Delhi District Court
State vs . Rehan & Ors. on 14 January, 2015
IN THE COURT OF MS. MONA TARDI KERKETTA: MM (MAHILA COURTS) :
TIS HAZARI COURTS: DELHI
FIR NO. 283/04
P.S. SADAR BAZAR
U/s. 498A/406 /34 IPC
02401R: 0075442005
STATE VS. REHAN & ORS.
1.DATE OF COMMISSION OF OFFENCE : DURING SUBSISTENCE
OF MARRIAGE SINCE 12.11.01
2. NAME OF COMPLAINANT : SMT. SANJIDA
D/O SH. ALLAH WALA
3. NAME OF ACCUSED PERSONS,
THEIR PARENTAGE & ADDRESS : 1. SH. MOHD. REHAN
S/O LATE SH. ISLAMUDDIN
2. SH. ISLAMUDDIN (SINCE EXPIRED)
3. SMT. SAIRA BEGUM (SINCE EXPIRED)
W/O SH. ISLAMUDDIN
4. MS. FARZANA (SINCE DISCHARGED)
D/O SH. ISLAMUDDIN
ALL R/O H. NO. 213, BASTI HAZRAT
NIZAMUDDIN, NEW DELHI
ALSO AT SHOP NO. 136A,BUFALLOW
MEAT SHOP, BASTI HAZRAT
NIZAMUDDIN,NEW DELHI.
5. SMT. CHAMAN IRSHAD
( SINCE DISCHARGED)
W/O SH. IRSHAD AHMAD
R/O 350, SHAHAJADA BAGH,
INDERLOK, DELHI
FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 1/18
6. SMT. MUMTAZ(SINCE DISCHARGED)
W/O SH. NAWABUDDIN
R/O H.NO. 6266, KASAB PURA,
SADAR BAZAR, DELHI
7. SMT. SHABANA (SINCE DISCHARGED)
W/O SH. MOHD. TAHIR
R/O H.NO. 148, CHATTA LAL MIA,
DELIGHT CINEMA, DELHI.
4. OFFENCE COMPLAINED OF : 498A/406 /34 IPC
5. PLEA OF ACCUSED PERSONS : PLEADED NOT GUILTY
6. FINAL ORDER : ACQUITTED
7. DATE OF SUCH ORDER : 14.01.2015
COUNSELS FOR THE PARTIES
FOR THE STATE : MS. SARITA RANI
FOR THE ACCUSED : SH. MOHD. SALEEM
THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the statement made by the complainant Smt. Sanjida D/o Sh. Allah Wala R/o H.No. 7663, Gali Shekh, Sahib Kuresh, Sadar Bazar, Delhi, wherein it is stated that the complainant got married to accused Rehan on 12.11.2001 with the Mehar amount of Rs. 20,000/. No child was born from this wedlock. It is further stated that after the marriage, complainant started living with the accused persons at the matrimonial home and remained there for 09 days, thereafter she was turned out of matrimonial home after severe beatings in furtherance of more dowry articles cash etc. She was compelled to live at her parental house for a very long period and during this period, complainant was neither supplied with bare necessities of human life nor a single penny for maintenance was given by her husband.
2. It is further stated that some fictitious, bogus and fabricated divorce papers were sent to the complainant but after few months, accused came with a Fatwa stating that Talaq was invalid and no divorce had taken place between him and complainant. It is further stated that ultimately with the intervention of close relatives and respectable people of the locality, matter was compromised and complainant was taken back by the accused FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 2/18 to matrimonial home on 02.09.2003 and lived there till 08.10.2003. It is further stated that since the inception of marriage, accused persons committed several serious cruelties upon the complainant and threatened her with dire consequences in case their demands were not fulfilled despite the fact that a sum of Rs. 10 Lacs were spent by the parents of the complainant. Besides that clothings, beddings, gifts and salami articles and gold ornaments comprising one tag, one pan chagra, one wrist watch, one tika, four bangles, one magar pair, one haar, four rings, and one nosepin were also given by the parents of complainant. Apart from these, one pair of bala, one nose sitara, Rs. 2,000/ by cash, five sets, four bangles for mother in law, 4 buttons for father in law and 14 articles for the husband, four rings, one haar, four bangles, one magar pair all of gold and one mobile phone bearing no. 9810919297 were given by the parents. They used to demand Rs. 10 lacs cash from the complainant and in case of non compliance, she was subjected to cruelty, merciless beatings. It is further stated that entire dowry articles have been retained and misappropriated by the accused persons.
3. It is further stated that her husband used to act under the influence of his parents. It is further stated that on 08.10.2003 at about 10.00 am, complainant was mercilessly beaten by the accused persons. They switched on the gas cylinder for setting the complainant on fire but she somehow managed to save herself from the clutches of accused persons and reached her parental house. A report was lodged with Sadar Bazar police station and also with Hazrat Nizamuddin police station. It is further stated that complainant is a simple and less qualified girl and dependent upon her parents. She has been deprived from natural love and affection and her life has been made very miserable at the hands of accused persons. The complainant has been leading miserable life and going through very distressful circumstances. On the basis of the statement of complainant, a case under section 498A/406/34 IPC was registered against the accused persons.
4. Subsequent to registration of FIR, investigation was conducted. After completion of investigation, chargesheet was filed in the court against the accused persons. Cognizance of the offence was taken and accused persons were summoned by Ld. Predecessor to face the trial for the offence allegedly committed by them. They were supplied with the copy of charge sheet in compliance of provision given under section 207 Cr.PC. Arguments on the FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 3/18 point of charge were heard and vide order dated 01.08.2009, charge U/s 498A/406/34 IPC was framed against accused Rehan and Saira Begum, to which they individually pleaded not guilty and claimed trial. Whereas other accused persons were discharged. During the course of trial, accused Saira Begum unfortunately expired. On receiving her death verification report, the proceedings were abated.
5. Subsequent thereto, matter was fixed for prosecution evidence. In order to prove its case, the Prosecution produced followin thirteen witnesses :
(i) ASI Dharam Pal, Duty Officer appeared as PW1 and proved FIR Vide Ex. PW1/A, and endorsement on rukka vide Ex. PW1/B,
(ii) Sh. Allahwala, father of complainant, appeared as PW2,
(iii) Sh. Mohd. Ashquin, neighbour of complainant, appeared as PW 3,
(iv) Mohd. Sajid, brother of complainant, appeared as PW4 and proved Fardkhana Talashi vide Ex. PW4/A,
(v) Const. Dharambir Singh appeared as PW5 and proved copy of the order Ex. PW5/A,
(vi) Maulana Mohd. Idrish, Qazi, appeared as PW 6 and proved Nikahnama Ex. PW6/A,
(vii) HC Karanpal appeared as PW7(wrongly mentioned as PW6) and proved rukka Ex. PW7/A, seizure memo of marriage invitation card Ex. PW7/B, arrest memos Ex. PW7/C and Ex. PW7/D (all wrongly mentioned as PW6/A to D), Marriage card Ex. P1 and photographs Ex. P2 (colly),
(viii) SI Raj Kumar appeared as PW8 and proved receipt of istridhan articles vide memo Ex. PW8/A,
(ix) Sh. Mufti Muqaram Ahmed, Shahi Imaam, Fateh Puri Masjid, appeared as PW9 and proved his signatures and office seal on the document Mark A and Mark B,
(x) Mohd. Kafeel, Goldsmith, appeared as PW10 and proved documents i.e. rough slips vide Mark D to G, FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 4/18
(xi) Inspector Vijay kumar appeared as PW11 and proved copy of complaints dated 08.10.2003 & 04.06.2004 vide Mark A & B, Destruction order of original complaint and report upto 31.12.2007 PS Sadar Bazar vide mark C,
(xii) Retired SI Chander Singh appeared as PW12 and proved photographs of marriage vide Ex. PW12/A and final report for recommendation of registration of FIR vide Ex. PW12/B, copy of Talaqnama Vide Mark D, copy of cash order of Rs. 20,000/ Mark E,
(xiii) SI Sakhi Ram appeared as PW13 and proved destruction order dated 10.12.2012 vide Mark A in respect of the record of complaint register and reply upto 31.12.2009 and his report vide Ex. PW13/A,
6. After completion of prosecution evidence, matter was fixed for recording of statement of accused under section 313 Cr.P.C. The statement of accused u/s 313 Cr.P.C. was recorded, wherein entire incriminating circumstances appearing on record were put to him, to which he denied as false and incorrect and claimed to have been falsely implicated in this case. He also claimed that after the divorce, the complainant never joined him at the matrimonial house. The dowry articles and mehar amount were also returned. The accused did not prefer to lead evidence in his defence. Subsequent thereto, matter was fixed for final arguments.
7. During the course of arguments, the below mentioned arguments were made on behalf of the complainant:
(i) that available record, exhibited documents, statements and other evidences undoubtedly establish that there are sufficient grounds for conviction of the accused,
(ii) that testimonies of family members of the complainant clearly substantiate the allegations mentioned by the complainant in her complaint,
(iii) that through fatwa issued by a Muslim Jurist, accused and his family members made the complainant as well as her family members believe that the marriage between accused and complainant was still subsisting and he wanted to take the complainant back to the matrimonial home. The complainant was sent to the matrimonial house along with dowry articles only after confirmation of Fatwa by Mufti Muqaram, Shahi Imaam of Masjid, Fateh FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 5/18 Puri, Delhi The statement of accused recorded U/s 313 Cr.PC. in itself is an admission of the crime committed by the accused and his family members,
(iv) that the aspect of honest confidence, trust, belief in Fatwa and in the version of accused persons was totally ignored by the Court at the time of framing of the charge. Coaccused persons were wrongly discharged. The allegations made in the application U/s 420/504/506/306/511/493/375 (IV) & 376 IPC at the stage of charge, are now clearly proved after recording of evidences of prosecution witnesses,
8. The below mentioned arguments were made on behalf of the accused:
(i) that the star witness of the prosecution i.e. complainant has unfortunately expired. The complaint of the complainant is not proved,
(ii) that testimonies of PW2 to 4 are based on hearsay information and do not find corroboration in the absence of complainant's evidence,
(iii) that no reliance can be placed upon documents Mark A & B being photocopies,
(iv) that admittedly, all the dowry articles including mehar amount were returned to the complainant after pronouncement of Talaq. This fact is also proved through document Ex. PW12/DA,
(v) that no previous complaint and MLC have been proved on record to show the cruelties having been committed upon complainant in furtherance of dowry demand,
(vi) that there is no evidence with regard to the identity of the person who had allegedly taken Fatwa,
(vii) that PW2/father of the complainant, has admitted receiving Talaq notice and return of articles during cross examination,
(viii) that there is no evidence with regard to return of entire dowry articles second time on rejoining of complainant at matrimonial house,
9. Before appreciating the evidence on record, let us first discuss the relevant legal provisions given U/s 498 A/406 IPC. Section 498A IPC provides punishment to husband or prosecution must prove relatives of the husband of a woman subjecting her to cruelty. The that :
FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 6/18
(i) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand S ection 406 IPC prescribes punishment for criminal breach of trust.
For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it,
(ii) that he (a) misappropriated it or(b) converted it to his own use or (c) used it or (d) disposed of it
10. In the light of aforesaid legal provisions, let us now appreciate the evidence brought on record to ascertain whether alleged acts of accused amount to cruelty in terms of provision given U/s 498 A IPC and whether he is guilty of criminal breach of trust u/s 406 IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. In the judgment of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID, 1993 Cr.L.J page 3019 , the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of section 498A IPC observed that harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 7/18
11. It is pertinent to observe that complainant of the present case unfortunately expired before recording her testimony. The object of examinationinchief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness. After the party calling a witness has finished the examinationinchief , the opposite party has a right to cross examine the witness. If a witness after being examining in chief does not appear to subject him to cross examination his evidence becomes valueless and can not be looked into. In the present case, the examination in chief of complainant could not be recorded. The complaint which is the basis of registration of present FIR and subsequent proceedings against the accused has not been proved. The complaint which is the basis of registration of present FIR and subsequent proceedings against the accused persons has not been proved. The complainant in her entire complaint has not narrated a single specific incident except dated 08.10.2003. The complainant has levelled very vague and general allegations against the accused, which are not supported by any cogent and corroborative evidence. The complainant has not even mentioned specific role of accused except few incidents, which are also not substantiated for want of corroborative evidence.
12. It be observed that claims have been made about the invalidity of Talaq due to Fatwa, subsistence of marriage , compromise of the matter with the intervention of relatives and local people, sending back of complainant with dowry articles to matrimonial house second time. It has been claimed that since marriage was still subsisting between the complainant and accused hence no remarriage was required and they merely reunited. In the given facts and circumstances, invalidity of Talaq due to Fatwa and subsistence of marriage are required to be considered.
13. In order to decide these particular issues, the testimony of PW9/ Mufti Muqarram Ahmed, Shahi Imam, Fathehpuri Masjid, Chandani Chowk is relevant. He has deposed that accused had come to his office at Fatehpuri Masjid and produced some written notes in Urdu, which stated that he got prepared a Talaqnama through an advocate after having been fed up with his wife and her relatives. The witnesses of said Talaqnama were arranged by the advocate himself and accused was not aware about the contents of said Talaqnama. He has further deposed that accused made similar statement under oath. On the basis of which, accused sought his opinion if Talaq was validly pronounced, to which he clarified that pronouncement of Talaq based on such Talaqnama was invalid. Thereafter, he FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 8/18 prepared a Fatwa vide Mark 'A' bearing his signatures at point A. He has further deposed that after a month, complainant came to him and inquired about the issuance and validity of Fatwa prepared by him. She told that on the basis of said Fatwa she had gone to the matrimonial house on 02.09.2003 but was forced to return her parental home on 08.10.2003 due to threat to her life. At complainant's request, PW9 confirmed about the issuance and validity of Fatwa vide Mark 'B' bearing his signatures at point 'A' . He also confirmed that the accused had taken the said Fatwa from him however, the register and original record in respect to the Fatwa was not maintained by the office.
14. Let us now appreciate testimony of PW9/ Mufti Muqarram Ahmed. The court is of the view that credibility of this witness is impeached during cross examination. He has admitted that before declaring divorce invalid, he did not verify the facts from the advocate, who allegedly prepared and sent the said Talaqnama and also from the witnesses mentioned in the said Talaqnama. He has further admitted that he did not go through the Talaqnama before issuing the Fatwa and did not ask the accused before recording the statement as to whether he was making statement voluntarily or under pressure or coercion. He has further testified that accused did not write the averments mentioned in document Mark A in his presence and said letter was already written. He also did not ask the accused as to from whom he got the said letter written. He also did not ask the accused whether he was conversant with Urdu language. He has further testified that he did not obtain the signatures of any witness on the Fatwa for not being in practice. He has further testified that he usually used to meet 3040 people daily at the office but at that time preparing the said Fatwa accused was alone. He has further testified that he did not ascertain the identity of accused by asking him to produce some documentary proof and did not see the accused ever after. He has denied the suggestion that accused had not come to him or that he produced the document Mark A before him. From the testimony of PW9, the identity of the person, who had allegedly taken the said Fatwa, is not established on record.
15. It is also noticeable that documents Mark A & B have been proved on record as per law. It is well settled that the photo copy of a document is not admissible in evidence. In case of a photo copy of a document before it is admitted in evidence it has to be explained as to what were the circumstances under which the photo copy was preferred and who was in the possession of the original document at the time its photograph was taken and that FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 9/18 would be above suspicion. ( reference may be had to Ashok vs Madho Lal. AIR1975 SC 1748) .
The photo copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or by some other evidence. In the present case , during examinationinchief, PW9 has affirmed issuance of said documents under his seal and signatures however during cross examination, he has changed the stand and stated that in the absence of original of document Mark 'A', the encircled portion Mark Z, he could not certainly say that he had given his reply on the basis of writing containing in document Mark A. Though he has claimed that at the relevant time, the original document was produced before him and after examining the same, he gave reply under his seal and signatures but in the absence of production of original document as discussed above, no reliance can be placed. No explanation has either come on record as to why original document could not be produced and secondary evidence was required to be led. It be observed that in fact no investigation except recording the statement of witnesses has been carried out on this aspect despite the same being the root cause of the dispute.
16. The testimony of IO Retired SI Chander Singh/PW12 is also relevant in this respect. During cross examination, PW12 has testified that during investigation, he had gone to Mufti Muqarram at Fatehpuri Masjid to clarify whether Talaq had been effected or not. He has further stated that he had shown documents Mark A & B to him, which he verified and confirmed its issuance. In this respect, it has already been observed that said documents can not be read into evidence being photocopies and under during cross examination PW9 himself has raised doubt about the genuineness of these documents. PW12 has further admitted that he did not get the purported signatures of accused verified. He denied the suggestion that he intentionally did not get verified these signatures from any handwriting expert due to the reason that he was well aware that those signatures did not pertain to accused. He has further admitted that he did not ascertain the writing in encircled portion Mark Z on document Mark A was written by whom. He also did not investigate the facts mentioned in the Hindi Translation of Mark A and marked as Mark C from portion A to A i.e " larka wahan maujood bhi nahi tha aur vakil ne kisi aur admi se dastkhat karva kar larki ke ghar wah notice bhej diya". PW12 has further testified that during the inquiry, he had received document Mark 'D' i.e. deed of Triple Talaq but he did FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 10/18 not interrogate the witnesses mentioned there and also did not interrogate the Notary Public who attested the document. He has denied the suggestion that alleged Fatwa Mark'A' was not obtained by the accused and the same was fabricated by the complainant's side.
17. The other point for consideration is whether the complainant had joined the company of accused in pursuant to alleged Fatwa . In this regard, the testimonies of PW2/ Sh. Allawala, PW3/Mohd. Ashqin and PW4/ Mohd. Sajid are relevant. All these witnesses have testified that the accused had brought Fatwa Mark 'A' mentioning invalidity of Talaq pronounced and consequent subsistence of marriage. However, it be observed that there is no evidence of rejoining of complainant at matrimonial house. During cross examination, the claims of these witnesses have been found false and incorrect. PW2 has stated that he did not remember the date when he had called the respected people of the locality to resolve the dispute. He has admitted that documents in respect to return of dowry articles and payment of amount of Rs 5000/ in lieu of Iddat period were prepared but no document was executed at the time of return of dowry articles to the accused second time. He has also admitted that no document was prepared even in respect of compromise of the matter and rejoining of complainant the company of accused. He has denied the suggestion that no such document was prepared because no dowry articles were returned to the accused or that complainant did not join the company of accused.
18. It be observed that the name of PW3 has not been mentioned by PW2 & 4, father and brother of the complainant respectively, among the names of respected people of locality, who were present at the time of compromise. But PW3 has claimed to have been present at the time when complainant returned the matrimonial house. However, his claim in this regard becomes doubtful during cross examination, where he has stated that he did not remember the date when dowry articles were returned to the complainant in his presence. He has denied the suggestion that complainant had not gone back to her matrimonial house for the second time after taking divorce. He has admitted that no writing work was done in respect to return of dowry articles and joining the company of accused for the second time. This admission also creates doubt if the complainant had joined back the company of accused in the matrimonial house in pursuant to alleged Fatwa. Similarly, the evidence of PW4 further casts serious doubt over the truthfulness of rejoining of complainant at matrimonial house in pursuant to alleged Fatwa. In cross examination, he has stated that no writing work was done at the time when complainant FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 11/18 joined the accused at matrimonial house on 02.09.2003. In voluntary, he has stated that though document was prepared from their side but accused persons refused to sign. It be observed that this particular fact is not found mentioned in the testimonies of any other witness. Refusal on the part of accused to sign the compromise document appears impracticable in the event of settlement. He has further stated he can not tell the description of that document as his sister got them prepared. There is no corroborative evidence to prove the fact that complainant had got prepared those documents.
19. He has further stated that Hanif Sardar, Chacha Ashqin, his other brothers and sisters were present at the time when complainant was taken back to matrimonial house for the second time but they did not get the documents signed prepared at the time of sending the complainant back. It be observed all those persons except Ashqin have not been made witness to prove the fact of sending complainant back. The presence of Ashqin does not find mention in the testimony of PW2 and the fact of preparation of document at the time of sending complainant back also does not find mention in the testimony of other witnesses. Admittedly, said papers were not given to IO during investigation or produced before the court during trial hence, the claim of PW4 is found false. He has denied the suggestion that his sister never went back to matrimonial home for the second time or any papers were prepared at that time or dowry articles were returned back to the accused persons at that time. It also be observed that PW12/ Retired SI Chander Singh has deposed that he enquired from the independent witnesses about the fact of rejoining of complainant but this fact does not find mention in his examination in chief. He has admitted that he had received the statement of Hadi Sham, Zahiruddin Qureshi, Nawab and Nawabuddin but did not make them witness in the present case. A bare perusal of their statements shows that they have made statements in favour of the accused . PW12 has admitted that he did not place any document on record about the fact that complainant again joined the accused after Talaq. He denied that he deliberately did not collect the evidence favouring the accused and did not fairly investigated the matter or his investigation is faulty one. He denied that he wrongly challaned the accused with the connivance of complainant and her parents. He denied that complainant never joined the accused to the reason that same is not allowed in Muslim Law.
20. Now dealing with testimonies of material prosecution witnesses in respect to FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 12/18 other allegations. In this regard, the court is of the view that while appreciating the evidence in cases involving matrimonial disputes, the court has to be on its guard and not to be swayed by the general and bald nature of allegations which are bound to emanate from the mouth of family members of the woman after the relations between two sides have gone to the extreme opposite end. It is for this reason a strict analysis of allegations levelled by the family members of the complainant should be done.
21. The testimony of PW2/Sh. Allahwala, father of complainant, is reproduced and appreciated as below: (21.1)he has deposed that he had spent around Rs. 10 Lac and gave sufficient dowry articles at the time of marriage. He has further deposed that complainant's husband and in laws used to beat her in furtherance of dowry demand and was forced to return just after 9 days of the marriage due to demands of Car, AC and cash. In this regard, it be observed that no evidence has been collected to prove the source of dowry allegedly given at the time of marriage. It further be observed that allegations leveled are general in nature and without any specific detail. It also be observed that during cross examination, PW2 has admitted that the fact of demand of car and AC by the husband and in laws of his daughter is not mentioned in his statement Ex PW2/DA, (21.2) He has further deposed that after 2 to 3 months of the incident, the accused sent Talaqnama through post and also returned some of istridhan articles. However, later on, accused came with Fatwa stating that Talaqnama was invalid and his marriage with the complainant was still subsisting. On learning about said Fatwa, he visited Fatehpuri Masjid for confirmation, where its issuance was acknowledged. Thereafter, he called the respected people of the community for resolving the dispute and with their intervention, his daughter was sent back to the matrimonial house along with her husband and father in law. He also returned all the Stridhan articles and Rs.50,000/. He has further deposed that his daughter lived with her husband and in laws for about one month at the matrimonial house however during the stay they again started giving beatings to her in furtherance of more dowry. In this regard, the court has already come to the conclusion as discussed at para no. 12 & 13 that there is no legally admissible evidence in respect to issuance of Fatwa, declaration of invalidity of Talaq and sending back of complainant to the matrimonial house. It also be observed that during cross examination, he has admitted that once the divorce is taken FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 13/18 place between a Muslim Couple then remarriage between said couple is not permissible in Shariat Law. However, in respect to his daughter's marriage, he stated that since no valid Talaq had taken place as per Fatwa, hence, her marriage was still subsisting. But at the same time, he has also admitted that he had received Talaqnama through post and receiving of Mehar amount from the accused through demand draft and its encashment. He has further admitted the fact that said demand draft was given by the accused after pronouncement of Talaq. He has further admitted that in the presence of his relatives namely Hazi Qureshi, Nawabuddin Qureshi, Zaheeruddin Qureshi, Nawab, most of the dowry articles were returned by the accused to him and his daughter and Rs.5000/ was also given to his daughter in lieu of Iddat period against receiving. All these admissions on his part clearly show that he had the knowledge about pronouncement of Talaq, return of dowry articles and Iddat/mehar amount and therefore there was no question of subsistence of marriage. As discussed above, the issuance of Fatwa Mark 'A' by PW9 at accused's request, has not been proved as per law, (21.3) he has further deposed that on 08.10.2003, his daughter came to the parental house in torn clothes as accused persons were again demanding dowry from her. Thereafter, they went to get lodged complaint at PS Sadar Bazar and Hazarat Nizamuddin. They also went to CAW Cell for redressal of the grievances and during the proceedings, accused returned one mobile phone and gold ear ring and same were accepted by them. They did not receive the other articles as the same did not belong to the complainant. In this regard, it be observed that allegations of PW2 are not substantiated. They are again general in nature without specific details. PW2 has claimed that first of all , his daughter lodged complaint at PS Sadar Bazar thereafter at H. Nizamuddin. He has also claimed that said complaints were written by the police officer and signed by his daughter in the police station but it be observed that same have not been proved on record as per law. The allegations are also not substantiated in the absence of testimony of complainant. PW2 has further claimed that his daughter was beaten by the accused on 08.10.2003 and she reached parental house at around 08.0008.30 pm. He has also claimed that she had sustained internal injuries but admittedly, the matter was not reported to the police despite the fact that PS Sadar Bazar was situated at about half KM from the parental house. The claims are further trashed during cross examination, where PW2 has admitted that no report was lodged either by him or his daughter on that day. He has further admitted that no medical of his daughter FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 14/18 was got conducted despite sustaining internal injuries. He has denied the suggestion that he did not lodge any report or get her medically examined because no such incident had taken place or that no beatings were given to his daughter by her husband and in laws. He has further denied that his daughter was never maltreated, tortured or beaten by the accused persons. He has further denied that no demand of dowry was made by the accused at any point of time.
22. The testimony of PW3, Mohd. Ashqin is reproduced and appreciated as below: (22.1)He has deposed that he had attended the marriage of complainant and accused. At the time of marriage, the Dawar amount of Rs.20,000/ was fixed. The father of complainant had given dowry articles including jewelleries to the accused and his father in his presence. In this regard, it be observed that PW3 has not specified as to what dowry articles were given. The court has already observed that no evidence has been collected to prove the source of dowry, (22.2) he has further deposed that after one week of the marriage, complainant came to parental house . Complainant in his presence and other locality people told that she was beaten by her husband and in laws for demand of dowry. It be observed that the evidence of complainant is not there to corroborate this fact. During cross examination PW3 has deposed that he did not remember the date, month or year when complainant complained him about the harassment caused by the accused in furtherance of dowry demands, (22.3) He has further deposed that after one month of divorce, the accused came with Fatwa and stated that no Talaq had taken place and marriage was still subsisting. The said Fatwa was verified from Mufti Muqrram Fatehpuri, who also confirmed that no Talaq had taken place. Thereafter, in the presence of respectable people , complainant was sent back to the matrimonial house along with her husband and father in law. It be observed that during cross examination, he has admitted the factum of receiving Iddat amount and its use by the complainant. He has admitted that a Muslim woman can not marry the same person whom she has given divorce and the Iddat amount is given by the husband to his wife after taking divorce. All these facts clearly suggest that Talaq had taken place and no marriage was subsisting. In respect to issuance of Fatwa, the court has already given findings at para no.
13.
23. The testimony of PW4 Mohd. Sajid, brother of complainant, is reproduced and FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 15/18 appreciated as below : (23.1)he has deposed that during 09 days stay of complainant at matrimonial house, she was beaten by her husband and in laws for demand of Rs Ten Lacs and more dowry. The complainant was forced to leave the matrimonial house in furtherance of demand of more dowry. It be observed that allegation are general in nature and without any specific particulars. The allegations are also against the in laws of complainant, who have already been discharged. It also be observed that the demand of Rs 10 Lacs has not been mentioned by any other witness including father of complainant, (23.2) He has further deposed that on 02.09.2003, they sent the complainant along with dowry articles to the matrimonial house. She remained there for about one month. During that time she was beaten mercilessly and also demanded Rs 10 lacs. The husband of complainant and in laws also tried to kill her. They snatched her mobile phone so that she could not make any call to them. After the beatings, she somehow managed to run away and reached the parental house. Thereafter, they lodged the complaint at PS: Sadar Bazar and H. Nizamuddin. It be observed that during cross examination, PW4 has also admitted that no report was lodged in respect to beatings given by the accused and in laws of the complainant in furtherance of dowry demand. He denied that no such report was lodged as no such incident had occurred. He has further testified that he can not tell the date and month when his sister was beaten up and demand of dowry was made. It further be observed that the claims of PW4 in respect to bringing of Fatwa is not proved for the reasons mentioned at para no.13. It is noticeable that during cross examination, PW4 has once admitted receiving mehar amount but later on he denied receiving mehar/iddat amount from the accused along with Talaqnama. Whereas it has already come in the evidence of PW2/father of complainant that Mehar/Iddat amount was received by the complainant. Hence, it is proved that PW4 is not truthful while getting evidence recorded.
24. In these circumstances, as the prime witness of the prosecution, the complainant having expired and want of corroborative evidence, the prosecution has not been able to prove the commission of offence u/s 498A IPC by the accused.
25. It be observed that the accused has been charged for having misappropriated the istridhan articles of the complainant to his own wish. In order to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 16/18 section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused and he was having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to him, have been misappropriated. In the entire testimony available on record, no entrustment has been proved. No witness has stated about the month, time and year when the entrustment was made and specifically to whom it was made. The list of dowry articles is not witnessed by any of the family members. Rather, through testimonies of PW2,4,8 and 12 it has come that dowry articles including Mehar/ Iddat amount were returned after the divorce against receiving and some of the articles were also returned during reconciliation proceedings before CAW Cell. Though the claims have been made that after rejoining of complainant, dowry articles and Rs. 50,000/ were given but the court has already observed in preceding paras that no evidence has come on record to prove the same.
26. So far as testimony of PW10/Mohd. Kafeel, Goldsmith is concerned, it be observed that rough estimate slips Mark D to G are not proved as per law being photocopies. During cross examination, he has admitted that neither the name of purchaser nor shop is mentioned on those slips. He has also admitted that neither serial number nor his signatures are mentioned in those documents. He has further admitted that he can not produce documents to show that he is a goldsmith. He has denied the suggestion that neither he is a Goldsmith or issued any rough slips of the jewelleries to the complainant. In the given circumstances, none of the ingredients of section 405 IPC is established and no case u/s 406 IPC is made out against the accused.
27. In view of the aforesaid discussions, the court is of the view that no material evidence has been produced in order to secure the conviction of accused, therefore, he is acquitted from the charges framed under section 498A/406 IPC.
28. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 14.01.2015 (MONA TARDI KERKETTA) MM02 , MAHILA COURTS TIS HAZARI COURTS, DELHI FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 17/18 FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 18/18 FIR NO. 283/04 P.S. SADAR BAZAR U/s. 498A/406 /34 IPC State Vs. Rehan 14.01.2015 Present : Ld. APP for the State.
Accused Rehan on bail in person with Ld. counsel.
Other accused persons have been discharged.
Vide separate judgment announced in the open court, accused is acquitted from the charge framed U/s 498A/406 IPC Put up for furnishing of bail bond in compliance of provision given under section 437A Cr PC on 16.01.2015 Mona Tardi Kerketta MM02: Mahila Court THC: Delhi: 14.01.2015 FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 19/18 FIR NO. 283/04 P.S. SADAR BAZAR U/s. 498A/406 /34 IPC State Vs. Rehan 16.01.2015 Present: Ld. APP for the State Accused Rehan on bail in person with Ld. counsel Other accused persons have been discharged.
Bail Bonds of accused persons furnished at the time of court bail stand cancelled. Sureties are discharged. Original documents if any be returned against receiving. Endorsement if any be cancelled.
In compliance of provision given under section 437A Cr. Pc. fresh bail bond in the sum of Rs. 10,000/ have been furnished. Same is attested and accepted. Bail bond shall remain in force for a period of 6 months.
File be consigned to Record Room.
(MONA TARDI KERKETTA) MM02 , MAHILA COURTS TIS HAZARI COURTS, DELHI 16.01.2015.
FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 20/18 FIR NO. 283/04 P.S. SADAR BAZAR STATE VS. REHAN & OTHERS 21/18