Delhi District Court
State vs . Leela on 25 August, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. LEELA
FIR No. 573/01
P.S. : R.K. Puram
U/S 406/498A/34 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 30.06.2003
2. SERIAL NUMBER OF THE CASE : 588/2
3. DATE OF COMMISSION OF OFFENCE : 09.05.1997 (date of
marriage)
4. NAME OF THE COMPLAINANT :Mrs. Radha
5. NAME OF THE ACCUSED & ADDRESS :1. Leela W/o Sh. Tejwa
2. Sh. Tejwa S/o late Sh.
Pyare Lal
3. Khem Chand S/o Sh.
Tejwa All R/o village
Belatal Mohalla
Nayapura, PS Kulpahar,
Distt. Mabina, U.P.
6. OFFENCE COMPLAINED OF :U/S 406/498A/34
IPC & Section 4 of Dowry
Prohibition Act
7. THE PLEA OF THE ACCUSED :Pleaded not guilty.
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram
2
8. DATE OF RESERVE OF JUDGMENT : 02.07.2012
9. THE FINAL JUDGMENT : Acquitted.
10.THE DATE OF FINAL JUDGMENT : 25.08.2012
BRIEF REASONS FOR THE DECISION:
1. The complainant made a compliant in CAW cell and thereafter an FIR was registered against the thee accused persons namely Tejwa, Leela and Khem Chand u/s 498A/406/34 IPC & Section 4 of Dowry Prohibition Act. The charge was framed against all the said accused persons u/s 498A/406/34 IPC & Section 4 of Dowry Prohibition Act on 01.03.2004.
2. In order to prove its case, the prosecution has examined six witnesses and the prosecution evidence was closed vide order dated 30.11.2011.
3. PW1 ASI Chandra Kanta deposed that on 29.9.2001, she was posted as DO at PS R.K. Puram and on that day on receipt of complaint from CAW Cell, she recorded the case FIR No. 573/01 vide Ex. PW1/A.
4. PW2 Smt. Radha deposed that she got married with accused Hem Chand on 9.5.1997 according to Hindu Rites and Ceremonies at R.K. Puram. At the time of her marriage, her parents had given her one fridge, one single bed, one sewing St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 3 machine, one almirah, one dressing table, and many other articles which she has mentioned in the list i.e. Ex. PW2/A and PW2/B. Her entire dowry article went to Naoriji Nagar, where the accused person lived at that time. Her inlaws had given her two pair of gold Kangans, one gold set, pair of silver pajeb and two sarees. She could not produce the bill of her dowry articles as same of them were given to the accused person at the time of marriage.
5. She deposed that on 5.5.2000 her husband had beaten her with a danda and turned her out from her matrimonial house since then she has been residing at her parental house. She was harassed and tortured as she has two daughters and when she gave birth to her second daughter she was physically and mentally tortured much and her husband used to beat her frequently. Her father in law Tejwa used to demand dowry from her. When she was turned out and was residing at her parental house, her father had informed to her husband and inlaws even at the time of illness of her daughter but none had come to see her daughter and herself. Her father in law and mother in laws wanted to remarry her husband on the pretext that she gave birth only female children. They further used to demand dowry from her in the form of cash and kind. Lastly when none had come to take her and her daughter back, she made a complaint at Women Cell, Nanak Pura i.e. Ex. PW2/C. Her complete dowry articles were in the possession of her husband and inlaws. She had come to her parental house only in one saree. Once, she had demanded her dowry articles back St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 4 from her husband and inlaws but they had refused to return the same.
6. During her crossexamination she stated that the marriage was performed with her consent. She is fifth class pass. Her first daughter was born on 6.4.1998 and second daughter was born on 9.12.1999. Her second daughter was born at her matrimonial house. At the time of her marriage her husband was doing nothing. Afterwards, he started work on contract basis for the construction of the houses, when she gave birth to her second daughter, her husband, father in law and mother in law harassing her much. She did not make any complaint at that time to any authority. When she was turned out on 5.5.2000, she did not make any police complaint. She admitted that till the birth of second daughter everything was old right. She denied the suggestion that the residential property where the accused persons resided was not their own. She voluntarily stated that they got money for the said property. She denied the suggestion that there is no relative of the accused persons in Delhi. Notice received from CPWD to demolish the jhuggies. The distance from her parental house to her matrimonial house is about one and half Kilometer and it took about 30 minutes by bus. She denied the suggestion that all her dowry articles and jewellary were shifted to her parental home from her matrimonial home after receiving the notice of CPWD for demolition of jhuggi. She denied the suggestion that her husband sent her back to her parental house on 13.6.2000 with her dowry articles and jewellery. She was not aware if the CPWD demolished the jhuggi of Naoraji Nagar on St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 5 9.8.2000 as she was not there. She denied the suggestion that on 25.8.2000 her husband/accused Khem Chand came to her parental house to take her back with him or that she had refused to go with him to her matrimonial house at village Mahua at UP. She denied the suggestion that she said that she will live only in Delhi not in village. She denied the suggestion that on 27.8.2000 Khem Chand alongwith his father and brother came to her parental home to take her back but her parents also refused to send her with them. She was not aware that if any complaint was sent to PS R.K. Puram by her husband. She denied the suggestion that her father threatened to her inlaws to implicate them in a dowry case. She denied the suggestion that she made a complaint in CAW Cell when the inquiry conducted on the complaint dated 27.8.2000. She admitted that she made a complaint to CAW Cell Nanakpura. She further admitted that there was no allegation for demand of dowry in her complaint to CAW Cell. She further admitted that she had not raised any demand for her articles in first complaint dated 23.1.2001. She denied the suggestion that she did not demand for her dowry articles as it had already been given to her. She had got it written in the complaint about earlier compromise in CAW cell. She denied the suggestion that no compromise taken place between her and her husband on 25.4.2007. She denied the suggestion that any compromise deed has been executed regarding the compromise on 25.4.2007. She denied the suggestion that Khem Chand took her to Indrapuram after the compromise. She denied the suggestion that she lived with her husband for 34 ½ months. She denied the St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 6 suggestion that her parents came at Indrapuram in her matrimonial house. She denied the suggestion that she gave poison to her husband with tea. She denied the suggestion that after giving poison to her husband, she came back to her matrimonial house with her parents. She admitted that a case FIR No. 278/08 under Sections 328/511 IPC was registered at PS Indrapuram against her and she remained in JC for some days. She denied the suggestion that she did compromise with her husband to kill them. She was not aware if her husband was suffering from any mental disease. She denied the suggestion that accused Khem Chand was not doing any job due to which she does not want to live with him. She denied the suggestion that the Jhuggi of Naoraji Nagar had to demolish so she does not want to live with her in laws. She denied the suggestion that she does not want to live with her husband at her native place. She denied the suggestion that she made a complaint to CAW Cell Nanakura because her husband had already sent a complaint against her at PS R.K. Puram. She denied the suggestion that she had not been harassed and tortured. She admitted that accused Khem Chand had beaten her. She denied the suggestion that the dowry was not demanded from her. She denied the suggestion that she was deposing falsely.
7. PW3 Dhani Ram is the father of the complainant. He deposed that Radha, her daughter got married with accused Hem Chand on 9.5.1997 according to Hindu Rites and Ceremonies at R.K. Puram. At the time of her marriage, he had given St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 7 one fridge, one bed, one cycle, utensils, twoinone, TV, Fan (table fan), the jewellery articles, clothes etc. and all other articles which are mentioned in the list i.e. Ex. PW2/A and PW2/B, which were submitted by them to the police. The bills of the dowry articles were given to her daughter by him, were handed over to the accused persons at the time of marriage alongwith dowry articles.
8. His daughter used to telephone her mother and used to tell about the demand of dowry being raised by the accused persons i.e. her inlaws and beatings being given to her by them. He deposed that his wife always told him about her conversation with his daughter. His daughter was turned out twice or thrice after giving beatings to her by herlaws i.e. her husband, fatherinlaw and motherin laws present in the court and asked her to bring Rs. 40,000/ from her. She gave Rs. 5000/ once on their demand and Rs. 10,000/ on their second demand and Rs. 5000/ on their third demand. But when they continued raised demand of money, he showed his inability to fulfill their continuous demand. They turned out her daughter from matrimonial home and asked her to bring the money. After that noone came to bring her back to her matrimonial home and for last more than 6/7 years, she is residing with him. When her inlaws did not take her back, the complaint was lodged with CAW Cell. No articles as well as jewellery were returned to her daughter by her inlaws. He also gave the complaint to CAW Cell in the month of May, 2001.
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 8
9. During his crossexamination, he stated that he was working as helper. He was earning Rs. 3,090 at the time of marriage of his daughter. The distance between his house and house of Khem Chand was about 2.5 3 Km. The marriage was solemnized with his as well as his daughter's will. He had two children apart from Radha. After about 3 years of marriage, he came to know that the accused persons were harassing his daughter for dowry. At that time, he did not make any complaint. His daughter was blessed with second female child after about two years of marriage. He admitted that Jhuggi of the accused Khem Chand was got demolished. He cannot say as to whether any notice regarding the same was issued to accused Tejwa. He denied the suggestion that on receiving the notice, he took his daughter to his house. He further denied the suggestion that at the time of demolishing of the Jhuggi the house hold articles kept in the Jhuggi were taken to his house. He does not know whether the Jhuggi was demolished on 09.08.2000 by CPWD. He denied that the accused Khem Chand came to his house for taking his daughter back to her matrimonial house at Village Mahua and he did not send her with him or that his daughter refused to go with him. He denied the suggestion that on 27.08.2000 accused Khem Chand along with his brother came to his house to bring his daughter back to her matrimonial house but he did not allow her for the same or that threatened him to falsely implicate him in dowry case. He does not know whether any complaint on 27.08.2000 was lodged against him by the accused persons in PS R.K. Puram for not sending his daughter with the accused persons and for St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 9 threatening. He denied the suggestion that after the complaint on 27.08.2000 by the accused he has lodged a complaint in CAW cell. He admitted that no dowry list was placed along with complaint in the CAW Cell. He denied the suggestion that the dowry article list was not filed as the articles were already kept in his house. He does not know whether at the time of bail of the accused persons they were residing in the temple. He denied the suggestion that his daughter was never harassed for dowry by the accused persons. He admitted that on 25.04.2007 there was a compromise between the accused persons and his daughter Radha. He denied the suggestion that as per the said compromise his daughter went to her matrimonial house with the accused persons. He denied the suggestion that the compromise was reached between the parties in the court. He denied the suggestion that on 10.08.2007 his daughter had served poison in the food to the accused Khem Chand. He does not know whether any FIR no. 278/08 was registered is PS Indra Puram regarding the same. His daughter was sent behind bars in that case. However, that case was falsely implicated. He had told to the police that the accused persons had asked his daughter for Rs. 40,000/ from him. The witness was confronted with Ex. PW3/DA where the amount of Rs. 40,000/ is not disclosed. He denied the suggestion that the accused persons were falsely implicated in the present case or that his daughter her self was not willing to go to her matrimonial house or that no demands for dowry was made by the accused persons or that no such beatings or harassment was given to his daughter. He further denied the St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 10 suggestion that he was deposing falsely.
10.PW4 ACP Indira Bhoria deposed that on 30.1.2001 she was posted as Inspector in CAW Cell, Nanakpura. A complaint Ex. PW2/C along with list of articles Ex. PW2/A & B was assigned to her for enquiry. She called both the parties. They tried to sort out the matter and compromise took place between the parties. She deposed that the complainant Radha rejoined her matrimonial home but again she was beaten, tortured and harassed for the sake of dowry and the complaint dated 31.05.2011 i.e. Ex. PW4/A was again lodged by her father. She deposed that she summoned both the parties against this complaint, but the accused persons did not turn out, then she furnished her final report for the registration of FIR and copy of her detailed report is Ex. PW4/B.
11. During her cross examination, she stated that she does not remember as to how many times she called both the parties for reconciliation due to lapse of time. She did not visit the house of the complainant and the accused persons during the period of her enquiry. She admitted that the list of articles was also filed along with the complaint. She does not recollect now if the complainant had handed over the list of articles to her on 01.08.2001. She denied the suggestion that mother of the complainant was working with her relative and due to this reason she recommended the case for registration of FIR.
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 11
12.PW5 Smt. Roshni Bai is the mother of the complainant. She deposed that her daughter Radha was married to accused Khem Chand in the year 1997 and they had given all articles as per customs and rites containing utensils, bed, almirah, cycle, TV, sewing machine, gold jewelry articles (Jhumki and ring to daughter and ring to Khemchand) to her daughter and her husband. Rs.30000/ to Rs. 40000/ were also given to accused and clothes of all accused and their family members were also given to them. Her daughter gave a birth to a female child in the year 1998 and after birth of second girl child in 1999, then accused/husband started beating her daughter for birth of female child and for money. Initially, they made small payments and when big demands were made by the accused they failed to comply with the said demands. She can identify accused Khem Chand if shown to her. The father of Khem chand has openly told her daughter that he will not allow her until and unless demand of Rs. 40000/ is not fulfilled. After the case was reported to CAW Cell/police, her daughter was residing with her.
13.During her cross examination, she stated that the marriage of Radha taken place with her consent. She denied the suggestion that everything was fine till the birth of second daughter. There was no demand of beatings for dowry prior to birth of female child. The distance between house of accused and her house was about 2 to 3 k.m. Her daughter was thrown from matrimonial house after Marpeet. She admitted that in her statement Ex. PW5/DA this fact has not been St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 12 recorded by the police. When her daughter was thrown out from matrimonial house after giving beating she was scared and was sitting in a school at Naroji Nagar and they had rescued her from there. She admitted that in her statement Ex. PW5/DA this fact has also not been recorded by the police. She denied the suggestion that any demolition notice was served upon accused Khem Chand in respect of his jhugi. She denied the suggestion that when alleged notice of demolition was received , it was settled that Khem Chand and Radha will reside at Mauhba, UP. She further denied the suggestion that on receipt of alleged demolition notice all dowry and Istridhan articles of Radha were shifted to her house. She does not know as to whether jhuggi of accused Khem Chand was demolished on 2582000 by CPWD. She further denied the suggestion that accused Khem Chand had visited her house to take Radha. She does not know as to whether police report Ex. PW2/DB was lodged by Khem Chand as she failed to sent Radha to accused. She further denied the suggestion that enquiry was made by the police in respect of Khem Chand and present case was initiated against accused by her. She admitted that a compromise between Radha and Khem Chand taken place on 2542007. She voluntarily stated that but thereafter her daughter Radha was mercilessly beaten by Khem Chand. After compromise, Radha was taken by Khem Chand to Jhansi. She denied the suggestion that after compromise Radha was taken to Indirapuram after the first settlement. However, she was taken to Indirapuram after second settlement. She denied the suggestion that at Indirapuram poison was administered by St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 13 Radha on person of khem Chand. She further denied the suggestion that on 1082007 Radha was brought back by them. She admitted that a case FIR No:
278/08, u/s 328/511 IPC has been registered against Radha. She voluntarily stated that it was false FIR/case. She denied the suggestion that Khem Chand never made any demand or harassed her daughter on account of dowry demand. She denied the suggestion that her sister was working with ACP Bhuriya and with indulgence of said ACP present case was got registered. She denied the suggestion that present case has been initiated in order to stop accused Khem Chand from taking Radha to Mauhba. She denied the suggestion that she was deposing falsely.
14. PW6 SI Vishram deposed that on 29.09.2001 he was posted as SI at PS R.K. Puram. On that day, the complaint Ex. PW2/C was received at PS from CAW cell and thereafter, the present case FIR was registered and investigation of the case was marked to him. During investigation, he recorded the statement of the witnesses, photographs of the marriage and invitation of marriage were taken into possession vide seizure memo Ex. PW6/A. Photographs and Card are Ex. P1 (collectively). He deposed that accused persons were searched and could not be traced. Accused Smt. Leela, Tejwa and Khem Chand (correctly identified) were formally arrested vide memo Ex. PW6/B. Thereafter, they were released on bail as they were on anticipatory bail. The complainant produced the list of dowry articles i.e. Ex. PW1/A & B and thereafter, Section 406 IPC was St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 14 added. After completion of investigation, the charge sheet was filed.
15.During his cross examination, he admitted that list of dowry articles was not attached with the complaint when he received the same. He denied the suggestion that no demand of dowry was mentioned in the complaint. He stated that he had gone to parental house of the complainant where the investigation was conducted. He has not recorded statement of any neighbor or public persons. He has not inquired from the neighborhood of matrimonial house of the complainant. He voluntarily stated that the jhuggi of the locality were already destroyed. Therefore, no person from neighborhood met him. He does not remember what he has mentioned in the report in reply of the bail application of the accused. He does not know if the accused Khem Chand had made any complaint against the complainant and her father. He denied the suggestion that he has not conducted the investigation properly or that the accused persons were falsely implicated or that he was deposing falsely.
16.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. They have stated that they were residing in jhuggi in Naroji Nagar. Thereafter the same was demolished. They temporarily shifted the entire household articles and other things to the parental house of the complainant till another suitable accommodation was arranged. The St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 15 complainant along with her two daughters also shifted temporarily to her parental house. They made best effort to arrange to another hutment in daily but the same could not be arranged. So they decided to shift to their village. However the complainant and her father plainly refused to send the complainant and the children to the village. They insisted on having accommodation in Delhi and on their failure, implicated them in this false case. The accused persons opted not to lead DE.
17. Learned APP has argued that there are sufficient material on record to bring home the guilt against the accused persons. On the other hand the counsel for the accused has vehemently argued that it is a fit case to acquit the accused persons. It is argued by the counsel for the accused persons that the complainant or her parents made no allegation regarding harassment and torture of the complainant by the accused persons in relation to demand for dowry either in the first complaint in CAW Cell on 23.01.2001 or in the second complaint dated 31.05.2001. The same was alleged in the statement made by the complainant and her parents only in the statement recorded u/s 161 Cr.P.C. as an afterthought to falsely implicate the accused persons. The prosecution has filed no medical documents to support the allegations that the complainant was mercilessly beaten up by the accused Khem Chand as stated in the complaint made on 31.05.2001 by the father of the complainant. Moreover, the prosecution has produced no bills to show the purchase of dowry articles and St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 16 any other documents to substantiate the allegations of the exchange of dowry articles as stated in the list of dowry articles Ex. PW2/A & Ex. PW2/B. Brief reasons for the decision of the present case
18.Before proceeding further, it shall be useful to refer to section 498A IPC. 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
(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."
19. The complainant herein made two complaints which are on record. She lodged the first complaint with CAW Cell on 23.01.2001. In the complaint, she has stated that her marriage was solemnized on 09.05.1997. Her husband, father in law and mother in law harassed and tortured her. On 05.05.2000 her husband St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 17 Khem Chand on instigation of his mother Smt. Leela mercilessly beaten her with danda and ousted her from the matrimonial house. Since then she is living with her parents in her parental house. She has two daughters from the wedlock with the accused Khem Chand. Accused persons started harassing her more when she gave birth to her second daughter as they wanted boy and not girl. Her mother in law and father in law wanted to solemnize second marriage of her husband Khem Chand. Neither her husband nor in laws has come to her parental house for taking her back to the matrimonial house. Her daughter was hospitalized for ill health and same was informed by her father to her in laws but still the accused persons have not come to visit her or her ailing daughter. She wants justice for herself and her children.
20.Thereafter on 31.05.2001 the second complaint was made by the father of the complaint in CAW cell to the effect that an amicable settlement was reached between his daughter and accused persons on 20.03.2001 in the CAW Cell and thereafter, her daughter was taken back on 13.04.2001. She was kept properly till the time the case was going on in the CAW Cell. As soon as the file was closed, the accused persons again started harassing her. Her husband took her to different place and thereafter his daughter was finally found in the Jaitpur Village from where he received a call from her daughter and she stated that she was mercilessly beaten by her husband. Her leg was injured and her lips were swollen on account of assault and her eyes were also black and blue. Her in St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 18 laws are responsible for her condition as they instigated their son and on their instigation, he beats her. On the assurance of the five Panchs of the village Jaitpur, he left his daughter in the village Jaitpur but her husband threatened to kill her by pouring patrol on her before the Panchayat of the same village. Thereafter, they informed the father of complainant to bring his daughter and he brought his daughter back to his house to save her life. Her husband has to either live with his wife or with his mother as his mother instigates the husband of complainant again and again, which leads to frequent altercation between his daughter and son in law.
21.The complainant or her father have not made any allegations about the complainant being subjected to any harassment and torture by the accused persons for her inability to bring the dowry or for insufficient dowry in the complaint made to CAW Cell on 23.01.2001 as Ex. PW2/C, or in the second complaint dated 31.05.2001 as Ex. PW4/A. The said allegations were made only in the statement recorded u/s 161 Cr.P.C. on 15.10.2001. The omission of the said material allegation in the complaint made at first point of time to CAW Cell has not been explained by the prosecution. Moreover, the complainant in her statement has only made general allegations that her mother in law, her father in law and her husband used to demand a sum of Rs. 40,000/ and residential house, as a precondition for allowing her to live with her husband and to have marital bliss. But there is no specific detail as to the date, time, year St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 19 or place of said dowry demand nor occasion of said dowry demand has been mentioned.
22.The father of the complainant, PW3 stated in his evidence that the husband and in laws of the complainant used to ask her to bring Rs.40,000/ from him. He was confronted with his statement u/s 161 Cr.P.C. recorded on 15.10.2001 where it was only recorded that the father in law of the complainant used to demand dowry and there was no such statement made by him that demand of Rs. 40,000/ was raised by father in law, mother in law and husband of complainant. He failed to explain the contradiction. Moreover, mother of the complainant PW5 stated that fatherinlaw of the complainant openly told her daughter that he will not allow her inside the matrimonial home unless demand of Rs. 40,000/ is not fulfilled. She was again confronted with her statement recorded under Section 161 Cr.P.C. where it was not so recorded. The father, PW3 as well as mother, PW5 of the complainant failed to explain the contradiction and the omission.
23.The father of the complainant PW3 also claimed in his evidence that on three occasions he gave money. First he gave Rs. 5000/, thereafter Rs. 10,000/ and on third occasion Rs. 5000/. However, no such statement was made either by the complainant or by her mother in their evidence. It is inconceivable that the complainant or her mother would not know about money being given to the St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 20 accused person pursuant to the demand, and omission of the same in the evidence of the complainant and her mother belies the evidence of PW3, father of the complainant. Moreover, father of the complainant has made general submission of having paid amount pursuant to demand without even disclosing to which accused the money was given and at what time.
24.The complainant as well as her parents during their crossexamination, pleaded their ignorance to the fact that the husband of the complainant lodged the complaint with Police Station R.K. Puran on 27.8.2000, when the complainant and her parents refused to send the complainant back to her matrimonial home. They also denied the suggestion that the complainant made the complaint to CAW Cell Ex. PW2/C on 23.1.2001 after gaining knowledge regarding filing of complaint by her husband at PS R.K. Puram. The complainant as well as her parents also admitted in their crossexamination that an FIR bearing No. 278/08 under Sections 328/511 IPC was registered against the complainant for poisoning her husband. They also admitted that complainant remained in custody for said case, but the complainant denied that she conspired to kill her husband by administering poison to him. Thus the complainant is also facing trial for a very grave offence committed by her against her husband, and besides general allegation there is no concrete evidence to prove the perpetration of cruelty by the accused persons.
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 21
25.The prosecution has also not produced any documentary evidence to prove that the complainant was beaten up by the accused person and she received any injury as a result of the said assault.
26. The proceedings in the CAW Cell also indicate that the complainant was not willing to reside with the accused persons in the village. The crossexamination of the complainant and her parents also reflect that the Jhuggi of the accused persons was demolished in the year 2000 and IO affirmed the same before the court at the time of hearing of bail of the accused persons. He also stated that they were found to be residing in a Mandir. The complainant and her parents also admitted that there was no dispute between the parties till the birth of second daughter in the year 1999 and no complaint was made till 2000. It establishes the defence of the accused on preponderance of probabilities that the real cause of dispute between the parties was that the complainant was not ready to live in village after demolition of jhuggi of accused in Delhi and that was the reason that the complainant made no allegations of her harassment by the accused persons in relation to demand of dowry, in the complaint made to CAW Cell. In view of aforesaid,the prosecution has failed to prove beyond reasonable doubt that accused persons committed cruelty on the complaint falling within mischief of explanation (a) or (b) of Section 498A IPC. Therefore, accused persons are acquitted for an offence u/s 498A IPC.
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 22
27. 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 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 prescribing 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".
28.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.
29. Therefore, before a property could be misappropriated, the same is necessary to St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 23 have been entrusted first to the accused. In Jaswant Lal Vs. State AIR 1968 SC 700, the Hon'ble Supreme Court laid down that entrustment is an essential ingredient of an offence u/s 406 IPC. In Reshan Lal Vs. State AIR 1983 SC 631, Hon'ble Supreme Court held that proof of entrustment is an essential ingredient of the offence. Similarly, in Ram Narayan Vs. CBI 2003 (3) SCC 641, Hon'ble Supreme Court, held that no constitute an offence of criminal breach of trust, there must be an entrustment. As such, entrustment is one of the essential ingredients for the offence u/s 406 IPC.
30. The bare perusal of complaint Ex. PW2/C, there is no specific statement qua entrustment of any articles in favour of accused persons. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that her entire dowry went to Naroji Nagar where the accused persons lived at that time. Her complete dowry articles were in the possession of her husband and inlaws. She had come to her parental house only in one saree. It has not been stated in evidence as to what articles of dowry were entrusted and to which accused. The evidence is also bereft of other necessary details regarding the dates as to when the dowry articles were entrusted, what were the articles, what was their description, how many articles no such details have been mentioned in the evidence of complainant. There is also no mention as to the date on which the said dowry St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 24 articles were demanded back and refused to be returned.
31. The accused have taken a consistent defence that after receiving the notice of CPWD for demolition of their jhuggi, all the dowry articles and jewellaries was shifted to the parental house of the complainant as the distance of the parental house of the complainant and the jhuggi of accused is only one and a half kilometre. It is also important to note that in both the complaints made to CAW Cell dated 23.1.2001 and 31.5.2001, the complainant and her parents have not stated that the dowry articles are in custody of accused persons and they refused to return the same. The said claim was made only in the statement under Section 161 Cr.P.C. The reason for omission of the said fact in the earlier complaint is interestingly, not explained at all by the prosecution, and it manifests that the said plea was raised later as an afterthought.
32.The prosecution has not produced any photograph or receipt/bill to prove the exchange/possession of Istridhan and jewellery articles.
33. It also important to note that the list of article Ex. PW2/A and PW2/B, reflect that the same was prepared only on 1.8.2001 and was handed over to the IO only after recommendation was made for registration of an FIR. The father of the complainant admitted that no dowry list was placed along with complaint in the CAW Cell. Thus, no list of dowry articles was prepared at the time of St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram 25 marriage. In judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon'ble High Court of Delhi observed the mandate of for preparation of list of dowry articles at the time of marriage duly signed from bride side as well as from groom side, in terms of provision of 2 of Dowry Prohibition Act. Further, the increasing trend of making exaggerated claims by the complainant and his family regarding Istridhan given to the complainant was also noticed. To curb the same, it was held that the complainant and her family members, are bound to disclose the source of such expenditure on marriage. In the instant case, no list of dowry articles was prepared at the time of marriage signed by both sides. The prosecution has not explained the source of expenditure incurred by father of the complainant in her marriage, which appears to be much beyond his capacity.
34. In view of the above, I am of the considered opinion that the prosecution has failed to bring home the guilt of the accused persons u/s 406 IPC beyond reasonable doubt. Therefore all accused persons are also acquitted for offence under Section 406 IPC. Bail bonds & Surety bond discharged. Endorsement, if any stands cancelled. File be consigned to record room.
Announced in the open court (PRIYA MAHENDRA)
Metropolitan Magistrate:
th
on this day of 25 August 2012
Mahila Court South Delhi,
Saket Court Complex, New Delhi
St. Vs. Leela and ors., FIR no. 573/01, P.S. R.K. Puram