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498A Acquittal – Prosecution has failed to prove the allegations

IN THE COURT OF MS. RICHA PARIHAR
M.M. EAST, KARKARDOOMA COURTS DELHI

STATE

VS.

Babloo etc.

FIR NO. : 212/2000
P.S. : MANDAWALI
U.S. : 498-A/406/34 IPC

JUDGMENT

a. Sl. No. of the case : 02402R0138402003 b. Date of its institution : 12/04/2010 c. Name of the complainant : Smt. Pinki d. Date of commission of : During the period from 1998 to 2000 offence e. Name of the accused : 1) Babloo S/o Sunheri Lal r/o 18/229, Kalyanpuri, Delhi.

2)Sunheri Lal s/o Sh. Munsi Lal r/o 18/229, Kalyanpuri, Delhi.

3) Bimla Devi w/o Sh. Sunheri Lal r/o 18/229, Kalyanpuri, Delhi.

4) Ratnesh s/o Sh. Sunheri Lal r/o 18/229, Kalyanpuri, Delhi.

5) Smt. Reena w/o Ratnesh r/o 18/229, Kalyanpuri, Delhi.

6) Naresh Kumar s/o Sh. Anokhe Lal r/o 18/384, Trilokpuri, Delhi

7) Smt. Niresh w/o Sh. Naresh r/o 18/384, Trilokpuri, Delhi f. Offence complained of :U/s 498-A/406/34 IPC g. Plea of accused :Pleaded not guilty h. Case reserved for orders : 05/08/2014 i. Final order : Acquitted j Date of such order : 11/08/2014

BRIEF STATEMENT OF FACTS FOR THE DECISION:-

1. The FIR of the present case has been registered under sections 498-A/406/34 IPC against accused Babloo, Sunehri Lal, Ratnesh,Reena, Bimla Devi,Naresh Kumar and Neeresh Kumar on the basis of complaint of the complainant Smt. Pinki. The FIR No. 212/00 PS Mandavali.

2. Case of the prosecution is that accused persons during the period between 1998 ie. after the marriage of complainant Pinki with accused Babloo till filing of the complaint dated 10.02.2000 had harassed her mentally and physically for bringing insufficient dowry and coerced her to meet their unlawful demands in furtherance of their common intention. Further accused persons were entrusted with the stridhan articles of the complainant at the time of her marriage and they retained the same in their possession and had not returned the same on her demand. After completion of investigation, the prosecution has filed the challan against all the accused persons in the court.

2. The charge has been framed against all the accused persons namely Babloo, Sunehri Lal, Ratnesh, Reena, Bimla Devi, Naresh Kumar and Neeresh Kumar vide order dated 26.04.2007 to which theypleaded not guilty and claimed trial.

3. In support of the case the prosecution has examined five witnesses.

PW-1 is Smt. Santosh who is mother of complainant. PW2 Smt. Pinki is the complainant, PW-3 is constable Shivaji who had conducted the personal search of accused persons vide personal search memo Ex. PW2/C, EX.PW2/E and Ex. PW2/D and Ex. PW2/F, he has also signed the disclosure statements of accused persons Ex. PW2/H, Ex. PW2/I and Ex. PW2/J.

PW4 is inspector Prem Singh who is IO in present case and has done further CAW cell inquiry.Ex.PW4/A is memo adam baramadgi.

PW5 is W/HC Asha who had done personal search of accused Bimla vide memo Ex. PW2/D.

4. All the incriminating evidence have been put to the accused persons under Section 313 Cr.P.C. which has been denied by them. They have stated that they are innocent and have been falsely implicated in the present case. Accused persons have not lead any defence evidence.

5. I have heard the arguments as advanced by Ld. APP for the State and Ld. Counsel for the accused persons and perused the material on record.

Ld. APP has submitted that the case of the prosecution has been well established and hence accused persons should be convicted of the offence charged. Per contra it has been argued by the Ld. Counsel for the accused that the case of the prosecution has not been established against accused beyond reasonable doubt.

6. The charge U/s. 498A/406 IPC has been framed in the present case. The object of Section 498A IPC is to prevent torture to a woman by husband or by relatives of her husband. The following are the ingredients of this section:-

(i) The women must be married.

(ii) She must be subjected to cruelty or harassment and

(iii) Such cruelty or harassment must have been shown either by husband of the women or by the relative of her husband.

Coming to first ingredient there is no dispute about the marriage of the complainant with the accused Babloo. Hence, the first ingredient stands proved.

Coming to second and third ingredients, being interlinked, they are taken up together. The point to be proved here is cruelty or harassment meted out by the complainant at the hands of her husband or his any of the relatives. The definition of cruelty contained in explanation consists of two parts. Clause (a) relates to willful conduct which is of such a nature so as to drive the women to commit suicide. The second part contained in clause (b) relates to harassment of woman with a view to coercing her to meet any unlawful demand of any property etc. The sole constituent of offence u/s. 498A IPC is cruelty which means “willful conduct” which contemplates obstinate and deliberate behaviour on part of offender for it to amount to cruelty and reflect the intentions of the legislature that mens rea is an essential ingredient of the offence. Not only physical but also mental torture or abnormal behaviour may amount to cruelty and harassment within the meaning of Section 498A.

7. In the light of aforesaid, I come to the factual matrix of the case which has been accounted by the witnesses. In order to prove the allegations of cruelty, prosecution has examined complainant and hermother as independent witnesses.

8. PW-2 Smt. Pinki is the complainant and she has deposed that she was married with accused Babloo on 01.02.1998 according to the Hindu rites and ceremonies in which her parents had given enough dowry articles more than their capacity. That after 3-4 days of marriage all the accused persons started harassing her by saying that the parents of complainant had not given Fridge, Colour T.V. and scooter in marriage and that nothing was given by her parents. That father of complainant had given Rs. 20,000/- to Babloo on 12.11.1999. That even after this demands of accused persons did not stop and and they used to beat the complainant for more dowry. That on 25.12.1999 parents of complainant took her with them when the accused persons had turned the complainant out of the matrimonial house after removing her nath and ear ring and in wearing clothes only. That on 26.12.1999 a boy came to the parental house of the complainant to inform that Babloo is remarrying in a Mandir regarding which complainant had also made a complaint with the Mahila cell which is ex. PW2/A along with list of Dowry articles which is Ex. PW2/B. That on 29.11.2000 complainant accompanied IO to the Juggi Block No. 18 Kalaynpuri where accused Bablu, Bimla , Ratnesh were arrested. That no istridhan article was recovered from the house. That thereafter accused Sunehri Lal was arrested from the matrimonial house and some dowry articles were recovered vide seizure memo EX. PW2/G however all the articles were not recovered.

Ex. PW2/l,Ex.PW2/M,Ex.PW2/N and Ex. PW2/O are some of the original receipts of jwellery and almirah relied upon by the complainant. Ex.PW2/P is her complaint to DCP,Ex. PW2/Q and Ex. PW2/R were her statements recorded at CAW cell.

Complainant Pinki was cross examined by Ld. Counsel for accused persons wherein she admitted that she did not lodge any complaint with the police after 3-4 days of marriage when the harassment started. She stated that her father had given the sum of Rs. 20,000/ to Babloo at her father’s residence but no receipt is there. She stated that accused Babloo had locked her up in the room but does not remember the date nor does any complaint regarding this was made in the P.S. Complainant had denied that there was any compromise with the accused regarding present FIR.

9. PW1. Smt. Santosh is mother of complainant who has deposed that his eldest daughter Pinki was married with accused Babloo in accordance with Hindu rites and ceremonies and had given more than enough dowry. That for 4-5 months accused kept the complainant well but thereafter they started inflicting cruelty upon her and made unlawful dowry demands. That on 25.12.1998 complainant came back to her home. PW1 Santosh submits that she had given Rs.20,000/ to Babloo on 20.12.1998 so that Babloo may engage himself in some gainful employment. She further states that complainant had overheard that the accused persons are planning to kill her by drowning her in village river.

Ld. APP for state had cross examined the witness Santosh as she was not disclosing entire facts and she admitted that complainant returned to her on 25.12.1999 and that istridhan articles have not been returned by the accused persons despite demand.

PW1 has been cross examined by Ld. Counsel for accused wherein she stated that she had spent Rs. 2,50,000/- in the marriage of her daughter Pinki. She stated that she does not remember if any list of dowry articles was prepared at the time of marriage. She has denied the suggestion that the offence under present FIR was settled by complainant with the accused persons.

10. The present case has been tried against the accused persons under section 498-A/406/34 IPC for committing cruelties upon the complainant for the fulfillment of dowry demand.

Neither complainant nor her mother, PW2, have specifically stated in their examination in chief the amount spent by parents of complainant in marriage nor they have specifically mentioned what were the dowry articles given at the time of marriage.

Ex.PW2/B is the list of articles relied upon by complainant as list of dowry articles but same fact is not confirmed or corroborated by her mother who deposed in cross examination that she does not know if any list of Dowry Articles was prepared.

Complainant further deposed that she was subjected to harassment by her husband and in laws just after 3-4 days and that they demanded dowry from her and stated in her cross examination that she did not lodge any complaint with police regarding same. On the contrary her mother PW1 has deposed that for about 4-5 months after marriage the accused persons kept the complainant well but thereafter started to harass her for dowry.

Further complainant had deposed that her father had given Rs. 20,000/ to accused Babloo whereas PW1 mother of complainant had deposed that she herself had given said amount to Babloo. Thus there is discrepancy in the statements made by complainant and her mother.

In Ex. PW2/P complaint dated 10.02.2000 complainant has raised many allegations against accused including attempt by the accused persons to kill complainant by pouring kerosene which she did not disclose in her FIR. Further her mother PW2 deposed that accused persons conspired to kill complainant by drowning her in village river however said fact has not been alleged by complainant in her FIR or examination in chief.

Complainant had alleged that the accused persons used to beat her but has not placed on record any medical to support the said fact. Further she had deposed that on 25.12.1999 while she was turned out of the matrimonial home some neighbors had gathered there but there is no public witness to corroborate the same.

Further Complainant and her mother had denied the suggestion that there was any compromise with accused regarding offence under present FIR. However at the time of final arguments Ld. Counsel for accused persons has relied upon and filed certified copy of the judgment of Ld. ADJ dated 5.11.2004 in HMA No. 670/2004 vide which decree of divorce by mutual consent between complainant Pinki and accused Babulal was effected and wherein it was also observed that both parties have arrived at mutual settlement of their dispute for a sum of Rs. 18,000/ out of which sum of Rs. 6,000/ already stood paid to the complainant.

Allegation of the complainant that Rs. 20,000/ were given by complainant’s father to Babloo is not proved due to different version of PW2 who deposed that she herself had given Rs. 20,000/ to Babloo. However mere demand and payment of this amount is not suffice to constitute cruelty within meaning of Section 498-A IPC.

In the present case prosecution is required to prove that accused had subjected the complainant to cruelty and it is not every cruelty which is punishable under Section 498A IPC. The cruelty, so as to attract penal provisions contained in Section 498A IPC is necessarily to be willful which is of such a nature that is likely to drive a woman to commit suicide or cause grievous injury or danger to her life and health.

In the present case complainant has made vague allegations against the accused about the cruelties committed by him since she has not given any particular details of even one incident which reflects the gravity of allegations made by her and which can be taken to be of such a nature so as to attract criminal liability against the accused.

Further no specific allegation has been made against different accused persons . The complainant has vaguely alleged that accused persons used to harass her and said testimony has made the allegation vague since no specific role has been depicted upon the accused and no specific date and time has been mentioned as when and how they harassed her.

11. In view of the aforesaid I hold that prosecution has failed to establish the kind of cruelty as prescribed under section 498 A IPC, and thus accused persons deserve acquittal. Hence all accused persons Babloo, Sunehri Lal, Ratnesh, Reena, Bimla Devi, Naresh Kumar and Neeresh Kumar are acquitted of the offences under section 498 A/34 IPC

12. The other section for which the accused persons have been charged is section 406 IPC. To attract section 406 IPC, the following ingredients must be shown: –

(i) whether the complainant has entrusted his/her dowry articles on the accused persons;

(ii) whether the complainant had demanded her dowry articles and istridhan from the accused persons;

(iii) whether the accused persons have refused to return the dowry articles and stridhan of the complainant.

13. In order to prove the allegations of misappropriation the prosecution has examined complainant and her mother. Complainant has deposed that sufficient dowry articles were given in her marriage by her parents. She has also relied upon Ex. PW2/B as list of dowry articles but the said fact has not been corroborated by her mother who deposed that she does not remember whether any dowry articles list was prepared. Thus it is not proved which of the articles were given in marriage and which of the articles were entrusted to which one of the accused persons. Further there is no public witness in support of the allegation that the dowry articles as per list relied upon by complainant were given in marriage.

14. From the aforesaid, I am of the considered opinion that prosecution has failed to prove the allegations under section 406/34 IPC as well beyond reasonable doubt and all accused persons Babloo, Sunehri Lal, Ratnesh, Reena, Bimla Devi, Naresh Kumar and Neeresh Kumar are hereby acquitted of the offence charged. Hence, all the accused persons are acquitted in case FIR No. 212/00, PS Mandawali from the charge framed for the offence punishable Under sections 498-A/406/34 IPC.

Provision of section 437 (a) Cr.PC shall apply and previous surety shall remain as surety for next six months.

Let file be consigned to Record Room.

Announced and dictated in                      (RICHA PARIHAR)
the open Court on 11/8/2014               METROPOLITAN MAGISTRATE
                                                (MAHILA COURT)
                                             KARKARDOOMA COURT,
                                                    DELHI

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