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Delhi District Court

State vs . Mukesh & Ors. on 22 October, 2013

                            IN THE COURT OF MS. JYOTI KLER
        METROPOLITAN  MAGISTRATE MAHILA COURT: SOUTH DELHI
                        SAKET COURT COMPLEX : NEW DELHI.


State  Vs. Mukesh & Ors.
FIR No. 291/02
P.S. :  Defence Colony 
U/S : 498­A/406 IPC
CASE ID: 02403R0006262003


JUDGMENT

1.DATE OF INSTITUTION OF CASE                        : 08.08.2003

2.SERIAL NUMBER OF THE CASE                          : 715/2

3.DATE OF COMMISSION OF OFFENCE     : 20.11.2009 till 2000

4.NAME OF THE COMPLAINANT                             : Smt. Rukmani 

5.NAME OF THE ACCUSED & ADDRESS : 1. Mukesh (husband) S/o Sh. Shiv Raj R/o A­34A, Sawal Nagar Delhi

2. Sh. Shiv Raj (father­in­law) S/o Sh. Narain Singh R/o A­34A, Sawal Nagar Delhi

3. Smt. Ganga Devi State Vs. Mukesh & Ors.

(mother­in­law) W/o Sh. Narain Singh R/o A­34A, Sawal Nagar Delhi

6. OFFENCE COMPLAINED OF : U/S 498­A/406/34 IPC

7. THE PLEA OF THE ACCUSED : Pleaded not guilty

8. DATE ON WHICH JUDGMENT RESERVED : 30.09.2013

9. THE FINAL JUDGMENT : Acquittal

10.THE DATE OF FINAL JUDGMENT : 22.10.2013 BRIEF REASONS FOR THE DECISION:­

1. The present FIR was registered on the basis of a complaint lodged by Smt. Rukmani against her husband Mukesh, father­in­law Shiv Raj and mother­in­law Ganga Devi in the office of DCP (South), Delhi. Prior to this complaint, a complaint was also lodged at CAW Cell where she filed a list of articles of Istridhan on 20.11.1999 and an admitted list was filed 09.11.2001. The FIR was registered on 02.05.2002 on the recommendations of CAW Cell and as per the orders of DCP (South).

2. It is alleged in the complaint that the complainant Rukmani married State Vs. Mukesh & Ors.

to accused Mukesh on 20.11.1999. She has a daughter namely Raksha. After one month of marriage, her in­laws started harassing her for dowry due to which she lodged a complaint before CAW Cell. When the complainant was pregnant, all the accused persons attempted to kill her. Matter was reported to the police and a compromise was effected but despite compromise, she was again beaten up. Mother­in­law of the complainant refused to keep her daughter and her father­in­law used to misbehave with her. One lady in the name of Shakuntala claiming to be the local leader of Bhartiya Janta Party used to interfere in her family matters. It is alleged that this harassment was meted out as her mother was unable to fulfill the demands of dowry of the accused persons as she was the only earning member in the family.

3. After registration of FIR, investigation was conducted and photographs of marriage and the marriage card were seized. Certain articles of Istridhan were also seized and the remaining list of articles of Istridhan was prepared.

4. After completion of investigation, charge sheet was filed in the court on 08.08.2003 and the three accused persons were summoned. Copy of charge sheet was supplied to the accused persons in compliance of provisions u/s 207 Cr.P.C.

5. Arguments were heard on the point of charge. Vide order dated State Vs. Mukesh & Ors.

23.04.2004 charge for the offences punishable u/s 498­A/406/34 was framed against against all the three accused persons to which they pleaded not guilty and claimed trial.

6. During the trial, prosecution examined total seven witnesses in support its case. Out of these, two witnesses are public witnesses and five are police witnesses.

Public witnesses:

7. PW1 is the complainant Rukmini. She deposed that she married to accused Mukesh on 20.11.1999 as per Hindu Rites and Customs. Her parents had gifted jewelery, clothes, utensils and furniture at the time of marriage. These articles were entrusted to accused Mukesh and Shivraj. A list of these articles which is Ex.PW1/A was prepared at the time of marriage. However, after marriage all her in­laws i.e. accused Mukesh, Shivraj and Ganga demanded colour T.V, fridge and cash. As her mother is a widow, she was unable to fulfill the demands. Hence, all the three accused persons tortured and harassed her. She was beaten by them during pregnancy, after which she lodged a complaint at CAW Cell. Matter was compromised and she rejoined her matrimonial house. But the accused persons did not improve their behavior. She was again humiliated and tortured. Accused Ganga said that she will not keep her in the matrimonial house as she gave birth to a female child. Accused Shviraj used to State Vs. Mukesh & Ors.

enter in her room and misbehave. He would also beat her. Hence, she again filed a complaint. Ex.PW1/C to DCP (South). During proceedings before CAW Cell, another list Ex.PW1/B consisting of articles gifted to her by her in­laws was prepared. She was finally turned out of her matrimonial house on 09.06.2001 by all the three accused persons after beating her with slaps and kicks and they also snatched her nine years old daughter. With the help of police, custody of minor daughter was restored to her but accused Shivraj retained her jewelery and did not return the same despite demands. During investigation some of the articles were recovered and seized vide memo Ex.PW1/E and list Ex.PW1/D of remaining articles was prepared. The seized articles were deposited in Malkhana and identified by the witness as Ex.P.1 to Ex.P.34 as per list Ex.PW3/A.

8. During cross­examination, PW1 deposed that her marriage was solemnized at Arya Samaj Mandir, Kotla. Her family consists of her mother and an elder married brother. Marriage arrangements were made by her brother. Shopping for her marriage was done by her and she purchased two kadas (gold), one set of gold, one silver tagdi and one pair of anklets from Mehra Sons. Rest of the jewelery articles were gifted to her by her relatives. She admitted that Ex.PW1/A does not bear any signatures and she cant say by whom this list was prepared at the time of marriage. She further admitted that certain articles State Vs. Mukesh & Ors.

mentioned in Ex.PW3/A were not mentioned in Ex.PW1/A. She proved certain bills consisting of estimates of jewelery to be purchased, issued by various jewelers which are Ex.PW1/B (collectively) and admitted that these bills were not raised towards purchase but only depicted the estimates. She also admitted that she received total Rs. 66,000/­ by way of two demand drafts of Rs. 25,000/­ and Rs. 36,000/­ on 01.06.2002 and 10.05.2002 respectively and Rs. 5,000/­ in cash towards full and final settlement of her claim towards Stridhan. She moreover admitted the documents Mark PW1/DA, Mark PW1/DB, Mark PW1/DC and Mark 'A'. Mark PW1/DA is the letter dated 27.08.2000 written by the complainant in police station Defence Colony stating that there was no demand of dowry from her in­laws and she had lodged a false complaint. She deposed that this letter was written by her under pressure, but denied having made any complaint in this regard Mark PW1/DB is the copy of the statement of the mother of the complainant given before CAW Cell to the effect that there is no demand of dowry from the in­laws of her daughter. Mark PW1/DC is the letter dated 15.06.2001 written by the complainant in police station Defence Colony stating that she had no grievances towards her husband and she wanted to go to her parental house for 15 days. On further questioning, she admitted that she did not return to her matrimonial house after 15 days. She stated that she had sent two persons but accused persons told them that they will not keep her. Mark 'A' State Vs. Mukesh & Ors.

again is the letter of the complainant dated 06.08.2001 wherein she stated before SHO police station Defence Colony that she wanted to accompany her husband as she had called the police due to some misunderstanding which got resolved later on. She denied that she lodged the present case at the instance of her mother and brother.

9. PW6 Om Prakash is the brother of the complainant. He deposed that his sister Rukmani got married to accused Mukesh on 20.11.1999. On the day of marriage, accused Shivraj demanded Rs. 20,000/­ and when he showed his incapability, accused Mukesh refused to alight from the horse and threatened to take back the Barat after which a gold chain worth Rs. 13,000/­ was gifted to him. Soon after marriage, accused Ganga Devi and his daughter demanded TV and fridge from his sister and he promised them to hand over the cash for the same in instalments. However, they gave Arandi oil to his sister when she was pregnant due to which her health deteriorated and she was taken to Safdarjung Hospital. A complaint was made to CAW Cell but matter got settled. However, accused persons did not mend their behavior. Accused Mukesh again demanded Rs. 50,000/­ and his sister was thrown out after snatching her daughter, who was returned to her after the intervention of the police. The accused persons did not allow his sister to return to the matrimonial house again.

10. During cross­examination, he deposed that he had spent around State Vs. Mukesh & Ors.

Rs. 60,000/­ to Rs. 70,000/­ in the marriage of his sister and total expenditure was Rs. 1,50,000/­ and remaining amount was spent by the relatives but he did not disclose the names of such relatives in the Court. He further deposed that he did not go to purchase the gold chain given to the accused Mukesh, but also did not disclose as to who purchased the gold chain. He admitted that Ex.PW1/A did not bear the signatures of any of the relatives but deposed that it was prepared at the time of marriage. It was also deposed by him that his monthly income at the time of his sister's marriage was only Rs. 2,000/­ to Rs. 3,000/­ and he was not an income tax payee. He admitted that a black and white TV and refrigerator was already available in the house of the accused persons. He further admitted that he did not file any documents pertaining to the treatment of his sister after consumption of ''Arandi oil''.

Police Witnesses:

11. PW2 ASI Janak Lal has proved the FIR Ex.PW2/A and endorsement Ex.PW2/B on the rukka.

12. PW3 Constable Udaivir deposed that he had prepared the list of articles of Istridhan when the same was produced in the court in the presence of the complainant and the accused. The list is Ex.PW3/A. PW2 and PW3 were not cross­examined by the accused.

13. PW4 W/ASI Rajesh has proved the seizure memo dated State Vs. Mukesh & Ors.

03.06.2002 as Ex.PW4/A by which marriage card and photographs of marriage were seized. She also identified the photographs of marriage which are Ex.PW4/B collectively (three in numbers). During cross­examination, she deposed that the seizure memo was not prepared in the presence of the complainant and her brother and the same is in her handwriting. She further denied that the seizure memo was prepared at a later date at the instance of the complainant.

14. PW5 SI Anju Tyagi is the IO of the case. She deposed about the steps of investigation undertaken by her. She identified the complaint Ex.PW1/C, seizure memo of Istridhan Ex.PW1/E and remaining list of Istridhan articles Ex.PW1/D. She also identified the rukka Ex.PW5/A prepared by her and arrest memo of all the three accused persons which are Ex.PW5/B to Ex.PW5/D. She deposed that she had recommended for registration of FIR on 02.05.2002 as efforts of compromise had failed. She further deposed that she had collected the photocopies of receipts of the Istridhan as proof of ownership and identified these photocopies as Mark A, B and C. However, during cross­examination, she admitted t hat she did not verify these bills and also the source of expenditure as claimed by the complainant. However, she denied the suggestion that the bills were not handed over by the complainant and she did not enquire from the complainant as to what relationship she had with the persons in whose name the State Vs. Mukesh & Ors.

bills had been prepared. She did not admit or deny the suggestion that the document Mark A to C were the bills of the sureties of the accused persons and were not produced by the complainant. When she was questioned about the examination of two neighbourers she said that none of the neighbourer agreed to be a witness but stated that she does not remember whether she had mentioned this fact in her case diary.

15. PW7 ASI Balbeer Singh deposed that he is also one of the IO of the case. He deposed that he had only recorded the supplementary statement of the complainant u/s 161 Cr.P.C on 25.05.2003 and 23.06.2003 and also statement of her brother i.e. Dalip Singh on 25.05.2003. He denied that the bills of LG Colour T.V belong to the surety of the accused and not to the complainant but further deposed that he does not remember as to who had told him that the bills belonged to the complainant.

16. All the incriminating circumstances were put to the accused persons which were denied by them. They also stated that they were falsely implicated by the complainant who leveled false and baseless allegations against them.

17. Accused persons led evidence in their defence and total six witnesses were examined by them.

18. DW1 Smt. Laxmi deposed that she was residing as tenant on the State Vs. Mukesh & Ors.

first floor of the premise where matrimonial house of the accused Mukesh and complainant Rukmani was situated . She never saw any kind of dispute related to dowry during the time she stayed there. However, complainant used to demand her share in the property of her father­in­law and she admitted that she was never harassed for dowry, in writing Mark PW1/DA in her presence.

19. During cross­examination, she deposed that the writing Mark PW1/DA was written at the ground floor of the premise. She could not show any rent agreement but produced her ID card of the said address which is Ex.DW1/1. She admitted that she cannot identity the handwriting of the complainant.

20. DW5 Sh. Vishwa Prakash also deposed in sync with the testimony of DW1 and stated that he had cordial relations with the complainant as well as accused, as he was independently related to them.

21. DW2 Sh. Kuldeep Kumar deposed that he is the nephew of Shivraj and he was present in all the marriage ceremonies of Rukmani and Mukesh and no money was demanded by the accused Shivraj. He further deposed that the main dispute between complainant and the accused Shivraj was that she used to demand her share in his property.

22. During cross­examination, he deposed that these demands were raised in his presence many a times and no dowry was ever demanded from her.

23. DW3 Smt. Jamna Devi, mother of DW2, and sister of Shivraj also State Vs. Mukesh & Ors.

deposed in sync with the testimony of DW2.

24. DW4 Mukesh is the accused himself. He deposed that he married to the complainant on 20.11.1999. Marriage was solemnized without dowry. Complainant conceived after marriage and he got her treated in Jeevan Nursing Home. He produced the documents in proof which are Ex.DW1/1 (collectively). He further deposed that the complainant used to argue with his father for transfer of his property in her name to which he refused and therefore, she started harassing the entire family. She lodged a false complaint in CAW Cell at Nanakpura in August, 2000 which was withdrawn after written apology Mark PW1/DB and Mark PW1/DA. On 06.05.2001, she again called PCR and thereafter, gave written apology to SHO police station Defence Colony vide writing Mark "A". On 09.06.2001, she left the house while minor baby was fast asleep and he lodged a complaint Ex.DW4/2 before SHO police station Defence Colony. On 15.06.2001, complainant lodged a complaint against him after which he was called in the police station with minor child. Complainant again gave in writing Mark PW1/DC in the police station that she was unwell and therefore, she wanted to go to her parental house for 15 days. But she did not return after 15 days. Hence, he lodged another complaint Ex.DW4/3, after which brother of the complainant met him and showed letter Mark X1 stating that his sister had already withdrawn her complaint. After registration of the present case, he State Vs. Mukesh & Ors.

returned the Istridhan of the complainant and also made payment of Rs. 66,000/­ towards full and final settlement Ex.PW4/4. As complainant filed three forged biills of Sony Jewelers which are Ex.PW1/B (collectively), he filed an RTI Mark X2 in MTNL office and received the reply Ex.DW4/5 stating that numeral two was prefixed to all the MTNL numbers w.e.f 05.12.2002.

25. During cross­examination, he deposed that certain customary gift items like sofa, bed, dressing table, almirah etc. were handed over to him at that time of marriage. He could not tell the exact amount spent in the pre­delivery checkups of complainant and deposed that female child was born in the parental house of the complainant.

26. DW6 Sh. D.S. Pal brought the summoned record from the office of MTNL and the same is Ex.DW6/1 and Ex.DW6/2 stating that the numeral 2 was prefixed with MTNL landline numbers in the year 2002. He also proved the authority letter Ex.DW6/3 issued in his favour by DGM (Electronics). During cross­examination and re­examination, he confirmed that the phone numbers mentioned on the bills of Sony Jewelers which are Ex.PW1/B belong to MTNL, Delhi Circle.

27. After completion of defence evidence, final arguments were heard for both the sides. Ld. APP submitted that all the witnesses of the prosecution have supported its case and therefore, the accused persons should be State Vs. Mukesh & Ors.

convicted. Ld. defence counsel, however, argued for acquittal stating that inherent contradictions in the testimony of witnesses of the prosecution make them unreliable.

28. I have considered rival contentions and perused the record.

29. In the present case, accused persons have been charged for the offences punishable u/s 498A/406/34 IPC.

30. Section 498A IPC punishes cruelty extended to the wife by the husband and his relatives. This cruelty can be physical or mental cruelty of such nature as is likely to cause grave injury on the person of the wife or as is likely to drive her to commit suicide, or else, it can be a cruelty in the form of demand of money or valuable security and consequent harassment for coercing the wife or her relatives to fulfill the said demand.

31. Section 406 IPC punishes criminal breach of trust. Entrustment of property and its misappropriation by the accused are the essential ingredients of this section.

32. It is thus clear that prosecution must prove cruelty as defined in explanation (a) or (b) of section 498A IPC in order to bring home the guilt for the said offence. The facts constituting demand of dowry and consequent harassment of wife for coercing her to fulfill the demand must be proved beyond reasonable doubt.

State Vs. Mukesh & Ors.

33. In the present case, PW1 and PW6 are the material witnesses of the prosecution. Both of them deposed that the accused persons had demanded TV and fridge but they did not disclose the date and time when such demands were raised. PW6 deposed that his sister conveyed to him about the demand of TV and fridge when she came to his house after 3rd day of marriage. However, during cross­examination, he deposed that he went to the matrimonial house of his sister on the fourth day after marriage for brining her back and he did not complain of any demand of TV and fridge on that day by the accused persons, either at the time of recording of his statement by the police or before the court. From this, it is clear that there are contradictions in the testimony of PW6 about the day and time when demand of TV and fridge was raised. Nothing was disclosed about this by PW1. Non­disclosure and contradictions raise a doubt on the story of prosecution.

34. PW6 also deposed that the accused persons had demanded Rs. 20,000/­ at the time of marriage after which he handed over a gold chain worth Rs. 13,000/­. However, he also deposed that he did not go to purchase the gold chain. He did not disclose as to how the gold chain was arranged at the last moment. He deposed that when the demand of Rs. 20,000/­ was raised, no other person was present, and hence, there was no independent witness to this fact. This statement reflects inherent contradiction. As per PW6 no person was State Vs. Mukesh & Ors.

present at the time of demand of Rs. 20,000/­ and he did not go to purchase the gold chain. This means that if the gold chain was actually given, as claimed, someone else was involved in arranging it. Non­disclosure of the identity of this third person raises a presumption that no gold chain was given. This presumption is adverse to the prosecution and shakes the credibility of PW6.

35. The alleged instances of abuse and beatings narrated by PW1 are again general and vague as no date and time of such instances was disclosed to the court. PW1 also failed to disclose the specific role of each of the accused. Her own documents i.e. Mark PW1/DA, Mark PW1/DB and Mark PW1/DC, admitted by her, suggest that reason of dispute was never demand of dowry but something else.

36. The second offence of ''criminal breach of trust'' is complete only when the entrustment and misappropriation is proved. PW1 deposed that her articles of Istridhan as per list Ex.PW1/A were entrusted to accused Shivraj and Mukesh. However, list Ex.PW1/A is not prepared as per section 3 of Dowry Prohibition Act as it does not contain signatures of either of the parties. This makes the list inadmissible in evidence. PW1 did not disclose any date and time when she demanded her articles back and accused persons refused to return it but only vaguely stated that she had demanded her articles. A shadow of doubt is put on her statement by Mark PW1/DC according to which the complainant left State Vs. Mukesh & Ors.

her matrimonial at her own accord only for 15 days and promised to return back thereafter. She did not examine any independent witness to prove that she had made efforts to return back to the matrimonial house. When did she express her intentions not to stay in the matrimonial house and demanded her articles back is not clear from her testimony.

37. During investigation, some of the articles of complainant were returned but she did not take these on superdari till today. She was also paid Rs. 66,000/­ towards full and final settlement of her claim of Istridhan before the court. Still, she did not take remaining articles which clearly reflects that she only intended an action against the accused persons.

38. She did not prove any bills raised towards purchase of Istridhan and instead filed estimate of jewelery after obtaining the same from various jewelers. As per dates on the bills, these were raised at the time of marriage but during trial, Ld. defence counsel by examining DW6, proved that the bills were raised in or after the year 2002. This is the time when dispute had already arisen between the accused and the complainant. The conduct of PW1 clearly suggests that she started creating evidence in her favour after registration of present case in order to succeed, and it completely shakes the credibility of PW2 and PW6, who are related to each other by birth. The bills Mark 'A' to 'C' are claimed to be of the complainant by the witnesses of the prosecution but record State Vs. Mukesh & Ors.

i.e. the documents pertaining to police bail of the accused persons suggest that the bills were of the sureties of the accused persons and not of the complainant.

39. In view of aforesaid discussion, I am of the considered opinion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. The accused persons are therefore, acquitted of the offences charged.

40. Ordered accordingly.

Pronounced in open court                                            (JYOTI KLER)
on 22  October, 2013
       nd
                                                   M.M/Mahila Court/South District
                                                               New Delhi/22.10.2013




State Vs. Mukesh  & Ors. 
FIR No. 291/02                                                                                   Page No.  18/18