Delhi District Court
State vs Fasiul Husnain on 6 April, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
DISTRICT SAKET COURTS: DELHI
CA No. 232/2018
CNR : DLSE01-003816-2018
The State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi
....... Appellant
Versus
Mr. Fasiul Husnain
S/o Mr. Safdar Ali
R/o DDA Flat no. 41-B, Pocket C,
Siddharth Extension, New Delhi
....... Respondent
Date of Institution : 07.05.2018
Order reserved on : 04.04.2024
Order delivered on : 06.04.2024
JUDGMENT
1. The present appeal u/s. 378 Cr.PC filed by the appellant/ State assails the judgment of acquittal dated 19.03.2018 in FIR bearing no. 252/2005 passed by the Ld. MM, Mahila Court, South East District, Saket Courts, New Delhi (hereinafter referred to as "the impugned judgment") whereby the accused/respondent was acquitted for the offence punishable under section 498-A/406 IPC.
CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 1 OF 17
2. Briefly stated, the case of the prosecution was that complainant was married with accused Fasiul Husnain according to Muslim rites and customs in which her parents incurred expenses beyond their capacity. However after one week of their marriage, accused started harassing and beating the complainant on account of bringing insufficient dowry. After six months of marriage, accused asked her to bring Rs.35,000/- from her parents and gave beatings to her for fulfillment of the same. Even after fulfillment of the said demand, accused continued to torture the complainant which increased day by day. Not only that accused used to threaten the complainant to implicate her in false case as he was working in CBI. Even after 15 years of marriage, behavior of accused did not change and accused used to beat her like before.
3. On the said complaint, the FIR No. 252/2005, under Section 498A/406 IPC was registered. Upon conclusion of investigation, chargesheet was filed against accused namely Fasiul Husnain and he was summoned vide order dated 17.09.2012. During the trial six witnesses were examined by the prosecution and after hearing of final arguments, the accused Fasiul Husnain acquitted for the offence under Section 498-A/406 IPC by the Ld. Trial court. Aggrieved by said judgment, the present appeal has been filed by the appellant/State.
4. The impugned judgment has been challenged on the grounds that the same is incorrect and bad in law; that the Ld. Trial Court failed to appreciate the fact and law and acquitted the accused on the basis of minor discrepancies and contradictions; that the observation made by Ld. Trial Court are unsubstantiated and not CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 2 OF 17 tenable; that the observation made by Ld. Trial Court in para no. 14 that no medical record was produced by the prosecution qua beatings to complainant in November 2022 is not tenable since there is no requirement of examining any medical expert for proving simple injuries; that the Ld. Trial Court failed to appreciate the specific instances of cruelty; that the Ld. Trial Court failed to appreciate the fact that the witnesses produced in defence were interested and incredible and testimony of PW-1 and PW-2 were consistent on material aspects and there was no material discrepancy in their testimonies; that the Ld. Trial Court failed to appreciate the fact that the bill of jewellery articles could not be placed on record because the same were ancestral; that the Ld. Trial Court failed to appreciate the fact that the recording of testimony of witnesses and cross examination is not a "memory test" and she expected that the witness should remember each date, month, year, brand, make specification etc.; that the Ld. MM felt suspicious upon the money which was given to accused i.e. Rs.35,000/- and discredited the testimony on the ground of source being not disclosed. In view of the same, it has been prayed the impugned judgment passed by Ld. Trial Court be set aside.
5. Notice of the present appeal was issued to the accused/respondent however no reply was filed on his behalf.
6. I have heard the Ld. Addl. PP for the appellant/State as well as ld. counsel for respondent and perused the record of the Trial Court as well as the order of acquittal dated 19.03.2018.
7. The charge u/s. 498A/406 IPC has been framed in the present case. The objective of Section of 498A IPC is to prevent CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 3 OF 17 torture to a woman by husband or by relatives of her husband. It reflects the anxiety of Parliament to extend protection to the weaker of spouse. Traditionally, in any society, the woman is subjected to whims and caprices of the man especially in a relationship between husband and wife. The following are the ingredients of this section:-
(i) The women must be married. (ii) She must be subjected to cruelty or harassment and (iii) Such cruelty or harassment must have been shown either by
husband of the women or by the relative of her husband. 7.1 Coming to first ingredient there is no dispute about the marriage of the complainant with the accused Fasiul Husnain. Hence the ingredient stands proved.
7.2 Coming to second and third ingredients, being interlinked, they are taken up together. The point to be proved here is cruelty or harassment meted out by the complainant at the hands of her husband or his any of the relatives. The definition of cruelty contained in explanation consists of two parts. Clause (a) relates to willful conduct which is of such a nature as to drive the women to commit suicide. The second part contained in clause (b) relates to harassment of woman with a view of coercing her to meet any unlawful demand of any property etc. 7.3 The sole constituent of office u/s. 498A IPC is cruelty which means "willful conduct which contemplates obstinate and deliberate behaviour on the part of offender for it to amount to cruelty and reflects the intention of the legislature that mens-rea as an essential ingredient of the offence. The cruelty is not only physical but also CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 4 OF 17 mental torture or abnormal behaviour may amount to cruelty sand harassment within the meaning of section 498A IPC.
8. In order to prove the allegations of cruelty, the prosecution has examined the complainant and her brother. The complainant was examined as PW-1 and she has deposed that " she was married with accused Fasiul Husnain according to Muslim rites and customs in which her parents incurred expenses beyond their capacity; that her parents gifted her dowry articles/stridhan articles i.e. utensils made up of silver and copper, jewellery articles i.e. a gold chain 20 gms, four gold bangles, two gold earing set, one gold finger ring, one ruby studded gold set weighing around 60 gms and one pearl set weighing around 50 gms and furniture and cash of Rs.51,000/- and other articles as per list of articles handed over by her with complaint; that her husband was not happy with the dowry articles given by her parents in the marriage and used to taunt her for bringing insufficient dowry and used to abuse her in filthy language; that her husband used to tell her to bring money from her parents and threatened to implicate her in false case since he was working earlier in CBI; that after six months of marriage, accused asked her to bring Rs.35,000/- from her parents to help him in his business as he has suffered losses; that the accused threatened if she will not bring Rs.35,000/- from her parents, he will divorce her and throw out of matrimonial house; that in order to save her marriage, her father gave Rs.35,000/- which was further handed over to the accused. She has further deposed that in the year 1989 she alongwith her husband and children went to Delhi but the behaviour of her husband did not change and he used to beat her and the children CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 5 OF 17 on trivial issues; that on one occasion when her six months old daughter was not able to sleep, accused had beaten up her daughter and had closed her inside a room and she bolted the door from inside which was to be broken with the help of labourers; that after 4-5 years of marriage, she started a small business of selling embroidered clothes from her house and she used to deposit the earnings from the said business in her bank account and the accused used to withdraw the same without her knowledge after taking blank signed cheques from her; that the accused also mortgaged their house at Sidharth Extension which was redeemed from her savings. She has further deposed that she made a complaint in CAW Cell in year 2002 wherein the matter was compromised with the apology of the accused; that the behaviour of the accused stopped for some days thereafter again which he started beating her on the demand of cash amount which she kept as savings; that on 10.11.2002 accused beat her mercilessly with belt for demand of cash amount and jewellery and snatched away all her jewellery which she was wearing and cash amount of Rs.20,000/-; that accused threw her out of the house after beating her mercilessly." 8.1 Shri Nadeem Durrani i.e. brother of the complainant was examined as PW-2 and he has deposed that " marriage of his sister Nuzhat was solemnized with accused Fasiul Husnain in the year 1986 as per Muslim rites and ceremonies at Lucknow, U.P.; that his parents gave her all necessary household articles and other articles as per list Ex.PW 1/A in the marriage; that after around one month of her marriage, when his sister returned back to his home at Lucknow, she told him that her husband i.e. accused Fasiul Husnain used to fight CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 6 OF 17 with her and beat her on trivial household issues; that her husband/accused was also raising a demand of Rs. 50,000/- from her and used to harass her for the said demand; that after 15-20 days of her return to her matrimonial home, his sister alongwith her husband /accused came to his home at Lucknow and told him and their parents that accused Fasiul was harassing her for non-fulfillment of the said demand; that accused Fasiul Husnain also raised demand of Rs.50,000/- from his parents and also verbally abused them in his presence; that his parents assured accused that they would arrange money and would give to accused; that after some time, his father arranged Rs.35,000/- and gave to his sister to hand over the same to the accused; that when he spoke to his sister on telephone, she told him that her husband/accused and his nephews namely Hashim, Bholu and Jatrul were not happy with the money paid by her parents and were quarreling with her and taunting her; that thereafter, on several occasions when he spoke to his sister on telephone, she used to tell him that accused used to quarrel with her, use foul language and taunt her and beat her as he was not happy with the dowry given to him in marriage and afterwards; that during that period, one person namely Mohd. Raza alongwith nephew of accused namely Hashim came from Azamgarh to his home at Lucknow and told him that accused had sent him to ask for money, however he did not remember the exact amount, as accused owed that money to some other person and his father gave the amount to Mohd. Raza to hand it over to accused." He has further deposed that "after around one year his sister gave birth to a son namely Arzoo in her matrimonial home; that thereafter, on CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 7 OF 17 several occasions when he visited her matrimonial home to meet her and her son, she told behaviour of accused was continuing as above- said and accused demands dowry and was not happy with non- fulfillment of said demands; that after 3-4 years of her marriage, she alongwith accused shifted to Delhi and started residing at Siddharth Extension, New Delhi in a flat bought by his sister and accused; that major portion for the purchase money of said flat was given by his sister as she had started business of chicken embroidery from the aforesaid flat; that thereafter, his sister continued working while accused stopped working; that his sister also used to tell him that due to business reasons she had to visit various places and meet various people; that she frequently used to come at Lucknow for meeting with the shopkeepers/workmen; that his sister also told him that accused raised suspicion on her character and was objecting to her meeting with males during business transaction; that she also told him that accused was imputing bad character on her for her visits and meetings with business associates and used to physically assault her over this issue; that the accused used to say to her "Tum Lucknow kaam ki wajah se na jakar, kisi se milne jati ho"; that his sister also told him that she used to bear entire household expenses and accused stopped contributing in household expenses; that his sister resided with accused till year 2003-04 and during that period, his sister gave birth to one son and two daughters; that his sister alongwith her children were thrown out of the house in the year 2002-03 and they came to Lucknow; that after some time she came back to Delhi alongwith her children and took a house on rent at Lodhi Road, New Delhi and CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 8 OF 17 started residing there and also continued her business from the said house."
8.2 The accused has been charged for committing cruelties upon the complainant for non-fulfillment the dowry demands. Complainant has deposed about one specific demand of dowry raised by the accused i.e. of Rs.35,000/- after six months of the marriage but that demand was not exactly a dowry demand since she has deposed that accused asked her to arrange the said demand in order to help in his business. In view of the same said demand cannot be called as dowry demand since same was sought as a help. Regarding the said specific demand, her brother Shri Nadeem Durrani i.e. PW-2 has deposed that accused raised demand of Rs.50,000/- and he used to harass his sister due to non-fulfillment of the same. In view of the same, there appears a contradiction in the testimonies of both the material witnesses regarding the demand raised by the accused. Not only that PW-2 has also deposed that said demand was raised by the accused from his parents and he also abused them whereas no such thing was deposed by the complainant in her testimony. This is the only specific allegation made by the complainant and her brother regarding the demand of dowry by the accused and apart from that complainant has not made any specific allegation against the accused and in all she has vaguely alleged that she was beaten and harass by the accused for dowry which is not sufficient for proving the kind of cruelty as required u/s. 498-A IPC. The complainant has vaguely alleged that accused used to harass her by taunting, threatenings, beatings and demanding dowry and cash from her but she has not stated anywhere CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 9 OF 17 in the complaint as and when accused had taunted and threatened her and demanded dowry from her. The complainant has further deposed that accused used to taunt her for bringing less dowry however it is well settled that taunts for bringing insufficient dowry will not amount to cruelty unless the said taunts are supported by specific demand of dowry and the consequent harassment for non-fulfillment of the same. Regarding the cruelties she has deposed that accused threatened to divorce her or throw her out of the house in case his demand is not fulfilled or that accused used to withdraw her money without her knowledge or that he used to beat their six months old daughter which from no stretch of imagination can be said to be cruelty as defined u/s. 498-A IPC. In the present case, prosecution is required to prove that accused had subjected the complainant to cruelty and it is not every cruelty which is punishable under section 498-A IPC. The cruelty, so as to attract penal provisions contained in section 498-A IPC is necessarily to be willful which is such a nature that is likely to drive a woman to commit suicide or cause grievous injury or danger to her life and health. The use of expression "willful" in the explanation to section 498-A IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of women or bringing misery to her, further if a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demands, for any property or valuable security, it will also constitute cruelty, as defined in the explanation to section 498-A IPC. The dictionary meaning of word "Harassment " is to subject someone to continuous, vexatious attacks, questions, demands or other CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 10 OF 17 unpleasant etc. but it is not harassment of every nature which is punishable u/s. 498-A IPC. Secondly , the nexus between the demand and infliction of cruelty for its fulfillment is missing which is the essential ingredient of section 498-A IPC. Hon'ble Justice Pradeep Nandrajog in 2007 (4) JCC 3074 has held that explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this is made punishable under the section and complainant has failed to show the said nexus between the demand and harassment. The Ld. Trial Court has rightly held that "...In the case at hand, the allegation regarding the asking by accused to bring Rs.35.000/- for the accused to start his business is vague and unsubstantiated and does not even suggest that the same was asked in the form of 'dowry'. There is nothing to show that any harassment was meted out to complainant in any form by accused in connection with any such demand. Though complainant deposed that accused had threatened to divorce her and throw her out of the matrimonial house if she does not bring money from her father, she has not specified the date, time and year in which such threat was given to her or money was demanded. Interestingly, complainant also deposed that her father had handed over Rs.35,000/- to the accused to save her marriage. Again, she did not specify the date and time when such demand was met and the source from which the money was CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 11 OF 17 arranged by her father. It is seen that the very allegation regarding the demand and the payment by father of the complainant towards the demand is also not proved. According to the complainant, she used to be beaten but not a single medical document in support of any physical assault on her is placed or proved on record. ". The Ld. Trial Court has further rightly held that "...Even otherwise, the mere alleged intention of the accused to divorce his wife does not constitute cruelty on her."
8.3 The Ld. Trial Court has further rightly held that "....According to the complainant, she had got herself medically examined on few occasions, but she had not placed on record any medical document in support of any injuries sustained by her. While deposing so, PW1 did not give a single reason as to why the medical documents were not given to the IO or brought in the court. During her cross-examination, complainant failed to disclose a single date when she made calls to police on 100 number. Complainant deposed that "I had not given any complaint when the accused had thrown me out of the matrimonial house in November, 2002 as mentioned in my deposition". Complainant has not specified a single reason for not giving complaint to the police and filing the present complaint only in the year 2005."
8.4 The Ld. Trial Court has further rightly held that " The contradictory version of PW1 and PW2 is not explained by the prosecution. There are other material contradictions as well in the testimonies of PW1 and PW2 which make the prosecution version as highly doubtful. According to the complainant, after six months of CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 12 OF 17 marriage, accused told her to bring Rs.35,000/- from her parents and then she visited her parental home at Lucknow and asker her father for money. However, according to PW2, PW1 had come to parental home after one month of marriage and narrated regarding dowry demand of Rs.50,000/-.
8.5 The Ld. Trial Court has further rightly held that " According to the complainant after she was thrown out (in November 2002) of her matrimonial by the accused she went to Lucknow leaving behind her children with the accused and in April 2004, the children were thrown out of the matrimonial house and she had brought her children to the rented accommodation of her which was taken on rent in February - March 2004. However, according to PW2, in the year 2002-03, PW1 had come to Lucknow alongwith her children on being thrown out of the house by the accused and after 3-4 months she shifted to Delhi with children in a separate rented accommodation. Such material discrepancies in the testimony of PW1 and PW2 are not reasonably explained by the prosecution."
9. Coming to the section 406 IPC, the following ingredients must be shown in order to attract section 406 IPC:-
(i) Whether the complainant has entrusted his/her dowry articles on the accused persons;
(ii) Whether the complainant had demanded her dowry articles and stridhan from the accused persons;
(iii) Whether the accused persons have refused to return the dowry articles and stridhan of the complainant.
CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 13 OF 17 9.1 In order to prove the allegation of misappropriation the prosecution has examined the complainant i.e. PW-1 and her brother i.e. PW-2. PW-1 has deposed that her parents gifted her dowry articles/stridhan articles i.e. utensils made up of silver and copper, jewellery articles i.e. a gold chain 20 gms, four gold bangles, two gold earing set, one gold finger ring, one ruby studded gold set weighing around 60 gms and one pearl set weighing around 50 gms and furniture and cash of Rs.51000/- and other articles as per list of articles handed over by her with complaint but she has no where deposed to whom she entrusted the said dowry articles and when there is no specific averment regarding the entrustment of dowry articles where comes the question of demand and consequent refusal to return the dowry articles and how can the accused be guilty of misappropriation. Though PW-1 has deposed that accused refused to return her dowry articles but that deposition is of no consequence in absence of specific averment qua entrustment of dowry articles to the accused. Secondly , though PW-1 has exhibited list of dowry articles as Ex.PW1/A but she has stated in her cross examination that she did not remember the date when the list of jwellery articles was prepared or whether such list prepared at the time of marriage has been filed on record or not. In view of the same, complainant has failed to prove that Ex.PW1/A is the same list which was preapred at the time of marriage. Further PW-2 has also not deposed about the fact to whom jewellery articles were entrusted and in the absence of specific allegation the jewellery articles will be presumed to be not entrusted to the accused and when there is no entrustment where comes the CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 14 OF 17 question of misappropriation. Ld. Trial Court has rightly held that " It is pertinent here to mention that in the complaint as well as in the testimony of the complainant there is nothing to suggest that after marriage, the alleged istridhan articles or dowry articles of aggrieved were handed over by her to the accused. In the complaint Ex.PW1/B, the only averment made is that on 10.11.2002, accused had snatched the amount of Rs.20,000/- kept in the purse of the complainant and her jewelleries were also snatched. Complainant (PW-1) has not uttered a word in her complaint Ex.PW-1/B to suggest that her jewelleries / istridhan were ever entrusted to the accused Fasiul Husnain. There is no averment on the part of the complainant in her testimony or complaint to the effect that she had ever entrusted any of her istridhan articles or any other goods belonging to her to the accused."
9.2 The Ld. Trial Court has further rightly held that " She did not specify as to what articles were entrusted to the accused or snatched by him or when the same were demanded back from the accused. Though she deposed that rest of her istridhan articles are in possession of the accused and also her jewellery articles and the same have not been returned despite her request, she did not specify the date, time and year when the jewellery articles were asked to be returned."
9.3 The Ld. Trial Court has further rightly held that " There is nothing in the complaint Ex.PW1/B or the testimony of the complainant to show that any istridhan article was ever handed over to the accused by her. It is further seen that though list of dowry articles CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 15 OF 17 Ex.PW-1/A is filed on record, however, neither there is any averment that the articles mentioned in the list or some of the articles mentioned in the list were handed over to the accused nor any bills are placed and proved on record regarding purchase of these articles/jewelleries. During cross-examination, though PW-1 deposed that at the time of marriage, list of jewellery articles was prepared, she failed to disclose the date on which the such list was prepared. Though she deposed that she had given copy of the said list to CAW Cell, no such list is placed and proved on record. There is nothing on record to suggest that list Ex.PW1/A was prepared at the time of marriage. PW1 nowhere deposed that the bills in proof of the articles given in this list, were handed over to the IO during investigation and if not, why so. There is no whisper in the testimonies of PW-1 & PW-2 to suggest that the bills were misplaced. No specific description like date of purchase, make, brand and design of the jewelleries and other articles are specified by the complainant in her testimony. As far as the list Ex.PW1/A is concerned, the same was not prepared at the time of the marriage and prepared only after registration of FIR. PW-1 has not given out a single date, time and place when the istridhan articles were demanded from accused and were not returned. There is no bill and specific description like model, make and design of the articles (as mentioned in the list Ex.PW1/A) given either in the list or in the testimony of PW1."
10. In view of the aforesaid discussion and overall facts and circumstance of the case, I came to the conclusion that I find no infirmity or irregularity in the impugned order and appeal filed by the CA No. 232/2018 State Vs. Fasiul Husnain PAGE NO. 16 OF 17 appellant/State is hereby dismissed. The order dated 19.03.2018 stands confirmed.
11. Copy of this order be sent to the Ld. Trial court alongwith trial court record. File of the present appeal be consigned to record room.
Digitally
Typed to the direct dictation and signed by
announced in the open court GEETANJALI
GEETANJALI Date:
on this 06 th day of April, 2024 2024.04.06
15:41:54
+0530
(Geetanjali)
Addl. Session Judge (FTC)-03
South East District,Saket Courts
New Delhi/06.04.2024
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