Delhi District Court
State vs Kerovin & Others on 18 September, 2014
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IN THE COURT OF MS. MONA TARDI KERKETTA : METROPOLITAN
MAGISTRATE :MAHILA COURT : TIS HAZARI : DELHI
FIR NO. 259/2000
UID No. 02401R0262612003
P.S. : Timar Pur
U/S 498/406 /34 IPC
STATE VERSUS KEROVIN & OTHERS
1.Date of commission of offence : During subsistence of marriage since 27.10.1982.
2. Name of the complainant : Smt. Manju Xavier W/o Sh. Subhash Xavier
3. Name of the accused persons their parentage and address : 1. Sh. Kerovin Pappu S/o Sh. Cyril George
2. Smt. Rebecca W/o Sh. Karovin Pappu
3. Subhash Xavier @ Sebastian Xavier S/o Sh. Cyril George All R/o A7, Hardev Nagar, Timarpur, Delhi Also at Through Saniel Michael Yadav Chowk Gali No.9, Khasra No. 1372, Burari Road, Villege: Jharoda, Delhi
4. Offence complained of : 498A/406/34 IPC
5. Plea of accused persons : Not Guilty
6. Date of Order : 18.09.2014
7. The final order : Acquitted Counsels for the parties:
For the State : Sh. Vineet Dahiya
For the Accused person : Sh. Pankaj Kumar.
FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others.
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THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as disclosed in the statement of complainant Smt. Manju Xavier W/o Sh. Subhash Xavier, R/o A7, Hardev Nagar, Timarpur, Delhi wherein, it has been stated that complainant was married to accused Subhash Xavier on 27.10.1982 at Agra according to Christian Rites and ceremonies and one son Master Sunny was born out of this wedlock in 1983. It has further been alleged that after the marriage, when complainant came to matrimonial house, she was beaten and abused by her in laws and husband for not bringing dowry articles, whereas complainant's parents had given articles of about Rs 50,000/ and cash of Rs 30,000/ . It has further been alleged that accused Subhash and Pappu Kerovin had thrown the complainant out of matrimonial house at advance stage of pregnancy and complainant was forced to go her parental house, where she delivered the child at a hospital . Despite of all these, complainant compromised the matter and came back to matrimonial house with some gift articles but behaviour of accused Subhash and Kerovin did not change towards her and they continued beating the complainant. In the meanwhile, father of complainant came to complainant's matrimonial house and when he came to know about the demands of accused persons, he passed away in shock.
2. It has further been stated that in the month of JuneJuly 1991, accused Subhash Xavier poured boiling milk upon the complainant, due to which she FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 3 had suffered injuries in her hands and legs. She reported the matter to police but later on compromised the matter with her husband to save her matrimonial life. It has further been alleged that after marriage of accused Kerovin Pappu, his wife Rebecca also aided in committing cruelties upon the complainant. They used to beat the complainant regularly and keep her in room after locking it from outside and whenever, the complainant was thrown out of matrimonial house, she was forced to go to her parental house at Agra. In her absence, accused persons used to lodge false report with police that she had eloped and run away with a man and on enquiry, complaints were turned out to be false.
3. It has further been alleged that complainant was forced to take up some odd jobs for maintaining children. The husband of complainant never gave a single penny for their maintenance despite being placed well with Railways. It has been further alleged that on the birth of second child, accused persons had beaten the complainant in the hospital itself accusing her that the child was not born out of union between complainant and her husband. It has been also alleged that one distant relative namely Emilia also used to hit her by catching hold of her pleets and used to tell that it was time to go and they would make sure that she was out of the house. Once complainant overheard accused persons making plans for her murder.
4. It has further been alleged that she was not provided monetary assistance by the accused person for her Kidney operation at the instance of Emilia and she had to borrow Rs 25,000/ and another Rs 10,000/ was given by her mother FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 4 then only she was medically treated at Tirath Ram hospital. It has further been alleged that on 04.02.2000 accused Kerovin Pappu had beaten the complainant at her work place. He also outraged her modesty by touching her breast and ran away by extending threats to complainant's life. Thereupon, complainant reported the matter to police.
5. It has further been alleged that when complainant was away to her parental house then accused persons along with Emilia removed and shifted all her articles and belongings to some unknown place. When complainant went to matrimonial house then she was not permitted to enter the house and door of the house was shut on her face. Finding no other option, she reported the matter to police, which forwarded the complaint to CAW Cell, North for reconciliation, where efforts were made to sort out the matter but no settlement could be arrived at. Subsequently, on the basis of complainant's statement, a case under section 498A/406/34 IPC was registered against the accused persons.
6. Subsequent to registration of FIR, investigation was conducted and after its completion, chargesheet was filed in the court against accused persons, who were summoned by Ld. Predecessor for the offence allegedly committed by them. Copy of chargesheet was supplied to accused persons against receiving in compliance of provision of Sec.208 Cr.PC. Arguments on the point of charge were heard and vide order dated 14.08.2003 charge u/s. 498A/406/34 IPC was framed against accused persons, to which they individually pleaded not guilty FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 5 and claimed trial. Subsequent thereto, matter was fixed for Prosecution Evidence.
In order to prove its case prosecution produced following six witnesses :
(1) HC Krishan Kumar, Duty Officer, appeared as PW1 and proved copy of FIR Ex PW1/A, (2) WHC Sushila appeared as PW2 and proved personal search memo Ex PW2/A, (3) Ct. Naresh Kumar appeared as PW3 and proved personal search memo Ex PW3/1 and arrest memo ex PW3/2, (4) Smt. Manju Xavier, complainant, appeared as PW4 and proved complaint Mark X, Y copy of compromise Mark X1, complaint Ex PW4/A, List of articles Ex PW4/B, seizure memo ExPW4/C, List of articles Ex PW4/D, arrest memo Ex PW4/EF, (5) SI Mahesh Kumar appeared as PW5 and proved Tehrir Ex PW5/A, Site Plan Ex PW5/B, Seizure memo Ex PW5/C, (6) Sh. Surendra Bindra appeared as PW6, (7) Inspector Ashok Kumar appeared as PW7 and proved marriage certificate Mark 'A', arrest memo Ex PW7/A, house search memo Ex PW7/B,
7. Subsequent thereto, matter was fixed for recording of Statement of accused persons u/s. 313 Cr. PC, which was recorded on 23.11.2012, wherein entire incriminating circumstances appearing on record were put to them, to which they denied as false and incorrect and stated that they have been falsely FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 6 implicated in this case. The allegations against them are false, no cruelty was committed upon the complainant and no dowry was ever demanded by them from the complainant. Accused persons preferred to lead evidence in their defence and examined accused Subhash Xavier as DW1, Sh. Ivan Xavier as DW2, accused Kerovin as DW3 and accused Rebecca as DW4 after taking permission as per law.
8. Subsequent thereto, matter was fixed for final arguments. During the course of final arguments, Ld. APP for the State, submitted that the guilt of accused has been proved by the prosecution beyond reasonable doubt. On the other hand, Ld. counsel for accused submitted that accused persons deserve acquittal as no evidence has come on record to prove their guilt.
9. The court has heard submissions of both the sides and also gone through entire record including testimonies of witnesses. Before appreciating evidence on record, let us first discuss the relevant legal provisions given U/s 498 A/406 IPC. 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 FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 7
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 section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(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
10. In the light of aforesaid legal provision, I shall now appreciate the evidence brought on record to ascertain if alleged acts of accused persons amount to cruelty in terms of provision given U/s 498 A IPC and if they are 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) of 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 FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 8 court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of 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). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
11. In the light of aforesaid legal provisions and Judicial Pronouncement, The court shall appreciate the evidence available on record.
12. PW6 Sh. Surender, only public witness, in his examination in chief, has stated that complainant was working as Supervisor at his factory in the year 1997. She used to tell him that accused persons used to give beatings to her and sometimes they threw the complainant out of house. He has further deposed that complainant also told him that accused persons used to ask her to bring money from her parents. In the year 1998 she also told him that accused Kerovin caught hold of her with the intention to outrage her modesty and tried to do wrong acts with her and for such misconduct of accused, she had filed a FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 9 complaint to ACP and DCP concerned. In this regard, it be observed that these facts are based on hearsay information and in the absence of corroborative evidence, testimony of PW 6 can not be relied upon. During cross examination, he has admitted he did not visit the house of accused persons. It also be observed that fact regarding complainant's telling to him that accused persons used to ask her to bring money from her parents is not mentioned in his statement Ex 6/D2. He has admitted that he did not object to police official when this fact was not incorporated in his statement under section161 Cr PC. He has denied that he did not object to non recording of this fact in his statement Ex. 6/D2 as the same was not told by him to the concerned police official.
13. He has further deposed that on 12.02.1999 the complainant and her husband borrowed Rs 25,000/ from him on the pretext of kidney surgery of complainant. He got signed one pronote from them and the amount was not returned till today. He has further deposed that recovery case was filed against them as he thought that both of them were hand in glove with each other and did not want to return money hence levelled false allegation against him. It be observed that his deposition to this effect has no bearing upon the merits of this case.
14. He has further deposed that he had seen accused Kerovin on 04.02.2000 manhandling and misbehaving with complainant and that a case was registered against this incident vide FIR 39/2000 PS Mukherjee Nagar. It be FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 10 observed that allegations are not supported by corroborative evidence. During cross examination, PW6 has admitted that he did not tell the police official that in the year 1998, complainant told her that in the last night accused Kerovin caught hold of her with intention to outrage modesty and tried to do worng acts with her. He has denied the suggestion that he did not tell so to police because same was not told to him by the complainant,
15. During cross examination, credibility of this witness has been impeached. It has been established on record that he has deposed in the present case against accused persons out of vengence on account of various litigations against each other and to favour the complainant, with whom he was having friendly relationship. He has admitted that he was arrested along with husband of complainant under 107/151 Cr PC Kalandara and sent to Judicial Custody by SEM, Sarai Rohilla, Delhi. He has further admitted about pendency of three cases between him and husband of complainant under section 500 IPC and two Recovery Suits. He has also admitted that none of the accused has got lodged any complaint against him.
16. He has further admitted that he was one of the witnesses in case FIR No. 39/2000 under section 354 IPC, which was pending adjudication before the court, whereas he has stated that he did depose in the court of Dr. Archana Sinha that he has not been cited as a witness in any other case except in case of FIR No. 39/2000. He has further deposed that he did not know whether the name of the elder son of complainant was Sunny, who deposed before the court FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 11 of SEM, Sarai Rohilla about his having illicit relationship with the complainant. He has further deposed that he was not aware whether RAW, Hardev Nagar had got lodged written complaint with PP Jharoda on 19/03/02. He has also deposed that he was not aware whether ASI Mohan Pratap had deposed against him before SEM, Sarai Rohilla that on inquiry, it came to be known that he was having illicit relationship with the complainant because of which public peace was being disturbed.
17. He denied the suggestion that he deposed so due to enmity between him and accused persons. He denied that he in connivance with complainant cooked a story that complainant and her husband had borrowed Rs 25,000/ from him on the pretext of kidney surgery. Credibility of this witness has further been impeached when he deposed that neither he had given statement nor police recorded his statement in connection to present case.
18. It is pertinent to observe that complainant of the present case unfortunately expired after recording her examination in chief and public witness PW6 was dropped from list of witnesses after recording his part cross examination being untraceable. The statement made by complainant in her examination in chief and statement of PW6 , are not readable and cannot be imparted any credence. Reliance is placed on the judgement titled as Dwarka Dass Vs. State 1979 Crml. Law Journal 550 wherein it has been observed that the right of cross examination, not only is referable to section 138 of Evidence Act, itself but one of the principles of natural justice is that the evidence may not be read against a FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 12 party if the same has not been subjected to cross examination or at least an opportunity has not been given for cross examination. Reliance is also placed upon judgements titled as Gopal Saran Vs. Satyanarayan AIR 9 SC 1141, Chandan Vs. State of Rajasthan AIR 1988 SC 599, Urava Konda Vijayaraj Paul Vs. The State 1986 Criminal Law Journal 2104, wherein, it has been observed that right to cross examine a witness is an indispensable right of the accused and if the accused has not been given an opportunity to cross examine the witness, his testimony cannot be read into evidence. The complaint which is the basis of registration of present FIR and subsequent proceedings against the accused persons has not been proved.
19. The complainant in her entire complaint has not narrated a single specific incident except dated 04.02.2000 , wherein admittedly, accused Kerovin has been acquitted. The complainant has levelled very vague and general allegations against accused persons, which are not supported by any cogent and corroborative evidence. There is no mention of sepecific date, time and place of such incident. The complainant has not even mentioned specific role of accused persons.
20. Now dealing with defence evidence, DW1 Subhash Xavier in his statement has testified about illicit relationship of complainant with PW3 Surendra Bindra, cases filed against him by PW 3 and complainant's support to him in those cases. During cross examination by Ld. APP, he has specifically denied all the suggestions on these facts. DW2 has deposed that his FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 13 mother/complainant used to quarrel with his father frequently. His mother wanted to do job whereas his father used to tell that his income was sufficient for livelihood. He has deposed that his father never inflicited any cruelties upon his mother and he left the house empty handed to live at some other house to avoid quarrel with his mother and after his mother death, his father came to live with them.
21. During cross examination, he has denied all the suggestions against facts mentioned by him in his examination in chief. DW3 has also deposed on the line of DW1. He has also deposed that when he and other family members opposed illicit relationship, Surendra Bindra and his associate came to their house and beat him and his wife and in said fight his finger was broken and his wife was molested and in this regard FIR bearing no. 300/2000 was lodged against Surendra Bindra and complainant, which is pending adjudication before concerned court. During cross examination by Ld. APP , he has denied all the suggestions with regard to facts mentioned by him in his examination in chief. DW3 has also deposed on the line of DW3 and proved copy of complaint Mark DA i.e. typed copy of FIR with respect to FIR No.300/2000, PS:
Timarpur. During cross examination by State, she has denied all the suggestions with regard to facts mentioned by her in her examination in chief.
22. In these circumstances, as the prime witnesses of the prosecution, the complainant having expired after recording of examination in chief and PW6 having been dropped from the list of witness after part cross examination, FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 14 specific allegation of harassment and / or coercion, for fulfillment of demand has not been proved by the prosecution to prove the commission of offence u/s 498A/34 IPC by the accused persons.
23. It be observed that the accused persons have been charged for having misappropriated the istridhan articles of the complainant to their own wish. In order to 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 persons and they were having dominion over the articles of the complainant and with dishonest intentions the articles entrusted to them, have been misappropriated.
24. In her entire testimony available on record, no entrustment has been proved. No witness has stated about the month, time and year when the entrustment was made and specifically to whom it was made. The list of dowry articles is not witnessed by any of the family members. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant is revealed. 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 persons is not established. In her complaint to police, the complainant has nowhere mentioned about any demand of return of her dowry articles being raised by her from the accused persons till the last date of FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others. 15 complainant leaving the matrimonial home. In view of the fact that none of the ingredients of section 405 IPC is established, the court is of the view that no case u/s 406 IPC is made out against the accused persons.
25. In view of the aforesaid discussion, The court is of the opinion that no material evidence has been produced in order to secure conviction. Accused persons are accordingly acquitted from the charge framed under section 498 A/406/34 IPC.
ANNOUNCED IN THE OPEN COURT (MONA TARDI KERKETTA)
ON 18.09.2014 MM02 / MAHILA COURTS
TIS HAZARI COURTS, DELHI
FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others.
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FIR NO. 259/2000
P.S. : Timar Pur
U/S 498/406 /34 IPC
STATE VERSUS KEROVIN & OTHERS
18.9.2014
Present : Ld. Sub. APP for the state.
All accused on bail in person with Ld. Counsel Sh. Pankaj Kumar Vide separate judgment announced in the open court, all accused persons are acquitted from the charge framed U/s 498A/406/34 IPC.
Previous Bail Bonds of accused persons stand cancelled. Sureties are discharged. Original documents if any be returned against receiving. Endorsement if any be cancelled.
In compliance of provision given under section 437A Cr. PC, fresh personal bail bonds in the sum of Rs. 10,000/ each with one surety in the like amount have been furnished. Same are attested and accepted. Bail bonds shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court THC Delhi/18.9.2014 FIR NO. 259/2000 P.S. : Timar Pur State Vs. Kerovin and Others.