Delhi District Court
State vs . Man Singh & Ors. on 29 May, 2012
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURTS, NEW DELHI.
Unique ID No. 02406R0022741997
State Vs. Man Singh & Ors.
FIR No. 366/96
P. S. Kalkaji
U/S 498A/406/34 IPC
JUDGMENT:
1. Date of institution 16.05.1997
2. Date of commission of offence On and after 17.05.1981
3. Name of the complainant Bimla
4. Name of the accused 1. Man Singh S/o Ishwar Singh
2. Premlata W/o Sh Maan
Singh
3. Yogender Singh S/o Man
Singh
(Presently R/o H.No. 8, Harijan
Savan Park, Ashok Vihar,
Delhi)
4. Harish Kumar S/o Man
Singh
All R/o A-102, Ashok Vihar,
Phase-III, Delhi
5. Nature of offence complained of 498A/406/34 IPC
6. Plea of the accused Accused persons pleaded
not guilty
7. Date reserved for order 22.05.2012
8. Final Order Acquitted.
9. Date of such order 29.05.2012
BRIEF FACTS OF THE CASE:
FIR No. 366/96 PS Kalkaji Page No. 1
1. Brief narration of facts is that accused persons were arrested by police of PS Kalkaji and sent to this Court to face trial on the complaint of the complainant that all the accused persons on or after 17.05.1981 in furtherance of their common intention subjected the complainant to cruelty coupled with demand of dowry.
Secondly accused Man SIngh, Premlata and Yogender SIngh were also entrusted with stridhan articles of complainant which were not returned back to her after demand. Hence the accused persons committed offence u/s 498A/406 IPC
2. After complying with the provisions of section 207 Cr. P.C notice/charge was framed against persons on 03.07.2004 to which they pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined following 7 witnesses.
4. PW1 SI Narender Kumar is the duty officer.
5. PW2 Bimla is the complainant. She deposed that she was married to accused Yogender on 17.05.1981. Dowry articles were entrusted to the in laws at the time of marriage. After two months of marriage, husband and devar started quarreling for brining insufficient dowry. She was beaten by husband and devar pressurizing her to bring Rs. 10,000/- and Rs. 5,000/- on several occasions. On many occasions, she fulfilled their unlawful demands. She was not provided with medical FIR No. 366/96 PS Kalkaji Page No. 2 treatment whenever she was sick. On the birth of female child on 29.09.1982 she was harassed and tortured for insufficient dowry. So she came to her parents; house. She again joined her matrimonial house and was turned out on several occasions. Then as per the compromise arrived at a court where maintenance proceedings were pending, she joined her matrimonial house and husband again started beating her for dowry and told her that he had brought her only to finish the case. Accused Yogender and Harish used to beat her by tying her hands. She shifted to Dev Nagar in a separate accommodation with her husband. During her stay with her husband in Dev Nagar, he administered something in the milk to her due to which she became unconscious and remained in coma for 3-4 days in RML Hospital. She was discharged after 15 days on 03.09.1993. She was not taken back by her husband so she had to go back to her parental house. Since then she is residing with her parents. She lodged her complaint before CAW Cell in the year 1996. Dowry articles were not returned to her.
6. She denied that she shifted to Tank Road with her husband after 3-4 months of marriage. She denied that she was a patient of T.B and was getting treatment from March 1992 to April 1993. She could not affirm or deny whether she was suffering from epilepsy and was admitted to RML hospital on 20.08.1993. She admitted that on 20.08.1993 she was taken to RML hospital by accused Yogender and neighbors Satwant and Gopal. She did not inform the doctors that she was administered something in the milk while she was in hospital.
FIR No. 366/96 PS Kalkaji Page No. 3The articles of dowry were entrusted by her to her in laws after a week of marriage. No complaint had been filed by her before the present complaint. The complaint was filed by her for the first time on 19.01.1996. She did not know from where the articles given in the marriage were purchased and she does not have any bills of the same. She admitted that her parents in law never quarreled with her for not brining sufficient dowry. For the alleged beatings given by her husband she was never medically examined. She cannot tell the date, month or year when she paid the alleged amount to accused Harish or Yogender. She cannot tell even the exact amount given by her to them. The first complaint filed by her in the year 1985 was only against her husband and not against her in laws. The articles given at the time of marriage were recovered from Harijan Colony, Savan Park and not from Ashok Vihar. She is not in possession of any document, bill, receipt or photograph to show that the articles mentioned in Ex. PW2/B were either purchased or given at the time of marriage. The jewelery which she was wearing at the time of marriage was taken on rent.
7. PW3 Shanti is the mother of complainant. She deposed that her daughter was given beatings by Harish and Yogender. A demand of Rs. 10 & 5 thousand was raised from them by her in laws. Accused Yogender removed the jewelery of her daughter given by them and sold the same and spent the money for his own needs. Her daughter was not allowed to come to their house. At the time of marriage, dowry articles were entrusted to Yogender and his family members. The FIR No. 366/96 PS Kalkaji Page No. 4 complete dowry has not been returned and some articles are even lying in the malkhana.
In her cross examination, she stated that she cannot give the date when Yogender and Harish assaulted her daughter or when the demand of money was raised. She has given 20, 10 & 5 thousand on several dates. She had a rental income of Rs. 1500-2500/- per month. The money given to the accused persons was arranged through rent and income of her husband. The jewelery sold by Yogender is of 100 gms. She cannot say as to when the jewlery was sold. No complaint was filed by them against the accused persons. She does not remember the nature and extent of dowry articles entrusted to the accused and she dooes not remember to whom the same were entrusted. The articles lying in the malkhana have not been got released by them.
8. PW Ct. Mohd. Abbas assisted the IO in the investigation.
9. PW4 Durga Prasad stated that police recovered the dowry atticles of complainant at her instance.
10. PW5 is MHC(m) who brought the register no. 19 in respect of depositing the case property.
11. PW6 SI R.P. Minz deposed that on 01.06.1996 the investigation of the present case was marked to him. He recorded the statement of complainant and her parents. He went with the complainant and her father to Ashok Vihar house for the recovery of dowry articles. Dowry articles were FIR No. 366/96 PS Kalkaji Page No. 5 recovered from the house of the accused from Harijan Basti. The articles were deposited in the malkhana. Jewelery could not be recovered.
In his cross examination, he admitted that no articles were recovered from the Ashok Vihar House. No bills or receipts of the dowry articles were given to him.
12. PW7 Inspector Yashoda Rawat forwarded the complaint of the complainant from CAW cell to PS for registration of FIR.
13. Evidence of the prosecution was closed on the statement of Ld. APP. Statement of accused persons u/s 313 CrPC was recorded in which they stated that they have been falsely implicated in the case. Accused persons chose to lead evidence in defence. Accused Yogender and Harish examined themselves u/s 315 CrPC as DW1 and DW2 respectively along with another independent witnesses ie DW3 and DW4 Satwant and Gopal respectively.
14. In the statement u/s 315 CrPC accused Yogender deposed that for initial 2-3 months of marriage he resided with his parents. Thereafter he shifted with his wife at Karole Bagh. The complainant left him with his daughter and his son was born in the house of his in laws. Complainant again joined his company in the year 1993. She was suffering from T.B and epilepsy and was used to be taken to RML hospital for treatment. He once took her to RML hospital from where the complainant did not return back and since then she is residing with her parents. He never raised any demand for dowry nor FIR No. 366/96 PS Kalkaji Page No. 6 retained any dowry articles.
In his cross examination, he denied that there were no exchange of gifts or cash at the time of the marriage and denied that he had regularly subjected the complainant to cruelty.
In his statement, accused Harish Kumar deposed that he had never raised any demand of dowry from the complainant nor had tortured or harassed her for the same.
15. DW3 Satwant Singh deposed that he knows the accused persons and had also attended marriage of Yogender. There was no exchange of gifts or cash in his presence. Accused Yogender shifted to Tank Road after 2-3 months of his marriage. He was on frequent visiting terms with Yogender. He had never seen any untoward incident happening between the complainant and the accused. On one occasion, Yogender carried his wife to RML hospital. He also accompanied him. The doctor stated that she was suffering from epilepsy.
16. DW4 Gopal Krishan corroborated the testimony of the other defence witnesses. He had also accompanied accused and complainant to RML hospital and that complainant was suffering from epilepsy.
17. The case was argued at length by the Ld. APP for the State and the counsel for the accused persons. Ld. APP submitted that the prosecution has substantially succeeded in establishing the case against the accused persons. From the deposition of the prosecution witnesses guilt of the accused FIR No. 366/96 PS Kalkaji Page No. 7 persons is proved beyond reasonable doubt.
18. On the contrary, counsel for the accused persons argued that the accused persons have been falsely implicated in the case by the complainant. It was argued by the counsel that the complainant has not alleged anything specifically demanded by any of the accused persons. She has simply stated that husband and devar used to beat her and pressurize her to bring Rs. Ten thousand and five thousand. She has not mentioned any date or time when the said demand was raised. She has herself admitted in her cross examination that in her earlier complaint she has only levelled allegations against her husband and not against other accused persons. On a specific question as to if she was suffering from TB, she neither admitted or denied the same. An adverse inference be drawn against the complainant for not answering the question. She admitted that she was taken to hospital by accused Yogender on 20.08.1993. Further in her cross examination she had admitted that her father in law and mother in law never used to quarrel with her for bringing insufficient dowry. She has also admitted that she could not tell the date, month and year when the said demands were made or what was the exact amount paid by her to the said accused. She left the matrimonial house after three months of marriage in 1993 but the complaint was filed on 01.06.1996. No explanation for delay in filing the complaint has been given. She has neither filed any bills, receipts to substantiate her stand for having given the dowry and not returning the same. The accused persons deserve acquittal.
FIR No. 366/96 PS Kalkaji Page No. 819. I have heard the rival contentions of both the counsels as well as gone through testimonies of witnesses and perused the records. I am of the view that two material witnesses examined by the prosecution are PW2 Bimla and her mother Smt. Shanti. Both these witnesses have not corroborated the testimony of each other. Complainant has deposed in her testimony that she had given ten thousand and five thousand brought from her parents whereas PW3 Smt. Shanti had deposed that Rs. Twenty thousand, ten thousand and five thousand were given several times. It is not the case of the complainant that ten thousand and five thousand was given several times rather only once. PW3 Shanti had gone to the extent of saying that accused Yogender had removed the jewlery of her daughter gifted by them and sold the same and misappropriated the money obtained after the sale of the said jewelery. This averment has not come in the testimony of the complainant and therefore finds no corroboration. PW3 Smt. Shanti in her cross examination stated that she does not remember the nature and extent of dowry articles entrusted to the accused and also does not remember to whom the same were entrusted. The complainant has herself stated in her testimony that in the year 1993 she was taken to RML hospital by accused and neighbor Satwant and Gopal had accompanied her at that time. Both these witnesses have been examined as defence witnesses and have stated that the complainant was suffering from TB and had suffered fit of epilepsy due to which she was taken to hospital. The story of the complainant that she was administered something in the milk is not proved by FIR No. 366/96 PS Kalkaji Page No. 9 her. As per her testimony she was in hospital for 3-4 days still she did not care to inform the doctors that she had been administered something in milk due to which she had turned unwell. Further in her cross examination she has neither denied nor admitted that she was suffering from TB. An adverse inference is being drawn against the complainant for not answering the said question and defence of the accused becomes more probable that she had suffered from epileptic attach and was taken to hospital by him. Even otherwise, first complaint as per the complainant was given in the year 1985 when she had implicated accused Yogender and no allegations were levelled against any other accused whereas in the present complaint she has implicated the other family members and has alleged the harassment caused by them since the inception of the marriage. In her cross examination, she has herself stated that she cannot give the details of the amount given by her to the accused with the date, month and year and when the demands for the same were raised. When specific allegations have not been levelled against any of the accused persons , they cannot be convicted for offence u/s 498A IPC. Even otherwise as far as accused mother in law and father in law are concerned, complainant has herself admitted in her cross examination that they have never caused any harassment for not bringing sufficient dowry. This solitary statement in itself is sufficient for their acquittal.
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 FIR No. 366/96 PS Kalkaji Page No. 10 provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498-A of IPC.
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 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 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 FIR No. 366/96 PS Kalkaji Page No. 11 the case would fall beyond the scope of Section 498A IPC. At the outset the prosecution has failed to prove offence U/s 498A/34 IPC the accused is/are accordingly deserves discharged for these offences as far as 498A is concerned.
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 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.
In view of the aforesaid discussion, I conclude that the offence under Section 498A/34 IPC is not established against the accused persons as admittedly no specific instances of cruelty with date and time have been mentioned. They are acquitted for the said offence.
20. 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.
At the outset, I find that there is no specific date, time FIR No. 366/96 PS Kalkaji Page No. 12 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.
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 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.
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.
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.
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.
Further in Raj Kumar Khanna Vs. State (NCT of Delhi) & Ors. 95 (2002) DLT 147 (DB) it was observed that to attract FIR No. 366/96 PS Kalkaji Page No. 13 Section 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."
Accused persons are acquitted for the offences alleged against them.
Announced in open court ( POOJA TALWAR )
on 29.05.2012. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 366/96 PS Kalkaji Page No. 14
FIR No. 366/96 PS Kalkaji Page No. 15