Delhi District Court
Magistrate:Mahila Court01: South ... vs Sandeep & Anr on 11 July, 2016
IN THE COURT OF Ms. BHAVNA KALIA: METROPOLITAN
MAGISTRATE:MAHILA COURT01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI
STATE V. SANDEEP & ANR.
FIR NO.: 432/07
U/S: 498A/406 OF IPC
PS: R.K. PURAM
CASE ID : 02403R0056512009
JUDGMENT
a) Sl. No. of the case : 43/2
b) Date of commission of offence : Since marriage till filing of
the present FIR.
c) Date of institution of the case : 04.03.2009
d) Name of the Complainant : Smt. Annu D/o Sh. Duli
Chand
e) Name & address of the
accused persons. :1. Chando Devi W/o Late
Sh. Tara Chand.
2. Ashok Kumar
S/o Sh. Meer Singh
R/o G25, Dakshinpuri,
Ambedkar Nagar,
New Delhi.
f) Offence complained of : 498A/406/34 of IPC
g) Offence charged for : 498A IPC against both
accused and charge u/s
406 IPC against accused
Chando Devi.
h) Plea of the accused : Pleaded not guilty.
i) Arguments heard on : 04.06.2016.
j) Date of Judgment : 11.07.2016.
k) Final Order : Accused Ashok Kumar
and Chando Devi are
acquitted for offence u/s
498A/34 IPC.
Accused Chando Devi is
acquitted for offence u/s
406 IPC.
FIR No. 432/07 State v. Sandeep & Anr. Page No. 1 of 18
AT THE OUTSET IT IS CLARIFIED THAT ACCUSED
SANDEEP HAD EXPIRED DURING THE TRIAL AND PROCEEDINGS AGAINST HIM HAD ABATED VIDE ORDER DATED 08.05.2012.
BRIEF STATEMENT OF REASONS FOR DECISION :
1. It is the case of the prosecution that the complainant Annu filed a case before CAW Cell, Nanakpura on the basis of which present FIR was registered. She stated in her complaint that she got legally married with Sandeep on 25.04.2002. In her marriage a lot of gifts and dowry were given by her relatives to the accused persons. Rs.4 lakhs approximately was spent on the marriage. After about one month of the marriage, her husband Sandeep, her motherinlaw Chando, her sister inlaw Sharda and her sisterinlaw's husband Ashok started taunting her by saying that she had brought less dowry because of which their respect in the society had gone down. Her husband started beating her and none of the accused persons stopped him. Her husband asked her to get a scooter and gold rings for all the family members. Her husband after beating her, left her at her parental house. She narrated the entire incident to her parents. Her parents arranged for Rs.20,000/ which they gave to her and she went to her matrimonial house. She gave the money to her husband who spent the entire money over alcohol. She filed a complaint in the year 2004. There was a compromise after which her husband took her back. After a week, all the accused persons again started demanding a scooter and gold rings and they again started beating her. Her husband again left her at her parental house. She and her parents became frustrated with the demands of the accused persons. They alongwith their relatives tried to make the accused persons understand, but the accused persons did not budge.
FIR No. 432/07 State v. Sandeep & Anr. Page No. 2 of 18 Thereafter, complainant filed complaint with CAW Cell. Enquiry was made and in the final report it is stated that the matter could not be reconciled between the parties. At the CAW Cell, complainant's dowry list was given to the accused persons with directions to him to submit his admitted list. He filed his list, but there was much difference between the original list of dowry and admitted list. On the basis of the complaint and final report, FIR was registered and matter was investigated into and charge sheet was filed.
2. On the basis of charge sheet accused persons were summoned for the offence u/s 498A/406/34 IPC. After supply of documents, charge was framed against the accused persons.
CHARGE:
3. Order on charge was passed vide order dated 09.01.2013. Accused Sharda was discharged and charge was directed to be framed against accused Chando Devi and accused Ashok.
Charge u/s 498A/34 IPC was framed against both the accused persons Ashok and Chando Devi, being relatives of husband of the complainant, for raising illegal demands for dowry and for subjecting the complainant to harassment since the year 2002 till the year 2007. Charge u/s 406 IPC was framed against accused Chando Devi for being entrusted with istridhan belonging to the complainant and for dishonestly misappropriating the same. Both the accused persons pleaded not guilty and claimed trial.
FIR No. 432/07 State v. Sandeep & Anr. Page No. 3 of 18 PROSECUTION EVIDENCE :
4. The prosecution examined five witnesses to prove its case.
a) PW1 Smt. Annu stated that she got legally married with accused Sandeep on 25.04.2002. In her marriage her parents and her in laws gifted her household articles and jewellery. After marriage she joined her matrimonial house. For some days, the behaviour of her inlaws was proper, but later accused Chando Devi started taunting her for bringing less dowry. Accused Chando Devi said that PW1 had not brought a two wheeler scooter and gold rings for all her inlaws. Her sisterinlaw Sharda and her husband accused Ashok started forcing her to bring gold rings and one scooter from her parents and one day her husband, Sharda and accused Ashok gave her beatings. Thereafter, accused Sandeep left her at her parental house and she told them about the demand. Her father arranged for Rs.20,000/ and PW1 handed over the same to her husband. She started residing at her matrimonial house, but even after that accused persons used to fight with her and beat her. They would tell her that she was not doing the household work properly and over that they used to beat her. When she conceived, accused Chando Devi told her that she would not bear the expenses of her delivery and she would tell Sandeep to leave her at her parental house. When she was six months pregnant, accused Sandeep left her at her parental house. On 11.03.2003, she gave birth to a girl child for which accused Chando Devi taunted her. She remained at her parental house till March, 2004 and thereafter, her husband took her and their daughter to the matrimonial house. After one week FIR No. 432/07 State v. Sandeep & Anr. Page No. 4 of 18 accused persons again started quarreling with her and beating her. All accused persons used to taunt her by saying that she did not want to do household work and they also used to beat her.
One day, they threw her out of the matrimonial house and thereafter, she started living at her parental house. She stated that accused Ashok never let her come back to the matrimonial house and he used to tell her to divorce Sandeep so that Sandeep could marry again. In 2007 she filed complaint Ex.PW1/A with CAW Cell. Due to efforts of CAW Cell she was taken back to her matrimonial house, but after a few days Sharda and accused Ashok started harassing her and beating her over trivial issues. They used to reside at her matrimonial house only. She again came back to her parental house and present FIR got registered. When she came back she did not take back her jewellery and other istridhan articles with her and same remained in possession of accused Chando Devi. She handed list of dowry articles to the IO, which is Ex.PW1/B. Police seized some istridhan articles vide memo Ex.PW1/B and handed over the same to her. She said that she did not receive her jewellery articles. Despite opportunity she was not cross examined.
b) PW2 SI Raj Bala stated that on 06.08.2007 she was posted as ASI at PS R.K. Puram. She further stated that on that day, she was handed over investigation of present FIR after the same was lodged on the basis of complaint received from CAW Cell, Nanakpura of complainant Annu. She further stated that, thereafter, she called complainant Annu who handed over her marriage photographs which she seized vide seizure memo Ex. PW 1/B. She further stated that she also examined the FIR No. 432/07 State v. Sandeep & Anr. Page No. 5 of 18 complainant and her father and recorded their statements U/s 161 Cr.P.C. She also seized the istridhan/admitted articles of the complainant in the PS when accused produced the same before her vide seizure memo Ex. PW 1/E. She stated that pursuant to the order of this Court, she handed over the seized istridhan articles/admitted articles to the complainant vide Ex.PW2/A. Thereafter, she was transferred from PS R.K. Puram and was relieved of the present case.
During her cross examination she admitted that in the statement U/s 161 Cr.P.C of the complainant and her father, the date on which the same were recorded has not been mentioned. She admitted that she had recorded the statement of complainant and her father in PS R.K. Puram. She admitted that on seizure memo Ex.PW1/B no date has been mentioned.
c) PW3 Duli Chand stated that marriage of his daughter Annu was solemnized with Sandeep Kumar (since deceased) on 25.04.2002 as per Hindu Rites and Ceremonies at his house at Moti Bagh. He further stated that in his daughter's marriage, he had gifted one gold ring, one pair of gold tops, one gold chain, silver toe rings, gold nose pin and all necessary household articles to his daughter Annu and inlaws of complainant Annu also gifted her certain jewelery articles. He further stated that after marriage, her daughter joined her matrimonial life at her matrimonial house at H. No. 10813, Gali No. 5, 100 Quarter, Karol Bagh, New Delhi. He further stated that for some initial days, the behaviour of inlaws of his daughter was proper towards her but after that she told him that accused Ashok, accused FIR No. 432/07 State v. Sandeep & Anr. Page No. 6 of 18 Chando Devi and her sisterinlaw Sharda started harassing her and beating her. He further stated that his daughter also told him that accused persons were demanding gold rings for the relatives of accused Ashok and also demanded two wheeler scooter and cash amount. He further stated that he arranged Rs. 20,000/ and handed over the same to the husband of his daughter after about 810 days of the marriage of his daughter. He further stated that accused persons used to frequently beat his daughter and leave her at their house for about 15 days to 1 month. He further stated that he used to visit office of Sandeep (since deceased) and request him to take his daughter back in the matrimonial house. He further stated that thereafter, Sandeep used to take his daughter to her matrimonial house and after few days again used to leave her back at his home. Accused Ashok, Chando Devi and Sharda used to beat his daughter on trivial issues of not doing household work. He further stated that accused Ashok and his family used to reside in the matrimonial home of his daughter. He further stated that when his daughter conceived for the first time, Sandeep left her daughter at his home and a girl child was borne to his daughter at Safdarjung Hospital. He further stated that Accused Chando Devi and Sisterinlaw Sharda visited his daughter in the hospital but there also they argued and fought with him and his daughter by saying that they wanted a baby boy and why his daughter has given birth to a girl child. He further stated that all the expenses of the hospital were borne by him. He further stated that for around one year after the birth of child, his daughter lived with him and on request of her inlaws again went to her matrimonial home. He further stated that for few days, the behaviour of the inlaws of his daughter was normal, however, FIR No. 432/07 State v. Sandeep & Anr. Page No. 7 of 18 later on they again started harassing his daughter on the issue of giving birth to a girl child. He further stated that one day, the accused had severely beaten his daughter and left her at his home. Thereafter, his daughter filed a complaint in CAW Cell, Nanak Pura and accused persons joined CAW Cell proceedings. He further stated that due to efforts of CAW Cell, Sandeep took his daughter back to the matrimonial house. He further stated that after about 34 months, her inlaws again started harassing her and beating her over trivial issues. He further stated that, thereafter, Sandeep left his daughter at his house saying that he would take her back after arranging a rented accommodation but he never returned to take his daughter and in the year 2011, about 1 ½ month prior to the death of Sandeep, the inlaws of his daughter took her back to the matrimonial home. He further stated that on or about 24 October 2011 Sandeep expired and after cremation, accused Ashok pulled his daughter's hand and asked her to leave the matrimonial home and since then, she has been living with him. He further stated that during investigation, some of the dowry/istridhan articles of his daughter were returned to her but certain articles were still in the possession of accused persons. He was not cross examined by Ld. Defence counsel.
d) PW4 Inspector Rekha stated that on 04.04.2007, she was posted as SI at CAW Cell, Nanakpura, New Delhi. On that day, complaint of complainant Anu D/o Sh. Duli Chand, Ex.PW1/A was marked to her for enquiry. She further deposed that both the parties were called in the CAW Cell and several sessions of meeting were conducted, but no compromise could be effected between both the parties. She further deposed that as accused persons refused FIR No. 432/07 State v. Sandeep & Anr. Page No. 8 of 18 to admit list of istridhan articles given by the complainant and hand over istridhan articles to the complainant, matter was referred for registration of case u/s 498A/406/34 of IPC and her detail report was Ex.PW4/A. She was not cross examined.
e) PW5 Inspector Asha Sinha stated that in the year 2008 after transfer of 1st IO/SI Raj Bala, she was handed over investigation of present case. She stated that during further investigation of the present case, she met complainant Anu and her father Duli Chand and recorded their supplementary statement u/s 161 of Cr.P.C. She further deposed that during investigation, she also met a public witness, namely, Vimal Monga and recorded his statement u/s 161 of Cr.P.C. After completion of investigation, she prepared charge sheet against accused persons and filed the same before the court. She was not cross examined.
f) Accused persons have admitted the factum of registration of FIR Ex.P1.
STATEMENT OF ACCUSED U/S 313 OF CR.P.C.:
5. Statement of accused persons U/s 313 of Cr.P.C were recorded in which they have stated that they are innocent.
DEFENCE EVIDENCE:
6. Accused persons examined two witnesses in their defence.
I. DW1 Komal stated that Sandeep was her maternal uncle FIR No. 432/07 State v. Sandeep & Anr. Page No. 9 of 18 (Mama). She stated that after marriage of PW1 and Sandeep they were living peacefully for only three months and after some time, PW1 started fighting with Sandeep as she wished to live separately. She further stated that they tried to convince her to live with her grand mother (Nani), but PW1 left her matrimonial home after fighting with her Sandeep and her Nani. She further stated that despite their repeated requests, she did not come back from her parental home. She further stated that complainant used to insist that Sandeep should live separately with her. She further stated that her father Sh. Ashok lives far away from the family of Sandeep i.e around 20 kms and her father never beat and harassed. She further stated that all the allegations against her father were wrong and false. She further stated that her father never forced the complainant to give divorce and he never interfered in the matrimonial life of complainant and her husband. She further stated that there was no previous complaint against her father. She further stated that her father has two sons and one daughter out of which one son and one daughter is married. She further stated that there is no dispute regarding any issue. She further stated that her family is living together happily and allegations made against her father are wrong and false and her father is innocent.
During cross examination she stated that she had two brothers. She stated that her marriage was performed 5 years ago and Sandeep's marriage was performed 14 years ago and at the time of marriage of Sandeep, she was unmarried. She further stated that she did not remain at the house of her maternal uncle Sandeep. She denied the suggestion that she had not visited the FIR No. 432/07 State v. Sandeep & Anr. Page No. 10 of 18 house of her maternal uncle Sandeep. She denied the suggestion that she had not tried to convince PW1 to live with her grand mother. She denied the suggestion that PW1 had left the house because of harassment and torture given by them. She denied the suggestion that her father had beaten her PW1. She denied the suggestion that her father had forced PW1 to take divorce.
II. DW2 Rani stated that she was the neighbour of accused Ashok and Chando Devi. She further stated that both accused had never troubled the complainant or inflicted any cruelty upon her. She further stated that the husband of the complainant had expired and he did not trouble his wife at all when he was alive and no dowry demand was made by accused persons from the complainant. She further stated that the medical expenses for the delivery of the child of complainant was borne / given by the accused persons. She further stated that receipt showing payment by accused Sandeep is Ex.DW1/A and accused Sandeep was himself working.
During cross examination she denied the suggestion that accused persons committed cruelty upon the complainant. She denied the suggestion that dowry demand was made from the complainant. She denied the suggestion that medical expenses were not borne by the accused Sandeep.
LEGAL PROVISION TO BE SEEN :
7. Charge has been framed against both the accused persons for offence u/s 498A/34 IPC and accused Chando Devi for offence u/s 406 FIR No. 432/07 State v. Sandeep & Anr. Page No. 11 of 18 IPC.
Section 498A IPC provides punishment for subjecting a woman to cruelty by the husband or relative of the husband. A bare perusal shows that the word cruelty encompasses any of the following elements:
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(b) Any wilful conduct which is likely to cause grave physical or mental injury to the woman; or
(c) Any wilful act which is likely to cause danger to life, limb or health whether physical or mental of the woman.
(d) Any harassment of the woman with a view to meet any unlawful demand for dowry.
8. In order to prove the offence under this section the prosecution has to prove that;
I. The accused is the husband or the relative of the husband of the victim woman; and II. He subjected the woman to cruelty as stated in Section 498A IPC.
9. Accused Chando Devi has further been charged under section 406 IPC for misappropriating the property of PW1. Section 406 IPC provides for punishment for criminal breach of trust. Section 405 IPC defines criminal breach of trust, the ingredients of which are as follows:
1. The accused must be entrusted with property or have dominion over property; and
2. The accused must:
FIR No. 432/07 State v. Sandeep & Anr. Page No. 12 of 18
a) dishonestly misappropriate or convert the same to his own use; or
b) dishonestly use or dispose of that property or willfully suffer any other person to do so in violation of
i) any direction of law; or
ii) any legal contract.
10. Dishonest misappropriation of property has been defined u/s 403 IPC as dishonestly misappropriating or converting movable property by a person to his own use.
11. 'Dishonestly' has been defined u/s 24 IPC as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person.
12. From the above stated it flows that the most important ingredient of the offence under section 405 IPC is 'entrustment'. In order to constitute a legal entrustment the complainant must be the owner of property, there must be a transfer of possession, such transfer must be an actual transfer and such transfer must be made to somebody who has no right excepting that of a custodian. After entrustment, there must be dishonest misappropriation of the said property. Hence, the essential question is whether there was entrustment of any property by PW1 to the accused and thereafter was there any dishonest misappropriation.
DECISIONS AND REASONS:
13. In the present case, Sandeep was the husband of the complainant, who expired during the trial. Accused Chando Devi is the FIR No. 432/07 State v. Sandeep & Anr. Page No. 13 of 18 motherinlaw of the complainant and accused Ashok is the husband of sisterinlaw of the complainant. The complainant in her examinationin chief has made specific allegations against accused Chando Devi stating that she started taunting her for bringing insufficient dowry i.e. for not bringing gold rings for all inlaws and for not bringing two wheeler scooter in her marriage. She has made further allegation against accused Ashok. She stated that one day accused Ashok alongwith his wife and Sandeep beat her as she had not brought the articles demanded by them and she was left at her parental house. Her father arranged Rs.20,000/ and handed over the same to Sandeep. She said that even after giving Rs.20,000/ both accused persons would still fight with her and beat her and tell her that she did not do the household work properly. After giving birth to a girl child in March, 2003 complainant remained in her parental house till March, 2004. Thereafter, she was taken back to her matrimonial house. She has stated that she was again beaten by the accused persons and they used to taunt her by saying that she was not doing household work for which she was beaten. One day she was beaten by accused persons and thrown out after which she started staying with her parents. She stated that in the year 2007, she filed a complaint in CAW Cell, but there was a settlement and she went to her matrimonial house. She said that again accused Ashok alongwith his wife started harassing her and beating her over trivial issues. She said that accused Ashok used to reside in her matrimonial house. PW3 has also deposed on similar lines as PW1. PW3 has stated that her daughter told her that both accused persons were demanding gold ring and two wheeler scooter and some cash amount. She further stated that she arranged Rs.20,000/ and handed over the same to Sandeep. Her evidence is in the nature of hearsay evidence and thus, not reliable. The fact that she gave FIR No. 432/07 State v. Sandeep & Anr. Page No. 14 of 18 Rs.20,000/ to Sandeep is not relevant as proceedings have abated against him. Also there is no demand of Rs. 20,000/ made by the accused persons, thus it is not clear as to why Rs. 20,000/ were given to Sandeep.
14. Complainant and PW3 have not been cross examined, thus their examinationinchief is taken to be correct and admitted by the accused persons. However, it remains to be seen whether the allegations as made in the examinationinchief are sufficient to constitute offence u/s 498A IPC for which the accused persons have been charged. Both accused have been charged for subjecting complainant to harassment by raising illegal demand of dowry.
15. From the evidence of PW1 it appears that accused Chando Devi only taunted her for not bringing gold rings and one scooter in her marriage. The mandate of section 498A IPC in explanation (b) is that there must be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for dowry. In her entire evidence complainant has made only one allegation against accused Chando Devi stating that she taunted her for not bringing sufficient dowry. The only other allegation is that PW1 was beaten by Chando Devi for not doing household work properly. The said statement is not with regard to illegal demand of dowry. In the opinion of the court, the same cannot amount to harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for dowry.
The word 'harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to coerce any FIR No. 432/07 State v. Sandeep & Anr. Page No. 15 of 18 person to meet any unlawful demand of property or valuable security, it amounts to 'harassment' as contemplated by s 498A. Word 'Coercion' means persuading or compelling a person to do something by using force or threats. Thus to constitute 'harassment' following ingredients are essential:
(a) woman should be tormented, ie, tortured either physically or mentally through constant interference or intimidation;
(b) such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats; and
(c) intention to subject the woman should be to compel or force her or her relatives to fulfil unlawful demands for any property or valuable security1.
In the present case, there is barely any evidence to show that PW1 was tormented or tortured in order to constitute harassment as discussed above. One off incident of beating for dowry cannot constitute harassment in the opinion of the court.
16. PW1 has further stated that accused Ashok alongwith his wife and Sandeep started forcing her to bring articles as stated and one day they beat her for not bringing dowry as demanded by them. Thereafter, Rs.20,000/ were handed over to Sandeep, but still they fought with her and used to beat her. The complainant has not said that the fighting or beating was in relation to dowry demand. Thereafter, there are allegations of beatings against accused Ashok, but the same are for the reason that PW1 did not do household work properly. Even though the complainant has not been cross examined, one witness has been 1 Savitri Devi v. Ramesh Chand and Ors. 2003 Cr.LJ 275 (Del).
FIR No. 432/07 State v. Sandeep & Anr. Page No. 16 of 18 produced in defence who is the daughter of accused Ashok. She deposed as DW1 stating that her father lived almost at a distance of 20km from the matrimonial house of the complainant. In her cross examination, she stated that when the complainant and Sandeep got married she was unmarried at that time. It implies that accused Ashok had his family to maintain and that he resided separately from the matrimonial house of the complainant. Thus, the statement of the complainant that he used to reside at her matrimonial house appears to be untrue. Further, only one incident of beating by accused Ashok for dowry demand has been stated in examinationinchief of the complainant, which in the opinion of the court cannot amount to harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for dowry. The complainant has stated in her evidence that she had disputes with the accused persons on trivial issues and with regard to doing of household work. Thus, it cannot be said that complainant was subjected to cruelty in terms of Section 498A IPC.
17. Accused Chando Devi has been charged for offence u/s 406 IPC. PW1 has stated that when she came to her parental home, she did not take her jewellery and other istridhan articles with her and same were in possession of her motherinlaw. She said that during investigation she handed over list of dowry articles to the IO which is Ex.PW1/D. She said that later police seized some of her istridhan articles vide seizure memo Ex.PW1/E and handed over the same to her. She, however, said that she did not receive her jewellery articles. In the statement of the IO/PW4, she has deposed that accused persons refused to admit list of istridhan articles given by the complainant and matter was referred for registration of FIR u/s 406 IPC also. Since, PW1 has not been cross FIR No. 432/07 State v. Sandeep & Anr. Page No. 17 of 18 examined it implies that accused Chando Devi admitted that jewellery articles of the complainant, which she did not receive, remained in her possession. For offence u/s 406 IPC it must be proved that accused was entrusted with the property and the same was dishonestly misappropriated. Even though the complainant had said that her jewellery articles were in possession of her motherinlaw, nowhere has she stated that the same were entrusted to her i.e. that she had handed over this property to her motherinlaw for specific purpose. To constitute legal entrustment complainant must show that she was the owner of the property and she had transferred the possession to somebody who had no right over that property except for a custodian. The complainant has not discharged this burden.
18. In the present case, the allegation is with regard to harassment of the complainant for dowry as per section 498A explanation (b). However, the prosecution has failed to prove any harassment of the complainant for dowry.
19. The test in criminal cases is that the guilt of the accused must be proved beyond reasonable doubt. The prosecution has failed to prove the same. In view of the above discussion, accused Ashok and Chando Devi are both acquitted for offence u/s 498A/34 IPC and accused Chando Devi is also acquitted for offence u/s 406 IPC.
Pronounced in open court (BHAVNA KALIA)
on 11th of July, 2016 M.M./Mahila Court01/South District
New Delhi/11.07.2016
FIR No. 432/07 State v. Sandeep & Anr. Page No. 18 of 18