Delhi District Court
State vs . Dharampal on 3 November, 2014
IN THE COURT OF MS. MONA TARDI KERKETTA: MM(MAHILACOURT) :
TIS HAZARI COURTS: DELHI
FIR NO. 14/09
P.S. SARAI ROHILLA
U/s. 498A/406 IPC
02401R: 0412172009
STATE VS. DHARAMPAL
1. DATE OF COMMISSION OF OFFENCE : DURING SUBSISTENCE OF
MARRIAGE SINCE 14.02.1997
2. NAME OF COMPLAINANT : SMT. GEETA
D/o LATE SH. RAM CHANDER
3. NAME OF ACCUSED, DHARAM PAL
S/O LATE SH. NANAK CHAND
PARENTAGE & ADDRESS : R/o H. NO. B1282,SHASHTRI
NAGAR, SARAI ROHILLA, DELHI
4. OFFENCE COMPLAINED OF : 498A/406 IPC
5. PLEA OF ACCUSED : FALSELY IMPLICATED
6. FINAL ORDER : ACQUITTED
7. DATE OF SUCH ORDER : 03.11.2014
COUNSELS FOR THE PARTIES
FOR THE STATE : SH. ANUJ PRAKASH
FOR THE ACCUSED PERSONS : SH. INDU BHUSHAN VIMAL
THE BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the statement made by the complainant Smt. Geeta D/o Late Sh. Ram Chander R/o House no. B1282, Shastri FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 1/13 Nagar, Delhi, wherein it has been stated that marriage between the complainant and accused was solemnized on 14.02.1997 at Delhi according to Hindu Rites and Ceremonies. It has further been stated that accused and his family members physically and mentally tortured and gave beatings to the complainant, due to which she was compelled to file a case against them before the court . Thereafter, on their assurance, complainant compromised the matter and withdrew the case. It has further been stated that for about 0102 months, things were normal but accused again started harassing her. He did not make provisions for maintenance of complainant and their two children and did not allow the complainant to take up any job. He also used to beat the complainant mercilessly under the influence of alcohol. It has further been stated that elder brothers of accused also used to trouble the complainant. They used to instigate the accused to commit torture upon her and pressurized to take divorce from the accused after taking money from them.
2. It has further been stated that the complainant was forced to live at her parental house along with children and depended upon the mercy of her parents for maintenance. It has further been stated that all her dowry articles such as bed, almirah, Fridge, TV, jewellery are still in the possession of accused and his family members at the matrimonial house. It has further been stated that accused, her Jeth and Jethani used to taunt her for bringing less dowry. It has also been stated that the accused has been indulged in extra marital life and has ruined complainant's and children's lives. Seeing the accused's conduct, matter was reported to police, which directed to register an FIR U/s 498A/406/34 IPC and matter to be investigated.
3. Subsequent to registration of FIR, investigation was conducted and after completion of investigation, chargesheet was filed in the court against the accused . No legally admissible evidence could be found out against family members of the accused and therefore, they were not chargesheeted. Cognizance of the offence was taken and accused was summoned by Ld. Predecessor to face FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 2/13 the trial for the offence allegedly committed by him. Accused was supplied with copy of charge sheet in compliance of provision given under section 208 Cr.PC. Arguments on the point of charge heard and vide order dated 23.01.2010, Charge U/s 498A/406 IPC was framed against accused, to which he pleaded not guilty and claimed trial.
4. Subsequent thereto matter was fixed for Prosecution Evidence. In order to prove its case, the Prosecution produced following seven witnesses :
(i) ASI Anita, Duty Officer, appeared as PW1 and proved FIR vide Ex. PW1/A and endorsement on rukka Ex. PW1/B,
(ii) Complainant Smt. Geeta appeared as PW2 and proved list of dowry articles Ex PW2/A, complaint dated 27.12.2008, 23.04.2008 and 08.01.2008 Mark X 1 to X3, notice issued by Mahila Panchayat Mark X4, settlement deed Mark X 5, Complaint made to CAW Cell EX. PW2/B, Complaint made to Joint Commissioner of Police dated 18.08.2008 Ex. PW2/C , complaint dated 07.07.2005 made to CAW Cell Mark X 6 , Photographs of marriage Ex. PW2/D and PW 2/E,
(iii) Const. Raj Kumar appeared as PW 3 and proved arrest memo Ex. PW3/A, body inspection memo Ex. PW3/B, Personal search memo Ex. PW3/C, Fard Khana Talashi Ex. PW3/D and seizure memo of marriage photographs Ex. PW3/E,
(iv) SI Leela Devi appeared as PW4 and proved her report Ex. PW4/A,
(v) Smt. Lakshmi Devi, Mother of the complainant, appeared as PW5,
(vi) Inspector Raj Kumar appeared as PW 6,
(vii) SI Ajeet Singh appeared as PW7,
5. After completion of prosecution evidence, matter was fixed for recording of statement of accused under section 313 Cr. PC. The statement of accused u/s 313 Cr.P.C. was recorded, wherein entire incriminating circumstances appearing on record were put to him, to which he denied as false and incorrect and claimed to have been falsely implicated but did not prefer to lead evidence in his defence. Subsequent thereto, matter was fixed for final arguments.
FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 3/13
6. During the course of final arguments, following arguments were made on behalf of accused:
(i) Many facts stated in examination in chief by complainant/PW2 are not mentioned in her statement recorded by the police,
(ii) No MLC or medical treatment papers with regard to allegations of beating has been proved on record,
(iii) Source of dowry articles and other payment allegedly given to accused, has not been verified,
(iv) Material contradictions and improvement in the testimonies of material witnesses can be seen,
(v) Filing of present complaint is the outcome of divorce petition filed by the accused,
(vi) Facts of demand are not mentioned in Ex PW2/B,
(vii) At present complainant is residing at matrimonial house and has not made any other complaint whatsoever against the accused,
7. The arguments of the prosecution are given below:
(i) The guilt of accused has been proved beyond reasonable doubt as PW2/complainant has made specific mention of demand of Rs 50,000/ out which of Rs 10,000/ was given to accused by complainant's mother, who has corroborated this fact in her testimony recorded as PW5,
(ii) Complaints Mark X1 to X3 & X6, notice Mark X4 and settlement letter X5 clearly prove physical and mental harassment caused to the complainant by the accused,
(iii) Dowry articles are still in the possession of accused and have not been returned despite repeated demands,
8. The court has heard the submissions of both the sides and also gone through the entire record including testimonies of witnesses. Before appreciating evidence on record, let us first discuss the relevant legal provisions given U/s 498A/406 IPC. Section 498A IPC provides punishment to husband or relatives of the FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 4/13 husband of a woman subjecting her to cruelty. The prosecution must prove that :
(i) the woman was subjected to cruelty or harassment,
(ii) such cruelty or harassment was shown either by the husband of the woman or by the relatives of the husband,
(iii) such cruelty was (1) with a view to derive her (a) to commit suicide or (b) to cause grave injury or danger to her life,limb or health,whether mental or physical or
(iv) such harassment was (1) with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security or(2) on account of failure by such woman or any person or any person related to her to meet such unlawful demand, section 406 IPC prescribes punishment for criminal breach of trust. For offence under this section the prosecution must prove :
(i) that the accused was entrusted with property or with dominion over it,(ii) that he (a) misappropriated it or(b) converted it to his own use or © used it or
(d) disposed of it.
9. In the light of aforesaid legal provision, I would now appreciate the evidence brought on record to ascertain if alleged acts of accused amount to cruelty in terms of provision given U/s 498 A IPC and is guilty of criminal breach of trust u/s 406 IPC. Under section 498A IPC, demand is a precondition to attract the provision of explanation(b) of section 498A IPC. Admittedly, the complainant has built her case on explanation (b) of section 498A IPC. In the judgment of Smt. Sarla Prabhakar Vs State of Maharashtra, 1990 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID, 1993 Cr.L.J page 3019 , the court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. The Hon'ble Supreme court in State of HP Vs Nikku Ram & Ors. (1995)6 SCC 219 while interpreting the provisions of section 498A IPC observed that FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 5/13 harassment to constitute cruelty under section 498A explanation(b) must have the nexus with the demand of dowry and if this is missing the case will fall beyond the scope of section 498A. The precondition for attracting the provision of this section is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation(b). It may be cruelty under Hindu Marriage Act as held by the Supreme Court in the case of Shobha Rani Vs Madhukar Reddy AIR 1988 SC 121. The Apex court observed that cruelty under section 498A, IPC is distinct from the cruelty under the Hindu Marriage Act which entitles the wife to get a decree for dissolution of marriage.
10. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements.
Testimony of PW2/Smt. Geeta is reproduced and appreciated as below: (10.1) She has deposed that her marriage with accused was solemnized with great pomp and show and her mother had given sufficient dowry articles beyond her capacity. It be observed that no evidence with regard to source of dowry article has been collected and proved on record, (10.2) She has further deposed that during initial 0102 years of marriage, she was residing happily at matrimonial home. Subsequently, accused started demanding money on daily basis for day to day expenses as he was unemployed and had no source of income for maintenance. It be observed that admittedly, complainant was leading happy life at matrimonial home with the accused but disputes arose when accused started demanding money for his daily needs as he was unemployed without any source of income, which clearly establishes that these allegations do not come within the purview of section 498A IPC. It also be observed that allegations are general in nature without any specific detail. (10.2A) During crossexamination, it has come on record that family of FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 6/13 complainant had arranged the marriage without ascertaining the status of accused and therefore, deemed to have accepted his existing status. It appears that root cause of dispute between complainant and accused was on account of unemployment of accused and not because of dowry demands as alleged. In crossexamination, PW2 has admitted that neither she nor her family members enquired about professional qualification of accused to run the Kharad machine. She has further stated that her husband used to go on job occasionally during initial days of marriage and after 0506 months of marriage, she came to know that accused was not working. PW5/mother of complainant has admitted in her crossexamination that marriage was arranged through one Mediator Bhagat Ji, who told that accused was having a factory and they believed his words and did not verify the facts, (10.3) She has further deposed that in the year 2005, accused told her to demand Rs. 50,000/ from her mother for starting his own factory but her mother could arrange only Rs. 10,000/ and gave it to accused, who purchased the machine purportedly for his own business but handed over the same to his brother without her knowledge. It be observed that no evidence has come on record to prove this particular allegation. The facts of demanding Rs 50,000/ and handing over of Rs 10,000/ to accused, purchase of machine for business and handing over of the same to brother of accused are not mentioned in the statement of complainant given to police. During cross examination, she was confronted on these points and the same were not found mentioned in Ex PW2/B. PW5 during crossexamination stated that she can not tell the exact date, month, year when she gave Rs 10,000/, Rs. 50,000/ and Rs 5,000/ to accused and the fact of payment of Rs 50,000/ and Rs 5,000/ is nowhere mentioned in anyone's testimony, (10.4) In her crossexamination, she has stated to the extent that she did not remember as to whether police had recorded her statements. It is also noticeable that allegations of demand came into being after about 08 years of marriage. In FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 7/13 crossexamination, PW2 has stated that she did not remember if she had stated to police that her matrimonial relation with accused remained normal till the year 2005. She has denied the suggestion that she remained in normal relationship with the accused till the year 2005, (10.5) She has further deposed that in the year 2005, she made a complaint before Mahila Panchayat, Jahangir Puri, because of ill treatment of accused and because of their intervention, accused agreed to take her to matrimonial home. In this regard, the court is of the view that after settlement of dispute, alleged acts of cruelties of accused have been condoned by the complainant. She has further deposed that the accused behaved normally for some time but he again started misbehaving with her. The accused was in the habit of giving her beating her after getting drunk and used to demand Rs. 50,000/ for opening the factory of Jink Polish. It be observed that allegations are general in nature without specific details. The demand of Rs 50,000/ for opening Jink Factory is not mentioned in her statement given to police, (10.6) She has further deposed that in March 2008, accused gave merciless beatings in furtherance of demand of Rs. 50,000/ and abused by stating " TERI MAA NE DIYA HE KYA HAIN, AGAR KUCH DE DETI TO MAIN BHI FACTORY LAGA LETA", She has further deposed that she went to her parental house in injured condition and remained there for about 3 / 4 months. It be observed that these facts are not mentioned in her statement given to police. During cross examination, she was confronted with Ex PW2/B, wherein these facts were not found mentioned. She has further stated that she did not remember if she had mentioned in Ex PW2/B that she went back to her parental house in injured condition. It be further observed that despite serious allegations, she neither reported the matter to police nor medically examined herself for said injuries, which has been admitted by her even in her crossexamination. This particular claim of complainant is further falsified during cross examination of PW5, who has stated that she does not remember whether her daughter visited her house in FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 8/13 injured condition then she again said that she had some blue spot on her body. She has further stated that she does not remember if she had taken her daughter for medical treatment, (10.7) She has further deposed that she remained at parental house for about 3/4 months. In April 2008, she made complaint vide Mark A at CAW Cell, North, where proceedings were initiated. During counselling proceedings, accused filed a divorce petition, which was later on dismissed. PW2 has further produced copies of complaint dated 27.12.2008, 23.04.2008 and 08.01.2008 Mark X1 to X3, notice issued by Mahila Panchayat, Jahangirpuri, undertaking cum settlement Mark X5, complaint dated 07.07.2005 Mark X6 and complaint dated 18.08.2008 Ex PW2/C. (10.7A) It be observed that Mark A, X1X3, X56 are photocopies, which can not be read in evidence in the absence of explanation for its non production in original and leading secondary evidence. It is also noticeable that some of these documents pertain to previous dispute between the parties, which they preferred to settle and for this reason past misconduct of accused is deemed to have been condoned by the complainant. It also be observed that admittedly complainant is residing at her matrimonial house and she has not filed any other complaint before any authority whatsoever. During crossexamination, PW2/complainant has admitted that currently she is residing at matrimonial house. She has denied that accused did not commit cruelty upon the complainant or demanded any dowry or cash from her. She has also denied implicating the accused falsely,
11. It is worthwhile to mention that while appreciating the evidence in such type of cases involving matrimonial disputes, the court has to be on its guard and not to be swayed by the general and bald nature of allegations which are bound to emanate from the mouth of family members of a woman after the relations between two sides have gone to the extreme opposite end. It is for this reason a strict analysis of allegations levelled by the family members of the complainant shall be done. Clearly , the accused persons have faced trial for penal provisions and the consequence of which are very grave in nature so a strict interpretation FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 9/13 needs to be taken of the various allegations levelled by the complainant and her relatives.
12. Testimony of PW5/Smt. Lakshmi Devi, mother of complainant, is reproduced and appreciated as below: (12.1) She has deposed that after some time of marriage , her daughter used to come to her home and told about the harassment, beatings at the hands of accused. It be observed that these facts are based on hearsay information. It also be observed that the facts of harassment and beatings after some time of marriage are in contradiction with those of mentioned by PW2/complainant, who has stated that for about 0102 years she led a happy matrimonial life with the accused. She has further deposed that even after receiving the money, accused harassed her daughter by beating and getting her out of the house for further demand of money. In this regard, it be observed that allegations are general in nature without specific details and are based on hearsay information, (12.2) During crossexamination, PW5 has denied that complainant herself kicked the accused out of matrimonial house. She has further denied accused had not caused harassment to the complainant and being mother she was deposing in favour of the complainant at her instance,
13. The testimonies of rest of the prosecution witnesses are not being discussed as they are formal witnesses related to field investigation of the present case.
In view of the aforesaid discussion, the court is of the considered opinion that charge u/s 498A IPC is not established against accused.
14. The accused has also been charged under section 406 IPC for having misappropriated the istridhan articles of the complainant to his own wish. In order to to establish the charge of Section 406 IPC, the prosecution was under the obligation to establish the ingredients of section 405 IPC thus, it was required to be established that an entrustment was made in favour of the accused and he was having dominion over the articles of the complainant and with dishonest FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 10/13 intentions the articles entrusted to him, have been misappropriated. PW2 has stated that at the time of marriage, sufficient dowry articles as per list Ex PW1/A were given. In this regard, it be observed that even during investigation, none of the dowry articles could be recovered from the house of accused. PW3 Ct. Rajkumar has deposed that matrimonial house of complainant was searched in her presence but none of the articles could be recovered and a Fard Khana Talashi Ex PW3/D was prepared .
15. The list of dowry articles Ex.PW1/ A is not witnessed by family members of the parties, which casts a serious doubt over the genuineness of above mentioned list. No bill, invoice etc. of the articles and or of the conveyance through which the articles reached the matrimonial home of complainant has been proved on record. In such circumstances being guided by the judgment of Neera Singh vs. State Government of NCT of Delhi & Ors. 138 (2007) DLI 152, the court is of the opinion that entrustment in favour of the accused is not established.
16. It be also observed that in the present case, there is no investigation regarding source of dowry articles. In the judgment of Narender Kumar & Anr.Vs State (Govt. of NCT of Delhi) I (2008) DMC 337, it has been held by the Hon'ble court that the court must be very cautious during trial of offences under section 498A/406 IPC as in all such cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by the police. Police does not verify any circumstantial evidence nor collect any other evidence about claims made by the complainant. This all results into gross misuse of provision of law and investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by complainant. The courts should always be careful in considering credibility and truthfulness of statement of complainant and relatives. In the present case also, admittedly no investigation regarding source of dowry articles has been conducted.
17. During crossexamination, the claims of complainant and her mother Smt. Laxmi Devi with regard to lavish wedding arrangements and giving of sufficient FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 11/13 dowry articles are found false. In crossexamination, PW2 has stated that they were 05 sisters and 01 brother and her father expired 23 years ago. She has further stated that at the time of her marriage, her mother was not working and her brother was studying in 5th class. She has further stated that the sole source of income was from rent earned through two residential accommodation of 100 Sq. Yard each. She has further stated that she can not tell the exact amount received from rent. PW2 has denied the suggestion that meager rent amount was received and was insufficient to satisfy the basic needs of the family being a big family. She has further denied that because of this reason no dowry was given to her at the time of marriage. On the other hand, PW5/ mother of complainant has deposed that she is a housewife and having rental income of Rs. 50,000/ per month and at the time of marriage of complainant, it was Rs 40,000/per month. The claim of PW5 in this regard is exaggerated as getting rental income @ Rs 40,000/ per month from 100 Sq.Yard house in the year 1997 appears to be bleak.
18. During crossexamination, PW2 has stated that two months after marriage, her entire jeweleries, two gold Kade, Gold ear ring, one tagdi, one pair of silver pajeb, two heavy gold rings, one wrist watch, one gold chain were taken by the accused after revealing that said articles were borrowed from her JethJethani and same were required to be returned to them. It be observed that these facts are not mentioned in statement given to police and during cross examination, complainant has admitted the same. No date, time and place has been mentioned when such demand was made to the complainant. During cross examination, PW5 has deposed that dowry articles except jeweleries are with the complainant now. She has denied that accused never raised any demand of dowry or cash etc. from the complainant. In view of the facts and circumstances, the court is of the view that none of the ingredients of section 405 IPC is established and therefore no case u/s 406 IPC is made out against the accused.
FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 12/13
19. In view of aforesaid discussions, the court is of the opinion that no material evidence has been produced in order to secure conviction of accused. Accordingly, accused is acquitted from the charge framed under section 498A/406 IPC .
20. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 03.11.2014 (MONA TARDI KERKETTA) MM02 , MAHILA COURTS TIS HAZARI COURTS, DELHI FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 13/13 FIR No. 14/09 P.S. Sarai Rohilla U/SEC. 498A/406 IPC ST. VS. Dharampal 03.11.2014 Present : Ld. APP for the State.
Accused on bail with Ld. counsel Vide separate judgment announced in the open court, accused is acquitted from the charge framed u/s 498A/406 IPC.
Previous bail bond is cancelled, surety is discharged. Documents if any, be returned against receiving and endorsement if any be cancelled.
Fresh bail bonds in compliance of provision given under section 437A CrPC furnished. Same is attested and accepted. Bail bond furnished shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM02/Mahila Court Tis Hazari Courts, Delhi 03.11.2014 FIR NO. 14/09 PS: SARAI ROHILLA STATE VS. DHARAMPAL 14/13