Delhi District Court
Sh. Tajinder Pal Singh vs State on 2 April, 2018
Criminal Appeal No.33/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 33/2018
Under Section : 498A/406 IPC
Police Station : Krishna Nagar
FIR No. : 358/2004
CNR No. : DLET01-001625-2018
In the matter of :-
1. SH. TAJINDER PAL SINGH
S/o. Late Shri Manmohan Singh,
R/o. H.No.37A, Gali No.8,
East Azad Nagar, Krishna Nagar, Delhi.
2. SMT. SURENDER KAUR
W/o. Late Shri Manmohan Singh,
R/o. H.No.37A, Gali No.8,
East Azad Nagar, Krishna Nagar, Delhi.
............APPELLANTS
VERSUS
STATE
............RESPONDENT
Date of Institution : 14.03.2018
Date of reserving judgment : 31.03.2018
Date of pronouncement : 02.04.2018
Decision : Appeal is allowed.
JUDGMENT
1. This criminal appeal is directed against the judgment of conviction dated 17.02.2018 and order on sentence dated 27.02.2018, passed by trial court, in a case titled as State v. Tajender Pal Singh & Anr., bearing FIR No. 358/2004, under Section 498A/406/34 IPC, PS Krishna Nagar. Vide impugned judgment of conviction dated Page 1 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 17.02.2018, trial court convicted accused Tajender Pal Singh and Surender Kaur (appellants herein) for offence punishable under Section 498A/34 IPC. Vide impugned order on sentence dated 27.02.2018, trial court sentenced convict Tajender Pal Singh/appellant no.1 herein to undergo simple imprisonment for a period of two years and to pay fine of Rs.10,000/- for offence punishable under Section 498A IPC and vide impugned order trial sentenced convict Surender Kaur/ appellant no.2 herein to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/- for offence punishable under Section 498A IPC. In default of payment of fine, convict Tajender Pal Singh was to undergo simple imprisonment for a period of four months and convict Surender Kaur was to undergo simple imprisonment for a period of two months. BRIEF FACTS OF THIS CASE : -
2. Briefly stated, complainant Gurpreet Kaur filed a complaint before CAW Cell, Krishna Nagar, Delhi on 17.03.2004. She alleged that she was married to accused Tajender Singh. He was drunkard and he along with accused Surender Kaur (mother-in-law) and accused Binti (sister-in-law) used to harass the complainant. Mostly, mother-in-law and sister-in-law used to harass her. In the night of 13.03.2004 at about 10:30 PM, husband of complainant came back to home. At that time mother-in-law of complainant instigated him where upon he came in the room of upper floor and started beating the complainant.
Mother-in-law also came up stairs after hearing her cries and gave her sever beatings, due to which complainant suffered injuries. However, complainant kept mum, because it was a family matter. But, the silence on the part of complainant was misused by her in- laws and they started harassing her all the times. Thereafter, complainant came to CAW Cell with her complaint, when she was Page 2 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 sent for her medical examination and her MLC was prepared. Complainant further alleged that her husband demanded Rs.2 lac to open a shop and he used to make such demand time and again. On the basis of this complaint, FIR was registered in this case. Prior to that CAW cell proceedings were conducted, but no settlement could take place between the parties.
3. After completion of investigation, chargesheet was filed for offences punishable under Section 498A/406/34 IPC on 19.11.2004. On 22.09.2007 trial court framed charges against accused Tajender Pal Singh, Surender Kaur and Charanjit Kaur @ Binti (since deceased) for offence punishable under Section 498A/34 IPC, to which they pleaded not guilty and claimed trial. During trial, accused Charanjit Kaur @ Binti expired and proceedings against her stood abated vide order dated 18.03.2015.
4. Prosecution examined seven witnesses in support of its case. PW1/ASI Rajender Prasad was duty officer, who recorded FIR No. 358/04 on the basis of rukka brought by ASI Rajpati. He proved carbon copy of FIR as Ex.PW1/A and his endorsement on rukka as Ex.PW1/B. PW2/Smt. Gurpreet Kaur was the complainant in the present case. She proved her complaint as Ex.PW2/A. She proved her statements of settlement taken place in CAW Cell as Ex.PW2/B and Ex.PW2/C. She proved list of dowry articles as Ex.PW2/D, admitted list filed by her husband as Ex.PW2/E, another list of jewellery filed by her as Ex.PW2/F, seizure memo of dowry articles recovered from matrimonial home of the complainant as Ex.PW2/G, another list of jewellery articles and precious articles filed by complainant as Ex.PW2/H, arrest memos of Tejender Pal Singh and Surender Kaur as Ex.PW2/I and Ex.PW2/J, personal search memos of Surender Kaur and Tejender Pal Singh as Ex.PW2/K and Page 3 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 Ex.PW2/L.
5. PW3/Shri Sawinder Singh was father of complainant. He deposed about marriage ceremony of complainant with accused Tajender Singh. He further deposed about demand and dissatisfaction of husband and in-laws of complainant related to dowry articles, beating of her daughter/complainant by them and recovery of some of the istridhan articles from matrimonial home of complainant.
6. PW4/(W)Ct. Anita accompanied IO and complainant to matrimonial home of complainant. She arrested accused Surender Kaur and took her personal search.
7. PW5/Dr. Amit Gupta medically examined complainant Smt. Gurpreet Kaur and prepared her MLC bearing No.E-3518 dated 17.03.2004 as Mark X.
8. PW6/SI Sohan Pal Singh was witness to arrest of accused persons. He did not disclose complete facts.
9. PW7/Retd. SI Raj Pati took permission from DCP (East) for registration of FIR on 18.08.2004. He prepared rukka and proved the same as Ex.PW7/A, on the basis of which FIR was registered in the present case. He further deposed that after completion of investigation, he prepared chargesheet and submitted the same before court through concerned SHO for necessary action.
10.Statement of accused Tajender Pal Singh and Surender Kaur were recorded under Section 313 Cr.P.C on 14.10.2017, wherein they denied all the allegations put to them. Accused Tajender Pal Singh took plea that marriage was very simple without giving and taking any dowry or article or cash. He further took plea that father of PW2/Gurpreet Kaur was beggar in Gurudwara, Shishganj along with his brother who was also a beggar at Gurudwara, Shishganj. Mother of PW2 i.e. Smt. Manjeet Kaur was also a poor lady having no means Page 4 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 and was housewife. Accused Surender Kaur took same plea as taken by accused Tajender Pal Singh. Both accused took plea that they had been falsely implicated in the present case. Accused Tajender Pal pleaded that PW2/Smt. Gurpreet Kaur was having physical relations with one Sh. Pankaj, due to which she made efforts to break matrimonial relations with them. Accused Tajinder Pal Singh examined himself as DW1. He deposed that complainant used to reside with her parents for about 20 days in a month and when he used to go to her parental home to take her back, her father used to say that "apna makan meri ladki ke naam kardo tab ham apni ladki ko bhejenge nahi to tumhare poore pariwar ko jhoothe case me fasa denge." DW1 further deposed that he had never committed torture upon her wife and never beaten her. He and his mother had never demanded anything from the complainant or from her family members. He did not take alcohol. Complainant and her family members had falsely implicated him and his mother, as complainant did not want to reside with them due to her affair with somebody else. DW1 further deposed that all the allegations leveled by complainant and her family were false and baseless.
11.Final arguments were heard and trial was concluded by convicting accused Tajender Pal Singh and Surender Kaur for offence punishable under Section 498A/34 IPC and order on sentence was passed accordingly.
GROUNDS :-
12.Being aggrieved of impugned judgment of conviction and order on sentence, appellants have preferred this appeal mainly on the following relevant grounds :-
● That when two views are reasonably possible from very same evidence, then prosecution cannot be said to have proved its case Page 5 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 beyond reasonable doubt as settled in (2006) 1 SCC 401. ● That appellants have suffered 14 years of mental trauma of criminal trial, being enough in such cases to acquit them in the circumstances of the case, which stood not proved by the prosecution beyond reasonable doubt and based on fabricated evidence on record.
ARGUMENTS :-
13.Ld. counsel for appellants argued that FIR was registered against three accused persons including appellants under Section 498A/406/ 34 IPC. However, they were charged for offence punishable under Section 498A/34 IPC only and discharged for offence under Section 406 IPC. Later on, an application was filed by ld. Addl. PP for framing of additional charge under Section 406 IPC, in the year 2017 with oblique motive. The charges were too vague without specifying the date, place etc. and were based on general allegations only. Still, trial was conducted by violating the mandate of Section 215 Cr.P.C. It was further argued that MLC of the complainant dated 17.03.2004 is doubtful evidence because as per MLC, complainant was brought by one police constable, but such police constable was not examined by prosecution. The allegations were that on 13.03.2004 complainant was hit with a broken cup and thereafter, complainant went to her parental home. She went to hospital from her parental home and there is no evidence to prove the place of incident. Even the used cup was not seized by police. In the MLC, there is nothing to prove identification of complainant. Moreover, even the doctor deposed that injury could be self inflicted also. Therefore, it is doubtful if such injury was inflicted by accused/ appellant no.1.
14.It was further argued that prosecution failed to prove demand of dowry and cruelty for not meeting the demand, beyond reasonable Page 6 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 doubt. No complaint was made instantly on the occasions of alleged cruelty and all of sudden complaint was made on 17.03.2004 about incident of 13.03.2004 before CAW Cell.
15.Ld. counsel further submitted that the trial court took into consideration the default on the part of appellant no.1 in making payment of maintenance to the complainant, so as to convict him. However, it was altogether a separate proceeding, which is under challenge before High Court. Complainant had obtained ex-parte decree of divorce with oblique motive. Accused stated before the court that she was residing with a different person and therefore, non payment of maintenance could not be considered as cruelty.
16.In respect of sentence, ld. counsel submitted that appellants faced mental trauma of facing the trial for a long period, which is a mitigating circumstance for the purpose of sentence and appellants were also entitled for benefit under Section 360 Cr.P.C to be released on probation because they were not involved in similar act in the past.
17.Ld. counsel for appellants later on filed certain judgments, which are as follows :-
● State of West Bengal v. Orilal Jaiswal & Anr., AIR 1994 Supreme Court 1418.
● Appasaheb & Anr. v. State of Maharashtra, AIR 2007 Supreme Court 763.
● Ravindra Pyarelal Bidlan & Ors. v. State of Maharashtra, 1993 CRI.L.J. 3019.
● B.T. Jayaram v. State of Karnataka, AIR 2006 Supreme Court 1799.
18.Per contra ld. Addl. PP for State along with ld. counsel for complainant submitted that Section 215 Cr.P.C provides that if there is no failure of justice then any objection related to charge shall not be entertained. It was further argued that the incident dated Page 7 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 13.03.2004 took place inside the house and there could not be any other eyewitness of the same. As per allegations, demand of Rs.2 lac was made by appellants for opening a shop by appellant no.1 and such demand is consistent with the status of appellant no.1, who was working in a cloth shop as sales man and he wanted to have his own shop. It was further argued that the FIR was registered in August 2004, therefore, investigation started after FIR. In these circumstances, the cup used to injure the complainant could not be seized by police. Even otherwise, for any mistake on the part of police, complainant should not be made to suffer. It was also argued that the doctor was duty bound to prepare MLC once complainant appeared before him and doctor also mentioned the alleged history. He testified before the court that complainant had told him about such facts and he vouched that such MLC was prepared by him. There was no reason for the doctor to prepare a fake MLC.
19.It was further argued that even a single incident can be sufficient to attract Section 498A IPC, though it has come on the record that appellants used to harass the complainant. The appellant no.1 did appear in all the proceedings including proceedings for divorce, but he stopped appearing later on, therefore, ex-parte decree was passed. Hence, appellant cannot take benefit of his own wrong. Ld. counsel for complainant further submitted that keeping in view the physical condition of appellant no.2, he does not wish to contest appeal on her behalf, though appellant no.1 must not be let off.
20.Complainant later on filed a judgment i.e. Surinder Kumar Yadav & Ors. v. State, 84 (2000) DLT 289 and has pointed to following paragraph :-
"11. Besides, non-payment of maintenance to the bride, demands of dowry by the in-laws from the bride and/or Page 8 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 her parents and consequential harassment of the bride on failure to meet the demands, etc., are all instances of maltreatment, humiliation and cruelty. In such like cases cruelty would not be confined to the matrimonial home, but it will transcend the boundaries of the matrimonial home and have a reach over the bride residing at her parental home as well. In the instant case, as per the complaint and the supplementary statement of Pushpa, she is still being deprived of her dowry and maintenance. This deprivation continues day after day, even at Delhi and constitutes cruelty."
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
21.PW2/Smt. Gurpreet Kaur was the most important witness of the prosecution. Therefore, I shall deal with her evidence related to charge under Section 498A IPC. Before proceeding further, it is worth to mention here that no charge was framed under Section 406 IPC against the appellants nor they have been convicted under Section 406 IPC. Rather vide order dated 27.09.2017, ld. MM specifically discharged the appellants for offence under Section 406 IPC, while dismissing the application moved by prosecution under Section 216 Cr.P.C.
22.As per testimony of PW2, after marriage she was taken to her matrimonial home at Azad Nagar. Her mother-in-law, father-in-law and brother-in-law (devar) were residing there in joint family. Her sister-in-law used to visit the matrimonial home. For about six months she was kept properly and thereafter, her husband used to beat her under influence of liquor. She remained quite for the sake of her matrimonial life. Her mother-in-law and sister-in-law (Binti) used to harass and torture her for demand of cash. All the accused persons used to demand Rs.2 lac on the pretext that they wished to start a shop. In March 2000 she gave birth to a male child. Accused persons Page 9 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 used to harass and torture her and give her beatings. On 13.03.2004 at about 10:30 PM, her husband came to the house in drunken condition. Her mother-in-law and sister-in-law instigated her husband to demand Rs.2 lac and her husband asked her to bring Rs.2 lac. On her refusal, her husband, mother-in-law and sister-in-law gave beatings to her. They slapped her and after breaking a mug of coffee, they scratched on her chest, while beating her and thereafter, she was thrown out of matrimonial home. She waited for accused persons for 2-3 days, as she wanted to rejoin her matrimonial home. In the meantime, her father tried to counsel the accused persons, but her husband and mother-in-law abused her father. On 17.03.2004 she visited CAW Cell, Krishna Nagar and lodged a complaint against her husband and in-laws. That complaint is Ex.PW2/A. She was taken to Dr. Hedgewar Hospital, where she was medically examined vide MLC Mark 'X'. Her statements were recorded before CAW Cell and she also filed list of dowry articles during that proceeding. No settlement could be arrived before CAW Cell.
23.During her cross-examination by defence, PW2 testified that she made complaint against accused for the first time on 13.03.2004. Her father was a property dealer at the time of her marriage. On 13.03.2004 at about 10:30 PM, she was beaten and thrown out of the matrimonial home by her husband and mother-in-law. Though she had not mentioned this fact in her complaint made to police. She denied the suggestion that she used to talk to unknown person at odd hours. She denied the suggestion that after incident of 13.03.2004, her husband followed her and pursued her to come back at matrimonial home. She was beaten by her husband on her chest by coffee mug and she had disclosed this fact to the doctor, who prepared MLC. Though she did not tell this fact that coffee mug was Page 10 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 broken before beating her, before police. She denied that the injuries mentioned in the MLC were self inflicted. She could not tell the exact date and time when accused demanded sum of Rs.2 lac. She deposed that her husband used to demand Rs.2 lac for doing cloth business and it was demanded in the presence of her mother-in-law. This demand was also made on 13.03.2004. She denied the suggestion that she was having relation with another person namely Pankaj. She denied the suggestion that no demand of any amount was ever made by accused persons.
24.The next important witness was PW3/Shri Sawinder Singh. Shri Sawinder Singh was father of complainant and relevant part of his testimony discloses that after marriage of his daughter Gurpreet Kaur, her mother-in-law, sister-in-law and husband were not happy with the gifts given in the marriage. They raised demand for more dowry. Husband of his daughter raised demand of Rs.2 lac for opening a cloth shop and when he could not fulfill the said demand, mother-in-law, sister-in-law and husband gave beatings to his daughter. Once his daughter was severely beaten by her husband for not fulfilling the demand of Rs.2 lac and his daughter was medically examined at Hedgewar Hospital on that day. He along with his daughter made a complaint to police regarding said beatings. LEGAL PRINCIPLES :-
25.Before I proceed further to analyze the evidence, it is appropriate to discuss the legal principles and arguments related thereto. In the case of Orilal Jaiswal (supra), Supreme Court reiterated the general legal principles to the effect that even in cases under Section 498A IPC the degree of proof remains to be beyond doubt despite introduction of 113A of Evidence Act. The court held that there is no absolute law for proof in a criminal trial and the question whether the Page 11 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 charges made against the accused have been proved beyond all reasonable doubt must be taken upon the facts and circumstances of the case and the quality of the evidences. In the case of Appasaheb (supra) Supreme Court dealt with the meaning of term 'dowry', however, Section 498A IPC does not deal with dowry exclusively. Rather, it also incorporates any unlawful demand if made by accused persons. Therefore, dealing with definition of dowry is not much relevant in the present case.
26.In the case of Ravindra Pyarelal (supra) Bombay High Court observed that Sub Clause (b) of explanation to Section 498A IPC does not make each and every harassment a cruelty. The harassment has to be with definite object i.e. to coerce the women or any person related to her to meet any unlawful demand. Mere demand for property by itself is also not cruelty. It is only where harassment is committed for the purpose of coercing to meet the demands. In the case of B.T. Jayaram (supra) the court had simply altered the sentence under Section 498A IPC to the period already undergone, however, there is no precedent in this judgment, which can be followed because it was decision peculiar to that particular case.
27.In the case of Surinder Kumar Yadav (supra), Delhi High Court made certain observations in para 11 of the judgment, which have been relied upon by complainant to say that even non payment of maintenance is cruelty under Section 498A IPC. However, on perusal of this judgment, I find that the court was dealing with the legal issue of territorial jurisdiction for the purposes of offence under Section 498A and 406 IPC and while dealing with this legal question, such observations were made by the court, which has been relied upon by the complainant. The relevant observations have already been Page 12 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 reproduced herein above under the head of arguments.
28.On the other hand, while dealing with the ingredients of Section 498A IPC, in the case of Sanjeev Kumar Aggarwal & Ors. v. State & Anr., 2007 (4) JCC 3074, Delhi High Court explained the required ingredients in following manner :-
● Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. ● Explanation (b) to Section 498-A provides that cruelty means 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.
● Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only, where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the Section.
29.The ingredients explained by Delhi High Court in the case of Sanjeev Kumar (supra) has to be accepted as binding ratio and the passing reference as made in the case of Surinder Kumar (supra) is to be treated as obiter dicta, because in the first case Delhi High Court was actually explaining the law in question, while in the second case the court was dealing with a different legal question and observations in para 11 were made simply as passing reference.
30.Thus, on the basis of legal principles emerging out of above mentioned case laws, it can be said that, in order to bring home the assumption of guilt under Section 498-A IPC, the prosecution has to establish following ingredients :-
The accused is either husband or relative of the husband of a Page 13 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 woman, who subjected such woman to cruelty and cruelty means- ● The accused persons willfully conducted themselves in such manner as was likely to drive that woman to commit suicide, or ● their conduct caused grave injury or danger to life, limb or health (mental or physical) of that woman, or ● their conduct caused harassment to that woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security, or ● harassment of that woman or any person related to that woman on account of failure of that woman or her relatives to meet unlawful demand.
It can be further said that all the aforesaid ingredients should be established with evidence beyond reasonable doubt.
31.Coming back to the evidence in this case, it is necessary to test the credibility of allegations made by PW2 and PW3. PW2 had made complaint to police Ex.PW2/A on 17.03.2004. Admittedly, this was the first complaint made by PW2 against her husband and in-laws. In this complaint PW2 alleged that her husband worked in a cloth shop and was habitual to consume liquor. Her husband, mother-in-law and sister-in-law used to harass her, though her father used to help her husband. She further alleged that her mother-in-law and sister-in-law harassed her on maximum occasions. On 13.03.2004 at about 10:30 PM her husband came back to home. He was instigated by mother- in-law of the complainant and then her husband came in the room on the upper floor, said something wrong to the complainant and started beating. Hearing cries of complainant, her mother-in-law also came up stairs and she also gave beatings to her severely. Due to which, complainant sustained injuries and abrasions, but complainant kept mum because it was family affairs.
32.In this complaint, a different description of incident dated 13.03.2004 was given by the complainant, than the one given in her testimony before the court. In her testimony before the court, complainant had Page 14 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 introduced her sister-in-law also to allege that her mother-in-law and sister-in-law instigated her husband to demand Rs.2 lac and when complainant refused, then all three of them gave beatings to her. In the first complaint there was no categorical allegation that this incident dated 13.03.2004 had taken place on account of demand of Rs.2 lac. Though in the concluding lines of the complaint, a general allegation was made that husband, mother-in-law and sister-in-law used to harass her and demand unlawful money i.e. in the sum of Rs.2 lac to open a cloth shop. If the upper portion of complaint is carefully perused then one can find that there is no mention of exact reason for the beatings given on 13.03.2004 and the only clue one could get is that on instigation of his mother, husband of complainant came up stairs in the room and said something badly to the complainant and thereafter started beating her.
33.In the testimony before the court, there is no reference to the location of complainant being up stairs on 13.03.2004 and there is straight away an allegation made that husband, mother-in-law and sister-in- law started beating complainant when she refused to pay Rs.2 lac.
34.Over long passage of time, on the basis of going through a number of such cases, the courts have advised to take a precautionary approach while appreciating the evidence in such cases. The basic reason is that in such cases there remains a normal tendency to exaggerate the allegations and to implead as many persons as possible, either with objective to put pressure upon other party or out of vindictiveness. It is also worth considering that the law does not make all instances of matrimonial dispute a crime. Therefore, whenever there is a matrimonial dispute, the court has to be cautious against the tendency to give a criminal colour to the dispute, on the basis of exaggerated allegation.
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35.Present case is not exception to this general tendency and it is so evident from the testimony of PW2 and PW3. PW3 was apparently not residing with PW2 at her matrimonial home, still he deposed in a manner as if he was eye witness to the demand of Rs.2 lac being raised by accused or that he was eye witness to the beatings given to her daughter by her in-laws. PW3 did not say if such demand was ever made to him by any accused or if such demand was ever communicated to him by PW2. Such facts were apparently deposed following lines of PW2 and his evidence in this regard is hit by hear say evidence.
36.In respect of demand of Rs.2 lac so as to open a cloth shop, PW2 made a general allegation that all accused persons used to demand Rs.2 lac on the pretext to start a shop. Apart from incident of 13.03.2004, she did not mention any other incident of her physical or mental torture, which related to making of such demand or non fulfillment of such demand. Her initial allegation was that her husband used to beat her under influence of liquor. However, PW2 did not mention if the reasons for this beating was on account of non fulfillment of any demand or was it purely attributable to drunken condition of her husband. Beating of complainant by her husband in drunken condition, if not connected with any unlawful demand, could not be covered under Section 498A IPC. Though, husband could be taken to the task individually for each separate incident i.e. for physical assaulting the complainant and causing injury to her.
37.The credibility of testimony of PW2 is further affected with other exaggerations like her being thrown away from matrimonial home in the night of 13.03.2004. In her police complaint, PW2 had apparently not made any such allegation rather she talked about keeping mum and misuse of her silence by the accused persons. Misuse of her Page 16 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 silence assumes importance, which shows that there was something which was excepted by complainant to be done by accused persons, but the same was not so done by them. Complainant further alleged in her police complaint that after she kept mum, the accused persons started harassing her throughout the day and night. However, the admitted fact is that complainant had been residing at her parental home since the night of 13.03.2004 and thereafter, police complaints were made, which means that there was no occasion for the accused persons to harass the complainant after this incident.
38.There is possibility that complainant was physically assaulted in the night of 13.03.2004 by her husband over some issue and since this issue was not resolved, therefore, finding no other alternative complainant lodged police complaint, while adding some additional allegations to incorporate the element of demand and beatings related to non fulfillment of such demand.
39.There was another argument from the side of complainant that a single instance of beating would also constitute cruelty under Section 498A IPC. However, I am unable to agree with such contention because Section 498A IPC uses the term 'cruelty', which is likely to drive the women to commit suicide or to cause grave injury/danger to her life, limb or health. It further uses the term 'harassment' rather than physical assault. Harassment can be there even without physical assault, but be it cruelty or harassment, it refers to a continuing process rather than one time incident. There cannot be hard and fast formula to fix the time limit of this continuing process, but suffice is to say that it would be based on more than one instance. The incidents may include incident of physical harm or causing mental harm by way of abusing, taunting etc. on frequent basis.
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40.In the present case, the continuing process has not been well explained by the prosecution nor so deposed either by PW2 or PW3 in categorical terms. Therefore, defence has to be given benefit of doubt so far as it relates to offence under Section 498A IPC.
41.Ld. counsel for appellants challenged the veracity of MLC Mark X, which was proved by PW5. As far as not producing the Constable, who had taken the complainant to Hedgewar hospital, is concerned, I do not find much importance attached to this argument. Ld. defence counsel challenged MLC on the grounds that one could not be sure if complainant was examined while preparing this MLC or was it prepared on the basis of examination of some one else. He based this argument on the plea that there was no proper identification of complainant. In this respect, it is relevant to refer to testimony of PW2, who categorically deposed that when she went to CAW Cell with her complaint, she was sent to hospital along with police constable for her medical examination. Such statement shows the scenario wherein name of Ct. Kanta Devi was mentioned in MLC. This is normal practice for police to send a complainant for medical examination, if there are allegations of physical assault. It was so done in this case.
42.Defence did not take plea that thumb impression on MLC did not pertain to PW2. I am in agreement with contention of ld. Addl. PP that there was no reason for PW5 i.e. the concerned doctor to depose falsely or to prepare a false MLC. PW5 referred to alleged history, which had to be based on the inputs given by complainant. An opinion given by him that injuries could be self inflicted, simply refers to a possibility. It has to be seen whether the injuries were self inflicted or were inflicted upon complainant by her husband. In the cross-examination of PW2, it was suggested to her that after incident Page 18 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 on 13.03.2004 her husband followed her and pursued her to come back at matrimonial home. This suggestion in itself acknowledges that an incident had taken place on 13.03.2004. Otherwise, there could not have been any occasion for appellant no.1 to follow the complainant and pursue her to come back home. If it was not an incident of physical assault, then it was for appellant no.1 to disclose that what was this incident about. Appellant no.1 though appeared as witness as DW1, but he did not explain any alternative incident. Therefore, there is no reason to disbelieve this version of complainant that she was beaten and injured by her husband in the night of 13.03.2004. Apparently, police could not have seized the concerned mug of coffee, because investigation started only after registration of case in August 2004. By this time that mug could not have been available.
43.However, at the same time I am unable to find any evidence to connect appellant no.2 with this incident dated 13.03.2004. The inclusion of name appellant no.2 appears to be based on exaggerated allegations, as discussed herein before.
44.In view of foregoing discussions, observations and findings, I find that a case for offence under Section 498A read with Section 34 IPC was not proved against both appellants. Though, prosecution could prove a case of physical assault to the complainant by appellant no.1 thereby resulting into simply injuries to her. In these circumstances, appeal is allowed and conviction of appellant no.1 is converted from Section 498A IPC to Section 323 IPC. Appellant no.2 is acquitted of all the charges.
45.Trial court record shows that appellant no.1 was in custody in this case after registration of the case since 20.08.2004 and his bail bond was accepted on 23.08.2004. Thereafter, on account of absence of Page 19 of 20 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.33/2018 appellant no.1 before trial court, he was again taken into custody on 25.08.2012 and was again readmitted to bail on 20.09.2012, though released on 21.09.2012. Thereafter, he was again taken into custody on 05.03.2014 and was again readmitted to bail on 19.03.2014 and released on 20.03.2014. Thereafter, he was being produced from J/C, but was not taken into custody in this case. Therefore, that period of custody is not to be considered. He had been in custody during appeal from 27.03.2018 up to this date i.e. 02.04.2018. Thus, he had been in custody for one month 22 days. In the back drop of long trial taken place in this case, so much of custody is sufficient as punishment for offence under Section 323 IPC. Accordingly, appellant no.1 is sentenced to imprisonment already undergone in this case. He be released, if not required in any other case. Copy of this judgment be supplied to him free of cost.
46.Both appellants shall furnish a bond under Section 437A Cr.P.C before trial court in the sum of Rs.10,000/-, with one surety in the like amount and accordingly they shall appear before trial court on 07.04.2018 at 02:00 PM.
47.TCR be sent back along with copy of judgment to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2018.04.02
18:20:05 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 02.04.2018 Special Judge (PC Act) CBI, East
(This order contains 20 pages) Karkardooma Courts, Delhi
Page 20 of 20 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi