Delhi District Court
State vs . Krishan Gopal on 2 June, 2011
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SED )
SAKET COURTS, NEW DELHI.
Serial No. 380/02
Unique Case Identification No. 02406R0252462002
State Vs. Krishan Gopal
FIR No. 531/2000
P. S. Sangam Vihar
U/S U/s 498A/406 IPC
JUDGMENT:
1. Date of institution 01022002
2.Date of commission of offence On and after 30.06.90
3.Name of the complainant State through Sneh Lata
4.Name of the accused 1. Krishan Gopal
S/o Sh. Banwari Lal
R/o A857, Sanchar
Vihar, ITI, Mankapir,
Ghonda (U.P.)
5.Nature of offence complained of U/s 498A, 406 IPC.
FIR No. 531/00
P.S. Sangam Vihar Page No. 1 of 20
6.Plea of the accused person Accused pleaded
not guilty
7. Date reserved for order 310511
8.Final Order Acquitted
9.Date of such order 02062011
Date of Institution : 01022002
Date of reserving order : 31052011
Date of pronouncement : 02062011
BRIEF FACTS OF THE CASE:
1. The marriage between the parties are solemnized on 30.06.90 according to Hindu Rites and Customs. Sufficient dowry was given at the time of marriage but the accused and his family members were dissatisfied with the same. Three daughters were born out of the wedlock. Due to nonfulfillment of dowry the complainant was thrown out of the matrimonial house and was forced to take refuge in the house of her brother in Delhi. On the complaint of the complainant FIR was registered.
2. After complying with the provisions of section 207 Cr.P.C formal charge was framed against the accused U/s 498A/406 IPC to FIR No. 531/00 P.S. Sangam Vihar Page No. 2 of 20 which the accused pleaded not guilty and claimed trial.
3. Prosecution in order to establish its case examined 7 witnesses PW 1 W/ASI Sarita deposed that on 13.12.2000 she was posted at PS Sangam Vihar as duty officer. FIR was registered by her and the copy of same is Ex. PW 1/A and bears her signatures at point A.
4. PW 2 Sneh Lata she is the complainant in the present case. She deposed that she got married to the accused about 1617 years back. Sufficient dowry was given at the time of marriage. After marriage she was went to matrimonial house at Kanpur and the entire jewellery was entrusted to her husband in Kanpur. She was treated with cruelty for bringing insufficient dowry. Thereafter, she gave birth to three daughters. Her harassment even increased further. She was then thrown out of matrimonial house. She asked her husband and her in laws to return the dowry articles but they refused to return the same. She lodged the complaint in CAW Cell where her husband was summoned. The husband expressed his desire to take complainant back to his house to which she agreed. On the next date the husband appeared and produced the copy of divorce decree by virtue of which he had taken ex parte divorce. A FIR No. 531/00 P.S. Sangam Vihar Page No. 3 of 20 demand of scooter was raised by the husband and the Jeth and Jethani of the complainant. Accused was identified in the Court by the complainant. It was deposed by the complainant that accused was having illicit relations with his bhabhi. She was turned out from matrimonial house by the accused and she was threatened by him to kill her and with dire consequences. Thereafter, she moved to her brother's house and since then she residing there. Complaint is Ex. PW 2/A and bears her signatures at point A. List of dowry articles is mark A. Photo of marriage is P1.
5. She was cross examined by counsel for the accused wherein certified copy of the divorce decree was shown to her by way of which her appeal against the said decree was dismissed. In her cross examination she admitted that she has not mentioned any specific date or time when the cruelty was committed upon her. She had reported the matter at police station Babarpur, Kanpur but the copy of the said complaint is not in the file. She further admitted that her complaint Ex. PW 2/A neither bears any date nor her signatures. She further admitted that she had not reported the matter to the police on the day when she was turned out of the matrimonial house. She did not join any investigation proceedings FIR No. 531/00 P.S. Sangam Vihar Page No. 4 of 20 by the police nor she was taken to her native place by the police. She also admitted that she never meet her children from the day when she left the house. Her eldest daughter was 5 to 6 years old, second daughter was 2 years old and the youngest daughter was one year old when she left the matrimonial house. After giving the complaint Ex. PW 2/A her statement was never recorded by police at any point of time. But the statements of her brothers Ashok and Santosh were recorded.
6. PW 3 Head Constable Mahesh Kumar deposed that he had brought the records pertaining to the complainant lodged by Smt. Sneha Lata dated 18.05.99 which have been destroyed.
7. PW 4 Sub Inspector Rajesh Kumar deposed that he was posted at PS Sangam Vihar and investigation of the case was handed over to him after registration of the FIR. He recorded the statement of the complainant and asked the complainant to accompany him to District Ghonda to arrest the accused but she stated that she would accompany him later. Thereafter, he was transfered in June 2001.
8. He was cross examined by counsel for the accused wherein he stated that he had requested the complainant 34 times to FIR No. 531/00 P.S. Sangam Vihar Page No. 5 of 20 accompany him to Ghonda but she did not go due to her personal difficulties. He further admitted that he had never visited Ghonda. He made voluntary statement that he could not go to Ghonda due to paucity of time. The complainant did not deliver any proof about her relatives with whom she was residing after coming from Ghonda. He did not record the statement of brothers but only made inquiry from them. He also did not send any notice to the accused to join investigation.
9. PW 6 WS/SI Bala Mohan deposed that in December 2000 she received the present case for further investigation and prepared the final report. She received the complaint filed by the complainant and called both the parties since no settlement could be arrived at between the parties as the husband produced divorce decree in his favour. She prepared the final report and filed the same in the Court.
10.She was cross examined by the counsel for the accused wherein she stated that she did not record any statement of the complainant apart from the complaint.
11.PW 7 Sub Inspect Krishan Kumar deposed that on 20.08.01 he was posted at PS Sangam Vihar. On that day the present case FIR No. 531/00 P.S. Sangam Vihar Page No. 6 of 20 was marked to him for further investigation. He searched the accused and obtained NBWs from the Court on 31.10.01. He recorded the statement of complainant on 31.10.01. He formally arrested the accused on 10.11.01. He recorded statement of witness Ashok Kumar.
12.He was cross examined by the Counsel for the accused where he stated that he sent HC Sriram for search of accused at his village but he has not been sited as a witness. He did not visit the village of the accused. The accused had surrendered at the PS so he does not know how many persons were residing in his house. He does not know as to how many children do the parties but or with whom they were residing. He admitted that he did not record the statement of parents of complainant. But he had recorded the statement of brother of complainant. The complainant did not produce any proof of marriage but she had stated in her complaint that she was married to the accused in Arya Samaj Mandir in Kanpur. The complainant had not disclosed to him whether it was the first or second marriage of the complainant. During the investigation he did not come to know as to when the complainant had left her matrimonial house and reached Delhi. He admitted FIR No. 531/00 P.S. Sangam Vihar Page No. 7 of 20 that complainant has not specifically mentioned as to whom the dowry articles were entrusted and by whom the cruelty was committed upon her. He further admitted that complaint Ex. PW 2/A does not bear the signatures of complainant.
13.The prosecution evidence was closed and the case was fixed for statement of accused. The statement of accused has been recorded in which he stated that it is false and concocted case against him. That his marriage with complainant took place in Arya Samaj Mandir. So no dowry articles were given or received. All the allegations levelled against him are false as the complainant had left the matrimonial house on her own without informing him or the children. FIR was registered against the complainant besides publication in the newspapers. Divorce proceedings were already initiated against the complainant but she never appeared even her appeal was dismissed. He did not lead defence evidence and the case was fixed for final arguments.
14.The case was argued by the Ld. APP for the State and counsel for the accused persons. It has been argued by the Ld. APP that complainant had been a victim of physical violence and mental torture for the demand of dowry by the accused and the FIR No. 531/00 P.S. Sangam Vihar Page No. 8 of 20 prosecution has succeeded in establishing its case against the accused beyond reasonable doubt. The accused is liable to be convicted. All the prosecution witnesses have supported the prosecution story in all material particulars.
15.Conversely, it has been argued by counsel for the accused that it is a false case against the accused. Complainant had filed there complaints before CAW Cell and FIR was registered on the third complaint. This is a flaw in the registration of the FIR as the contents of the three complaints were in the knowledge of the complainant even at the time of filing of first complaint. Secondly, admittedly the marriage took place at Arya Samaj Mandir therefore there is no question of dowry either being given or received. Thirdly the divorce has already been granted and has attained finality. Fourthly, IO has not conducted the investigation fairly as he has never visited the native place of accused or carried any investigation or recorded statements of witnesses to prove the alleged allegations against the accused. As per the IO he had sent HC Sriram to the village of the accused but he has not been sited as a witness. This is a serious flaw in the investigation process. Lastly, no specific date or time has been mentioned as to when FIR No. 531/00 P.S. Sangam Vihar Page No. 9 of 20 alleged acts of cruelty were committed or the demand was raised. Even the complainant has not mentioned to whom and when the alleged dowry was entrusted or the same was demanded back. In these circumstances the accused deserves to be acquitted.
16.I have heard the rival contentions of counsels for both the parties and gone through the testimonies of prosecutions witnesses and the material placed before me, I am of the view that on perusal of the complaint Ex. PW 1/A on the basis of which FIR was registered contains no specific instances when the alleged cruelty was committed upon the complainant neither she has mentioned that when and to whom the jewellery was entrusted. For the first time in the Court she had made reference of one scooter demanded by the accused as well as Jeth and Jethani besides that there is no reference of any demand either being raised or having been fulfilled. She has not filed any complaint before any forum. In case she was harassed to such an extent that she was compelled to leave the matrimonial house, she should have atleast either filed a complaint in the PS after leaving the matrimonial house or should have got herself medically examined. But the same has not been done. She also not explained as to why she FIR No. 531/00 P.S. Sangam Vihar Page No. 10 of 20 did not meet her children after leaving the matrimonial house. For all these years the accused himself has taken care of three daughters, in case he had to harass the complainant as alleged for the birth of female children, he would not have taken care of them and brought them up as all the daughters were of tender age about five, two and one years of age respectively. At this time when the children had required the love and care of the mother, the complainant had left them and never bothered to meet her daughters. She has not mentioned even a single date when the demand was raised or the cruelty was committed.
17.Reliance in this regard may be placed on Hans Raj Sharma & Ors. V. State Govt. of N.C.T. of Delhi, Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A of IPC.
18. Smt.Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18 where it was observed:"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 FIR No. 531/00 P.S. Sangam Vihar Page No. 11 of 20 commit suicide or to fulfill illegal demands.
Similar view was taken in Richhpal Kaur Vs. State of Haryana & Anr. 1991 (2) RCR 53 where it was observed that in case of beatings given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry, offence under Section 498A would not be made out. The Hon'ble Supreme Court in Kans Raj Vs. State of Punjab & Ors. 2000 (5) SCC 207 held that proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and in State of Himachal Pradesh Vs. Nikku Ram & Ors. (1995) 6 SCC 219 it was held that harassment to constitute cruelty under Section 498A Explanation (b) must have nexus with the demand of dowry and if this is missing the case would fall beyond the scope of Section 498A.
Similar was the view expressed in Raj Kumar Khanna Vs. State (NCT of Delhi) 95 (2002) DLT 147 (DB) where after referring to various authorities the Hon'ble High Court held that it is not every harassment or every type of cruelty that would attract the provision of Section 498A IPC and that harassment to constitute cruelty FIR No. 531/00 P.S. Sangam Vihar Page No. 12 of 20 under Section 498A IPC must have nexus with the demand of dowry and if that was missing the case would fall beyond the scope of Section 498A IPC.
19.At the outset the prosecution has failed to prove offence U/s 498A IPC the accused is accordingly deserves discharged for these offences as far as 406 is concerned.
20. Reliance in this regard was be placed on Hans Raj Sharma & Ors. Vs. State Govt. of N.C.T of Delhi. Solitary instance of asking for money to purchase shop to start business, does not per se constitute dowry to attract provisions of Section 498A. When it is not followed by any cruelty or harassment, as defined in Section 498A IPC.
21.In view of the aforesaid discussion, I conclude that the offence under Section 498A IPC is not established beyond reasonable doubt against the accused as admittedly no specific instances of cruelty with date and time have been mentioned.
22.Regarding the offence under Section 406 IPC, the prosecution in order to establish its case was required to prove the following ingredients:
(i) entrusting a person with the property or with any dominion over FIR No. 531/00 P.S. Sangam Vihar Page No. 13 of 20 property.
(ii) that person entrusted (a) dishonestly misappropriated or converted that property to his own use; or (b) dishonestly used or disposed of that property or willfully suffered any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
23. At the outset, I find that there is no specific date, time mentioned when the stridhan articles were entrusted by the complainant to the accused and as to when she demanded them back or that the accused refused to return the same.
24.Reference may be made to Maninder Singh & Ors. Vs. State of Haryana & Anr. II (1993) DMC 605 where it was held that in view of the vagueness of the allegation regarding entrustment of dowry articles and the alleged maltreating, the continuance of the proceedings in pursuance of the FIR would amount to any abuse of the process of the Court and it was observed that in that case there was no evidence as to which article was entrusted to which of the accused persons.
25. In Shanti Devi Vs. State of Harayana I (2000) DMC 697 it was FIR No. 531/00 P.S. Sangam Vihar Page No. 14 of 20 observed that it was not clear from the complaint which was the basis for prosecution as to when the accused persons demanded articles or money or misappropriated the articles given to the bride or the bridegroom at the time of marriage.
26. Again in Rai Singh Vs. Smt. Gurdev Kaur 1989 (1) RCR 647 it was observed that there was no specific allegation that any specific article had been entrusted to the petitioners therein at the time of solemnization of marriage and there was no detail concerning individual acts of cruelty or harassment and as such no offence under Sections 406 or 498A IPC was made out.
27. In Dhan Devi Vs. Deepak 1989 (1) RCR 278 it was held that the allegation that the articles were entrusted to all the accused was vague and in the present case as well the allegation is regarding all the accused persons.
28.Further in Raj Kumar Khanna Vs. State (NCT of Delhi) & Ors. 95 (2002) DLT 147 (DB) it was observed that to attract Section 406 IPC there must be specific allegation of entrustment. Similarly in Sukhbir Jain & Anr. Vs. State 1993 JCC 91 it was observed:
"Regarding offence Under Section 406 IPC no specific allegation has been made as to which item was entrusted to whom and when FIR No. 531/00 P.S. Sangam Vihar Page No. 15 of 20 she demanded back those articles and from whom and he/she refused. To constitute an offence u/s 406 IPC it is essential that there must be a clear and specific allegation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly misappropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be sufficient to prima facie make out a cognizable offence under Section 406 IPC."
29.In that case it was held that there were no clear, distinct and specific specific allegations regarding entrustment to the accused, dishonest misappropriation by him or conversion to his own use and refusal by him to return back the articles and the most vital and essential ingredients of the offence U/s 406 IPC were missing and it was held that even prima facie case was not made out whereas in the instant case after evidence has been led similar is the position.
FIR No. 531/00 P.S. Sangam Vihar Page No. 16 of 20
30.In Neera Singh Vs. State 138 (2007) DLT152, it was observed by Honourable Justice S.N. Dhingra in Para 4 as under, "......... Now a days, exorbitant claims are made about amounts spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed........."
Further, it was observed it para 5 of the same decision that, ".... Court should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn...."
31.In the entire complaint the complainant has nowhere mentioned that she had either entrusted her jewellery to the accused husband or that the same was refused on demand or has been misappropriated by him. No bills have been filed by the complainant.
32.From the material placed on record, I find that the case against the accused has not been proved beyond reasonable doubt. The prosecution has failed to prove the guilt of the accused for offence U/s 406 IPC beyond reasonable doubt.
FIR No. 531/00 P.S. Sangam Vihar Page No. 17 of 20
33.I feel that the prosecution has not been able to discharge the onus of proving the guilt of the accused beyond reasonable doubt. The accused deserves to be given benefit of doubt. Accused is accordingly acquitted.
Announced in open court ( POOJA TALWAR )
on 02062011. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 531/00
P.S. Sangam Vihar Page No. 18 of 20
State Vs. Krishan Gopal
FIR No. 531/2000
P. S. Sangam Vihar
02062011
Present : Ld. APP for State.
Counsel for accused Sh. J.P. Sharma.
Accused is exempted through him.
Accused persons are acquitted vide my separate judgment of even date i.e. 02062011. Bail bonds are cancelled. Sureties stand discharged. Endorsement, be cancelled, if any. File be consigned to record room.
( POOJA TALWAR ) M.M/MAHILA COURT/SED Saket Courts, New Delhi.
FIR No. 531/00 P.S. Sangam Vihar Page No. 19 of 20 FIR No. 531/00 P.S. Sangam Vihar Page No. 20 of 20