Delhi District Court
State vs Harish Kumar on 6 June, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-013812-2022
SC No. 1371/2022
FIR No. 160/2009
U/s. 406/34 IPC
P.S Krishna Nagar
In the matter of :
State
versus
Harish Kumar,
s/o Banarsi Dass,
R/o H.No. 3811, Gali No. 11,
Shanti Mohalla,
Gandhi Nagar, Delhi.
Date of Institution : 15.12.2022
Date of reserving Judgment : 25.05.2023
Date of pronouncement : 06.06.2023
Appearances
For the State : Shri Ajit Kumar Srivastava
Additional Public
Prosecutor.
For accused : Shri S.K.Ahluwalia,
Advocate.
JUDGMENT
1) Briefly stated the facts of the case are that a complaint case was filed by the complainant Sh. Amar Nath Sessions Case No. 1371/2022 Page 1/18 ASJ-04/East Distt/KKD Court alleging that his daughter Jyoti was married to accused Harish Kumar about five years ago at Delhi. Banarsi Dass and Urmila were parents-in-law of Jyoti and Rajni and Mamta Kapoor @ Daizy were married sisters-in-law of Jyoti and Ajay Kumar was brother-in-law of Jyoti. At the time of marriage the complainant had given dowry as per his capacity. At the time of her marriage, all the dowry articles and stridhan of Jyoti were entrusted with accused Banarsi Dass, Urmila, Harish Kumar, Mamta @ Dazy, Rajni and Ajay Kumar being her husband and his relatives. The complainant had given a colour TV, washing machine, furniture, gold ornaments, cash, valuable clothes and other articles of daily use. A list of articles was also filed alongwith the complaint, which also included details of 'Vari' articles.
2) It is stated that Jyoti was subjected to harassment and cruelty on account of dowry demands by the accused persons. Subsequently, she was found dead at her matrimonial house on 15.06.2005. FIR No. 251/2005 was registered at PS Krishna Nagar in this regard u/s 498A/304B/34 IPC. Charges were framed under the said sections against accused Banarsi Dass, Urmila, Harish Kumar, Mamta @ Daizy, Rajni and Ajay Kumar and charge u/s 302/34 IPC was also framed against accused Banarsi Dass, Urmila and Harish.
3) Jyoti was survived by her son Pratham, aged about four years at that time. Pratham was stated to be in the custody of the complainant. Pratham is the legal heir of Jyoti. Banarsi Dass, Urmila and Harish were arrested in the said case.
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4) The complainant demanded back dowry articles as well as stridhan of his deceased daughter Jyoti from accused Mamta @ Daizy, Rajni and Ajay Kumar, who were on bail, however, they refused to return the said dowry and stridhan articles and retained the same illegally. The complainant was informed by some neighbour of the accused persons that accused Mamta @ Daizy, Rajni and Ajay Kumar were gradually removing dowry and stridhan articles of Jyoti. A complaint was given to PS Krishna Nagar on 13.07.2005 for recovery and restoration of dowry articles and stridhan of Jyoti, however, no action was taken. Subsequently, in May and July 2006 Banarsi Dass and Urmila were granted bail. After their release on bail, the complainant contacted them for return of dowry articles but they avoided the same and later refused to return the dowry and stridhan articles. Accused Harish Kumar, who was in custody, was also requested by the complainant to return the dowry and stridhan articles but he avoided to do so. It is stated that the accused persons were illegally retaining the dowry and stridhan articles of Jyoti and have misappropriated them for their own benefit and hence, they were liable to be prosecuted u/s 406/34 IPC.
5) Subsequently, vide order dated 02.04.2009 ld. M.M. allowed the application of the complainant u/s 156(3) Cr.P.C. and directed SHO PS Krishna Nagar to lodge an FIR as per law. Accordingly, FIR No. 160/2009, u/s 406/34 IPC, was lodged in the present case at PS Krishna Nagar. Charge sheet was filed against accused Harish Kumar u/s 406/34 IPC.
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6) On 13.08.2015 after hearing the learned APP for the State and the counsel for the accused, charge was framed against accused Harish Kumar for commission of offence punishable under Section 406 IPC. Charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Prosecution Evidence :
7) Prosecution examined following witnesses.
i) PW1 retired HC Rajpal Singh - part of investigation.
On 22.04.2009 he alongwith IO/SI Bhagwat proceeded to the house of the complainant at South Anarkali at H.No. D-17, Gali No. 4, Delhi, where they met with the complainant Amar Nath. The complainant handed over three original photographs, photocopy of nine photographs, photocopy of weding card and list of stridhan articles to the IO, which IO seized vide seizure memo Ex. PW1/A.
ii) PW2 Jitender Arora, brother of the deceased Jyoti.
iii) PW3 SI Sandeep Kumar Sharma - part of investigation and arrest of accused Harish in the present case. Disclosure statement of accused Harish was recorded vide Ex. PW3/A. Accused was arrested vide arrest memo Ex. PW3/B.
iv) PW4 ASI Kailash Chand - IO of the case, who filed the charge-sheet.
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v) PW5 retired ASI Bhagwant Singh - IO of the case. He deposed that after registration of the FIR, the investigation was assigned to him. He recorded the statement of the complainant. The complainant handed over to him three marriage photographs (Ex. PW5/P1 to Ex. PW5/P-3), coloured photocopies of nine photographs (Ex. PW5/Mark-A1 to Ex. PW5/Mark-A9), photocopy of wedding card (Ex. PW5/Mark A-
10) and list of stridhan articles (Ex. P-1), which were seized by him vide seizure memo Ex. PW1/A. The PW5 also recorded the statement of Jitender and Smt. Indu Arora, relative of deceased.
vi) PW6 ASI Pramod Kumar - part of investigation. He alongwith SI Sandeep Kumar was involved in the arrest of accused Harish Kumar on 26.02.2010. He deposed that in pursuance to disclosure statement of accused Harish Kumar, they went to his house at H.No. 3811, Shanti Mohalla, to recover the stridhan articles but no stridhan articles could be recovered and the list of articles, which were not recovered was prepared by PW6 and the same is Ex. PW6/B.
vii) PW7 Retired SI Jaipal Singh - IO of the case, who was assigned investigation in the month of November, 2009. On 02.11.2009 he enquired from complainant Amar Nath and joined him in investigation. He alongwith complainant reached at the matrimonial house of deceased Jyoti.
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viii) PW8 ASI Rajender Prasad - MHC(M) of the case.
ix) PW9 is Surender Singh. 8) During trial complainant Amar Nath expired and as
such vide order dated 17.02.2016 his name was dropped from the list of witnesses. Ld. Counsel for the accused did not dispute the genuineness of FIR No. 160/2009 of PS Krishna Nagar recorded by PW ASI Tejpal Singh. Accordingly, same was exhibited as Ex. C1.
9) After conclusion of the prosecution evidence, the statement of accused u/s 313 Cr.P.C. were recorded wherein he denied all the incriminating evidence against him and stated that he is innocent and was falsely implicated in this case. He further stated that the complainant in connivance with the police seized some articles belonging to his parents and this fact came to his knowledge after his release from jail after more than five years. He stated that the complainant had only intention to humiliate them and even the articles seized by the police at his instance were never taken back by the complainant and they are rotting at the police station even now. He further stated that out of the wedlock, a son was born to them and he is the natural heir of the stridhan of his mother.
Testimony of public witnesses
10) The brother of deceased Sh. Jitender Arora was examined as PW-2 and he deposed that he was residing with his family at house no. D-17, gali no. 4, South Anarkali, Delhi-51 Sessions Case No. 1371/2022 Page 6/18 ASJ-04/East Distt/KKD Court and was doing the business of cosmetics. He further deposed that marriage of his sister namely Jyoti was got solemnized with accused Harish on 15.05.2002 at Ashirwad Banquet Hall, Jheel, Delhi as per Hindu Rites and Ceremonies and in her marriage, his father had given gold jewelery i.e. gold chain, gold ring and gold ornaments to her mother-in-law and sister-in-law, one colour TV, Washing Machine, Furniture and costly clothes. His father had spent Rs. 4,00,000/- in her marriage. He deposed that the list of dowry articles and Streedhan was prepared in his presence by his father. He further deposed that at the time of marriage, dowry articles were given and a list with respect to the same was prepared bearing signature of Urmila, mother-in-law as well as Banarasi Dass, father-in-law of his sister Jyoti. He deposed that he had searched for the original dowry list at his home however, the same could not be traced out. The list of articles was also given to the police officials during the investigation. He deposed that the all the dowry articles were taken by the in-laws of his sister to their home located at Shanti Mohalla. After the marriage of his sister, her in-laws namely Urmila, Banarasi Dass, Rajni and Ajay including her husband harassed her due to demand of dowry. He further deposed that due to non-fulfillment of dowry demand, her in-laws continuously harassed her and consequently on 15.06.2005, her in-laws had killed his sister Jyoti with respect to the same and a separate case was registered which is pending trial. He deposed that after the death of his sister and after around two months, they demanded back the dowry articles from in-laws of her sister Jyoti, however they did not return the same and misappropriated them. Thereafter his father made a complaint with respect to the same before the court. PW-2 Jitender Arora Sessions Case No. 1371/2022 Page 7/18 ASJ-04/East Distt/KKD Court identified the photographs of the case property Ex.PW2/P1 to P8 except the utensils.
11) PW-2 was cross-examined by ld. counsel for the accused. In cross-examination, PW-2 has deposed that at the time of marriage of his sister, he was 20-22 years old and at that time he was doing a job. He further deposed that his date of birth was 20.01.1980. He did not remember who had prepared/ written the list of dowry articles and whether it was hand written or typed. His sister died on 15.06.2005 and after two months of the death of his sister, his father had asked the accused and his parents to return the dowry articles. After two months of the death of his sister, the in-laws of his sister were in jail and after they got released from jail, his father had asked them to return the dowry articles. He had not accompanied his father when his father asked for the return of the dowry articles and he did not remember the exact date when the accused Harish and his parents got bail. He did not remember for how many years, accused Harish remained in jail. He denied the suggestion that in the murder case, which was against the accused Harish and his parents regarding death of his sister, his father had engaged a private counsel from the very first day. He deposed that he was a witness in that murder case i.e. FIR no. 251/05. He did not know whether any lawyer of his father had issued any legal notice for demand of dowry to the accused and his parents. He did not remember whether accused Harish was in jail at the time of the recovery of dowry articles. He did not have much knowledge about the present case as it was filed by his father. He did not know when the list of dowry articles i.e. Ex. P-1 was given to the police officials. He denied Sessions Case No. 1371/2022 Page 8/18 ASJ-04/East Distt/KKD Court that at the time of recovery of the dowry articles, which took place in the presence of accused Harish and his father, the house was searched and all the dowry articles were recovered. All the dowry articles were recovered. He deposed that they had not received dowry articles back. He identified signature of his father Amar Nath Arora on Ex. DA, however, he stated that he did not know whether his father had signed upon the said documents after the recovery of the dowry articles and when he had identified the dowry articles. He did not know whether he or his father had submitted the list of dowry articles in case FIR No. 251/05. He did not know whether his father had submitted the list of dowry articles alongwith the complaint which he had filed against the accused and his parents u/s 406 IPC. He did not remember when and where Mark P-1 i.e list of dowry articles was prepared and who had taken the signature of accused and his parents upon the said list. After going through Mark-P-1 he stated that it did not bear signature of his deceased sister Jyoti.
12) During cross-examination he further stated that he did not know when the signatures of accused Urmila and Banarsi Dass were obtained on the list of dowry articles and he cannot say if the said list was signed in his presence. He did not remember when he saw the list of dowry articles for the first time. He stated that the list of dowry articles was in Hindi language, which was shown to him by his father and at that time his sister Jyoti was alive. He did not remember whether accused Harish was on bail at the time when the articles were first demanded by his father. The recovered articles were not taken by them from the police station. He did not remember the date Sessions Case No. 1371/2022 Page 9/18 ASJ-04/East Distt/KKD Court when his testimony was recorded in case FIR No. 251/2005, PS Krishna Nagar. He had gone with his father to purchase the dowry articles like TV, washing machine, gold jewellery, furniture from Gandhi Nagar. He did not have the bills of said articles, however, his father must have taken them. He did not hand over any bills of the articles to the police. His father did not hand over the bills of the articles to the police in his presence. He stated that from the year 2005 till registration of the present case FIR, accused Harish was in JC and he was never contacted at JC to return the articles. He could not say if the recovery of the articles was effected by the police when accused Harish was in JC. He denied that no demand for return of dowry articles was made by him or his family members at any point of time. He did not know when accused Harish was released from JC, however, they made a demand for return of dowry articles from Harish after he was released from JC.
13) PW9 Surender Singh r/o H.No. 3780, Street No. 8, shanti Mohalla, Gandhi Nagar, deposed that he knew Banarsi Dass r/o Street No. 12, Shanti Mohalla, Gandhi Nagar, Delhi. One day he was returning from Gurudwara and some public persons had gathered in Street No. 12. He left from there. He did not know why those persons had gathered there. He did not ask them the reason as to why they were standing there. He did not remember anything else. He did not wish to say anything further.
14) He was cross-examined by Ld. Addl.P.P. for the State and he did not remember if the residence of Banarsi Dass Sessions Case No. 1371/2022 Page 10/18 ASJ-04/East Distt/KKD Court was in Street No. 11 or whether on 02.11.2009 he joined investigation in the present case. He volunteered that he did not remember due to his old age and lapse of time. He affirmed that some articles were handed over by Banarsi Dass from ground floor of his house i.e. H.No. 3811, Shanti Mohalla, Gandhi Nagar, and those articles were identified by Amar Nath in his presence. He also affirmed that the said dowry articles were seized vide seizure memo Ex. DA dated 23.04.2022. He had seen the articles mentioned in the seizure memo as they were taken from the house of Banarsi Dass but he could not identify them due to lapse of time and his old age.
15) In his cross-examination by ld. Counsel for the accused he deposed that he did not go inside the house of Banarsi Dass. He was returning from Gurudwara and public persons were gathered there. Police officials did not take out any articles out of the house of Banarsi Dass in his presence. He volunteered that the articles were lying outside the house. He did not know which articles were lying there. He could not tell if any person identified those articles in his presence. He remained present at the spot for about 5-10 minutes. Ex. DA was already written before he signed it and the IO did not read over the same to him before he signed it. He deposed that he knew only Punjabi language and could not read or write Hindi language.
16) Accused Harish has been charged for offence u/s 406 IPC. Section 405 of the IPC deals with the offence of criminal breach of trust, which is punishable u/s 406 IPC. Section 405 IPC provides as follows:-
Sessions Case No. 1371/2022 Page 11/18 ASJ-04/East Distt/KKD Court "405. Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
17) Accordingly, the essential ingredients of the offence of criminal breach of trust are as follows :
i) Accused must be entrusted with property or dominion over the same.
ii) He must have dishonestly misappropriated the property or converted the property to his own use or disposed it of in violation of any trust.
18) Accordingly, for the purposes of section 405 IPC it is required to be proved that if there was entrustment of property;
that the accused misappropriated the property or converted it to his own use while having dishonest intention.
19) In Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628, The Hon'ble Supreme Court held that when a spouse refuses to return stridhan to the wife, it constitutes criminal breach of trust.
20) In Rashmi Kumar v. Mahesh Kumar (1997) 2 SCC 397 it was observed by the Hon'ble Supreme Court that since stridhan is an exclusive property of the wife, on proof that she entrusted the property or dominion over it to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given Sessions Case No. 1371/2022 Page 12/18 ASJ-04/East Distt/KKD Court to the husband or other family member. The complainant or the prosecution is required to establish as to how and in what manner the entrustment of stridhan came to be made to the husband or any other member of the family.
21) In the present case, the complainant i.e. father of the deceased Jyoti could not be examined as he had expired and therefore he was dropped from the list of witnesses. His son Jitender was examined as PW2. PW2 Jitender is the brother of the deceased. In order to prove entrustment, the prosecution has relied upon photocopy of list of dowry articles Mark P-1. As regards the said list, PW2 has deposed that the list of dowry articles was prepared in his presence by his father. He tried to search for the original list at his home, but it was not traceable. All the dowry articles were taken by the in-laws of her sister to their home at Shanti Mohalla. In his cross-examination, in this regard he deposed that he did not remember, who had prepared / written the list of dowry articles. He did not remember whether it was hand written or typed. He did not know when the list of dowry articles was given to the police officials. He also stated that he did not remember when and where the list of dowry articles was prepared. He also did not remember as to when and who had taken the signatures of the accused and his parents upon the list of dowry articles. PW2 further deposed that the list of dowry articles Mark P-1 did not bear signature of his deceased sister Jyoti. PW2 denied the suggestion that Mark P-1 was the list of dowry articles given to the police officials by the complainant, who had handed over a copy of the document to the parents of accused Harish for their admission and denial. Sessions Case No. 1371/2022 Page 13/18 ASJ-04/East Distt/KKD Court
22) In this context PW2 was also confronted with his testimony dated 31.01.2011 in FIR No. 251/2005 PS Krishna Nagar, wherein he has stated that the dowry list was prepared and it was with his father. He had not seen the said list till that date.
23) Accordingly, the list of dowry articles Mark P-1 was disputed by the accused. Only a photocopy of the list of dowry articles has been placed on record. PW2 does not claim himself to be the author of the list and deposed in his cross-examination that the said list was not prepared in his presence. He also did not know as to when and where the said list was prepared. In these circumstances, the list of dowry articles Mark P-1 is not proved on record. Hence, entrustment, which is an essential ingredient of the offence of criminal breach of trust is not proved on record.
24) Additionally, even as per the complaint the complainant had demanded back dowry articles as well as stridhan of deceased Jyoti from Rajni, Mamta Kapoor and Ajay Kapoor as they were on bail in case bearing FIR No. 251/2005, PS Krishna Nagar, u/s 498A/304B/34 IPC. He also averred in the complaint that accused no. 4 to 6 were gradually removing dowry articles as well as stridhan of Jyoti. Complainant had also averred that Banarsi Dass and Urmila were granted bail in May and July 2006 and after their release on bail in May 2006 and July 2006, the complainant contacted them for return of dowry articles, however, they refused to return the stridhan to the complainant.
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25) As regards accused Harish, it is stated that he was in custody and he was requested to return dowry articles but he avoided to do so. The complainant could not be examined as a witness as he had expired and in this regard PW2 has deposed that after around two months of the death of his sister, they demanded dowry articles from her in-laws, however, her in-laws did not return the same and misappropriated the articles. PW2 identified the articles in the photographs Ex. PW2/P-1 to P-8. In his cross-examination he stated that his father had asked the in- laws of his sister after two months after the death of his sister, when they got released from the jail, to return the dowry articles. He had not accompanied his father when his father asked them for return of dowry articles.
26) It is urged by ld. Counsel for the accused Harish that the only demand allegedly made for return of dowry articles was made purportedly two months after the death of Jyoti when accused Mamta, Rajni and Ajay were granted bail. At that time accused Harish was in judicial custody.
27) From perusal of testimony of PW2 it is manifest that there is no averment regarding any demand made from accused Harish, who was in JC at that time. Accordingly, no demand for return of dowry articles has been proved to have been made from accused Harish in the present case.
28) As regards recovery of the stridhan articles, SI Jaipal PW7 has deposed that in November 2009 when the case was Sessions Case No. 1371/2022 Page 15/18 ASJ-04/East Distt/KKD Court assigned to him he became aware of the fact that FIR 251/2005 u/s 498A/304B/34 IPC was already registered at PS Krishna Nagar regarding death of Jyoti. Accused Harish was in JC in that case while his parents were on bail. On 02.11.2009 PW7 alongwith the complainant reached at the matrimonial house of deceased Jyoti where her father-in-law and mother-in-law were found present. Neighbours were called to join the proceedings. He made inquiries from father-in-law of Jyoti to apprise that Jyoti used to reside on the ground floor alongwith her husband and it was informed that her stridhan articles were lying on the ground floor and the articles lying in a room on ground floor were taken into police possession upon identification of the complainant and in presence of other independent witnesses. The seizure memo of the articles is Ex. DA. The seized articles are Ex. P-1 (colly) and their photographs are Ex. PW2/P-1 to P-8. One day PC remand of accused Harish was also taken to recover the remaining stridhan articles, however, nothing could be recovered at the instance of accused Harish.
29) In his cross-examination PW6 deposed that on the date of recovery of the articles he was aware that accused Harish was in judicial custody and no application was moved for production of accused Harish on the date when the articles were recovered. The articles were seized at the instance of parents of accused Harish and on identification by the complainant. He deposed that the complainant had not moved any application for release of articles on superdari till the investigation remained with him. The said articles were also produced before the court at the time of recording of testimony of PW7 SI Jaipal Singh. Sessions Case No. 1371/2022 Page 16/18 ASJ-04/East Distt/KKD Court The seizure memo of the recovered articles is Ex. DA. The said list was also witnessed by PW9 Surender Singh who deposed that some articles were handed over by Banarasi Dass from ground floor of the house, which were identified by Amar Nath i.e. the complainant in his presence. He could not identify the articles due to lapse of time and old age. He stated that Ex.DA was already written before he signed it and it was not read over to him by the IO. He deposed that he knew only Punjabi language and could not read or write Hindi language.
30) PW2 identified the signature of his father on Ex. DA. He deposed that he did not know whether his father had signed at Ex. DA after recovery of the dowry articles.
31) Be that as it may, it may be noted that the original list of dowry articles Mark-P1 is not proved on record. The entrustment of dowry articles to accused Harish is also not proved on record. The prosecution has also failed to prove a demand of dowry articles from accused Harish or any refusal on his part to hand over the dowry articles. Since the list of dowry articles as well as entrustment, demand and refusal by accused Harish is not proved on record, the recovery of certain articles from the house of accused does not lead to the conclusion that accused Harish has committed the offence of criminal breach of trust.
32) In these circumstances, accused Harish is acquitted of the charged offence punishable u/s 406 IPC. His bail bond Sessions Case No. 1371/2022 Page 17/18 ASJ-04/East Distt/KKD Court stand cancelled and surety stand discharged. After compliance of section 437-A Cr.P.C. file be consigned to record room.
order DEEPALI Digitally signed by DEEPALI SHARMA SHARMA Date: 2023.06.07 17:32:09 +0530 (Pronounced in the open Court (Deepali Sharma) on 06.06.2023) Additional Sessions Judge-04, East District, Court No. 10, Karkardooma Courts, Delhi.
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