Delhi District Court
State vs Devender Kumar Page 1 Of 9 on 10 May, 2011
FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 607/94 PS: Patel Nagar U/s 498A/406/494/34 IPC Unique ID No.: 02401R0620142010 J U D G M E N T:
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(a) S.No. of the case : 263/2/94
(b) Name of complainant : Urmila
(c) Date of commission of offence : On or about 08.09.1994
(d) Name of the accused : (1) Devender Kumar (2) Tilak Raj S/o Lakshmi Narain Gupta.
(3) Smt. Devki Rani W/o Lakshmi Narain Gupta (since expired).
(4) Ganga Prasad s/o Devi Sahai R/o H.No. 711, Military Road, Anand Parbat, Delhi (since expired).
(e) Offence complained of : U/s 498A/406/494/34 IPC (f) Plea of accused : Pleaded not guilty (g) Final arguments heard on : 25.04.2011 h) Final Order : Acquittal of Devender Kumar Conviction of Tilak Raj U/s 494/498 A IPC (i) Date of such order : 10.05.2011 State V/s Devender Kumar Page 1 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011
______________________________________________________________ BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The case of the prosecution is that the accused Tilak Raj was married to Smt. Urmila Goel and during the course of marriage, the accused was entrusted with istridhan as detailed in list mark A which he failed to return on demand and mis appropriated the same and thereby committed an offence punishable u/s 406 IPC.
2. Further, the accused being the husband of the complainant alongwith Devki Rani (mother in law), Devinder (brother in law) and Ganga Prasad (father in law) subjected her to cruelty and harassed her for bringing less dowry and also gave beatings and thus caused torture to her and committed an offence punishable u/s 498 A IPC.
3. Further, all the accused persons also gave beatings to the complainant and committed offence punishable u/s 323 read with section 34 IPC.
4. On the basis of evidence on record, additional charge was also framed against accused Tilak Raj on 28.05.2007 u/s 494 IPC for entering into second marriage with Kamlesh during the life time of complainant Urmila Goel.
5. In support of its case, prosecution has examined PW1 who is complainant, PW2 is father and PW3 is the mother of the complainant. PW 4 State V/s Devender Kumar Page 2 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 is Duty Officer, PW5 is Investigating Officer. PW6 is the Sub Registrar from NDMC who has proved the record pertaining to the birth of male child of accused Tilak Raj. PW7 is Raj Raheja who is working in General Hospital as Nursing Sister. She has proved record of birth of female child of accused Tilar Raj.
6. Heard, both the parties and gone through the record.
7. It is the contention of defence counsel that since PW2 and PW3 are related to complainant being her mother and father, hence their testimony is not reliable. However, I do not agree. In matrimonial cases, usually, it is the complainant herself who suffers the cruelty alone in matrimonial home. It is only her close relatives who can depose about her condition being first hand accountees. There cannot be independent witnesses in such cases. It was observed by Hon'ble Punjab and Haryana High court in case reported as 2008(2) RCR (Criminal) 157 titled Gulshan Vs. state of Haryana that non examination of independent witnesses is not a ground to reject the version of eye witnesses. It is almost impossible to find independent witnesses, who may come forwards and give evidence.
8. It was also observed in State of UP Vs. Atul Singh etc AIR 2009 SC 2713 "Merely because the eye witnesses are family members their evidence cannot per se be disbelived. When there is an allegation of interestedness, the State V/s Devender Kumar Page 3 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person."
9. As far as offence u/s 494 IPC is concerned, it is consistent averment of the complainant that her husband has solemnized second marriage. Further, she was made to reside with his second wife as well as her children at T 235, Baljeet Nagar House. Further, during her cross examination nothing came on record to suggest that she has deposed falsely. Her statement is corroborated by statement of her father and mother who have deposed that Tilak Raj has taken the second wife. Further PW6 is Sub Registrar from NDMC who proved the record of the birth of the male child of accused Tilak Raj. As per record which is Ex. PW6/A, name of father of child is Tilak Raj and mother is Kamlesh. Further, he has also proved the record of birth of the second child who was born on 16.12.88 wherein name of father is mentioned as Tilak Raj and mother as Kamles. He has filed on record copies of birth certificate which is Ex PW6/B and PW6/C.
10. PW7 has proved on record from General Hospital, Palwal, with regard State V/s Devender Kumar Page 4 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 to birth of a female child on 19.05.91, the name of father therein is Tilak Raj and mother is Kamlesh, copy of the same is Ex. PW7/A. It was argued by the Ld. Defence counsel that no case u/s 494 IPC is made out against accused Tilak Raj as there is no eye witness who has deposed about solemnization of marriage of accused Tilak Raj with Kamlesh. It is further argued the even essential seremonies of Hindu Marriage in respect of alleged marriage of accused Tilak Raj with Kamlesh have not been proved in accordance with law.
I have considered the submission of Ld. Defence counsel in the light of documents proved on record with the regard to birth of children out of wedlock of accused Tilar Raj with Kamlesh. The testimony of complainant, PW6 and PW7 clearly establish that accused Tilak Raj had undertaken second marriage with Kamlesh and has to begotton children out of the said marriage. Even he forced the complainant to live with his second wife and his children from the second marriage. The marriage between accused Tilak Raj and Kamlesh might have been solemnized in secrecy but the out come thereof has clearly been proved by the complainant on record. From the documents on record, alongwith the version of the complainant and her father and mother, it stands proved that accused has taken the second wife. There are three children from his second wife Kamlesh. Hence, offence u/s 494 IPC stands proved against accused Tilak Raj.
11. Now coming to offence punishable under Section 498A, it was observed in case Onkar Nath Mishra Vs. State in 2008 (1) RCR (Crl.) 33 State V/s Devender Kumar Page 5 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 6:2007(6) RAJ 656 of Supreme Court of India that the terms "cruelty", which has been made punishable u/s 498A IPC has been defined in the Explanation appended to the said section, to mean "(i) any wilful conduct which is of such a nature 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 (ii) 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. Therefore, the consequences of "cruelty", which are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of the woman or the harassment of a woman, where such harassment is with a view to coercing her any person related to her to meet any unlawful demand are required to be established in order to bring home an offence u/s 498 A IPC.
12. Further, in M.R.G.L.J.Vailshery Vs. Ramola Vailshery in 1998 (3) RCR (Civil) 99: 1998(3) RCR (Criminal) 310 that cruelty through not defined in the Act, means conduct of such type under the petitioner cannot reasonably be expected to live with the respondent. It consists of acts which are dangerous to life, limb or health. It can cause injury to person or to health. It can cause injury to person or to health. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and State V/s Devender Kumar Page 6 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 manifest such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily suffering or to have injured, or to have cause reasonable apprehension of bodily suffering or to have injured. Cruelty may be physical, mental or legal. In matrimonial laws it may of infinite variety. It can be subtle or brutal. It may be by words, gestures or by mere silence, violence or non violence. It is understood as a behavior by which plain is caused to another. Wilful and unjustifiable interference by one spouse in sphere of life of another may, in special circumstances, amount to cruelty for the purpose of determination of a matrimonial dispute".
13. Need less to mention that taking a second wife during the subsistence of first marriage is the gravest form of mental cruelty to the complainant. It is specifically mentioned by complainant that she was made to reside with the second wife and children in Baljeet Nagar Home. Further, her assertion pertaining to the fact that her husband has taken second wife are unchallenged in the cross examination, she stood the test of cross examination as well. Taking a second wife is itself a mental cruelty to the petitioner covered u/s 498 A IPC and accused husband Tilak Raj is accordingly convicted u/s 498 A IPC.
14. Further, complainant has deposed the incident that when her father in law hit her daughter Suchitra on her breast, she came out and shouted and all the neighbours gathered, she called the police. Her Jethani Nirmala and State V/s Devender Kumar Page 7 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 second wife of accused Tilak Raj namely Kamlesh had beaten her. They threw spices in her eyes. The said assertion supported by the version of her mother Indira Wati and is unchallenged in cross examination of complainant and thus stands proved which is also mental cruelty to complainant u/s 498 A IPC.
15. As far as assertion of complainant that she was burnt while she was in matrimonial home is concerned, she has not produced any MLC on record. Further, it is admitted by her that when she was burnt she stated in the hospital that she was burnt due to bursting of stove. Hence, this assertion does not stand proved. No other beating also proved, no case u/s 323 IPC is made out and both acquitted u/s 323 IPC.
16. As far as incident pertaining to the beatings of the complainant is concerned, no MLCs in this regard are on record. Though one MLC of September 1994 has been marked A but the original thereof has not been proved, hence it does not stand proved. Hence, no offence u/s 323 IPC is proved against accused Tilak Raj and Devender Kumar and both are accordingly acquitted for offence punishable u/s 323 IPC.
17. As far as offence u/s 406 IPC is concerned, it is the assertion of the complainant that her 6 Kangan, 4 ear rings, three rings, one mangal sutra, 3 nose pins, 1 tika and 5 sets were mis appropriated by her husband and he did not return the same but complainant has not filed any document on record State V/s Devender Kumar Page 8 of 9 FIR No. 607/94 PS Patel Nagar: U/s 498A/406/494/34 IPC DOD: 10.05.2011 regarding the fact that there articles were in the custody of her husband. She has not filed any purchase receipts in support of the aforesaid articles having been purchased by her. Further, there are no photographs on record in order to show that these articles were given in the marriage. Hence, benefit of absence of any evidence would go to accused and both the accused are accordingly acquitted for the offence punishable u/s 406 IPC.
18. In view of the above, accused Devender Kumar stands acquitted of all the charges and accused Tilak Raj stands convicted for the offence punishable u/s 494/498A IPC and acquitted for the offence u/s 406/323 IPC.
Announced in the open court (Vinod Yadav)
on 10.05.2011 Chief Metropolitan Magistrate:
Delhi
State V/s Devender Kumar Page 9 of 9