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Showing contexts for: Joint locker in Fir No.362/2011; Ps H.N. Din; State vs . Anil Bahadur Mathur & Anr. 1 Of 29 on 26 November, 2018Matching Fragments
4. In order to prove its case, prosecution examined as many as seven witnesses.
PW1 Shikha Mathur (complainant) deposed that she was residing alone at the address and was B.A., B.Ed. She got married on 20.11.1994 with Anil Bahadur Mathur at Sukhdev Vihar, New Delhi. In her marriage, her father gave her all the household articles i.e. furniture, fridge, TV, music system, utensils, clothes and jewellery of gold and silver. In gold articles, her father gave following jewellery items like One necklace, earrings, ring (one set), One Pearls necklace studded in gold pieces, One pair of Kadas, one pair of silver anklets, Four gold bangles. One pair of gold Jhumkas, 23 pairs of gold earrings, one separate gold ring, 8 nos. of silver coins, One gold plated champakali (necklace), 2 gold chains, 2 pairs of earrings, One gold necklace with earrings and ring. There were many other articles but she did not FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 5 of 29 remember. Thereafter when she went to her matrimonial home, with time gradually, her motherinlaw and her husband both took away the aforesaid jewellery from her on the pretext of keeping it in safe custody. When she used to demand her jewellery from the accused and on some occasions she received it from him but sometimes he did not return it to her. Thereafter, they opened a joint locker at Central Bank of India, Nizamuddin West. The key of the said locker was always in the custody of her husband/accused. She rarely operated the aforesaid locker. Her husband had permitted her to operate the locker only once he wanted to deposit some cash amount in the locker. After the operation of the same, she used to hand over the key of the locker to accused. She did not know as to how much jewellery kept in the locker and how much in the possession of her motherinlaw. There used to be often quarrels between her and her husband. In the year 1997 after about 2 ½ years of her marriage, accused had given her beatings, due to which her left eardrum got damaged. Even subsequent to this the quarrels between her and her husband did not end. Her motherinlaw used to instigate her husband against her. At one time, accused had even twisted her left thumb of hand and she suffered injury. Her husband/accused was a habitual drinker and after consuming liquor he used to beat her and also forced her to consume the same. Whenever she refused to drink liquor, accused alongwith his family members used to force her to consume the same and said that if she did not do the same, she will be a misfit in the society and used to call her orthodox. On 06.06.2011, accused fought with her and went downstairs alongwith her motherinlaw. On 09.06.2011, her parents visited the Central Bank of India FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 6 of 29 and informed her that accused had operated the locker on 04.06.2011. On this, she wrote a letter to the bank for sealing of the locker. Thereafter, accused did not give her daily expenses. On 13.06.2011 accused transferred an amount of Rs.35,000/ in her HDFC bank account, however, she was not having ATM or cheque book of her HDFC Bank account with her and the same was in the possession of the accused. On 10.09.2011, accused entered her premises on the first floor of the Nizamuddin house and started taking away her garden furniture. When she objected, accused gave her beatings. Thereafter she sustained injuries and went to Trauma Centre, AIIMS. On returning from there, she also lodged an FIR against the accused bearing FIR No.264/2011. She again stated that it may be FIR No. 242/2011. Even on the earlier occasions, accused had given her beatings. In the year 2003, on one occasion the electricity bill was Rs.1,200/ and on the same issue, accused started fighting with her. Accused used to call her parents often and complained that she did not work, never live properly with him. Accused used to often ask her parents to take her away to the parental home. In the year 2008, accused kept a pet dog for which she objected and accused gave her beatings and stopped talking to her and started living with his mother on the ground floor and stopped coming and stay with her at the first floor. Accused used to use abusive language against her. On 11.10.2010, a friend of accused namely Pradeep Singh Chatwal had invited them for dinner and drinks and when she refused to accompany for such drinks party, accused gave her severe beatings and abused her in filthy language. Thereafter, she went with accused to the said party where accused consumed liquor and was FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 7 of 29 inebriated condition. He was brought back home by his friends and relatives. All her jewellery articles were in possession of her husband and her mother inlaw. She never had the keys of the said locker and the same was always in the possession of accused, who had it in his custody since the person who shuts the locker has to do it with his key only and no one can operate it subsequently without the original key. Her complaint was Ex.PW1/1 and record pertaining to CAW cell was Ex.PW1/B. The list of dowry articles dated 07.07.2011 was Ex.PW1/C. Copy of the letter dated 13.05.1997 written by her to her parents was mark A. Copy of letter dated 07.06.1999 was Mark B, which was written by her to her father. Her complaint to the SHO concerned dated 19.06.2011 was Mark C. Photocopy of her marriage card was Mark D and photocopy of certificate issued by ENT Surgeon dated 30.05.1997 was mark E. photocopy of her treatment at Holi Family Hospital on 02.03.2011 was mark F. List of items and other expenditure done during November, 1993 till the filing of the complaint are Mark E and the list of Stridhan articles given during engagement ceremony was Ex.PW1/D. Photocopy of DD no.40B dated 10.09.2011 was Mark F. Photocopy of MLC dated 10.09.2011 was mark G and the photographs/ album was Ex.PW1/E. During crossexamination on behalf of accused Sushila Mathur, PW1 deposed that police recorded her statement but she did not remember the date. Her statement was recorded by police u/s 161 Cr.P.C. It is correct that all the jewellery articles were kept in the joint locker by her husband and the same was within the knowledge of her motherinlaw. She voluntarily stated that some of the articles were in the custody of my motherinlaw.
During crossexamination on behalf of accused Anil Bahadur Mathur, PW1 deposed that prior to filing of the present complaint, she had filed a complaint under section 12 DV Act against the accused. She had also filed a complaint against her husband in FIR no.264 PS Nizamuddin but she did not remember the year but it may be in the year 2011. She had filed the present complaint initially at CAW Cell Sriniwaspuri. Initially the same was dismissed by CAW Cell Nanakpura against the accused. She voluntarily stated that the same was dismissed due to jurisdiction. It was correct that in the proceedings before the CAW cell Nanakpura, she and her husband were called. It was wrong to suggest that CAW Cell Nanakpura had summoned her husband because they had jurisdiction to entertain the complaint. She had filed the same complaint in both the CAW Cells. It was wrong to suggest that her complaint at CAW Cell was dismissed on merits. She had informed verbally in the CAW Cell Sriniwaspuri regarding her dismissal of complaint at CAW Cell Nanakpura. She had not mentioned the same fact in her complaint. It was wrong to suggest that she had not informed the police of FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 9 of 29 CAW Cell Sriniwaspuri verbally regarding dismissal of her complaint at CAW Cell Nanakpura. After her marriage, she went to her matrimonial home at Nizamuddin East, on the second floor. Her motherinlaw used to live at ground floor. She had a separate entry for the second floor. The joint locker was in the name of accused no.1 and her. She did not remember the exact date or year when the joint locker was opened. She did not remember the number of years after her marriage when the aforesaid locked was opened. She had filed the DV Act case on 12.06.2011. She further stated that it was filed on 12.05.2011. She did not operate the locker in the month of April, 2011 prior to filing of the present complaint. It was wrong to suggest that she had operated the locker on 09.04.2011 and had taken out all the jewellery and other articles from the locker at 12.20pm. It was correct that when she filed the complaint under DV Act, she was residing with her husband. She had given the bills with regard to the articles mentioned in the examination in chief dated 15.05.2017 to the police. It was wrong to suggest that she had not given any such bills and therefore the same are not part of chargesheet. It was correct that she had not mentioned in her letters Mark A and Mark B with regard to any articles handed over to her husband/inlaws. She had not given any earlier complaint in writing to any authority or person in respect of any articles given to her inlaws/husband prior to the present complaint filed before the CAW Cell. Her husband had taken her on foreign trips to Nepal twice and once to New Zealand. They had gone to New Zealand in 21.12.2010 and came back on 05.01.2011 i.e. 45 months prior to the filing of present complaint. Her husband used to provide day to day expenses as he FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 10 of 29 was the earning member in the family. In 2011 they were living on the first floor of the house at Nizamuddin which belong to her motherinlaw and fatherinlaw. There were three bedrooms and three bathrooms, one drawing, dining, one big balcony and two small balconies and one modular kitchen on the first floor. The house was fully furnished and was having four air conditioners, TV and all other equipments which were required. Her husband also took her for leisure trips to various places in India. They used to go out on such trip at least twice every year. Apart from this case, she had filed various cases against the accused. It was wrong to suggest that she had filed 18 cases in total against the accused. She voluntarily stated that there may be 18 Execution proceedings. She had filed a case under DV Act, defamation (Civil and Criminal), two recovery suits, one FIR No.264/2011, maintenance case. She was aware that the accused was acquitted in FIR No.264/2011. At the time when she filed complaint in the present case before the CAW cell, her daughter was living with her. Just about 10 days prior to attaining majority, her daughter left her and started living with her husband. It was wrong to suggest that her daughter had left her because of her conduct and therefore had gone to her father. She voluntarily stated that her husband had stopped making payment of maintenance to her ordered in DV Act and that is why her daughter left her and she was compelled to reside with her husband. Even after clearance of maintenance, her daughter did not come back to her. She had signed the application form for opening a joint locker with her husband. She did not remember the date when they had applied for the joint locker. She had not written any letter to the bank seeking information in FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 11 of 29 respect of person who had operated the locker from January to May, 2011. It was correct that she had filed the complaint under the DV Act on 12.05.2011. It was wrong to suggest that prior to this on 05.03.2011 and 09.04.2011, she had operated the joint locker and removed all the articles from it. It was correct that after their disagreement on 06.06.2011, her husband did not throw her out of the house and instead he voluntarily shifted downstairs to the ground floor where his mother was staying. It was correct that the HDFC account was in her personal name. She voluntarily stated that all her ATM cards, debit cards, signed cheque books were in possession of her husband. She had not given any complaint to her bank prior to her disagreement with her husband on 06.06.2011 in respect of the possession of her ATM cards, debit cards, signed cheque books with her husband. She was aware that accused Anil Bahadur Mathur has been acquitted in case FIR No. 264/2011 filed by her and her daughter at PS H.N. Din. When she used to demand the jewellery, she used to sometimes receive it sometimes she used to be denied. She voluntarily stated that she was never given the entire jewelry by the accused persons. She could not remember as to when she had received the jewelry on the last occasion prior to registration of the FIR. Upon asking, PW1 stated that she did not remember if she had operated the locker on the aforesaid dates, but in case the same were operated, it was for the purpose of keeping of cash. It was correct that she had operated the locker only once. It was incorrect to suggest that she had operated the locker on many occasions and had removed her jewelry from the joint locker, immediately prior to filing of her case under the domestic violence act. She did not remember, if during FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 12 of 29 investigation, she had accompanied the IO to Central Bank of India, Nizamuddin West branch, where they had a joint locker to obtain the statement / certificate in respect of operation of the locker on different dates. She was aware that amounts can be withdrawn from the cheques only when the cheques bear the signatures of the account holders. It was incorrect to suggest that the documents filed alongwith the complaint are false and fabricated. Witness denied all the suggestions put to her. PW2 ASI Surender Pal (Duty officer) deposed that he registered the FIR Ex.PW2/A on rukka Ex.PW2/B. Opportunity to crossexamine the witness was granted to the accused persons but they did not question anything from the witness. PW3 ASI Nirmala Sharma (IO, CAW Cell) deposed that on 28.06.2011, she was posted as ASI in CAW Cell, Sriniwaspuri. On that day, she received a complaint No. 393C/CAW Cell/ SED dated 28.06.2011 which was EX.PW1/A for further inquiry of the matter and making conciliation among the party. She conducted proceedings before CAW Cell and send a request letter to respondent after which they appeared before her. She heard parties to the marriage and tried to make conciliation between them but no settlement was arrived at among them. Thereafter, she prepared final inquiry report recommending court registration FIR with regards to aforesaid complaint. The final report Ex.PW1/B. During cross examination on behalf of accused No.2, PW3 deposed that the report was prepared on the basis of complaint and inquiry conducted by her. She had not written in complaint that jewelry was ever handed over FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 13 of 29 to the complainant. However, she had mentioned the word respondent in her final report at para no. 1, which suggests mother in law and husband of the complainant. It was correct that she had not mentioned the name of Sushila Mathur as a respondent in Ex.PW1/B. During cross examination on behalf of accused No.1, PW3 deposed that before she took over the complaint, the counseling was done by SI Raj Kumar Atri. She had also conducted counseling proceedings after receiving the complaint for further inquiry of the matter. She had also made inquiries regarding the complainant. It was correct that she had conducted proceedings dated 14.11.2011 and 28.11.2011 and recorded the same in details of proceedings which was Ex.PW3/D1. The complainant told her that she had never operated the locker. She did not inquire from the banker as to the complainant had operated the locker.
5. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
6. Accused examined one witness in his defence.
FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 20 of 29 DW1 Lolas Lakra (Assistant Manager, Central Bank of India) deposed that the record pertaining to locker No.35 in the joint name of Ms. Shikha Mathur and Sh. Anil Mathur pertaining to account No.3020397647 in the aforesaid bank for the period between 01.01.2011 till June, 2011 and as per record, the aforesaid locker was operated on 20.12.2010, 08.01.2011, 22.01.2011, 29.01.2011, 05.03.2011 and on 09.04.2011. On all aforesaid dates, the same was operated by complainant and on 07.03.2011 and 04.06.2011 by accused Anil Bahadur Mathur. The aforesaid record was Ex.DW1/A. During crossexamination DW1 deposed that it was correct that the locker was last operated on 04.06.2011 by husband of complainant namely Sh. Anil Mathur. Aforesaid locker was sealed upon the request of complainant Shikha Mathur and the same was mentioned as "not operated". It was correct that upon the application of Ms. Shikha Mathur, the aforesaid bank account number was also sealed. There was only one key given even if the same was a joint locker in the name of two persons.
8. On the other hand, it has been argued by Ld. Counsel for accused Anil Bahadur Mathur that both the parties got married in the year 1994 and since then, till the present complaint in the year 2011, the complainant did not file a single complaint against the accused persons of any nature. It has also been argued that the complainant filed her complaint under the Domestic Violence Act also in the year 2011 while she was cohabiting with the accused and since her first complaint with the CAW cell was dismissed on merits, she again chose to file another complaint against the accused upon which the present FIR was registered. It has also been argued that prosecution has examined as many as seven witnesses to substantiate the allegations of the complainant, however, apart from complainant who was examined as PW1, another witness being a public witness was PW4 Sh. P.N. Mathur being the FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 22 of 29 uncle of the complainant and the remaining witnesses examined by the prosecution were formal in nature. It has also been argued that PW5 Sakshi Mathur being the daughter of complainant has deposed against the complainant and did not support the story of prosecution. It has been argued on behalf of accused No.1 that the accused has been charged for the offences punishable u/s 323/406 IPC alongwith accused No.2 being his mother. It has further argued that none of the ingredients of the aforesaid offences have been proved against the accused persons and complainant has nowhere stated the exact date on which she had handed over the alleged stridhan articles to the accused persons or the date of demand and subsequent refusal. It has also been argued that it was the complainant who had alleged after 17 ½ years of her marriage that her jewellery given in marriage had been misappropriated by the accused persons and also that the said jewellery was kept in a locker jointly in the name of complainant and accused Anil Bahadur Mathur and she was never allowed to operate the aforesaid locker and the keys were always in the possession of aforesaid accused. It is argued that the aforesaid allegations of the complainant are false which are proved in the testimony of DW1 wherein it was the complainant who had operated the said locker most of the time and the same was operated by accused Anil Bahadur Mathure only twice. It has also been argued that though it was last operated on 04.06.2011 by accused Anil Bahadur Mathur and prior to that by complainant on 09.04.2011, it was the complainant who had taken away all her belongings from her locker on 09.04.2011 since by then she had already filed a case against the accused being her husband under the Domestic Violence Act and FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 23 of 29 after that without operating it subsequently, she chose to put allegations of misappropriation by accused on 04.06.2011 without even cross checking the same by operating it and infact unilaterally filed the complaint with the bank to seal the same. It has been argued that the aforesaid allegations of misappropriation are not proved against the accused persons since it is the complainant who has already admitted during her crossexamination that in her letter mark A and mark B, she had nowhere stated regarding handing over her articles to the accused persons and also admitted that her disagreement with her husband started on 06.06.2011 upon which accused had shifted on the ground floor to stay with his mother. It is also argued that the allegations of causing injury to the complainant by assaulting her are also not substantiated as the complainant already admitted that she had filed a separate FIR No.264/2011, PS H.N. Din against the accused for the alleged incident dated 02.03.2011 in which the accused had been acquitted and more so, the MLC mark X1 itself states "no external injury seen". It is also argued that the complainant has failed to place on record any medical document pertaining to any injury received by her from the date of marriage till filing of the present complaint and therefore, accused Anil Bahadur Mathur is liable to be acquitted. It has been argued on behalf of accused Sushila Mathur that the complainant has failed to even alleged that she was ever given beatings or assaulted by accused Sushila Mathur since the day of the marriage of complainant till filing of the present complaint. He has argued that the allegations pertaining to the offence u/s 406 IPC are also not proved against the accused Sushil Mathur since the complainant has herself stated that her FIR No.362/2011; PS H.N. Din; State Vs. Anil Bahadur Mathur & Anr. 24 of 29 jewellery articles were kept in the locker which was in the joint name of the complainant and accused Anil Bahadur Mathur. It is also argued that there are several contradictions in the testimony of the witness since the complainant has stated during her crossexamination that she had handed over the bills of articles to the police during investigation that is when PW7 IO Insp. Kamini Gupta has stated that no such bills were ever handed over to her by the complainant. Further, IO never sought any search warrants to recover any articles of the complainant from the house of the accused and also admitted that during investigation, no incriminating evidence was found against accused Sushila Mathur and therefore, accused is liable to be acquitted.