Delhi District Court
Smt. Santosh Kumari vs State on 3 December, 2018
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IN THE COURT OF SH. SANJAY KHANAGWAL
SPECIAL JUDGE (PC ACT)-05 (ACB), CENTRAL,
TIS HAZARI COURTS, Delhi
Crl. Appeal No. 95/18
Smt. Santosh Kumari
wife of Sh. Shankar Lal,
D/o Sh. Dhuri Lal,
R/o 313/91-I, Tulsi Nagar,
Inderlok, Delhi.
..........Appellant
Versus
1. State.
2. Kamal
son of Sh. Jwala Prasad,
R/o H.No.228/232,
Gali No.12/5,
Mukundpur,
Part-II, Delhi.
3. Laxmi
D/o sh. Jwala Prasad,
W/o Sh. Vijay Kumar,
R/o Dinod Road,
Brijwasi Colony,
Bhiwani, Haryana.
4. Vimla
D/o Sh. Jwala Prasad,
R/o H.No.140, Block F-1,
Sunder Nagri, Mandoli,
North East, Delhi-110093.
5. Ram Dulari
D/o Sh. Jwala Prasad,
wife of Late Sh. Ishwar Prasad,
R/o H.No.C-82, Mahendra Puri,
Modinagar, Ghaziabad, UP.
..........Respondents
Crl.Appeal. No.95/18
Santosh Kumari V. State & Others 1/13
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Date of institution:27.02.2018
Date of reserving the Judgment: 1.12.2018
Date of Pronouncement of Judgment:3.12.2018 .
JUDGMENT:-
1). This appeal U/s 386 CrPC has been preferred by the appellant against the impugned judgment dated 31.1.2018 passed by the Ld. MM Mahila Court, central Distt. Tis Hazari. The respondents namely Laxmi, Ram Dulari and Vimla were acquitted of the offence punishable u/s 498A/406 readwith section 34 IPC and respondents Kamal was acquitted of the offence punishable u/s 498A readwith section 34 IPC by way of impugned judgment. Appellant herein is the victim/complainant.
2). The FIR in the present case was registered on the complaint of appellant who was married to accused Shankar Lal on 20.11.1999. After the marriage she came to her matrimonial home where her husband and the relatives of his husband i.e. respondents subjected her to cruelty. Not only that they harassed her to meet the unlawful dowry demand.
During the period of subsistence of her marriage she entrusted her istridhan to respondent Ram Dulari, Vimla and Laxmi which they misappropriated it for their own use and refused to return the same on her demand.
Therefore, charge was framed against the Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 2/13 3 respondents Laxmi, Ram Dulari and Vimla u/s 498A/406 readwith section 34 IPC and u/s 498A readwith section 34 IPC against accused Kamal.
3). I have heard arguments on behalf of both the parties and perused the record carefully.
4). It is averred by the counsel for the appellant that Ld. Trial Court has failed to appreciate the facts and the evidence of the case correctly. There are sufficient evidence on record to show that accused persons subjected the complainant Santosh Kumari to cruelty in order to meet unlawful demand. There are several instances which show the demand of dowry by the respondents. Prosecution has also produced the list of istridhan articles to prove the entrustment upon the respondent. PW7 Rakesh Kumar and PW8 Chetan Kumar, brother of the appellant in their testimony proved the payment of money in response to the demand of dowry and these witnesses have supported the testimony of PW5 appellant.
5). It is submitted on behalf of respondent that Ld. Trial Court has rightly acquitted the respondents from the case based upon the false complaint of the appellant.
6). In order to prove the offence against the respondent, prosecution was required to prove:
i) That respondents are the relatives of the husband of complainant;
ii) whether respondents subjected the appellant Smt. Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 3/13 4 Santosh Kumari to cruelty? iii) Whether the cruelty was a willful conduct of a nature
likely to drive the appellant to commit suicide or to cause her grave injury or danger to life, limb or health?
iv) Whether harassment of appellant was with a view to coercing her to meet unlawful demand of dowry. Or the harassment was only on account of her failure to meet out such unlawful demand of dowry?
v) Whether appellant had entrusted the respondents the dowry articles as per the list Ex.PW5/D and Ex. PW5/E and same were misappropriated by the respondents Laxmi, Ram Dulari and Vimla to their own use and they refused to return the same on the demand of the appellant?.
7). There is no dispute in respect to the relationship of the appellant with the respondents. Appellant is the sisterinlaw of the respondents. None of the parties has disputed this fact.
8). The testimony of PW5, PW7 and PW8 are vital for the case of the prosecution. The testimony of PW5the complainant is also to be seen in the light of her complaint PW5/A which was given for the registration of the case.
On several occasions cruelty by inflicting injuries upon the appellant has been alleged against the respondents. In one of such incident narrated in her complaint that on Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 4/13 5 29.7.2000 that appellant was beaten by the respondents on account of the motherinlaw leaving the matrimonial house and went to Nangloi. In her testimony she stated that she was held responsible for leaving the house but in her complaint Ex. PW5/A, she stated that on 29.7.2000 her motherinlaw left the house without informing and all the respondents alongwith other relatives scolded and beaten her. Both the versions are not corroborating each other. In testimony before court she made some improvement by saying that she was beaten as she was held responsible of leaving the house by motherinlaw. Apart from this there is no proof i.e. any complaint to the police or otherwise or any MLC has been produced in her testimony to substantiate this fact of beatings.
9). There is another occasion of beating by the respondent has come up in the testimony of PW5, she deposed that on 2.11.2000 respondent Vimla, Laxmi and Kamal beaten her and torn off her clothes . She was taken to Jainmuni Charitable Hospital when doctor made inquiries about her injuries she stated that she had fallen from the roof. This version of appellant cannot be believed due to the fact that in her testimony itself she has narrated to the doctor about falling from the roof, moreover Ex. PW12/A is the xray report also does not show any injury upon the appellant. The OPD ticket mark A which has been produced in the prosecution evidence cannot be relied upon due to the fact that it is a photocopy, original of the same has not been produced.
Crl.Appeal. No.95/18Santosh Kumari V. State & Others 5/13
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10). In her testimony, she has alleged that on 7.12.2000
respondent Vimla, Laxmi, Kamal alongwith other inlaws beaten her and thrown her out of the matrimonial house and threatened her not to come otherwise she will be killed. In her complaint she had not named anyone who drove her out of the matrimonial house. It appears in her testimony before the court she had made improvement in her complaint Ex. PW5/A. In the chief examination PW5 has stated that when she reached her matrimonial house for the first time after the marriage nobody asked her for water and food till the evening. In crossexamination, she has admitted that there is a custom in her inlaws family that on the day when bride come to her matrimonial home, no meals are given to her on first day. The testimony of PW5 itself has diluted the allegation of any cruelty even on the first day of her marriage.
11.) Now it is to be seen whether the cruelty which has been alleged by the appellant was come under the definition of harassment on account her failure to meet any unlawful demand of dowry.
So far as, averments of the complainant with respect to spending Rs.2.5 lakh on her marriage and gifting of several jewellery articles or giving Rs.15448/ as 'Shagun' and further gifting of two gold chains, sarees etc. on the occasion of reception party does not come under the Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 6/13 7 definition of unlawful demand since this has not been the complaint or the case of the appellant that these articles were actually demanded by the respondents. Moreover, the brother of appellant i.e. PW Raj Kumar, Chetan and Rakesh also has not stated anything about these demands.
12). In order to prove the post marriage dowry demands, again the testimony of PW5, 7 and 8 are vital. Ld. Trial court has rightly observed that merely taunts and jibes for bringing insufficient dowry do not amount to causing harassment to a woman or subjecting her to cruelty for dowry. On some occasion if has been alleged by the complainant about such taunts but same are not sufficient to constitute cruelty for dowry.
13). Cruelty on account of demand of dowry is further falsified in view of the complaint Ex. PW5/A wherein she stated that on telling her parents about misbehaviour of accused persons her brother Chetan came to matrimonial house. It was alleged that her fatherinlaw and Kamal abused him and threatened him that in case the demand of Rs.1 lakh was not met they would not keep the complainant in matrimonial house. In her deposition in the court she did not mention Chetan's name and has stated that her brother came at her matrimonial house.
There is further contradiction in her testimony and complaint. In her testimony she stated that when her brother Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 7/13 8 came to her matrimonial house her fatherinlaw and Devar Kamal demanded a sum of Rs.50,000/ from her whereas in her complaint, she has stated about the demand of Rs.1 lac. There is no date of such demand has been mentioned either in testimony or in the complaint. Therefore, this incident of cruelty on account of demand of dowry is also not reliable. Regarding this incident she has further stated in her testimony that when demand was not met, her fatherinlaw, motherinlaw and sisterinlaw told her husband to leave her to the parental house in the year 2000, whereas, in her complaint she merely stated that her husband Shankar Lal dropped her at parental house. Name of other inlaws has not been mentioned in the same. Moreover, no date as such is also given in the testimony or in the complaint.
14). It has been further alleged that on 16.2.2000 in response to the demand of the accused persons, her brother Rakesh withdrew an amount of Rs.50,000/ from her account and handed over the same to her fatherinlaw, whereas, in her testimony she stated that the money was given to her fatherinlaw and Devar. This improvement has been made in her testimony. The money was allegedly paid in cash. This contradiction is further highlighted when PW7 Rakesh also deposed that Rs.50,000/ was given to accused Kamal and Rs.50,000/ to accused Shankar Lal.
15.) There is mentioning of further demand of Rs.50,000/ Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 8/13 9
by the husband of the complainant to start a business which was duly paid to him. Under pressure by Rakesh after withdrawing Rs.50,000/ from his account. Nowhere either in testimony or in complaint, name of any of the respondents has been mentioned with respect to this demand. Moreover, no date of such demand has been mentioned.
16.) Demand of payment of Rs.50,000/ in itself is not sufficient to establish the demand of dowry and payment thereof in response to the same in view of the fact that bank statement only showing the withdrawl of money is not a proof that actually the money was paid to respondents.
17). In her complaint she alleged that when her brother Rakesh demanded return of money on account of accused Shankar Lal failed to start any business, accused Shankar Lal, Kamal, Laxmi, Ram Dulari and Vimla gave her beating but in testimony before court she deposed that only her husband had hit her with a belt. Therefore, this fact of cruelty on account of demand is not established against the respondents in view of these contradictions.
18). Testimony of PW7 and 8 is more or less based upon necessary evidence as they have stated whatever has been informed to them by their sister PW5. Therefore, their testimony is not of much weightage in view of this fact.
Crl.Appeal. No.95/18Santosh Kumari V. State & Others 9/13
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19). There is another instance of demand by her in
laws of Rs.1 lakh on the pretext of marriage of Laxmi and the threat by Devar Kamal of dire consequences. This fact is also not established as no date of this incident has been given in her testimony.
20). Therefore in view of the totality of the facts and circumstances, the appellant has failed to prove the ingriedients of section 498A IPC beyond reasonable doubts. Several contradictions in the testimony of complainant is observed which cast doubt over the testimony and complaint of PW5/appellant. Prosecution required to prove the instances of cruelty beyond reasonable doubts.
Therefore, it is not proved that respondents subjected the appellant Smt. Santosh Kumari to cruelty.
It is also not proved that cruelty was a willful conduct of a nature likely to drive the appellant to commit suicide or to cause her grave injury or danger to life, limb or health?
The prosecution has also failed to prove that harassment of appellant was with a view to coercing her to meet unlawful demand of dowry or the harassment was only on account of her failure to meet out such unlawful demand of dowry.
Crl.Appeal. No.95/18Santosh Kumari V. State & Others 10/13
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21). In this case charge u/s 406 IPC of mis
appropriation is also framed against the accused namely Laxmi, Vimla and Ram Dulari. In order to prove charge U/s 406 IPC, prosecution is required to prove:
i) The complainant had entrusted any dowry articles or istridhan to the accused.
ii) The complainant had demanded her dowry articles and istridhan from the accused.
iii) That accused has refused to return the dowry articles or istridhan of the complainant.
Ld. Trial Court has rightly observed that prosecution has failed to prove the entrustment of any dowry article or istridhan to the accused. Since there is no specific evidence has come out on record that jewellery articles were entrusted upon the respondents. The list of dowry articles Ex. PW5/D is undated and unsigned list. It is not proved that when this list was prepared, therefore, reliance cannot be placed upon the same to prove the dowry articles. There is another list which is Ex. PW5/E dated 17.9.2003. This list prepared only after the marriage of the complainant. Therefore appellant not able to prove that the articles mentioned therein were given to the accused persons at the time of marriage of complainant. The prosecution has further failed to bring on record any receipt of jewellery article, no person has been examined to prove that where from these articles were purchased. No other evidence in support of purchase has been produced. Therefore, prosecution failed to prove the Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 11/13 12 existence of dowry articles as per list ex. PW5/D and Ex. PW5/E. Moreover, this list is not signed by both the parties at the time of marriage which is a must in order to show that actually one party has given the particular articles and other party has received the same in the marriage.
22.) So far as demand of dowry articles of istridhan from the accused persons is also not proved. No specific incident, date or demand has been come out in the testimony or in the complaint of the complainant which showed demand was made.
Similarly, it is also not proved in the testimony of witnesses that there is any refusal on the part of the respondents to return the alleged dowry articles/istridhan of the complainant.
In the facts and circumstances the petitioner has also failed to show any evidence regarding the complainant had entrusted any dowry articles or istridhan to the accused and the complainant had demanded her dowry articles and istridhan from the accused and the that accused has refused to return the dowry articles or istridhan of the complainant.
23). Therefore, petitioner has failed to highlight any infirmity or illegality in the impugned judgment of the trial court.
Crl.Appeal. No.95/18Santosh Kumari V. State & Others 12/13 13 24). Appeal is accordingly dismissed. 25). Trial court record be sent back immediately with the copy of this judgment. 26). File of appeal be consigned to record room. Digitally signed by SANJAY SANJAY KHANAGWAL KHANAGWAL Date: 2018.12.06 15:54:50 +0530 Announced in open court (SANJAY KHANAGWAL) on 3rd day of Dec., 2018 Spl.Judge (PC ACT)-05(ACB) Central /THC/Delhi Crl.Appeal. No.95/18 Santosh Kumari V. State & Others 13/13