Acquitted in Section 498A/406 IPC r/w Section 34 IPC. No proof of dowry article

IN THE COURT OF MS. PRIYA MAHENDRA, METROPOLITAN MAGISTRATE
MAHILA COURT-02 (SOUTH WEST), DWARKA COURTS, NEW DELHI

FIR NO: 851/06
PS: DABRI
U/s: 498A/406/34 IPC
STATE VS. GAJENDER SINGH

JUDGMENT
Date of institution : 06.02.2008

Name of the complainant : Smt. Babita
Vs.
Name & address of the accused : 1. Accused Gajender Singh S/o Late Anoop Singh

2. Accused Aman S/o Late Anoop Singh

3. Accused Dhanno Devi W/o Late Anoop Singh All R/o House no. 719, Pana Udhan Narela Delhi-40.

4. Accused Nabita W/o Sh. Satish Kumar R/o 297A, Village Alipur, Delhi-36.

Offence Complained of : U/s 498A/406/34 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 14.08.2013
Date of announcing of order : 17.08.2013

BRIEF FACTS:-
1. The case of the prosecution is that the accused Gajender Singh (husband), Aman (brother-in-law), Dhanno Devi (mother-in-law) and Nabita (nanad) subjected the complainant Smt. Babita to cruelty during subsistence of her marriage with accused Gajender Singh solemnized on 09.12.2001 and committed breach of trust in respect of the stridhan articles of the complainant and thereby committed an offence under Section 498A/406 IPC r/w Section 34 IPC.

2. Story of prosecution:-

The criminal law was set into motion by the complainant by filing a written complaint before CAW Cell Nanakpura on 26.06.2006. In the complaint, she has stated that her marriage was solemnized with accused Gajender Singh on 09.12.2001 as per Hindu Rites and customs. Her father gave istridhan/dowry as per his capacity. All accused persons started beating her after some days of her marriage and demanded cash from her. After two years of her marriage, all accused persons raised the demand of Rs. 50,000/- for opening a shop for her husband Gajender Singh and she fulfilled the said demand by bringing money from her father. But no shop was opened and all the accused persons frittered away the said amount. The complainant gave birth to male child. Consequently the family expenditure increased and that led to increased demands by all accused persons. All accused persons started beating her to bring the money for expenses from her father. On retirement of her father from NDMC, he gave Rs. 75,000/- to accused persons, accused persons continued to beat her and finally she was made to leave the matrimonial house. It is further stated that the articles mentioned in seizure memo Ex. PW1/C were returned to her but jewellery items were not returned to her and are still in possession of her mother in law.

3. The charge sheet was filed in the court under Section 498A/406/34 IPC. The cognizance was taken for offence U/s 498A/406/34 IPC and accused persons were summoned. The copies were supplied to the accused persons U/s 207 Cr.P.C. Vide order dated 02.07.20008, charge was framed against the all the accused persons U/s 498A/406/34 IPC to which they pleaded not guilty and claimed trial.

4. In order to prove its case prosecution has examined 8 witnesses in all. There are 4 public witnesses and 4 official witnesses. Both Ct. Naresh Kumar as well as Sh. Govind Singh were inadvertently examined as PW-4. So, the evidence of Sh. Govinde Singh is read as PW-5.

5. Brief testimony of witnesses:-

OFFICIAL WITNESSES:-

PW-2, SI Ram Karan, is the Duty Officer and proved registration of FIR Ex. PW2/A. He made endorsement on original complaint/tehrir Ex. PW2/B. The accused persons opted not to cross-examine witness.

PW-4, Ct. Naresh Kumar, has stated that on 23.09.2006, he was posted at PS Dabri and he had joined the investigation with IO WASI Manju. IO had called the complainant Babita to the PS for identification of Istridhan articles. Complainant identified the same and IO Seized the same vide seizure memo Ex. PW1/C. His statement was recorded by the IO.

In his cross-examination, he stated that he has no knowledge whether complainant handed over any bill/receipt with respect to dowry articles to the IO.

PW-7, SI Baljit Singh, brought the original record of SPU W&C, Nanakpura pertaining to present case. The copy of complete proceedings held at CAW Cell Nanakpura is Ex. PW7/A (Colly.) and the copy of final report of the said proceedings is Ex. PW7/B.

In his cross-examination, he admitted that the said proceedings were not conducted in his presence. He admitted that he has no personal knowledge about the present case. No written authority was given to him regarding the production of the documents before the court and he was verbally ordered and authorized to produce the same.

PW-8, W/ASI Manju is the IO. She has stated that on 03.09.2006, she was posted as ASI at PS Dabri and further investigation of the present case was marked to her and she received copy of FIR Ex. PW2/A, complaint Ex. PW1/B, reference letter for filing of FIR from ACP CAW Cell Ex. PW8/A and list of dowry articles Ex. PW1/A alongwith other documents. During investigation, accused Gajender was called to produce istridhan articles of the complainant. On 23.09.2006, cousin brother namely Govind brought certain istridhan articles of the complainant in police station. Those articles were seized vide memo Ex. PW1/C and same were released to complainant on superdarinama Ex. PW1/D by court’s order. During investigation, accused Gajender produced two bank drafts of Rs. 25000/- each in compliance of court order at the time of bail. Those bank drafts were seized vide seizure memo Ex. PW8/B. She recorded the statement of witnesses. Since anticipatory bail was already been granted to the accused Gajender Singh, Aman, Dhanno Dei and Babita, therefore, she arrested them formally vide arrest memo Ex. PW8/C, Ex. PW8/D, Ex. PW8/E, Ex. PW8/F. Their personal search was conducted vide memo Ex. PW8/G, Ex. PW8/H, Ex. PW8/I, Ex. PW8/J. After completion of investigation, she prepared challan. She correctly identified all the accused persons.

In her cross-examination, she has stated that during investigation, complainant did not give her any list of dowry articles. Neither she told any name of jeweller. She only asked accused to produce her istridhan articles as per her dowry list. She did not visit house of accused Ganjender. Neither she sent any other police officials to the house of accused Gajender. Complainant did not produce her medical record or any police complaint to her. Although complainant has stated regarding the harassment committed upon her by accused persons for want of more dowry, however, she did not state any specific date of cruelty committed upon her by the accused persons. She only stated that she was harassed on regular basis. She recorded the statement of Hari Singh on 13.09.2006 in police station. Hari Singh did not give her any account number or bank statement. She voluntarily stated that Hari Singh stated to her that he had given Rs. 75,000/- to accused persons on his retirement. She did not record the statement of neighbours of accused Gajedner Singh. Neither she enquired about the matter from the neighbourhood. She denied the suggestion that complainant Babita did not make any statement before her pertaining to dowry demand and harassment by accused persons.

She also stated in her cross-examination that she has no knowledge whether the sister of accused namely Babita was married prior to marriage of complainant but at the time of filing of present case, she was married. She cannot say about the matrimonial home of sister (Babita) of accused. She voluntarily stated that complainant has stated that above said Babita used to visit matrimonial home of the complainant frequently. She denied the suggestion that present case is based on false complaint of complainant or that she is deposing falsely.

PUBLIC WITNESSES:-

PW-1, Babita is the complainant. She reiterated and reaffirmed on oath the avernments made by her in her complaint.

In her cross-examination, she admitted that her sister in law accused Babita had married prior to her marriage with accused Gajender Singh. She stated that she cannot say whether the house of her sister in law Babita is at the distance of 15 Kms from house of her inlaws. She admitted that her sister in law Babita married at Alipur. She denied the suggestion that her sister in law Babita was not regularly visiting at the house of her inlaws. She voluntarily stated that her sister in law accused Babita used to come to her house very often. She denied the suggestion that her devar was residing separately.

She was not given any medical treatment after she was beaten by her inlaws. Before leaving the house of her inlaws, she did not go to the police station. She had not filed any complaint in local police before the complaint made to CAW Cell. She added that she did not report the matter as matter was pertaining to her family life. She also stated that she has no telephone at her in law’s house. There was no telephone even at her parental house. She voluntarily stated that whenever any call is to be made, it used to be made from neighbour’s house. She never called her parents on phone while residing in her matrimonial house. She denied the suggestion that her father or her brother used to come to her inlaw’s house very often. She stated that they used to come only on festivals/occasions. No relatives of hers came to her matrimonial house prior to her being thrown out from her matrimonial house. She stated that she does not remember the exact date when the accused persons demanded money from her. The complainant brought two bills of jewellery articles during her cross-examination Ex. PW1/D1 and Ex. PW1/D2. She admitted that no bill number is mentioned in Ex. PW1/D1 and Ex. PW1/D2. She denied the suggestion that the said bills are fake. She denied the suggestion that no dowry demand was ever made from her by accused persons and for this reason, she does not remember any date of demand. She voluntarily stated that they had demanded money after the retirement of her father. She does not remember the exact date of retirement of her father.

She denied the suggestion that her entire dowry articles were returned to her by the accused persons. She voluntarily stated that her jewellery, one scooter and few house hold articles were not returned to her. She admitted that she received an amount of Rs. 50,000/- from the accused persons. She denied that the said amount of RS. 50,000/- was given to her in lieu of her jewellery, in accordance of order of court.

PW-3, Sh. Hari Singh is the father of the complainant. He deposed that he is a retired person from NDMC. He was a safai karamchari. He solemnized the marriage of her daughter Babita with accused Gajender Singh. The marriage was done as per his capacity and status. Thereafter, his daughter was being harassed by her in laws. His daughter used to do all the household work but despite that she was subjected to harassment by her in laws. She was not even given food to eat. He used to give money to his daughter secretly in order to meet her daily expenses. His daughter came to his home and told him that her in laws were demanding money in order to open the shop. He had given Rs. 75,000/- to his daughter and after the retirement he had given Rs. 60,000/- in order to give it to her in laws. Thereafter, his daughter was thrown out by her inlaws from her matrimonial house after 10-11 years of marriage. His daughter was sent to her sister’s place at Kanjawala from there they brought her back to his home. The witness correctly identified all the accused persons.

In his cross-examination, he admitted that nand of his daughter was already married prior to the marriage of his daughter. He does not know where she was married. He had met her nand on 2-3 occasions at his residence but he does not remember the date of said meetings. He also stated that he retired in 2004 and received Rs. 5 lacs from Government. He gave the money to his daughter in cash. He does not remember the exact date when he gave the money as he is illiterate. He went to his daughter’s in laws house 2-3 times but his son used to go there. He does not remember the exact date when he went to the matrimonial house of his daughter. He does not have any telephone in his house but voluntarily added that his sons are having telephone. He denied the suggestion that marriage of her daughter was simple marriage and no dowry articles were given. He does not remember the dowry articles which were given in dowry in the marriage of her daughter. He denied the suggestion that her daughter was never harassed by her inlaws.

PW-5, Sh. Govind Singh, has stated that on 23.09.2006, he was working in DDA Department Delhi and he brought stridhan articles of wife of her brother Sh. Anup Singh namely Babita in PS Dabri. The complainant Babita present in the PS Dabri identified the same and IO seized those articles vide seizure memo Ex. PW1/C. IO recorded his statement.

In his cross-examination, he admitted that no dispute/demand was raised in his presence by the accused persons.

PW-6, Sh. Ramesh Kumar has stated that he is the brother in law (Sala) of Hari Singh who resides in his neighbourhood at B-10, Gali no. 11,12, East Sagarpur, Delhi. He stated that complainant Babita is daughter of Hari Singh whose marriage was solemnized with accused Gajender. He correctly identified the accused persons. His jija Hari Singh told him that accused Gajender, mother in law Dhanno, brother in law and sister in law of complainant used to harass and torture his niece Babita for bringing more dowry. Hari Singh also told her that after his retirement he had given Rs. 50,000/- or more to accused Gajender and his mother Dhanno.

In his cross-examination, he stated that he does not remember the date on which Hari Singh told him above said facts. He also does not remember the date of retirement of Hari Singh. He denied the suggestion that he is deposing falsely at the instance of his jija Hari Singh. Police had recorded his statement in the presence of Hari Singh but the date he does not remember. He does not know as to how much amount was received to Hari Singh by his department at his retirement.

6. All the accused persons U/s 313 Cr.P.C asserted their innocence and stated that they have been falsely implicated. In his examination U/s 313 Cr.P.C the accused Gajender has also stated that the complainant has falsely implicated him in the present case as she always wanted him to live as Gharjamai. Conceding her demand, he even resided at the house of her parents where he was harassed and insulted everyday. Therefore, he refused to stay any longer at her parent’s house. On this, she filed false case against him and his family members. The accused persons opted not to lead DE.

7. It is stated by Ld. APP for State that prosecution has succeeded in bringing home the guilt of accused person beyond reasonable doubt U/s 498A/406/34 IPC. On the other hand, Ld. Counsel for accused persons argued that the accused persons are innocent. It is argued by him that there are material contradictions in the evidence of prime witnesses of prosecution. The complaint was lodged after five years of the marriage and allegations against accused persons are very general in nature. So, he has contended that the accused persons are entitled to benefit of doubt.

8. Arguments heard and submissions carefully considered. The entire record is meticulously perused.

Brief reasons for decision:

9. The complainant in the present case got married with accused Gajender Singh in the year 2001. The complainant has alleged that after few days of her marriage, the accused persons started raising dowry demands and beaten her on her inability to fulfill those demands. First complaint was made only in the year 2006 i.e. five years after the marriage. No cogent reason has been given by the complainant for not filing the complaint earlier to any authority complaining about the harassment. The complainant even filed the complaint before CAW Cell after one year of leaving her matrimonial house. Again no plausible reason is given by the complainant for not approaching the authorities with any kind of complaint promptly after leaving her matrimonial house. The delay in lodging the complainant is not well explained by the prosecution.

10. The prosecution has also not filed any medical document of the complainant to support her evidence that she was beaten up by the accused persons to coerce her to fulfill dowry demands of accused persons.

11. The complainant has made general, vague and indistinct allegations against accused persons for demanding dowry and harassing her for non fulfillment of the said demands. She has not given any time, date, year or occasion of the dowry demands raised by the accused persons. She has simply stated that they demanded money after the retirement of her father. During her cross- examination, she failed to give even the date of retirement of her father. But her father stated in his cross-examination that he retired in the year 2004. Reading the deposition of complainant PW-1 and PW-3 in-conjunction indicate that the dowry demands was raised after 2004 i.e. year of retirement of the father of complainant. This contradicts own evidence of the complainant that she was harassed for not fulfilling dowry demands of accused persons just after the marriage solemnized in the year 2001.

12. There are also vital and major contradictions in the deposition of PW-1 and PW-3 regarding the amount given to the accused persons pursuant to the said demands. PW-1 stated that after 2 years of her marriage she brought Rs. 50,000/- from her father and gave it to the accused persons for opening the shop of her husband. But the father of the complainant PW-3 stated that he gave an amount of RS. 75,000/- to the complainant. Thus, complainant stated that Rs. 50,000/- was given but her father stated that an amount of Rs. 75000/- was given. The complainant also stated that on retirement of his father from NDMC, an amount of Rs. 75000/- was given by her father but her father stated that he gave an amount of Rs. 60,000/- and not Rs. 75000/- after his retirement to the accused persons. The testimony of PW-6 also does not prove that any money was handed over to the accused persons pursuant to the demands made by them as no money was exchanged in his presence. The said information of giving money was only disclosed to him by PW-3. He is, moreover, an interested witness being brother-in- law of father of complainant. Apart from that, PW-6 failed to give any date on which PW-3 told him about giving money to the accused persons and also failed to state that how much amount was received by PW-3 on his retirement from his department. He is merely a hearsay witness and his testimony is of no use to the prosecution.

13. According to the deposition of PW-1 as well as PW-3, sister in law of the complainant got married much prior to the marriage of complainant and was living separately on her own matrimonial house. The allegations against her for raising dowry demands and harassing the complainant, are also very general and vague without any specific date, time or year.

In view of the aforesaid reasons, the prosecution failed to establish the guilt of accused persons beyond reasonable doubt U/s 498A/34 IPC and accused persons are acquitted for an offence punishable U/s 498A/34 IPC.

14. Coming to Section 406 IPC,Section 406 IPC deals with criminal breach of trust. Section 406 IPC reads as under:-

“whoever commits criminal breach of trust shall be punished with imprisonment of either description for a terms which may extend to three years, or with fine, or with both”
Section 405 IPC defines criminal breach of trust. The relevant portion of the definition reads as under:-

“405 Criminal breach of trust – 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 prescriting the mode in which such trust is to be charged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits “criminal breach of trust”.

As regards section 406 IPC, it be observed that in order to establish the commission of offence u/s 406 IPC the necessary ingredient of section 405 IPC are to be proved. Hence, it is necessary for the prosecution to prove the entrustment having been made in favour of accused, his dominion/control over the articles entrusted and subsequent misappropriation. The misappropriation tantamount to conversion of articles by the accused to their own use and consumption.

The bare perusal of complaint Ex. PW1/B and evidence of complainant PW-1, there is no specific statement qua entrustment of any articles in favour of any accused. Moreover, the complainant nowhere states as to whom those articles were entrusted and at what time and under what circumstances. In her testimony in the court, the complainant only made a sweeping statement that all her jewellery articles have not been returned and they are still in possession of accused Dhanno Devi. From the aforesaid piece of evidence even the basic requirement of entrustment having been made in favour of any of the accused is not established. The complainant has also not stated that on what date, time, year or occasion she demanded her jewellery articles from whom and at what place.

The complainant only produced two bills of jewellery articles Ex. PW- D1 and Ex. PW- D2 to support her oral evidence that the jewellery was given to the accused persons at the time of solemnization of marriage of complainant with accused Gajender Singh but the concerned jeweller has not been examined by the prosecution to prove those bills. Moreover, the complainant has not given any cogent reason for not handing over the said bills to the IO during the course of investigation. The IO in her cross-examination also stated that during investigation, the complainant has not told her any name of jeweller from whom the jewellery articles were purchased nor she gave her any list of articles. The list of dowry articles prepared at the time of marriage signed by both the parties as per the mandate of judgment of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152 has also not been produced on record by the prosecution without any plausible explanation. In these circumstances, the guilt of the accused persons U/s 406 IPC is not proved beyond reasonable doubt and accused persons are acquitted for an offence punishable U/s 406 IPC.

ANNOUNCED IN THE OPEN COURT
(PRIYA MAHINDRA)
METROPOLITAN MAGISTRATE
MAHILA COURT-2/DWARKA
NEW DELHI
ON 17th AUGUST 2013

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