Delhi District Court
Sarita Devi vs . Manoj Shah & Ors. on 15 October, 2014
1
IN THE COURT OF MS. MONA TARDI KERKETTA: METROPOLITAN MAGISTRATE: TIS
HAZARI COURTS : DELHI
CC. No.5/3/08
PS: Sahebgunj, District : Muzaffarpur
U/s: 323/342/354/504/307 & 498 A IPC & section 3/4 of Dowry Prohibition Act
UID No. 02401R6286912004
SARITA DEVI VS. MANOJ SHAH & Ors.
1.Name of the complainant : Smt Sarita Devi D/o Sh Prithvinath Sah
2. Name of the accused persons, their : 1. Manoj Sah S/o Sh. Shambhu Sah arentage and address.
2. Shambhu Sah S/o Sh. Late Satyanarayan Sah
3. Kanti Devi W/o Sh. Shambhu Sah
4. Sunita Kumari D/o Sh. Shambhu Sah All R/o Vill: Kotiyan, PS: Baruraj, District: Muzaffarpur, Bihar
3. Offence complained of : 323/342/354/307/ 504/ 498A/34 IPC & 3/4 of Dowry Prohibition Act
4. Charge framed under section : 498A/34 IPC & 3/4 of Dowry Prohibition Act
5.Plea of accused person: : Falsely implicated
5.The final order : Acquitted Date on which matter was reserved for order : 23.8.2014.
Date of such order : 15.10.2014.
THE BRIEF REASONS FOR THE DECISION :
1. The present complaint has been filed by the complainant under section 200 Cr PC for the offence under section 323/342/354/307/ 504/ 498A/34 IPC & 3/4 of Dowry Prohibition Act against the accused persons. The accused no.1 Manoj Sah is the husband, accused no. 2 Shambhu Nath Sah is the father in law, accused no.3 Kanti Devi and accused no. 4 Sunita Kumari is the sister in law of the complainant. CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 2
The brief facts of the case as have been disclosed in the statement of the complainant Smt. Sarita Sah D/o Sh. Prithvinath Sah R/o Sahebganj, District:
Muzaffarpur, Bihar, wherein it has been alleged that the complainant was married with to accused no.1 Manoj Sah according to Hindu Customs and rites on 21.06.1999 at Muzaffarpur, Bihar. At the time of marriage, the father of the complainant spent as per his capacity and gifted clothes, utensils, ornaments, furnitures and other necessary articles etc. worth Rs. 2 Lacs. After the marriage, the complainant joined her matrimonial house and subsequently just after 14 days of her marriage, the accused persons started pressurizing her complainant to bring motorcycle, fridge, colour TV and Rs. 2 lacs from her father. The complainant apprised them that now her father was not in position to give any thing more, due to which, all the accused persons started abusing and assaulting the complainant and they started threatening to throw her out of the house and they started raising a demand for colour TV, Fridge, motorcycle but on account of the financial hardship, the father of the complainant continued to refuse.
2. It is further stated that the father and brother of the complainant came to the house of the accused persons on many occasions and got conducted oral Panchayat but they continued to pressurize her for bringing more dowry. The accused persons continued to torture, assaulted , stopped giving her food, hurled abuses in improper language, kept her like an animal, took more work and refused to give necessary articles to her. The accused no. 1 said that he has not entered her name in service record and he will throw her out of the house, kill her and nobody can cause any harm to him. It is further stated that accused no.1 is an army person and has high contacts. The stand of the accused no. 2 is either to get money from parental house for motorcycle, TV and fridge otherwise the CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 3
complainant shall be dragged after being tied with the jeep.
3. It is further stated that on 13.04.2003, accused persons tied the complainant and gave her merciless beatings. The villegers informed about the same to her parental house through telephone, who on receiving information, reached at complainant's matrimonial house and took her to a doctor at Muzzafarpur for treatment. It is further stated that on account of atrocities of the accused persons, the complainant had become partial insane. Thereafter, on 17.03.2003, with the efforts of local villagers, a Panchayat was held in which accused no. 1 and 2 undertook not to commit such mistake in future and treat the complainant properly. It was decided that the complainant shall be kept at the place of posting of accused no.1, the name of the complainant shall be got entered in the service record and suitable accommodation shall be arranged. In case, the same was not done then legal action shall be taken in the court as well as by the Panchas. Thereafter, on receiving instruction from the employer of accused no.1, the father and brother of the complainant dropped her at Sirsa ie the place of postind of accused no.1 on 04.07.2003. Thereafter, on 07.07.2003, they were called by senior officers of the accused no.1, who asked them to leave the complainant there along with the accused no.1.
4. It is further stated that after two months in Sirsa, Haryana, the accused no. 1 again started beating and torturing the complainant and started pressurizing her to bring an amount of Rs. 2 lacs, motorcycle, fridge and colour TV. The accused no.1 threatened her to throw out from the moving train and told that nobody can cause any harm to him. During this period, accused no.2 visited Sirsa on many occasions and tortured the complainant to bring the dowry amount, TV, Fridge and motorcycle. The accused no. 1 undressed her and assaulted her mercilessly CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 4
and caused injuries. Feeling scared from all this, the complainant informed the Air Force , Head Office at Delhi and Air Force Office at Sirsa in writing and her father through Telephone, consequently, the then Air Force Officer Commanding carried out some departmental proceedings also. On receipt of the information, the uncle and brother of the complainant reached Sirsa and tried to sort out the matter but the complainant was abused and beaten even in their presence and was thrown out of the house. Subsequently on 24.06.04, the brother and uncle of the complainant took the complainant to their house.
5. It is further stated that on 24.06.04, accused no. 1 came at the parental house of the complainant and tendered his apologies for his mistake and promised that no cruelty shall be caused to her in future. The parents of the complainant believed the words of the accused no. 1 and allowed the complainant to go along with him. But after joining the matrimonial house, the accused continued with their earlier behavior. The accused No.2 told to kill her so that there should not be any story in future, as such, all the accused persons hatched a conspiracy and on 22.07.04, they all caught the complainant and tied her and then, accused no.2 asked accused no. 3 to bring match box. When she brought the match box, the complainant started screaming and hearing this, the neighborers came there for her rescue and told that the matter shall be reported to police but all the accused persons felt sorry with folded hands due to which, the matter was not reported to the police. One Sh. Devender Shahi kept her for the whole night under his security and on receipt of the information next morning , the brother of the complainant came there and took his sister to his house in an injured condition and since then, the complainant has been undergoing her treatment and forced to reside along with her parents in her parental house till date. It is further stated that the brother of CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 5
the complainant Sh. Shyam Sunder had given Rs 1 Lac., which was deposited with Bank of Baroda, Mohammadpur Branch in the joint name of the complainant and the accused no. 1. It is stated that the accused persons in collusion with each other, have caused deadly attack upon the complainant by abusing, assaulting and treated her inhumanly in order to have more dowry which is a heinous offence and the acts of the accused persons are totally illegal and inhuman and they may be punished accordingly and amount deposited in joint name may not be permitted to withdrawn unilaterally by the accused person.
6. Initially, the present petition was filed before the court of Ld. SDJM (West), Muzaffarpur, Bihar on 16.08.2004, which was assigned to the court of Sh. S.K.Jha, Ld. FCJM, Muzaffarpur, Bihar for inquiry and disposal as per law. After the case was assigned to Ld. FCJM, Muzaffarpur, Bihar, the complainant was asked to lead Pre Summoning Evidence. Pre Summoning Evidence of the complainant was taken by way affidavit vide order dated 07.08.2004. Thereafter , Sh. Jagat Naresh Prasad Shahi appeared as CW1, Sh. Devender Pd. Shahi appeared as CW2, Sh. Nageshwar Pd. Sah appeared as CW3, Sh. Shyam Kumar appeared as PW4. After closure of Pre Summoning Evidence, arguments on the point of summoning were heard. Vide order dated 14.09.2004, accused No. 1 to 3 were summoned under section 498A IPC by the court of Sh. S.K. Jha, Ld. FCJM, who subsequently transferred the petition to a court of competent jurisdiction. On securing the presence of all accused persons and completion of necessary legal formalities, the matter was fixed for Pre Charge Evidence. In Pre Charge Evidence, the complainant examined Sh. Shyam Kumar as CW1, Sh. Jagat Naresh Shahi as CW2, Sh. Nageshwar Sahu as CW3, Sh. Devender Prasad Sah as CW4 and herself as CW5. All the complainant witnesses were subjected to cross examined by the CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 6
Ld. Counsel for the accused persons. After closure of Pre Charge Evidence, the matter was fixed for arguments on the point of charge. Vide order dated 29.08.2006, charge under section 498A /34 IPC and section 3/4 of Dowry Prohibition Act was framed against the accused persons, to which they individually pleaded not guilty and claimed trial. Subsequent thereto, the matter was fixed for after charge complainant evidence.
7. In after charge evidence, the complainant produced Sh. Shyam Kumar as CW1, who adopted the same examination in chief, which was tendered in PreCharge Evidence. He subjected to part cross examination by Ld. Defence Counsel on 18.10.2006 & 25.09.2007. Thereafter, the petition was transferred to Delhi on the petition of the accused no.1, vide order dated 28.01.2008 of Hon'ble Supreme Court and assigned to this court vide separate orders of Ld. District and Sessions Judge, THC and Ld. ACMM, THC, Delhi. Subsequent thereto matter was fixed for further cross examination of CW1 Sh. Shyam Kumar, who was partly further cross examined and subsequently, his cross examination could not be conducted on account of his repeated absence. The complainant was given number of opportunities to produce her witnesses in support of her case but she did not produce them despite availing several opportunities and she herself stopped appearing before the court. Thereafter, vide order dated 08.01.2014, after charge complainant evidence was closed and the matter was fixed for proper order.
8. Since, nothing incriminating against accused persons had come on record, the recording of statement of accused persons under section 313 Cr. PC was dispensed with. The accused persons did not prefer to lead evidence in their defence. Subsequent thereto matter was fixed for final arguments. Arguments on behalf of the accused persons were heard. The complainant did not turn up to tender CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 7
arguments.
9. During the course of final arguments, Ld. Counsel for accused persons submitted that accused persons deserve to be acquitted as the complainant has failed to prove their guilt beyond reasonable doubt by leading evidence in support of her case. It was also submitted that the testimony of CW1 Sh. Shyam Kumar, can not be read in evidence as he did present himself for cross examination despite numerous opportunities and no other evidence was led by the complainant in support of her case.
10. The court has heard the arguments of Ld. Defence Counsel and also perused the record with his 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 3 and 4 of Dowry Prohibition Act provide penalty for giving or taking dowry and for demanding dowry respectively.
CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 8
11. In the light of aforesaid legal provision and Judicial Pronouncements , the court would now appreciate the evidence brought on record to ascertain if alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A 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 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 CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 9
provisions and judicial pronouncements. The court is in agreement with the submissions made on behalf of the accused persons. In the present case, CW1 has been partly cross examined. He has failed to present himself for further cross examination without any reason and therefore , his partly conducted testimony can not 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. 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. It be further observed that the complainant has also not examined herself in support of her case. Only she could have thrown light upon the facts of this case but in the absence of any evidence on record, the present case cannot lead to any logical conclusion. The court is further of the view that the happening of the very incidents and other allegations of the complainant can not be proved on record. The complaint which is the basis of present petition and subsequent proceedings against the accused persons has not been proved. The other witnesses, who could have substantiated the contents of the complaint as well other statements have CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 10
also not been produced by the complainant.
14. In these circumstances, as the prime witnesses of the present case, not having been produced and in the absence of any specific allegation of harassment and / or coercion, for fulfillment of demand, the complainant has failed to prove the commission of offence u/s 498A/34 IPC & section 3/4 of Dowry Prohibition Act by the accused persons. 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 hence they are acquittted from the charge framed under section 498A/34 IPC & 3/4 Dowry Prohibition Act.
15. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 15.10.2014.
(MONA TARDI KERKETTA) MM02/ MAHILA COURTS TIS HAZARI COURTS, DELHI CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others. 11 CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur U/s: 323/342/354/504/307 & 498 A IPC & section 3/4 of Dowry Prohibition Act SARITA DEVI VS. MANOJ SHAH & Ors.
15.10.2014 Present : None for complainant
All accused on bail in person with Ld. Counsel Sh. Parvendra Kumar Sharma.
Vide separate judgment announced in the open court, all accused persons are acquitted from the charge framed U/s 498 A/34 IPC & section 3/4 of Dowry Prohibition Act.
Previous Bail Bonds of accused persons are 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/15.10.2014.
CC. No.5/3/08 PS: Sahebgunj, District : Muzaffarpur Sarita Devi Vs. Manoj Shah and Others.