Delhi District Court
Rajesh S/O Sh Kishan Chand vs State (Govt Of Nct Of Delhi) on 13 August, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Appeal No.108/13
Rajesh s/o Sh Kishan Chand
H.No. 362/1
Village & Post Office Kapashera
New Delhi 110037
....Appellant
Vs.
State (Govt of NCT of Delhi)
...... Respondent
Date of Institution : 19.12.2013
Reserved for order on : 31.07.2014
Judgment Delivered on: 13.08.2014
ORDER
The present appeal U/s 374 Cr.PC has been directed for setting aside the Judgment of conviction dated 28.11.2013 and order on quantam of sentence dated 02.12.2013 passed by Ms. Tyagita Singh, Ld. MM in case titled State Vs. Rajesh etc FIR No. 134/02 u/s 498A/406/34 IPC PS Jafarpur Kalan.
2. Briefly stated the facts for giving rise to this appeal is that Babita, complainant made a written complaint Ex.PW1/A Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 1 of 35 Before CAW Cell, Nanakpura alleging that the accused persons used to demand dowry from her and that she has been harassed and treated with cruelty for demand of dowry by the accused persons. It is alleged in the complaint that even she was beaten up by her father in law, mother in law, husband and nanad on many occasions. On her statement case u/s 498A/406 IPC was registered. Statements u/s 161 Cr.PC were recorded. The investigation was conducted and accused persons were arrested. On 20.2.06, all the three accused persons were charged u/s 498A/406 IPC to which they pleaded guilty and claimed trial. During trial,Smt. Kailash expired on 4,.12.2011 and proceeding against her was abated on 8.8.12. The prosecution had examined 13 witnesses in its favour and thereafter statement of accused persons u/s 313 Cr.PC were recorded. After hearing the arguments, Ld. MM convicted all the accused persons u/s 498A/406/34 IPC including present appellant. Vide order dated 02.12.2013, convict Kishan Chand and Lalita were ordered to be released on probation. However, present appellant Rajesh was sentenced to undergo SI for six months for the offence u/s 498A and 406 IPC. Feeling aggrieved by the said Judgment of conviction and order on sentence, the present appellant has preferred this present appeal for setting aside the said order.
3. This appeal was received by this court and Trial court Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 2 of 35 record was summoned which was received. Thereafter, I have heard the arguments from the Ld. Counsel for the appellant as well as Ld. Addl. PP for the State.
4. It has been submitted by the Ld. Counsel for the appellant that the marriage between the parties was solemnized on 20.02.96 and they lived together upto 26.5.98. A female child was born on 2.7.97 out of the wedlock and the child is in the custody of her mother. It is submitted that various litigations are/were going on between the complainant and appellant and that the divorce petition filed by the complainant was dismissed by Ms. Ila Rawat, Ld. ADJ against which appeal has been preferred which is pending in the Hon'ble High Court of Delhi. Complainant has also filed petition u/s 18 of Hindu Adoption and Maintenance Act which was decreed and appeal was preferred which was disposed off on the basis of compromise and a consent order was passed and appellant was directed to pay Rs.5500/ p.m to the complainant and since then the appellant has been continuously paying the said amount with additional amount of Rs.500/ p.m to the child. Ld. Counsel has drawn the attention of the court on the statement of accused & stated that the appellant has specifically denied about having committed the alleged offence. Ld. Counsel submitted that the appellant is a taxi driver and earning Rs.8,000/ to Rs.10,000/ p.m and he is hardly Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 3 of 35 running his livelihood.
5. Ld. Counsel for the appellant has drawn the attention of the court on the statement of PWS and their cross examination and stated that the Ld. Trial court has failed to appreciate the evidence in the right spirit. The order has been passed on conjectures and surmises without application of mind. It is submitted that no specific date, date and time has been shown for any specific incident to constitute cruelty on the part of appellant and she has failed to prove dowry demand. No list of articles has been filed to prove that the same were given to the appellant and his family. There is also no CD, Photographs available on file in this respect. It is submitted that all the witnesses are related witnesses and interested witnesses and their statements are not reliable and trustworthy.
6. Ld. Counsel has further submitted that the medical treatment bills, prescription slip of Babita are forged, false and fabricated as no medical certificate to support the allegations of beatings were produced which clarify that no beatings were ever given. It is further argued that the complaint was filed after 4 years from the date of desertion and six and half year from the date of marriage and it has also been admitted by her that it was filed after receiving the summons of divorce petition. So, the complaint was Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 4 of 35 counter blast to the said petition. Ld. Counsel has drawn the attention on the statements of PW6,7,8 and 10 who have categorically stated that no cruelty/dowry demand/beatings against the complainant have been committed by the appellant or any of his family member. It is submitted that the medical record/bills are the photocopies which have not been proved and this fact has been admitted by PW11, PW12 and PW13. It is submitted that the prosecution has failed to produce any independent witness from the village and neighbour to support the case of the prosecution. It is submitted that the complainant is playing with the life of of her husband and she used false and cooked up story in the complaint as on one hand she wants to go back to her matrimonial home and on the other hand she wants to send him behind bars. Ld. Counsel submitted that appellant is the only son to look after his father who is old aged and suffering from ailments and without considering this facts, application u/s 3&4 of Probation and Offender Act was dismissed. It is further submitted by the Ld. Counsel that if the appellant goes behind bar, then four members shall suffer due to his absence because the appellant is regularly paying Rs.6000/ p.m to the complainant and his daughter and if goes behind bars, maintenance will be stopped and no body will be there to look after his father. It is submitted that the order passed by the Ld. Trial court may kindly be set aside and accused may kindly be acquitted.
Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 5 of 35
7. On the other hand Ld. APP for the State has strongly refuted the submissions made by the Ld. Counsel for the appellant and he has argued that there is evidence on record for harassment and cruelty met out to the complainant. He has also drawn the attention of the court on the statements of witnesses and Judgment passed by the Ld. Trial court and submitted that Ld. MM has passed the Judgment and order on sentence after considering all the facts and circumstances of the case and evidence available on file. So, there is no need to interfere in the said order passed by the Ld. MM. He has stated that the appeal filed by the appellant may kindly be dismissed.
8. In consideration of the arguments advanced by the Ld. Counsel for the appellant as well as Ld. APP for the State, I have also perused the Ld. Trial court file as well as evidence available on file. Pw1 Smt. Babita who is complainant has stated in her examination inchief that she was married with accused Rajesh Kumar as per Hindu rites and customs on 20.02.1996 at Delhi and was taken to her matrimonial house at village Kapashera, New Delhi and sufficient dowry articles were given in her marriage by her family members which were entrusted to her inlaws by her parents. Pw1 stated that after two days of marriage, her motherinlaw Smt. Kailash(since deceased) got removed all the jewelery from her and took in her Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 6 of 35 possession and gave some of those articles to her sisterinlaw Lalita and her inlaws passed remarks "itna to kangley bhi nahi detey hai". Pw1 has further stated that on the next day when she had to go for phera ceremony to her parental house, her mother inlaw demanded Rs.20,000/ from her and she told about this to her parents and on 10.03.1996, her brother Manoj came to her matrimonial house and handed over Rs. 20,000/ to her motherinlaw. She has further stated that despite this, her mother in law, sister in law, father in law and husband did not stop to give taunts to her and after sometime they further raised a demand of Rs.10,000/ which was given by her father on 10.04.1996 and her father requested her inlaws to keep her well and not to harass her. She has further alleged that accused persons again raised a demand of Rs. 6,000/ which was given by her brother Neeraj on 27.05.1996 at her matrimonial house. She has stated that whenever she refused to bring money from her parental house, she was given beatings by all the inlaws including her father inlaw Sh. Kishan Chand, her motherinlaw Smt.Kailash, her husband Sh. Rajesh and her sisterinlaw Lalita. She has also stated that in the first week of September 1996, her motherin law demanded a sum of Rs. 40,000/ for the job of her husband but she told her motherinlaw that it was beyond capacity of her parents to give sum of Rs. 40,000/ and on her denial, she was given physical assault and was forced to make telephone call to her parental house Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 7 of 35 to ask for the amount, therefore, her brother Manoj visited her matrimonial house on 08.09.1996 and handed over an amount of Rs. 40,000/ to her in laws. She has further stated that again, a demand of Rs. 10,000/ was made by her inlaws on 28.10.1996 and her brother Neeraj brought the amount from her parental house and gave it to her inlaws. She further alleged that again, an amount of Rs. 5,000/ was demanded for purchase of cooler in the month of May 1997 and her brother Neeraj brought the cash of Rs.5,000/ and handed it over to her inlaws and from this amount, a cooler was purchased and given to her sisterinlaw. She has stated that her sister inlaw Lalita had taken one pair of pajeb and one pair of nose pin forcibly from her. She has further stated that on 02.07.1997, she gave birth to a female child but her inlaws were not happy and started scolding her and on this occasion, her sisterinlaw had also come to matrimonial house and she also maltreated her. Lot of articles were given by her parents at the time of birth of child but her inlaws were unhappy and her sisterinlaw demanded ear rings and under compulsion, she had to give her gold ear rings to her sisterin law. She further stated that her motherinlaw asked her to give clothes and utensils to her sisterinlaw and she had to give utensils and clothes to her sisterinlaw. She has deposed that her husband and inlaws used to hate her daughter and did not talk to her properly. She further stated that on 17.05.1998, her grand mother Smt. Bhim Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 8 of 35 Kaur died and her family members intimated about the death to her inlaws but they were not ready to go with her to her parental house for mourning, so her brother came on scooter and took her alongwith him to her parental house in three wearing clothes. It is stated that thereafter, no one from her inlaws came to attend the mourning or to take her back and efforts for reconciliation were made through Panchayat but reconciliation failed and since then, she is residing at her parental house alongwith her daughter. She has further stated that on various occasions, her fatherinlaw, husband and sisterin law gave her beatings mercilessly with kicks, fists and slaps and she sustained injuries due to beatings but she was neither taken to any Doctor nor was allowed to take medical help and her ear and teeth got damaged due to the injuries caused by the accused persons, so her family members started her treatment from MCD Dispensary, Daulat Pur and Rao Tula Ram Hospital from 21.05.1998. Her complaint is Ex.PW1/A and list of dowry articles is Ex.PW1/B (colly.) and the list of admitted articles as Ex. Pw1/C and photocopies of 12 bills of jewelery and clothes etc as mark X(colly) and the attested copies of OPD Cards of MCD dispensary containing four pages as mark Y (colly) and attested copy of medical record of Rao Tula Ram Hospital containing 2 pages as mark Z(collectively) and attested photocopy of medical documents of Richa Dental Hospital as mark H(collectively) and the attested Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 9 of 35 photocopy of medical documents of Rao Tula Ram Hospital containing 2 pages as mark I(collectively). Pw1 stated that her dowry articles/stridhan article are still in possession of her husband, motherinlaw and fatherinlaw which have not been returned to her till date despite demands and her jewelery is in possession of her motherinlaw and sisterinlaw. In her crossexamination she has stated that she had submitted original medical record in divorce case at Tis Hazari Courts. She denied the suggestion that she does not have original bills of dowry articles and stated that she can produce the original bills. She is residing separately from her husband Rajesh since 17.05.1998. She admitted that she had not gone to market to purchase jewelery articles given to her by her parents and she further admitted that cash memos of the gold and silver jewelery are not in her name. She stated that her father was working as private employee at the time of her marriage and was earning about Rs. 5,0006,000/ per month but she cannot tell the name of the post and name of the job of her father. She stated that her brother Manoj was aged about 20 years at that time and was dealing in sale purchase of the vehicles but she does not know about his earnings and her younger brother Neeraj was about 18 years of age and was unemployed at that time. Pw1 has stated that name of her grand mother was Jairo and she had died while Pw1 was studying in 8th class. She admitted that Bhim Kaur was not her real grandmother Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 10 of 35 and she was wife of real brother of her grandfather and she died on 17.05.1998. She denied the suggestion that she left matrimonial house on 26.05.1998 with her Tau(paternal uncle) Mata Deen with her own will and she further denied the suggestion that she took all her belongings including 40 tola jewelery articles and Rs. 45,000/ in cash when she left her matrimonial house. She admitted that she had not filed any complaint against her inlaws prior to 17.07.2002. She stated that her father had come once on 10.04.1996 to her matrimonial house to deliver money. She admitted that her mother had never visited her matrimonial house. She stated that she does not know exactly for how many times her brother Neeraj and Manoj visited her matrimonial house but they came a number of times. Marriage of her sisterinlaw Lalita was solemnized prior to her marriage and she was staying in Hyderabad, Andhra Pradesh and was having three children at the time of marriage of Pw1 but Pw1 voluntarily stated that Lalita visited matrimonial house at the time of her marriage as well as often thereafter. She denied the suggestion that Lalita used to visit matrimonial house only once a year and voluntarily stated that she used to come to her matrimonial house more than once. She stated that she cannot tell the date and time of Panchayat arranged for settlement and admitted that she did not join the Panchayat. She stated that she cannot tell the exact date, time or month regarding beatings given to her by her inlaws and Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 11 of 35 voluntarily stated that it was a routine matter. She stated that she did not complain to the police regarding any routine beatings. She denied the suggestion that no beating and cruelty was caused to her by her husband and her inlaws. She further denied the suggestion that no money was taken by her husband or inlaws from her family members at any point of time. She denied the suggestion that her husband Rajesh kept her well and never demanded anything from her. She denied the suggestion that all the bills and cash memos were fabricated and procured later. She denied the suggestion that no dowry articles are in possession of her inlaws. She further denied the suggestion that she has lodged false complaint against her inlaws after proper planning. She denied the suggestion that all the medical documents were false. She admitted that she had filed complaint in CAW Cell on 17.07.2002 after receiving court notice of divorce petition filed by accused Rajesh. Pw1 correctly mentioned all the dates of demand in her crossexamination also, as were mentioned by her in her examinationinchief and stated that payments were given on different occasions in her presence to the accused persons by her family members on specific demand of the accused persons. She denied the suggestion that payments were not made by her family members to accused persons against their specific demands in her presence. She denied the suggestion that present complaint is a counter blast to the divorce petition filed by Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 12 of 35 accused Rajesh.
9. Pw2 W/ASI Kailsh is the duty officer and she brought copy of FIR which is Ex.PW2/A.
10. Pw2 (PW number given wrongly) is IO/ Inspector Jagpal Kaur. She stated that on 17.07.2002, she was posted at CAW Cell, Nanakpura and she received complaint of complainant Babita and started inquiry and called both the parties for reconciliation but husband and inlaws of the complainant were adamant not to keep the complainant with them and divorce petition had already been filed by husband of the complainant, so, they were advised to return stridhan articles but the same were not returned in full, hence, she recommended registration of FIR u/s 498A/406/34 IPC of P.S. Jafarpur Kalan. She exhibited her inquiry report as Ex. Pw2/A(though it should be Ex. Pw3/A) and identified her signatures on it. In her crossexamination, she denied the suggestion that behaviour of the complainant was rude and adamant and she was not ready to settle the matter with her husband and inlaws. She denied the suggestion that complainant had not appeared on the different dates for inquiry.
11. Pw3 Dr. Anil Bhatia has stated that from year 1992 till Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 13 of 35 2008, he was posted at MCD Dispensary, Daulatpur, Delhi and on 21.05.2008, patient Babita came in the dispensary with complaint of pain in ears and teeth and anxiety and he medically treated the patient and patient again visited dispensary on 05.06.1998, 15.06.1998, 20.07.1998, 11.10.1999 and 14.07.2000 and he treated her on each date. His further examinationinchief was deferred on 22.03.2010. However, thereafter he did not appear.
12. PW5 Sanjay Verma has stated that he is running jewelery shop at 198, Nawada Bazar, Najafgarh and he knew Lakhmi Chand through his brother Tara Chand. He stated that Lakhmi Chand had come to him with old jewellery and it was re smithed by him and copy of bills are mark X and X1. Original bills were produced by father of the complainant and bill mark X was exhibited as Ex. Pw5/A and mark X1 was exhibited as Ex. Pw5/A1. In his crossexamination, he has stated that he does not remember exactly when the jewelery was prepared. He stated that he used to take charges per item for preparing jewelery from old jewelery and the bill might have been about Rs. 40005000/. He stated that he used to do resmith work only of known persons. He further stated that jewelery prepared by him for Lakhmi Chand was mixed one i.e. both of ladies and gents and rate of gold was Rs. 3,600/ per gram at that time.
Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 14 of 35
13. Pw6 Neeraj Kumar is the brother of the complainant Babita. He stated that his sister Babita was married to Rajesh on 20.02.1996 and an amount of Rs. 2,85,000/ was given at the time of lagan and cash amount of Rs.51,000/ was given lateron but she was ill treated at her matrimonial house on account of dowry and she was asked for more money by her husband and inlaws, so he personally handed over Rs. 6,000/ on 27.05.1996, Rs.10,000/ on 28.10.1996 and Rs. 5,000/ during first week of May 1997 to the motherinlaw, fatherinlaw and husband of his sister. He stated that whenever he used to visit matrimonial house of his sister, he was also taunted for less amount. In his crossexamination he stated that he was not earning anything at that time. He admitted that his sister Babita never told him about any torture or harassment and he further admitted that his sister Babita was never subjected to cruelty, harassment or beatings by her husband and inlaws in his presence. He denied the suggestion that he had not handed over Rs. 6,000/, 10,000/ and 5,000/ to the husband and in laws of her sister.
14. Pw7 is Sh. Manoj Kumar i.e. elder brother of the complainant Babita. He deposed on same lines as Pw6 and stated that he had handed over Rs.20,000/ to motherinlaw of his sister on 10.03.1996 and on 08.09.1996 he gave Rs. 40,000/ to fatherinlaw of complainant in presence of accused Rajesh and his mother, for Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 15 of 35 arranging job for accused Rajesh. He stated that on 17.05.1998, his grandmother expired and his parents asked him to bring Babita from her matrimonial house so he brought his sister Babita with due permission of Rajesh and inlaws of Babita but she had come to her parental home barehanded. In his crossexamination he has stated that he was doing agricultural work in year 1996 and was also running side business of sale and purchase of cars but he did not have any office and did not have any name and style for his business. He admitted that Smt. Bhim Kaur was not his real grandmother. He denied the suggestion that his sister had left matrimonial house alongwith her uncle Mata Deen on 26.05.1998 alongwith 40 Tola jewelery and Rs. 45,000/ in cash alongwith other belongings. He denied the suggestion that he did not visit matrimonial house of his sister on 10.03.1996 and 08.09.1996 for giving money to accused persons and he further denied the suggestion that he did not visit the matrimonial house of his sister on 17.05.1998 to bring her with him. He denied the suggestion that he had not given any amount to husband and inlaws of his sister.
15. Pw8 Mata Deen, paternal uncle i.e. Tau of the complainant. He has stated that Babita was married with Rajesh on 20.02.1996. He stated that there was demand of Ambassador car from accused Kishan Chand, Rajesh and Smt. Kailash, so they Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 16 of 35 agreed to the demand and on 03.02.1996, accused persons made booking for Ambassador car with Rajeev Motors, Connaught Place and booking number is 30039 dated 03.02.1996. He stated that lagan ceremony was held on 12.02.1996 before marriage and booking receipt of Ambassador car was shown to them in Panchayat in village Kapashera and they handed over Rs. 2,85,000/ in cash to accused persons to purchase Amabassdor car alongwith Rs. 51,000/ cash and all dowry articles as per list already Ex. Pw1/B and all jewelery articles in presence of Panchayat. He has stated that accused persons were not happy with quality and quantity of dowry articles and within two days of marriage, all the dowry articles of Babita were taken by her motherinlaw, fatherinlaw, sisterinlaw and accused Rajesh. When Babita came on Pag Phera ceremony, Rs.20,000/ was demanded by her inlaws and she told them about demand and on 10.03.1996, they sent Rs. 20,000/ through Sh. Manoj i.e. elder brother of complainant Babita. Pw8 has also deposed on same lines as other witnesses regarding dates of demand and payment of the demanded amount on various dates. He has further stated that accused persons purchased Amabassdor car no. DL9C6769 on 27.05.1996. He stated that due to severe beatings given to the complainant by all accused persons, her both ears got impaired and all her teeth were shaken, so they started her medical treatment on 21.05.1998 after her arrival in parental house and the Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 17 of 35 treatment continued for long time in Daulatpur Dispensary and in Rao Tula Ram Hospital, Jafar Pur Kalan and since 17.05.1998, Babita alongwith her daughter is residing with them. Pw8 stated that on 20.06.1996 and 19.07.1998, they took Panchayat comprising of respectable and elder persons of the community including himself, Umrao Singh Pradhan, Pirthi Singh and his brother and other two persons and went to the matrimonial house of the complainant and requested her inlaws to take complainant back to her matrimonial house, but they did not pay any heed to their request. Hence, they lodged complaint before police on 17.07.2002. He stated that during investigation, accused persons brought stridhan articles to P.S. Mayapuri/CAW Cell but articles did not belong to complainant, so they returned all the articles back. In his crossexamination he was residing separately from his brother Lakhmi Chand in the year 1996 and he was residing separately since year 197879. He stated that distance between their houses is about 50 sq. yards. He stated that he had telephone connection in the year 1996 but he did not remember the landline number. He stated that his brother Lakhmi Chand was doing private job but he cannot tell about his post or income. He denied the suggestion that he did not have any visiting terms with his brother Lakhmi Chand and further denied the suggestion that he was not invited to the marriage of Babita and had not attended the marriage of Babita. He was Head Clerk in Delhi Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 18 of 35 Administration and retired from service in June 1994. He denied the suggestion that accused Kishan Chand, Rajesh and Kailash had not made any demand of Ambassador car in the marriage. He denied the suggestion that booking of Ambassador car was made by Rajesh of his own by depositing his own amount for his personal use. He stated that all the four brothers had arranged the amount of Rs. 2,85,000/ and Rs.51,000/ to be given to the accused persons but he cannot tell the exact figure of the amount which was arranged by specific brothers. He denied the suggestion that no such amount was arranged by them and no such amount was given to the accused persons. He never visited the house of the accused persons after marriage of Babita but stated that Babita had told him that accused persons were not happy with dowry articles. He admitted that jewelery articles of Babita were not taken by the accused persons in his presence. He further admitted that no demand of money was ever made by the accused persons and no amount was given to accused persons in his presence. He admitted that he had not gone to the house of accused persons at any point of time after 20.02.1996. He further admitted that no cruelty or harassment was committed by the accused persons upon Babita in his presence. He denied the suggestion that Ambassador car no. DL9C6769 was purchased by Rajesh by his own funds. He denied the suggestions put by the Ld. Defence counsel.
Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 19 of 35
16. Pw9 ASI Rishali Yadav has stated that on 19.11.2012, FIR was assigned to her for investigation and she took into possession vide seizure memo Ex. Pw9/A, the marriage card, copies of bills of furniture, garments and jewelery and copy of medical treatment of complainant. She further stated that accused persons brought some of the articles by the order of Hon'ble court, list of which is Ex. Pw9/B but complainant refused to take the articles stating that they do not belong to her and same were returned to accused. Accused persons were formally arrested and she prepared chargesheet and filed it in the court.
17. Pw10 Lakhmi Chand is the Father of the complainant Babita who stated that he got his daughter married to Rajesh on 20.02.1996. He stated that ring ceremony/lagan was organized on 12.02.1996 and Rs. 2.85 lac were given for Ambassdor car to the father of Rajesh in presence of family members and all the dowry articles were given at the time of lagan to Rajesh and his parents in presence of villagers at their house. He stated that inlaws of his daughter were not happy with the dowry articles and they raised more demand for cash which he paid from time to time to save the marriage of his daughter. He has also mentioned all the dates of demand and payment of amount as mentioned by other witnesses. He has duly corroborated the statement of complainant in respect of Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 20 of 35 demand of amount and payment of amount to the inlaws of the complainant. He stated that when his daughter refused to ask him to fulfill every demand of accused persons, they used to commit cruelty and beatings upon her for nonfulfillment of their demands and his daughter used to tell him about this fact on telephone and also whenever she came to his house. He has further stated that on the death of grandmother of complainant on 17.05.1998, he sent his son Manoj to bring his daughter back to parental house and thereafter accused persons never came to take her back to matrimonial house and they took Panchayat two times to the matrimonial house of his daughter but all his efforts failed. He further stated that due to beatings given by inlaws, his daughter got pus in her ears and her teeth were also shaken, so they got her medically treated in Govt. Hospital, Jafarpur Kalan and Daulatpur dispensary. He stated that he had never gone to police station and police never inquired from him about the case at his home and the case was lodged by his brother against inlaws of his daughter. In his crossexamination he has stated that he used to do private job in a factory at Patel Nagar, New Delhi and his salary was about Rs. 6,000/ per month. He stated that the amount of Rs. 2.85 lac was collected from all the brothers but he cannot tell specific amount contributed by the individual brothers. He denied the suggestion that no amount was contributed by any brothers, therefore he is unable to tell the specific amount. He was Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 21 of 35 confronted with his statement u/s 161 Cr.P.C Ex. Pw10/DA in which this fact was not mentioned. He stated that he visited the house of his daughter Babita only once after marriage. He admitted that no dowry demand was made by Rajesh or any of his family members in his presence. He admitted that no amount was given to Rajesh and any of his family members by his son Manoj or Neeraj in his presence. He stated that he cannot tell the exact dates when and how many times his daughter telephoned him about the demands raised by her inlaws. He admitted that it is correct that no cruelty or harassment was caused to his daughter in his presence by the accused persons. He denied the suggestion that his daughter left her matrimonial house on 26.05.1998 alongwith her uncle Mata Deen without consent or permission of her inlaws and he further denied the suggestion that she took 40 tola gold and other valuable articles and clothes at the time of leaving the matrimonial house. He stated that he does not remember the dates when Panchayats were held for making compromise. He admitted that he had not attended any Panchayat in this regard. He denied the suggestion that no amount was ever paid to the accused persons at any point of time and he further denied the suggestion that accused persons kept Babita well in matrimonial house with full respect and dignity.
18. Pw11 Dr. Ravinder Kumar from Dental Department, Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 22 of 35 Rao Tula Ram Hospital has stated that on 17.07.2002, one patient Babita came to the hospital with complaint of halitosis and bleeding gums and she was examined by him vide medical document Ex. Pw11/A and was advised medicines. In his crossexamination he admitted that it is correct that there are no injuries opined in the document and the medicines were general in nature for normal dental problems.
19. Pw12 Dr. Anil Bhatia deposed that from 1998 to 2000 he was posted in Daulatpur MCD Dispensary. On 21.5.98 one lady Babita came wtih complaint of pain in ear, teeth, She was depressed and anxious at the time of examination. She was in severe pain so, he has given her pain killers alongwith anti inflammatory medications and also anti anxiety medicines vide prescription Ex.PW12/A(1). She was also advised psycho therapy vide Ex.PW12/A(II to IV). In cross examination he has stated that when the patient visited for the first time on 21.5.98, there were fresh injuries/inflammation on her person. It is correct that there is no opinion on record regarding that the patient came with fresh injuries VOL. They are not supposed to mention the same on OPD slip.
20. Pw13 is Dr. T.K. Prasad, Consultant ENT, Rao Tula Ram Hospital has stated that in January 2001, one patient Babita Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 23 of 35 came with complaint of swelling in neck and she was examined by him vide document Ex. Pw13/A and he correctly identified his signatures on the documents. In his crossexamination Pw13 has stated that no MLC of the patient was prepared. He stated the swelling was old one but exact duration cannot be explained. He has stated that patient had been asked to get Fine Needle Aspiration Cytology Test but patient did not come to him back with the said test report and no prescription was made by him at that time. He stated that no old record of the patient was produced. He admitted that he has not brought original record of the document Ex. Pw13/A. He denied the suggestion that he has not examined the patient.
21. In consideration of the evidence on file and in consideration of the arguments made by the Ld. counsel, Section 498 A IPC reads as under: 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.
There is explanation for the purpose of this section cruelty means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical ) of the woman or
(b) Harassment of the woman where such harassment is with a view Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 24 of 35 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.
22. Now, it is wellsettled that the expression `cruelty' includes both (i) physical cruelty; and (ii) mental cruelty. The concept of cruelty has been dealt with in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under: 'The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches,complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse'.
23. In Gollins V. Gollins 1964 AC 644: (1963)2 All ER 966, Lord Reid stated that: 'no one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her)conduct, and on the character and physical or mental Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 25 of 35 weakness of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health'.
24. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan & Anr., (1981) 4 SCC, it is held that: 'the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. It was further stated that to establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty'.
25. Mental cruelty has also been examined in Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706 wherein it has been observed that: 'Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental Cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 26 of 35 cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other'.
26. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence.
27. The submission of the Ld. Counsel is that the complainant has failed to disclosed any specific date & time for cruelty and failed to prove demand of dowry. I have perused the statement of complainant PW1 Babita. On perusal of her testimony, it is revealed that she has deposed that when she came for phera ceremony her motherinlaw asked to bring Rs.20,000/ and that her brother Manoj came on 10.3.96 and gave the said amount. Her statement in this respect has been corroborated by PW7 Manoj. She has further stated that despite giving the said amount, all the accused persons did not stop taunting her and again demand of Rs.10,000/ was raised which was given by her father on 10.4.96. This statement has been corroborated by PW8 Matadeen as well as PW10 Lakhmi Chand who is father of complainant. PW1 Babita has further stated Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 27 of 35 that a demand of Rs.6000/ was raised whcih was given by her brother Neeraj on 27.5.96. This statement has also been corroborated by PW Neeraj. She has further stated that her mother in law, during Ist week of Sept demanded Rs.40,000/ for job of her husband and that her brother Manoj visited on 8.9.96 and gave the said amount. This statement has also been corroborated by PW7 Manoj that he gave Rs.40,000/. She has further stated that on 28.10.96 demand of Rs.10,000/ was raised by her inlaws and that her brother Neeraj had bought Rs.10,000/ and given to her inlaws. PW Neeraj has corroborated the statement of PW1 in this respect. Further, PW1 has stated that Rs.5000/ was demand from her for purchase of cooler in the month of May 97 and her brother Neeraj had brought cash of Rs.5000/ and handed over to her in laws and that a cooler was purchased from Rs.5000/ and given to her sister in law Sunita.The statement of PW1 regarding giving Rs.5000/has been corroborated by PW Neeraj. It is further stated by PW1 that she was blessed with a female child and she was started scolding a lot. Her sister in law demanded ear rings from her and under compulsion she had to give her gold ear rings. She has deposed that her sister in law Lalita had taken her one pair of payjab and one pair of nose pin forcibly from her. PW1 has further stated that whenever she refused to fulfill the demands, she was beaten up and all the accused persons gave her beatings and on many occasion her father in law, mother in law, Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 28 of 35 husband and sister in law gave her beatings mercilessly with kicks, fists and slaps and she sustained injuries due to the beatings given but neither she was taken to any doctor nor she was allowed to get medical help. Her ear and teeth were got damaged due to the injuries caused by the accused persons. It is alleged in the complaint that the complainant came to her parental home on 17.5.98 at the time of death of her grand mother and thereafter she was never taken back. PW1 has gone to the doctor on 21.5.98. PW12 Dr. Anil Bhatia from MCD Dispensary, Daulatpur has stated that Babita came with complaint of pain in ear, teeth and she was depressed and anxious at the time of examination. She was also advised psycho therapy and in cross examination he has stated that when the patient visited for the first time on 21.5.98, there were fresh injuries/inflammation on her person. The version of complainant that she used to be beaten is clearly established and corroborated by the statement of PW12 Dr.Anil Bhatia as well as Ex.PW12/A(1) to Ex.PW12/A(IV). The other medical papers of RTRM Hospital is Ex.PW13/A Ex.PW11/A. Ld. Counsel submits that these medical documents are photocopies and no original has been produced. However, the maker of the documents has been examined before the court and they had clearly stated that they examined the complainant and prepared the said documents. The said documents have been exhibited before the Ld. Trial court. So, submission of the Ld. Counsel is without any basis. Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 29 of 35 In view of the statement of PW1, it is evident that she has given specific dates about demand of dowry and it has also been proved that she used to be beaten by the appellant with other accused. The submission of Ld. Counsel in this respect is, therefore not well founded.
28. Another contention of Ld. Counsel is that no list of dowry articles has been filed to prove that the same were given to the appellant and his family. There is also no CD, Photographs available on file in this respect. I have perused the statement of PW1. She has exhibited the list of dowry articles as Ex.PW1/B (four pages). Even the admitted list of articles is Ex.PW1/C. The photocopies of jewellery, clothes have also been placed on record. The original bills are Ex.PW5/A and Ex.PW5/A1 regarding jewellery purchased from PW5 Sanjay Verma. There is no need for CD or photographs when admitted list of dowry articles is there alongwith bills of jewellery. In view of this I am not in the agreement of the submissions of Ld. Counsel for the accused/appellant.
29. Another submission of Ld. Counsel is that the medical bills, prescription slips are forged and fabricated and the same were not produced at the time of bail. The submission of Ld. Counsel that the same were not produced at the time of bail is of no consequence. Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 30 of 35 There is no evidence brought on record to establish that the bill, prescription slip are forged and fabricated. On the other hand, the medical prescription slip have been issued to the complainant from Government Dispensary/Hospital and they cannot be doubted.
30. It is submitted that all the witnesses are related witnesses and interested witnesses and their statements are not reliable and trustworthy. In this case, both brothers PW7 Manoj PW6 Neeraj and PW10 Laxmi Chand (father), PW8 Matadeen(uncle) have given consistent statements and they corroborated the statement of PW1 Babita. Therefore, there is no reason to disbelieve them.
31. It is submitted that the present case is counter blast to the divorce petition. Ld. Counsel has drawn the attention on the statements of PW6,7,8 and 10 who have categorically stated that no cruelty/dowry demand/beatings against the complainant have been committed by the appellant or any of his family member. It is also submitted that no independent witness has been examined. It is admitted that the torture and harassment is confined within the four walls of the house. Admittedly PW6,7,8 & 10 were not residing with complainant PW1. She is the best witness to tell the torture, harassment and maltreatment, she has undergone. In this case Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 31 of 35 PW6,7,8&10 have also corroborated the statement of PW10 regarding demand of money and beatings given to her. It may be that appellant has filed the divorce petition and then looking at the conduct of her husband, she has moved to file this case. But it cannot be said that she was never tortured or harassed for demand of dowry in view of the evidence available on file.
32. In the present case, it is admitted fact that the marriage between complainant and accused/appellant was solemnized on 20.2.96. PW1 Babita has alleged that accused persons used to demand cash from her which has also been given to them by her brothers and father on different occasions. She has specifically stated the dates of such demands. She has also stated that she used to be beaten by the accused persons including appellant and that her sister in law had demanded her ear rings from her and under compulsion she had to give her gold ear rings to her. The dowry articles given to the complainant has admitted not been returned to her by the appellant. The list of dowry articles is available on file alongwith bills of gold jewellery. There is allegation for demand of dowry in this case as well as for the purpose of physical cruelty, there are allegations for beatings and for the purpose of mental cruelty, coupled with beatings, there are allegation against the mother in law and sister in law that they called 'itna to kangleybe nahi detey hai'. Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 32 of 35
33. I have perused the Judgement passed by the Ld. Trial court and in consideration of the discussions made by the Ld. Trial court, I am of the view that the accused/appellant has been rightly convicted u/s 498A/406 IPC. There is no illegality, infirmity or impropriety in the said Judgment. In view of my above discussions, the Judgment of conviction dated 28.11.2013 is maintained.
33. As far as the order on the point of sentence is concerned, Ld. Counsel submitted that appellant is the only son to look after his father who is old aged and suffering from ailments. It is further submitted by the Ld. Counsel that if the appellant goes behind bar, then four members shall suffer due to his absence because the appellant is regularly paying Rs.6000/ p.m to the complainant and his daughter and if goes behind bars, maintenance will be stopped and no body will be there to look after his father.
35. Admittedly, the accused/appellant is facing trial for last about 12 years. The marriage was solemnized in the year 1996 and complainant and appellant/convict remained together for about 2 years. One female child was born out of the wedlock. The divorce petition filed by the appellant has been dismissed vide order dated 29.10.11 observing that he was not treated with cruelty or deserted willfully. The appellant is regularly paying maintenance to the Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 33 of 35 complainant and child. I have perused the order on the point of sentence. It is revealed that Ld. MM has given benefit of probation to accused/convict Lalita and Kishan Chand and released them on probation for a period of six months subject to furnishing probation bond and surety bond in a sum of Rs.50,000/ each. However, the present appellant/accused was sentenced to undergo RI for six months each for offence u/s 498A/406 IPC. It is astonishing that the Ld. MM has granted different sentences while all the accused were convicted for the the same offences.
36. However, in consideration of the period of trial suffered by the convict/appellant, his age, responsibility, maintenance being paid to the complainant and since the coaccused have already been granted benefit of probation, I feel it that the sentence awarded by the Ld. Trial court can be modified. Accordingly, I modify the sentence and now the appellant/convict is also given the benefit of probation and he is directed to be released on probation for a period of six months subject to furnishing probation bond and surety bond in a sum of Rs.50,000/ for the offence u/s 498A/406 IPC and in the meantime he shall keep peace and be of good behaviour. He is further directed to deposit a sum of Rs.10,000/ in DLSA for the welfare of the needy persons/UTPs.
Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 34 of 35
37. With these modifications in the order on sentence, the appeal is disposed off. Trial court file be s ent back with the copy of this order to the court concerned and appeal file be consigned to record room.
Announced in the Open Court on 13.08.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Rajesh Vs. State (Govt of NCT of Delhi) C.A.No.108/13 Page No. 35 of 35