Delhi District Court
Fir No.25/2012; Ps Oia State vs . Mahipal & Ors. 1 Of 25 on 15 May, 2019
In the Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate (Mahila Court (SouthEast), Saket Courts, New Delhi.
FIR No: 25/2012
PS: OIA
U/s : 498A/406/506/34 IPC
State v. Mahipal & Ors.
JUDGMENT
Date of institution : 20.05.2016
Cr.C No. : 95987/2016
Name of the complainant : Smt. Renu
D/o Mangal Singh
R/o H. No. D23, Harkesh Nagar,
OIA, New Delhi.
Name & address of the accused :1) Mahipal
S/o Hari Singh
2) Hari Singh
S/o Late Sh. Bhagwan Shah,
3) Prempal
S/o Hari Singh
4) Kapil
S/o Hari Singh
All R/o H.No.A1/621, J.J. Colony,
Madanpur Khadar, New Delhi
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 1 of 25
5) Saroj
W/o Late Sh. Sukhbir Singh,
R/o House No. 823, J.J. Colony,
Madanpur Khadar, New Delhi
6) Sukhbir Singh (since deceased,
proceedings abated).
Offence Complained of : U/s 498A/406/506/34 IPC
Offence Charged of : U/s 498A/406/506/34 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 26.04.2019
Date of announcing of order : 15.05.2019
BRIEF FACTS:
1. Brief facts of the case are that since the marriage of the complainant Smt. Renu with accused Mahipal, he alongwith his family members subjected the complainant to cruelty and harassed for bringing less dowry.
2. As per the complaint of the complainant that she got married with accused Mahipal on 10.02.2008 as per Hindu rites and rituals. Further, she had been residing at her parental home since 13.08.2011. On 12.08.2011 at around 9.00 PM, accused persons gave beatings to the complainant and told her to bring Rs.50,000/ from her father and unless she brought the same, she FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 2 of 25 would not be allowed to enter the matrimonial house which was situated at A 1/621, J.J. Colony,Madanpur Khadar, New Delhi. She was also threatened that she would be locked in a room with a LPG gas kept opened and burnt. On 15.08.2011, around 5.00 PM accused Hari Singh, Prempal reached the parental home of the complainant and demanded Rs.50,000/ and when she showed her incapacity to pay the same, accused Prempal started abusing her and gave beatings to her. The parents of the complainant intervened to save her but aforesaid accused persons started abusing even the parents of the complainant and told them to keep the complainant in the parental home till the arrangement for the aforesaid amount is made. Upon hearing the same, the father of complainant asked the accused persons to wait and offered to arrange for the money. Further, from the beginning of the marriage, complainant was taunted for brining insufficient dowry and abused and beaten on small issues. When the complainant objected for the aforesaid behaviour, she was threatened to be killed. On 10.08.2009, complainant was pregnant, at that time, her husband accused Mahipal, her father in law accused Hari Singh, her sister in law accused Saroj and accused Sukhbir (since deceased) gave severe beatings to the complainant upon which complainant raised alarm and several public persons and neighbourers gathered outside the matrimonial house but even then the accused persons raised demands of Rs.50,000/ and also threatened her that if she refused to bring the same, she would be killed. Complainant was saved by the intervention of public persons and thereafter, someone called the father of FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 3 of 25 complainant and upon seeing her condition, father of complainant gave Rs.20,000/ to the accused persons. On 17.08.2009, complainant was pregnant and asked the accused persons to take her to the hospital but none of the accused persons paid any heed due to which the child was born at home and she gave birth to a girl child. On 18.08.2009, accused Saroj demanded Rs.5 lakhs from the complainant as she had given birth to a girl child. Complainant was not offered food by the accused persons. On 23.08.2009, the accused persons arranged for the function of Chhat for the minor child upon which the family of complainant gave Rs.11,000/, dry fruits, gold and silver articles to the accused persons but they were not satisfied and ill treated the complainant.
3. Pursuant to this complaint dated 19.08.2011 against the accused persons, FIR was registered on 18.01.2012 and the matter was investigated. Charge sheet was filed on 20.05.2016. The Court took cognizance of offence and summoned the accused Mahipal, Hari Singh, Saroj, Prempal, Kapil, Sukhbir Singh (since deceased). Charge was framed against aforesaid accused persons u/s 498A/406/506/34 IPC vide order dated 02.04.2018. Accused persons pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
4. In order to prove its case, prosecution examined as many as five witnesses.
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 4 of 25 PW1 (complainant) Renu deposed that on 10.02.2008, she got married with accused Mahipal according to Hindu rites and rituals. In her marriage, her parents had given all furniture items, household articles and gold and silver jewelery to the accused as per list of dowry articles/stridhan which was Ex.PW1/A. From that day, the aforesaid stridhan articles remained in the possession of accused Mahipal and the same was not returned to her, even on her demand made by her to return the same on occasion of marriage of her cousin brother as she wanted to wear jewelery articles in the function of said marriage. After almost one year of her marriage, her husband Mahipal, her fatherinlaw Hari Singh, her nanad Saroj and her husband namely Sukhvir, her jeth namely Prem Pal and devar Kapil started demanding money Rs.5,000/. She again stated that she was demanded Rs.50,000/ from her parents. In the year 2009, she was pregnant and all accused persons demanded the aforesaid money and stated that if she gave birth to female child, she would be thrown out from her matrimonial house and if she would bring the aforesaid Rs.50,000/, she would be allowed to reside in her matrimonial house. She informed the same to her parents after which, her parents came to her matrimonial house and gave cash of Rs.20,000/ to her fatherinlaw stating that "lo rakh lo, hamari ladki ko tang mat karo" but behaviour of her husband and inlaws had not changed towards her and her husband used to consume liquor and beat her. In the year 2009, she was blessed with a baby girl. After which, her nanad and motherinlaw started taunting her by saying that "ladki janam di hai tune, ladka janam nahi diya, FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 5 of 25 nikal jaa" and they demanded money of Rs. 50,000/ and accused Mahipal started beating her saying that "tune beti janam diya hain." Her husband and inlaws did not provide meal to her during that period. She informed the same to her parents. After which, her father came to her matrimonial house and gave sweets, clothes, bangles, anklet etc. for baby and some cash but behaviour of her husband and inlaws had not changed towards her and they used to taunt her for giving less dowry. On the occasion of chatthi of her newly born baby girl, her father had given ghee, sandha, clothes for her baby and some cash but behaviour of accused persons did not change towards her. In the year 2011, she did not remember the exact, date and month but on one occasion, all accused persons had beaten her and demanded money of Rs.50,000/ and if she would not be able to bring the same money, she would not be allowed to remain in her matrimonial house and they had threatened to kill her by turning on the gas cylinder kept in the kitchen. She got scared and came out from her matrimonial house. On the same, she called her father and he tried to make her husband and inlaws understand but they did not pay any heed. Thereafter, her father took her to her parental home and all her istridhan articles remained in possession of her husband. After 34 days, her fatherin law and jeth came to her parental home and they demanded money of Rs.50,000/. Her father went to arrange the aforesaid money in the same locality. Her fatherinlaw and jeth started beating her again. Meanwhile, her father came back with aforesaid money and after seeing the same, he went to police station to make a complaint against them but police officials did not FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 6 of 25 pay any heed and did not take any action against the accused persons. From that day, she remained in her parental home and no one from her matrimonial house came to take her back. She made a complaint before CAW Cell, which was ExPW1/B. She had appeared in the proceeding before CAW Cell and gave her statements on different dates, which were Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. Her father had given marriage card and her marriage photographs which were Ex.PW1/G and Ex.PW1/H. She had given bill and receipts of expenditure of her marriage and some of istridhan articles, which were marked as Mark A1 to A3.
During crossexamination, PW1 deposed that she got married to the accused Mahipal about eight years ago. She was illiterate. She did not remember the date of marriage. She got married in Delhi at Harkesh Nagar. In her marriage, her parents had given her one gold set, silver articles, fridge, TV, washing machine, sewing machine, one motorcycle, bed, sofa set, fan and household goods. She got bills/receipts of all the aforesaid articles. She had placed on record the bills of purchase, which were marked as Mark A1 to A3. Her jewellery articles were in the possession of the accused persons. She did not remember the date of marriage of her brother when she had asked for her jewellery from the accused persons. She was not employed or working. When accused persons demanded money, her father had visited her matrimonial house. She did not know as to how her father had arranged Rs. 20,000/ which he paid to the accused persons. She could not tell the date on which her father had paid the aforesaid amount to the accused persons. Her FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 7 of 25 father was in Government Employment when she got married. She did not know what was his salary per month at the time of her marriage. She did not know the date of birth of her child. However, presently she was 09 years old. She did not file any complaint with the police when accused persons gave her beating on the birth of a girl child. The behaviour of the accused persons was not good with her even prior to the birth of the girl child. After the birth of the girl child, a function was organised by the accused persons. In the aforesaid function, her parents and brother had participated. On the birth of the girl child her parents had given deshi ghee, sweets etc. and Rs.50,000/. She did not know how her father arranged for Rs. 50,000/ which he gave on the aforesaid function. She had not signed divorce papers with accused Mahipal. It was correct that at the time of marriage there was no dowry demand made by accused persons. Her matrimonial house consists of four storey building. On the ground floor of her matrimonial house, her fatherinlaw and mother inlaw were residing and she was residing at second floor of that building having separate kitchen. Some of furniture were lying at second floor and some of them were at ground floor. She had only fridge, TV, washing machine at second floor and remaining istridhan articles i.e. sofa, almirah, jewelery items were remained in possession of her parentsinlaw at ground floor of building. The bike which was given to her husband in her marriage was in possession of her husband. The key of the aforesaid almirah was in her possession and when it was in her possession, the said almirah contained only her clothes. Upon beatings given by accused persons she went to hospital for FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 8 of 25 her treatment but she was not sure whether she had any medical record or not. Witness denied all the suggestions put to her.
PW2 Mangal Singh (father of complainant) deposed that his daughter/complainant got married with accused Mahipal, on 10.02.2008, according to Hindu rites and rituals. In aforesaid marriage, he had given all furniture, clothes, utensils and jewelery items. In matrimonial house, his daughter was being harassed by her husband and inlaws for demanding money several times. Accused Mahipal used to drink and beat his daughter/complainant for fulfilling aforesaid demand. In the year 2011, however, he did not remember the exact date and month, his daughter was finally thrown away from her matrimonial house by her husband and inlaws threatening her to bring amount of Rs.15,000/ from her parents. Before that on several occasions, his daughter (complainant) was thrown out from her matrimonial house by accused persons for fulfilling their demands of dowry and he used to make them understand and used to send his daughter to her matrimonial house as he wanted to save her matrimonial life. When his daughter started residing with him in the year 2011 on one date, however, he did not remember the exact date and month, complainant's fatherinlaw i.e. accused Hari Singh and her jeth i.e. accused Prem Pal came to his house and asked from his daughter as to whether she made arrangement for the aforesaid amount of Rs.50,000/. He intervened and told them that he would make arrangement, then both accused persons told him that complainant will not be FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 9 of 25 taken to her matrimonial house unless and until the arrangement of the aforesaid amount would be made and paid to them. Thereafter, accused persons started abusing him. He went outside of his house for making arrangement of the aforesaid amount but he could not make arrangement of the same and he returned back. Upon his arrival at his house, both accused persons had already left. At the time of giving birth of baby girl by his daughter/complainant he had given amount of Rs.20,000/ to accused Mahipal. Due to aforesaid behaviour of accused persons towards his daughter/complainant, she filed complaint against them in Women Cell. He had given marriage card of his daughter with accused Mahipal to the police, which was seized vide memo Ex.PW2/A and the marriage card was already Ex.PW1/G. He had also given marriage photographs of her daughter and accused to the police, which were seized vide memo Ex.PW2/B and the marriage photographs were Ex.PW1/H (colly.).
During crossexamination, PW2 deposed that there were two cases pending between his daughter and soninlaw. He did not remember the first incident of violence. He personally never complained about any incident. He never called to 100 number. His grand daughter was born in the matrimonial home. It was correct that all the care after delivery was performed by the accused persons as well as he also had contributed for her care. He did not have any information regarding the fact that his soninlaw or his family members had disowned him. It was correct that her daughter was living separately on rent from other family members. When accused Rampal and FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 10 of 25 Prem Pal visited to his house, than he himself and his wife were present at the home. They stayed for sometime in the house. When they demanded money he did not make a call at 100 number. Police never visited his home. He never met any police officials. It was wrong to suggest that accused persons never demanded any dowry or money from him or his daughter. Witness denied all suggestions put to him.
PW3 Jagbir Singh (neighborer of complainant) deposed that he was residing in the neighbourhood of Sh. Mangal (Father of the complainant). His daughter got married in February 2008. At the time of marriage, he was present in the marriage ceremony and at the time of marriage Mangal had given to the groom party all the traditional gifts and dowry articles. After some days, he came to know that the relation between the daughter of Mangal and her husband were not good and there were disputes between them because of which she sometimes used to reside at the house of her father Mr. Mangal.
During crossexamination, PW3 deposed that he had not personally seen any of the dispute occurring between them. It was correct that police officials never met him.
PW4 Manoj Kumar (neighborer of the complainant) deposed that he was neighborer of Sh. Mangal Singh, father of the complainant. His daughter got married in February 2008. At the time of marriage, he was FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 11 of 25 present in the marriage ceremony and at the time of marriage Mangal had given to the groom side all the traditional gifts and dowry articles. After some days, he came to know that the relation between the daughter of Mangal and her husband were not good and there were disputes between them because of which she sometimes used to reside at the house of her father Mr. Mangal. In the year 2016, Mangal had produced the marriage card and six marriage photographs which were seized vide seizure memo already Ex. PW2/A and Ex. PW2/B. During crossexamination, PW4 deposed that he did not remember if his statement was recorded by the police. It was correct that he never met any police officials. He had not personally seen any of the dispute occurring between them.
PW5 SI Rajender Prasad (IO) deposed that in December, 2015 he was posted at PS OIA, PP OIE PhaseIII, Delhi. The investigation of the present case was marked to him by SHO concerned and he was the second IO of the present matter. On 28.02.2016 during the investigation, he visited the house of complainant, she handed over to him the marriage card and marriage photograph. The same were handed over to him by father of complainant. On that day, he also recorded the statement of parents of the complainant and two neighbourers u/s 161 CrPC. Thereafter, after completion of the investigation, chargesheet in the present matter was prepared and filed before the court. The seizure memo of the aforesaid documents was Ex.PW2/A and Ex.PW2/B. FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 12 of 25 During crossexamination, PW5 deposed that original bills pertaining to purchases of dowry articles were not handed over to him by the complainant. Complainant had not handed over to him any list of dowry articles. He had visited the house of the complainant 23 times prior to the aforesaid date but could meet the complainant and met her only on the aforesaid date. He had visited the house of complainant alone. The statement of the neighbourers u/s 161 CrPC was recorded while sitting at the house of complainant. At that time, the parents of the complainant were also present. Neighbourers of the complainant came on their own when he visited her house.
Statement of the accused persons was recorded u/s 294 Cr.PC and copy of FIR was Ex.A, Rukka was Ex.B and record pertaining to the CAW Cell was Ex.C.
5. Thereafter, prosecution evidence was closed and statement of accused persons was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused persons denied the allegations of prosecution as false and pleaded false implication.
6. Accused persons did not examine any witness in their defence and final arguments were heard.
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 13 of 25
7. It is argued by Ld. APP for the State that in the present matter, the guilt of the accused persons is proved beyond reasonable doubt as all the accused persons in the present matter have harassed and tortured the complainant on several occasions by demanding dowry. It has also been argued that the complainant was tortured after one week of her marriage, due to which she remained in her matrimonial house only for a period of three and half years and thereafter, she was forced to live in the parental home alongwith the minor child. It was further argued that there is complete corroboration in the testimony of all the witnesses and therefore, accused persons are liable to be convicted for the offences charged.
8. On the other hand, it has been argued on behalf of the accused persons that the present complaint has been filed by the complainant with the intention to falsely implicate the accused persons in the present matter. It has been argued that the complainant lived in the matrimonial home only for a period of three and half years and during the said duration, she was kept with love and affection, however, it was the complainant who left her matrimonial house as she did not adjust in the family of accused persons. Ld. Counsel for accused persons also argued that there is no corroboration in the testimony of the witnesses and there are several contradictions which are fatal to the story of the prosecution and do not inspire confidence and therefore, the accused persons are liable to be acquitted. It is also argued that the complainant has admitted in her complaint that complainant had settled the matter with the FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 14 of 25 accused persons in mediation centre on 05.04.2017 but later refused to abide by the mediation settlement for reasons best known to her and did not co operate with the accused persons in filing quashing petition only with the intention to harass them. It is argued that the accused persons are falsely implicated and there was no demand of dowry by the accused persons prior to marriage or after marriage. It is also argued that the present complaint has been filed only due to the reason that the relationship between the complainant and accused Mahipal became sour. It is also argued that there is no specific allegation against accused persons and the same have not been proved by the complainant by leading any cogent evidence. He has also argued that the testimony of complainant visavis her family members that is PW2 and PW3 being her father and other independent witness (neighbourers) are also contradictory in nature. He has also argued that despite the fact that the complainant has admitted that she was subjected to cruelty from the date of marriage and has only stated that she was thrown out of house on 12.08.2011, but she has not described any details of the incident of 12.08.2011 which could depict that she was subjected to cruelty on account of demand of dowry by the accused persons. It is also argued that the accused persons have been falsely implicated with the intention to extort money. It is also argued that remaining witnesses that is PW3 and PW4 are hearsay in nature and are not witnesses to any incident of cruelty or harassment allegedly given to the complainant by the accused persons and there are hearsay witnesses. It is also argued that the accused persons are liable to be FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 15 of 25 acquitted as no incriminating evidence has come on record against them and the complainant has failed to narrate any date, time or place where she had entrusted her stridhan articles to accused persons or the exact nature of threat extended upon her and the exact dates when she demanded her istridhan articles and was refused to be returned back by accused persons. There were no public witnesses examined by the prosecution and all the witnesses examined by the prosecution are interested witnesses. The averments made by the complainant and the other witnesses are contradictory to each other and do not inspire confidence.
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel and that the accused persons had raised manifold defences to these allegations including the apparent discrepancies in the version of different prosecution witnesses as also challenged the credibility of the complainant as a witness. Upon close scrutiny of the testimonies of the witnesses and the evidence on record, the court finds force in the arguments and defence of the accused persons and concludes that the prosecution have failed to prove its case against the accused persons beyond reasonable doubts for the following reasons: Observations qua offence u/s 498A/506/34 IPC :
10. The case of the prosecution finds its genesis in complaint Ex.PW1/B, which is complaint by the complainant (undated) filed before the CAW cell FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 16 of 25 on 19.08.2011 upon which the FIR was registered on 18.01.2012. It is also stated by the complainant that she was married to accused Mahipal on 10.02.2008 and was subsequently, made to leave the matrimonial house on 12.08.2011, and thereafter, she never went back to her matrimonial home. Complainant has leveled allegations against the accused of having harassed and tortured her and demanded dowry from her. Further that she had been threatened by accused persons to be killed.
11. Complainant has stated that she remained with the accused persons only till 12.08.2011 since on the aforesaid date, she was given beatings and thrown out of the matrimonial house as she did not fulfill the demands of accused persons to pay Rs.50,000/ to them. It is alleged that all the accused persons used to give her severe beatings in connivance with each other and when she refused to fulfill their demand, she was ill treated. They demanded Rs.50,000/ on the complainant by reaching her parental home on 15.08.2011 upon which she filed her complaint before CAW cell on 19.08.2011. It was further alleged by the complainant that she was not kept well soon after her marriage and was made to work like a servant. Thereafter, her husband alongwith his family members started ill treating her.
Lack of evidence to show expending of alleged money/ dowry
12. However, allegations of the demand of dowry by the complainant do not find any credibility as the complainant has nowhere stated that the FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 17 of 25 demands were made prior to or at the time of marriage and has failed to show the manner in which the aforesaid expenditure was arranged by the family of the complainant as no source of income was disclosed by the complainant and no income proof was annexed by the complainant with her complaint. Further, though PW2 being the father of complainant has stated in his examination in chief that the accused persons soon after marriage started demanding Rs.15,000/ from the complainant, but the same is not corroborated with the statement of the complainant. PW2 has stated that the complainant was thrown out from her matrimonial house on several occasions but again the same is nowhere stated by the complainant. Further, the complainant has stated that her father had given Rs.11,000/ on the birth of the child, PW2 has stated that he had given Rs.20,000/ on the birth of minor child which are again contradictory. Further PW2 has admitted that he never filed any complaint against the accused persons after any incident of cruelty upon her daughter and never even made a call at 100 number. He admitted that care after delivery of his daughter was done by the accused persons, which shows that the accused persons were taking care of the complainant and even celebrated upon the birth of the minor child. Further, the photographs of marriage and the marriage card placed on record do not substantiate her claim of the marriage being performed in a lavish manner upon the demands of the accused. PW1 conceded that at the time of her marriage her parents had given her the articles as per the list attached but she could not specify the exact expenditure of the marriage. None of the FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 18 of 25 witnesses examined by the prosecution could state with certainty the amount spent in marriage and infact the complainant has herself not stated the exact expenditure of her marriage. The father of the complainant has deposed during her crossexamination that a huge amount were spent in the marriage of her daughter but failed to testify the source of the same. The statement of all the three witnesses i.e. PW1, PW2 and PW3 are contradictory in nature as far as the expenditure of marriage or the expenditure of dowry articles was concerned. Further, no document of expenditure or income has been placed on record. These incomes as alleged by the witnesses itself raised doubt as to the exorbitant expending capacity of such witnesses in the marriage of the complainant. There is also no proof of handing over of any alleged cash amount to the accused by any of the prosecution witnesses and none of the witnesses have placed on record any document to show the manner and mode of payment of purchases or gifts given in the marriage by them.
Inconveniencing allegations of prosecution witnesses.
13. Further, it has been alleged that soon after her marriage the complainant was harassed by the accused persons. However, if we carefully perused the testimony of PW1, she has failed to substantiate her allegation as she has not stated any incident or date, month or time on which the accused Kishan Lal had caused harassment to her and have demanded dowry but the aforesaid allegation of the complainant is extremely vague. None of the prosecution witnesses would cite with precision as to the exact demand FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 19 of 25 alleged to have been raised or even the person who raised such demand. There is no amount alleged to have been demanded by the accused persons or the time when it was raised by the accused persons which itself casts a shadow on the story of prosecution. Further no date, time or year of any payment has been substantiated by the complainant. While PW1 alleges that on several occasions, she was given severe beatings but complainant conveniently abdicated from protesting or even raising alarm and did not inform any neighbour regarding the same. This conduct of the complainant in itself is irrational and unexpected from any prudent person in the given circumstances. Further, even the allegation that the accused used to give beatings to the complainant and kept her without food after the birth of the minor child are vague and ambiguous. The version of PW1 is unreliable and are contradictory to her complaint Ex. PW 1/A.
14. Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted. There is not even any assertion by PW1 that there was any injury caused by accused persons.
15. In the entire testimony of the prosecution witnesses, there is nothing on record in the form of medical report or an otherwise corroboration in the testimonies of either of prosecution witnesses to lend support to the allegations or to enable the court to draw a logical inference of such alleged FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 20 of 25 physical assault to be of a nature likely to have driven the complainant to commit suicide or caused grave injury or danger to her life limb or health.
16. Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : ".....Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
Explanation (b) to Section 498A provides that cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the Section...."
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 21 of 25
17. Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, wherein Hon'ble Bombay High Court observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands. Hon'ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section498A IPC.
Observation qua offence U/s 406 IPC
18. As regards allegations pertaining to criminal breach of trust committed by accused persons, it has been alleged in the list dowry articles, that the complainant also received stridhan from her parents. However, there is no specification of the exact articles gifted to her by her parents or any receipt or bill of the gold articles alleged to have been taken away by the accused or his family. Even the list of dowry articles allegedly in possession of the accused FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 22 of 25 persons have already been handed over to the complainant at the time of investigation.
19. This view is supported by the decision Pehlad Kumar & Ors. Vs. State of Haryana II (1992) DMC 259, wherein it was held that a sweeping statement was made by the complainant that her stridhan was entrusted to the family of the husband. Holding that there was no specific allegation of entrustment against some of the family members, the Punjab & Haryana High Court quashed the complaint and the consequential proceedings against the said family members and observed as under:
1. ".....From these we find that while there are specific allegations about the entrustment of certain articles to the husbandPehlad and mother inlaw, the allegations with regard to the entrustment to the other petitioners are general, vague and not specific. Though certain articles are enumerated, a sweeping statement has been made by the complainant that these articles have been entrusted to the other relations of her husband, namely fatherinlaw, her brother - inlaw and wife of one of the brothersinlaw. The complainant has not specifically mentioned as to which item of dowry was entrusted to which of these other petitioners. Therefore, on such vague and general allegations it cannot be stated that the complainant has made out a prima facie case against any of the other petitioners than her husband and motherinlaw under Section 406, IPC....."
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 23 of 25 Ms. Anu Gill Vs. State & Anr. 92 (2001) DLT 179, also lends support to the same view, wherein court observing that there was no allegation of entrustment in the complaint, quashed the FIR against the married sisterinlaw (nanad) of the complainant under section 498A and 406 IPC and opined: " .....To constitute the offence under Section 406 IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of stridhan were even entrusted to her. In the absence of the allegation of entrustment, question of misappropriation or conversion to her use does not arise. Thus the most vital ingredient to constitute the offence U/s 406 IPC is missing. In view of the above, no case U/s 406 ICP is spelt out against the petitioner...."
20. As such the allegations of criminal breach of trust u/s. 406 IPC are not proved against the accused Mahipal beyond reasonable doubt.
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 24 of 25
21. In view of the above discussion, it can be safely concluded that prosecution has failed to prove offence U/s 498A/406/506/34 IPC against accused persons beyond reasonable doubt.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
On 15.05.2019 Metropolitan Magistrate,
(Mahila Court02), SouthEast,
Saket, New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2019.05.15
14:27:41
+0530
FIR No.25/2012; PS OIA State Vs. Mahipal & Ors. 25 of 25