Delhi District Court
St. vs . Anil Kumar. on 30 June, 2014
1
IN THE COURT OF MS. MONA TARDI KERKETTA,
MM (MAHILA COURTS), TIS HAZARI COURTS: DELHI
FIR NO. 445/07
PS : S. Mandi
U/s. 498A/406 IPC
UID No. 2401R1311762008
ST. VS. Anil Kumar.
1.Name of the complainant : Smt. Geeta W/o Anil Kumar
2. Name of the accused persons, their : Anil Kumar S/o Late Sh.
Mohan Lal , r/o House no.
501, Kabir Basti, Malka Ganj, S. Mandi, Delhi .
3. Offence complained of : 498A/406 IPC
4.Plea of accused : Falsely implicated
5.The final order : Acquitted
6. Date on which matter was reserved for order : 30.6.2014
7. Date of such order : 30.6.2014 THE BRIEF REASONS FOR THE DECISION :
1. The present FIR has been registered on the complaint of Ms. Geeta w/o Sh. Anil Kumar R/o house no. 501, Kabir Basti, Malka Ganj, S. Mandi, Delhi wherein it is stated that the complainant got FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 2
married to accused Anil Kumar in the year 1999 as per Hindu rites and ceremonies and three children were born out of said wedlock. It is further stated that initially relationship between the complainant and the accused was cordial but after two years her husband, mother in law and sister in law started harassing the complainant. They used to taunt, abuse and beat her without sufficient cause. Her mother in law used to asked her to bring Rs. 5000/ from her parental house. Her husband used to consume liquor on regular basis and was having no source of income.
2. It is further stated that the complainant used to maintain herself and her children by doing labour work but whatever she used to earn was either snatched by her mother in law or her husband spent on liquor. It is further stated that her husband , mother in law and sister in law used to beat her mercilessly on account of which she had sustained injuries . Thereafter she lodged a complaint before PS S. Mandi but no action was taken against them till date . It is further stated that her husband used to threatened to commit suicide under the influence of liquor and to implicate her family members in false case . Her husband used to injure himself through knife and also used to threatened to kill her FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 3
with said knife. Her mother in law and sister in law used to instigate her husband to beat her. It is further stated that her widow mother was unable to fulfill the demands of Rs.5000/ made by her husband and other family members.
3. It is further stated that on account of continuous cruelties of accused persons she feared for her life. Subsequently matter was reported to police, which was referred to CAW Cell for reconciliation proceedings but no fruitful result could be yielded. Thereafter on the basis of statement of the complainant, a case under section 498A/ 406 IPC was registered against accused. Subsequent to the registration of FIR, investigation was conducted and after completion of chargesheet, same was filed in court against the present accused, who is husband of the complainant. Cognizance of the offence was taken and accused was summoned by my Ld. Predecessor and supplied with copy of chargesheet in compliance of provision given under section 205 Cr PC.
4. Arguments on the point of charge were heard and vide order dated 23.3.2010, Charge u/s 498A/406 IPC was framed against the accused to which he pleaded not guilty and claimed trial. Subsequent thereto matter was fixed for Prosecution Evidence. FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 4
5. In order to prove its case, Prosecution produced following 3 witnesses : (I) Ct. Sant Kumar, appeared as PW 1 and proved arrest memo and personal search memo of accused vide Ex. PW 1/A and Ex. PW 1/B respectively.
(II) Smt Geeta, complainant, appeared as PW 2 and has proved her complaint which is Ex. PW 2/A. (III) ASI Bachan Parkash, Duty Officer appeared as PW3 and proved FIR and his endorsement on rukka vide Ex. PW 3/A and B, (IV) IO SI Bharat Bhushan could not depose before the court as he unfortunately expired .
6. Subsequent thereto, prosecution evidence was closed.
statement of accused u/s 313 Cr.P.C. was recorded wherein entire incriminating circumstances appearing on record were put to him, to which he denied as false and incorrect and claimed to have been falsely implicated in the present case but did not prefer to lead evidence in his defence. Subsequent thereto matter was fixed for final arguments. During the course of final arguments, Ld. APP for the State submitted that prosecution has been able to discharge its onus and accused is liable to be convicted. On the other hand FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 5
accused submitted that he has been falsely implicated.
7. The court has heard the submissions of both the sides and also gone through entire record including testimonies of witnesses. Before appreciating evidence on record, lets first discuss the relevant legal provisions given U/s 498 A/406IPC. Section 498A IPC provides punishment to husband or relatives of the husband of a woman subjecting her to cruelty. The prosecution must prove that :
(I) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand
8. Section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 6
(i) that the accused was entrusted with property or with dominion over it,
(ii) that he (a) misappropriated it or(b) converted it to his own use or used it or (d) disposed of it
9. In the light of aforesaid legal provision, I would now appreciate the evidence brought on record to ascertain if the alleged acts of accused amount to cruelty in terms of provision given U/s 498 A IPC and he is guilty of criminal breach of trust u/s 406 IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. Admittedly the complainant has built her case on explanation(b) to section 498A IPC. In the judgment of Smt. Sarla Prabhakar Vs State of Maharashtra,1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J page 3019, the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 7
498A IPC, observed that harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b) of section 498A IPC.
10. Now adverting to facts and circumstances of the present case, the complainant has been examined as PW3. In examination in chief, she has stated that during her stay at matrimonial house, accused used to assault her under the influence of liquor and whenever she used to bring it to the notice of her in laws, they did not care to intervene into the matter. Due to continuous assault of accused, she got frightened and apprehended danger to her life. She has further stated that when the situation got worst , she made a complaint before CAW Cell. It be observed that though her testimony has remained unchallenged and uncontroverted on account of failure of accused to cross examine her but the complainant has not stated anything with regard to cruelties FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 8
committed in furtherance of dowry demands by the accused. The examination in chief of the complainant does not find mention of cruelties allegedly committed by the accused in her statement given to police. In her statement given to police ie. Ex PW3/A, she has that accused and his family members used to taunt, abuse and beat her but she has not clarified if said cruelties were committed upon her in furtherance of dowry demands by the accused and his family members. It appears that the complainant was having grievances against the accused on account of his drinking habit and his failure to look after her and their children properly.
11. The allegations levelled against the accused are mainly about his negligence and misbehaviour over routine domestic issues and certainly not in connection to dowry demands. Hence cruelties allegedly committed by the accused do not come within the purview of explanation attached to section 498A IPC. The testimony of the complainant is not trustworthy for being improved and contradictory. Though during her cross examination, the accused has not put cross questions or suggestions to discredit her but events narrated by her are itself not sufficient to constitute cruelty in terms of explanation attached to section 498A IPC in FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 9
order to bring home the guilt of accused though the same may be relevant for invoking the provisions of Prevention of women against Domestic Violence Act. Hon'ble Justice Sh. Shiv Narayan Dhingra has very rightly explained in his judgment titled as NARENDER KUMAR AND ORS. Vs. STATE 2008[1] JCC 1 that every marriage that fails does not fail due to dowry demand or cruelty but it fails for several other reasons. A failed marriage is not a crime.
12. The provision of Sec.498A are being used to convert failed marriages into crime and the courts must be very cautious during trials of such cases. In view of foregoing discussions, the Court is of the view that that charge u/s 498A IPC is not established by the prosecution.
13. It be observed that accused has also been charged under section 406 IPC for having misappropriated the stridhan articles of the complainant to his own wish. In order to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused and was having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 10
them, have been misappropriated. In her statement given to police, the complainant has not stated anything about giving or demand of dowry. She has not even mentioned the name of dowry articles given at the time of marriage.
14. It be observed that she has stated of dowry articles for the first time in the court. Though during investigation, some of the dowry articles were recovered from the house of the accused but there is no evidence to prove that same were entrusted to him by the complainant and he misappropriated it with dishonest intentions or converted the same for his own use. The list of dowry articles has not been proved on record.
15. The complainant has not stated as to when the list was prepared. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant has been proved on record. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152, the court is of the opinion that entrustment in favour of the accused is not also established. In view of the fact that none of the ingredients of section 405 IPC is established and therefore no case FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi. 11
u/s 406 IPC is made out against the accused.
16. In view of foregoing discussions, the court has come to the conclusion that no material evidence has been produced in order to secure conviction of accused hence he is acquitted from the charge framed under section 498A/406 IPC against him.
17. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 30.06.2014 (MONA TARDI KERKETTA) MM02/ MAHILA COURTS TIS HAZARI COURTS, DELHI FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi.
12 FIR No. 445/07 PS: Subzi Mandi State vs Anil Kumar U/s 498A/406 IPC 30.06.2014 Present: Ld. APP for the State
Accused produced from JC (on bail in this case) Vide separate judgment announced in the open court, accused is acquitted from the charge framed under section 498A/406 IPC. Bail Bond of accused shall remain in force and surety of accused shall not be discharged for a period of 6 months in view of section 437A Cr.P.C. Accused be released from JC if not required to be detained in any other case.
Concerned Jail Superintendent be notified.
File be consigned to Record Room.
Mona Tardi Kerketta MM02: Mahila Courts THC: Delhi/30.6.2014 FIR no. 445/07 State Vs. Anil Kumar PS S. Mandi.