Delhi District Court
St. vs . Sunder Etc. on 8 July, 2008
1
IN THE COURT OF MS. NIRJA BHATIA : METROPOLITAN
MAGISTRATE : KARKARDOOMA COURT : DELHI
FIR NO. 728/97
P.S. Kalyanpuri
U/SEC. 498A/406 IPC
ST. VS. Sunder etc.
1. Date of commission of : 21.11.1997
offence.
2. Name of the complainant : Tarawati
3. Name of the accused, his : 1. Sunder
parentage and address. S/o Sh. Jwala Prasad Malik
R/o A-37/1, Kondli,
Delhi-110096.
2. Jwala Prasad
S/o Sh. Gulzari Lal,
R/o A-37/1, Kondli,
Delhi-110096.
3. Shyamo Devi
W/o Sh. Jwala Prasad,
R/o A-37/1, Kondli,
Delhi-110096.
4. Raj Bala,
W/o Sh. Daya Prakash,
Gali No. 5, Punjabi Basti,
Anand Parvat, Delhi.
4. Offence complained of or : 498A/406/34 IPC
5. The date of order : 08.07.2008
6. The final order : 08.07.2008
THE BRIEF REASONS FOR THE DECISION:
The facts of the case have been disclosed by the complainant in her statement Ex. PW2/A made before DCP East District, Shakarpur stating that she was married with accused Sunder S/o Sh. Jwala State Vs. Sunder & Oths.
2Prasad, R/o A-37/1, Kondli, Delhi, 10-11 years prior to date of filing of the complaint. The marriage was solemnized as per Hindu Rites and rituals in which parents of complainant had spent more than their capacity. The complainant alleged that her mother-in-law Shyamo Devi, father-in-law Jwala Prasad, husband Sunder and sister-in-law Raj Bala tortured her for bringing more dowry. As a result of which her father was compelled to give an amount of Rs. 10,000/-. Despite the same the complainant was continuously tortured and whenever a new marriage took place in the locality or the relations, she was taunted for brining more dowry.
Complainant alleged that she was abused by father-in-law Jwala Prasad who consumed liquor every evening and subjected her to beatings thereafter. She complained that whenever someone visits her from her village, the visitor was insulted and humiliated. She has been threated on many occasions by accused father-in-law and mother-in-law of being thrown out of the house as she has not been able to give birth to a child. She has been threatened for being killed. On her complaint the proceedings were conducted at CAW Cell and subsequent to recommendation vide Ex. PW1/A FIR (wrongly exhibited) as Ex. PW1/A was registered, investigation was put in motion whereafter charge- sheet was filed accused were summoned, the documents were supplied to them and after the completion of necessary formalities, charge against them has been framed by my Ld. Predecessor on 18.01.1999 to which accused pleaded not guilty and claimed trial. Subsequent to framing of charge prosecution was given opportunity to lead evidence. Prosecution produced 11 witnesses to prove the charge.
HC Ramesh being Duty Officer was a formal witness. He exhibited the FIR. No cross-examination of this witness was conducted.
3The complainant appeared as PW2 and stated that after her marriage she had been tortured by the accused persons as they made demand of Rs. 50,000/- from her as a consequence of which she paid Rs. 10,000/- despite which she was beaten. She alleged that in June 1997 the date of which she did not remember exactly accused Sunder gave beatings to her and threw her out of the matrimonial home whereafter she filed the present complaint. Thereafter she exhibited the original complaint on the basis of which the present FIR is registered as Ex. PW2/A. She stated that police tried to compromise the case however no compromise could be reached. She thereafter accompanied the police for seizure which was witnessed by her as Ex. PW2/B. She stated that her complete articles were not recovered and are still lying at the house of accused however she could not disclose exactly as what articles are lying at the house of accused. She also exhibited her statement made before police as Ex. PW2/C. In her examination, she exhibited the list consisting of 25 items as Ex. PW2/E. In the cross-examination, she stated that though she had filed a divorce petition in court, no compromise took place in divorce petition. She denied of having received an amount of Rs. 40,000/- in divorce petition in court of Ld. Smt. Veen Birbal, the then ASJ. She claimed that she does not remember of having stated before Ld. ASJ that she would withdraw of her claims in respect of her istridhan and other proceedings. She stated that the complaint was written by the officials of CAW Cell. The suggestion that she has compromised the matter with the accused was denied. She also denied of having lodged a false report.
Thereafter her father Karan Singh appeared as PW3 and claimed that his daughter was harassed for not bringing the dowry and for sometimes as she could not conceive. He stated that he had given an amount of Rs. 10,000/- to accused Jwala Prasad along with the dowry State Vs. Sunder & Oths.
4articles of his daughter as the complainant was told by accused that they would sell the plot.
He claimed that his daughter stayed at matrimonial home for about 8-10 years and during this period she had been harassed by the accused persons. He claimed that 3-4 years back, his daughter was beaten and was turned out by the accused and on his enquiry it was revealed from neighbours that accused wanted to kill her only thereafter the present complaint was lodged. He claimed that as his daughter was threatened there was no question of brining istridhan articles with her which were recovered after the complaint was filed through police.
In his cross-examination, he admitted that his daughter received Rs. 40,000/- in the court of Ld. Smt. Veena Birbal, the then ASJ however it was denied that the same was with respect to present case. It was claimed that the amounts were received by his daughter.
The brother of complainant Ashok Kumar appeared as PW4 and stated that list of articles was prepared vide seizure memo Ex. PW2/B bearing his signatures in his presence at the instance of his sister as the articles were recovered from the house of accused in Kondli. No cross-examination of this witness was also conducted.
Mother of complainant Dharamwati appeared as PW5 and stated that his daughter was harassed and maltreated by all the accused for demand of more dowry. No cross-examination of her was also conducted.
The uncle of complainant namely Deen Dayal appeared as PW6.
5He uttered that accused husband was used to oftenly beat the complainant who was maltreated in furtherance of demand of more dowry. It was stated that she was lastly thrown out of matrimonial home. No cross-examination of this witness was also conducted. Jayanti Prasad relative of complainant appeared as PW7 however he resiled from his earlier statement and was cross-examined by Ld. APP. He uttered of having heard that the father of complainant had given an amount of Rs. 10,000/- to the in-laws despite which they were no satisfied and were harassing her more. No cross-examination of this witness was also done.
PW8 Aattar Singh was also cross-examined by Ld. APP as he stated that he neither attended the marriage nor having any knowledge of the facts of this case.
Ramshri, aunti of complainant appeared as PW9 and uttered that though the quarrel took place at the matrimonial house of complainant, she could not disclose what were the reasons for the quarrels. She was also cross-examined by Ld. APP.
PW10 ASI Rajwati appeared and stated to have received a copy complaint Ex. PW2/A of which she prepared rukka Ex. PW2/A. No cross-examination of this witness was conducted.
SI D.P. Singh, IO of this case appeared as PW11 and stated to have recorded the statement of complainant as Ex. PW2/C. He made endorsement thereupon and got the FIR registered. The accused were arrested and their formal personal search was conducted. No cross- examination of I.O. was also conducted.
6The statement of accused persons was recorded u/s 313 Cr.P.C. in which they denied the allegations and claimed to have been falsely implicated. They did not wish to lead defence evidence however subsequently an application was moved on their behalf by Ld. Defence Counsel which was allowed by detailed order dated 06.06.2008. There has been no revision to the such order and subsequent to service of process, DW1 Record Clerk, KKD Courts appeared and produced the summoned record of the divorce proceedings conducted before Ld. Smt. Veena Birbal, the then ASJ. He exhibited the order dated 15.05.1999 as Ex. DW1/1, the certified copy of order dated 12.05.1999 as Ex. DW1/2. The order dated 15.05.1999 whereby the application under Order 6 Rule 17 r/w 151 Cr.P.C. for amending the divorce petition to the joint petition is exhibited as Ex. DW1/3. The certified copy of the statement of complainant Tarawati duly identified by her counsel Sh. K.K. Sharma was exhibited as Ex. DW1/4 in which she made a statement of having mutually settled all claims regarding dowry articles/maintenance/istridhan/permanent alimony by receiving an amount of Rs. 40,000/- in cash in court from the accused husband towards full and final settlement of her claims. The certified copy of judgment was exhibited as DW1/5 in which it was got written that subsequent to this settlement the petitioner, complainant herein shall corporate the husband in getting the present FIR registered u/s 498A/406/34 IPC and numbered as 728/97 from PS Kalyanpuri quashed from the Hon'ble High Court as it was specifically observed that there was no claim whatsoever of any nature between the parties arising out of their marriage was pending. In cross-examination of DW1 only one question was put to which he answered that he has no personal knowledge of this case and his statement is based on record. After the DE was closed final arguments were heard.
7It is argued by Ld. APP that prosecution has completely discharge its onus in proving the present case however I am not in agreement with the submissions made by Ld. APP. It be observed that though the defence has not discharged its duty completely in cross-examining the complainant and some of the other witnesses produced by the prosecution, the duty as well as the onus to prove the charges remained on the prosecution. The prosecution miserably failed in discharging said duty as it appeared in the examination, cross-examination and from the perusal of the matter produced on record that the witnesses produced by the prosecution did not succeed the crucial test of making a statement which is truthful and reliable. It be observed that complainant in her examination and cross-examination did not admit the pendency of divorce proceedings and subsequent settlement before Ld. Smt. Veena Birbal, the then ASJ. She even denied of having received an amount of Rs. 40,000/- towards satisfaction of all her claims arising out of marriage whereas her father admitted in turn that she received an amount of Rs. 40,000/- before Ld. ASJ however it was claimed that the amounts were received qua maintenance. At a later stage subsequent to allowing for defence evidence, it was clearly shown from record as well as documents Ex. DW1/1 to Ex. DW1/5 that the complainant had compromised her claim with accused for a total amount of Rs. 40,000/- including all her pending claims out of marriage between parties such as maintenance, istridhan, alimony etc. and also uttered that she shall cooperate in getting the present FIR quashed. Her testimony in court was false and does not succeed the test of verocity. Hence it cannot be made a base for conviction of accused.
Further subsequent to receiving the aforesaid amount, the complainant as per the provisions of Section 115 Indian Evidence Act was estopped from claiming even otherwise despite which she made State Vs. Sunder & Oths.
8apparently false statement in witness box. The present case as such should not have continued in terms of judgment of Ruchi Vs. Amit Kumar Aggarwal 2005 (3) SCC 299 & Jasbir Singh & Oths. Vs. State and Anr. 141 2007 DLT.
It is further imperative to observe that complainant could not give any date, day, month or time of any cruelty committed upon her. The amount of demand of Rs. 50,000/- has not even been uttered by her in her statement Ex. PW2/C. There is no instance shown when she was specifically taunted and or beaten by any of the accused. The date when the amount of Rs. 10,000/- was given to her by her father was also not established. No expression qua the payment of amount of Rs. 10,000/- could be established as even the source of the amount of Rs. 10,000/- as from where the same was arranged and in whose presence the same were given to whom is disclosed. Hence only a vague statement has been made which again cannot be relied upon for resting conviction of the accused.
It is also to be observed that the complainant has sought the assistance of police for registration of this case after a span of around 10 years. No reason plausible has been explained for not initiating action against accused earlier. Hence also in view of judgment of BASANT KAUR & ORS. V/S STATE (NCT OF DELHI) 101 (2002) DLT 470 no case for conviction is made out.
Further as regards the charge of Section 406 IPC no specific allegation of entrustment in favour of any of the accused is cited. It is not stated which accused had dominion on which of her articles. It is nowhere claimed that complainant after reaching her parental home, subsequent to alleging thrown out, made any demand for receiving her State Vs. Sunder & Oths.
9articles back and the same were refused by the accused. In view of the aforesaid, I am of the opinion that the prosecution has miserably failed in proving its case. The judgment cited by Ld. APP of 2008 CRL J 329 is clearly distinguishable from the facts of this case as in the present case the complainant has been given a complete opportunity to establish the complaint and in turn after examination, cross- examination and production of documents (which have not been disputed and denied in cross-examination by the prosecution) has failed to establish any such case. I am of the opinion that the prosecution fails to discharge its liability and accused accordingly deserve acquittal and are acquitted. File be consigned to Record Room. Bail bond, surety bond of accused discharged.
Announced in the open Court
on 08.07.2008 (NIRJA BHATIA)
Metropolitan Magistrate
Karkardooma Court, Delhi
State Vs. Sunder & Oths.