Delhi District Court
State vs . Pushpa & Others on 26 March, 2011
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SED )
SAKET COURTS, NEW DELHI.
Serial No. 202/09
Unique Case Identification No. 02406R0013871996
State Vs. Pushpa & others
FIR No. 940/95
P. S. Sriniwas Puri
U/S U/s 498A/406 IPC
JUDGMENT:
1. Date of institution 20051996
2.Date of commission of offence On and after 1993
3.Name of the complainant State through Laxmi
4.Name of the accused 1. Kumari Geeta
S/o Late Sh. Matru Lal
rd
R/o E12, 3 Floor,
Amar Colony,
Lajpat Nagar, New Delhi
2.Ramesh Kumar
S/o Late Sh. Matru Lal
R/o L81 C, DDA Flat
Saket, New Delhi.
FIR No. 940/95
P.S. Sriniwas Puri Page No. 1 of 22
3. Rakesh Kumar
S/o Late Sh. Matru Lal
R/o L81 C, DDA Flat
Saket, New Delhi
4. Pushpa
S/o Late Sh. Matru Lal
R/o L81 C, DDA Flat
Saket, New Delhi
5.Smt. Kalawati
W/o Late Sh. Matru Lal
R/o L81 C, DDA Flat
Saket, New Delhi
6. Smt. Usha
W/o Sh. Manmohan
R/o C403, Kidwai Nagar
New Delhi
5.Nature of offence complained of U/s 498A, 406 IPC.
6.Plea of the accused person Accused persons pleaded
not guilty
7. Date reserved for order 170311
8.Final Order Acquitted
9.Date of such order 26032011
Date of Institution : 20051996
Date of reserving order : 17032011
FIR No. 940/95
P.S. Sriniwas Puri Page No. 2 of 22
Date of pronouncement : 26032011
BRIEF FACTS OF THE CASE:
1. The complainant was married with the accused Ramesh Kumar on 07/05/93 according to Hindu Rituals. That soon after the marriage the complainant was subjected to extreme physical and mental torture by all the accused persons. The husband was always provoked by the other families members to cause physical violence upon the complainant. The complainant was not even permitted to speak to her family members. Mother in law Kalawati and Sister in laws Pushpa, Usha and Geeta used to demand cash and jewellery for the unmarried sisters as well as a pendant set for mother in law. The father of the complainant had spent more than Rs. 30,0000/ in the marriage and the financial condition of the complainant was revealed to the family of the husband. It was disclosed to the complainant by accused Ramesh that since the complainant had a dark complexion, he did not wish to marry her but he was forced to marry her as he expected handsome dowry in marriage. The in laws were insistent on their demand of cash and the complainant disclosed the same to her parents in October 1993 and thereafter her cousin brother Narender Kanojia handed FIR No. 940/95 P.S. Sriniwas Puri Page No. 3 of 22 over a cash of Rs. 60,000/ on 22/10/93 in the presence of one Chandershekhar. In spite of receiving the cash, lust for money did not end there and more demand was raised from the complainant. When the complainant expressed her inability to fulfill the demand, she was physically assaulted by all the accused persons on 28.10.93 and they all conspired to kill the complainant. The accused persons left cylinder nobs open and the complainant was forced to make meal in the kitchen, when she entered the kitchen, she smelt gas and was fortunate to be saved. The complainant came to know about the first marriage of the husband through her mother in law. The complainant was physically abused and certain unreasonable demands were raised upon her which she could not fulfill and finally on 22.11.93 she was thrown out of the matrimonial house. The complainant started residing with her cousin brother. The entire jewellery has been kept by the in laws and the husband. On the complaint of the complainant FIR was registered and all these accused persons were summoned.
2. After complying with the provisions of section 207 Cr.P.C formal charge was framed against the accused persons Pushpa, Usha, Rakesh, Ramesh, Geeta and Kalawati U/s 498A IPC and the FIR No. 940/95 P.S. Sriniwas Puri Page No. 4 of 22 husband Ramesh Kumar was also charged U/s 406 IPC to which the accused persons pleaded not guilty and claimed trial.
3. Prosecution in order to establish its case examined 7 witnesses PW 1 Head Constable Ombir Singh desposed that on 21.11.95 he was posted as a duty officer. FIR was recorded by him and the case was registered vide FIR No. 940/95 U/s 498A/406 IPC.
4. PW 2 Laxmi, she is the complainant in the present case. She reiterated the contents of the complaint Ex. PW 2/A. She was cross examined by the counsel for the accused wherein she admitted that she stayed in her matrimonial house for a period of 6 months. She further admitted that she had mentioned before Ld. ASJ Smt. Mamta Sehgal that she is ready to live with her husband in case he lives separately from his family. She further stated that her father was posted at Hyderabad as Senior Store Officer in the Ministry of Finance, but she does not know his salary. That her father was never called during investigation by the police. She further stated that during investigation the police had not asked her to produce the bills of the jewellery and the names of the persons who have gifted the said jewellery. She further admitted that she had written one letter to her parents when a demand was raised FIR No. 940/95 P.S. Sriniwas Puri Page No. 5 of 22 upon her but she could not produce the said letter.
5. PW 3 Narender Kumar, he is the cousin brother of the complainant. He had arranged the marriage of his sister with the accused. He corroborated the versions of the complainant and the dowry articles given at the time of marriage as mentioned by PW
2. List of dowry articles along with the bills were handed over to the father of the accused Ramesh Kumar. He deposed that the attitude of all the accused persons with the complainant was good initially but with the passage of time he noticed an indifferent attitude of the family members of the accused. The accused persons raised a demand of Rs. 1,00,000/ from the father of the complainant and on request from his uncle, he arranged Rs. 60,000/ and gave this amount to husband. The accused persons suffered loss in the business and they pressurized the complainant to bring Rs. 1,00,000/ on 22.10.93. He handed over this money to the accused husband and he assured that he shall return this money. The complainant was thrown out of the matrimonial house on 23.11.93 and stayed with him till 1995. She joined her parents in Hyderabad in the year 1995. Several attempts were made to reconcile the matter but to no avail. He along with his paternal FIR No. 940/95 P.S. Sriniwas Puri Page No. 6 of 22 uncle arranged the marriage of the complainant. Seizure memo of stridhan articles is Ex. PW 2/B and bears his signatures at point C. The articles are Ex. P1 to P34. He identified the accused persons in the Court.
6. He was cross examined by the counsel for the accused persons. He was confronted with the portion that the accused persons demanded Rs. 1,00,000/ from his paternal uncle and that his paternal uncle asked him to arrange some money for giving to accused persons. The same have not been recorded U/s 161 Cr.P.C which is Ex. PW 5/A. He was confronted with other statements made in his deposition in Court which have not been mentioned in statement U/s 161 Cr.P.C. He stated that he was working as a cook in Ashoka Hotel and was earning Rs. 9500/ as salary in the year 1993. He arranged Rs. 60,000/ by borrowing about Rs. 18,000/ from his brotherinlaw, Rs. 22,000/ from brother of the complainant and gave 20,000/ from his account. He admitted that the complainant had stayed in the matrimonial house for about 45 months in total. And that the parents of the complainant did not take part in the proceedings at CAW Cell.
7. PW 4 Constable Bagirath deposed that he along with Investigating FIR No. 940/95 P.S. Sriniwas Puri Page No. 7 of 22 Officer went to the house of the accused and in his presence stridhan articles were seized vide seizure memo Ex. PW 2/B and bears his signature at point B. His further examinationinchief was deferred. He was not produced thereafter by the prosecution.
8. PW 6 Chander Shekhar deposed that he is the brother of PW 3 Narender Kumar deposed that dowry was given at the time of marriage of complainant and the sum of Rs. 60,000/ was given to accused Ramesh at his residence. He was cross examined by the counsel for the accused wherein he admitted that he came to know from his neighbours that the complainant has been left out by the accused. He did not remember when the police had recorded his statement. He further stated that the amount of Rs. 60,000/ was arranged by his brother PW 3, from his brotherinlaw and Manoj and gave to the accused.
9. PW 7 Inspector Pramodini Minz deposed that on 21.11.95 she was posted at CAW Cell and the complaint Ex. PW 2/F was assigned to her for investigation and her endorsement is Ex. PW 7/A. She was handed over a list of items Ex. PW 2/A and Mark X and A. Certain articles were seized on identification by the complainant. The seized item no. 1 and 2 were sealed with the seal of PL. FIR No. 940/95 P.S. Sriniwas Puri Page No. 8 of 22 Seizure memo was prepared by her. Photographs of marriage are Ex. PW 2/E. Accused persons were formally arrested by her. She identified the accused in the Court.
10.PW 8 Inspector Pramodini Minz, she was again examined as PW
8. She deposed that the complainant did not want to stay at matrimonial house and wanted to stay with her husband alone. Since all the dowry articles could not be recovered, the case was filed on 25.11.95. The challan was prepared on the directions of the Court and the report filed by her is Ex. PW 2/F and bears her signatures at point B.
11.She was cross examined by the Counsel for the accused wherein she admitted that nothing was recovered from the house of the accused. She admitted that the statement of only cousin brother of the complainant was recorded during investigation and that she did not inquire as to by whom the jewellery items were purchased. However, she asked the complainant to produce the bills of the jewellery which she did not produce. No neighbours of the parties were interrogated at the time of investigation regarding the torture of the complainant by the accused persons. As per the complainant the jewellery given by the parents of the complainant FIR No. 940/95 P.S. Sriniwas Puri Page No. 9 of 22 but they were not examined by her.
12.The prosecution in all has examined only 5 witnesses but they have been numbered wrongly in the judicial file. The prosecution evidence was closed and the case was fixed for statement of accused persons. Separate statement of all the accused persons was recorded wherein all of them stated that it is a false case against them and they have been falsely implicated. They did not wish to lead defence evidence and the case was fixed for final arguments.
13.The case was argued by the Ld. APP for the State and counsel for the accused persons. It has been argued by the Ld. APP that complainant had been a victim of physical violence and mental torture for the demand of dowry by the accused persons and the prosecution has succeeded in establishing its case against all the accused persons beyond reasonable doubt. All the accused persons are liable to be convicted. All the prosecution witnesses have supported the prosecution story in all material particulars.
14.Conversely, it has been argued by counsel for the accused persons that all the accused persons have been falsely implicated in the present case as the complainant was insistent upon staying FIR No. 940/95 P.S. Sriniwas Puri Page No. 10 of 22 separately with the husband and wanted to leave his family and take a separate house. On refusal by the husband, this false case has been filed in connivance with her cousin brother.
15.Neither the father, mother nor real brother of the complainant have been interrogated at the time of investigation or examined as witnesses. In case the complainant was actually a victim of physical and mental abuse. She would have disclosed it to her family members before disclosing it to anyone else. So non examination of these material witnesses is fatal to the story of prosecution.
16.There are no specific allegations against any of the accused persons. No specific instances of cruelty or demand of dowry has been mentioned by the complainant in her complaint. The only demand raised by the complainant is of Rs. 1,00,000/ and she had informed her father about the said demand. And on request of her father her cousin brother PW 3 had given Rs. 60,000/ to the accused husband.
17. When this demand was disclosed to the father of the complainant then why was he not examined as a witness. This raises flaw on the part of the prosecution. The complainant had left the FIR No. 940/95 P.S. Sriniwas Puri Page No. 11 of 22 matrimonial house in November 1993, but the complaint for the first time has been lodged on 26.04.95. Such a long delay of almost two years has not been explained by the complainant. The prosecution has failed to establish its case against the accused persons and they deserve to be acquitted.
18. I have heard the rival contentions of counsels for both the parties and gone through the records in order to charge accused persons U/s 498A following ingredients are required to be fulfilled. The first and foremost requirement of the Section is that the complainant should be subjected to harassment, torture and cruelty in furtherance of demand of dowry.
19.Reliance in this regard may be placed on Hans Raj Sharma & Ors. V. State Govt. of N.C.T. of Delhi, Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A of IPC.
20. Smt.Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18 where it was observed:"It is not every harassment or every type of cruelty that would attract Section FIR No. 940/95 P.S. Sriniwas Puri Page No. 12 of 22 498A IPC Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.
Similar view was taken in Richhpal Kaur Vs. State of Haryana & Anr. 1991 (2) RCR 53 where it was observed that in case of beatings given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry, offence under Section 498A would not be made out. The Hon'ble Supreme Court in Kans Raj Vs. State of Punjab & Ors. 2000 (5) SCC 207 held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and in State of Himachal Pradesh Vs. Nikku Ram & Ors. (1995) 6 SCC 219 it was held that harassment to constitute cruelty under Section 498A Explanation (b) must have nexus with the demand of dowry and if this is missing the case would fall beyond the scope of Section 498A.
Similar was the view expressed in Raj Kumar Khanna Vs. State (NCT of Delhi) 95 (2002) DLT 147 (DB) where after referring to various authorities the Hon'ble High Court held that it is not every harassment or every type of cruelty that would attract the provision FIR No. 940/95 P.S. Sriniwas Puri Page No. 13 of 22 of Section 498A IPC and that harassment to constitute cruelty under Section 498A IPC must have nexus with the demand of dowry and if that was missing the case would fall beyond the scope of Section 498A IPC.
21.In the entire complaint, the complainant has only mentioned about one demand of Rs. 100,000/ raised by the accused husband and his family members. Besides that there is no mention of any other demand. The complainant had disclosed about the said demand to her father who has not been examined as a witness. The other witness i.e PW 3 who had on the request of the father of the complainant given a cash of Rs. 60,000/ has deposed that he had handed over a cash of Rs. 60,000/ to the accused as the accused persons had suffered loss in the business and even the accused Ramesh had assured that this money shall be returned after a while.
22.Therefore, this demand can at the most be termed as loan having been taken by the accused, as he had suffered financial crunch and cannot be termed as dowry demand.
23. Reliance in this regard was be placed on Hans Raj Sharma & Ors. Vs. State Govt. of N.C.T of Delhi. Solitary instance of asking FIR No. 940/95 P.S. Sriniwas Puri Page No. 14 of 22 for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A IPC.
24. Now as far as the allegations of cruelty are concerned, no specific incidents have been mentioned in the complaint against each of the accused persons and as per the own admission of PW 2 complainant, she stayed in her matrimonial house only for approximately 6 months in total. It is quite improbable to believe the story of the complainant. The complainant has also given an exaggerated list of the dowry given at the time of marriage by her parents. It is the admission of all the material witnesses i.e 2, 3 and 4 that all the expenses in the marriage were borne by father of the complainant. So the only person who could have disclosed his sources of income as well as from where he purchased the alleged dowry articles has not been examined. Therefore, the exaggerated claim of the complainant cannot be accepted.
25.In view of the aforesaid discussion, I conclude that the offence under Section 498A IPC is not established beyond reasonable doubt against all the accused persons.
FIR No. 940/95 P.S. Sriniwas Puri Page No. 15 of 22
26.Regarding the offence under Section 406 IPC, the prosecution in order to establish its case was required to prove the following ingredients:
(i) entrusting a person with the property or with any dominion over property.
(ii) that person entrusted (a) dishonestly misappropriated or converted that property to his own use; or (b) dishonestly used or disposed of that property or willfully suffered any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
27. At the outset, I find that there is no specific date, time mentioned when the stridhan articles were entrusted by the complainant to the accused and as to when she demanded them back or that the accused refused to return the same.
28.Reference may be made to Maninder Singh & Ors. Vs. State of Haryana & Anr. II (1993) DMC 605 where it was held that in view of the vagueness of the allegation regarding entrustment of dowry articles and the alleged maltreating, the continuance of the proceedings in pursuance of the FIR would amount to any abuse FIR No. 940/95 P.S. Sriniwas Puri Page No. 16 of 22 of the process of the Court and it was observed that in that case there was no evidence as to which article was entrusted to which of the accused persons.
29. In Shanti Devi Vs. State of Harayana I (2000) DMC 697 it was observed that it was not clear from the complaint which was the basis for prosecution as to when the accused persons demanded articles or money or misappropriated the articles given to the bride or the bridegroom at the time of marriage.
30. Again in Rai Singh Vs. Smt. Gurdev Kaur 1989 (1) RCR 647 it was observed that there was no specific allegation that any specific article had been entrusted to the petitioners therein at the time of solemnization of marriage and there was no detail concerning individual acts of cruelty or harassment and as such no offence under Sections 406 or 498A IPC was made out.
31. In Dhan Devi Vs. Deepak 1989 (1) RCR 278 it was held that the allegation that the articles were entrusted to all the accused was vague and in the present case as well the allegation is regarding all the accused persons.
32.Further in Raj Kumar Khanna Vs. State (NCT of Delhi) & Ors. 95 (2002) DLT 147 (DB) it was observed that to attract Section FIR No. 940/95 P.S. Sriniwas Puri Page No. 17 of 22 406 IPC there must be specific allegation of entrustment. Similarly in Sukhbir Jain & Anr. Vs. State 1993 JCC 91 it was observed:
"Regarding offence Under Section 406 IPC no specific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence u/s 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to prima facie make out a cognizable offence under Section 406 IPC."
33.In that case it was held that there were no clear, distinct and specific specific allegations regarding entrustment to the accused, dishonest misappropriation by him or conversion to his own use and refusal by him to return back the articles and the most vital FIR No. 940/95 P.S. Sriniwas Puri Page No. 18 of 22 and essential ingredients of the offence U/s 406 IPC were missing and it was held that even prima facie case was not made out whereas in the instant case after evidence has been led similar is the position.
34.In Neera Singh Vs. State 138 (2007) DLT152, it was observed by Honourable Justice S.N. Dhingra in Para 4 as under, "......... Now a days, exorbitant claims are made about amounts spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed........."
Further, it was observed it para 5 of the same decision that, ".... Court should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn...."
35. In the entire complaint the complainant has nowhere mentioned that she had either entrusted her jewellery to the accused husband or that the same was refused on demand or has been misappropriated by him. No bills have been filed by the complainant.
FIR No. 940/95 P.S. Sriniwas Puri Page No. 19 of 22
36.In the present case, not a single receipt of any of the stridhan articles allegedly misappropriated by the accused have been filed. Agreed, much time had elapsed between the marriage of the parties, and it was not practical to expect that the bills were retained. Nevertheless, the fact remains that the prosecution had not been able to discharge the onus that the said jewellery items actually constituted the stridhan of the complainant. Moreover, the father who had actually purchased the said jewellery and other stridhan articles has not been examined to prove the same.
37.From the material placed on record, I find that the case against the accused persons has not been proved beyond reasonable doubt. The prosecution has failed to prove the guilt of the accused for offence U/s 406 IPC beyond reasonable doubt.
38.I feel that the prosecution has not been able to discharge the onus of proving the guilt of the accused persons beyond reasonable doubt. The accused persons deserve to be given benefit of doubt. Accused persons are accordingly acquitted.
Announced in open court ( POOJA TALWAR )
on 26032011. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 940/95
P.S. Sriniwas Puri Page No. 20 of 22
State Vs. Pushpa & Ors
FIR No. 940/95
P. S. Sriniwas Puri
U/S U/s 498A/406 IPC
26032011
Present : Ld. APP for State.
Accused persons in persons
Accused persons are acquitted vide my separate judgment of even date i.e. 26032011. Bail bonds are cancelled. Sureties stand discharged. Endorsement, be cancelled, if any. File be consigned to record room.
( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi.
FIR No. 940/95 P.S. Sriniwas Puri Page No. 21 of 22 FIR No. 940/95 P.S. Sriniwas Puri Page No. 22 of 22