Delhi District Court
Raj Kumar vs State (Govt. Of Nct Of Delhi) on 8 August, 2016
IN THE COURT OF SHRI SANJAY BANSAL:
ADDL. SESSIONS JUDGE-03 (EAST):
KARKARDOOMA COURTS: Delhi
Criminal Appeal No: 81/2016
(02402R0088372014)
Raj Kumar
S/o Late Sh. Ram Lal
R/o 2759, Gali Pipla Mahadev, Hauz Quazi,
Delhi-110006.
....... Appellant
Vs.
1. State (Govt. of NCT of Delhi)
2. Smt. Rita
(Now Dead and Substituted by Her Father)
Sh. M. L. Bhola
S/o Late Sh. Kishan Chand
R/o 2485, Ghans Mandi,
Gali No. 18-A, Kailash Nagar,
Shahdara, Gandhi Nagar,
Delhi- 110031.
..... Respondents
AND
Criminal Appeal No: 82/2016
(02402R0088392014)
Hira Lal
S/o Sh. Raj Kumar
R/o 2759, Gali Pipla Mahadev, Hauz Quazi,
Delhi-110006.
....... Appellant
Vs.
1. State (Govt. of NCT of Delhi)
2. Smt. Rita
(Now Dead and Substituted by Her Father)
Sh. M. L. Bhola
S/o Late Sh. Kishan Chand
R/o 2485, Ghans Mandi,
Gali No. 18-A, Kailash Nagar,
Shahdara, Gandhi Nagar,
Delhi- 110031.
..... Respondents
Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 1 of 15
Date of Institution : 22.03.2014
Judgment Reserved on : 08.08.2016
Date of Judgment : 08.08.2016
FIR No. : 236/1993
PS. : Gandhi Nagar
U/s. : 498-A/406/494/495/420/34 IPC
& 4 Dowry Prohibition Act r/w 34 IPC
JUDGMENT
1. Vide this common judgment, I shall decide the above mentioned two criminal appeals as they arise out of one judgment; and involves common questions of law and facts. The Crl. Appeal No. 82/16 is treated as leading case.
2. By way of the present criminal appeals, appellants have challenged:
(a) the judgment dated 17.01.2014 vide which they were convicted for the offences punishable under Sections 498-A/406/417/34 Indian Penal Code ("IPC") and appellant Hira Lal was additionally convicted for the offences punishable under Sec. 494/495 IPC; and
(b) order on sentence dated 21.02.2014 whereby Hira Lal was sentenced to undergo RI for a period of three years for the offences under Sec.
498-A/494/495 IPC, to undergo RI for a period of one year for the offence under Sec. 417 IPC; to undergo RI for period of two years for the offence punishable under Sec. 406 IPC; and to pay compensation to the tune of Rs. 3.5 Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 2 of 15Lacs under Sec. 357 (3) CrPC. Appellant Raj Kumar was sentenced to undergo RI for period of two years for the offences under Sec. 498-A/406 IPC; to undergo RI for six months for offence under Sec. 417 IPC; and to pay compensation of Rs. 1.5 Lacs to the complainant under Sec. 357 (3) CrPC. It was also directed that in default of payment of compensation, both convicts were to undergo six months imprisonment. It was also ordered that all the sentences of both convicts shall run concurrently.
3. I have heard Sh. Nitin Sharma, learned counsel for the appellants and Sh. D. K. Singh, learned Addl. PP for State/respondent duly assisted by Sh. Ritesh Bahri, learned counsel for the complainant/respondent no.2. I have perused the record including the trial court record.
4. Complainant Rita had filed a complaint before CAW Cell stating that she was married to accused/appellant Hira Lal on 28.01.1993 according to Hindu rites and customs; and in that marriage her parents had given all necessary articles including gifts, jewellary, clothes, furniture and electronic items etc. It was alleged that said marriage was solemnised by pretending that Hira Lal was a bachelor and concealing the fact that he was earlier married to one Babita and had not obtained divorce from said earlier wife. It was also alleged that after marriage, instead of consummating the marriage, accused Hira Lal pressurized the complainant to bring Rs. 50,000/- to repay the loan taken by his parents, and on her refusal, her customary phera ceremony was postponed. It was alleged that she was beaten and ill-treated by accused Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 3 of 15persons on this count then she shifted to new acquired accommodation. It was also alleged that on her phera ceremony, she was again insisted to raise said demand but when she did not do so, she was taken back hurriedly without allowing her to meet her parents. It is also alleged that during her stay of two months and two days at her matrimonial home, marriage between the parties was never consummated; and during the entire said period, she was ill-treated on account of dowry demands. There were even allegations of outraging her modesty by other accused persons. It was also alleged that despite demands, her istridhan articles were not returned to her.
5. On the basis of this complaint, police took action and present FIR was registered and after completion of the investigation, chargesheet was filed against Hira Lal (Husband), Raj Kumar (Father-in-law), Prem, Praveen and Vijay (all Brothers-in-law) and Smt. Geeta (Mother-in-law) under Sections 498- A/406/420/34 IPC r/w Sec. 4 of Dowry Prohibition Act.
6. Vide order dated 01.10.1994, charges for the offences punishable under Sec. 498-A/34; 406/34 and 4 Dowry Prohibition Act r/w Sec. 34 IPC were framed against accused persons Hira Lal; Prem; Praveen; Geeta; Raj Kumar and Vijay. Separate charge under Sec. 494 and 495 IPC was also framed against accused Hira Lal. To the said charges, all the accused persons pleaded not guilty and claimed trial.
7. Besides the above, later on vide order dated 15.01.2005 in pursuance to the order passed in Revision petition, separate charge under Sec.
Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 4 of 15420/34 IPC was also framed against accused persons Hira Lal and Raj Kumar and to the said charge, these accused persons also pleaded not guilty and claimed trial.
8. It is not out of place to mention here that during the proceedings of this case, accused Geeta has expired and proceedings against her stood abated.
9. To prove the allegations, prosecution examined as many as eight witnesses as follows:
10. PW-1 Rita was complainant of the case. She deposed regarding her allegations.
11. PW-2 HC Satya Prakash proved the copy of the FIR as Ex.PW2/A.
12. PW-3 Babita Gupta is the first wife of appellant Hira Lal.
13. PW-4 SI Vikram Singh, while posted at Women Cell, Nanakpura, received the complaint of complainant and took action on the same and proved the documents Ex.PW4/A to C with other records.
14. PW-5 M. L. Bhola is father of the complainant. He also deposed in support of complainant.
15. PW-6 Const. Mahesh accompanied SI Vineeta Tyagi to the house of the accused persons and proved the memos Ex.PW6/A to C.
16. PW-8 Inspt. Dinesh Kumar, after entrustment of investigation of this case to him, visited the house of accused persons and proved the memos Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 5 of 15Ex.PW8/A to C.
17. There is no PW-7.
18. PW-9 Inspt. Vineeta Tyagi, the then SI, was IO of the case. She got the case registered on putting her endorsement Ex.PW9/A with other documents.
19. Appellants in their statements recorded under. 313 CrPC denied the prosecution case as alleged against them. All of them pleaded that they have been implicated falsely in this case.
20. All the accused persons led defence evidence.
21. DW-1 Hira Lal is accused/appellant who himself appeared as a defence witness. He deposed that nothing was concealed from the complainant or her father. He also denied all the allegations of cruelties.
22. DW-2 is Sat Pal. He is a relative of the appellants and deposed that the fact of previous marriage was not concealed from the complainant side.
23. DW-3 Smt. Satnam Kaur, neighbour of accused persons, stated that it was the complainant who herself did not want to live with accused stating that her marriage was solemnised forcefully. She also stated that complainant left her matrimonial home despite the request made by her in-laws not to leave the matrimonial home on petty issues.
24. DW-4 Smt. Nirmla Devi deposed that she informed the factum of earlier marriage of accused Hira Lal and its dissolution too. She also deposed that complainant of this case never complained to her regarding her Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 6 of 15maltreatment on any ground.
25. DW-5 Sh. Heera Lal is husband of Smt. Nirmla Devi, mediator of the marriage of Rita and accused Hira Lal.
26. There is no DW-6.
27. DW-7 Khazan Singh is a witness to the effect of dissolution of marriage between accused Hira Lal and his earlier wife namely Babita.
28. Learned MM on the basis of material placed on record held that prosecution had proved the case against Hira Lal and Raj Kumar but failed to prove the charges against remaining accused persons and they were acquitted. Learned MM thus convicted the appellants as mentioned in the beginning.
29. Learned counsel for the appellants contended that impugned judgment suffers from various illegalities and is erroneous and prayed for setting aside the impugned judgment. Learned counsel for the appellants submitted that learned trial court did not consider the evidence properly. Learned counsel argued that cognizance was not properly taken and the whole proceedings were vitiated. He submitted that conviction u/s 498-A IPC is unsustainable as complainant herself says that she is the second wife of the appellant Hira Lal and that she had even obtained decree of nullity regarding her marriage. He also pointed out that there was enough evidence on record to show that fact of previous marriage was not concealed and therefore conviction u/s 417 and 495 IPC is bad. Regarding conviction u/s 406 IPC, learned counsel contended that same was also bad as the appellants had not withheld any Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 7 of 15stridhan articles of the complainant and rather the complainant had already taken all her jewelery articles and other articles were returned before CAW Cell.
30. On the other hand, learned Addl. PP for the State, duly assisted by learned counsel for the complainant, argued that judgment is well reasoned one and no interference is called for. He submitted that findings of the learned MM are correct. It is to be mentioned here that during pendency of these appeals, the complainant Smt. Rita had also expired and was substituted by her father Sh. M. L. Bhola.
31. The contentions of the parties can be decided broadly categorized as follows:
ON COGNIZANCE
32. The first and foremost argument advanced by ld. counsel for the appellants was that cognizance in this case was badly taken. He referred to provisions of Sec. 195 CrPC and submitted that as some offences were u/s. 494/495 IPC, the learned MM could not have taken the cognizance except upon a complaint made by the wife. He pointed out that there was no reference in the order of taking cognizance to any complaint made or filed under Sec. 195 CrPC.
33. Learned Addl. PP submitted to the contrary. He pointed out that complaint under Sec. 195 CrPC was very much filed. He highlighted that the said complaint was even exhibited in evidence of PW-1 and marked as Ex.PW1/J. He also drawn my attention to judgment dt. 23.11.2004 passed by learned ASJ in Revision Petition No. 52/03 and that judgment also there is an Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 8 of 15observation that separate complaint filed by the complainant was there on record. He, thus, submitted that cognizance was properly taken.
34. The said complaint Ex.PW1/J is, however, not available now on the judicial file. Concerned Ahlmad was asked to trace out the same but it could not be traced out. The matter is quite old. Thus, without wasting further time, matter was heard.
35. It has come in evidence of PW-1, recorded on 31.08.2002, that a complaint against the accused persons u/s 406/498-A/495/494 was marked as Ex.PW1/J which was having nine pages. Thus, it is apparent that a separate complaint was in fact filed by the complainant. Copy of the said complaint was supplied during hearing of these appeals. Though the original complaint is no more traceable, but it cannot be said that no such complaint was filed. Presumption is to be drawn in favour of the complainant. Therefore, it is held that cognizance was properly taken.
ON CONVICTION U/S 498-A/34 IPC
36. Learned counsel for appellants also vehemently submitted that offence u/s 498-A/34 IPC was not made out. He argued that even as per complainant she was second wife of Hira Lal and that there was no legal divorce between Hira Lal and first wife, and for this reason, complainant cannot allege commission of offence u/s 498-A IPC. He relied upon Capt. Rajinder Tiwari v. The State (NCT of Delhi), 2007 (2) Criminal Court Cases 566 Delhi.
37. Learned counsel for complainant and learned Addl. PP submitted Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 9 of 15that this judgment was cited before learned MM also but was not applied by her to the present case. Learned counsel for complainant has relied upon judgment reported as Reema Aggarwal v. Anupam & Ors., AIR 2004 SC 1418 and also Koppisetti Subbharao @ Subramaniam v. State of AP, AIR 2009 SC 2684. He argued that in both these judgments, similar issue was involved and Hon'ble Supreme Court held that the husband need not be legally wedded person. It was held that a second wife can prosecute the husband for offence u/s 498-A and 304-B IPC even if her marriage was not legal within the law.
38. In Capt. Rajinder Tiwari's case (supra), it has been clearly laid down by Hon'ble Delhi High Court that the second wife being not legally wedded wife cannot prosecute the husband for offence u/s 498-A IPC. Hon'ble Delhi High Court relied upon its own judgment in the case of Mohit Gupta & Ors. v. State Govt. of NCT of Delhi & Anr., 2006(3) JCC 1923. In the case of Mohit Gupta, Hon'ble Delhi High Court had relied upon one judgment of the Hon'ble Supreme Court reported as Shivcharan Lal Verma v. State of MP, 2002(2) Crimes 177(SC). The Hon'ble Delhi High Court had also taken note of Reema Aggarwal's case (supra) but did not follow the said case and followed the judgment in Shivcharan's case (supra) as it was of larger bench. In Shivcharan's case, it was held by Hon'ble Supreme Court, in almost similar facts, that conviction u/s 498-A IPC was unsustainable as the marriage of complainant with the accused was null and void having taken place during lifetime of earlier wife. The Hon'ble High Court held the judgment in Reema Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 10 of 15Aggarwal's case (supra) as per incuriam.
39. Therefore this court, being subordinate court, has to follow the law declared by the Hon'ble High Court of Delhi. Learned MM did not apply Capt. Rajinder Tiwari's case only on the ground that the appellant Hira Lal did not admit his guilt u/s 494 IPC. In my view, this approach of learned MM is erroneous. Application of law, as declared by the Hon'ble High Court of Delhi, does not depend on any admission of an accused. It was case of complainant herself that she was second wife of Hira Lal and her marriage with him was not legal. Therefore, there is no hesitation in the mind of this court to hold that conviction u/s 498-A/34 IPC cannot be sustained.
ON CONVICTION U/S 494/495 & 417/34 IPC
40. Both appellants were convicted u/s 417/34 IPC. Appellant Hira Lal has been convicted u/s 494/495 IPC also.
41. I have already held that cognizance was properly taken. There is no dispute whatsoever that firstly appellant Hira Lal had married with one Babita and after obtaining Panchayati Divorce from her, he married Rita. The Panchayati Divorce, as rightly held by learned MM, has no value in the eyes of law. The appellant had failed to show any custom or ritual which has the force of law and which provides that such Panchayati Divorce is valid. Thus, appellant Hira Lal could not have legally married with Rita during lifetime of his first wife Babita. It has no effect that Babita had also accepted the said Panchayati Divorce and she had also re-married. Thus, conviction of Hira Lal u/s 494 IPC Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 11 of 15was valid.
42. As far as conviction u/s 495 IPC and 417/34 IPC is concerned, it is to be noted that the marriage between Rita and appellant Hira Lal was arranged one. The proposal of marriage was brought to the father of complainant by one Nirmala Arora w/o Hira Lal. PW-5 M. L. Bhola/father of complainant in his evidence in cross-examination has stated that husband of Nirmala Arora namely Hira Lal used to be addressed as Mama by his children including complainant Rita. It has come that PW-5 knew Hira Lal 4-5 years prior to 1993. PW-5 denied the suggestion that Hira Lal (husband of Nirmala) had told him about previous marriage of appellant Hira Lal with Babita. It has come that he did not make any complaint against Nirmala and her husband.
43. Nirmala Devi is Bua and her husband Hira Lal is Fufa of appellant Hira Lal. Appellant Hira Lal appearing as DW-1 says that they are Mami and Mama of Rita. PW-5, however, says that there was no relationship but only due to long acquaintance, Rita used to call him as Mama. Both Nirmala Devi and her husband Hira Lal had appeared as defence witnesses.
44. Nirmala Devi appearing as DW-4 has explained the relationship. She has deposed that father of appellant Hira Lal i.e. appellant Raj Kumar is her cousin brother being son of her maternal uncle (Mama). She has also deposed that M. L. Bhola, father of the complainant is her Nandoi. DW-5 Hira Lal (husband of DW-4) says that wife of M.L. Bhola is his wife's foster sister (Mooh Boli Behan). DW-4 has categorically deposed that before engagement, she had Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 12 of 15told M. L. Bhola about previous marriage of appellant Hira Lal. She also deposed that M. L. Bhola had even verified the said fact. DW-5, however, has shown his ignorance about first marriage of appellant Hira Lal.
45. PW-5 i.e. father of complainant has stated that if he was aware of first marriage of appellant Hira Lal, he would not have married his daughter Rita with him.
46. It is an admitted fact that Smt. Nirmala was the person who had brought the marriage proposal of appellant Hira Lal to father of the complainant. She played the role of match-maker. It was an arranged marriage. When a person who is the match-maker / mediator of the marriage himself/herself appears as a witness and says that nothing was concealed from the family of the bride, in my view, it will be next to impossible to draw any other conclusion to the contrary. Father of the bride/PW-5 has said that fact of previous marriage was concealed whereas appellants say that the said fact was disclosed. These contradictory and opposite stands of the parties are understandable. The best person to throw light on the issue was the mediator. DW-4 Smt. Nirmala was the mediator and she has categorically stated that fact of previous marriage had been disclosed to the father of the girl i.e. PW-5. This should put an end to the controversy. It was suggested to DW-4 that she had not disclosed the said fact to PW-5 and the witness denied the said suggestion. It is interesting to note that PW-5 has not prosecuted DW-4 Smt. Nirmala or her husband for offence u/s 417 IPC. This also goes against the prosecution. Thus, testimony of DW-4 Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 13 of 15shows that the fact of previous marriage was not concealed from the father of the complainant or from the complainant. Findings of learned MM to the contrary cannot be sustained. Consequently, conviction of both the appellants u/s 417/34 IPC is set aside. For the same reasons, conviction of appellant Hira Lal for the offence u/s 495 IPC is also set aside.
ON CONVICTION U/S 406/34 IPC
47. Hira Lal and Rita lived together for a brief period from 29.01.1993 to 31.03.1993. During this brief stay, Rita has alleged that she was subjected to ill-treatment, harassment and cruelties for not bringing enough dowry. She has deposed in detail about her ordeal. Learned MM has also taken note of the deposition of Rita/PW-1 and her father PW-5 in respect of allegations of cruelties. She has also alleged that her stridhan articles were also not returned.
48. PW-1 in her evidence exhibited list of her stridhan articles which is Ex.PW1/B. The articles in this list are those which were given to PW-1 by her family and relatives. The list of stridhan articles given to her by the in-laws is Ex.PW5/A. The list of articles which were not returned is Ex.PW1/D. The list of articles which were returned at CAW Cell is Ex.PW1/E. PW-1 had deposed that her jewelery articles worth Rs.1,19,000/- were not returned. The entire stridhan articles remaining unreturned were around Rs.1,86,390/- which included jewelery also. PW-1 categorically deposed that she had demanded back her stridhan articles on various dates and finally on 08.06.1993. Learned counsel for complainant argued that almost none of the jewelery articles were returned.
Crl. Appeal No. 81/16 Raj Kumar Vs. The State & Anr.
Crl. Appeal No. 82/16 Hira Lal Vs. The State & Anr. Page 14 of 15The total weight of the jewelery articles is stated to be around 29 Tolas (290 gms).
49. On the other hand, learned counsel for appellants submitted that jewelery articles had already been taken away by the complainant when she had left the matrimonial home. Various articles which were available with the appellants were returned.
50. Learned MM has discarded testimony of appellant on this issue, and in my view, rightly so. All the ingredients of offence punishable u/s 406 IPC have been fulfilled. The conclusions of learned MM regarding this offence are correct. Stridhan articles were not returned in full. Appellants have failed to show that complainant had taken away her jewelery articles. Conviction u/s 406/34 IPC of both the appellants is sustained.
51. In view of the above discussion, conviction of both the appellants u/s 406/34 IPC is sustained. Conviction of appellant Hira Lal u/s 494 IPC is also sustained. However, conviction of both the appellants u/s 417/34 and 498-A/34 IPC are set aside. Conviction of appellant Hira Lal u/s 495 IPC is also set aside. They are acquitted for the offences u/s 417/498-A/34 IPC. Appellant Hira Lal is also acquitted for the offence u/s 495 IPC.
52. Let appellants be heard on sentence.
Announced in open court on 08th day of August, 2016.
(Sanjay Bansal) ASJ-03 (East):
KKD Courts.
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