Delhi District Court
Fir No. 143/2012 State vs Mohd. Kamil & Others Page 1 Of 37 on 11 May, 2018
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-01,
MAHILA COURT, CENTRAL: DELHI
1. FIR No. 143/2012 PS Chandni Mahal
2. Case No. 290820/2016
3. Title State v. Mohd. Kamil & ors.
3(A) Name of complainant Ms Anjum W/o Shri Mohd. Kamil,
R/o H.No. 1313, Gali Chain Sukh
Dass, Darya Ganj, Delhi.
3(B) Name of accused persons 1.Mohd. Kamil S/o Shri Mohd. Aqil, R/o H. No. 1057, Gali Madrassa Hussain Bux, Jama Masjid, Delhi.
2.Mohd. Aqil @ Jabbar, R/o H. No.
1057, Gali Madrassa Hussain Bux,
Jama Masjid, Delhi. (Matter
abated viz-a-viz him vide order
dated 31.10.2017).
Digitally signed
by NEHA
PALIWAL
NEHA Date:
PALIWAL 2018.05.14
18:16:46
+0530
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 1 of 37
3.Suraiya, W/o Sh. Mohd. Aqil @
Jabbar, R/o H. No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi. (Matter abated viz-
a-viz her vide order dated
01.12.2017).
4.Mohd. Amil, S/o Mohd. Aqil @
Jabbar, R/o H. No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi.
5. Javed, S/o Mohd. Aqil @ Jabbar,
R/o H. No. 1057, Gali Madrassa
Hussain Bux, Jama Masjid, Delhi.
6. Shahana, W/o Sh. Abdul Wahid,
D/o Mohd. Aqil @ Jabbar, R/o H.
No. A-33, Gali No.9, in front of
Government School, Wazirabad,
Delhi (Landlord Aziz-ur-Rehman).
Digitally signed
by NEHA
NEHA PALIWAL
PALIWAL Date: 2018.05.14
18:17:38 +0530
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 2 of 37
7. Shabana, D/o Mohd. Aqil @
Jabbar, R/o H. No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi.
8. Rukhsana, D/o Mohd. Aqil @
Jabbar, R/o H. No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi.
9.Farzana, D/o Mohd. Aqil @
Jabbar, R/o H. No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi.
10.Mohd. Anis, S/o Sh. Mohd.
Nisar, R/o H.No. 1057, Gali
Madrassa Hussain Bux, Jama
Masjid, Delhi.
4. Date of filing of charge- 13.08.2014
sheet
5. Date of Reserving Not reserved. Pronounced on the
same day.
judgment
6. Date of pronouncement 11.05.2018
Digitally signed by NEHA PALIWAL
NEHA PALIWAL Date: 2018.05.14 18:18:17 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 3 of 37
7. Date of alleged Since 31.12.2002 till filing of commission of offence complaint before CAW Cell.
8. Offence complained of Under Section 498A/406/34 IPC
9. Offence charged with Accused Mohd. Kamil, Amil, Javed, Shahana, Shabana, Rukhsana, Farzana and Mohd. Anis are charged for the offences punishable u/s 498A/406/34 IPC.
10. Plea of the accused Pleaded not guilty persons
11. Final order Accused Mohd. Kamil, Amil, Javed, Shahana, Shabana, Rukhsana, Farzana and Mohd. Anis are acquitted from offences punishable u/s 498A IPC and Section 406 IPC both read with Section 34 IPC.
BRIEF REASONS FOR THE DECISION OF THE CASE:-
Brief facts of the case:
1. FIR Ex. PW-6/B was registered on the complaint Ex. PW-
3/A of complainant Mst. Anjum, against her husband Mohd. Kamil Digitally signed NEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:20:56 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 4 of 37 and her relatives-in-law namely Mohd. Akil, Suraiya, Mohd. Amil, Javed, Shahana, Shabana, Rukhsana, Farzana and Mohd. Anees.
2. By way of her complaint dated 07.06.2011, addressed to ACP CAW Cell, it was complained by the complainant that she was harassed mentally and physically by her husband and relatives-in-law for bringing allegedly insufficient dowry and with a view to coerce her to bring more dowry.
3. As per the complaint, it was complained by the complainant that she got married to accused Mohd. Kamil on 31.12.2002 and came to her matrimonial house after proper ceremony on 25.03.2003. One girl child was born to her out of this marriage on 23.01.2004. Expensive articles and gold and silver jewelery were given to her by her parents in her marriage. Her relatives-in-law had also given her jewelery in marriage. When she reached her matrimonial home after proper ceremony, her mother-in-law alongwith her sisters-in-law taunted her for the quality of articles given in dowry. Her mother-in-law also took away the jewelery which she was wearing. On 26.03.2003, her mother-in-law demanded Rs. 2 lacs from her as dowry and when she expressed her inability to fulfill the same, her sisters-in-law Shahana, Rukhsana and Farzana abused her in filthy language and beat her by slaps and leg blows. They also demanded Rs. 2 lacs from her and also did not provide food to her. Her husband also demanded Rs. 2 lacs from her and on her objection beat her on Digitally signed by NEHA PALIWAL NEHA Date:
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 5 of 37 PALIWAL 2018.05.14 18:21:29 +0530 27.05.2003. Thereafter, all the family members on that day abused her in filthy language, hit her and her father-in-law and brothers-in-law namely Amil and Javed stated that when she would deliver child then the demand of Rs. 2 lacs has to be fulfilled. When she expressed her inability to get the said demand fulfilled from her parents, she was slapped by her father-in-law, manhandled by her brothers-in-law Amil and Javed and thereafter her sister-in-law Shahana hit her with leg blows and her sisters-
in-law namely Rukhsana and Farzana also hit her with slaps and fists blows as a result of which she got unconscious. She was pregnant at that time.
4. It was further complained by her that all the expenses of child birth were borne by her parents. In the hospital itself, again a demand of Rs. 2 lacs was made by her mother-in-law from her parents and when her parents refused for the same, her relatives- in-law alongwith her husband left her at the Nursing Home and did not even come to meet her. Thereafter, after discharge she went alongwith her mother to her matrimonial house, however there her relatives-in-law insulted her mother and again demanded Rs. 2 lacs. On 28.02.2004, when her father came to meet her, again her father-in-law and husband demanded Rs. 2 lacs from her father and when he expressed his inability to give the same her relatives-in-law started quarreling with her father and when she tried to intervene she was beaten by her husband and father-in-law in front of her father and her father was Digitally signed NEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:21:56 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 6 of 37 humiliated and was asked not to come again.
5. She further complained that in the year 2006 her husband demanded a mobile phone from her father and her father gave Rs. 5000/- for the same. The said mobile phone was kept by her husband. On 12.08.2008 again her husband demanded Rs. 2 lacs from her for the purpose of business and on her refusal she was beaten-up by her husband and mother-in-law. Her sister-in- law tried to oust her from the house, however, the complainant went to her room. Nobody gave her food on that day. Her daughter was in the another room at that time. At around 3.00pm when she went to take her daughter her husband was lying with her daughter. She went to use lavatory attached with that room. When she was in the lavatory she heard the scream of her daughter. She came out and saw that her husband was raping her daughter. When she objected to the same and raised alarm, her husband beat her and showed his knife and threatened to kill her. She got scared and came to her paternal home and told the entire incident to her parents. Initially they kept quiet, however, as the condition of her daughter deteriorated they complained to the police station and a case U/s 354 IPC was registered against her husband.
6. It is further complained by the complainant that since 12.08.2008 she is residing in her maternal home and her relatives-in-law are pressurizing her to take back the case U/s 354 IPC. NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:22:32 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 7 of 37
7. She further complained that on 30.05.2011 her husband came to her and at that time her mother was present in the house. Her husband again made a demand of Rs. 2 lacs from her and asked her to take back the case U/s 354 IPC. She refused for the same and asked her husband to return her entire dowry articles, stridhan articles and jewelery. Her husband consulted his family members on phone and thereafter, refused to return the articles to her.
Investigation Conducted:
8. On the complaint of the complainant, FIR was registered and the matter was investigated. Statement of witnesses were recorded u/s 161 Cr.P.C. Accused Kamil was arrested after giving 7 days notice. Stridhan articles were seized and were handed over to the complainant. All the remaining accused persons were not arrested. The documents, that is, dowry articles list, wedding card, marriage certificate copy, photograph and wedding CD were given by the complainant in the CAW Cell itself. After completion of investigation, charge-sheet was filed.
Trial proceedings:
9. Charge sheet was filed before the Court on 13.08.2014.
Cognizance was taken of the offence and summons were FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 8 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:23:22 +0530 directed to be issued to the accused persons. Arguments were heard on the point of charge. Vide order dated 04.02.2015 it was held that charge for the offence punishable U/s 498 A IPC and 406 IPC was made out against all the accused persons. In terms of the said order, charge was framed against the accused persons vide order dated 20.03.2015 and 25.05.2015, to which the accused persons pleaded not guilty and claimed trial.
10. Prosecution in order to prove its case against the accused persons had examined as many as fourteen witnesses. PW-1 Ct. Dinesh Kumar has taken 10 photographs Ex. P1 collectively of stridhan articles on 04.02.2013 on the instructions of the investigating officer. PW-2 Sh. Aziz-ur-Rehman, being a document translator had translated the nikahnama Mark A of complainant and accused Kamil from Urdu to English. PW-3 Mst. Anjum is the complainant of the present case. PW-4 Mst. Raisa is the mother of the complainant. PW-5 Mohd. Shamim is the photographer who had taken photographs of stridhan Ex. P1 collectively and photographs of marriage of complainant Anjum with Kamil Ex. P2 collectively at the time of marriage of complainant with accused Kamil. PW-6 WASI Kamlesh is the duty officer who had proved before the Court the recording of DD No. 14 A dated 19.09.2012 Ex. PW-6/A (OSR) and the registration of FIR Ex. PW-6/B (OSR). PW-7 SI Dharamvir is the Inquiry Officer, CAW Cell. PW-8 ASI Satish Chand is the witness of investigation. PW-9 SI Pooran Mal is the IO of the present FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 9 of 37 Digitally signed NEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:23:50 +0530 case. PW-10 Sh. Jamaluddin is the father of the complainant. PW-11 Mst. Nayeema and PW-12 Mst. Mehtab Bano are public witnesses. PW-13 HC Yad Ram had produced register no. 19 Ex. PW-13/A (OSR) wherein entry has been made of recovered dowry articles. PW-14 SI Rohtash is another investigating Officer of the present case.
11. Prosecution evidence was closed in the present case vide order of the Court dated 14.11.2017 and the matter was fixed for recording of statement of accused. Statement of accused persons U/s 313 read with Section 281 Cr.P.C. was recorded before the Court on 01.12.2017, wherein it was submitted by the accused persons that they are innocent and have been falsely implicated in the present case by the complainant in connivance with her family members. Accused Kamil had not sexually abused his daughter and he was even acquitted in the case U/s 354 IPC which was lodged by the complainant against him. After the said acquittal, the present FIR was lodged after 7-8 years of marriage to falsely implicate the accused. Thereafter, the matter was fixed for defence evidence.
12. Accused persons at the stage of defence evidence examined accused Mohd. Kamil as DW-1 after application U/s 315 Cr.P.C. was allowed with respect to the same. As it was submitted by the accused persons that they do not wish to lead any further evidence in their defence, defence evidence was closed vide order dated 12.01.2018 and the matter was fixed for FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 10 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:24:05 +0530 final arguments.
13. I have heard the final arguments as advanced by the Ld. APP for State and the Ld. Counsel for accused persons.
Prosecution evidence:
14. PW-3 Ms. Anjum is the complainant of the present case.
She had deposed that she got married to accused Mohd. Kamil on 13.12.2002. She came to her matrimonial house after proper ceremony on 25.03.2003. A daughter was born to her on 23.01.2004. She was given silver and gold jewelery by her parents alongwith other house hold articles as dowry.
15. She further deposed that her husband and relatives-in-law harassed and beat her for dowry demand after six months of her marriage. Her husband sexually abused her daughter as a result of which her daughter is unable to move and had become mentally challenged. She further deposed that she was also sexually assaulted by her husband in unnatural manner as a result of which she is suffering from many deformities.
16. She further complained that the accused demanded Rs.
20,000/- from her for treatment of his mother. She brought Rs. 20,000/- from her parents house and gave the same to the accused and the said amount was used by accused for treatment of his mother. Her husband also demanded Rs. 2 lacs from her FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 11 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:24:19 +0530 parents for doing business but she was unable to fulfill that demand.
17. PW-3/complainant was declared partly hostile by the State and was cross-examined by the State. In the leading questions put to her she admitted her entire complaint verbatim except for few allegations. She denied on leading question put by State that she was not given food on 26.03.2003 after being beaten up by her relatives in law. She denied that when she was pregnant her sister-in-law Shahana also beat her with kicks alongwith the other accused persons. She denied that on 28.02.2004 her relatives- in-law quarreled with her father and beat her in presence of her father and thereafter her father was insulted and expelled from the matrimonial house.
18. PW-3 further deposed that she gave her complaint Ex. PW-
3/A to the police alongwith list of dowry articles Ex. PW-3/B. The photographs of her marriage are Ex. P2 collectively. Accused Mohd. Kamil was arrested at her instance vide arrest memo Ex. PW-3/C after his personal search conducted vide memo Ex. PW- 3/D. The dowry articles Ex. P1 collectively were seized vide seizure memo Ex. PW-3/E running into 5 pages. She identified her signatures on the Final report of CAW Cell Ex. PW-7/C and on day to day proceedings of CAW Cell Ex. PW-3/F. She further deposed that she had lost the original receipts of stridhan and dowry articles. She further admitted that Ex. PW-3/G is the CD of her marriage.
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 12 of 37 Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2018.05.14
18:24:31 +0530
19. PW-3 in her cross-examination conducted by the Ld. Counsel for the accused admitted that accused Mohd. Kamil is the son of her real paternal aunt. She further admitted that she does not possess the receipts of any dowry articles or gold or silver jewelery articles which were given to her in marriage. She admitted that prior to marriage there were frequent visiting relations between her parental family and the family of her in- laws.
20. PW-3 further deposed that her relatives-in-law started harassing her and she was physically beaten and tortured for the purpose of dowry after the birth of her child who was born after 10 months of marriage. She admitted that she cannot tell the date, month and year when her husband allegedly demanded Rs. 2 lacs from her parents. She further admitted that she cannot tell the date, month and year when her parents-in-law and other relatives-in-law demanded Rs. 2 lacs and other cash from her and her parents. She admitted that the complaint of dowry harassment and torture was made by her only after 8 years of marriage and except the complaint lodged at CAW Cell she had not lodged any other complaint of dowry harassment and torture against her husband and relatives-in-law. She further admitted that she had not placed on record any medical document in order to show that she was beaten by the accused persons. She deposed that she had left the matrimonial home in the year 2008.
21. PW-3 further admitted that she cannot tell the date, month FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 13 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:24:45 +0530 or year when demand of Rs.20,000/- was made by accused from her for treatment of his mother.
22. PW-4 Ms. Raisa is the mother of the complainant. She had deposed that after few days of marriage, her daughter was harassed by the husband and relatives-in-law of her daughter for demand of dowry. Her daughter started living with them for the last 8 years due to dowry harassment caused by the husband and relatives-in-law of her daughter.
23. PW-4 admitted in her cross-examination conducted by the Ld. Counsel for the accused that prior to marriage her family had cordial and visiting relations with the family of accused Kamil and accused Kamil is the son of her real sister-in-law. She deposed that her daughter was harassed after 2-3 months of marriage by the accused persons.
24. PW-5 Mohd. Shamim is the photographer. He had deposed that he had worked as a photographer in the marriage of complainant and accused Kamil and had photographed the event and made video of the same. The photographs of stridhan are Ex. P1 collectively and photographs of marriage are Ex. P2 collectively. He admitted in his cross-examination that he had taken the photographs of the events after marriage as well, however, he cannot tell when had he taken the photographs of those events.
25. PW-7 SI Dharambir is the Inquiry Officer CAW Cell. He had FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 14 of 37 Digitally signed NEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:24:58 +0530 deposed that he had conducted counselling in CAW Cell and the proceedings of the same are Ex. PW-7/A collectively. The day to day hearing proceedings of counseling are Ex. PW-7/C collectively. He further deposed that as no fruitful result came out of the counseling, he prepared final report Ex. PW-7/B. He admitted in his cross-examination that the complainant had not handed over to him any receipt/bill of dowry articles, gold and silver jewelery and other stridhan.
26. PW-8 ASI Satish Chand is the witness of investigation. He had identified his signatures over the arrest memo and personal search memo Ex. PW-3/C and Ex. PW-3/D respectively of accused Kamil.
27. PW-9 SI Puran Mal is the investigating officer of the present case. He had deposed that on 03.02.2013 accused came alongwith the stridhan of the complainant in the police station. He seized the 126 dowry articles Ex. P-1 collectively vide seizure memo Ex. PW-3/E.
28. PW-10 Sh. Jamaluddin is the father of the complainant. He had deposed that after few years of marriage his daughter was harassed by her husband and relatives-in-law for dowry demand. The bills of stridhan and dowry articles were given to the bride- groom and he does not possess the bill of the said articles.
29. PW-10 in his cross-examination by the Ld. Counsel for the accused persons deposed that he does not remember the date, FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 15 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:25:13 +0530 month or year when his daughter was harassed by the accused persons for demand of dowry and when the demand of money was made. He deposed that the accused persons started harassing his daughter for dowry demand after 2-3 years of her marriage. He deposed that he does not know the name and address of the person from whom he had purchased the jewelery and dowry articles. He admitted that the mother of accused Kamil is his real sister. He further admitted that no medical document of his daughter was prepared with respect to her harassment for dowry by the accused persons.
30. PW-11 Mst. Nayeema is a public witness. She had deposed that she came to know after few years of marriage of the complainant that there was some dispute between complainant and her husband, however, she was not aware about its reason. The witness was declared partly hostile by the State and leading questions were put to the witness. In the leading questions also the witness denied that 10 tola gold was given to the complainant by her father in marriage, 4 tola gold and silver items were given to the complainant by her relatives-in-law in marriage. The witness further denied that the complainant was physically and mentally harassed by her husband for bringing less dowry in marriage and she also denied that she had tried to intervene to get the matter settled. In her cross-examination by the Ld. Counsel for the accused persons it was deposed by the witness that she came to know about the dispute after 8-9 years of FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 16 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:25:27 +0530 marriage.
31. PW-12 Mst. Mehtab Bano is another public witness. She had deposed that in the marriage of the complainant, the father of complainant had given dowry articles/stridhan articles as per his status. She had heard about some dispute between the parties. The witness was declared partly hostile by the State and leading questions were put to the witness. In the leading questions also, the witness denied that the complainant was harassed by her husband and relatives-in-law for demand of dowry. She further denied that accused Kamil had sexually assaulted his two-two and a half year old daughter. She denied that she was won over by the accused persons as they are son of her maternal aunt. In her cross-examination by the Ld. Counsel for the accused persons it was admitted by the witness that the marriage between the complainant and accused Kamil was performed in a very simple manner. She further admitted that complainant is the daughter of her maternal uncle.
32. PW-14 SI Rohtash, is also one of the investigating officer of the present case. He had deposed that he had given notice of arrest to accused Mohd. Kamil Ex. PW-14/A and had arrested him pursuant to his personal search. In his cross-examination he admitted that the complainant had not handed over any invoice in respect of dowry articles, stridhan articles and jewelery articles to him. He further admitted that the complainant had not handed over any medical paper/MLC in respect of any injury for dowry FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 17 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:25:48 +0530 harassment to him. He further admitted that the complainant and her father had not disclosed to him the names and address of persons from whom they had allegedly purchased dowry articles, stridhan articles and jewelery. He further deposed that he did not find any independent witness with respect to the allegations of dowry harassment.
Defence evidence:
33. Accused Mohd. Kamil had examined himself as DW-1. He had deposed that he and his family members are innocent and have been falsely implicated in the present case. He had further deposed that the allegations levelled by the complainant against him with respect to the sexual abuse of his daughter are false. He had been acquitted in case FIR No. 62/2008, U/s 354 IPC PS Jama Masjid by the Court of Ld. ASJ vide order dated 20.10.2012 in Crl. Appl. No. 40/12. Certified copy of the same is Ex. DW-1/A.
34. DW-1 further deposed that the complainant is in possession of all her jewelery articles and belongings. He had also given an amount of Rs. 80,000/- without prejudice to his rights and contentions to the complainant in lieu of jewelery articles at the time of hearing of the regular bail application on 30.11.2012.
Digitally signedNEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:26:16 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 18 of 37 Appreciation of law and evidence:
35. Accused Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana are charged for the offence punishable u/s 498A and Section 406 both read with section 34 IPC.
36. In order to establish the offence punishable under Section 498A IPC, it has to be established by the prosecution before the Court that the accused persons harassed the complainant for non fulfillment of the demand of dowry and demanded dowry from her. Demand of dowry coupled with cruelty for non fulfillment of the said demand is punishable under Section 498-A IPC.
37. PW-3 complainant, PW-4 mother of the complainant, PW-
10 father of the complainant, PW-11 Mst. Nayeema and PW-12 Mst. Mehtab Bano are the witnesses who had deposed regarding the alleged incidents and the relationship between the parties.
38. In complaint Ex. PW-3/A it was alleged by the complainant that on 26.03.2003, her mother-in-law made a demand of Rs. 2 lacs from her and when she expressed her inability to fulfill the said demand, her sisters-in-law namely Shahana, Rukhsana and Farzana abused her in filthy language and beat her by slaps and leg blows. They also demanded Rs. 2 lacs from her and did not provide food to her. PW-3/complainant however, in her deposition before the Court had deposed that she was harassed and beaten for dowry demand after six months of marriage.
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NEHA PALIWAL
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Complainant was declared partly hostile by the State and was put leading questions. In the leading questions put by the State she again admitted the incident of 26.03.2003, however, still denied the suggestion that she was not provided with food. PW-4/her mother had deposed that her daughter was harassed after few days of marriage and PW-4 in her cross-examination deposed that her daughter was harassed after 2-3 months of marriage by the accused persons. PW-10/father of the complainant deposed that his daughter was harassed by the accused persons for dowry demand after few years of marriage and in his cross-examination he specified that his daughter was harassed for dowry demand after 2-3 years of marriage.
39. Thus, perusal of the testimony of the complainant, her mother and her father and the perusal of the complaint Ex. PW-3/A shows variations and contradictions in the testimony of the witnesses with respect to the time period when the harassment of the complainant initially started for the purpose of dowry demand. It has been categorically deposed by the complainant that she came to her matrimonial home after proper ceremony (ruksati) on 25.03.2003. She had alleged in her complaint that on the very next date, that is, 26.03.2003 the accused persons had started harassing her for dowry and she was even beaten and abused in filthy language besides being taunted upon. Firstly, the complainant had failed to depose regarding the said incident in her examination in chief and only on FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 20 of 37 Digitally signed NEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:26:54 +0530 leading questions had admitted the same. Secondly, it is hard to contemplate that if a person would be subjected to dowry demand on the very second day when she entered her matrimonial house she would fail to recollect the same in her deposition and would depose that she was harassed after six months of marriage. There is a myriad difference between harassment on the second day itself and harassment after six months of marriage. Thirdly, the complainant had deposed in her examination in chief that her relatives-in-law harassed her after six months of marriage. She had deposed in her cross- examination that her relatives-in-law had started her harassment for the purpose of dowry demand after the birth of her child. Her mother deposed that the complainant was harassed after 2-3 months of marriage and her father deposed that the complainant was harassed after 2-3 years of marriage. In view of the same there are categoric variations in the testimony of the witnesses with respect to the alleged incident of 26.03.2003 and when the harassment commenced. Even the sole testimony of the complainant shows variations when her harassment started for the purpose of dowry.
40. The complainant in her complaint had alleged that on 27.05.2003, when she was pregnant her husband, her father-in- law and two brothers-in-law namely Amil and Javed demand Rs. 2 lacs from her and when she expressed the inability of her parents to fulfill the said demand she was beaten by her husband, FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 21 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:27:40 +0530 father-in-law and brothers-in-law Amil and Javed and sisters-in- law Shahana, Rukhsana and Farzana. She was abused in filthy language. She was hit to such an extent by her relatives-in-law by leg blows, slaps and fists blows that she became unconscious. PW-3 complainant again in her examination in chief failed to depose regarding the said incident. She in the leading questions put to her in the cross examination by the Ld. APP for the State admitted the incidents, however, again denied the involvement of her sister-in-law Shahana in the said incident.
41. The complaint of the complainant alongwith her deposition show that complainant was pregnant on 27.05.2003. As per her own deposition the complainant had given birth to a daughter on 23.01.2004. By way of this calculation on May 2003 the pregnancy of the complainant would be at a very initial stage. Firstly, the complainant had failed to depose regarding this incident of 27.05.2003 in her examination in chief and had only admitted the same on leading questions put by the State. Secondly, it has been complained by her that she was beaten to such an extent that she became unconscious, however, no medical document has been produced or proved or is its existence even averred before the Court. It is hard to contemplate that if a person is in initial stage of pregnancy and is beaten with slaps, fist blows and leg blows to the tune that she gets unconscious still no impact would be there upon her health and there would be no medical treatment. Thirdly, FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 22 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:27:52 +0530 in her cross-examination she had deposed that her relatives-in- law had started harassing her and had physically beaten and tortured her after she gave birth to a child. This deposition of the complainant further falsifies her version that the complainant was harassed and beaten on 27.05.2003 when she was pregnant as, as per her own deposition her harassment started after she gave birth to a child on 23.01.2004. Fourthly, the testimony of her father and mother is also silent with respect to the said incident.
42. It is further complained by the complainant by way of her complaint Ex. PW-3/A that the entire expenses of child birth were borne by her parents and in the hospital itself her husband and relatives-in-law made a demand of Rs. 2 lacs from her and when her parents expressed their inability for the same the accused persons left her at the Nursing Home and did not come to meet her. However, again PW-3/complainant had failed to depose regarding the said incident in her examination in chief. The said incident is also not getting mentioned in the deposition of her father PW-10 and in deposition of her mother PW-4. Moreso, the State had also not placed on record any bill, receipt or document which can show that the expenses of child birth were borne by the parents of the complainant.
43. The complainant had further complained that on 28.02.2004 when her father came to meet her, her husband and father-in-law demanded Rs. 2 lacs from her father and when her FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 23 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:28:06 +0530 father expressed his inability to fulfill the said demand the accused persons quarreled with her father and when she tried to intervene she was beaten up by her husband and father-in-law in front of her father and her father was humiliated. Again both the complainant/PW-3 and her father/PW-10 had failed to depose regarding the said incident before the Court. The testimony of her father is completely silent with respect to the said incident. Further more the complainant in the leading questions put by the State had categorically denied that on 28.02.2004 her relatives- in-law had quarreled with her father and had beaten her in presence of her father and thereafter, her father was insulted and expelled from the matrimonial house. Thus, the testimony of the complainant and her father are silent about the said incident and thereafter, in her cross-examination by the State the complainant had denied the said allegation altogether.
44. The complainant had further alleged by way of her complaint that on 12.08.2008 her husband demanded Rs. 2 lacs from her for the purpose of business and when she refused she was beaten up by her husband and mother-in-law and later on at around 3 0'clock when she went to take her daughter she found that her husband was lying with her daughter. She went to use the lavatory attached to that room. In the lavatory she heard the scream of her daughter. She came out and saw that her husband was raping her daughter. She raised objection and raised alarm, however, her husband beat her and threatened to kill her by FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 24 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:28:23 +0530 showing knife. She got scared and came to her maternal house and told the entire incident to her parents and thereafter, after some days they got a case registered U/s 354 IPC against her husband.
45. PW-3 complainant had deposed before the Court that her husband sexually abused her daughter, however, her examination in chief was silent with respect to the demand of Rs. 2 lacs made on that day and her subsequent beatings on that day. She however, deposed that her husband had demanded Rs. 2 lacs from her for the purpose of business, however, she was unable to fulfill the said demand. Again the testimony of the parents of the complainant is silent with respect to the said incident. Firstly, the State had not placed on record any medical document of the daughter of the complainant with respect to the allegation of sexual assault. Secondly and more importantly accused as DW-1 has placed on record the certified copy of the order of Ld. ASJ Court dated 20.10.2012 in case FIR No. 62/2008 U/s 354 IPC PS Jama Masjid in Crl. Appl. No. 40/2012, whereby accused Kamil was acquitted by the Ld. ASJ Court from the offence punishable U/s 354 IPC. Thirdly, if the complainant on the very day came back to her parental house, there was occasion to the complainant to get herself and her daughter medically examined. However, her deposition and the deposition of her parents is silent with respect to the medical treatment if any.
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 25 of 37 Digitally signed by NEHANEHA PALIWAL PALIWAL Date: 2018.05.14 18:28:34 +0530
46. PW-3 complainant had further deposed that she was also sexually assaulted by her husband in an unnatural manner as a result of which she is suffering from many deformities. However, again no medical document has been produced by the State to show the medical condition of the complainant before the Court. Further the complainant also had not deposed regarding the existence of any medical document or any medical treatment undertaken by her.
47. PW-3 complainant had further deposed that accused had demanded Rs. 20,000/- from her for the treatment of his mother which she had brought from her parents house and had given to the accused. However, the complaint Ex. PW-3/A of the complainant is silent with respect to the said demand and the handing over of the money. The complainant had further not deposed as to from who had she got that money. The testimony of her parents is altogether silent with respect to the same.
48. In the present case it is admitted by the complainant as well as by her parents PW-4 and PW-10 respectively that accused Kamil was the son of real paternal aunt of the complainant and there were cordial relationships and visiting relationships between the parties prior to marriage. Inherent contradictions have surfaced with respect to the specific incidents alleged by the complainant in her complaint as discussed above. PW-12/Mst. Mehtab Bano who is a public witness and is related to both the complainant and the accused persons had FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 26 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:28:47 +0530 denied that the complainant was harassed by the accused persons for dowry demand. PW-11 who is another public witness had deposed that there was some dispute between the parties, however, she had also denied that the complainant was harassed by the accused persons for dowry demand. Thus, even the two public witnesses who were not the immediate family members of the complainant had turned partly hostile to the case of the State and had denied that the accused persons had harassed the complainant for dowry demand.
49. Further more, the Court cannot be oblivious of the factual position as reflected from the documents. The incident of sexual harassment with daughter was alleged on 12.08.2008 and since 12.08.2008 the complainant is residing separately from the accused persons. The present complaint was filed by the complainant on 07.06.2011 after a period of approximately two years 10 months after she started residing separately from the accused persons.
50. Thus, in view of the above said discussions and findings it is held that the specific incidents alleged by the complainant in her complaint had remained unproved before the Court in view of the variations and the contradictions in the testimony of the complainant, her parents and other public witnesses. Besides them there are general allegations which are not corroborated with any evidence or circumstance.
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 27 of 37 Digitally signed by NEHANEHA PALIWAL PALIWAL Date: 2018.05.14 18:29:06 +0530
51. It was held by the Hon'ble Supreme Court of India in the case of Geeta Mehrotra v. State of Uttar Pradesh (2012) 10 SCC 741 as under:
"it is plain that as per clause (b) of the Explanation...every harassment does not amount to "cruelty" within the meaning of Section 498 A IPC. The definition stipulates that harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498 A IPC harassment simplicitor is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand of property etc., that it amounts to "cruelty" punishable U/s 498 A IPC... ...mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact born out of experience that there is a tendency to involve all the family members of the house-hold in a domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding".
52. Thus, in view of the above referred case law it is FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 28 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:29:18 +0530 categorically clear that it is not every harassment which constitutes the offence punishable U/s 498 A IPC and in order to constitute the offence under this section the harassment should be coupled with demand of dowry.
53. In the present case also there are general allegations of beating by all accused persons and for not providing food by all accused persons which would not suffice in view of the above said findings and discussions. There is a need for specific allegations which are to be duly proved before the Court which are glaringly absent in the present case. These general allegations are further not corroborated with any cogent medical evidence.
54. In view of the above said discussions and findings it is held that prosecution has not been able to prove the offence punishable under Section 498A read with section 34 IPC against accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana beyond shadow of all reasonable doubts. In view of the same the accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana are acquitted from the offence punishable U/s 498 A read with section 34 IPC.
55. Accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana are also charged in the present case for the offence punishable under Section 406 read with section 34 IPC.
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 29 of 37 Digitally signedNEHA by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:30:03 +0530 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:29:32 +0530
56. In order to establish the offence punishable under Section 406 IPC, the prosecution has to prove before the Court that there was an entrustment by the complainant to her husband and relatives-in-law of any property and her husband and relatives-in- law with an dishonest intention misappropriated or converted to their own use, to the detriment of the complainant, that property.
57. In the case of Anu Gill Vs State 92 (2001) Delhi Law Times 179, it was held by Hon'ble High Court of Delhi that :
"To constitute the offence under Section 406, IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of Istridhan were even entrusted to her. In the absence of the allegation of entrustment, question of misappropriation or conversion to her use does not arise. Thus, the most vital ingredient to constitute the offence under Section 406, IPC is missing. In view of the above, no case under Section 406 IPC is spelt out against the petitioner." NEHA PALIWAL Digitally signed by NEHA PALIWAL Date: 2018.05.14 18:20:01 +0530 FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 30 of 37
58. It was complained by the complainant by way of her complaint Ex. PW-3/A that she was given expensive articles and gold and silver jewelery by her parents in her marriage. Her relatives-in-law had also given her jewelery in marriage. However, when she reached her matrimonial home, her mother-in-law took away all her jewelery which she was wearing. On 30.05.2011, her husband came to her and asked her to take back the case U/s 354 IPC and made a demand of Rs. 2 lacs. Her mother was present in the house at that time She refused for the same and asked her husband to return her entire dowry articles, stridhan articles and jewelery. Her husband after consulting his family members refused to return the articles to her. PW-3 complainant had deposed that she was given gold and silver jewelery by her parents alongwith other house-hold articles as jewelery. The list of dowry articles is Ex. PW-3/B. She further deposed that she had lost the original receipt of stridhan and dowry articles.
59. It is admitted by PW-7 SI Dharambir that the complainant had not handed over to him any receipt/bill of dowry article or gold and silver jewelery or any other stridhan article. The complainant also had admitted in her cross-examination that she does not possess the receipts of her dowry articles or jewelery articles. She had deposed that she cannot produce the same as she had lost the original receipts of stridhan and dowry articles. Her father/PW-10 however, had deposed that the bills of stridhan and dowry articles were given by him to accused Kamil and FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 31 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:30:42 +0530 therefore, he does not possess the said bills. Thus, in the present case two contrary versions are coming with respect to the receipts. PW-10 had deposed that the receipts are with accused Kamil whereas PW-3 complainant had deposed that the receipts were lost. The receipts admittedly were never handed over to the inquiry officer or to the investigating officer for the purpose of investigation. PW-14 who is the IO of the present case had also admitted that the complainant had not handed over to him any invoice with respect any dowry articles, stridhan articles or jewelery articles.
60. Moreso, public witnesses PW-11 Mst. Nayeema had denied that 10 tola gold was given to the complainant by her father in the marriage and 4 tola gold and silver articles were given to the complainant by her relatives-in-law in marriage. PW- 12 Mst. Mehtab Bano had deposed that the marriage of the complainant and accused Kamil was performed in a very simple manner.
61. The list of dowry articles Ex. PW-3/B is a hand written list signed by the complainant. It is not signed by any person from the accused side which is customary in Muslim Law that at the time of marriage when the articles are handed over, the family of the groom sign the list of articles given in marriage. More so, one day police custody remand of accused Kamil was also taken and search was conducted, however no recovery was made by the investigating agency at the instance of accused Kamil. The FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 32 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:30:54 +0530 seizure memo Ex. PW-3/E of the 126 dowry articles was prepared by the investigating agency on 03.02.2013 after the said articles were voluntarily produced by accused Kamil in the Police Station to the IO after he was released. Perusal of the seizure memo shows that the articles which were handed over by accused Kamil were of the natures of clothes, utensils and other house hold articles.
62. Thus, in the present case there is no investigation conducted with respect to the alleged articles as mentioned in the list of dowry articles Ex. PW-3/B. The bills, vouchers or invoices were never handed over to the investigating agency for investigation. Even the existence of the bill is doubtful as contrary deposition have come with respect to the bills as it is deposed by the complainant that the bills are lost, whereas it is deposed by her father that the bills were handed over to accused Kamil. The complainant had also not deposed regarding the nature of jewelery and what specific jewelery or articles had she entrusted to which of the accused persons. She had only deposed that her mother-in-law had taken away her wearing jewelery after she had come to her matrimonial home. There is not even a single deposition as to when had she demanded her jewelery back from her mother-in-law, which her mother-in-law has failed to return to her. The complainant has also not deposed as to what other articles has she entrusted to which of the accused persons. There is a FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 33 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:31:13 +0530 general allegation that her husband had come to her in the year 2011 and then she had demanded her entire articles from her husband, however, again there is no deposition as to which article was entrusted by the complainant to her husband. Furthermore, it is stated in complaint Ex. PW-3/A that mother of complainant was present when accused Kamil came to her house on 30.05.2011, however, the testimony of mother of the complainant is completely silent with respect to the said incident.
63. Thus, the State has failed to prove that the articles as mentioned in the list of articles Ex.PW-3/B even existed to the tune and extent they were claimed in the said list. The accused had handed over certain articles in the police station to the complainant, however, it has not been proved before the Court beyond the shadow of all reasonable doubts that the complainant had entrusted those articles to the accused. It is manifest from the above discussions and findings that the complainant had left her matrimonial home after the alleged incident with her daughter. It has not come in the complaint that at that time the complainant had tried to take away her articles from the house and the accused persons had not allowed her to take the same. After the case U/s 354 IPC the relationship between the parties were acrimonious. It is hard to believe on the basis of the sole allegation of the complainant that her husband had come to her house on 30.05.2011 and then she FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 34 of 37 Digitally signed by NEHA NEHA PALIWAL PALIWAL Date: 2018.05.14 18:31:28 +0530 had demanded her articles from her husband. The same is further hard to believe in the light of her examination in chief when she had failed to depose regarding the said incident in her examination in chief before the Court. The testimony of the mother of the complainant is also silent with respect to the alleged visit of accused Kamil in their home on 30.05.2011.
64. Thus, firstly in the present case no receipt of any dowry article or stridhan article or jewelery article is proved before the Court. Secondly, the complainant or her mother had failed to depose regarding the incident dated 30.05.2011 before the Court which has been alleged by the complainant in her complaint. Thirdly, it is admitted by all the investigating officials that no investigation was done with respect to the existence, entrustment and misappropriation of the alleged stridhan articles. Fourthly, no source has been proved before the Court regarding the purchase or acquiring of the said articles. Fifthly, the complainant had failed to depose regarding the entrustment of particular article made by her to particular accused persons and the failure of the accused persons to hand over the articles to her despite demand.
65. In view of the above said discussions and findings the prosecution has not able to show whether the articles which were not mentioned in the admitted list Ex.PW-3/B even existed. The prosecution is further not able to show any entrustment of the same to accused persons and its consequent misappropriation by FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 35 of 37 NEHA Digitally signed by NEHA PALIWAL PALIWAL Date: 2018.05.14 18:31:40 +0530 the accused persons. Thus, in the given facts and circumstances there is no evidence of existence of the property and in the absence of the same there is no evidence of its entrustment as well. In the absence of existence and entrustment there cannot be a breach of trust as the question of misappropriation or conversion to her use would not arise.
66. Thus, in the absence of any cogent evidence regarding existence of dowry articles, their delivery and consequent misappropriation, the prosecution has not been able to prove the offence under Section 406 IPC against accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana . Accordingly, accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana are acquitted from the offence punishable U/s 406 IPC.
Conclusions/findings:
67. In view of the above said discussions and findings accused persons namely Kamil, Amil, Anis, Javed, Shahana, Shabana, Rukshana and Farzana are acquitted from the offence punishable u/s 498A IPC and U/s 406 IPC both read with section 34 IPC.
FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 36 of 37 NEHA Digitally signed by NEHA
PALIWAL
PALIWAL Date: 2018.05.14 18:31:54
+0530
68. They are directed to furnish bail bonds in compliance of Section 437A Cr.PC before the Court.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2018.05.14
18:19:24 +0530
Announced in the Open Court (Neha Paliwal)
on 11th May, 2018 Metropolitan Magistrate-01
Mahila Court, Central Distt.
Tis Hazari Courts, Delhi
It is certified that this judgment contains 37 pages and each page bears my signatures. NEHA PALIWAL Digitally signed by NEHA PALIWAL Date: 2018.05.14 18:19:36 +0530 (Neha Paliwal) Metropolitan Magistrate-01, Mahila Court, Central Distt.
Tis Hazari Courts, Delhi FIR No. 143/2012 State Vs Mohd. Kamil & Others Page 37 of 37