Delhi District Court
State vs . Shyam Sunder on 8 February, 2013
IN THE COURT OF SH. RAKESH TEWARI ASJIV(OUTER),
ROHINI COURTS, DELHI
CR No. : 5/13
(Later on treated as appeal)
arising out of FIR No.198/08
PS Narela
U/s.498A/406 IPC
State Vs. Shyam Sunder
1. Sushila Devi D/o.Sh. Chote Lal
W/o.Sh. Shyam Sunder
Village Gadaipur, P.O.Pahadi,
Teh./P.S. Pataudi,Distt. Gurgaon. (Haryana)
Versus
1. The State.
2. Shyam Sunder S/o. Chanderbhan
R/o. Village Daryapur Kalan, Delhi.
ORDER
08.02.2013 Present: Sh. N.C.Jain, Adv. counsel for the appellant Ld. APP for the State/ respondent.
Heard both the counsels.
1. The application for condonation of delay in filing the appeal is hereby allowed and appeal has been heard on merits.
CR No. 5/13 Page 1/10
2. This petition was filed initially as a revision petition which was treated as an appeal against the impugned order dt. 18.04.12 passed by Ld. Magistrate in case FIR No.198/98 u/s. 498A/406 IPC PS Narela whereby the accused/ Respondent No.2 was acquitted.
3. Facts giving rise to the present appeal are that the complainant Ramphal Singh the brother of one Smt. Sushila filed a complaint on 30.04.97 to the effect that he was working in BSF and that his sister Smt. Sushila Devi was married to accused Shyam Sunder on 21.06.1983 and after the marriage said Smt. Sushila Devi was continued to be harassed by accused Shyam Sunder, her mother in law Smt. Bhagwani, sisterinlaw Kumari Rachna but due to the prestige of the family, said Smt. Sushila did not disclose the same to her parental relatives for years and the said circumstances of harassment continued for 13 years and thereafter, becoming helpless his said sister Smt. Sushila disclosed regarding his long standing harassment to her and thereafter, with the help of common relatives and Panchyat, CR No. 5/13 Page 2/10 accused were made to understand but all in vain and they continued to harass her and about 2 years ago accused Shyam Sunder forcibly left Smt. Sushila at his home (complainant's home) when he was away on his duty and thereafter, he again and again requested to take back Smt. Sushila in the matrimonial home but accused refused to take her back to the matrimonial home and the accused performed his second marriage and accused Shyam sunder was working as Ct. driver in Delhi Police and on the said complaint, the FIR was got registered and during investigation, the statement of witnesses were recorded and a list of Kanyadan was also seized and during further investigation, Smt. Sushila was summoned many times by the concerned IO but she avoided and she joined only once in the investigation and thereafter, she refused to join the raid party for the recovery of the istridhan and thereafter, the charge sheet was filed against the accused.
4. During trial before the Ld. Trial Court complainant Ramphal Singh appeared as PW1 who deposed that Sushila Devi got married to Shyam Sunder in 1989 at village CR No. 5/13 Page 3/10 Gadaipur, Distt. Gurgaon Haryana and articles of dowry were given as per list and she was also given presents by her in laws at the time of marriage but he did not remember the details of the same and after 6 or 7 months of the marriage, she came to her parent's house and he also reached there during his vacations and that he came to know through his sister that her motherinlaw, her sisterinlaw namely Krishana, other sister in law namely Beena, father in law namely Chander, her brotherinlaw whose name he did not remember, her husband used to harass her as her husband was having illicit relations with some other lady and due to the fact that they were not happy with the dowry which was given to her and that her husband used to burn her by cigarette buts and that all the accused used to turn out her from the house and she used to remain out of the house and thereafter, after sometime, they used to allow her to enter the house after beating her and that accused was appointed as Ct. Driver in the Delhi Police and that he demanded Rs.30,000/ from his wife which he (complainant) gave to the accused/ husband of his sister and that the inlaws of his sister used to demand various items from them during the stay of her sister in her CR No. 5/13 Page 4/10 matrimonial house and that they used to fulfill their demands from time to time and that he tried his level best for conciliation between his sister and her inlaws but behaviour of her husband remained the same and thereafter, he proved his report given to the CAW Cell which is Ex.PW 1/A and the accused never returned any article of istridhan of his sister and still had the possession of all articles of istridhan and that he had the receipts of the articles given by them to his sister but he could not produce the same as the marriage had taken place on 21.06.83 and now all of the said receipts had been lost due to lapse of time and he has proved the bahi in which amount of kanyadan was subsequently exhibited as Ex.PW1/B and that no recovery of any article was effected as the accused had not returned any of the dowry articles of his sister.
5. Mere reading of examination in chief go to show that PW1 has altogether improved his version of the facts as given in his complaint Ex.PW 1/A.
6. PW2 Smt. Sushila Devi deposed that she has given a CR No. 5/13 Page 5/10 list of articles of dowry at CAW Cell which is Ex.PW2/A and thereafter, she deposed that she had gone to her matrimonial home along with all the articles of her dowry and after about four years of her marriage, her all the jewelery articles were kept by her mother in law and that accused used to beat her after her marriage and that all the other family members used to beat her and taunt her as she was not having any children and after that accused got himself remarried and that he got narrated the fact of harassment to her bother and family members who tried to pacify him but his behaviour remained the same and that 2/3 times the panchayat was called but the accused was not ready to take her back in his house and that her brother had made a complaint before CAW Cell and that accused neither returned articles of her istridhan nor took her back and that her mother in law used to instigate her husband for second marriage as she (the witness) was not bearing child and that her husband Shyam Sunder used to demand money and used to taunt her for insufficient dowry and that her husband used to taunt her and beat her and that he used to demand money for getting job and that her father gave once Rs.10,000/ for getting job to her husband and that her CR No. 5/13 Page 6/10 husband later on got employment in Delhi Police and that all her istridhan articles including jewelery were lying with husband and he had refused to return the same despite demand.
7. From the said examination in chief of PW2, no date of demand of the istridhan article has been specified which is essential ingredient of the offence as defined u/s. 405 IPC because the date of demand completes the offence and in her earlier part of examination in chief, she was telling the court that neither accused returned her articles of istridhan nor took her back in the matrimonial home, go to establish that it was a conditional kind of deposition which she had made before the court. I have also gone through the deposition of PW6, the IO of the case who specifically deposed in her examination in chief that he called the complainant to recover the istridhan but she denied the same and submitted that she wanted to live with the accused and in these circumstances it can not be said that ingredients of section 405 IPC have been fulfilled in the said examination in chief itself of the said witnesses. CR No. 5/13 Page 7/10
8. Ld. counsel for the appellant has pointed out and taken me through the statement of accused u/s. 313 Cr.P.C. wherein vide question No.2, when he was put with a question that he failed to return the istridhan of the complainant and dishonestly misappropriated the same, the accused answered that some articles were lying in his house and that he had attended the proceedings at CAW Cell and it has been contended that it is an admission on the part of the accused of the istridhan misappropriated by him.
9. The said contention is not only meritless but rather illegal, in view of the fact that a statement u/s.313 Cr.P.C can not be used against the accused but it can be used to draw some inferences or to corroborate a fact which has otherwise been established on the record by way of evidence beyond reasonable doubt. Even otherwise, the answer of the accused that some articles were lying in his house can not be taken to be a admission of the offence of misappropriation because he is further saying that he had attended the proceedings before the CAW Cell in continuation and only inference can be drawn is that he never refused to return the articles or he CR No. 5/13 Page 8/10 never misappropriated the same as alleged in the question. Hence , I am of the considered opinion that the Ld. Trial Court committed no illegality in coming to the conclusion of acquittal of the accused for the offence u/s. 406 IPC.
10. So far as section 498 A IPC is concerned, the bald assertions of demand of dowry without any specifications as such, can not lead to the conclusion that the prosecution has brought home the guilt of the accused beyond reasonable doubt. I have myself gone through the testimony of PW2 wherein she was rather perturbed by the alleged second marriage of the husband and his illicit relations rather than alleged demand of dowry or resulting cruelty. The deposition of PW1 in this regard would have been of corroborative value, had PW2 specifically deposed that what were the demands in the form of " dowry" as defined under the law and how the same were met, if any or how she was harassed on which dates on failing to fulfill the said demands. PW1 was deposing that he has given Rs.30,000/ to the accused but he nowhere said that it was a demand of dowry in his examination in chief whereas PW2 has another story to tell that her father has CR No. 5/13 Page 9/10 given once Rs.10,000/ to her husband for getting a job for him. Even if I take the same as a gospel truth, taking financial assistance for establishing a business to earn livelihood or for getting a job from inlaws can not and must not be taken as dowry. Hence, the Ld. Trial Court rightly came to the conclusion that even the offence u/s. 498 A IPC has not been established against the accused at all.
11. To conclude there is no merit in this appeal which is hereby dismissed.
12. For the same reasons, application u/s. 319 Cr.P.C. attached with this appeal is also dismissed.
13. Copy of this order be attached with the trial court record and the same may be sent back forthwith. The appeal file be consigned to record room separately.
Announced in the Open Court (RAKESH TEWARI)
on 08.02.2013 ASJ04 (Outer)/08.02.2013
CR No. 5/13 Page 10/10