Delhi District Court
State vs . Hira Lal & Ors. on 17 January, 2014
1
IN THE COURT OF MS VANDANA JAIN, M.M., MAHILA COURT
(EAST), KARKARDOOMA COURTS, DELHI.
FIR NO.: 236/93
PS: Gandhi Nagar
U/S 498-A/406/34 IPC, 494/495 IPC, 420/34 IPC and 4 Dowry
Prohibition Act r/w 34 IPC.
STATE VS. HIRA LAL & Ors.
JUDGMENT:
1. Date of commission of : During 28.01.1993 to 31.03.1993 offence
2. Name of complainant : Smt. Rita W/o Sh Hira Lal D/o Sh M. L. Bhola R/o 2485, Ghans Mandi, Gali No. 18A, Kailash Nagar, Delhi-31.
3. Name of the accused, : 1. Hira Lal (Husband), parentage and address S/o Sh Raj Kumar
2. Raj Kumar (Father in law) S/o Sh Ram Lal
3. Prem S/o Sh Raj Kumar
4. Praveen State Vs Hira Lal 2 S/o Sh Raj Kumar
5. Vijay S/o Sh Raj Kumar
6. Geeta (Mother in law) W/o Sh Raj Kumar (Since expired) All R/o B-35, East Krishna Nagar, Delhi
4.Offence complained of : U/s 498-A/406/34 IPC, 494/495 IPC, 420/34 IPC and 4 Dowry Prohibition Act r/w 34 IPC.
5. The date of order : 17.01.2014
7. Plea of accused : Pleaded not guilty
6. The final order : Convicted Date of judgment : 17.01.2014 THE BRIEF REASONS FOR THE DECISION:
1. The brief facts of the present case are that complainant Rita was married to accused Hiral Lal on 28/01/1993 and she has alleged that her parents had given all the necessary articles including gifts, jewellery, clothes, furnitures, electronic items in her marriage and all the articles were entrusted to the aforesaid accused persons. It is stated that in the complaint made before police, she stated that State Vs Hira Lal 3 on the very first night, her husband Hira Lal asked her to bring Rs 50,000/- from her father and when she refused, he got hold of her hair and gave beatings to her. On 01/02/1993, she was taken for Ferra ceremony and all the accused persons had accompanied her and there she was pinched to raise demand of Rs 50,000/- from her father and when she did not ask for the same from her father, she was given beatings after coming back to the matrimonial home. It is further stated that during her stay at the matrimonial home she came to know that her husband was already married with one lady namely Babita. She has stated that during her stay at the matrimonial home for approximately 2 months and 2 days, accused Hira Lal did not cohabit with her and did not establish the relationship of husband and wife and continuously raised demand of Rs 50,000/- from her. She has also stated her all three brother in laws (Devars) used to call her "Panchali" and used to say " JO KUCH TERA PATI NAHI KARTA WOH HAM KAR SAKTE HAI, TU HAMARE PAAS AA TO SAHI" and when she resisted, she was given beatings by them. On 31/03/1993, her husband Hira Lal, father in law Raj Kumar and mother in law Geeta (since expired) dropped her at her parental home in wearing clothes and threatened her that she cannot come back without fulfillment of demand of Rs 50,000/- and no body came thereafter to take her along. It is further stated that her father tried State Vs Hira Lal 4 to reconcile the matter through meetings in society but all of no avail. It is further stated that her Istridhan articles were also not returned back despite specific demands and she made a complaint before CAW Cell on 14/06/1993 on which some of the articles were given back which were broken and rest of the articles are with the accused persons mentioned in the complaint. On the basis of this complaint, present FIR was registered.
2. On completion of investigation, charge sheet was filed by the IO.
Then cognizance of offence was taken and process was issued upon all the accused persons and after compliance of Section 207 Cr.PC, on 01/10/1994, the charge U/s 498-A explanation (b)/34/406A/34 IPC and Section 4 Dowry Prohibition Act r/w Section 34 IPC was framed against all accused persons and charge U/s 494/495 IPC was also framed against accused Hira Lal to which all accused persons pleaded not guilty and claimed trial.
3. During the course of prosecution evidence, the application was filed by complainant Rita to alter the charge U/s 216 Cr.PC and it was prayed that charge be framed against all the accused persons U/s 420/494/495/120 B IPC. This application was dismissed by the then Ld Predecessor of this court vide order dated 03/04/2003.
Against the said order, complainant went into revision wherein the revision was partly allowed vide order dated State Vs Hira Lal 5 23/12/2004 by the then Ld ASJ and charge U/s 420 r/w 34 IPC was directed to be framed against accused Hira Lal and Raj Kumar. In pursuance to the directions by Ld Sessions Court, charge U/s 420/34 IPC was framed against accused Hira Lal and Raj Kumar on 15/01/2005.
4. In order to support its case, prosecution cited ten witnesses out of which nine witnesses namely Rita (Complainant), HC Satya Prakash, Babita, SI Vikram Singh, M. L. Bhola, Ct. Mahesh Chand, Khajan Singh, Inspector Dinesh Kumar Sharma, Inspector Vineet Tyagi have been examined as PW-1 to PW-9 respectively.
5. PW-1 Rita is complainant.
6. PW-2 HC Satya Prakash is the witness who has taken rukka to PS.
7. PW-3 Babita, first wife of accused Hira Lal.
8. PW-4 SI Vikram Singh is an enquiry officer of CAW Cell.
9. PW-5 M. L. Bhola is father of complainant.
10.PW-6 Ct. Mahesh Chand is the witness of arrest of accused.
11.PW-7 Khajan Singh is the witness to dissolution of first marriage of accused Hira Lal with Babita by way of Panchayati divorce.
12.PW-8 Inspector Dinesh Kumar Sharma is second IO in this case.
13.PW-9 Inspector Vinita Tyagi is the main IO in this case.
14.After completion of prosecution evidence, statement of accused persons was recorded u/s 313 Cr. PC. wherein all accused persons State Vs Hira Lal 6 denied all the allegations alleged by complainant and they wishes to lead evidence in their defence.
15.In support of their defence, accused Hira Lal examined himself U/s 315 Cr.PC as DW-1 and other witnesses namely Satpal as DW-2, Satnam Kaur as DW-3 and Nirmala Devi as DW-4 (mediator of marriage of accused Hira Lal with complainant) and Hira Lal as DW-5 (mediator of marriage of accused Hira Lal with complainant) were examined. Then DE was closed.
16.Thereafter I have heard the arguments on behalf of both the side and have perused the entire record.
17.The brief facts stated by the complainant in her examination in chief are as under:- The marriage between complainant and accused Hira Lal was solemnized on 28/01/1993 and her Doli had gone to maternal uncle's house of accused Hira Lal namely Shyam Lal Sethi. On the night of 29/01/1993, accused Hira Lal gave beatings to her severely and pull her hairs and hit her head against the wall instead of consummating the marriage and when she asked why he had beaten her, he went down and in the morning her parents in law came and demanded Rs 50,000/- from her. On 30/01/1993, mother in law, father in law, all the three Devars did not let her go for Ferra Ceremony to her parent's house. On 31/01/1993 accused persons were busy in shifting all her dowry articles to the State Vs Hira Lal 7 matrimonial home of the complainant i.e. B-35, Krishna Nagar, Delhi. On 01/02/1993, she had gone to Ferra Ceremony at 6:30 pm and tea and snacks are taken there and thereafter her mother in law and husband Hira Lal started pinching her for demand of Rs 50,000/- and she told that she will not take any money from her father and on return to the matrimonial home, they abused her badly. She has stated that she stayed in the matrimonial home for the period of 2 months and 2 days in total and after 02/02/1993, daily beatings were given to her and taunting started. She had further stated that all her three Devar namely Prem, Praveen and Vijay used to call her "Panchali". She also came to know that her husband Hira Lal was previously married to one Babita and her mother in law and her husband Hira Lal told her that they had treated Babita in the same manner as they were treating her. Her mother in law and all three Devars used to behave badly and did not let her to meet anybody or talk to anybody and she was confined in a room. She has further stated that all the three Devars used to come late at night after consuming liquor and when she used to latch the door from inside, they used to knock and hit the door very loudly and used to speak profoundly and say that they would do what her husband could not do and outraged her modesty and whenever she made complaint to accused husband, he used to say State Vs Hira Lal 8 she should do as her Devars asked her to do. She has further stated that on 31/03/1993, she was dropped to her parental home in wearing clothes by her husband, father in law and mother in law and they told her to return only when arrangement of Rs 50,000/- was made.
It is also stated that her mother in law had beaten her for demand of Rs 50,000/- on 31/03/1993 before dropping her to the parental home. It is further stated that reconciliation meetings took place which were arranged by her father and mother at her Phupha's house at Lal Quarter and one of the meetings was on 11/04/1993. In that meeting apart from reconciliation, her Istridhan was demanded but accused persons declined to return and stated that they would see later on. Again meeting on 25/05/1993 where accused Hira Lal stated that he was not interested in marriage and her parents forced him to marry to take Rs 50,000/-. It is further stated that accused persons were again approached by father of complainant and her Phupha by visiting her matrimonial home and they demanded her Istridhan back but accused persons refused to give the same and threatened that they could do whatever they wanted to and they would be killed. On their refusal to return the Istridhan, the complaint was made on 12/06/1993 before CAW Cell which is Ex PW-1/A. The marriage card is Ex P-1. The photographs State Vs Hira Lal 9 of marriage are Ex Y-1 to Ex Y-12. The statement of complainant made before police is Ex PW-1/C. Her list of dowry articles is exhibited as Ex PW-1/D. Again her statement was recorded on 14/07/1993. Some of the articles were returned to her in Dowry Cell on 29/07/1993.
Accused Hira Lal filed a petition for restitution of conjugal rights which was dismissed. On 29/07/1993 complainant went with police to house of accused and articles were seized vide memo Ex PW-1/E. She has stated that the articles which have not been returned are with her father in law, mother in law and husband. She has stated that after the marriage she came to know about the previous marriage of accused Hira Lal. She has exhibited the certified copy of petition for restitution of conjugal rights as Ex PW-1/H and his affidavit in the above said petition as Ex PW-1/I. She has seen the accused for the first time at Rokka Ceremony held on 04/10/1992 and she did not met accused Hira Lal in between the Rokka Ceremony and the day of marriage nor she talked to him. She denied the suggestion that accused Hira Lal asked her parents to allow her to meet her once before the marriage. She had also denied the suggestion that Nirmala Devi and Hira Lal (both mediators of marriage) and accused husband Hira Lal and his parents had disclosed about his first marriage and about the State Vs Hira Lal 10 dissolution of the marriage of accused Hira Lal with Babita (first wife of accused Hira Lal). She has stated that the Shagun and Chunni Ceremony took place on 27/01/1993 and she has stated after 31/03/1993 she had been residing with her parents. She has also stated that her parents in law, their son in law and uncle and Chacha of accused Hira Lal had come and it was told that accused Hira lal was unmarried. She has also stated that her marriage with accused Hira lal had taken place without taking divorce from the first wife and she had made a complaint against accused U/s 498- A/495/494/406/34 IPC. It is further stated that she did not receive her complete Istridhan.
Ld Counsel for the accused persons had argued that the complainant and her family members were told with regard to this marriage prior to the Rokka Ceremony and they agreed to the same. They had stated that they had not concealed any fact with regard to the same.
It is further argued that PW-7 Khajan Singh had stated in his cross examination that PW-5 M. L. Bhola had come to his shop and he had verified about the fact of dissolution of marrige from him he had identified his signatures and the signatures of accused Hira Lal and Babita on the Panchyati Divorce in front of him.
It is further stated that DW-4 Nirmala Devi in her evidence State Vs Hira Lal 11 has already stated that she had told to complainant and her father regarding the Panchayati Divorce of accused Hira Lal with his first wife Babita and this fact was verified by her father subsequently before marriage and therefore there is no question of concealment and all the accused persons should be acquitted from the charges framed against them.
They had further stated that PW-3 Babita who is first wife of accused Hira Lal had deposed against the accused at the instance of the complainant and she was never interrogated by the police nor her statement was recorded. He has further argued that both Rita and Babita has colluded with each other.
Ld Counsel for accused had further stated that there is no specific allegation with regard to the demand of dowry and therefore no case is made out against any of the accused persons U/s 498-A IPC. He has further stated that that complainant was forcibly married to accused Hira Lal by her father as she was having an affair with some other boy.
He has also argued that the complainant has alleged that costly articles and jewellery were given but marriage was performed on the road and father of complainant did not even have his personal telephone at his house and the marriage card bears a PP Number. He has further stated that the allegations made against all State Vs Hira Lal 12 the Devars of the complainant are completely false and frivolous as they are undated.
He has further stated that without taking valid divorce from previous wife, second marriage become nullified in the eyes of law and therefore provision of Section 498-A IPC cannot be invoked. He has relied upon the judgment titled as Rajinder Tiwari Vs State 2007 (2) Cr. Court Cases 566 Delhi.
It is further argued that even after filing of petition for restitution of conjugal rights, the complainant never joined the company of accused Hira Lal. He has further stated that though she has stated that the articles were handed over to all the accused persons but no specific roles has been assigned individually to any of the accused persons and therefore the entrustment is not proved and accused persons are entitled to be acquitted for the offence punishable U/s 406 IPC.
He has further argued that bills of jewellery have been produced but the person who had issued those bills should have been examined but no such person had made a witness.
He has further argued that the testimony of defence witnesses have to treated at per with the testimony of prosecution witnesses & they are entitled to get equal treatment & respect & has relied upon State of Haryana Vs Ram Singh 2002 (1) JCC State Vs Hira Lal 13
385. He has further argued that if two views are possible, one of acquittal & other of conviction, accused would be given benefit. He has relied upon State of Rajasthan Vs Bhawar Singh & Ors, 2004 III AD (Cr.). S. C. 45.
On the other hand Ld APP for State has argued that complainant and her family members were never told about the first marriage of accused Hira Lal with Babita and PW-5 M.L. Bhola had never gone to the shop of PW-7 Khajan Singh and had never verified the fact about the dissolution of marriage of accused Hira Lal from him. He has stated that neither the complainant and her family members were aware about the first marriage of accused Hira Lal nor about its dissolution and therefore they are liable for concealment as well as bigamy as the divorce was taken admittedly in Panchayat and not by any court of law.
He has further argued that Babita and Complainant Rita had never colluded with each other and statement of Babita is natural as similar kinds of demand were raised from Babita as well as Rita.
He has further argued that there are specific allegations of demand of dowry against accused persons and harassment by the Devars of the complainant and taunting by them and therefore all accused persons are liable to be convicted U/s 498-A/34 IPC. State Vs Hira Lal 14 He has further argued that the version of the accused persons with regard to illicit relationship of the complainant is false and frivolous as it has been introduced for the first time in the defence of the accused Hira Lal.
He has further argued that marriage of complainant was performed with great pomp and show and this fact is evident from the material placed on record. The articles which were returned to the complainant by the accused persons itself shows that the marriage was performed nicely. He has stated that there is a list of dowry articles which shows the status of marriage solemnized by the father of complainant and the averment of the accused persons that marriage card bears PP Number is of no significance.
As regards that arguments of the Ld Counsel for accused persons regarding the nullity of second marriage is concerned, he has argued that the accused persons cannot take advantage of the same by relying on judgment namely Rajinder Tiwari Vs State 2007 (2) Cr. Court Cases 566 Delhi. The accused persons have thus admitted that the valid divorce had not been taken by accused Hira Lal from Babita and therefore offence of bigamy is clearly made out.
He has further argued that the complainant has specifically stated that the articles were taken by the mother in law, father in State Vs Hira Lal 15 law and accused husband and she has clearly proved the entrustment and even otherwise the cross examination of accused Hira Lal clearly shows that the entire articles have not been returned and therefore all accused persons are liable to be convicted U/s 406 IPC.
As regards the bills, he has stated that they were not objected to at the time of their exhibition and therefore no defence can be taken at this stage.
He has stated that prosecution has proved the case successfully and therefore accused persons are liable to be prosecuted for cheating, bigamy, concealment of marriage as well as U/s 498-A/406 IPC and 4 Dowry Prohibition Act.
There are certain admitted facts from both the sides that the second marriage of accused Hira Lal with complainant Rita was mediated by Nirmala Devi and Hira Lal i.e. Bua and Phupha of accused Hira Lal. The accused persons have admitted that first marriage of accused was dissolved by way of Panchayati Divorce and not by any court. The date of Panchayati Divorce is 24/01/1992.
As far as contention of the Ld Counsel for accused with regard to collusion of PW-3 Babita (Earlier wife of the accused Hira Lal ) and complainant Rita are concerned, it is stated that no suggestion have been given either to Babita or to Rita at any point State Vs Hira Lal 16 to time during their cross examination that they had colluded with each other. It is further pertinent to mention here that though the statement of Babita was never recorded by police but she was made a witness in the charge sheet itself since very beginning. The documents with respect to her Panchayati Divorce with accused Hira Lal were also annexed with the charge sheet. Levelling of similar allegations by Rita and Babita cannot suggest that they had colluded with each other. In fact their allegation with regard to the demand and with regard to the impotency of accused Hira Lal are supporting the case of prosecution and are strengthening the same and therefore this contention of Ld Counsel for accused persons is turned down. PW-3 Babita is a natural witness and she has deposed in a natural manner and had come forward to state the truth.
As far as allegation that the complainant forcefully married the accused Hira Lal by her father as she was having an affair with somebody is concerned, it is also coming in the cross examination of the accused Hira Lal for the first time and no suggestion was ever given to complainant Rita that she had an affair with somebody and therefore it is an afterthought and holds no significance.
The further contention of the Ld Counsel for accused persons is that the defence witnesses are to be treated at par to the prosecution witnesses. It is the settled proposition of law that State Vs Hira Lal 17 defence witnesses should be given the same respect and dignity as the prosecution witnesses have however the same depends upon the case to case. The testimony of prosecution witnesses as well as defence witnesses has to pass the test of trustworthiness and credibility. The testimony should be credible and therefore it is in consequential whether the same is of defence witnesses or of prosecution witnesses. Hence this contention of Ld Counsel for accused holds significance and would be taken care of below while deciding the issues.
The case of complainant is that the marriage of the complainant with accused Hira Lal was mediated by Nirmala Devi and Hira Lal (Bua and Phupha of accused husband Hira Lal) and Rokka Ceremony was hold on 04/10/1992 and it is also stated that father of complainant had met the accused Hira lal for the first time at his shop with Nirmala Devi at Bhagirath Palace whereas accused person's version which has come for the first time in the evidence of accused Hira lal is that the parties have met together at Gauri Shankar Mandir at Chandni Chowk, Delhi. It is pertinent to mention here that the suggestions with regard to meeting of the parties at Gauri Shankar Mandir had not been given either to the complainant or to father of complainant i.e. PW-5 M.L. Bhola in their cross examination. It is only in the cross examination of defence State Vs Hira Lal 18 witnesses along with accused Hira Lal who had been examined U/s 315 Cr.PC that they had come up with this fact that the meeting between the parties were held in Gauri Shankar Mandir at Chandni Chowk, Delhi. PW-1 Rita had clearly denied the suggestion that DW-4 Nirmala Devi had disclosed about first marriage and Panchayati dissolution of marriage before the fixation of the marriage of accused Hira Lal with Rita and there is no concealment of the fact of previous marriage and its dissolution.
PW-7 Khajan Singh is a prosecution witness to the dissolution of marriage of accused Hira Lal with Babita as he was Sarpanch at that time and he has stated that the agreement for dissolution was prepared in his presence. In his cross examination by Ld Counsel for accused persons, he had stated that PW-5 M. L. Bhola had come to him in the month of June 1992 along with documents pertaining to dissolution of marriage between Babita and accused Hira Lal and he was having all these documents on which he identified the signatures. PW-5 M. L. Bhola enquried about him about the dissolution of marriage. It is pertinent to mention here that though PW-7 Khajan Singh is a prosecution witness and has deposed in favour of accused persons however his testimony has to be tested on the point of trustworthiness. PW-5 M.L. Bhola in his evidence has clearly stated that Rokka Ceremony was performed on State Vs Hira Lal 19 04/10/1992 and the proposal had come just 15-20 days before the Rokka Ceremony. This fact was not disputed by the accused persons and no suggestion has come in this regard from the side of the accused persons and had not been put to the PW-5 M.L. Bhola. As per the PW-5 M.L. Bhola this proposal was initiated approximately in the month of September 1992 and therefore no question of meeting with PW-7 Khajan Singh by M. L. Bhola, father of complainant in the Month of May / June 1992 arises as at that point of time he even did not know about the family of the accused persons which is not a disputed fact herein. It is further important to notice that no such suggestion has been put to either to PW-1 Rita and PW-5 M. L. Bhola that PW-5 M.L. Bhola had met Khajan Singh even before the marriage in order to enquire about the dissolution of marriage between accused Hira Lal and Babita. Hence the testimony of PW-7 Khajan Singh cannot be trusted and his testimony is discarded for this very reason. It is apparent that it is an afterthought and he had been won over by the accused person. But it is also important to note here that it has been admitted by PW-7 Khajan Singh that divorce between accused Hira Lal and Babita took place by intervention of Panchayat and not by court of law. This fact is otherwise also not disputed.
The other defence witnesses namely Satpal, Nirmala Devi State Vs Hira Lal 20 and Hira Lal who are relatives of accused persons had also stated that they had told about the factum of previous marriage and about the dissolution of marriage to complainant and her family but this fact is also proved false by the reason that all the defence witnesses have stated that meeting between complainant's family and accused's family had taken place for the first time in Gauri Shankar Mandir at Chandni Chowk, Delhi. In the entire evidence of the complainant and her father, no such statement had come, no suggestion was put to the complainant or her father that meeting took place at Gauri Shankar Mandir at Chandni Chowk, Delhi during their cross examination and it was disclosed to them about the previous relationship of accused Hira Lal. It has only come during the examination of defence witnesses and therefore it is clearly an afterthought. These witnesses have clearly deposed a false fact and therefore they cannot be trusted upon and their testimony is discarded for the same reason. Apart from that DW-4 Nirmala Devi though was the Bua of accused Hira Lal but she pleaded ignorance with regard to the reason of dissolution of first marriage of accused Hira Lal with Babita and she stated that she did not attend the first marriage of accused Hira Lal. At one place, she is so close that she mediated the marriage between the accused Hira Lal and complainant Rita but at the other place, she is stating that she had State Vs Hira Lal 21 not attended the first marriage of accused Hira Lal and she did not know the reason of Separation of accused Hira Lal and Babita. It is beyond the comprehension of the normal person and belies logic and therefore testimony with regard to the fact that the complainant and her father were told about the previous marriage and dissolution of marriage of accused Hira Lal with Babita is discarded.
Apart from the discussion made above, it is worthwhile to note that DW-2 Satpal in his cross examination has stated that at Gauri Shankar Mandir, he was present and accused Hira Lal & Rita were made to sit separately to talk to each other and M. L. Bhola & Rita were told about earlier marriage of accused Hira Lal and Babita & dissolution of their marriage by Panchayati divorce whereas in the cross examination of PW-1 Rita a suggestion was given by the accused persons to her that he wanted to talk to the complainant and asked her parents that they should allow him to meet her once before her marriage. The suggestion put to the complainant suggests that he could not talk to complainant whereas DW-2 Satpal had stated that both accused Hira Lal & complainant were made to sit separately & talk to each other. This statement shows that defence witnesses & accused are taking false stand on every issue.
I therefore hold that the accused Hira Lal had concealed the factum of his previous marriage and dissolution of the said marriage State Vs Hira Lal 22 with Babita from complainant and her father prior to marriage and it is only after the marriage that the complainant came to know about the same and told the same to her family. Hence accused Hira Lal is held guilty for the offence punishable U/s 495 IPC.
As far as Section 494 IPC is concerned though it is an admitted fact that the Panchayati Divorce took place between accused Hira Lal and Babita and no divorce took place by the court of law. Accused Hira Lal has not been able to show the prevailing custom in the families by which the marriage could be dissolved in this manner. Therefore I am of the considered view that valid divorce did not take place and accused Hira Lal is held guilty for the offence of bigamy U/s 494 IPC.
As far Section 498-A IPC is concerned, Ld Counsel for accused has argued that this second marriage is nullity. At one place, Ld Counsel for accused has argued that the divorce is valid, at another place he submits that second marriage is a nullity & Section 498-A IPC can not be invoked. He cannot blow hot & cold at the same time. It is not the case where accused had admitted his guilt U/s 494 IPC. Probably then, the judgment Rajinder Tiwari (Supra) would have been applicable. In view of facts & situation of this case, this judgment Rajinder Tiwari (Supra) cannot be applied & accused can be held guilty for the offence U/s 498-A as he State Vs Hira Lal 23 admits his relationship with Rita in case other ingredients of Section 498-A are fulfilled.
Ld APP for State has relied upon Surinder Kumar Yadav and ors. Vs The State 2000 (53) DRJ 83 that non return of Istridhan also amounts to Harassment. In this regard it is stated that Istridhan was demanded back after she had gone to her parental home. Harassment coupled with demand should be essentially there during the stay of complainant with accused. This is not a kind of cruelty which can cause danger to life, limb or health of complainant.
The complainant made a statement that accused Hira Lal had demanded Rs 50000/- on 29/01/1993 and in the morning parents in law repeated that demand and then she again stated that on 01/02/1993 when she had gone to Ferra Ceremony her mother in law and her husband had pinched her for demanding of Rs 50,000/- from her father and on her refusal for demanding the same, she was abused on her return to matrimonial home. It is further stated that she was daily abused and harassment for demand of dowry. Apart from this allegation there is no allegation with regard to the demand of dowry or harassment in connection with the same. Though there is one more allegation on 31/03/1993 all the three accused persons i.e. Accused husband, father in law and mother in law had dropped State Vs Hira Lal 24 her to parental home and threatened not to come back till demand of Rs 50000/- is fulfilled but herein also she has stated that her mother in law had given beatings to her on 31/03/1993 before dropping her to parental home.
It is pertinent to mention here that mother in law of complainant namely Geeta had already expired.
There is no allegation of demand of dowry by any Devar. All the three Devars namely Prem, Praveen and Vijay are acquitted for charge framed against them for the offence punishable U/s 498-A/34 IPC.
As far as the outraging the modesty is concerned, no specific dates has given against the Devars / brothers in law. It is simply stated that they used to call her "Panchali". No specific instances have been enumerated.
Hence, accused Hira Lal (Husband) and Raj Kumar (father in law) are held guilty for the charge framed for the offence U/s 498- A/34 IPC.
Cheating :- Perusal of record shows that act of accused does not come within purview of Section 420 IPC. But he can certainly be held guilty under minor offence.
Section 415 IPC provides that " Whoever, by deceiving any person, fraudulently or dishonestly induces the person State Vs Hira Lal 25 so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Offence U/s 415 IPC is punishable U/s 417 IPC. Since marriage of the complainant Rita has been solemnized with accused Hira Lal on the false pretext that the accused Hira Lal was unmarried. Therefore a clear cut case of cheating is made out punishable U/s 417 IPC. In this regard reliance is placed upon judgment titled M.N.A. Achar, Vs Dr. D.L. Rajagopal and others, 1977 CRL. L. J. (NOC.) 228 (KANT.) The accused Hira Lal and his father were under an obligation to disclose the same before proceeding further in respect of relationship of Hira lal with Rita. But as already discussed, they concealed this material fact.
Therefore accused Hira Lal and his father are held guilty for the offence punishable U/s 417 IPC.
As far as Section 4 Dowry Prohibition Act is concerned, it is settled proposition of law if there is any demand in connection State Vs Hira Lal 26 of marriage then only this section can be invoked, otherwise this section cannot be invoked.
As far as the present case is concerned, the allegations in the present case are not that the dowry was demanded or any other articles was demanded by accused persons at the time of marriage and the father of complainant fulfilled that demand. On the contrary the allegations herein are that Rs 50,000/- was demanded by the accused husband Hira Lal and subsequently by the father in law and mother in law after the marriage and it had no concern with the marriage and therefore in my considered opinion Section 4 Dowry Prohibition Act r/w 34 IPC is not made out. All accused persons are acquitted from the charge framed for Section 4 Dowry Prohibition Act r/w 34 IPC.
As regard the Section 406 IPC is concerned, the essential ingredients in order to constitute the criminal breach of trust have been described in S.W. Palanitkar Vs State of Bihar 2002 SCC (Cri) 129 which are as under:
(i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting the property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in State Vs Hira Lal 27 violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made touching the discharge of such trust.
The punishment for commission of offence U/s 405 IPC is given U/s 406 IPC.
Now adverting to the facts of the complaint, the complainant in her complaint had stated that after marriage her Doli was taken to the maternal uncle of accused Hira Lal namely Shyam Lal Sethi and from there after two days they shifted to B-35, Krishna Nagar, Delhi along with the articles. She has stated that Istridhan articles are lying in the possession of accused persons i.e. accused husband Hira Lal, mother in law Geeta and father in law Raj Kumar. Her mother in law Geeta had already expired. She has stated that else than receiving certain articles in CAW Cell on 29/07/1993 vide list Ex PW-1/E, no other Istridhan articles have been returned to her. Her list of remaining articles is Ex PW-1/D. It is pertinent to mention here that articles mentioned in list bearing Ex PW-1/E i.e. which were returned to the complainant contained no jewellery at all. She had given a list of dowry articles Ex PW-1/B and Ex PW-5/A mentioning articles received by her from parents and her relatives and from in laws side respectively. She had stated that that jewellery worth Rs 1,19,000/- have not been returned and the entire articles which are State Vs Hira Lal 28 not returned were worth Rs 1,86,390/- including jewellery.
She has stated that the articles were demanded from the accused persons in Biradari meetings conducted on 11/04/1993, 25/05/1993 and finally on 08/06/1993. On 08/06/1993, the articles were demanded through her father and her Phupha K. L. Madan as they went to the house of accused persons but they were threatened there and accused persons refused to return the articles.
Perusal of the cross examination of accused i.e. DW-1 Hira Lal shows that he has stated in his cross examination dated 24/03/2012 that the Istridhan was taken to the house of Shyam Lal Sethi (Maternal Uncle of accused Hira Lal) after marriage and then it was shifted to B-35, Krishna Nagar, Delhi however in subsequent cross examination dated 25/08/2012, he stated that he had gone alone to the house of Shyam Lal Sethi with PW-1 Rita and not with the Istridhan articles. He has given two different versions on two dates meaning thereby that he had deliberately given false statement. He has admitted certain articles received by the complainant in her marriage. The story of the accused Hira Lal is that the complainant had gone for "Ashtami" to her parental home and he dropped her at her instance whereas DW-3 Witness Satnam Kaur had stated in her statement that she was the neighbour of the accused persons and she saw that on the day of Holi, the brother of State Vs Hira Lal 29 complainant namely Sanjay along with his two friends had come to the matrimonial home of the complainant to apply colour on her face and when they were applying the colour her ear rings were misplaced. She denied the suggestion that no one came on the occasion of Holi from the family of the complainant to the matrimonial home of the complainant. When she was asked whether one ear ring was misplaced or both, she stated that one ear ring was misplaced whereas version of accused Hira Lal is that both the ear rings were misplaced. DW-3 Satnam Kaur had further stated that on the next day of Holi, complainant Rita left her matrimonial home saying that she would not stay at her matrimonial home as her parents got her married forcefully there but accused Hira Lal says that he took her on the occasion of "Ashtami". The statement of both the witnesses are contradictory in this respect. Accused Hira Lal in his cross examination had admitted that no articles except the one returned in CAW Cell had been returned anywhere else to the complainant. He has further stated that in his cross examination dated 25/08/2012 that the complainant went for "Ashtami" only in clothes she was wearing on that day whereas in the petition filed by him for restitution of conjugal rights Ex PW-1/H U/s 9 HMA at para 6, he has stated that the complainant had taken three rings, four gold bangles / karas, one pair of ear rings, one pair of tops along with Rs State Vs Hira Lal 30 600 in cash and some valuable sarees on the occasion of "Ashtami" and promised to come back to the house of petitioner after celebrating the "Ashtami". He has given two contradictory versions before two forums with respect to her going to her parental home. The jewellery articles and valuable sarees mentioned above which she is alleged to have taken along with her clearly shows that she was having these articles as her Istridhan and therefore it is not to be proved that these all articles were given to her either from the parents side or from the side of in laws to her at the time of her marriage. In respect of the aforesaid articles, there is no need of proving entrustment as the statement of the accused Hira Lal in petition U/s 9 HMA and in cross examination dated 25/08/12 clearly reveals that he had given a false statement before the court with respect to the aforesaid point. Therefore, it is settled that she is entitled to get back these articles. In fact the statement of accused Hira Lal is nothing but a bundle of lies.
As far as giving of four bangles are concerned, it has also come during the statement of defence witnesses namely DW-4 Nirmala Devi and DW-5 Hira Lal that they gave Chudha to the complainant at the time of her marriage being Mama and Mami. The defence witnesses could not proved that the brother of the complainant had come on the occasion of Holi and her ear rings had State Vs Hira Lal 31 been misplaced. It is pertinent to mention here that in a letter written by accused Hira Lal to DCP which is Ex PW-4/DA dated 24/07/1993, he had stated that complainant and her parents be directed to receive the admitted items in the presence of enquiry officer and this letter was accompanied by 4 Annexures A, B, C and D wherein they had written "admitted" or "denied" in front of every article which was mentioned in the list. Herein in this list one gold ring was admitted but from the record it is clear that gold ring had never been returned back. It is also important to notice that four bangles have also been denied by accused in Annexure B but same is mentioned in evidence of DW-4 and DW-5 as well as in Para 6 of his petition for Restitution of Conjugal Rights where he had stated that complainant had already taken them. Similarly the para 6 of Restitution of Conjugal Rights petition also find mention of valuable sarees of the complainant. From the evidence of the accused Hira Lal and the other defence witnesses, it is crystal clear that the aforesaid articles as discussed above have never been returned to complainant though they form part of her Istridhan. The Istridhan in simple words means whatever is given to the bride at the time of her marriage either from her parents and relatives or by her in laws. The other necklaces etc have also been denied. The aforesaid articles have been proved to be in possession of the accused State Vs Hira Lal 32 persons in view of the testimony of accused Hira Lal. It is also proved that the articles were demanded back in reconciliation meetings held on 11/04/1993, 25/05/1993 and 08/06/1993 and the articles were not given back and on 08/06/1993 father of complainant was threatened in addition to refusal to return the articles. The ingredients of Section 405 IPC are fulfilled. Since the complainant had stated that the articles are entrusted to accused husband Hira Lal, mother in law Geeta and father in law Raj Kumar and since mother in law Geeta had already expired, accused husband Hira Lal and father in law Raj Kumar are held guilty for the commission of offence punishable U/s 406 IPC.
Other accused persons namely Prem, Praveen and Vijay (all the Devars) are acquitted from the charge framed for the offence U/s 406 IPC.
18. Heard on the point of sentence on 30.01.2014 at 2:30 pm. Announced in the open court (VANDANA JAIN) Dated: 17.01.2014 M.M./Mahila Court (E) KKD, Delhi State Vs Hira Lal 33 State Vs Hira Lal 34 .
State Vs Hira Lal 35 State Vs Hira Lal