Delhi District Court
Devender Kumar vs Ramesh Chand Shivan Etc on 28 March, 2024
1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
CNR No. : 4996604/2016
Date of Institution : 02.02.2001
Name of the Complainant : Sh. Devender Kumar
S/o Sh. Rama Nand
R/o Village & P.O. Shahbad
Mohamad Pur, New Delhi.
Name and address of accused : 1) Ramesh Chand Shivan
R/O Z26, Kashmiri Colony,
Village Paprawat, P.S. Najafgrah,
New Delhi. (Proceedings against
this accused abated vide
order dated 28.05.2022)
2) Smt. Kavita @ Bablee
W/o Sh. Devender Kumar
D/o Sh. Rajender Kumar Yadav
R/o Z26, Kashmiri Colony,
Village Paprawat, P.S. Najafgarh,
New Delhi.
Charge framed against accused : U/S 323, 342,506, 406, 497 &
persons 498 IPC
Plea of accused persons : Not guilty
Final Order : Acquitted
Date of reserve for orders : 09.02.2024
Date for announcing the orders : 28.03.2024
CC NO. 4996604/16
Devender Kumar Vs. Ramesh Chand & Ors.
2
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1.The complainant has filed present complaint U/S 200 Cr. P.C seeking prosecution of accused persons for commission of offences U/S S 406/497/498/307/34 Indian Penal Code, 1860 (here in short called as 'IPC').
It is alleged by the complainant that complainant got married with accused No.2 Smt. Kavita @ Bablee on 25.04.1999 as per Hindu rites and customs and after 2 months of their marriage, due to pressure of accused No.2 and his motherinlaw, they both got separated from his parents. It is further stated that even after their separation from the parents of complainant, his wife (accused No.2) and motherinlaw continued to harass and humiliate the complainant and on 04.09.1999, his motherinlaw took away his wife i.e. accused No.2 along with her to her parental house and after repeated requests of the complainant on 25.05.2000 only, his motherinlaw allowed his wife i.e. Smt. Kavita i.e. the accused No.2 to accompany the complainant to her matrimonial home and on 04.08.2000, his wife delivered a male child namely, Paramjit. It is further stated that the complainant was surprised by the birth of child as his wife Smt. Kavita i.e. accused No.2 lived at her mother's house w.e.f 04.09.1999 till 25.05.2000 without any access to the complainant and despite that, she delivered a child on 04.09.2000 and it was told to the complainant that it is all because of grace of accused NO.1 Ramesh Chand Shivan ("Tantrik") and complainant was also compelled to go to the house of accused No.1 Ramesh Chand Shivan on the plea that he is a good pandit and would tell about the future of their son and at the house of accused No.1, he was served with a tea and he was made to eat bhaboot and CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
3accused No.1 also applied some bhaboot on his forehead and gave him one banana with some spice to eat and after having same, the brain of the complainant was adversely affected and complainant lost his mental power of thinking and understanding and he started acting as per directions of the accused persons and on 25.08.2000, the complainant along with his wife i.e. accused No.1 after quarrel with his parents brought his entire property to the house of accused No.1 in a tempo and handed over the same to accused No.1, who kept the entire property in the first floor of his plot in front of residential house of accused No.1 situated at Kashmiri Colony Village Paprawat, Najafgarh, New Delhi. He further stated that on 20.09.2000 at about 9:30 PM, when complainant returned from his duties, he was shocked to see accused No.1 having sexual intercourse with his wife i.e. Accused No.2 thus, complainant got angry but accused No.1 threatened him to kill him, if he raised any alarm or objections and thus, the complainant could not protest effectively and further due to mental shock, the complainant could not do anything and thereafter, again on several occasions, he saw accused No.1 having sexual intercourse with his wife i.e. accused No.2 and upon objection by the complainant, the accused No.1 gave beatings to the complainant with kicks, fists and slap blows and accused No.2 also joined him. It is further stated in the complaint that on 06.12.2000 in the night at about 2:00 AM, the accused No.1 and accused No.2 entered in his room and tried to kill the complainant by pressing his neck but he somehow managed to escaped by through the telephone pole erected at the first floor of the house as the door of the stair case was locked. It is further stated that he went to the house of his parents and his father got alarmed to see his condition and got CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
4him treated in RML Hospital on 07.12.2000. It is further stated that on 20.12.2000, the complainant sent a complaint to the Commissioner of Police and other authorities but no action was taken. It is also stated that the complainant requested the accused to return his clothes and other articles which were lying in his custody by sending a Registered AD Letter but the accused No.1 refused to return his property and rather converted the same to his use without complainant's consent. Thus, the complainant has filed the present complaint against the accused persons for commission of offences U/s 406/497/498/307 /34 IPC.
PRE SUMMONING EVIDENCE:
2. The complainant examined four witnesses in his pre summoning evidence including himself. In his pre summoning evidence the complainant primarily narrated the averments made in the complaint and tendered letter written by him to accused No.1 seeking return of his property i.e. Mark C and has further relied upon present complaint Ex.CW1/A. CW2 HC Hans Raj from PS Najafgarh proved the factum of filing of the complaint dated 20.12.2000 Ex. CW2/A by the complainant in PS Najafgarh. CW3 Sh. Naresh Kumar is the friend of the complainant and he deposed that on 25.08.2000, the complainant was brought by his wife and mother in law at the place of accused No.1 and accused NO.1 performed some tantrik act upon him and advised him and his wife to fight with the parents of complainant and bring their property to Tantrik and he was present there when all this happened and in the evening when he visited Tantrik again, he saw that complainant and his wife had brought their belongings to the house of Tantrik CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.5
and the same were kept at the first floor of the house of Tantrik and thereafter, complainant and his wife started residing there. Thereafter, on 21.09.2000, the complainant told him that he had seen accused No.1 & 2 having sexual intercourse and has threatened to kill him, if he objects to the same. He further deposed that in the morning on 07.12.2000, when he went to accused No.1, he found accused No.1 with accused No.2 at the ground floor of his premises located in Kashmiri Colony but the complainant was not there and when he went to the house of the complainant, he was told about the incident that happened in the intervening night of 67.12.2000 at 2:00 AM by the complainant and thereafter, this witness deposed that he along with father of complainant had taken him to RML Hospital where he received treatment. This witness further deposed that on 02nd or 03rd January, 2001, he went to the house of the accused along with the complainant and complainant asked accused No.1 to return his clothes and property but he refused to return the same.
3. CW4 Sh. Ramanand is the father of the complainant who deposed that his son got married with Accused No.2 on 25.04.1999 and about 2 months of their marriage, due to pressure of mother in law and accused No.2, the complainant started living separately and even thereafter, mother in law of the complainant started interfering in the affairs of the complainant and at her instance, complainant started visiting accused No.2 almost daily and on 25.08.2000 complainant and his wife after visiting accused No.1, quarreled with him and started living with accused No.1 at his house located in CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
6Kashmiri Colony Najafgarh. He further deposed that in the night of 6 7.12.2000 at about 2:30 AM or 3:00 AM, he was sleeping and he heard knock at the door of his house and on opening the door, he saw complainant in a shocked condition and upon inquiry, he told that he had seen accused No.1 and 2 having sexual intercourse with each other and when he challenged, they attempted to kill him by pressing his neck and when on 07.12.2000, the complainant was taken to RML Hospital and was given treatment and he remained under treatment for his mental condition for more than 1 year. This witness further deposed that on 02 or 03 January, 2001 complainant along with friend Sh. Naresh went to the house of accused No.1 and requested to return his personal articles but accused No.1 refused to return the same and then 04.01.2001, he also went to the house of accused No.1 and was shocked to see almirah, clothes, gas cylinder with oven and music system lying in the custody of accused No.1 and even on his request, the accused No.1 refused to return the same and the list of property in possession of accused No.1 is Ex. CW4/A bearing signatures of his son at point A and copy of record of his medical examination is collectively Mark A.
4. After considering the pre summoning evidence, accused No.1 was summoned vide order dated 15.04.2006 for the offences U/S 323, 342, 406, 506, 497, 498, 506, IPC and accused No.2 was summoned for offences U/S 323, 342, 406 & 506 IPC, passed by this Court.
CHARGE FRAMED:
CC NO. 4996604/16Devender Kumar Vs. Ramesh Chand & Ors.7
5. Upon appearance of the accused persons, the compliance of section 207 Cr.P.C. was ensured. Upon consider ing pr e char ge evi dence l ed by com pl ainant side, the charge for offences under section 323, 342, 497, 498, 506 Part II, 406 IPC was framed against the accused No.1 Ramesh Chand and charge for the offences under Section 323, 342, 506 Part II, 406 IPC was framed against the accused No.2 Smt. Kavita on 04.11.2011, to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for postCharge evidence. During trial, accused No.1 Ramesh Chand passed away and proceedings against him were abated vide order dated 28.05.2022.
POST CHARGE EVIDENCE:
6. In post charge evidence, the complainant examined four witnesses including himself.
7. Complainant stepped into the witness box as CW1 and deposed that the accused No. 2 is his wife with whom he got married on 25.04.1999 at Chaman Pura, Dist. Jhajjar, Haryana on 25.04.1999 as per hindu rites and customs and after 2 months of their marriage, the accused No.2 and her mother created pressure upon the complainant and compelled him to live separately from his parents and thus, they lived at ground floor of his house separate from his parents. He further stated that after their separation, on instigation of her mother, his wife i.e. accused No.2 started visiting Ramesh Chand Shivan Tantrik i.e. accused no.1 and upon his enquiry, his mother in law told him that on getting medicine from Tantrik, her daughter will deliver a child early and also on the pretext of getting medicine, his mother in law CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
8took Smt. Kavita i.e. accused No.2 to accused No.1 Ramesh Chand, Tantrik on 04.09.1999 for getting her treated for conceiving a child and when complainant went to the house of his mother in law several times for taking his wife i.e. accused No.2 back to his house, she kept him off on one pretext of the other and she did not allow complainant even to meet his wife. He further deposed that on 25.05.2000, after his repeated requests, his mother in law allowed his wife i.e. accused No.2 Kavita to accompany him to his house and he brought his wife back to his house. He further deposed that on 04.08.2000, his wife delivered a male child namely, Paramjeet and he was surprised to this as accused No.2 Smt Kavita had not lived with the complainant from 04.09.1999 to 25.05.2000, upon this his wife and mother in law told him that the birth of the child was by the grace of accused Ramesh Chand Tantrik and they both took the complainant to the house of accused Ramesh Chand on the plea that he is a good Pandit where accused Ramesh Chand served a tea to the complainant and made him to eat some Babhoot after blowing air from his mouth and complainant applied Babhoot on his forehead and gave one banana in which some spice like thing was there and on eating the same, the brain of complainant was affected and he lost his mental power of thinking and his sense of understanding became powerless and whatever both the accused persons directed , the complainant used to act as per their directions. He further deposed that thereafter, upon the instructions of his mother in law, the complainant under their influence took his wife i.e. accused No.2 almost daily to the house of accused Ramesh Chand Tantrik. He further deposed that on 25.08.2000, when he went along CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
9with his wife and mother in law went to the house of accused Ramesh Chand,Tantrik, they all instigated him to fight with his parents and thus, on their instigation, the complainant and his wife i.e. accused No.2 quarreled with his parents and he took all the property lying at the house of parents of complainant and brought all the property to the house of accused Ramesh Chand in a tempo and handed over the same to accused Ramesh Chand who kept the entire property in the first floor of his house at Z26 Kashmiri Colony, Paprawat Road, Najafgarh where the complainant along with his wife i.e. accused No.2 continued to stay in his house. He deposed that on 20.09.2000 at about 09:30 PM, when complainant returned after completing his duties, he saw both accused persons having sexual intercourse and thus, complainant became tensed and angry but accused Ramesh Chand Shivan threatened to kill the complainant if he raised any alarm or objected to their acts, thus, the complainant could not protest effectively. He further deposed that thereafter also, he saw accused No.1 Ramesh Chand having sexual intercourse with his wife accused Smt. Kavita on several times and when he told his wife that they would not live in the house of accused Ramesh Chand Tantrik, on this the accused Ramesh Chand Tantrik gave him beatings with kicks, fist blows and his wife Smt. Kavita (accused No.2) also joined him in the assault on the complainant. He stated that he was crying with pain and they left the complainant in severe pain on the first floor and both of them went to the ground floor of the house and he narrated this entire incident to his friend Mukesh Kumar also who also told accused No.1 Ramesh Chand to allow the complainant and his wife to go to their own house but both of the CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
10accused persons threatened to kill him also. He deposed that on 06.12.2000 at night at about 2:00 AM, both accused persons i.e. Ramesh Chand and Smt. Kavita entered in his room and they tried to strangulate him and kill him by pressing his neck, however, he struggled and managed to escape and ran away to save his life and he found the door of the stair case locked and thus, he saved his life by going out through a telephone pole which was erected near the first floor of the house and he was having severe pain due to beatings given by the accused but in order to save his life, he ran to the house of his parents and reached there but due to shock and trauma and due to fear, he could not tell the incident completely to his father. He deposed that as the accused Ramesh Chand and his wife had tried to kill him and his wife had betrayed him, he was very much tensed. He further deposed that on the next morning, his father took him to RML Hospital for treatment and he continued to be under treatment and his treatment slip of RML hospital is MarkA. He deposed that on 20.12.2000, he sent complaints to police and copy of which is MarkB. He deposed that on 16.01.2001, he sent a registered letter MarkC to accused Ramesh Chand to return his clothes and other articles lying in his custody and also allow his wife (accused No.2 Kavita) to come back to his house. He further deposed that the articles which were entrusted to accused were one almirah which contained one woolen uniform, one pair of red color shoes, one woolen suit, two white color shirts and Rs. 500/ in cash and four pants, four shirts and one pair kurta pajama and another pair of red color shoes, one rajai, one iron charpai, one gas cylinder with oven, one music system and twenty cassettes and that later on, all these articles were recovered CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
11by the police vide seizure memo MarkD and that those articles have not been delivered to him till today. He further deposed that when the accused refused to return his articles despite his registered notice, he alongwith his friend Naresh Kumar went to the house of accused and requested for return of his personal articles lying with him but he refused to return those articles and on the contrary, he threatened the complainant to run away otherwise he would kill him. He deposed that since no action was taken against the accused persons despite complaints thus, he filed complaint Ex.CW1/A in the Court and the list of property is Ex. CW1/B. Thereafter, CW1 was crossexamined by the accused. During his cross examination by Ld. Counsel for accused No.1, he stated that he remained in continuous treatment for 33.5 years due to loss of his mental balance and he also stated that when he saw accused No.1 & 2 having sexual intercourse with each other, he was given beatings by them. He also stated that he was treated for his beatings as well as for his mental disturbance. He also deposed that he was residing at the first floor of house of accused No.1 without paying any rent. He also admitted that his wife has filed one case U/S 498 A & 406 IPC against him, however, he stated that the same was filed after 6 months of this incident. He admitted giving statement Ex. CW1/D1 dated 30.07.2001 to police wherein he has stated that he had voluntarily come to the house of accused No.1 and he is taking all his belongings which he had brought to the house of accused No.1 and he had no disputes with accused No.1 and his parents were falsely blaming accused No.1 and whatever articles were collected from the house of accused No.1 were handed over by him to police. Though he stated that he was pressurized CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
12and beaten up by police to give such statements and he also suffered injuries due to such beatings, however, he has not produced any medical record or complaint made to any authorities regarding such acts of Jhajjar police. He also stated that some of his personal goods and some goods of his wife were taken by police from accused No.1 to Jhajjar and the same were seized by Jhajjar Police and it is a possibility that the same were seized in the FIR lodged by his wife U/s 498A, 406 IPC. He admitted of having separated from his parents after two months of his marriage, however, he denied not having good relationship with his parents.
8. During his cross examination by ld. Counsel for accused No.2, he stated that at the time of marriage, he was working as Home Guard and was getting Rs. 23/ daily for refreshments but was not getting any salary as Home Guard is a voluntarily service. He denied of making any dowry demands from his wife. He stated that he got to know about accused No.1 after birth of his child when he accompanied his wife and motherinlaw to accused No.1 for Namkaran of child. Such statement of complainant is in contradiction with his statement made in examinationinchief, wherein he stated that his motherinlaw had taken his wife to her house for taking her to accused No.1 for early delivery of their child and accused No.2 was taken by her mother on 04.09.1999 and accused No.2 started visiting accused No.1 after her separation with the complainant and during this period, the complainant was not allowed to meet his wife. He stated that he and his wife fought with his parents in August, 2000 as he was in influence of his mother inlaw, accused No.1 & 2 as he had given him something to eat due to which CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
13his mind was not in his control and he was acting as per directions of accused persons and his motherinlaw. He stated that he has good relationship with his father, however, he admitted that he never reunited with his father. He also admitted during his cross examination that when he was staying at first floor of accused No.1, the family members of the accused No.1 were staying with him on ground floor. He also admitted that he did not make any call on 100 number when he saw accused No.1 & 2 having engaged in sexual intercourse, however, he stated that he did not call the police as he was threatened with dire consequences by accused No.1. He also stated that his wife had gone to his in laws' house on 04.09.1999 and has returned to the complainant on 25.05.2000 and had given birth to child on 04.08.2000 and he claimed that he was not aware about the pregnancy of his wife until the delivery of their child. He admitted that he had taken all the articles belonging to him and his wife to the house of accused No.1 on 25.08.2000. He admitted of having shifted to the house of accused No.1 after 2021 days the birth of the child. He stated that he has filed present complaint with respect to the incident that happened on 06.12.2000 and on 20.09.2000 where he had seen accused No.1 & 2 having sexual intercourse at the first floor of the house when he returned from his duty. He admitted that accused NO.1 was also having wife and children, however, stated that his children used to come to him during day time and the place where they were residing was 45 houses away from the house of accused No.1. However, he claimed that he does not know the address of accused No.1 where his family was residing and also stated that he had never seen his house. He admitted that he did not make any CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
14police complaint when he saw his wife and accused No.1 having sexual intercourse with each other, however, he stated that he told to his wife that it is bad and he also told this fact to his friends Mukesh and Naresh about the same on 21.09.2000 at about 9:00 AM and they advised him not reside there. He stated that when he visited the house of accused No.1 for the first time, many persons were present there, however, his friends Naresh & Mukesh were not present and he stated that he only met Naresh & Mukesh on 21.09.2000 at the house of accused No.1 and thereafter, he never met with them. With respect to the incident of 06.12.2000, he stated that Accused No. 1 & 2 both came to his room and tried to press his neck and tried to kill him due to which he had problem in breathing and since it was 2:00 AM in the morning he did not shout and he pushed them and tried to run and found that the door was locked and then he came at the open space at the first floor and came down from one telephone and while doing so, he was not stopped by accused No.1 & 2 and he straight away reached to the house of his father which was located 1 km away and his father opened the door and asked about the purpose of his visit, but he was not in a fit position to inform them so he slept there and at that time his mother was sleeping at first floor and she did not come down. He stated that when he narrated the entire incident to his father and at that time, his mother and his friend Naresh were also present there and his friend told him that he has come to his house as he did not find him at the house of accused No.1. He admitted that he or his parents or friends did not file any complaint on 07.09.2000 and that he along with his parents never visited the house of accused No.1 and he also stated that when CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
15he became fit after treatment for 1015 days, he gave complaint on 20.12.2000 to PS Najafgarh.
9. In support of his case, the complainant has also examined his father namely, Sh. Ramanand Yadav as CW2 who deposed that he knows both the accused persons and that accused No.2 is wife of his son Sh. Devender Kumar and Accused No.1 is a Tantrik and marriage of accused No.2 with his son was solemnized on 25.04.1999 and they both started living separately in the ground floor of his house where they lived till May, 1999 and thereafter, on 25.8.2001, after visiting Ramesh Chand Shivan Tantrik, the complainant and his wife quarreled with him and his wife without any reason and they took his goods from his house to the house of Ramesh Chand Shivan at Kashmiri colony village Paprawat, Najafgarh and started living with Ramesh Chand Shivan Tantrik. He further deposed that on 07.12.2000 at about 2:00 AM to 2:30 AM, when he was sleeping in his house, he heard knock at the door and on opening the door, he saw the complainant shivering badly and complainant had told him that he had seen his wife and Accused No.1 Ramesh Chand Shivan having sexual intercourse and both Accused persons had threatened to kill him if he discloses such information to anyone and they also tried to kill him by pushing his neck. He further deposed that on the next morning, his son was taken to RTRM Hospital and received treatment for 1 year and prescription slip of his treatment is MarkA and thereafter, his son made complaint to police authorities. He also deposed that on 02/03.01.2001 about 8:00 AM, complainant along with his friend Naresh went to the house of accused No.1 CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
16seeking return of his articles but he refused and on 04.01.2001, this witness went to the house of accused No.1 seeking return of articles of complainant but he refused and regarding the same a letter dated 16.01.2001 MarkC was also sent to accused No.1 but he did not reply to the same. This witness was also cross examined on behalf of accused persons in detail. During his cross examination by accused No.2, this witness admitted that his son was never doing any job or service. He also stated that on 07.12.2000, he along with his wife was present in their house, however, when complainant reached at 2:30 AM at his house, he was not noticed by anyone. He also deposed that he and his son only discussed the incident and no other person was having knowledge of the same. He further stated that his son was taken to RML Hospital for his treatment on next day and not to RTRM Hospital.
10. CW3 ASI Gangadhar has appeared on behalf of concerned SHO PS Najafgarh in respect of the complaint dated 20.12.2000 made by the complainant Devender Kumar at PS Najafgarh, to which he stated that as per their records, the summoned record in question has been destroyed vide order No. 63866416/HAR Dwarka Dated 29.05.2020 of DCP, Dwarka District, New Delhi Ex. CW3/A (Colly.) CW3 SI Hansraj was also examined by complaint to prove the complaint Ex.CW2/A and he deposed that on 14.08.2002, he brought the complete register for the period 2000 where at entry No. 1824 regarding the complaint made by Devender Kumar S/o Sh. Ramanand which was marked to SI Jagvir Singh and he also exhibited the complaint dated 30.12.2000 as Ex. CW2/A and stated that complaint was CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
17received by Govind Singh and he also exhibited his statement recorded on 14.08.2002 as Ex. CW3/A.
11. CW4 Professor Jai Singh Yadav from Department of Psychiatry, BHU, Varanasi, who exhibited medical documents i.e. Ex. CW4/A (Colly.) pertaining to treatment of Devender Yadav and also identified his signatures on documents dated 07.12.2000 at PointA, dated 21.12.2000 at PointB, 04.01.2001 at Point C, 18.01.2001 at PointD, and 01.02.2001 at PointE.
12. No other witness was examined by the complainant in post charge evidence, accordingly, the complainant's evidence was closed vide order dated 14.10.2023 pursuant to separate statement of complainant recorded regarding closure of complainant's evidence. STATEMENT OF ACCUSED U/S 313 Cr.P.C.
13. Statement of accused No.2 Kavita U/S 313 Cr.P.C. was recorded on 27.10.2023 in which all incriminating circumstances appearing in evidence were put to her and she denied all the allegations and stated that she has been falsely implicated by the complainant, rather, she was harassed by the accused for dowry demand. Accused did not opt to lead defence evidence. Thus, the matter was thereafter, listed for final arguments.
ARGUMENTS:
14. Ld. Counsel for the complainant vehemently argued that the complainant has successfully proved his case against the accused by leading cogent evidence on record and establishing all the ingredients of offences with which the accused has been charged. Per contra, Ld. Counsel for accused CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
18claimed for her acquittal on the ground that complaint is belated and it has been filed owing to strained relationship between the parties and he has relied upon some contradictions and improvements in the testimonies of witnesses and argued that the same entitles the accused for acquittal. FINDINGS:
15. I have bestowed my thoughtful consideration to the rival submissions made before me. At the very outset, it is pertinent to mention that on account of death of the accused number 1, proceedings qua accused number 1 abated vide order dated 28.05.2022. The accused No.2 Kavita has been charged with commission of offences U/S 323, 342, 506 Part II & 406 IPC.
16. With respect to offence U/s 323 IPC, in the complaint the complainant has mentioned two instances in para No.5 & 6 thereof. In Para No.5, the complainant has mentioned that on 20.09.2000 at about 9:30 PM upon his return from his duties, he saw accused No.1 & 2 having sexual intercourse with each other and he became angry but accused No.1 threatened to kill him if he raises any objections and thereafter, on several occasions he saw accused No.1 & 2 having sexual intercourse and when he opposed the same and told the accused No.2 that they will not live in the house of accused No.1, the accused No.1 gave him kicks, fist blows and slapped and accused No.2 also joined him. It is pertinent to mention that the complainant has not specified any date of such incident in the complaint and even in his testimony, he has not specified any such incident and the complainant has also not produced any medical records or treatment papers, CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
19thus, these allegations cannot be relied upon. Now coming to the other instance, the complainant in Para No.6 of his complaint has mentioned that accused No.1 & 2 tried to strangulate him on 06.12.2000 at about 2:00 AM and he somehow escaped and saved his life by coming out through the telephone pole as the door of their staircase was closed and he went to the house of his parents immediately. With respect to this incident, it is pertinent to mention that the complainant has admittedly not raised any alarm when accused No.1 & 2 tried to strangulate him and he was admittedly not even stopped by accused No.1 & 2 when he was trying to escape from the premises of accused No.1 through telephone pole. Further, admittedly, the accused No.1 straight away went to the house of his parents and reached there at 2:30 AM and both his parents were present in the house. However, both CW1 & CW2 has stated that mother of complainant who was sleeping at first floor did not come down stairs and as stated by CW2 the complainant was shivering badly when he reached at his house. It is highly improbable that despite the door being knocked at 2:30 AM, the mother of complainant would not hear the sound and will not come downstairs. Further, it is also not believable that despite seeing the condition of his child, the father would not call complainant's mother to comfort him. CW2 though has tried to justify this conduct by saying that his son has only told him about accused No.2 & accused No.1 being engaged in sexual intercourse and that complainant was threatened to be killed, if he will disclose such information to anyone and accused No.1 & 2 tried to kill complainant by strangulating him, however, complainant during his cross examination himself stated that he did not CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
20disclose the occurrence to his father on the night of incident due to his condition and he disclosed this incident to his father in presence of his mother and friend Sh. Mukesh. It is also important to mention that the complainant in his deposition has nowhere stated that on 06.12.2000, he saw accused No.1 & 2 engaged in sexual intercourse, rather his specific allegations are that he saw accused No.1 & 2 doing so on 20.09.2000 at about 9:30 PM and regarding the threats extended by accused NO.1 also, there are allegations only of 20.09.2000 and not of 06.12.2000. Considering such material contradictions and the fact that CW2 is a hearsay witness, his testimony regarding the alleged occurrence or subsequent incident cannot be relied upon specifically, keeping in view his admitted strained relationship with accused No.2. The only material witness to establish these allegations is the complainant himself, however, his testimony is also not completely reliable considering the delay involved in lodging the complaint and his conduct of staying in the premise of accused No.1 even after the incident of 20.09.2000. It is important to mention that though the complainant has tried to justify the delay claiming that owing to his mental condition, he could not make complaint to police, however, admittedly on the next day of alleged occurrence i.e. on 21.09.2000 at about 910 AM, he had told this fact to two of his friends namely, Naresh and Mukesh who as per his version had come to house of accused No.1 on that day, thus, his conduct of not reporting the incident to police due to his mental condition cannot be believed. It is also pertinent to mention that accused has examined his friend namely, Sh. Naresh Kumar as CW3 in presummoning evidence, however, for unexplained CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
21reasons, he did not examine him in precharge evidence or post charge evidence. However, even if we consider the testimony of Naresh Kumar recorded in presummoning evidence, he deposed that on 25.08.2000 in presence of accused No.2 and his motherinlaw, accused No.1 performed some jadutona on complainant in presence of CW3 and on the same evening, he saw complainant and accused No.2 bringing their belongings in a tempo to the house of accused No.1 and thereafter, he also deposed that on 21.09.2000, the complainant told him that he had seen accused No.1 &2 engaged in sexual intercourse and that he was threatened to be killed by accused No.1 if he will object to such acts. However, the complainant in his testimony has nowhere stated that the act of blackmagic (JaduTona) was done upon him by accused No.1 in presence of his friend Naresh and he stated that he met his friend only once i.e. on 21.09.2000 when he had told him about the factum of acts of accused No.1 & 2 having sexual intercourse on 20.09.2000. Such material contradictions in the statement of CW3 recorded in presummoning evidence and CW1 suggests that complainant has falsely planted CW3 as witness with an object to get the accused persons punished. This fact is highly unbelievable that one person will continue to stay in a house of another person for almost next three months with whom he had seen his wife having sexual intercourse on several occasions and his justification of being under influence of accused No.1 and owing to his bad mental condition cannot be relied upon in absence of any medical record of that period and further considering the fact that the complainant himself had disclosed the incident of sexual intercourse to his own friend on the very CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
22next day i.e. on 21.09.2000. Further, though the complainant has claimed that he was treated for his physical injuries as well as mental imbalance on 07.12.2000, however, the medical record produced by CW4 does not suggest so as no history of assault or treatment of any physical injury is mentioned in the medical record Ex.CW4/A (Colly.). Further, the story propounded by the complainant cannot be relied upon in view of the fact that he himself admitted in his crossexamination at one place that the family of accused No.1 was residing at the ground floor of the house where he was residing with his wife. It is not possible that the family of accused No.1 will not oppose the sexual acts of accused No.1 & 2 and will not create a hue and cry or something to prevent the same and will not even do anything if accused No.1 & 2 would try to strangulate someone in their house at 2:00 AM in the night. In view of the discussion made above, even the testimony of complainant qua the occurrence appears to be highly unreliable and the same cannot be made basis to convict the accused number 2 for offence U/S 323 IPC. For the abovementioned reasons, it can be safely concluded that the complainant has failed to establish beyond all reasonable doubt the commission of offence U/s 323 IPC against the accused No.2.
17. Now coming to the offence U/s 342 IPC, the complainant was duty bound to prove that he was confined by accused No.1 & 2 in the room of first floor of the house of accused No.1 on 06.12.2000. With respect to the same, the complainant has deposed that when accused No.1 & 2 tried to strangulate him in the room while he was sleeping, he came out in the open CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
23space on the first floor which was consisting of a kitchen, two rooms, bathroom and open space. Such statement of complainant suggests that his movement was not totally restricted, though he claimed that he tried to escape through the door of staircase, however, it was locked, however, he has nowhere stated that it was locked by accused No.1 &2, thus, the possibility of this door being locked by other family members of accused No.1 cannot be ruled out specifically considering the time of alleged occurrence i.e. 2:00 AM. Further, the complainant himself stated that accused No.1 & 2 did not try to stop him and he did not shout when he was trying to escape through telephone pole. It is natural for a human being to seek help from other residents of the locality or house, if someone is trying to strangulate him, however, the complainant himself stated that he did not shout or raise any cry for help, such conduct of the complainant makes his testimony unreliable. For all these reasons, it can be safely concluded that that the accused has failed to prove beyond all reasonable doubt the commission of offence U/s 342 IPC against the accused No.2.
18. With respect to offence U/s 506 IPC, the complainant in his complaint stated that on 20.09.2000 at about 9:30 PM, when he saw his wife and accused No.1 was engaged in sexual intercourse, he became angry but accused No.1 threatened to kill him if he raised any alarm. Thus, in his complaint the complainant has not leveled any allegations against the accused No.2 with respect to any threats being extended by her. Even in his CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
24testimony, he has nowhere stated that he was threatened to be killed by his wife i.e. accused No.2. Further, for offence U/s 506 IPC, it is also necessary to establish that the threats were extended to cause alarm to the person of complainant and that he actually got alarmed by it, however, complainant has nowhere stated so in his testimony, thus, the complainant has failed to prove commission of offence U/s 506 IPC by the accused No.2 beyond all reasonable doubts.
19. Now coming to offence U/s 406 IPC, the complainant has deposed that under the influence of Accused NO.1, he along with his wife fought with his parents and brought their belongings to house of Accused No.1 in an auto rickshaw. It is pertinent to mention with respect to these belongings, CW2 Sh. Ramanand Yadav father of complainant deposed that complainant and his wife had taken his goods from his house to the house of accused No.1. Further, complainant during his crossexamination has admitted that the articles brought to the house of accused No.1 included goods of his wife as well as his articles and the same were taken into possession by Jhajjar Police and the same is also apparent from the admission of CW1 qua execution of Ex.CW1/D1 wherein the complainant has admitted of having taken all articles from the possession of accused No.1 and having CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
25handed over the same to police. Further, even letter MarkC dated 16.01.2001 was also sent by complainant to accused No.1 seeking return of his articles which were admittedly handed over by accused to police. Thus, the testimony of complainant and document annexed clearly shows that the complainant has failed to establish that property/ goods taken by him to the house of accused No.1 exclusively belonged to him. Further, even if it is believed that the articles belonged to him, both the complainant and accused No.2 had taken those articles to the house of accused No.1 and had kept those articles in the same house of accused No.1 where they were residing ,thus, it cannot be said that complainant has entrusted any of his articles to accused No.2 and she dishonestly misappropriated and converted the same to her own use in violation of any legal contract, expressed or implied as admittedly these articles were taken by Jhajjar Police from the house of accused No.1. Thus, complainant has failed to establish beyond all reasonable doubts the commission of offence U/s 406 IPC against the accused No.2.
20. In view of the discussion made above and keeping in view the testimonies of the witnesses, this Court is of the considered view that none of the alleged offences have been proved beyond all reasonable doubts by the complainant and thus, benefit of doubt goes to the credit of the accused No2. Smt. Kavita @ Bablee and CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.
26accordingly accused NO.2 Kavita @ Bablee is hereby acquitted from the accusation for commission of offences punishable under Section 323, 342, 506 Part II, 406 IPC.
21. Case property, if any, be disposed of in accordance with law after the expiry of period of appeal, and in case of appeal, the same may be dealt with as per the directions of Ld. Appellate Court. Bail bonds of accused Kavita @ Bablee except those furnished under Section 437A Cr.P.C. stands cancelled and discharged. File, Digitally signed after due completion, be consigned to record room. AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2024.03.28 16:32:49 +0530 Announced in the open court on (Aishwarya Sharma) this day i.e. 28th March 2024 MM-01 South West District, Dwarka, New Delhi It is certified that this judgment contains 26 pages and each page bears my signatures.
(Aishwarya Sharma) MM-01 South West District, Dwarka, New Delhi CC NO. 4996604/16 Devender Kumar Vs. Ramesh Chand & Ors.