Delhi District Court
State vs . Raj Kumar & Others on 22 August, 2012
1 IN THE COURT OF MS SHIVALI SHARMA: METROPOLITAN MAGISTRATE/MAHILA COURTS, WEST DISTRICT, DELHI FIR NO: 875/97 P. S. Janak Puri U/S 406/498A IPC ID No. 0240 22.08.2012 STATE VS. RAJ KUMAR & OTHERS Date of institution : 03.11.98 Date of Commission of offence : 10.09.92 Name of the Complainant : Smt. Rajani d/o Sh. Sharan Dass Name, parentage & address of the accused 1 : Raj Kumar s/o Mangal Sain r/o C31, Janak Puri, Delhi. 2 : Bina Rani w/o Dildar Singh r/o C31, Janak Puri, Delhi. (discharged vide order dated 24.07.2002) 3 : Usha Rani FIR No. 875/97, State Vs. Raj Kumar and others 1/30 2 w/o Chander Mohan r/o C31, Janak Puri, Delhi (discharged vide order dated 24.07.2002) 4 : Bansi Lal s/o Mangal Sain r/o C31, Janak Puri, Delhi (discharged vide order dated 24.07.2002) 5 : Mangal Sain s/o Late Hakal Chand r/o C31, Janak Puri, Delhi (since deceased and proceedings abated) 6 : Satpal s/o Mangal Sain r/o C31, Janak Puri, Delhi (discharged vide order dated 24.07.2002) 7 : Moti Devi w/o Mangal Sain r/o C31, Janak Puri, Delhi. Offence Complaint of : U/s 406/498A IPC Plea of the accused : Pleaded not guilty Final Order : Acquitted FIR No. 875/97, State Vs. Raj Kumar and others 2/30 3 Date for reserve of order : 22.08.12 Date of announcing of order : 22.08.12 BRIEF FACTS AND PRE TRIAL PROCEDURE
1. The present FIR has been registered on the basis of a hand written complaint made by the complainant Rajni which has been proved as Ex. PW2/B. The allegations as made in the complaint are that the complainant was married with accused Raj Kumar on 10.09.92. After few days of her marriage, her husband, mother in law Motiya Devi, father in law Sh. Mangal Sain (since deceased), devar Bansi Lal and Satpal and sister in law Usha Rani and Veena Kumari started harassing the complainant on the pretext that she has not brought sufficient dowry. Her husband told her that if she brings more money from her parants it could improve their standard of living. The complainant tried to ignore these demands. However, her inlaws started beating and harassing her and accordingly, she had to inform her parents about the conduct of her in laws.
2. In order to protect her matrimonial life her parents arranged a sum of Rs 40,000/. On 8.4.93 father of the complainant along with his relative came to the matrimonial house of the complainant along FIR No. 875/97, State Vs. Raj Kumar and others 3/30 4 with Rs 40,000/ arranged by him. The said amount of Rs 40,000/ has handed over to her father in law in the presence of her husband and other family members. They also requested the accused persons to treat the complainant properly. However, after some time again a demand of Rs 60,000/ was raised by the accused persons. The complainant refused to succumb to their demand and accused persons continued the crueltities against her. When the parents of the complainant came to know about the mistreatment being given to her, her father along with other relatives went to her matrimonial home on 3.3.93 and brought her as well as the minor daughter along with them. Father of the complainant also clearly told the accused persons that he was not in a position to fulfill any of their further demands. Since that day the complainant is residing at her parental home. Hence, the present complaint.
3. On the basis of the complaint, present FIR was registered against seven accused persons u/s 498A/406 IPC.
CHARGE
4. After completion of the investigation and recording the statement of the witnesses charge sheet was filed against 7 accused persons. After completion of necessary formalities, charge was framed FIR No. 875/97, State Vs. Raj Kumar and others 4/30 5 against accused Raj Kumar, Moti Devi and Mangal Singh u/s 498A/34 IPC on 24.7.2002. Charge u/s 406 IPC was also framed against accused Raj Kumar on the same day. All the accused persons pleaded not guilty to the charge framed against them and claimed trial. The other accused persons were discharged vide order date 24.7.2002 passed by my Ld. Predecessor.
5. During the course of trial accused Mangal Sain expired and proceedings against him were abated.
PROSECUTION EVIDENCE:
6. Prosecution has examined eight witnesses in all to bring home the guilt against the accused persons. Inadvertently Duty Officer HC Pal Chand and father of the complainant Charan Dass both have been examined as PW1. Their testimonies are touched upon in brief in order to have a better understanding of the case.
7. PW1 is HC Pal Chand who is a formal witness being a Duty Officer and has proved the present FIR as Ex. PW1/A.
8. PW5 is the first I.O of the Case Inpector Ram Kisan who stated that the investigation of the case was marked to him on 5.8.97. On 6.8.97, he along with the complainant went to her matrimonial house. The istridhan articles of the complainant FIR No. 875/97, State Vs. Raj Kumar and others 5/30 6 produced by accused Raj Kumar and identified by the complainant were seized vide memo Ex. PW2/C and seized articles were handed over to the complainant. Accused Raj Kumar was arrested vide personal search memo Ex. PW5/A. Complainant handed over the list of balance articles which is Ex. PW2/D. She also gave another list of balance articles which was not handed over by the accused persons which is ex. PW5/B. He recorded the statement of the witnesses and on his transfer the further investigation was handed over to SI Raj Kumar.
9. In his cross examination, he stated that no public witnesses had joined the investigation at the time of recovery of dowry articles despite requests made by him.
10. PW6 SI Ramesh Chand is a recovery witness who stated that on 6.8.97, he had joined the investigation of the case with PW5. They went to the matrimonial house of the complainant and istridhan articles of the complainant were seized vide memo Ex. PW2/C. Same were handed over to the complainant by the I.O. Accused was also arrested vide personal search memo Ex. PW5/A.
11. PW7 Inspector Raj Kumar who is second I.O of the case stated that investigation of the case was marked to him on 15.4.98. On FIR No. 875/97, State Vs. Raj Kumar and others 6/30 7 the same day accused Veena, Usha and Bansi came to him and showed him their anticipatory bail orders. They were formally arrrested and thereafter released on bail. On 21.4.98 accused Satpal, Moti Devi and Mangal Singh also came to the Police Post along with their sureties and anticipatory bail orders. They were also formally arrested and released on bail. Thereafter, challan was filed before the Court.
12.PW1 Sharan Dass is the father of the complainant who deposed about the marriage of the complainant with accused Raj Kumar. He stated that sufficient dowry articles were given in the marriage . List of dowry articles is Ex. PW2/A and the detials of the same are Ex. PW3/A. After some months of the marriage, mother in law, nand Usha and Veena, Devar Bansi and Satpal, father inlaw and husband of his daughter started harassing her for dowry and demanded Rs 1 lac. Initially his daughter did not inform her about the said demands. However, when the harassment continued he was informed by his daughter. He along with his relative visited the matrimonial house of his daughter on various occasions to sort out the things between them. However, they were insulted by the accused persons. He arranged Rs 40,000/ after FIR No. 875/97, State Vs. Raj Kumar and others 7/30 8 borrowing from his relatives and brother. On 18.4.93 he went to the matrimonial house of his daughter along with his sister in law and one Raman and gave Rs 40,000/ to the parents in laws of his daughter in presence of the other family members. He also requested that he was a poor person and could not arrange more money. However, after about 1 ½ months, the in laws of her daughter again started pressing for balance amount of Rs 60,000/ from his daughter. On her refusal, accused Raj Kumar started consuming liquor and beating the complainant at the instance of other family members. His daughter became a patient of TB and was left at his house. He got her treated and requsted her inlaws to take her back and also left her at her matrimonial house. She remained at her matrimonial house only for 15 days Again her in laws started harassing her. When he came to know about the condition of his daughter through his brother (whose two daughters were married in the same family) he brought his daughter back.
13. He visited the matrimonial house of his daughter on 3.3.96 along with his brother Sant Ram. His daughter told him that she was beaten by her husband and forced to write on a paper that he had to FIR No. 875/97, State Vs. Raj Kumar and others 8/30 9 take Rs 60,000/ from her father which was given to her father as a loan. She also informed him about the beatings given to him. Thereafter, Sant Ram told the accused persons that he wanted to take Rajni for a marriage ceremony. On this accused Raj Kumar took out a paper and asked them to write on the same that they were taken Rajni back. On being forced, complainant Rajni gave in writing that she was leaving her matrimonial home with her father without any clothes or jewellery. The said paper was also signed by Rajni and Sant Ram.
14. Thereafter complaint was lodged at CAW Cell, Tilak Nagar. A compromise was arrived at before the CAW Cell and Rajni was taken back to her matrimonial home. Rajni and accused Raj Kumar were directed to appear before CAW Cell after 15 days. They visited CAW Cell on two occasions but on the third date they did not appear. Witness was present at CAW Cell at that time and when his daughter did not appear he went to her matrimonial home to enquire about her. At her matrimonial home, he was insulted by accused Raj Kumar, his brother and father. His daughter was in a very bad condition and was not wearing proper winter clothes. He told her to appear before the CAW Cell after three days. On the FIR No. 875/97, State Vs. Raj Kumar and others 9/30 10 next day he went to I/C CAW Cell and two lady constable were directed to accompany him to the matrimonial house of his daughter.
15.When he again visited the matrimonial house of his daughter with two lady constable, he was again insulted by accused Raj Kumar. Finally when his daughter came out on the calling of lady constable, she gave a statement to them that her life is in danger and he along with his daughter and two lady constables went back to the CAW Cell. The accused persons also came to CAW Cell. The accused persons did not hand over the custody of his grand daughter to his daughter Rajni and got it written from Rajni that she had no claim for her daughter.
16.In the year 1997 his daughter file a complaint before CAW Cell, Rajouri Garden. Some of the dowry articles were recovered vide seizure memo Ex. PW2/C. The remaining dowry articles as per Ex PW2/D have not been returned till date.
17. In his cross examination, PW1 admitted that no dowry list was prepared at the time of the marriage. He testified that the furniture given in the marriage of his daughter were prepared in Jahangir Puri, Delhi and about Rs 6065,000/ were spent on the same. FIR No. 875/97, State Vs. Raj Kumar and others 10/30 11 However, he could not tell the name of the carpenter. He could not give the details of the jewellery articles given in the marriage but stated that the jewellery of his daughter, a gold ring of accused Raj Kumar and his father and gold tops for Raj Kumar's mother were purchased from Bhatinda. However, he could not produce the receipt of the same.
18.He could not tell about the date on which he had firstly filed a complaint at CAW Cell Tilak Nagar but stated that it was in the year 1996. He admitted that the accused persons had sold their house at Hari Nagar for Rs 12 lacs in the year 1996. However, he denied the suggestions that he had taken a loan of Rs 1 lac from the accused persons in the year 1996 for marriage of his elder daughter. He also denied the fact that when the said loan was demanded back, accused persons were threatened for false implication and were also falsely implicated in the present case. He admitted that no complaint was made regarding the demand of 1 lac by the accused persons and payment of Rs 40,000/ on 8.4.93.
19.He has further admitted that no list of dowry articles was filed before CAW Cell and the list was prepared at the time of recovery of the dowry articles from the accused persons. However, he FIR No. 875/97, State Vs. Raj Kumar and others 11/30 12 denied the suggestions that the articles recovered did not belong to his daughter. He also could not testify about the date when he was first informed about the demand and harassment by his daughter.
20.PW2 is complainant Rajni who deposed about her marriage with accused Raj Kumar on 10.9.93. She stated that at the time of her marriage she was given double bed, sofa, almirah and five tolas of gold, gold tops for mother in law, gold ring for father in law, silver jewellery and other articles as per list Ex. PW2/A.
21. She further deposed that after her marriage she was sent to her matrimonial home at Hari Nagar, Clock Tower where all her in laws including her parents inlaw brothers inlaw and sisters in law were present. For some time behaviour of the accused persons was good, however thereafter all of them started harassing her and demanding dowry. She was taunted for not bringing anything in the dowry.
22.A demand of Rs 40,000/ was raised by her mother in law accused Moti Devi and she was threatened that if she wanted to have a happy married life she should get the said demand fulfilled. She was beaten by her husband on the instigation of her mother in law for pressurising her to bring money from her father. She informed FIR No. 875/97, State Vs. Raj Kumar and others 12/30 13 about the demand of Rs 40,000/ to her father and also pressurised her for fulfilling the same demand. Her father arranged Rs 40,000/ from her Massi and Tayajee and gave the same to her mother in law and requested for not raising any further demand or harassing the complainant.
23.After some time demand of scooter and fridge was raised. When the complainant refused to convey the said demand to her parents, she was beaten by the accused pesons. Even her father in law told her that similar behaviour would continue with her in case demands were not fulfilled. Her husband made her sign a paper with a revenue stamp to the effect that her father had taken Rs 1 lac from him and had returned only Rs 40,000/ and Rs 60,000/ was due from her father. On refusal to sign the said paper she was again beaten. She was not provided proper food.
24.Again demand of Rs 60,000/ was made and she was pressurized to get the said demand fulfilled. She was also beaten by her husband on the instigation of other accused. Her husband even threatened to kill her.
25.When her father came to know about her bad condition, he along with Krishan Lal and Sant Lal came to her matrimonial home. On FIR No. 875/97, State Vs. Raj Kumar and others 13/30 14 coming to the about the misbehaviour with the complainant from her, he told her in laws that he wanted to take her back. On this accused Raj Kumar gave him a blank paper with a revenue stamp and asked him to sign the same and told her father that he can take the complainant only after signing the said paper. Her father refused and brought her back. Her dowry articles were lying with accused person which have not been returned despite demand.
26.On 5.8.97, the complaint Ex. PW2/B was lodged with P.S. Rajouri Garden. Since then she is residing at her parental home. On 6.8.97 some of the dowry articles of the complainant which was proved as ex. PW2/C. However, the jewellery articles could not be recovered. List Ex. PW2/D represents the articles which were not recovered. The recovered articles were proved as Ex. P1 to P27.
27. PW2 had also made certain other allegations against her brothers in law and sisters in law which are not being discussed as they have already been discharged.
28.In her cross examination, the complainant testified that between the period of 10.9.92 and 5.8.97 she had lodged a complaint with P.S. Uttam Nagar in the dowry cell against the accused person after one year of her marriage. However, she could neither tell the date FIR No. 875/97, State Vs. Raj Kumar and others 14/30 15 nor produce copy of same. She stated that her elder sister was married after about 2 years of her marriage. She testified that her in laws sold their property at Hari Nagar in the year 1994 or 1995 for Rs 11,80,000/ However, she denied the suggestions that out of these amount Rs 1 lac was borrowed by her father from her father in law on the promise of returning the same within two years for the marriage of her sister. She also denied the suggestions that she has falsely implicated the accused persons at the instance of her at her father as her father in law had demanded Rs 1 lac from her.
29.She admitted that no dowry list was prepared at the marriage. She could not tell the details of the shop from where the dowry articles have been purchased.
30.She further testified that in the year 1993, she had given Rs 40,000/ to her in laws after bringing the same from the father as her husband used to beat her for bringing cash. She had not lodged any complaint at that time. Her husband, mother in law and father in law along with other accused persons used to demand cash of Rs 1 lac. She admitted that she was never medically examined for any injury caused to her but stated that it was because of the reason that she was not permitted to go outside her matrimonial home. FIR No. 875/97, State Vs. Raj Kumar and others 15/30 16
31. The witness could not tell about when and how many time her statements were recorded by the police. She also could not tell as to when the list Ex. PW2/A was prepared or who had prepared the same. She also could not tell about the details of the shops where her jewellery was purchased or the amount for which the same were purchased. She could not produce any receipt of jewellery. She had denied the other suggestions.
32.PW3 Leelawati is the mother of the complainant who deposed about the marriage of Rajni with accused Raj Kumar. She stated that, after marriage, for one year, her daughter was kept in her matrimonial home. After that she was harassed by the accused persons and a demand of Rs 1 lac was made. When their daughter informed them about the said demand, her husband had arranged Rs 40,000/ and given the same to father in law of Rajni in the presence of other accused persons, so that Rajni could live peacefully at her matrimonial home. Again her daughter was harassed for balance amount of Rs 60,000/. When they showed their inability to fulfill the same demand, Rajni was harassed and tortured and beaten by her husband and mother in law on account of not bringing amount of Rs 60,000/. They went to the FIR No. 875/97, State Vs. Raj Kumar and others 16/30 17 matrimonial home of Rajni and brought her back. When all the efforts for reconciliation failed, her daughter Rajni lodged the complaint with CAW Cell. The accused persons had returned some of her dowry articles but the balance articles including gold jewellery were still in their possession and had not been returned despite repeated demands made by Rajni.
33.In her cross examination, PW3 stated that there were no complaint from the groom family for about 45 years after marriage. She denied the suggestions that Rs 1 lac was taken as loan by her husband from father in law of Rajni or that the said amount was not returned back with two years as promised. She also denied the suggestions that the present case has been falsely filed by her daughter Rajni for pressurising the accused persons not to demand back her loan amount. She admitted that her grand daughter was still with accused persons and they were taking care of her.
34.She could not tell the details of the shop from there dowry articles and jewellery articles were purchased for the marriage. She testified that her daughter had complained about the cruelty and harassment for bringing more dowry by the accused after about 23 years of the marriage. She could not tell when Rs 40,000/ was FIR No. 875/97, State Vs. Raj Kumar and others 17/30 18 given the accused. However, she stated that accused Raj Kumar had come to her house for taking the said amount. She also admitted that no complaint was made either to the police or to the family members of the accused Raj Kumar about giving of Rs 40,000/ to him. She denied the other suggestions given by Ld. Defence Counsel.
35.PW4 is brother of the complainant who deposed about the marriage of his sister with accused Raj Kumar and stated that after about 56 months of marriage, the demand of cash was made by accused Raj Kumar and his parents. His father had made arrangement of Rs 40,000/ and gave the same to the accused Mangal Singh. In the year 1996 again a demand of Rs 60,000/ was made. However, since the earlier amount was not returned back, Rs 60,000/ were not given to the accused persons. Accused kept on harassing Rajni and they brought her back to her home in 1997. The accused persons never came to take the Rajni back and accordingly complaint was made on 5.8.97. he also stated that the daughter of his sister Rajni was in custody of accused Raj Kumar.
36.The witness was not subjected to cross examination.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE FIR No. 875/97, State Vs. Raj Kumar and others 18/30 19
37. Statement of accused person u/s 313 Cr.P.C was recorded wherein they denied all the allegations made against them except the factum of marriage between the complainant Rajni and accused Raj Kumar.
38.Accused Raj Kumar stated that dispute has arisen between them because of the fact that the marriage of elder sister of complainant was fixed in a house with which they did not have good terms. He had even requested the father of the complainant not to finalize the marriage in the said family. However, he did not listen. He even instructed his wife Rajni not to participate in the said marriage or visit the house of in laws of her elder sister. However, she also did not listen to him. On request of father of the complainant, he had even given Rs 1 lac to him at the time of marriage of his elder daughter after taking the same amount from his mother. However, said amount has not been returned by his father in law depite repeated demands and rather he and his family have been falsely implicated in the present case. He also stated that complainant had also taken all her dowry articles along with her and even Rs 20,000/ has been given to her in lieu of her jewellery at the time of bail. The complainant had even refused to take the custody of FIR No. 875/97, State Vs. Raj Kumar and others 19/30 20 the minor daughter before CAW Cell.
39.Accused Moti Devi while denying all the allegations made against her had stated that she had been residing separately from the complainant and her son Raj Kumar from very beginning and had been falsely implicated in the present case.
40.Despite opportunity no defence witness has been examined by them.
41. Final arguments have been heard and record has been meticulously perused.
APPRECIATION OF EVIDENCE AND LAW
42.The first offence for which the accused persons have been charged is u/s 498A IPC. Section 498A IPC provides as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purpose of this section, "cruelty means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide FIR No. 875/97, State Vs. Raj Kumar and others 20/30 21 or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
43.Section 498A IPC has been interpretted and its scope has been elaborated and discussed in detail by our own High Court in case titled as SANJEEV KR. AGGARWAL VS. STATE cited as 2008 (2) AD (Delhi) 586. The crux of the interpretation is as discussed below.
44.From a bare perusal of Sec. 498A as enshrined in IPC, it can be said that for attracting Explanation (a) of Sec. 498A, the cruelty has to be of such gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health.
45.Explanation (b) to Sec. 498A IPC is attracted only where harassment is shown to have been committed for the purpose of FIR No. 875/97, State Vs. Raj Kumar and others 21/30 22 coercing a woman to meet the demands for dowry in the nature of property or valuable security or because such demands have not been met. Thus, harassment in order to constitute cruelty under Explanation (b) must have nexus with the demand of dowry and if this is missing, the case will fall beyond the scope of Sec. 498A IPC.
46.In the instant case, it has been alleged in original complaint Ex. PW2/B, that after a few days of her marriage, complainant was harassed for not bringing sufficient dowry. The only specific demand for fulfillment of which she was allegedly tortured and treated with cruelty is an initial demand of Rs 40,000/ and later on a demand of Rs 60,000/. It is also alleged that demand of Rs 40,000/ was fulfilled by her father on 08.04.93.
47. There are various contradictions in the deposition of the prosecution witnesses regarding these allegations made in the complaint Ex. PW2/A.
48.Interestingly, none of the prosecution witnesses have stated any particular date when initial demand of Rs 40,000/ was allegedly made by the accused persons. While PW2 Rajni states that misbehaviour with her started after some time of her marriage, FIR No. 875/97, State Vs. Raj Kumar and others 22/30 23 father Sharan Das (PW1) deposed that it was after few months of her marriage. On the other hand PW3 Leelawati who is the mother of the complainant deposed that Rajni was kept properly for one year after the marriage.
49.It is the case of the complainant Rajni (PW2) that a demand of Rs 40,000/ was raised by the accused persons at the first instance whereas it is the case of father of the complainant Sh. Sharan Das (PW1) and her mother Leelawati (PW3) that demand was raised for Rs 1,00,000/ out of which Rs 40,000/ was given by them.
50.Complainant Rajni (PW1) has stated that demand of RS 40,000/ was raised by her mother in law accused Moti Devi and she was beaten by her husband at the instance of her mother in law for fulfillment of the said demand. On the other hand, Brother of the complainant Raman Kumar (PW4) has stated that the demand was raised by accused Raj Kumar and his parents. Parents of the complainant i.e PW1 & PW3 have made allegation of demand of Rs 1 lakh against all the accused persons (including those who have been discharged).
51. Regarding payment of Rs 40,000/, it is deposed by the complainant (PW2) that her father had given Rs 40,000/ to her FIR No. 875/97, State Vs. Raj Kumar and others 23/30 24 mother in law in the presence of all her in laws. PW1 (father of complainant) alleged that payment of Rs 40,000/ was given to parents in law of his daughter in the presence of the family members. PW3 stated in her examination in chief that payment was made to father in law of her daughter in the presence of other accused persons. However, in her cross examination she stated that this payment was made to accused Raj Kumar at Bhatinda and the said fact was not informed to parents of accused Raj Kumar. PW4 deposed that the payment was made to accused Mangal Sain. Moreover in the complaint Ex. PW2/B it has been stated that payment of Rs 40,000/ was made on 08.04.93, while PW1 has stated that the same was made on 18.04.93. Also there is no documentary evidence on record to show that the said payment was in fact made to the accused persons. PW1 has deposed that his sister in law and Raman (PW4) were present when the payment was made. However, deposition of PW4 is silent on this aspect. He has not deposed about being an eyewitness to the payment. Sister in law of PW1 who could have been an independent eye witness to the transaction has not been made a witness in the present case.
52.As regards further demand of Rs 60,000/ the complainant (PW2) FIR No. 875/97, State Vs. Raj Kumar and others 24/30 25 has no where deposed as to when the said amount of Rs 60,000/ was demanded from her. She has simply stated that she has refused to convey the said demand to her parents of which she was harassed. Thereafter, she has deposed about the incident when she was taken by her father after he came to know about the said demand. As per deposition of PW1 i.e her father the said incident of of taking away of PW2 by her father was in the year 1996. On the other hand, PW1 has stated that the demand of Rs 60,000/ was made after one or two months of payment of Rs 40,000/ to the accused persons which was on 18.04.93 as per his own deposition. PW3 and PW4 are completely silent about the date when this demand of Rs 60,000/ was raised from the complainant. PW4 has even stated that since earlier amount of Rs 40,000/ was not returned back by the accused, Rs 60,000/ was not given to the accused persons which gives an indication that earlier amount of Rs 40,000/ was given as a loan and not as dowry.
53.It has been argued by Ld. APP for State that these contradictions which have come in the testimony of the prosecution witnesses are minor contradictions which have to be ignored considering the fact that the matter is very old, FIR pertaining to the year 1997 FIR No. 875/97, State Vs. Raj Kumar and others 25/30 26 and witnesses have been cross examined about 10 years after the dates of the incidents.
54.I do not find any merit in this argument of Ld. APP for State as the complainant had not stated about any date of incident even in her complaint Ex. PW2/B which was filed at the first instance. The contradictions regarding this demand of Rs 40,000/ payment of Rs 40,000/ and demand of Rs 60,000/ which have come on record as discussed above are quite material, especially considering the fact that these are the only allegations made against the accused persons regarding the offence u/s 498A IPC. Besides these demands of Rs 40,000/ and Rs 60,000/ there is no other demand which has been alleged by the complainant to have been made from her by the accused persons in her original complaint Ex. PW2/B.
55. However, in her deposition before the Court she has also stated that a scooter and fridge were also demanded. These demand of scooter and fridge are not supported by original complaint Ex. PW2/B and also there is no corroborative evidence and none of the prosecution witnesses has deposed about the said demands.
56. Considering the contradictions in the deposition of prosecution FIR No. 875/97, State Vs. Raj Kumar and others 26/30 27 witnesses regarding the alleged demand and corresponding beatings given to the complainant for fulfillment of the said demand, the said allegation cannot be said to be proved beyond reasonable doubt. The doubt which is created because of these contradictions and due to absence of any documentary evidence in support of allegation made has to be given to the accused persons. The accused persons are also entitled to benefit of doubt as their defence that they had given a loan to the father of the complainant at the time of marriage of his daughter which was not returned by him despite demand also appears to be quite probable especially considering the admissions of the prosecution witnesses regarding the sale of property of the accused persons at the same time when the marriage of elder sister of the complainant was finalized. It is also difficult to believe that a person who had sold property for Rs 11,80,000/ and was in possession of said amount would make a demand of Rs 60,000/ from some other person.
57. In view of the reasons given above, the offence u/s 498A IPC as charged against accused persons cannot be said to have been proved beyond reasonable doubt. The accused persons are accordingly, entitled to acquittal for the said offence. FIR No. 875/97, State Vs. Raj Kumar and others 27/30 28
58.The second offence for which the accused Raj Kumar has been charged is u/s 406 IPC. Section 406 IPC provides as under:
59.For punishment for Criminal Breach of Trust (hereinafter referred to as "CBT") U/s 406 IPC, offence of CBT as defined u/s 405 IPC is to be proved.
Section 405 IPC reads as under:
"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contact, express or implied, which he has made touching the discharge of such trust, or wilfuly suffers any other person so to do, commits "criminal breach of trust".
60.Considering the definition as mentioned above, the basic requirements to bring home the accusation u/s 405 IPC is to prove cojointly.
(1) entrustment with property or with any dominion over FIR No. 875/97, State Vs. Raj Kumar and others 28/30 29 property,and (2) whether the accused was actuated by dishonest intention in misappropriating it or converting it to his own use to the detriment of the person who entrusted it.
61. In the instant case charge for the offence u/s 406 IPC has been framed only against husband accused Raj Kumar. There are no specific allegation of entrustment of any dowry articles to accused Raj Kumar in the entire complaint or in deposition of the prosectuion witnesses. The prosecution has also miserably failed to prove on record the purchase receipts of the various articles which were allegedly given in dowry by the parents of the complainant to her. Simply list of dowry articles which is Ex. PW2/A has been proved on record. There is no other document regarding giving of any dowry articles on record. It has also been admitted by all the prosecution witnesses that no list of dowry articles was prepared at the time of marriage. No details have been given by any prosecution witnesses as to the shop from where the dowry and jewellery articles were purchased by them. PW1, despite stating that he would produce the bills of the jewellery articles, has failed to produce the same on record. The prosecution has also failed to prove the source of income of father of the complainant from FIR No. 875/97, State Vs. Raj Kumar and others 29/30 30 which he could have purchased the alleged dowry articles.
62.In addition to this, as discussed, above the defence of the accused persons in the present case appears to be quite probable which is sufficient to create a doubt on the story of the prosecution for the reasons given above. The benefit of this doubt has to be given to the accused. Thus, accused Raj Kumar is entitled to acquittal for the offence u/s 406 IPC.
8. Accordingly, it is held that offences charged against the accused persons have not been proved beyond reasonable doubt. All the accused persons are accordingly, acquitted of the offences charged. However, their surety bond shall remain extended till six months from today u/s 437A Cr.P.C. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA
TODAY ON 22.08.2012 Metropolitan Magistrate,
Mahila Court/West/Delhi
FIR No. 875/97, State Vs. Raj Kumar and others 30/30