Delhi District Court
State vs . Phool Singh & Ors. on 18 May, 2012
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE,
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURTS, NEW DELHI.
Unique ID No. 02406R0059322001
State Vs. Phool Singh & Ors.
FIR No. 461/98
P. S. Badarpur
U/S 498A/406/34 IPC
JUDGMENT:
1. Date of institution 23.03.2000
2. Date of commission of offence On and after 20.02.1994
3. Name of the complainant Manju
4. Name of the accused 1. Virender S/o Phool
Singh, R/o 350, Ali
Gaon, Badarpu
2. Phool Singh S/o Sh.
Hari Singh R/o 350, Ali
Gaon, Badarpur
5. Nature of offence complained of 498A/406 IPC
6. Plea of the accused Accused persons
pleaded not guilty
7. Date reserved for order 15.05.2012
8. Final Order Acquitted.
9. Date of such order 18.05.2012
BRIEF FACTS OF THE CASE:
1. Brief narration of facts is that accused were arrested by FIR No. 461/98 PS Badarpur Page No. 1 police of PS Kalkaji and sent to this Court to face trial on the complaint of the complainant that accused persons on or after 20.02.1994 in furtherance of their common intention subjected the complainant to cruelty coupled with demand of dowry. They were also entrusted with stridhan articles of complainant which were not returned back to her on demand. Hence the accused persons committed offence u/s 498A/406 IPC
2. After complying with the provisions of section 207 Cr. P.C notice/charge was framed against persons on 14.12.2001 to which they pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined following 6 witnesses.
4. PW1 H.C. Abdul Qayum is the duty officer.
5. PW2 Manju is the complainant. She deposed that she was married to accused Virender. She has given the list of dowry articles given at the time of marriage. After her marriage all the jewelery was taken away by mother in law and father in law. A demand of fridge and scooter was raised by all the three accused persons. She was asked to leave the matrimonial house and come back only after she has fulfilled the demand. She was once medically examined and the MLC is Mark A. She was beaten by accused Virender and Phool Singh for non bringing fridge and scooter. After she filed the complaint, she received typed letter from the accused persons reiterating their demands however, she is not in possession of FIR No. 461/98 PS Badarpur Page No. 2 the letter now. She has demanded her stridhan from the accused persons but they have refused to return the same.
In her cross examination, she stated that she had given the list of dowry articles to the police. Her statement was confronted from her earlier statement. She admitted that she had not mentioned about the typed letter in her complaint. She has not even mentioned about the demand of fridge, scooter, TV, Gold chain in her earlier complaint. She admitted that the list of dowry articles was not prepared in her presence. She also admitted that she has not mentioned in her complaint that the jewelery was taken away by the mother in law and father in law neither the same was mentioned in the supplementary statement. She further admitted that she had not mentioned about the MLC in her statement. She denied the suggestion that she had started compelling her husband to shift in a separate accommodation soon after her marriage. She further admitted that her father had visited the house in July 1997 and had forced her father in law to provide separate accommodation to her and her husband. She stated that her father had only visited her matrimonial house after her father in law had brought another lady for her husband. She also denied that her father had compelled her father in law to give Rs. Three lacs. She did not remember the date, month or year when she was thrown out of the matrimonial house. She also denied that she had called up her father in law from her parental house and threatened him that either they should pay Rs. Three lacs or they would be implicated in a false case. She denied that the accused had come to her parental house to FIR No. 461/98 PS Badarpur Page No. 3 take her back.
6. PW3 Raj Singh proved MLC of complainant prepared by Dr. Arbind Kumar.
7. PW4 Rajpal Singh is the father of complainant. He deposed that he had given dowry as per his capacity. After few days of marriage of her daughter was both physically and mentally tortured by the accused persons. A demand of scooter and fridge was raised from his daughter. When the son of his daughter was born, accused Phool Singh and his wife demanded 'chuchak' and he paid Rs. Ten thousand to accused Phool Singh. He also received a message from accused Phool Singh to bring fridge and scooter but he had given clothes, gifts and cash of Rs. Ten thousand and gold chain for his grandson. He made efforts for reconciliation but nothing could materialise. He received a call from his daughter that she was given beatings by the accused persons. He along with 6-7 persons reached the matrimonial house of his daughter and reported the matter at PS Badarpur in 1998 and the FIR was registered. His daughter was medically examined. The dowry articles at the time of marriage were entrusted to Virender and Phool Singh and same have not been returned despite demand.
In his cross examination, he admitted that he did not tell the police that accused Phool Singh had sent a message for demand of scooter and fridge at the time of 'chuchak'. He further stated that the list of dowry articles was prepared by FIR No. 461/98 PS Badarpur Page No. 4 his brother. The list was prepared at the time of registration of FIR.
8. PW5 ASI Rajinder SIngh deposed that he got medical examination done of complainant through W/Ct. Bimla at AIIMS.
9. PW6 Giriraj Singh is the uncle of complainant. He deposed that stridhan articles were given as per their capacity in the marriage. When she came back to her parental house, he was told that a quarrel used to take place between the complainant and her husband and she was also given beatings by her in laws for non-fulfillment of demand of money and jewelery.
In his cross examination, he admitted that the complainant is presently residing in her matrimonial house for the last two and a half years but he has been told that she is not provided with any money. At the time of marriage of the complainant, his brother Rajpal SIngh was doing the job of bullock cart and was earning Rs. 100/- to 150/- per day. He was the sole earning member of the family and all the members were dependent on his income.
10. Evidence of the prosecution was closed on the statement of Ld. APP. Statement of accused persons u/s 313 CrPC was recorded in which they stated that father of complainant used to demand mony from accused Phool Singh as it was second marriage of accused Virender and due to non fulfillment of the same, they have been falsey implicated in the case. Accused FIR No. 461/98 PS Badarpur Page No. 5 persons chose not to lead evidence in defence.
11. The case was argued at length by the Ld. APP for the State and the counsel for the accused persons. Ld. APP submitted that the prosecution has substantially succeeded in establishing the case against the accused persons. From the deposition of the prosecution witnesses guilt of the accused persons is proved beyond reasonable doubt.
12. On the contrary, counsel for the accused persons argued that the accused persons have been falsely implicated in the case by the complainant. It was argued by the counsel that neither the complainant nor her father have mentioned anything about any demand being raised by the accused persons in their previous complaints and statement u/s 161 CrPC. First time in the court in their testimonies, the alleged demand of dowry has been mentioned which is an improvement. All the three witnesses of the prosecution have given contradictory versions. For the last two and a half years, the complainant is residing in her matrimonial house. IO has not been examined. No dowry list was prepared at the time of marriage. The same was prepared in the police station at the time of registration of the case. Even otherwise, no bills have been attached to prove that the said dowry articles were given at the time of marriage. Both the accused persons deserve acquittal.
13. I have heard the rival contentions of both the counsels as well as gone through testimonies of witnesses and perused the FIR No. 461/98 PS Badarpur Page No. 6 records. I am of the view that complainant had filed her first complaint Ex. PW2/1 on 13.07.1998. She has not mentioned anything relating to the demand of dowry or that she was being harassed for non fulfillment of the said demand. Thereafter, the statements of other witnesses were recorded. Perusal of statements of father of complainant as well as her uncle would reveal that there is no mention of any specific demand being raised by the accused persons whereas all the three said witnesses in the court have categorically stated that a demand of fridge and scooter was raised. Both these demands are reiterated in the statements of PW2 the complainant as well as her father PW4. As per the statement of complainant, jewelery was entrusted to mother in law and father in law but as per the testimony of PW4, it was entrusted to husband and father in law at the time of marriage. In her cross examination, demand of fridge and scooter was increased to the demand of fridge, cooler, T.V gold chain etc by the complainant PW2. Father of the complainant has also mentioned about the demand at the time of birth of the child of complainant and giving Rs. Ten thousand to the father in law ie the accused Phool Singh and fulfillment of the same along with gold chain, clothes and other gifts. There is no mention of any demand being raised at the time of birth of the child in the testimony of complainant. This was not even mentioned in the earlier statements of the father. The two material witnesses of the prosecution are complainant and her father. There are contradictions in the allegations of the said two witnesses. In case the complainant was actually harassed by the accused persons then the said demands should have FIR No. 461/98 PS Badarpur Page No. 7 been mentioned in the complaint of the complainant as well as earlier statements of the father. This is certainly an improvement by both the witnesses in the court. As far as PW6 the uncle of complainant is concerned, he is only the heresay witness as he has not disclosed the source from where he came to know that the complainant was harassed for the non fulfillment of the said demands. The said witness has even gone to the extent of saying that the complainant is residing in her matrimonial house for the last three years. In case she was so harassed for the demand of dowry, it has not been explained as to how she is residing in the said house for a period of at least three years in her house. She has not mentioned even a single date when the demand was raised or cruelty was committed.
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 498-A of IPC.
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 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 FIR No. 461/98 PS Badarpur Page No. 8 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 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.
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 498A is concerned.
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.
In view of the aforesaid discussion, I conclude that the FIR No. 461/98 PS Badarpur Page No. 9 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.
14. 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 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.
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.
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.
FIR No. 461/98 PS Badarpur Page No. 10In Shanti Devi Vs. State of Harayana I (2000) DMC 697 it was 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.
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.
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.
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 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 FIR No. 461/98 PS Badarpur Page No. 11 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."
15. It is the contention of both PW2 and PW4 that no list was made at the time of marriage. List, if any was prepared by PW6 in the police station at the time of filing of the complaint. No bills have been filed in order to substantiate their allegations that the said articles were actually given. Moreover, no articles was seized from the house of the accused as per the list. None of the prosecution witness had deposed that the same have been misappropriated by the accused persons. I feel that even offence u/s 406 IPC is not made out.
Accused persons are acquitted for the offences alleged against them.
Announced in open court ( POOJA TALWAR )
on 18.05.2012. M.M/MAHILA COURT/SED
Saket Courts, New Delhi.
FIR No. 461/98 PS Badarpur Page No. 12