Delhi District Court
Reliance Is Placed Upon Decision In ... vs . State & Ors. on 16 January, 2019
In The Court of Ms. Sheetal Chaudhary Pradhan: Metropolitan Magistrate
02 (Mahila Court), SouthEast, Saket Courts:New Delhi
State v. Irshad
FIR No. 69/2013
U/s: 498A/406 IPC
P.S. H.N. Din
J U D G M E N T
Criminal Case No. : 90651/2016
Date of Institution : 17.09.2014
Date on which case reserved for
judgment : Not reserved
Date of judgment : 16.01.2019
Name of the complainant : As per chargesheet.
Date of the commission of offence : February, 2012
Name of accused : Irshad
S/o Hazi Saleem
r/o H.No.383,
30 Foota Road, Near Badi Masjid,
Ikram Nagar, Loni District,
Ghaziabad, U.P.
Offence complained of : U/s 498A/406 IPC
Offence charged of : U/s 498A/406 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 17.09.2014
Date on which case reserved
for judgment : Not reserved
Date of judgment : 16.01.2019
State v. Irshad; PS H.N. Din FIR No.69/2013 1/12
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
1. Brief facts of the case are that complainant got married to accused Irshad as per Muslim rites and rituals on 12.02.2012 in Delhi. At the time of her marriage, her parents had given sufficient dowry to the family of accused persons however, after marriage accused alongwith his family members used to often taunt her for bringing less dowry. After about one and half month of her marriage, complainant was given beatings and all her jewellery was taken from her forcibly. Further, she was ill treated by her sister in law namely Ruggam, who was living in her matrimonial house despite being already married. Complainant was never treated with dignity and accused used to ill treat her on one pretext or the other. Accused alongwith his family even demanded Rs. 5 lakhs from the father of complainant as loan and the same was given to the accused persons through person namely, Satish and they did not return the same back to the family of complainant. Further, the complainant was cheated as the accused was already married to another woman. Further, on 09.07.2012 when the complainant objected the accused for having illicit relations with another woman, she was given beatings. Thereafter, the complainant was forced to leave her matrimonial home.
2. Pursuant to this complaint of 14.12.2012, FIR was registered on 04.03.2013 and the accused Irshad was summoned. Charges framed against the accused Irshad for the offences punishable under section 498A/406 IPC, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined only one (01) witness during trial: State v. Irshad; PS H.N. Din FIR No.69/2013 2/12 PW1 complainant/victim deposed that she got married with accused Irshad on 12.02.2012 according to Muslim rites and custom. In her marriage, her father had given sufficient articles, jewellery items made of silver and gold, furniture articles like sofa, bed, almirah, bike, household utensils and cash amount of Rs.21,000/. Her parents had also gifted one gold chain, ring to accused Irshad. She had given list of stridhan articles and dowry articles to the police which were given to the accused in her marriage, by her parents and the same was Ex.PW1/A and Ex.PW1/B. After marriage, she went to her matrimonial house and came to know that the accused Irshad was already married to some other woman. They were not informed regarding the said fact before her marriage with him. Thereafter, on the next day of her marriage, her family members had come to take her for the ceremony of walima and she went to her parental house. When she reached her parental home, she informed her father regarding the fact that accused Irshad was already married. Since accused was also in close relation, her family inquired regarding the same from the mediator of marriage regarding the fact of previous marriage of accused and they informed her father that though a Nikah was performed with another woman, she never came to live with the accused. After 56 days, she went back to her matrimonial house but accused did not live with her properly and they did not cohabit with each other as husband and wife. The family of accused started misbehaving with her and picked up quarrels on triffle issues. The sisters of the accused namely Ruggam used to misbehave with her and fight with her on small issues and gave her beatings. Thereafter, father of the accused gave a call to her father and asked them to take her away from the matrimonial house and also said that they shall come to take her back after 34 days. She had shown the marks of beatings to her father which were given by the accused. Accused alongwith his sister used to give her beatings since she never used to share her stridhan articles with them. In State v. Irshad; PS H.N. Din FIR No.69/2013 3/12 the year 2012 itself, she came back to her parental home and had lived in her matrimonial house only for one month and that too had lived in the matrimonial house by visiting twice during the aforesaid one month. She came back to her parental house due to the aforesaid cruelty upon her and thereafter, never went back. She had left my matrimonial home since the accused had given her beatings on the articles of stridhan and ill treated her and thereafter, had given a call to her father to take her away. Thereafter, when her father visited her matrimonial home, he told the father of accused that he will not take PW1 back to the parental home but upon seeing her injuries, she was taken back to her parental home. Thereafter, she filed the present complaint Ex.PW1/C against the accused in the year 2012 itself. She did not remember if she had given any bills of purchases of articles of stridhan. She had given the marriage card to the IO which was Ex.PW 1/D and the photographs of marriage were Ex.PW1/E (colly). Photocopy of the Nikahnama was mark A and the same was seized by the IO vide seizure memo Ex.PW1/F. She did not remember if accused ever demanded any dowry from her during her stay in the matrimonial house.
Thereafter, the witness was crossexamined by Ld. APP as she was resiling from her previous statement recorded u/s 161 CrPC. and her complaint.
During crossexamination on behalf of Ld. APP for State PW1 / complainant deposed that the contents of complaint Ex. PW1/A were correct but she was not willing to pursue the present matter. All her stridhan articles were in the possession of accused. There was a Panchayat held in which a settlement was arrived between her family members, the accused and his family, wherein they offered to pay Rs.6 lakhs for the stridhan articles and said that they shall divorce her and she should think of getting remarried. She was given a demand State v. Irshad; PS H.N. Din FIR No.69/2013 4/12 draft of Rs.6 lakhs from the accused but she did not remember the exact date or month of the same. Thereafter, accused divorced her by pronouncing Talak and through a written document. Thereafter, accused also solemnised another marriage and she also got remarried in the year 2015. She denied all suggestions put to her and was confronted with complaint Ex.PW1/C at para No.2 from point A1 to A2. She admitted that her stridhan articles were snatched away from her but denied all allegations made in complaint Ex.PW1/C. During crossexamination on behalf of accused, PW1 deposed that she was illiterate and have studied only till 5 th class. Her father was in Government job in Delhi Zoo and does the work of keeping food material for the animals. She did not know if her father was having any cases pending against him in courts at the time of her marriage. She could not read or write Hindi or English. She did not know the contents of her complaint Ex.PW1/C. The complaint Ex.PW1/C was not read over to her. It was correct that she had settled the matter with the accused upon received Rs.6 lakhs and had undertaken that she shall not keep any connection with the accused. She had informed the CAW cell as well as the police officials that she had settled the matter with the accused and was not interested in pursuing the present matter against the accused. She did not remember anything about the present matter and she did not remember if the father of accused had ever asked her to bring Rs.5 lakhs. It was correct that the family of the accused had not demanded Rs.5 lakhs from her. She had never seen the previous wife of accused. She did not remember if she was told by the family of accused regarding the first marriage of accused. She had never met the first wife of accused. It was correct that she had lived in the house of accused that was her matrimonial house only for one week. It was correct that she had not visited matrimonial house after February, 2012. It was correct that she had given her complaint after 10 months in December, 2012. She did not remember anything State v. Irshad; PS H.N. Din FIR No.69/2013 5/12 about the present matter. It was correct that she had settled the matter with the accused before the court but could not go for quashing proceedings. It was correct that she want to settle the matter.
4. Prosecution had cited about nine witnesses in all and among them PW1 complainant was the star witness/complainant and the victim in the present matter but she did not depose on the lines of her complaint and were declared hostile as she did not support the story of prosecution. Further, remaining public witnesses included only the parents of the complainant and other witnesses of marriage, and no other public witness was the eyewitness to the incident narrated by the complainant in her complaint and only police witnesses were left. Therefore, PE was closed.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was dispensed with as nothing incriminating came on record against the accused Irshad.
6. No defence witness was examined on behalf of the accused.
7. Complainant was the only material prosecution witness. She was declared hostile. In the absence of any incriminating evidence against the accused revealed from the testimony of the complainant, there was no purpose in examining the remaining formal witnesses. Since the material eye witnesses of the incident did not depose on the lines of her complaint, there was no chances of further improvement in the case of the prosecution even after examining the State v. Irshad; PS H.N. Din FIR No.69/2013 6/12 remaining witnesses. Therefore, PE was closed in order to save the precious time of the court as well as harassment to the accused. Final arguments were advanced from both sides.
8. It is argued by learned APP for State that in the present matter the complainant by her complaint Ex. PW1/C have levelled specific allegations against the accused of torturing her after marriage and demanding money and dowry on one pretext or the other and also of harassing her. He has argued that even though the complainant has settled the matter with the accused, the offence against the accused is still made out and he is liable to be convicted, as the contents of complaint Ex. PW1/C stands proved against the accused.
9. On the other hand, it is argued by the learned counsel for the accused that in the present matter the star witness of the prosecution was the complainant, however, she has already stated that she is not willing to pursue the matter against the accused persons and has been living after obtaining divorce from the accused and has solemnised second marriage and has received Rs.6 lakhs, as per the settlement. He has further argued that there is no other witness who has testified against the accused. He has further argued that in the present matter since the complainant has been examined, but has not deposed anything on the lines of her complaint, no offence is proved against accused and the complainant herself has been crossexamined by the prosecution and therefore accused is liable to be acquitted. Further, apart from PW1, remaining witness cited by the prosecution are formal in nature. He further submits that the complainant has already stated that she is residing with her second husband and had lived in the matrimonial house only for one week and therefore no incriminating evidence has come on record against the accused and accordingly, he is liable to be acquitted.
State v. Irshad; PS H.N. Din FIR No.69/2013 7/12
10. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
Observations qua offence u/s 498A/406/34 IPC :
(i) The case of the prosecution rests on the assertion that after the marriage of the complainant with accused on 12.02.2012 she lived with the accused only for one week and thereafter she filed her complaint with the police in December, 2012 and FIR was registered in March, 2013. Further, that almost during one month of the marriage between the parties, complainant was subjected to physical and mental cruelty on account of failure by her to meet unlawful demands of dowry raised by the accused. It is admitted by the accused that the marriage between the parties were solemnized on 12.02.2012 and thereafter, she remained with accused only for one month.
(ii) It is the foremost defence of the accused that the prosecution has miserably failed to prove its allegations of cruelty of any nature upon the complainant by the accused and since both the parties are presently residing separately after getting remarried and taking Talak from each other and no offence is made out against the accused and he is liable to be acquitted. It is further argued that even the contents of the allegations of complaint have not been proved as the complainant has been examined and has turned hostile and the remaining witnesses are formal in nature. The allegations in the aforesaid complaint have not been reiterated in the testimony of PW1.
(iii) Further it is observed that the contents upon complaint Ex. PW1/C are not reiterated by her. Further in the present matter, prosecution had examined only State v. Irshad; PS H.N. Din FIR No.69/2013 8/12 one witness i.e. the complainant and no other witness is examined by the prosecution. Further, PW1 had admitted during her crossexamination that she did not wish to pursue the present matter as she has been living with her second husband. Credibility of such allegations is also dubious for the reason that there is not even any averment made by the complainant against the accused of having committed cruelty for demand of dowry which could lead the complainant to commit suicide.
(iv) It has been asserted by the complainant that there were demands made by the accused, however, there is no specification of the amount of cash demanded by the accused or his family members after few days of marriage or even the amount paid by the complainant to the accused in fulfillment of any of his demand. The allegation of demand are unspecified and also obscure. As such, the allegations of demand of dowry by the accused lack credence.
(v) Further, as per complaint Ex. PW1/C there is no specification of the manner in which the complainant was mentally or physically harassed by the accused or his family. The complaint as well as testimony of PW1 is silent on the specific date, month, year, event or occasion of any beating given to the complainant by the accused or the manner of such beating i.e. slapping, kicking, keeping her without food for days etc. Admittedly, the complainant did not lodge any complaint regarding any such alleged beating or harassment prior to the present complainant and are, therefore ambiguous and vague.
(vi) Further, there is neither any averment nor any piece of evidence in the form of a medical report or otherwise, to draw a logical inference of such a threat to be of a nature likely to have driven the complainant to commit suicide or caused State v. Irshad; PS H.N. Din FIR No.69/2013 9/12 grave injury or danger to her life limp or health. In absence of any assertion to this effect, it cannot be assumed that such a threat or alleged callous or indifferent behavior of the accused was with a view to coercing her to meet any demand for property or valuable security or on account of her failure to meet such demand.
Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : ".....Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
Explanation (b) to Section 498A provides that cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
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 it is cruelty and this is made punishable under the Section...."
(vii) Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, State v. Irshad; PS H.N. Din FIR No.69/2013 10/12 wherein Hon'ble Bombay High Court observed that 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. Hon'ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section 498A IPC.
(viii) Even the allegations that the accused used to gave beatings to the complainant have not been corroborated by any reliable piece of evidence. There are discrepant statements regarding the allegations levelled by the complainant against the accused. Therefore, the allegations levelled by the complainant are discrepant and devoid of specific details and as such does not inspire confidence of the court.
(ix) Since the material prosecution witness/victim was declared hostile and none of the public witnesses supported the story of prosecution, therefore, the prosecution is miserably failed to establish the charge U/s 498A/406 IPC.
(x). The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the State v. Irshad; PS H.N. Din FIR No.69/2013 11/12 accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
(xi) Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted.
(xii) As such there is no convincing evidence on record to believe the allegations of the prosecution regarding commission of offence u/s 498A IPC. Accused Irshad is accordingly acquitted of offence U/s 498A/406 IPC.
11. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, accused is acquitted.
Announced in Open Court (Sheetal Chaudhary Pradhan) On 16.01.2019 (Metropolitan Magistrate02,(Mahila Court), SouthEast, Saket, New Delhi.
Digitally signed by SHEETALSHEETAL CHAUDHARY CHAUDHARY PRADHAN PRADHAN Date:
2019.01.16 16:51:03 +0530 State v. Irshad; PS H.N. Din FIR No.69/2013 12/12