Delhi District Court
State vs . Sheetal Prasad & Ors. on 3 August, 2012
1 IN THE COURT OF MS SHIVALI SHARMA: METROPOLITAN MAGISTRATE/MAHILA COURTS, WEST DISTRICT, DELHI FIR NO: 130/01 P. S.Nangloi U/S 406/498A IPC ID No. 02401R0361882002 03.08.2012 STATE VS. SHEETAL PRASAD & ORS. Date of institution : 07.06.2002 Date of Commission of offence : 13.04.2000 Name of the Complainant : Smt. Lat Rani d/o Sh. Kali Charan Name, parentage & address 1. : Shetal Prasad, of accused S/o Sh. Chander Bhan, R/o RZD138, Nihar Vihar P.S. Nangloi, Delhi.. 2. : Kiran, w/o Sh. Sheetal Prasad, R/o RZD138, Nihar Vihar P.S. Nangloi, Delhi. Offence Complaint of : U/s 406/498A IPC Plea of the accused : Pleaded not guilty FIR No. State Vs. Sheetal Prasad and another 1/23 2 Final Order : u/s 498A IPC acquitted u/s 406 IPC convicted Date for reserve of order : 19.07.2012 Date of announcing of order : 03.08.2012 BRIEF FACTS AND PRE TRIAL PROCEDURE
1. The present FIR has been registered on the basis of type written complaint made by the complainant Lata Rani which has been proved as Ex. PW1/C. The allegations as made in the complaint are that the complainant was married with Sh. Arun Kumar (since deceased) on 23.4.2000 at Delhi. Sufficient dowry articles were given by her parents in the marriage as per list Ex. PW1/A (1). Various clothes and ornaments were also given by in laws of the complainant to her as per list Ex. PW1/A(2).
2. Immediately from the day of the marriage her in laws started making demand for dowry and extending mental and physical tension and torture to her. On the occasion of Raksha Bandhan, when brother of the complainant reached her matrimonial home, her in laws returned back the packet of sweets brought by him. The accused pesons also abused him and did not permit to perform the FIR No. State Vs. Sheetal Prasad and another 2/23 3 festival by saying that other in the family relations and neighbourhood have brought sweets and dry fruits while the brother of the complainant had brought a packet of sweets only as he belongs to a family of Kanglas.
3. On 11.09.2000, husband of the complainant expired. Due to cruel and inhuman behaviour of the accused persons and sudden death of her husband, the complainant got mental shock and had to be admitted in Sparsh Hospital, Peeragarhi on 12.09.2000. She was discharged on 13.9.2000 and since then she had been undergoing treatment at G.B. Pant Hospital with the help and support of her parents.
4. The accused persons have kicked the complainant out of her matrimonial home in three clothes on 12.09.2000 and had misappropriated her istridhan. The parents of the complainant tried their level best to settle the matter but all in vain. The accused persons have refused to return back her dowry and istridhan articles and had misappropriated the same. Hence, the present complaint.
5. On the basis of the complaint, present FIR was registered against two accused persons namely accused Sheetal Prasad being the FIR No. State Vs. Sheetal Prasad and another 3/23 4 father in law of the complainant and accused Kiran being the mother in law of the complainant u/s 498A/406 IPC.
CHARGE
6. After completion of the investigation and recording the statement of the witnesses charge sheet was filed against 2 accused persons. After completion of necessary formalities, charge was framed against both the accused persons u/s 498A/406 IPC on 10.09.2003 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
7. Prosecution has examined seven witnesses in all to bring home the guilt against the accused persons. Their testimonies are touched upon in brief in order to have a better understanding of the case.
8. PW1 HC Sushila is a formal witness being the Duty Officer. She has proved the copy of FIR which is Ex. PW1/A.
9. PW5 WSI Manju being the first I.O of the case. She stated that the investigation of the case was marked to her on 19.2.2001. She recorded the statements of various witnesses u/s 161 Cr.P.C, seized the wedding card, wedding photographs and receipts with respect to istridhan and jewellery articles of the complainant vide seizure memo Ex. PW1/B. FIR No. State Vs. Sheetal Prasad and another 4/23 5
10.PW6 is the second I.O of the case SI Bal Kishan who stated that the investigation of the case was marked to him on 30.4.2001. As per the directions of the Hon'ble High Court of Delhi the dowry articles were seized on 2.5.2001 vide seizure memo Ex. PW1/B. On 16.5.2001 anticipatory bail was granted to accused persons by Hon'ble High Court of Delhi and on 29.6.2001 the accused were formally arrested vide arrest memo Ex. PW6/B and C respectively and were released on bail. Statements of witnesses u/s 161 Cr.P.C were recorded. On completion of investigation, challan was filed in the Court.
11. In his cross examination, PW6 stated that the dowry dowry articles were seized on identification of the complainant. At the time of handing over the dowry artcles the accused persons had not quarrelled with the complainant and all the proceedings went on peacefully.
12. PW4 Sh. Vijay Kumar is an independent witness of recovery who deposed about the recovery and seizure of the dowry articles from the house of the accused persons (who were his neighbours) vide seizure memo Ex. PW1/B in his presence.
13.Inadvertently two witnesses have been examined as PW4 namely FIR No. State Vs. Sheetal Prasad and another 5/23 6 Sh. Vijay Kumar as well as Sh. Kali Charan being the father of the complainant.
14. There are three important witnesses of the prosecution case that are the complainant who has been examined as PW2, her brother Ajay who has been examined as PW3 and her father Kali Charan who has been examined as PW4.
15.PW2 is the complainant Lata Rani who deposed about her marrriage with the son of the accused persons namely Arun Kumar on 23.4.2000. She further stated that sufficient dowry articles were given in her marriage. List of dowry articles has been proved as Ex. PW1/A. After her marriage, she went to her matrimonial home at D Block, Nihal Vihar and resided with the accused persons and her other in laws. The dowry articles as per list Ex. PW1/A were also taken to her matrimonial home. After marriage all her in laws except her husband used to taunt her over the quality of the dowry articles and stated that plot was not given at the time of the marriage. They also taunted her about the inferior quality of goods in her marriage. The accused persons also gave her beatings.
16.On 11.9.2000 her husband expired. Immediately after the death of her husband, her inlaws turned her out of her matrimonial home FIR No. State Vs. Sheetal Prasad and another 6/23 7 saying that she was unlucky. Due to shock she also got sick and had to be admitted in Pant Hospital by her parents. Since then she is residing with her parents. She had left the matrimonial home empty handed and all her dowry articles remained at her matrimonial home. Some of dowry articles were also recovered vide memo Ex. PW1/B. After being turned out of her matrimonial home she had even demanded return of the dowry articles from the accused person. However, they refused to return the same. Hence a complaint Ex. PW1/C was filed before CAW Cell. Various articles have not been returned by the accused persons till date. Her marriage card and photographs were given to the police vide memo Ex. PW1/D. The recovered dowry articles were taken by her on superdari. The were proved as Ex. P1.
17. In her cross examination, the complainant admitted that she had filed the present complaint after death of her husband and no complaint was filed before any authority before his death. She also stated that her husband had expired in her presence. However, she was not aware about the exact reason of his death. She also admitted that her complaint Ex. PW1/C was also drafted by her counsel as per the facts disclosed by her. She stated that her father FIR No. State Vs. Sheetal Prasad and another 7/23 8 had spent about Rs 4 to 4.5 lacs in her marriage.
18.She could not tell the dates when the accused persons had taunted her or the dates when she informed her parents about their taunting and cruelties. She was also confronted with her statement u/s 161 Cr.P.C where she had not stated about the taunting by the accused persons regarding not giving of a plot in marriage.
19.PW3 is Ajay who is brother of the complainant and desposed about the marriage of his sister with Arun Kumar (since deceased). He also stated that the accused persons used to harass and torture his sister for bringing insufficient dowry. After 34 months the marriage of his sister, he had visited the house of the accused persons on the festival of Raksha Bandhan when the accused persons had taunted him to such an extent that he had to return back without getting the Rakhi tied from his sister. His brother in law expired on 11.09.2000. Accused persons expelled his sister out of her matrimonial home after beating her on the next date of death of her husband in her wearing clothes. They got the complainant treated at Sparsh Hospital and later on at G.B Pant Hospital. Some of the dowry articles were returned to the complainant onthe direction of Hon'ble High Court. On 19.3.2001 FIR No. State Vs. Sheetal Prasad and another 8/23 9 the complainant handed over the marriage photographs and marriage card to the I.O in his presence vide seizure memo Ex. PW1/D. Marriage photographs is Ex.PA and marriage card as P B. On 2.5.2001 some of the dowry articles were produced by the accused pesons which were seized vide memo Ex. PW1/B. All other dowry articles are still lying with the accused persons which they have not returned despite repeated demands.
20.In his cross examination, he stated that at the time of marriage of the complainant they were a family of nine persons out of which three (including him) were earning. He was earning about Rs 3,000/ per month by giving coaching.
21. PW4 Kalicharan is the father of the complainant who again deposed about the marriage of his daughter with Arun Kumar (since deceased) and the dowry articles given in the marriage. Accused persons were not happy with the dowry given and harassed his daughter both mentally as well as physically for bringing insufficient dowry. They also demanded a plot from his daughter. Afer the death of his son in law on 11.09.2000, her daughter was thrown out of her matrimonial home in her wearing clothes. He got her treated initially in Sparsh Hospital and later on FIR No. State Vs. Sheetal Prasad and another 9/23 10 at G.B. Pant Hospital. Photocopies of the treatment papers are Mark as X1 to X3. Both the accused persons kept all the dowry articles and jewellery articles of his daughter and refuesed to return the same on demand. On 2.5.2001 certain dowry articles were returned by the accused persons and seized vide the memo Ex. PW1/B.
22.In his cross examination, he staed that at the time of marriage he was a teacher in Government School and earning Rs 12,000/ pm. Out of which he was saving about Rs 56,000/ pm. He denied the suggestions that his son in law had died due to harassment given by him or that his daughter had left her matrimonial home on her own. He again stated that all the jewellery articles given in the marriage of his daughter both by him as well as the accused persons had been snatched by the accused pesons and not returned to his daughter.
STATEMENT OF ACCUSED
23.Statements of accused persons u/s 313 Cr.P.C were recorded wherein they have denied entire allegations made against them and stated that the complainant had herself left her matrimonial home after the death of their son. Thereafter she never returned back and FIR No. State Vs. Sheetal Prasad and another 10/23 11 rather falsely implicated them in the present case. She did not take any of her dowry and istridhan articles along with her except the jewellery which she was wearing at the time of leaving her matrimonial home. The accused pesons even tried to contact her and return her dowry articles but she refused and falsely implicated them in the present case. The dowry articles were returned only with the intervention of Hon'ble High Court of Delhi. After the death of their son they had even tried to get her remarriage conducted to secure her better future. However, she refused. They did not lead any defence evidence.
24.Final arguments have been heard and record has been meticulously perused.
APPRECIATION OF EVIDENCE AND LAW
25. During the course of arguments, it is submitted by Ld. APP for the State that the offences under Section 498A/406 IPC as charged against both the accused persons have been duly proved by the prosecution witnesses beyond reasonable doubt. The complainant has duly proved her complaint as Ex. PW1/C and there is no material contradictions in her original complaint and her examination in chief. She has specifically stated that the accused FIR No. State Vs. Sheetal Prasad and another 11/23 12 persons had taunted her for bringing insufficient dowry and also told her that a plot was not given in the marriage. The deposition of the complainant (PW2) is specific and clear and is also duly coroborated by deposition of her brother (PW3) and her father (PW4). Thus, the offence u/s. 498A IPC stands proved beyond reasonable doubt.
26.As regards the offence u/s. 406 IPC, it is argued by Ld. APP for State that there is clear deposition of complainant (PW2) that all her dowry articles and Istridhan are lying with accused persons and when she had demanded the return of the same, the accused persons refused to return them. Only few of the dowry articles could be recovered from the accused persons. The factum of recovery of dowry articles from the possession of the accused persons is also duly proved by the prosecution witnesses. Seizure memo has been proved as Ex. PW1/B. The factum that the dowry articles have been recovered from the possession of the accused is in itself sufficient to prove that the accused persons were entrusted with the dowry articles. Even the accused persons have themself stated in their statement u/s 313 Cr.P.C that when the complainant had left the matrimonial home, she had not taken her dowry or FIR No. State Vs. Sheetal Prasad and another 12/23 13 istridhan articles. Thus the ingredients of offence u/s. 406 IPC have also been duly proved beyond reasonable doubt.
27. Percontra, it is argued by Ld. Defence Counsel that the entire allegations made in the original complaint Ex. PW1/C as well as the deposition of PW1 (complainant) are completely vague and omnibus. There are no specific dates of any of the incident as alleged by the complainant. There are only vague allegations made by the complainant regarding tauntings given to her on account of bringing insufficient dowry articles. Interestingly, the complainant has not filed any complaint prior to the death of her husband. She preferred to file the present complaint only after the death of her husband merely to harass the accused persons.
28.As regards offence u/s 406 IPC, the accused persons have categorically in their statements recorded u/s 313 Cr.P.C. that after the complainant had left her matrimonial home they had tried to return back her dowry articles to her before various forums. However, she refused to receive the same with mala fide intentions. The dowry articles could be returned to her only with the intervention of Hon'ble High Court of Delhi. It is also submitted that even the I.O SI Bal Kishan who had been examined as PW6 FIR No. State Vs. Sheetal Prasad and another 13/23 14 has categorically stated that there was no quarrel from the side of the accused persons at the time of handing over of the dowry articles. Thus, the intention of the accused persons are very clear from very beginning and they had never tried to misappropriate the dowry articles of the complainant.
29.Hence, it is prayed that the accused persons should be acquitted giving thems the benefit of doubt.
30.Submissions heard. Record perused.
31. The first offence for which the accused persons have been charged is u/s 498A IPC. Section 498A IPC provides as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purpose of this section, "cruelty means
(a) any wilful conduct which is of such a nature as 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;
FIR No. State Vs. Sheetal Prasad and another 14/23 15 or
(b) 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."
32.Section 498A IPC has been interpretted and its scope has been elaborated and discussed in detail by our own High Court in case titled as SANJEEV KR. AGGARWAL VS. STATE cited as 2008 (2) AD (Delhi) 586. The crux of the interpretation is as discussed below.
33.From a bare perusal of Sec. 498A as enshrined in IPC, it can be said that for attracting Explanation (a) of Sec. 498A, the cruelty has to be of such gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health.
34.Explanation
(b) to Sec. 498A IPC is attracted only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands for dowry in the nature of property or valuable security or because such demands have FIR No. State Vs. Sheetal Prasad and another 15/23 16 not been met. Thus, harassment in order to constitute cruelty under Explanation (b) must have nexus with the demand of dowry and if this is missing, the case will fall beyond the scope of Sec. 498A IPC.
35.In the instant case the complainant has no where alleged or deposed about any kind of demand having been raised by any of the accused persons from her. There is no deposition to the effect that she was ever harassed by the accused pesons on account of nonfulfillment of any demand raised from her. The only grievance of the complainant against the accused persons which has come on record from her deposition appears to be the taunts given to her by the accused person on account of bringing insufficient and low quality dowry articles. It is a settled law that for conviction u/s 498A IPC, taunting for not bringing sufficient dowry is to be distinguished from demand of dowry and should not be confused with.
36.It has been held by the Apex Court in State of HP Vs. Nikku Ram cited as AIR 1996 SC 67 that though taunting for bringing insufficient dowry is also an uncivilized act but it does not come within the purview of section 498A IPC sufficient to constitute the FIR No. State Vs. Sheetal Prasad and another 16/23 17 offence i.e cruelty to the complainant with respect to non fulfillment of demands of dowry.
37. Relying upon the decision of the Apex Court in case of Nikku Ram (cited supra), I am of the opinion that the allegations which have been proved against the accused person are not sufficient for conviction u/s 498A IPC. The accused persons are thus, entited to acquittal for offence u/s 498A IPC.
38.The second offence for which the accused persons have been charged is u/s 406 IPC. Section 406 IPC provides as under:
39.For punishment for Criminal Breach of Trust (hereinafter referred to as "CBT") U/s 406 IPC, offence of CBT as defined u/s 405 IPC is to be proved.
Section 405 IPC reads as under:
"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 contact, express or FIR No. State Vs. Sheetal Prasad and another 17/23 18 implied, which he has made touching the discharge of such trust, or wilfuly suffers any other person so to do, commits "criminal breach of trust".
40.Considering the definition as mentioned above, the basic requirements to bring home the accusation u/s 405 IPC is to prove cojointly.
(1) entrustment with property or with any dominion over property,and (2) whether the accused was actuated by dishonest intention in misappropriating it or converting it to his own use to the detriment of the person who entrusted it.
41. In the instant case the complainant has duly proved on record that various dowry and istridhan articles as per list Ex. PW1/A (1) and (2) were given in her marriage. Her deposition to this effect is also corroborated by the deposition of her brother (PW3) and that of her father (PW4). The accused persons have not controverted the deposition of the prosecution witnesses to this effect. Not even a single suggestion has been given in the cross examination of any of the prosecution witnesses regarding nongiving of dowry articles to the complainant in her marriage.
42.It is an admitted case of the accused pesons that after the death of FIR No. State Vs. Sheetal Prasad and another 18/23 19 her husband on 11.09.2000, the complainant had left her matrimonial home on 12.09.2000. It is also their admitted case (as stated by them in their statement u/s 313 Cr.P.C) that the complainant had not taken her dowry or istridhan articles along with her at that time (except for her wearing clothes and jewellery).
43.Now the first question which arries for consideration before the Court is whether dowry and istridhan articles given in the marriage can be said to have been entrusted to the accused pesons in the facts and circumstances of the present case.
44.In Surinder Kumar Yadav & others Vs. State cited as 84 (2000) DLT 282, it has been held by Hon'ble High Court of Delhi as under :
It is common knowledge that when a bride leaves her parental home for matrimonial home Stridhan presented to her by the parents and others for all practical purposes is placed under the charge and dominion of her husband and/or his family members. Normally at that stage she being a new bride placed in an unfamiliar environment and bound by the traditional moorings of the society, cannot take care of her Stridhan especially when she is required to be shy FIR No. State Vs. Sheetal Prasad and another 19/23 20 and bashful and to keep her head covered and more often than not, to conceal her face by covering the same. In such a situation how can she look after her Stridhan or even enquire about it. It is actually her inlaws who exercise control and dominion over the same during the transit and at the matrimonial home till the same, if at all, is made over to her. This dominion over the property amounts to its virtual entrustment to them under Section 406 IPC.
45.In the present case, admittedly the husband of the complainant had died prior to her leaving her matrimonial home. Admittedly, she had not taken her dowry and istridhan articles along with her at the time of leaving her matrimonial home on 12.09.2000. Since the dowry articles were left behind at the matrimonial home they can be safely held to be under the control and dominion of the accused persons who were the eldest members of her inlaws family being her parents in law. Thus, the entrustment of the dowry articles to the accused persons has been duly proved on record without reasonable doubt.
46.The second question that arises for consideration is whether the dowry articles of the complainant were misappropriated by the FIR No. State Vs. Sheetal Prasad and another 20/23 21 accused persons or not returned to her on her demand. The complainant (PW2) had categorically stated on oath that she had demanded her dowry articles back from the accused persons on various occasions but they had failed to return the same. Her testimony to this effect is also duly corroborated by her brother (PW3) and father (PW4). The testimony of the prosecution witnesses to this effect have also remained unchallanged and unrebutted. Defence has failed to give even a single suggestion to the prosecution witnesses to this effect.
47. The accused had put forth their case in their statements u/s 313 Cr.P.C that they had tried to return the dowry articles to the complainant on various occasions, however, she had refused to receive the same. This defence of the accused persons appears to be a moonshine and does not inspire the confidence of the Court especially considering the fact that not even a single suggestion to this effect has been given to any of the prosecution witnesses. The accused persons have also miserably failed to prove their defence by leading any evidence on this point. In these circumstances, the defence of the accused persons does not appear to be plausible on the face of it and is not sufficient to create any doubt on the FIR No. State Vs. Sheetal Prasad and another 21/23 22 prosecution story.
48. Merely because the accused persons had not resisted at the time when the recovery of dowry articles was effected from their house is not sufficient to show that they had earlier also offered to return the dowry articles of the complainant.
49.It is also interesting to note that when, during investigation, the accused persons were given an opportunity to give their own admitted list of dowry articles, they had denied various articles as mentioned by the complainant in her list of dowry articles which has been proved as Ex. PW1/A (1) and (2). However, perusal of the seizure memo Ex. PW1/B clearly shows that several of the articles which were earlier denied by the accused persons were recovered from them. Some of such articles are gold chain, gold jhumki, silver Anklet, silver set, colour TV Onida 21 inches with trolley, godrej fridge, two wheeler scooter etc. This denial of the accused persons at the initial stages also clearly show that they had no intention to return the dowry articles of the complainant to her as alleged by them.
50.In view of the reasons given above, I am of the opinion that the offence u/s 406 IPC as charged against the accused persons has FIR No. State Vs. Sheetal Prasad and another 22/23 23 been proved beyond reasonable doubt.
CONSCLUSION
51. Accordingly both the accused persons are acquitted from offence u/s 498A IPC as charged against them. They are, however, convicted for offence u/s 406 IPC.
52.Be heard onthe point of sentence separately.
53.Copy of the judgement be given free of cost to the convicted persons.
ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA
TODAY ON 03.08.2012 Metropolitan Magistrate,
Mahila Court/West/Delhi
FIR No. State Vs. Sheetal Prasad and another 23/23