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Neeru Sharma vs . Raj Kumar Sharma And Anr. on 21 May, 2019

HIGH COURT OF JAMMU KASHMIR
AT JAMMU
CRAA No. 26/2005
Date of order: 17.05.2019
Neeru Sharma Vs. Raj Kumar Sharma and anr.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For appellant(s) : Mr. Rahul Pant, Advocate.
For respondent(s) : Mr. Sunil Sethi, Sr. Advocate with

Mr. Ankesh Chandel, Advocate.

i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No

1. This acquittal appeal has been filed by the appellant-Neeru Sharma
against the judgment of acquittal dated 23rd April, 2005 passed by
learned Judicial Magistrate 1stClass (Sub-Judge), Jammu on a
complaint filed by the complainant/appellant herein and registered
as File No. 11/Complaint dated 16th April, 2002, whereby the
respondents have been acquitted of the charges under Sections 405,
406 RPC.

2. In the memo of appeal, it is stated that the trial court has failed to
appreciate the evidence brought on record by the
complainant/appellant herein in its right perspective and appears to
have been swayed away by minor discrepancies. It is stated that trial
court has totally misdirected itself in appreciating the evidence
adduced by the appellant in support of her complaint.

3. The case of the appellant is that she was married to the respondent
No.1 on 19th September, 1999 at Jammu as per Hindu Rites and
Customs. It is stated that marriage of the appellant and the
respondent No.1 was arranged marriage and the father of the
appellant besides entertaining the marriage party, also gave dowry

CRAA No. 26/2005 Page 1 of 25
as per his financial status at the time of marriage. In addition to the
dowry items, parents of the appellant presented numerous gifts and
household items, which included the personal clothing and the
jewelry of the appellant. It is further stated that all these items of
clothing and jewelry were taken possession of by the respondents
and remained with them till the appellant was turned out of her
matrimonial home on 21st April, 2000. Thereafter, despite several
efforts made by the parents of the appellant, the respondents did not
take the appellant back to her matrimonial home.

4. Learned counsel for the appellant stated that the appellant was
turned out of her matrimonial home merely after seven months of
solemnization of her marriage. The parents of the appellant were
making efforts to amicably settle the issue and persuading the
respondents to take back the appellant, but the respondent No.1
filed a petition under Section 13 of the Hindu Marriage, Act seeking
dissolution of marriage by a Decree of Divorce. It is stated that in
the said petition, on the basis of a report of Process Server that the
appellant had refused to accept the summons, an ex-parte Decree of
Divorce against the appellant and in favour of the respondent No.1
came to be passed by the learned Additional District Judge,
(Matrimonial Cases), Jammu. The ex-parte decree of divorce was
obtained by the respondent No.I only with a view to defraud the
appellant of all items of dowry including her Stridhan presented to
her at the time of marriage by the parents of the appellant as well as
the respondents. It is contended that the appellant filed a complaint
under Section 405/406 RPC against all the respondents for
committing criminal breach of trust vis-a-vis her Stridhan which
was registered as File No.11/complaint. The learned Judicial
Magistrate 1st Class (Sub-Judge) Jammu after the perusal of the
complaint and the preliminary statements recorded in support
thereof took cognizance of the matter and summoned all the

CRAA No. 26/2005 Page 2 of 25
respondents for facing the trial. To support the factual averments
made in the complainant, the appellant herself appeared in the
witness box and examined her father Prem Chand, her mother
Sudershan Sharma and Sh. Ashok Kumar. On completion of the
evidence, the trial court was satisfied that the offences under
Sections 405/406 RPC are prima facie made out against the
respondents, as such, the learned trial court vide order dated
31.01.2004 charged the respondents for the aforesaid offences.

5. In defence the respondents also examined two witnesses, namely,
Romesh Chander and Parveen Sharma. Thereafter, the trial court
after hearing the arguments on behalf of both the sides vide order
impugned dated 23.04.2005, recorded the judgment of acquittal in
favour of the respondents.

6. Feeling aggrieved by the impugned judgment dated 23.04.2005,
passed by learned Judicial Magistrate 1st Class, (Sub-Judge), Jammu
appellant has challenged the same on the grounds that the learned
trial court has failed to appreciate the evidence brought on record by
the complainant in its right perspective and appears to have been
swayed away by minor discrepancies; that the learned trial court has
further erred in returning a finding that the appellant had failed to
prove by leading any cogent evidence that the articles in the
complaint had at all been given to the appellant at the time of
marriage; that the learned trial court without any basis and
reasoning has disbelieved the statement of the appellant that despite
her demand, the dowry articles were never returned to the appellant
and that the demand of the appellant was a casual and not intended
to be final demand of her clothes and ornaments, is bereft of any
reasoning; that the findings of learned trial court that mere refusal to
return the entrusted property would not constitute any offence,
unless there is volitional act on the part of the accused, by placing

CRAA No. 26/2005 Page 3 of 25
reliance on a decision of Hon’ble High Court in case titled SectionKailash
Salathia vs. Kajal Salathia, is not borne out from the record of
complaint; that under Section 405 RPC, no specific mode of
entrustment is required to be proved. It is enough if the complainant
proves that property owned by him/her is handed over to the
accused for some purpose, which may not imply conferring of any
property rights at all or that the accused had the dominion over the
property regarding which breach of trust is alleged.

7. I have considered the rival contentions of parties; counsel for
appellant has reiterated all grounds taken in memo of appeal,
whereas counsel for respondents has supported the judgment.

8. Law with regard to appeal against acquittal is now well settled. The
scope of power of appellate court in case of acquittal appeal has
been highlighted by Apex Court in AIR 2014 SC 2200 case titled
„Muralidhar alias Gidda anr. Vs. State of Karnatka‟, which
read as under :-

“10. Lord Russell in SectionSheo Swarup v. King Emperor AIR
1934 Privy Council 227, highlighted the approach of the
High Court as an appellate court hearing the appeal against
acquittal. Lord Russell said, “… the High Court should and
will always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of innocence
in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a finding
of fact arrived at by a Judge who had the advantage of
seeing the witnesses.” The opinion of the Lord Russell has
been followed over the years.

11. As early as in 1952, this Court in SectionSurajpal Singh v. State
AIR 1952 SC 52 while dealing with the powers of the High
Court in an appeal against acquittal under Section 417 of the
Criminal Procedure Code observed, “…………the High Court
has full power to review the evidence upon which the order
of acquittal was founded, but it is equally well settled that
the presumption of innocence of the accused is further
CRAA No. 26/2005 Page 4 of 25
reinforced by his acquittal by the trial court, and the
findings of the trial court which had the advantage of seeing
the witnesses and hearing their evidence can be reversed
only for very substantial and compelling reasons.”

12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in SectionTulsiram
Kanu v. State AIR 1954 SC 1, SectionMadan Mohan Singh v. State
of U.P. AIR 1954 SC 637, SectionAtley v. State of U.P. AIR 1955 SC
807, SectionAher Raja Khima v. State of Saurashtra AIR 1956 SC
217, SectionBalbir Singh v. State of Punjab AIR 1957 SC 216, SectionM.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200, SectionNoor
Khan v. State of Rajasthan AIR 1964 SC 286, SectionKhedu
Mohton v. State of Bihar (1970) 2 SCC 450, SectionShivaji
Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793,
SectionLekha Yadav v. State of Bihar (1973) 2 SCC 424, SectionKhem
Karan v. State of U.P. (1974) 4 SCC 603, SectionBishan Singh v.
State of Punjab (1974) 3 SCC 288, SectionUmedbhai Jadavbhai v.
State of Gujarat (1978) 1 SCC 228, SectionK. Gopal Reddy v. State
of A.P. (1979) 1 SCC 355, SectionTota Singh v. State of Punjab
(1987) 2 SCC 529, SectionRam Kumar v. State of Haryana 1995
Supp (1) SCC 248, SectionMadan Lal v. State of JK (1997) 7 SCC
677, SectionSambasivan v. State of Kerala (1998) 5 SCC 412,
SectionBhagwan Singh v. State of M.P. (2002) 4 SCC 85, SectionHarijana
Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6
SCC 470, SectionC. Antony v. K. G. Raghavan Nair (2003) 1 SCC 1,
SectionState of Karnataka v. K. Gopalkrishna (2005) 9 SCC 291,
SectionState of Goa v. Sanjay Thakran (2007) 3 SCC 755 and
SectionChandrappa v. State of Karnataka (2007) 4 SCC 415. It is
not necessary to deal with these cases individually. Suffice it
to say that this Court has consistently held that in dealing
with appeals against acquittal, the appellate court must bear
in mind the following:

(i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened
by the order of acquittal passed in his favour by the
trial court,

(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal,

(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against convictions
but the appellate court is generally loath in
disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an
advantage of seeing the demeanor of the witnesses. If
the trial court takes a reasonable view of the facts of
the case, interference by the appellate court with the
CRAA No. 26/2005 Page 5 of 25
judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably
wrong or based on erroneous view of the law or if
such conclusions are allowed to stand, they are likely
to result in grave injustice, the reluctance on the part
of the appellate court in interfering with such
conclusions is fully justified, and

(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with the
judgment of acquittal is not justified if the view taken
by the trial court is a possible view. The evenly
balanced views of the evidence must not result in the
interference by the appellate court in the judgment of
the trial court.

13. In ‘Ghurey Lal v State of U.P.‟ (2008) 10 SCC 450, the
Court has culled out the principles relating to the appeals from a
judgment of acquittal which are in line with what we have
observed above.”

9. In present case appellant/complainant filed criminal complaint
against respondents, who are her husband and parents in law, for the
commission of offences punishable under sections 405, 406 RPC;
complainant has alleged that she got married with the accused No.1
on 19.09.1999 at Jammu as per the Hindu rites and customs; that
accused No.2 and 3 are the parents of accused No.1 and all of them
are the residents of Village Patli Tarore, Tehsil Samba. That at the
time of marriage, the complainant’s parents gave dowry as per their
capacity, besides incurring huge expenditure on elaborate
arrangements of marriage at Prem Bhawan, Jammu. That besides
numerous articles of dowry including gifts and house-hold items
were given to the complainant at the time of departure of Doli. That
the complainant was given/presented personal clothings and gold
ornaments from both parental as wel1 as in-laws side. That all these
articles were entrusted to the accused by the parents of the
complainant in presence of relatives. That the attitude of the
accused towards the complainant from the very beginning was

CRAA No. 26/2005 Page 6 of 25
indifferent and they treated her with cruelty as well as cursed her for
not bringing adequate dowry. However, her parents were not in a
position to meet their demands. So the accused hatched up a
conspiracy to throw her out from the matrimonial house. Barely,
after seven months of her marriage, she was finally turned out from
the matrimonial house on 21.04.2000. That despite several efforts
made by the parents, the accused did not budge and refused to take
her back to the matrimonial house. That when she was turned out
from the matrimonial home, all her clothes and ornaments presented
to her at the time of marriage, were retained by the accused with the
intention to mis-appropriate the same. That her parents on the one
hand were making efforts for amicable settlement, but the accused
on the other hand in connivance with the process serving agency got
ex-parte decree of divorce against her, dissolving her marriage with
the accused No.1. That the ex-parte decree was obtained primarily
to misappropriate her ornaments, clothing and dowry articles. That
the ornaments and clothing given to her at the time of her marriage
but accused have criminally misappropriated the same, as such, they
are liable for commission of offences under Sections 405, 406 RPC.
That despite several requests made by the complainant as well as
her parents to the accused, latter have not bothered to return
stridhan of the complainant etc.

10. After filing of this complaint, court below took the cognizance on
16.04.2002 and during course of trial, court below recorded
following witnesses, the brief resume of whom is as under:-

PW Complainant-Neeru Sharma has deposed that she got married
with the accused No.l on 19.09.1999 at Prem Bhawan Jammu. That
it was an arranged marriage in which besides parents of the accused,
other persons also participated. That the Doli left on the next day
morning at 6-7 A.M. That her parents gifted her ornaments and

CRAA No. 26/2005 Page 7 of 25
clothes which were handed over to her in-laws. That ornaments
gifted her included Gold Nose Ring, Necklace, Ear rings, Bangles,
finger rings etc. and clothes comprised of 21 Sarees, 31 Suits ,06
Shawls and 10 Sweaters, three Purses, 5 Sandals and Titan Wrist
Watch and her in-laws also gifted her ornaments which included
one Necklace, Earrings, 13 Bangles, Golden Chain, Locket, Tops
and four Finger Rings. That all these articles were meant for her
personal use and remained with her parents-in-law. That after the
marriage she remained at her matrimonial home for brief period of
07 months and whenever she had to come to attend some functions,
her mother-in-law used to give her ornaments and clothes as per the
requirements. That her in-laws started maltreating her right from the
day of her matrimonial life, as they were not satisfied with the
dowry. That on 18.04.2000, the accused No.1 left her at parental
house, but she again went to in-law house. However, on 21.04.2000,
he was not present at the house when her mother-in-law left her at
Kunjwani and her brother-in-law left her at parental house. That at
the time when she was left at the parental house on 18.04.2000 and
subsequently on 21.4.2000 she was having nothing except clothes
worn. That all her clothes and ornaments were lying with her
mother-in-law. That thereafter accused never came to take her back
to the matrimonial house. However, they came to quarrel only. That
during that period she met her husband at University Campus and
also contacted the Sarpanch of the village of her in-laws. That she
demanded her ornaments and clothes. However, accused never
wanted to return the same, as their intentions were not good. That
the accused had grabbed her ornaments and clothings, but were not
ready to take her back. That the accused did not return her aforesaid
articles as they were greedy people and accused No.1 had obtained
a decree of divorce and she had heard that accused No.1 had
solemnized another marriage.

CRAA No. 26/2005 Page 8 of 25

On cross-examination, she stated that proposal of their marriage
was mooted by the maternal uncle and Aunt of accused No.1 about
two months earlier to the marriage. That her parents arranged
clothings and ornaments within two months. However, some
articles were already with them. That some of the ornament given to
her, were purchased from N. N. Jewelers as she accompanied her
parents to select the same and those included Nose Ring, Necklace,
a pair of Earring, two Bangles etc. That
she did not know how much these ornaments were costed.
However, the payment was made in her presence. That her mother,
he cousin brother Vinay Sharma, his wife Anu had accompanied her
to purchase the ornaments from the N. N. Jewelers. That during
those days she alongwith her mother was putting up at home, so,
they purchased ornaments from N.N. Jewelers, Jain Bazar Jammu.
That other ornaments were purchased from different places by her
parents, but the same were not known to her. That clothes were
purchased from Rehari, Bishnah and some were purchased from
Monalisa and Jugal Sons. However she did not accompany her
parents to the shops of Monalisa and Jugal Sons. That the shop-
keeper of Rehari from whose shop she purchased the clothes was
not known to her. However, the shop was alongside the Hanuman
Mandir. That she did not obtain the bills of the clothes as she never
thought of coming to the court. That bills from Monalisa and Juga1
Sons are also not with her nor she was having the bills of N. N.
Jewelers. That she did not know whether her parents were having
bills of those shops. That aforesaid articles were handed over to her
by her parents at Prem Bhawan, Jammu and same were kept in
Attachi. That some of the ornaments and clothes were worn by her
at that time. That on the third day of marriage, those clothes and
ornaments were taken by her mother-in-law and she was left with
two suits only and a nose pin. That all the clothes and ornaments

CRAA No. 26/2005 Page 9 of 25
were retained by her mother-in-law and whenever she had to attend
function, her mother-in-law used to give her ornaments and clothes
as per the requirement. That on 21.04.2000, when she left her
matrimonial home, she was wearing nose pin only. Thatafter
21.04.2000, the accused No.2 and 3 came to her parental house 2-3
times, had meals and abused. That accused No.3 slapped her on
head at her parental home and asked her to re-set her brain. Accused
No.3 was accompanied by accused No.2 also. However, accused
No.1 never visited her at parental house. That about eight months
after 21.04.2000, she telephoned at the office of the accused No.1
and called him at University of Jammu. That they met at the
following Saturday as per the time settled. That she asked the
accused to take her back to the matrimonial home, and to provide
her clothes and ornaments as per the requirement, as she had to
attend the marriage of her cousin and the winter season was also to
set. However, the accused refused and said that he would take her
sometime later. That she filed this complaint on 16.04.2002 and at
that time she has got knowledge of issuance of decree of Divorce
against her. It was true that she lodged the complaint only after
knowing about the Divorce and had there been no divorce, she
would not have filed the same. That when her parents gave clothes
and ornaments at Prem Bhawan, Suman Sharma,Vipin Sharma, Ved
Kalyani Sharma, Tirath Ram Sharma, Sudesh Kumar Sharma,
Subash Chander Sharma were present besides other people, whose
names were not known to her. That she signed the complaint after
reading the same. However, she did name the aforesaid persons as
witnesses in the same. It was wrong that she had filed the complaint
with a view to revenge as her marriage was broken one. That all
these ornaments and clothings were lying with her mother-in law as
she was the head of the family. That after 18th April, 2000 she went
to her in-laws once, but was again turned out, on 21.04.2000. That

CRAA No. 26/2005 Page 10 of 25
thereafter she never went to her in-laws house to meet her mother-
in-law.

PW Prem Chand Sharma, who is the father of the complainant,
has deposed that complainant got married with the accused No.1 on
19.09.1999 at Prem Bhawan Jammu. That he gave dowry as per his
status and complainant was also gifted gold ornaments, clothings
and other necessary items of day to day use. That the ornaments
were comprised of one Nose ring, Earrings two pairs, two bangles,
Neck-lace, finger rings etc. That clothings were comprised of 3l
suits, 21 sarees, one Odani, six shawls, 10 sweaters, sandles, a wrist
watch etc. That all these articles were meant for the use of the
complainant. That accused also gifted ornaments to the complainant
which comprised of gold locket, Necklace, Chain, 12 bangles, 04
finger rings, a pair of tops, besides clothes. That clothes and
ornaments gifted by him were given to accused No.1 and his
relatives. However, accused No.2 and 3 were not present there. That
these articles were given in presence of relatives
namely, Vipin Sharma, Sansar Sharma, Shashi Kumar, Vinay
Kumar and others. That accused started torturing the complainant
barely 2-3 days after her marriage, for not bringing adequate dowry.
That occasionally the accused used to leave the complainant and
taunt her. That on 18.04.2000 when the accused No.2 returned from
hospital, the accused No.1 started torturing the complainant on the
plea that she had not rendered him any financia1help. That
thereafter accused decided to turn out the complainant and on
18.04.2000 she was left with them. That they returned the
complainant to Matrimonial home on 21.04.2000, the accused again
turned out the complainant but had not returned her articles till date.
That the complainant was having two suits, one nose pin when she
returned to the parental home. That thereafter they did not demand

CRAA No. 26/2005 Page 11 of 25
all the aforesaid articles from the accused, as they always tried to
send their daughter at her matrimonial home. That accused 2 and 3
visited them twice and he also visited their place for about 8 dozens
time, with a view to arrive at some settlement, but without any
success. That afterward he came to know that accused No.1 has
solemnized 2nd marriage, but he could not believe. He had heard
that divorce is not possible without the statement of the girl. That he
lodged a complaint at Women cell. That he came to know that
accused No.1 had obtained ex-parte decree against the complainant
and thereafter they approached the Matrimonial Court for
cancellation of the decree. That accused had not returned the articles
belonging to the complainant till date.

On cross examination, he stated that he retired as Teacher on
30.11.2002. That at the time of retirement he was getting
Rs.14,000/- as Salary. That despite service he was having
agricultural income as he owned 13 kanals of land. That his wife
was also a Lecturer in the Education department. That ornaments
were purchased by his wife. However, he did not know from which
shop same were purchased. That he could not tell the value of the
ornaments. That one or two items which were purchased from
Miran Sahib were paid by him to the extent of Rs.5-6 thousand.
That some of the clothes were purchased by him alongwith his wife
and the remaining were purchased by the complainant. That he
purchased about 10-15 suits, 4-5 Sarees from Purani Mandi, Jammu
and which costed approx. 12-13 thousand. That he obtained the bills
from the shopkeeper which he had not brought in the court, but
could produce the same after searching for the same. The statement
of the witness was deferred for the production of the bills. He was
further cross-examined on 21.07.2003 and stated that he could not
produce bills as same were not found. That he never lodged the

CRAA No. 26/2005 Page 12 of 25
report with the police about the demand of dowry by the accused, or
harassment meted out to the daughter. That after 21.04.2000, the
accused visited him twice or thrice and he visited the accused 10-12
times. That accused complained about the complainant all the times
and told that she was fat and her walking style was also not proper.
That accused No.2 intimated how the complainant walked. That he
requested the accused all the times to bring back the complainant to
the matrimonial folds and they always gave excuses. That there was
no other discussion.

PW Sudarshana Sharma, the mother of the complainant, has
deposed that complainant got married with accused No.1 on
19.09.1999 at Prem Bhawan Jammu. That they gave sufficient
dowry and they gave four pairs of rings, Necklace, one Nath, two
Bangles, 2 finger rings, two nose pins, wrist watch besides a pair of
anklets. That the complainant was given 21 sarees, 31 suits, 06
shawls 10 Sweaters, five pairs of Chappals, three purses, 01 Odani
and a gold chain. That accused also gave 12 Bangles, one Nath, one
chain, a Locke,t one Tikka, 04 finger rings, one pair of Earrings and
a pair of Tops, besides clothings. That complainant remained with
the accused for 07 months. On 18.04.2000, the complainant was
turnout for the first time by the accused. That the complainant came
to the parental house, but she was returned on the same day. That
barely three days later she was again turned out on 21.04.2000 and
since then she has been putting up with them. That at the time when
the complainant was thrown out, all her ornaments and clothings
mentioned herein above were retained by the accused. That accused
No.1 obtained ex-parte decree of Divorce with respect to which
complainant had filed an application for setting aside the same. That
accused No. 2 and 3 also attended the Barat. That the ornaments and

CRAA No. 26/2005 Page 13 of 25
clothes were given to the elder sister of accused No.1. That all
thesearticles were in the possession of the accused.

On Cross examination, she stated that some of the ornaments
given to her daughter were purchased from N.N. Jeweler and
remaining were purchased from Miran Sahib.That she did not know
which of the ornaments were purchased from Miran Sahib or N. N.
Jewelers. That she was accompanied by the complainant and her
sister’s son and daughter-in-law for purchasing the ornaments from
N.N. Jeweler. That they obtained the bills of the ornaments which
were not with her. That she purchased the ornaments from Verma
Jeweler of Miran Sahib and from another jeweler whose names she
could not tell. That she did not come to purchase the ornaments
from Miran Sahib herself, but had sent one Ashok Kumar, who was
the resident of her village. That she did not remember how much
amount was paid to the Jeweler of Miran Sahib nor the bills were
with her. That some clothes were purchased from Jugal Sons while
others were purchased from other shop at Jammu. That she had
gone alone perhaps to purchase the clothes from Jugal Sons. That
she went once or twice to a Cloth merchant at Rehari and was
accompanied by her daughter. It was true that she was not having
the bills of the clothes nor she could tell how much amount was
spent on purchasing these cloths. That all the ornaments and clothes
were given by her to the elder sister of the accused, who was
known as Guddi and her real name perhaps was Krishna. That at
that time, her brother’s sister and sister-in-law were present besides
other people including Raman Kumar and Ashok Kumar and others.
That all these articles were given after counting and after being
shown to all. That all these articles were packed in a Attachi. That
there was another Trunk and they told Krishna to put all the
remaining articles in the Trunk. That after 21.04.2000 accused No.2

CRAA No. 26/2005 Page 14 of 25
and 3 visited them twice or thrice, but returned after talking
irrelevant with the promise to visit again. That once she along with
her husband and sister-in-law went to the house of the accused as
Grandmother of the accused No.1 had expired and they went to
offer condolence. Barring that visit they never went to the house of
the accused. However, her husband visited 10-12 times after
21.04.2000. That when she went to condole the demise of
Grandmother of accused No.l in Oct. 200l, the accused No.3 met
her and she requested her to bring back the complainant to the
marital fold. However, the accused No.3 did not reply. That she had
not ever talked with the accused. That she did not know what
transpired between her husband and accused as she never
accompanied the former.

PW Ashok Kumar has deposed that complainant’s parents and he
belongs to the same village. That he attended the marriage of the
complainant, but did not know her husband. That at the time of
departure of Doli he was present there. That complainant’s parents
gave a Trunk and Attachi which contained clothes and ornaments
and all these articles were entrusted to the relatives of the
Bridegroom. That the complainant had been putting up at her
parental house since three years and he had come to know that
complainant had some quarrel with her in-laws. That the
complainant used to meet him in marriages and some other social
functions in the village without wearing any ornaments. That the
ornaments given to the complainant at the time of marriage were
lying with her in-laws. On cross examination, the witness stated
that at the time of departure of Doli all the relatives of the
complainant were present there. That about an hour before the Doli
left, the clothes etc. were put in the Trunk by the relatives of the
complainant, but he did not know their names. That other articles

CRAA No. 26/2005 Page 15 of 25
were also packed by the complainant’s relatives in the Attachi. That
no one else was known to him present at that time. That
complainant’s parents handed over the Trunk and Attachi to the
relatives of the Bridegroom who were the ladies. That after
marriage the complainant used to visit her parental house and he
used to meet her, but the complainant never complained of her in-
laws. That the marriage was solemnized in April, 2000. That the
complainant returned her parental home barely 2-3 months later.
That he did not know when the complainant left her in-laws house
for the last time, as she did not return in his presence. That he could
not tell whether the complainant returned with her clothing and
ornaments. That he did not tell how many suits, Sarees or
ornaments were given to the complainant at the time of marriage.
That he had come to depose at the instance of the complainant
father. That he was not aware of the nature of the case. That he was
told to depose whatever he had seen.

That is the whole evidence produced by the complainant. Court
below vide order dated 31.01.2004 after hearing both sides and
after examining the evidence on record came to the conclusion that
accused were prima facie liable for the commission of offence
punishable U/s 406 RPC. So they were charged, accordingly, and
the charges against them were read over and explained to them.
However, the accused pleaded not guilty. The accused further opted
not to further cross-examine the complainant or her witnesses,
produced by the complainant; the statement of accused u/s 342
Сr.Р.С. were recorded; they produced two witnesses, namely,
Ramesh Kumar and Parveen Kumar Sharma in their defence. A
brief resume of their statements is re-produced as under;

DW Ramesh Kumar has deposed that accused No.1 was his friend.
That the marriage of accused No.1 was solemnized on 19.09.1999,

CRAA No. 26/2005 Page 16 of 25
which was attended by him and he took the photographs of the
marriage. That the marriage ceremony was performed at Prem
Bhawan, Jammu and Doli left on the next day morning. That the
parents of the accused attended the Barat, but they returned in the
night itself and were not present at the time
of departure of Doli. That at the time of departure of Doli, none of
the relatives of the accused No.l was give any Attachi or Bag or
Trunk by the complainant’s parents or relatives. However, a Brass
Pot containing Gullara was given.

On cross examination, the witness stated that Shagun was given on
18th of September 1999 at about 4 p.m at a Hall which was situated
between Rehari and Sarwa1. That he did not know all the relatives
of the complainant, so he could not tell how many relatives of the
complainant were present at the time of Shagun ceremony. That he
took snaps of Shagun ceremony. That no TV, Fridge or Scooter was
given in the Shagun, but he did not know whether any finger ring or
gold chain was given. That he did not know about the ring
ceremony. That he could not say whether it was Hall or private
residence. That in the ring ceremony, the complainant and accused
No.1 gifted finger rings to each other. That his assistant Sanjay
Kumar was also accompanying him. That the marriage ceremony
was completed at about 12 Midnight. That Parveen Sharma and
Shiv Raj were also there, besides other friends of the accused No.1
whose names were not known to him. That at the time of departure
of Doli, relatives from both sides were present. That he did not
know how many functions were attended by him after this marriage.
That he went by a Van which belonged to the relatives of the
accused No.1. That at the time of Lagan one finger ring and
Sandoor was given to the complainant. That he did not know
whether any other clothes or ornaments were given to the

CRAA No. 26/2005 Page 17 of 25
complainant as Wari. That he took the photographs from the Hall
upto the Boarding the vehicle at the time of leaving the Hall.

DW Parveen Sharma has deposed that accused No.1 was his
friend from childhood. That accused No.1 was got married with the
complainant on 19.09.1999. That he attended the Barat. That the
marriage ceremony started 10-15 p.m. and continued for 1 ½ hours.
That he stayed with accused No.1 along with other friends at Prem
Bhawan. That on the next day morning the Doli left at about 7 a.m.
That at the time of departure of Doli one brother-in-law of accused
No.l and DW Ramesh Kumar were present. However, parents of
accused No.l had already left in the night itself. That the sister of
the accused No. l has also left before departure of Doli. That at the
time of departure of Doli complainant’s parents and relatives were
present, but no Attachi, Trunk or box was given to accused No. 1 or
his relatives at that time. That the complainant’s parents gave
Metalic pot which contained Gullara.

On cross examination, he stated that he was an employee of Sheep
Development Board. That he has come to depose at the instance of
accused No.1.That DW Ramesh Kumar was also his friend. That
other friends who witness the marriage were Shiv Raj Singh, Suresh
and Sardari Lal. That at the time of Lagan and Sapat, he was sitting
beside accused No.1. That the complainant was bearing artificial
jewelry. That the complainant was also wearing Jai Mala, so he
could not say what was wore beneath. That at the time of lagan the
accused No.1 made the complainant wear finger ring and Tikka and
both these items were of gold. That sisters and one or two brothers-
in-law of the accused No.1 were also present at that time, but they
left before 4.30 a.m. However, one brother-in-law of accused stayed
there. That before Lagan he left an Attachi, containing Wari before
Pandit and Purohit, which was given to the girls sitting behind, and

CRAA No. 26/2005 Page 18 of 25
they were the relatives of the complainant. That Attachi in question
contained clothes but he did not see those clothes. That he could not
say whether it contained any ornaments. That he left by Maruti Van
and Gullara Pot was also kept in that Van.That the car of the couple
was driven by the brother-in-law of accused No.1. That no luggage
was kept in the Car of the Bridegroom. That he attended the
reception, but did not talk to the complainant. That he did not know
about the ornaments wore by the complainant. That accused No.1
had solemnized 2ndmarriage with Sushila. That at the time of second
marriage, he had gone to Amritsar, so he did not remember the date
of marriage. That he was not invited in the second marriage.

11. The court below after conclusion of trial and hearing the parties,
acquitted the accused/respondents on the grounds that Entrustment
of property to accused and its mis-appropriation or conversion for
their own use or dishonestly using or disposing of that property,
have not been proved. Further, court below has also held that
complaint failed to prove the fact that she has ever made any
demand to accused for return of properties in question. Court below
further held that complainant failed to produce the evidence with
regard to purchase of articles in question.

12. Relevant findings of court below reads as under:-

„To summarize, the complainant has deposed that articles of
jewelry and clothes gifted at the time of marriage by the parents
were entrusted to her in-laws at the time when the Doli was about
to depart. That all these articles were remained with her mother-in-
law during her seven months stay at the matrimonial house. That
on 21.4.2000, when she was thrown out she had nothing except the
clothes she wore. That the accused had retained all the belongings,
but had refused to take her back to the matrimonial home. That she
met accused No.1 at University and demanded her belonging and
also called on the Sarpanch of their village. However, the accused
never wanted to return her belongings, as they were having bad
intentions and were greedy people. But when cross-examined she
has stated that she met her husband the accused No.1, she asked
him to take her to the matrimonial home and to provide her clothes

CRAA No. 26/2005 Page 19 of 25
and ornaments as per the requirement, as she had to attend
function and the winter season was also approaching.
PW Prem Chand, while corroborating the statement of
complainant regarding the items gifted to her, has deposed that all
those articles were entrusted to the accused No.1 and has
specifically stated that accused No.2 and 3 were not present there at
that time. That on 21.4.2000, the accused turned out the
complainant and did not care to take her back
till date. That they did not demand the articles from the accused as
their efforts were to settle the complainant at her in-laws-house.
That accused came 2-3 times and he also visited them about a dozen
times, but all their efforts failed to materialize. That afterward they
came to know that accused had solemnized second marriage. That
accused have retained personal belonging of the complainant till
date. This witness has categorically stated that no demand was ever
made by them to the accused for returning the belonging of the
complainant , but has simply stated that accused had not returned
the same despite the fact that accused No.1 has solemnized the
second marriage.

PW Sudarshana Sharma, the mother of the complainant, has also
corroborated about the gifting of items enlisted by the complainant.
That the complainant was thrown out from the matrimonial house
on 21.4.2000 by the accused without returning her belongings till
date. That all these items and clothing were entrusted to elder sister
of accused No.1at the time of departure of Doli, and were still in the
possession of the accused. On cross examination, she has stated that
clothing and ornaments were entrusted to the elder sister of
accused No.1 Mst. Guddi, whose real name was Krishna. That at
the time of entrustment, her brother, sister -in-law, nephew Sanjay
Sharma and other relatives were present. That all these articles
were not counted at the time of giving the same to Krishna and
some of these articles were wore by the complainant. That all these
articles were packed in an Attachi. However, Trunk was also given
to pack the remaining articles, if any. That after 21.4.2000, accused
No.2 and 3 visited her place twice or thrice, talked irrelevant and
left with the plea that they would again come. That once she also
along with her husband, sister-in-law went to the house of the
accused in Oct 2001, to offer condolence on the demise of accused
No.1‟s Grandmother. That she met the accused No.3 and asked her
to bring her daughter to her matrimonial home, but the latter did
not reply and besides that they had no discussion.
According to the PW Ashok Kumar, he has attended the marriage
of the complainant with the accused No.1 and stayed for the night.
That at the time of departure of Doli, the complainant was given a
Trunk and an Attachi. That the Trunk was containing clothes and
Attachi was also containing clothes and jewelry. That all these
articles were entrusted to the relatives of the accused. That the
ornaments given to the complainant were retained by the accused.
On cross-examination, the witness stated that clothes were put into
the Trunk about one hour earlier about the departure of Doli by
the complainant’s relatives, but their names were not known to
him. That the parents of the complainant handed over that Trunk
CRAA No. 26/2005 Page 20 of 25
and Attachi to the relatives of the accused who were ladies. That he
could not tell how many suits and Sarees were given to the
complainant.

Having considered the evidence with regard to the entrustment of
ornaments and clothing to the accused, the complainant has made a
statement in generalized term that the articles mentioned by her
were entrusted to her in-laws as against her specific allegation in
the complaint that same were entrusted to the accused. She has
further deposed that after marriage, all these jewelry items and
clothing remained in the custody of accused No.3 and whenever she
had to attend a function, she used to get the clothings and
ornaments from her mother-in-law as per the requirement. PW
Prem Chand has specifically stated that at the time of entrustment,
the accused No.2 and 3 were not present and he handed over all the
clothing and ornaments to the relatives (sister and brother-in-1aw)
of the accused No.1. PW Sudarshana has named only one sister of
accused, whom these articles were entrusted and PW Ashok Kumar
has another version. According to him, all these items were
entrusted to the ladies from the accused side there.
Secondly, according to the complainant, all these articles were put
in the Trunk, but according to PW Sudarshana, Trunk was also
given in addition to the Attachi to put all those articles which were
left after packing the Attachi. PW Ashok Kumar has further made
modification by deposing that clothes were put in the Trunk and
ornaments and some cloths were put in the trunk and ornaments
and some clothings were packed in the Attachi.

As evident from the evidence, there is no direct evidence as to the
entrustment of the articles enumerated by the complainant to the
accused. All that could be inferred from the evidence on record at
best could be the entrustment of these articles to the relatives of the
accused at the time of departure of Doli and assumption of charge
by accused No.3 over those articles afterwards.”

13. These findings of court are neither perverse nor suffer from any
infirmity of law with regard to appreciation of facts. In order to
prove that an offence under Section 405 RPC is committed, two
elements are essential, namely, entrustment with property or
dominion over any property and dishonest misappropriation or
conversion of such property. The offence is completed only when
second ingredient is completed and not before that. Mere retention
or entrustment does not make an offence. In the case in hand,
complainant had only alleged that property in question was
entrusted with accused. There is no specific allegation or evidence
on record that the said property has been misappropriated or
CRAA No. 26/2005 Page 21 of 25
converted or used or disposed of by accused in violation of any
direction given by the complainant.

14. The further finding of court below, reads as under:-

“There is another aspect of the matter that needs to be appreciated.
The complainant when cross-examined about shops and show
rooms from where these articles were purchased and about all the
payments made therefor, has named some jewelry items, purchased
from N.N. Jewelers, Jain Bazar Jammu by her mother and cousin’s
wife. That other ornaments were purchased by her parents from
other different shops/places which were not known to her. As
regard the clothes, she has stated some were purchased from the
show rooms of Monalisa and Jugal Sons and shops at Rehari and
Bishnah. That she did not know where the show rooms of Jugal
sons and Monalisa were, as the clothes were purchased by her
mother. That the payment to the N. N. jeweler was made by her
mother in her presence, but she did not know how much amount
was paid. That the purchase from the shop at Rehari and Bishnah
were made by her alone. That she was not having the bills of all
these purchases nor she was aware whether her parents were
having any of these bills.

According to PW Prem Chand all the ornaments were purchased
by the complainant and his wife, so he could not tell the value of the
ornaments. That one or two items were purchased from Bishnah
for Rs.5-6 thousand. That for purchasing the clothes, he
accompanied his wife. That about 10-15 suits and 4-5 sarees were
purchased from Purani Mandi for Rs.10-12 thousand. That other
clothes were purchased by the complainant. This witness also could
not produce any of the bil1 of these purchases.

According to the PW Sudarshana Sharma, the ornaments were
purchased from N.N. Jewelers and from Miran Sahib. So she could
not tell which ornament was purchased from which shop. That she
did not go to the Jeweler‟s shop at Miran Sahib, but had sent to PW
Ashok Kumar, who was the resident of her village. That she did not
remember how much payment was made to the jeweler at Miran
Sahib. That clothes purchased by her from Juga1 sons. That she
did not accompany her daughter for purchasing any clothes but
perhaps she once accompanied her to a shop at Rehari. That she
could not tell how much amount was spent on purchasing clothes.
PW Ashok Kumar has not mentioned anything about being
deputed to purchase any ornament as stated by PW Sudarshana. It
has come in the evidence of PW Prem Chand that he had retired as
teachesr from Education department and his wife PW Sudarshna
Sharma was also serving as Lecturer in the Education department
and complainant is their elder daughter. So both these witnesses
are well literate. PW Prem Chand did not purchase any ornament
and accompanied his wife only once for purchase of 10-15 suits, 4-5
Sarees from the shop at Purani Mandi. PW Sudarshana has not
made any mention about the purchase from Purani-Mandi, rather

CRAA No. 26/2005 Page 22 of 25
she has named show rooms of Jugal sons. As regard the ornaments,
she has not been able to recollect which items were purchased from
N.N. Jewelers. So here is the case, when well-educated parents
solemnizing the marriage of their elder daughter could not concur
even on the shop from where the clothes were purchased. As regard
the ornaments the father stayed away, but deputed a co-villager to
make purchases for him. Whereas the mother could not state,
which articles were purchased by her, when she herself is stated to
have purchased the same from N. N. Jewelers, Jain Bazar, Jammu.
So the evidence of these witnesses that articles listed in the
complaint were at all given to the complainant at the time of
marriage comes under serious clouds of doubt and cannot be
accepted reality.”

15. This observation of court below is also not perverse as existence of
‘Stridhan’ must be proved by way of bills, when there is a specific
version that complainant purchased the items from specific shop/s
and obtained bills; if bills are not produced then this fact can be
proved by calling the seller of these items from concerned shop/s. In
present case, neither bills have been proved nor any concerned
person/s from said shop/s have been produced.

16. Next court below has held that ‘Having carefully considered the
evidence on record and believing for a moment that all the articles
enlisted in the complaint were gifted to the complainant and same
were entrusted to the accused, but there is no evidence as to the
demand of the same by the complainant and consequent refusal by
the accused. Believing for a moment the evidence led by the
complainant despite all short comings in it, even then refusal to
return is not enough, unless it is coupled with the element of
dishonestly volitional act. Therefore, the ingredients necessary for
constituting offence punish-able U/s 406 RPC are clearly lacking.
Rather, it seems that present complaint is the outcome of failure of
matrimonial relations of the parties extenuated by the solemnization
of the second marriage by the accused No.1.’

17. I have carefully gone through the complaint, in which, general
allegations have been made in para no.7 that complainant was
CRAA No. 26/2005 Page 23 of 25
turned out of her matrimonial home and all personal clothing’s of
the complainant and ornaments presented to her at the time of
marriage by her parents have been retained by accused with an
intention to misappropriate the same. The same aversion has been
made in para 9 that despite several request made by complainant
and her parents to return the dowry articles ,the accused have not
bothered to do needful. Even in para no.11 which deals with cause
of action, it has been stated only that marriage took place and
properly was entrusted at Jammu, so court has jurisdiction. No
date, time and year has been mentioned as to when articles were
given and when she demanded the same are totally missing in
complaint. Even in para no.11 there is no mention of date of
demands of dowry articles.

18. In 2010 Cr.L.J 448 SC in case titled Neelu Chopra and another
Vs. Bharti, it has been held as under:-

“4. We have seen the complaint very carefully. From a bare reading
of the complaint it is apparent that the problem started barely after
six months of the marriage. In paragraph 3 of the complaint, it is
stated that all the accused came to complainant’s parents house at
Gidderbaha and asked her parents to give the complainant more
gold and other articles as dowry otherwise they would leave the
complainant there and Rajesh would be married second time. In
paragraph 4, the complaint is against Rajesh in the sense that the
accused Rajesh asked the complainant to hand over the ornaments
and clothes to his parents lest they are lost in the way. On reaching
to Delhi when the ornaments were asked back by the complainant,
they were not returned back. When we see the complaint as a whole
it is basically against the accused Rajesh. All the allegations are
against Rajesh. There is undoubtedly some reference to the present
appellants, but what strikes us is that there are no particulars given
as to date on which the ornaments were handed over, as to the exact
number of ornaments or their description and as to the date when
the ornaments were asked back and were refused. Even the weight
of the ornaments is not mentioned in the complaint and it is a
general and vague complaint that the ornaments were sometime
given in the custody of the appellants and they were not returned.
What strikes us more is that even in paragraph 10 of the complaint
where the complainant says that she asked for her clothes and
ornaments which were given to the accused and they refused to give
these back, the date is significantly absent. It seems from the order
taking cognizance that the learned Magistrate has mentioned about
CRAA No. 26/2005 Page 24 of 25
the version of the complainant is supported by Bhagwati and
Dharampal to the fact that the ornaments were entrusted to
Krishan Saroop and Rajesh while clothes were entrusted to Rakhi
and they refused to hand over the same. Even their statements
could not be better than the vague complaint. Even about the
clothes, the date on which they were handed over to Rakhee who
happens to be the daughter of the present appellants and the other
details are very significantly absent. It was also the version of the
complainant that she was beaten in support of which she has filed a
certificate from AIIMS hospital, New Delhi. However, in the
complaint, it is not seen as to on which date she was beaten and by
whom. It is significant to note that the matter against the Rakhee,
the 4th original accused has already been dropped as she was in
fact not even the resident of the same house.

5. In order to lodge a proper complaint, mere mention of the
sections and the language of those sections is not be all and end of
the matter. What is required to be brought to the notice of the court
is the particulars of the offence committed by each and every
accused and the role played by each and every accused in
committing of that offence. When we see the complaint, the
complaint is sadly vague. It does not show as to which accused has
committed what offence and what is the exact role played by these
appellants in the commission of offence. There could be said
something against Rajesh, as the allegations are made against him
more precisely but he is no more and has already expired. Under
such circumstances, it would be an abuse of process of law to allow
the prosecution to continue against the aged parents of Rajesh, the
present appellants herein on the basis of vague and general
complaint which is silent about the precise acts of the appellants.

6. The High Court has merely mentioned that the allegation in the
complaint is of retaining jewellery articles in possession of the
husband and the petitioners. Now if the articles were in the
possession of the husband, there is no question of the present
appellants being in possession of the jewellery. This is apart from
the fact that it has already been expressed by us that there is no
mention of the date on which the said ornaments, if any, were
entrusted to the appellants or even the date when they were
demanded back and were refused to be given back by the
appellants or any one of them. …”

19. For what has been discussed above, this appeal is devoid of any
merit. It is dismissed, accordingly.

( Sanjay Kumar Gupta )
Judge

Jammu:

NARINDER KUMAR 17.05.2019
SHARMA
2019.05.17 14:18
Bir* and
I attest to the accuracy
integrity of this document

CRAA No. 26/2005 Page 25 of 25

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