498A/406 Acquittal – Only on the basis of Multiple Contradictions in FIR/Statements

Delhi District Court
State  vs . Mohd. Yameen on 27 May, 2016

IN THE COURT OF MS POOJA AGGARWAL:
METROPOLITAN

MAGISTRATE­02: (MAHILA COURTS) : SOUTH DISTRICT :
SAKET COURTS, NEW DELHI

State Vs. Mohd. Yameen
FIR No. : 107/03
U/S : 498A/406 IPC
PS : Malviya Nagar
UID NO. : 02403R0046782006

DETAILS OF THE CASE

a) Serial number of the case : 221/2 (30.07.2014)
b) Date of commission of offence : Since 02.04.2001 till 2003
c) Date of institution of the case : 31.01.2006
d) Name of the complainant : Smt. Saira W/o Sh. Waseem Raja
e) Name, Parentage & Address : (1) Mohd. Yameen (discharged) of the accused s/o Late Sh. Kalwa.
(2) Smt. Wakila, (discharged) W/o Mohd. Yamin.
(3) Waseem Raja
S/o Sh. Mohd. Yameen,
All R/o H.No.F­83,Chhatarpur Village, Muslim Colony, New Delhi

f) Offence complained of : 498A/406 IPC
g) Plea of accused : Pleaded not guilty.
h) Arguments heard on : 27.05.2016
i) Date of judgment : 27.05.2016
j) Final Order : Acquittal

FIR No. 107/03

BRIEF STATEMENT OF REASONS FOR THE DECISION

1.The complainant Saira filed a complaint with the CAW Cell on 13.1.2013 against Mohd. Yameen (father in law), Wakila (mother in law) and Waseem (husband) alleging that since her marriage to Waseem, all the three accused used to fight with her and earlier also she had complained but twice the matter was compromised and that she came to know that 5­6 days ago the accused Waseem had taken the jewellery of her marriage without telling her and denied any knowledge about the same when asked, beat her upon which she called her mother who came and was told by her parents in law that they want her to divorce their son and asked her mother to take the complainant back while their son and his two children would remain with them which the complainant refused upon which her husband, mother in law and father in law hit her in the presence of her mother after which she returned to her parental house and both her children were snatched from her and that if she forcefully went to reside at her matrimonial home she would not be given water, access to the toilet or food and that her husband asks her to get a taxi from her father if she wanted to live with him from which he would earn and maintain her. She has also stated that earlier also he has taken Rs.10000/­ from his parents but has not returned the same.

2. After registration of FIR upon the said complaint on 07.02.2003, the investigation was carried out and upon completion of the same, charge sheet was filed in the court on 31.01.2006. All 3 accused were duly summoned and were supplied with the complete set of challan and documents in compliance of Section 207 of the Code of Criminal Procedure, 1973.

3. Vide order dated 08.04.2013, accused Mohd. Yamin and Wakila were discharged and on 1.7.2015 charge was framed against the accused Waseem Raja under section 498A/406 IPC to which he pleaded not guilty and claimed trial.

4. To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined six witnesses.

5. PW1 Smt Shayara ie the complainant herein has testified during her examination in chief that in her marriage to the accused Waseem on 02.04.2000 her father had gifted a scooter which the accused did not like and used to raise a demand for bike which demand was raised on the birth of their first son ie on 09.02.2001 but her parents refused to meet the demand upon which the accused got angry and left his job as a driver of Qualis vehicle to harass her and he started saying that he would only work if her parents gave him a taxi. She has further testified that when her son turned one month old the accused Waseem left her at her parental house with their son and repeated his demand for a taxi to her father which he refused to fulfill due to which the accused Waseem did not return to take her back for two months. She has further testified that two months passed and in the meanwhile her mother fell ill and had to be operated and that the accused Waseem came with his parents and relatives to take her back but again repeated the demand for taxi which her parents refused to fulfill and accused Waseem slapped the complainant in presence of her parents, pushed her due to which her head struck against the staircase and she received injuries and her siblings made a PCR call but accused Waseem ran away in the meantime with his relatives.

6. She has further testified that thereafter she lodged a complaint Mark A at CAW Cell where a compromise was arrived at and she went back but accused Waseem continued to threaten to divorce her almost every day upon which she again lodged a complaint Mark B at CAW Cell where a compromise was arrived at and she went back. She has further testified that thereafter accused Waseem would stop her from visiting her parental house, would lock her in a room repeatedly and thereafter she lodged a complaint Ex. PW1/A and handed over list of her dowry articles Mark C. She also identified her signatures on the documents and also correctly identified the accused in the court. The witness was duly cross­examined by the accused.

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7. PW2 HC Rang Roa was the duty officer and proved registration of the present FIR Ex. PW2/A on 07.02.2003. He was not cross­examined despite opportunity.

8. PW­3 IO/SI Kusum Dangi from CAW Cell, Nanakpura proved her inquiry report Ex. PW3/1. She was also not cross­examined despite opportunity.

9. PW­4 SI Sudhir Kumar ie the Investigating Officer testified that after registration of the FIR on 07.02.2003 investigation was marked to him upon which he met the complainant and recorded her statement after which he was transferred from the PS Malviya Nagar. He was not cross­examined despite opportunity.

10. PW­5 Inspector Ashok Kumar also an Investigating Officer testified that on 15.08.2003 he received the file for further investigation, after which he found all the three accused to be on anticipatory bail, arrested accused Yameen on 11.12.2003 vide arrest memo Ex. PW5/A and released him on bail, arrested accused Waseem and Wakila on 31.03.2004 vide arrest memo Ex. PW5/B and Ex. PW5/C respectively and released them on bail and also conducted personal search of accused Mohd Yameen and Waseem vide Ex. PW5/D and Ex. PW5/E, recorded the statement of the complainant on 15.09.2004 and thereafter filed the charge­sheet. Since the accused Waseem did not cross­examine the witness despite repeated opportunities, his right to cross­examine the witness was closed.

11. PW­6 Smt. Noori, ie the mother of the complainant has testified that in the marriage of her daughter she had given sufficient dowry and stridhan and that after two months from the marriage of the complainant, the accused Waseem came to her house and demanded Rs 10,000/­ for driving license which she handed over to him. She has further testified that the parents in law of the complainant started quarreling with her and that the complainant stayed with her for sometime. She has further testified that after sometime accused Waseem came alongwith his mother to her house and took the complainant with them but they beat the complainant as she had not gone with a bike. She has further testified that the parents of accused Waseem threatened the complainant that she should bring Qualis vehicle. She has further testified that when the complainant had been dropped at her parental home after one month from the birth of her son, accused Waseem came with his parents and mercilessly beat her daughter and when she intervened her stitches were ruptured and that a compromise was arrived at before the CAW Cell whereafter she went to hospital and after recovering her health returned at her house and that the present case was got registered at CAW Cell Nanakpura. The accused did not cross­examine this witness despite opportunity.

12. Prosecution Evidence was closed on 01.04.2016 and thereafter the statement of accused was recorded under Section 313 CrPC wherein the accused maintained his innocence.

13. I have carefully considered the submissions made and evidence on record.

14. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts. It is only if the State is able to discharge its burden, that the onus shifts on to the accused. Since the accused have been charged for offences under section 498A IPC, it was for the prosecution to prove that during the subsistence of a marriage between the complainant and accused Waseem, she was subjected to cruelty or harassment by accused Waseem being the husband with cruelty being of such a nature as to be (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide 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. Further it was also for the prosecution to prove that the accused Waseem had been entrusted with the stridhan/dominion over stridhan of the complainant and that he had dishonestly misappropriated or converted the same to their own use to prove the offence under Section 405 IPC punishable under Section 406 IPC. Appreciation of evidence Demand of Bike

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15. As per the testimony of the complainant as PW1, accused Waseem used to raise a demand for bike which demand was raised on the birth of their first son ie on 09.02.2001 but as her parents refused to meet the demand the accused got angry and left his job as a driver of Qualis vehicle to harass her and he started saying that he would only work if her parents gave him a taxi. However as per the complaint Mark A to CAW Cell Nanakpura received on 19.04.2001, the complainant has merely made a vague allegation as to the motorcycle being demanded after few days of her marriage. Her complaint Mark A is totally silent as to the demand of motorcycle being made on the birth of her first son as testified by her in the court. It is also pertinent to note that the complaint Mark A is also silent as to any allegations of her parents refusing to meet the demand or as to the accused Waseem getting angry or quitting his job in order to harass her or as to him saying to the complainant that he would only work if her parents gave him a taxi. Thus, the testimony of the complainant during her examination in chief is an improvement over her earlier complaint relied upon by her during her evidence and hence does not  inspire confidence.

16. It is duly noted that even the mother of the complainant in her testimony as PW6 has not supported the case of the prosecution in this regard as she has merely deposed that her daughter was beaten over the demand of the bike as she had not gone with the bike without deposing as to when she was so beaten which assumes significance as the testimony of the complainant as PW1 is totally silent as to her being beaten over non­fulfillment of demand of bike. Hence not only has the prosecution failed to prove the demand of a motorcycle being made by the accused but has also failed to prove any harassment to the complainant upon non­fulfillment of the same. Being left at parental home

17. The complainant as PW1 has further testified that when her son turned one month old the accused Waseem left her at her parental house with their son and repeated his demand for a taxi to her father which he refused to fulfill due to which the accused Waseem did not return to take her back for two months. However, the entire complaint Mark A is silent as to accused Waseem demanding taxi when he left her at her parental house. Thus, once again the complainant improved her testimony in the court over the version put forth in her previous complaint.

Physical violence

18. The complainant as PW1 has further testified that after two months passed and in the meanwhile her mother fell ill and had to be operated, the accused Waseem came with his parents and relatives to take her back but again repeated the demand for taxi which her parents refused to fulfill and accused Waseem slapped the complainant in presence of her parents, pushed her due to which her head struck against the staircase and she received injuries and her siblings made a PCR call but accused Waseem ran away in the meantime with his relatives.

19. However, as per the complaint Mark A the complainant has stated that after 15 days of her delivery she was unwell and was sent to her parental home and that her in­laws had come to take her but her mother had asked them to let the complainant live there for 15 more days as the mother had just had an operation. The entire complaint is silent as to any demand of taxi being made by the accused or his family members. The complaint is also silent as to accused Waseem slapping her in presence of her parents, pushing her due to which her head struck against the staircase and she received injuries or as to her siblings made a PCR call or as accused Waseem running away in the meantime with his relatives. Rather the complainant has stated in Mark A that when her in laws had come to take her back, her own father under the influence of liquor started beating her mother but her in­laws did not intervene and that when she tried to save her mother, her in­laws beat her and left saying that they would divorce her. Thus, even the testimony of the complainant in respect of the complainant being hit by the accused due to refusal to fulfill the demand of the bike stands falsified as the omission to state these facts in the initial complaint indicates that the same is an improvement and is afterthought.

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Threat of divorce

20. The Complainant as PW1 has further testified that after she lodged a complaint Mark A at CAW Cell where a compromise was arrived at and she went back, accused Waseem continued to threaten to divorce her almost every day upon which she again lodged a complaint Mark B at CAW Cell where a compromise was arrived at and she went back and that thereafter accused Waseem would stop her from visiting her parental house, would lock her in a room repeatedly. However, the complaint Mark B as relied upon by the complainant is silent as to threats of divorce being given by the accused Waseem and once again the testimony of the PW1 appears to be an afterthought and an improvement and hence does not inspire confidence. Demand of Rs 10,000/­.

21. The mother of the complainant as PW6 has testified that after two months from the marriage of the complainant, the accused Waseem came to her house and demanded Rs 10,000/­ for driving licence which she handed over to him. It is however duly noted that the entire testimony of PW1 is silent as to any such demand by the accused from her parents. Be that as it may, it is also noted while the complainant has alleged that the accused and his parents had asked for Rs10000/­, as per her allegations the money was asked to be brought by all the three accused and not demanded by the accused Waseem himself as also the same were brought through the complainant and not by the accsued Waseem directly. Hence once again there is a variation in the version put forth by the prosecution.

Criminal Misappropriation

22. The entire testimony of the PW1 is silent as to her having entrusted any property in the form of her jewellery or stridhan to the accused Waseem. In the absence thereof the prosecution has also failed to prove the essential ingredient to constitute the offence under Section 405 IPC punishable under Section 406 IPC.

23. The testimony of the complainant in the court also does not inspire confidence as while in her complaint, Ex. Pw1/A she had stated that 5­6 days ago the accused Waseem had taken the jewellery of her marriage without telling her and denied any knowledge about the same when asked, beat her upon which she called her mother who came and was told by her parents in law that they want her to divorce their son and asked her mother to take the complainant back while their son and his two children would remain with them which the complainant refused upon which her husband, mother in law and father in law hit her in the presence of her mother after which she returned to her parental house and both her children were snatched from her, her testimony in the court does not mention anything about the same, rather as per her testimony in the court, her mother came to her matrimonial home not upon being called by the complainant but rather she came as the complainant was not contacting her parents. Further the testimony of the complainant in the court is also silent as to her being hit in the presence of  her mother or her children being forcibly taken away. She has also not testified on oath as to anything in respect of the jewelley being taken by the accused Waseem.

24. Thus, from the entire evidence on record, various contradictions, improvements and variations in the testimony of the prosecution witnesses have come forth and hence the prosecution has not been able to prove its case beyond a reasonable doubt and thus the accused is entitled to be given the benefit of doubt. Accordingly accused Waseem (husband) is acquitted for offences under section 498A/406 IPC in the FIR no. 107/03 PS Malviya Nagar. The accused is directed to furnish bail bonds in compliance of Section 437A Cr.PC for the sum of Rs 10,000/­ which shall remain in force for six months from today whereafter the earlier bail bonds of the accused shall bee cancelled and their sureties be discharged. Endorsement, if any, be cancelled and documents, if any, be returned upon proper application and due verification.

25. File be consigned to the record room after necessary compliance.
Pronounced in open court on 27.05.2016 (Pooja Aggarwal)
Metropolitan Magistrate ­02 (Mahila Court),
South, Saket Courts/New Delhi.

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