry Prohibition Act read with Section 34 of IPC was directed to be framed for accused persons Ajay Kumar (brother in law), Bal Mukund Naithani(father in law) and Prema Naithani (mother in law) and further charge was directed to be framed on accused Bal Mukund Naithani and Prema Naithani for offence u/s 406/34 IPC. Vide order dated 27.01.2007 charge was framed against the accused persons for offence u/s 406/498A/34 IPC and Section 3 of Dowry Prohibition Act r/w section 34 IPC, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined six witnesses and the prosecution evidence was closed vide order dated 10.08.2010.
6. PW1 ASI Usha deposed that on 29.09.2002 she was posted as Duty Officer St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 4 at P.S. Malviya Nagar from 08.00 a.m. to 4.00 p.m. She received a complaint through the reader, on the basis of which she registered FIR no. 861/01 U/s 406/498A/34 IPC. She brought the original FIR and Carbon copy of FIR is Ex. PW1/A. After registration of FIR the same was marked to SI Jogender and sent through Ct. Laxman to him. No crossexamination was conducted by Ld. defence counsel as she was only a formal witness.
7. PW2 Laxmi deposed that she is unemployed and presently residing at her parents house. On 04.05.1997 she got married with Sanjay Naithani as per Hindu Rites and customs. Her widow mother gave dowry articles beyond her capacity. Her father in law took Rs. 50,000/ from her parents in lieu of the furniture and other articles on the pretext that after the marriage she and her husband will purchase the articles as per their own choice. Before the marriage, her father in law has told her mother that her husband is an engineer and is doing a government job. Looking into this and being the youngest daughter , her mother had taken out an amount of Rs. 90,000/ by encashing the FDR and gave Rs. 1 lac to her mother in law and father in law.
When she reached at her matrimonial house, on the next day her mother in law taken her entire jewellery articles received from her mother and in laws side, and took the same into her possession and thereafter her parents in law St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 5 and her devar started harassing her on account of dowry. She correctly identified all the accused persons in the court. Thereafter she came to know th that her husband was not an engineer but only 10 class passed. But she kept on living in her matrimonial home to save her marriage. Her father in law who was working in the office of ITBP R.K. Puram, New Delhi used to consume liquor and was in habit of abusing her. He also misbehaved with her and tried to outrage her modesty. When she told this fact to her mother in law, her mother in law used to instigate her for consuming liquor and told her that the marriage took place in order to make her father in law happy but she is not making him happy. Therefore she will get off her son married to some other girl. Her husband opposed the same. On 14.02.1998 her in laws and and her devar beaten her brutally and levelled allegations that she is not able to bear the child and she is having illicit relations with many persons and thrown her out of matrimonial house in three clothes. She came to her mother's house in Noida. After 34 days her husband came to her mother's house and felt sorry for the deeds of his parents and brother and assured her mother that he along with her will live separately in a rented house. He also assured that in future neither her parents in laws will visit their rented accommodation nor they will harass her for dowry. On 21.02.1998 she along with her husband started residing in Faridabad in one rented room. Her St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 6 parents in law did not allow her to take even a single item from the matrimonial home. Therefore, her mother had given Rs. 5000/, some utensils and other articles, so that they can start their matrimonial life. But after some time her father in law used to come to Faridabad at the rented house every week and after some time her father in law started the same behavior. Somehow she tolerated the same as her husband was with her. They remained there for about 2 and half years and on 13.09.2000 her husband on the instigation of his father and brother quarreled with her and beaten her and took the entire articles and left her alone in rented room and went away. She waited for him about a week and then she came back to her mother's house in Noida and since then she is residing with her mother. Her father in law started threatening her and her mother that he will kill her within a week and will get his son marry with some other girl. He also threatened them that they cannot do anything as he was working in the police department. On 29.10.2000 her mother, her younger brother and one of her relative went to her matrimonial home and tried to resolve the differences but her parents in law and her dever demanded Rs. 50,000/ for opening of shop otherwise they threatened to marry her husband Sanjay to another girl. On 02.11.2000 she made a complaint to National Women Commission and after the pressure of officers of the commission her father in law and husband appeared before the St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 7 Commission and he did not cooperate therefore the file was closed on 03.01.2002. She enclosed the copy of the same with her complaint given to the police. Then her father in law on telephone as well as by sending some persons at her mother's house used to threatened her, her mother and her brother and then within a month they took her signatures forcibly on a Aapsi Samjotanama, according to which her husband will give Rs. 2 lacs within two months and they will take mutual divorce. The copy of the same is enclosed and same is Mark A. She signed the same as her mother and brother life was in danger. Then on 10.06.2002 has sent a mutual consent divorce petition and wants her to sign the same, she refused to sign, then he threatened her to kill within a month and kidnap her brother. When her mother and brother's efforts for reconciliation failed then she lodged a complaint in CAW Cell which is Ex. PW2/A bears her signatures at point A. Her entire jewellery articles and dowry articles are still in possession of her parents in law and they refused to return when she asked for the same. List of dowry articles is Ex. PW2/B bears her signatures at point A. The statement 16.09.2002 given to police is Ex. PW2/C bears her signatures at point A. The order of the women commission is Mark B.
8. PW3 Insp. Suresh Chand deposed that he was IO in the present case, while St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 8 the case was CAW Cell, Nanak Pura. The record of CAW Cell has been destroyed vide order dated 21.07.2009. Copy of the order is Mark A. The efforts were also made for reconstruction of the said record but with no result. He identified all the accused persons in the court. In his crossexamination he deposed that he does not remember as to whether he has specifically asked the parties to handover and take the stridhan articles. Thereafter witness is confronted with report Mark A and witness states that it is his report which is true and correct and is Ex. PW3/A.
9. PW4 Retd. SI Grijesh Singh deposed that on 07.06.2003 he was posted as Incharge Police Post Pushp Vihar, P.S. Malviya Nagar. Investigation of this case was handed over to him. On 24.06.2003 he recorded the statement of complainant Laxmi Devi and her mother Godambari. On 02.07.2003 he formally arrested the accused Sanjay Kumar Naithani and Ajay Kumar Naithani, Bal Mukund Naithani and Prema Naithani vide arrest memos Ex. PW4/A, PW4/B, PW4/C and PW4/D respectively and all bears his signatures at point A. All were released on bail on the same day. Finally he prepared the challan and filed it in the court. In his crossexamination denied the suggestion that he is deposing falsely.
St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 9
10.PW4 (must be read as PW5) Smt. Godawati Devi deposed that she has got married her daughter Laxmi with the accused Sanjay Naithani as per Hindu rites and rituals in 1997. Prior to the marriage the accused Bal Mukund and others were demanding Rs. 50,000/ in lieu of the furniture and she had given the same despite the fact that she was a widow. On the day of marriage, the accused Bal Mukund demanded Rs. 1 lakh by saying that his son is a engineer. She had also given Rs. 1 lac to Bal Mukund as per his demand. Then her daughter was taken to her matrimonial house at Saket, Delhi. After the marriage her daughter was not kept properly in her matrimonial house and they started harassing and torturing her. Her father in law also misbehaved with her. He used to consume liqour and abuse the complainant in filthy language. Whenever the father in law of her daughter misbehaved with her daughter and tried to outrage her modesty, her mother in law never intervened the matter and kept mum in this regard. Her daughter had told to her about the misbehavior of her mother in law and father in law on telephone. Her daughter had been turned out from her matrimonial home after 78 months of her marriage on the pretext of Rs. 50,000/ for opening the shop. Her daughter reached to her house at Noida. After some days her husband Sanjay came to their house and asked that he would keep his wife separately and took her daughter to Faridabad in a rented house. Her St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 10 daughter remained there for 2 and half years. Thereafter the father in law and brother in law of her daughter came to Faridabad and took the husband of her daughter back to their house along with his belongings, leaving behind her daughter at Faridabad alone. Her daughter telephoned to her brother, who brought her to their house. Then she along with her daughter and relatives went to the matrimonial house of her daughter but the father in law and brother in law Ajay and mother in law did not allow them to enter the house and stated that they would not allow to her daughter without fulfilling the demand of Rs. 50,000/. Finding no option they returned back to their house. All the stridhan articles and dowry articles are lying at the matrimonial house of her daughter and same is i.e. Jewellery, clothes, utensils, cash are still lying in possession of accused Bal Mukund, Prema Nethani and ajay and they have refused to return the same despite their demand. Her daughter made complaint to DCP, Women Cell, which is Ex. PW2/A and list of dowry articles is Ex. PW2/B.
11.PW5 Insp. Joginder Joon, deposed that on 29.09.2002 he was posted at I/C, Police Post Pushp Vihar, Malviya Nagar. On that day the investigation of the present case was marked to him after the registration of FIR and during the investigation, he had enquired the matter with the complainant Smt. Laxmi St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 11 Naithani and other witnesses. He tried to trace the accused persons named in the complaint i.e. Bal Mukund Naithani, Prema Naithani and Ajay Naithani. They got anticipatory bail from court in October 2002. thereafter he was transfered in Special Staff and he handed over the file to MHCR. No cross examination was conducted by Ld. defence counsel.
12.The statement of accused persons was recorded u/s 313 Cr.P.C., in which they denied all the allegations leveled against them and stated that they have been falsely implicated in the case. The accused persons opted not to lead DE.
13.I have heard the Ld. APP for State and Ld. counsel for accused and carefully perused the material on record. It is argued by counsel for accused persons that prosecution has failed to prove its case against the accused beyond reasonable doubt. The Ld. APP has contended the contrary.
14.Coming to Section 406 IPC,Section 406 IPC deals with criminal breach of trust. Section 406 IPC reads as under: "whoever commits criminal breach of trust shall be punished with St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 12 imprisonment of either description for a terms which may extend to three years, or with fine, or with both"
Section 405 IPC defines criminal breach of trust. The relevant portion of the definition reads as under: "405 Criminal breach of trust - Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescriting the mode in which such trust is to be charged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits "criminal breach of trust".
13. As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, their dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.
14.The complainant has stated in her evidence that after reaching her matrimonial house, on the next day her mother in law had taken her entire jewellery articles given by her mother as well as from in laws side and took St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 13 the same in her possession. On 21.02.1998 she along with her husband started residing at Faridabad house in one rented accommodation. Her parents in law did not allow to take a single article from the matrimonial house. Therefore, mother of complainant gave Rs. 5000/, some utensils and other articles so that the complainant and her husband can start their matrimonial life. She remained in the rented accommodation for 2 and ½ years. On 13.09.2000 her husband on the instigation of mother and brother quarreled with her and also gave her beatings and left her alone in the rented room and took away all articles. She further stated that entire jewellery and dowry articles are still in the possession of parents in law and they refused to return the same when she asked for the same and she produced list of dowry articles as Ex. PW2/B. On the other hand, mother of the complainant stated in her evidence that after marriage all the stridhan articles of complainant are lying at the matrimonial house of her daughter and the same i.e. jewellery, clothes, utensils, cash are still lying in the possession of accused Bal Mukund, Prema Naithani and Ajay and they have refused to return the same despite the demand. The charge u/s 406 IPC was framed against the accused mother in law, Prema Naithani, accused father in law, Bal Mukund Naithani. The complainant has stated that she entrusted her dowry articles to her mother in law. However the St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 14 mother of the complainant in stark contradiction in her evidence stated that stridhan and dowry articles are in the possession of accused Bal Mukund, Prema Nathani and Ajay. Moreover, the evidence is totally silent regarding the exact description of dowry articles which were allegedly handed over. There is no mention as to the year, month or date on which the said dowry articles were demanded back and refused to return. There is also no evidence as to who was the person from whom the dowry articles were demanded and who refused for the same. Further, the mother of the complainant in the present case was admittedly a widow at the time of marriage of the complainant. The mother of the complainant has also failed to show source of income for giving so many dowry articles at the time of marriage. Moreover, the prosecution has also not placed on record any proof like any bill or receipt or photograph of marriage to establish that dowry articles as contained in Ex. PW2/B was given by the complainant and her family to the accused persons at the time of marriage. Even no list of dowry articles was prepared at the time of marriage. There is mandate of provision of 2 of Dowry Prohibition Act and in view of judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152 for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side. The mother of the St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 15 complainant has also stated that she gave Rs. 1 lac to the accused Bal Mukund and nobody was present. It is quite unbelievable that in marriage ceremony, the cash was given at the lonely place. In marriages the articles and cash are generally given on some occasion or ceremony and the evidence of the mother of the complainant that it was given at the lonely place is quite unbelievable. The complainant made general and vague allegations regarding the entrustment and demand and refusal which are not sufficient to establish the offence u/s 406 IPC beyond reasonable doubt. Therefore accused persons are acquitted for offence u/s 406/34 IPC.
15. As regards section 498A IPC, it shall be useful to reproduce the same for ready reference. Section 498A IPC reads as under:
"498A Husband or relative of husband of a woman subjecting her to cruelty - 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 terms which may extend to three years and shall also be liable to fine.
Explanation: For the purpose of this section, "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 like, limb or health (whether mental of physical) of the woman; or St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 16
(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."
16.The complainant in the present case stayed in matrimonial house as per her evidence only for a brief period from 04.05.1997 till 14.02.1998. Thereafter, admittedly she shifted along with her husband to rented house at Faridabad in February 1998 and remained there with her husband for about 2 and ½ years till 13.09.2000. The complainant has only made general and vague allegations without any specific date, time or occasion of demand of dowry in the matrimonial house by her parents in law and her devar. She made only general allegations that her parents in laws and her devar started harassing her for dowry. In sharp contradiction to the testimony of complainant, her mother in her evidence stated that her daughter was turned out from the matrimonial house after 78 months of her marriage as she failed to pay Rs. 50,000/ to the in laws of the complainant for opening a shop. There is no such averment in the evidence of the complainant. The complainant in her evidence stated that her parents in laws and her devar demanded Rs. 50,000/ with regard to opening of a shop on 29.10.2000 after three years of the marriage. Thus, St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 17 there are sharp and irreconcilable contradictions in the testimony of the PW1 and PW2, the star witnesses of the prosecution. It is a settled law that the accused cannot be convicted on the basis of general and vague evidence and there should be specific evidence for cruelty for convicting the accused. The prosecution has miserably failed to adduce any specific evidence and, thus, the prosecution has failed to prove its case under explanation (b) of 498A IPC.
17. As regards explanation (a) of 498A IPC, the complainant has stated that during her stay in the matrimonial house her father in law after consuming liquor tried to outrage her modesty. She disclosed the same to her mother in law. But instead of stopping her husband, her mother in law told her that they got her son married to her in the hope that she will make both her husband and her father in law happy. As she is not making her father in law happy therefore she would marry her son to another girl. Further, complainant stated that on 14.02.1998 she was brutally beaten by her devar, and in laws and they also leveled allegation that she is not able to bear the child and she is having illicit relationship with many persons, and thrown her out from the matrimonial house in three clothes. Further, after she shifted on rented accommodation her father in law used to come to St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 18 her rented house every week and started the same behavior. In her cross examination complainant further stated that no one was present when her father in law tried to outrage her modesty in her matrimonial house. Her mother in law has gone to attend a meeting being Saturday and her devar had gone to school and her husband was not at home. She also stated that he tried to outrage her modesty twice. She does not remember the above date of incident but the incidents occurred on the Saturdays. On the other hand, her mother, PW4, deposed that whenever father in law of her daughter misbehaved with her daughter and tried to outrage the modesty of the her daughter her mother in law never intervened in the matter and kept mum in this regard. Her mother, PW4 also deposed that she has not visited the matrimonial house of her daughter and she has not told to any relative of accused regarding the harassment caused to her daughter by the accused persons. She only deposed that father in law only occasionally visited Faridabad residence and mother in law has never visited Faridabad residence.
The complainant has not given any specific date when her father in law tried to outrage her modesty and only general allegations have been made in this regard. Moreover, the mother of the complainant also stated that she was told by her daughter about the incident of attempt on part of her St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 19 father in law to outrage her modesty however she neither she visited the matrimonial house of her daughter nor told any relative or neighbor of the accused regarding the same. It is quite unbelievable that a mother after knowing such a predicament of her daughter would not go to the matrimonial house of the daughter or shall not make any effort to save her daughter. Moreover, the complainant resided in the matrimonial house along with her in laws only for brief period of 78 months thereafter she stayed in the rented accommodation with her husband for full 2 and ½ years. Neither the complainant nor her mother has stated that mother in law and brother in law visited the Faridabad residence. It has further come in the evidence that father in law only occasionally visited the Faridabad residence by her mother. On the other hand complainant has stated that he used to come to Faridabad house every week. The complainant has not given any details or date, time or manner of the father in law torturing her after she shifted to rented accommodation. The general allegations made by the complainant remained unsubstantiated and the case also does not fall within explanation (a) of 498A IPC. Therefore, all the accused persons are also acquitted under Section 498A IPC. The prosecution thus, failed to prove harassment of the complainant by the accused persons for dowry or exchange of dowry. All accused, St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar 20 therefore, are also acquitted for offence u/s 3 of Dowry Prohibition Act. Announced in the open court on this th day of 30 January 2012 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi St. Vs. Sanjay Kumar Naithani and ors. FIR no. 861/02, P.S. Malviya Nagar