Delhi District Court
State vs . D.Shekhar on 25 November, 2013
IN THE COURT OF MS. JYOTI KLER
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
State Vs. D.Shekhar
FIR No. 650/00
P.S. : R.K. Puram
U/S : 406/498A IPC
CASE ID: 02403R003812001
JUDGMENT
1.DATE OF INSTITUTION OF CASE : 31.01.2001 2.SERIAL NUMBER OF THE CASE : 686/02
3.DATE OF COMMISSION OF OFFENCE : 25.09.1998 to 2000
4.NAME OF THE COMPLAINANT : Smt. Nirmala
5.NAME OF THE ACCUSED & ADDRESS : D. Shekhar
S/o Sh. C.T.Dass
R/o RZ25A, Lane No. 3,
Syndicate Enclave
Near Dabri Mode
Janakpuri, New Delhi
Office Address:
M.G.O Branch, O.S17, Bblock
DHQ, P.ONew Delhi
State Vs. D.Shekhar
FIR No. 650/2000 Page No. 1/14
6. OFFENCE COMPLAINED OF : U/S 406/498A IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty
8. DATE ON WHICH JUDGMENT
RESERVED : 08.11.2013
9. THE FINAL JUDGMENT : Acquittal
10.THE DATE OF FINAL JUDGMENT : 25.11.2013
BRIEF REASONS FOR THE DECISION:
1. The present FIR was registered on the basis of a complaint dated 03.03.2000 lodged by Smt. Nirmala against her husband Sh. D.Shekhar. The allegations are that the complainant married to the accused D.Shekhar on 25.09.1998. After marriage, she found that her husband was habitual to liquor. He used to drink for the entire day. He would not attend his office regularly. He used to beat her and started selling all the household articles one by one. He used to pressurize the complainant to demand money from her parents. When the complainant got pregnant, she went to her mother's house few months prior to delivery but the accused did not come to meet her. All the expenses of her delivery were borne by her mother State Vs. D.Shekhar FIR No. 650/2000 Page No. 2/14 till her daughter turned six months old. Thereafter, accused started calling her and demanded money. He used to say that if she does not bring money, she shall not be allowed to enter into the matrimonial house. He also started sending threatening letters to her.
2. On filing of the complaint, compromise proceedings were initiated by the CAW Cell. During the proceedings, the complainant filed a list of Istridhan. Efforts of compromise failed and the matter was recommended for registration of the FIR.
3. After registration of FIR, investigation was conducted during which three marriage photographs, two letters dated 22.05.1999 and 11.11.1999 allegedly written by the accused to the complainant and one copy of CGHS card of the complainant were seized vide seizure memo dated 19.09.2000. The accused was arrested and his personal search was conducted on 03.10.2000.
4. After completion of investigation, charge sheet was filed in the court on 31.01.2001 and the accused was summoned. Copy of charge sheet was supplied to the accused in compliance of provisions u/s 207 Cr.P.C.
5. Arguments were heard on the point of charge. Vide order dated 16.10.2003, Ld. Predecessor Court observed that a prima facie case for the State Vs. D.Shekhar FIR No. 650/2000 Page No. 3/14 offences punishable u/s 498A/406 was made out against the accused. Charge was accordingly framed against him on the same day to which he pleaded not guilty and claimed trial.
6. During the trial, prosecution examined total eight witnesses in support its case. Out of these, four are police officials and four are public witnesses.
Public witnesses:
7. The four public witnesses are PW3 Nirmala Tiwari, the complainant, PW4 Mohan Chand Tiwari, PW5 Harish Chand Tiwari and PW8 Lalit Chand Tiwari. PW4, 5 and 8 are the brothers of the complainant PW3.
8. PW3 Nirmla Tiwari reiterated the contents of her complaint on oath and proved the complaint as Ex.PW3/A. She also proved the list of dowry articles which is Ex.PW3/B and the marriage photographs Ex.P.1 to Ex.P.3. She further deposed that all the articles of her Istridhan were sold by the accused to a Kabadi. She proved the seizure memo Ex.PW3/C dated 19.09.2000 vide which three photographs, two letters and one copy of CGHS card were seized. Personal search memo of the accused was also identified by her which is Ex.PW1/A. She further deposed that all the expenses towards the rent of the matrimonial house were incurred by her brother while her State Vs. D.Shekhar FIR No. 650/2000 Page No. 4/14 mother used to pay for the grocery items. The accused, however, did not pay any maintenance to her.
9. She was crossexamined by the ld. defence counsel during which she deposed that at the time of her delivery, her husband was present at Maternity centre and the discharge slip was signed by him. She further admitted that she went to her parental house for delivery at her own wish and she did not lodge any complaint against the accused till the time she left the matrimonial house. She also admitted that she did not submit any bills of dowry articles to the IO.
10. PW4 Mohan Chand Tiwari, who is the brother of the complainant, deposed that the family of the accused demanded cash prior to the marriage citing a custom in their family after which Rs. 10,000/ were given. He also reiterated what PW1 had said in her complaint. He further produced the original letter dated 22.05.1999 which is Ex.PW4/A and two letters dated 15.05.1999 and 07.06.1999 which are Ex.PW4/B and Ex.PW4/C respectively.
11. During crossexamination, he said that the articles of Istridhan were purchased from various markets but bills of the same were not given to the IO. He also admitted that the daughter of the complainant was born in a State Vs. D.Shekhar FIR No. 650/2000 Page No. 5/14 hospital, which was on panel of CGHS (Central Government Health Scheme) and accused is a holder of CGHS card, benefit of which was extended to the complainant. He further admitted that he did not show the amount of rent paid by him for the matrimonial house of his sister in his income tax return. He also admitted that he did not see the accused selling articles of Istridhan to a Kabadi but she was informed of the same by the neighbors. It was further admitted by him that the letter dated 07.06.1999 which is Ex.PW4/C does not bear any postal receipt and therefore, it cannot be said as to from whom the letter was received and how. It was also admitted by him that his sister left the accused on 16.04.1999 saying that she would join his company after delivery and that she wanted to live nearby their house so she arranged a flat for her in Safdarjung Enclave, though the accused wanted to live in Vikaspuri. He further admitted that certain articles of Istridhan were received by the complainant.
12. PW5 Harish Chand Tiwari is also brother of the complainant. He deposed that the accused harassed and tortured his sister. They had shifted all the articles of her Istridhan to Vikaspuri at his instance but he left the rented accommodation without any reason.
13. During crossexamination, he deposed that nothing happened State Vs. D.Shekhar FIR No. 650/2000 Page No. 6/14 in his presence as he was only 34 years old at the time of marriage and dispute.
14. PW8 Lalit Chand Tiwari, who is the third brother of the complainant deposed in sync with the testimony of PW3 and PW4 and during crossexamination, deposed that the rent of his sister's matrimonial house was paid by him but when he was confronted with his statement recorded u/s 161 Cr.P.C which is Mark A, he admitted that this fact was not told by him to the IO.
Police Witnesses:
15. PW1 Constable Ramesh Kumar proved personal search memo of the accused which is Ex.PW1/A and deposed that the accused was arrested in his presence on 03.10.2000.
16. PW2 HC Shiv Lal deposed that he was working as duty officer on 06.09.2000 and he registered the FIR in the present case. He proved the FIR which is Ex.PW2/A.
17. PW6 ASI Rajender Kaur, the IO of the case deposed that she received the complaint of the present case alongwith a list of articles which is Ex.PW3/B after which FIR was registered and she conducted investigation during which she prepared the seizure memo already Ex.PW3/C and State Vs. D.Shekhar FIR No. 650/2000 Page No. 7/14 arrested the accused vide memo Ex.PW1/A. She admitted that the articles of Istridhan were not recovered during investigation.
18. PW7 Inspector Usha deposed that she was posted in CAW Cell in the year 2000. She conducted an enquiry into the complaint lodged by the complainant. As the matter could not be settled, therefore, she recommended it for registration of the FIR. She also deposed that the proceedings pertaining to enquiry had been destroyed. She proved the copy of the order vide which the documents were destroyed which is Mark A.
19. After completion of evidence, the entire incriminating circumstances was put to the accused u/s 313 Cr.P.C on 04.07.2008 which were denied by him. No evidence was led by the accused in his defence.
20. I have heard final arguments. Record perused.
21. Ld. APP for the State argued that the accused should be convicted of the offences charged as all the four public witnesses of the prosecution have supported its case. Ld. defence counsel, on the other hand, argued that there are contradictions in the testimony of the prosecution witnesses and they cannot be relied upon.
22. I have considered rival contentions and perused the record.
23. In the present case, accused has been charged for the offences State Vs. D.Shekhar FIR No. 650/2000 Page No. 8/14 punishable u/s 498A/406 IPC.
24. Section 498A IPC punishes cruelty extended to the wife by the husband and his relatives. This cruelty can be physical or mental cruelty of such nature as is likely to cause grave injury on the person of the wife or as is likely to drive her to commit suicide, or else, it can be a cruelty in the form of demand of money or valuable security and consequent harassment for coercing the wife or her relatives to fulfill the said demand.
25. Section 406 IPC punishes criminal breach of trust. Entrustment of property and its misappropriation by the accused are the essential ingredients of this section.
26. It is thus clear that prosecution has to prove that there was a demand of money or valuable security from the complainant which she could not fulfill and the accused harassed her in order to coerce her to fulfill the demand. In the present case, the complainant deposed that the accused used to demand money from her. However, it is not specified as to how much money was demanded by the accused and when. The allegation is general and vague without any specific date and time of the demand allegedly raised by the accused. To prove her allegation, the complainant relied upon photocopies of one letter dated 11.11.1999 (running into three pages) which State Vs. D.Shekhar FIR No. 650/2000 Page No. 9/14 are Mark C and D. Original of this letter was not produced by her. No postal receipt of the letter was proved and it was not clarified as to in what manner she received the said letter allegedly written by the accused. Hence, it cannot be said that she has been able to prove the demand of money by the accused beyond reasonable doubt. The vague allegations raised by her put her credibility under doubt.
27. PW4, the brother of the complainant, deposed that the family of the accused demanded money prior to marriage after which Rs. 10,000/ was paid. However, he did not make it clear as to who had demanded and when and to whom Rs. 10,000/ was paid. Again a general allegation has been leveled and no specific role was attributed to accused D. Shekhar.
28. The complainant alleged that the accused used to beat her after taking liquor but the prosecution failed to place on record any Medico Legal record. No other medical document was filed. No prior complaints lodged by the complainant after beatings were placed on record. No details of PCR calls were filed. No date, time and place of beatings were specified. No details of injuries were given. The allegation is again vague and general and cannot be relied upon to convict the accused, as it is bereft of specific substance and deprives the accused of his right to plead his defence in the State Vs. D.Shekhar FIR No. 650/2000 Page No. 10/14 absence of specific date and time.
29. The next allegation raised by the complainant is that the accused did not provide maintenance to her. This allegation does not fall within the ambit of section 498A IPC and can at the most make out a case u/s 125 Cr.P.C.
30. It was admitted by the witnesses of the prosecution that the delivery expenses of minor daughter of the complainant were borne by the accused, who was the CGHS card holder and he had signed the discharge slip in the Maternity Centre, which leads to the presumption that the accused was present at the time of delivery of his daughter and belies the contention of the prosecution that the accused did not take care of the complainant once she left the matrimonial house and did not visit her either at the time of delivery or after delivery and all the expenses were borne by her mother. The admission on the part of the prosecution witnesses shakes their credibility and therefore court is required to be cautious while relying upon the testimony of the witnesses produced by the prosecution.
31. The complainant alleged that she was forced to have her delivery at her mother's house. However, as per the letters produced by the complainant which are Ex.PW4/B and Ex.PW4/C, it was a custom in the State Vs. D.Shekhar FIR No. 650/2000 Page No. 11/14 family of the accused to send the girl to her mother's house 34 months prior to delivery and therefore, the complainant went to her mother's house. No demand was raised by the accused in these two letters which are Ex.PW4/B and Ex.PW4/C and no threats were extended by him. He only said in these letters that the complainant will have to stay at her mother's house till delivery as per the custom of the family and thereafter, she could shift with him.
32. The only letter alleged to be of threatening tone produced by the complainant is Ex.PW4/C but this letter does not bear any postal receipt. It is not clear as to from where the letter was received. The letters Ex.PW4/B and Ex.PW4/C are on inland letter alongwith postal receipt. These two letters are written in English by the accused. He has signed in English on these two letters. However, the letter Ex.PW4/C is in Hindi and no opinion on the handwriting was sought by the prosecution while leading their evidence to suggest that this letter was written by the accused. All these circumstances raise a doubt upon the genuinity of the letter Ex.PW4/C.
33. For the offence punishable u/s 406 IPC, the prosecution must have proved entrustment of the articles of Istridhan and its misappropriation beyond reasonable doubt. In the present case, no recovery of Istridhan was effected. It is the case of the prosecution that the articles of Istridhan were State Vs. D.Shekhar FIR No. 650/2000 Page No. 12/14 sold by the accused one by one as he was in the habit of taking liquor regularly. However, during the testimony of prosecution witnesses as well as reading of letters Ex.PW4/B and Ex.PW4/C makes it clear that the articles belonging to the complainant were lying in the rented accommodation at Safdarjung Enclave even after she left the matrimonial house for delivery.
34. PW7 deposed that these articles were shifted to Vikaspuri later on at the demand of the accused from where the accused left the rented accommodation after selling the articles. However, no proof of shifting of articles from Safdarjung Enclave to Vikaspuri was produced before the court.
No list prepared as per section 3 of Dowry Prohibition Act was proved by the complainant in order to show that the alleged articles as per the list Ex.PW3/B were that of Istridhan. No bills were produced to show that the articles belonged to the complainant. The complainant admitted that she never shifted to Vikaspuri after delivery which makes it doubtful as to why she would shift her articles when she never intended to shift. The nonproduction of list and bills puts the testimony of complainant in doubt. Also, it is not alleged specifically as to when the articles of Istridhan were entrusted to the accused and there are contrary statements of the witnesses about the time when the articles were actually sold by the accused as according to PW2, State Vs. D.Shekhar FIR No. 650/2000 Page No. 13/14 the accused sold articles one by one in order to raise money for his liquor when she was residing with him while as per other witnesses, articles were sold when these were shifted in Vikaspuri house from Safdarjung Enclave, while the complainant was at her mother's house after delivery. This contradiction is material and it shakes the credibility of the witnesses.
35. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, the accused is acquitted of the offences charged.
36. Ordered accordingly.
Pronounced in open court (JYOTI KLER)
on 25 November, 2013
nd
M.M/Mahila Court/South District
New Delhi/25.11.2013
State Vs. D.Shekhar
FIR No. 650/2000 Page No. 14/14