IN THE COURT OF MM-04 (MAHILA COURT), WEST, PRESIDING OFFICER Ms. AANCHAL, TIS HAZARI COURTS, DELHI State Vs. Robin Diwan & Ors. FIR No.: 89/10 P.S. : Nihal Vihar a) Srl. No. of the case & Date of institution 60297/16 & b) Date of commission of offence Since 29.11.2009 c) Name of the complainant Sh Narender Pal d) Name of the accused 1. Robin Diwan s/o. Sh. Ashok Kumar. 2. Sh Ashok Kumar, s/o Sh Inderjeet Singh 3. Darshana w/o Sh Ashok Kumar All r/o. RZ- K.-28, Nihal Vihar, Delhi. e) Nature of offence complained of U/s. 498A/304B IPC. f) Plea of the accused pleaded not guilty g) Date reserved for order 24.04.2018 h) Final Order Acquitted. i) Date of order 27.04.2018 JUDGMENT
1. The case of the prosecution as per charge sheet is that:
(a) On 28.4.2010 on receipt of DD No. 40A, Ct Anil Kumar and SI Rameshwar Das went to Bhatia Global Hospital, Paschim Vihar, Delhi where they found that the doctor had declared the deceased Ritu Diwan W/o accused Robin Diwan on the MLC as having been brought dead. On enquiry, it was learnt that the deceased was married six months back. The SDM, Patel Nagar was informed on the telephone. As per the instructions of the SDM, the spot where the deceased had expired was inspected and photographed. The SDM recorded the statement of the father of the deceased Narender Pal and her mother Kamlesh. The father of the deceased Narender Pal in his statement stated that the deceased Ritu was married to accused Robin Diwan on 29.11.2009. The accused Robin Diwan and his daughter knew each other before their marriage. The marriage was celebrated with great pump and show. At the time of the marriage, they gave dowry articles as per their own wish. From March 2010, the accused persons started pressurizing his daughter for Rs.1.5 lakhs. When his daughter told him about this fact, he assured her that he would arrange for the money. On 15.4.2010 he took the accused Robin Diwan and his daughter to Vaishno Devi, Jammu with his family. There the accused Robin Diwan was trying that his daughter stayed away from them. On their return to Delhi, the accused Robin Diwan pressurized Ritu to get Rs. 6.5 lakhs from her house telling her that he required money for making the house and for his sister’s marriage. On 22.04.2010 Ritu came to house and told him that her in-laws were demanding Rs.6.5 lakhs. She also informed that she had told her in-laws that her father could not arrange for the said amount. On 23.4.2010, Ritu went back to her in-laws house. On 26.4.2010 Ritu’s phone came once at 7 a.m and the second time at 5 p.m and she told that her mother-in-law was pressurizing her for getting the money. On 28.4.2010 in the evening at 5 p.m., the accused Robin Diwan called up and informed that the blood pressure of Ritu Diwan had become low and she had been admitted in Bhatia Global Hospital. He sent his wife and nephew to Bhatia Global Hospital. After half an hour he was informed that Ritu had already died. His nephew Rajesh called up the police at about 6.30 p.m. He reached the hospital where the police had already reached. He doubted that Ritu had been fed something and her face had been smothered.
(b) On this statement/complaint of Narender Pal, the above said FIR under Section 498A/304B/34 IPC was registered and after completion of investigation, the charge sheet had been filed for the offence u/s 304B/498A IPC.
2. The cognizance of the offence was taken and the case was committed to the Court of Sessions for trial vide order dated 31.8.2010.
3. After hearing the arguments on charge and considering the material available on record, vide order dated 24.12.2010 passed by Ms. Aditi Choudhary, Ld. Addl. Sessions Judge-01 (West), Delhi, all the three accused persons were discharged for the offence punishable under Section 304B IPC and it is observed that prima facie case under Section 498A IPC is made out against all the three accused persons and case was sent to Ld. CMM, Delhi.
4. On receipt of the file though Ld. CMM, Delhi, the charge under Section 498A/34 IPC is framed against all the three accused in terms of order passed by Ld. Sessions Court dated 24.12.2010, on 13.1.2011.
5. In order to prove its case, the prosecution has examined the following witnesses who have relied upon the following documents:
S.No Name of the Witness Documents Relied Upon .
1. HC Naresh as PW 1 FIR as ExPW1/A; Rukka as ExPW1/B
2. Sh Narender Pal (father of Statement made before the SDM as deceased) as PW 2 ExPW2/A
3. Sh Krishan Pal (Uncle of Dead Body Identification Statement as deceased) as PW 3 ExPW3/A;
Handing over memo of dead body as ExPW3/B
4. Smt. Kamlesh (Mother of Statement recorded by the police as deceased) as PW 4 ExPW4/A
5. HC Devender Singh as PW5 Seizure memo ExPW5/A;
Arrest memo of accused as ExPW5/B;
Personal Search memo of accused as ExPW5/C.
6. Ct. Anil Kumar as PW 6 Nil 7. HC Rakesh as PW 7 Seizure memo as ExPW7/A; Road Certificate No.44-21-10 dated 7.5.2010 as ExPW7/B; Road Certificate dated 25.5.2010 as ExPW7/C; Receipt/acknowledgment of case property as ExPW7/D. 8. Ct. Manju as PW 8 Personal Search memo of accused Darshana as Mark A. 9. Sh Pramod Kumar, Asstt. The request paper as ExPW9/A;
Commissioner,Trade &Taxes Endorsement as ExPW9/B; Report Deptt. Govt. of NCT of Delhi under Form No. 25.35(1)(B) as ExPW9/C and Report under Form No. 25.35(1)(C) as ExPW9/D.
10. Dr. Shalini Girdhar, Post Mortem report no. 382/10 as Associate Professor, RML ExPW10/A.
11. Dr.B.K Sinha, HOD, Deptt. Report as ExPW11/A.
Of Pathology, SGM Hospital, Mangol Puri, New Delhi.
12. Retd. SI Rameshwar Das Handing over memo of dead body as (IO of the case) as PW 12. ExPW3/B;
Dead Body identification memos as ExPW2/B and ExPW3/A;
Seizure memo of viscera kit as ExPW5/A;
Rukka as ExPW12/A;
Site plan as ExPW12/B;
Arrest memo of accused Robin as ExPW5/B;
Personal search memo of accused Robin as ExPW5/C;
Arrest memo of accused Ashok Kumar as ExPW12/C;
His personal search memo as ExPW12/D;
Arrest memo of accused Darshana as ExPW12/E and her personal search memo as ExPW12/F;
Disclosure statement of accused Robin Diwan as ExPW12/G.
6. All the three accused were examined under Section 313 Cr.P.C and they all refused to lead evidence in their defence.
7. Arguments have been heard and record has been perused carefully
8. In the present case in hand, victim i.e. woman allegedly subjected to cruelty has expired. Prosecution has based its case upon the oral testimony of PW1 Narender Pal & PW4 Ms. Kamlesh who are the father and mother of deceased.
9. Ld.APP has submitted that except with minor and harmless discrepancies, the testimony of both the witnesses has been consistent one and supported the prosecution case. Both the witnesses have deposed the specific dates and specific demand of money raised by accused persons to the deceased. Therefore when the demand is raised, the death of deceased per se establishes that the woman was subjected to cruelty and the three accused should be convicted for the offence under section 498A IPC.
10. On the other hand, Ld. Counsel of accused placed heavy reliance upon that –
(a) The marriage is admitted as love marriage by PW2 Narender Pal whereas PW4 Kamlesh has denied this fact and deposed the same as arrange marriage but also stated that this relation was made since her daughter said it to be made and deceased and accused Robin knew each other since before their marriage but Narender Pal and Kamlesh did not know Robin before this marriage, thereby the cross examination of Ms. Kamlesh also reveals that the marriage was love marriage rather than arrange marriage. Hence, the question of solemnizing marriage with so called great pomp and show does not arise and both witnesses PW2 and PW4 have leveled false allegation.
(b) Since it was a love marriage which was solemnized in a Dharamshala, no dowry was given and marriage had been performed as simple one rather than with big pomp and show as deposed by PW2 & PW4.
(c) PW1 Narender Pal disclosed in his cross examination that at the time of marriage of his daughter, he used to earn 10/12 thousand per month and he has not been an income tax payee, he stated that the amount for purchase of jewellery was given to him by his friend as loan but no receipt is placed on record. Dowry articles list is also not made part of record. This all belies the fact that marriage was solemnized with great pomp and show or any article as dowry was given in marriage.
(d) PW1 Narender Pal deposed that the demand of Rs. 1.5 lakh was pressed upon by Ms. Darshana & Robin Singh whereas in his complaint PW2/A, he has stated that three accused were making such demand. This contradiction raises a doubt as to the truthfulness of the witness.
(e) PW2 Narender Pal deposed that deceased made call at 9:00 a.m. and 5:00 p.m. on 26.04.2010 and disclosed that her mother-in-law is forcing her to ask for 6.5 lakh whereas PW Smt. Kamlesh told that on 26.04.2010, first call was received by her at 10:00 a.m. and second call was received by her after 7:00 p.m. and finally suggested that this contradiction and absence of any call record in evidence, makes this piece of evidence unreliable. Hence, the three accused should be acquitted.
11. This court has given thoughtful consideration to the contentions made. Before proceeding to appreciate the evidence brought on record, it is necessary to examine S-498A IPC of which three accused has been charged of. Section 498-A, IPC reads as follows:
” 498A – Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.–For the purpose of this section, “cruelty” means–
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
In State of U.P. v Santosh Kumar, 2009 (3) ACR 3040 (SC), Hon’ble Supreme Court analysing the essential ingredients of 498A IPC, held as follows:
“The following are the essential ingredients of Section 498A IPC:
(i) That there was a married woman;
(ii) that such woman was subjected to cruelty;
(iii) that such cruelty consisted of any willful conduct of such nature as was likely to drive such woman – to commit suicide, or to cause grave injury or danger to her life, limb or health, whether mental or physical; harassment of such woman where such harassment was – with a view to coercing such woman or any person related to her to meet any unlawful demand for any property or valuable security, or on account of failure by such woman, or any person related to her to meet the unlawful demand inable and the woman was subjected to such cruelty by – the husband of that woman; or any relative of the husband of that woman.” (Emphasis Supplied) In Smt. Neera Singh vs. The State (Govt. of NCT of Delhi) and Ors., I (2007) DMC 542, Hon’ble High Court of Delhi has elaborated the meaning of cruelty under Section 498A, IPC in the following manner:
“Cruelty as defined in Section 498A of the IPC must meet the following requirements:
1. There should be harassment of the woman.
2. Harassment should be with a view to coercing her or any person related to her to meet the unlawful demand of a property or valuables security.
3. The harassment may be even where on account of failure by woman or any person related to her to meet any such demand earlier made.”
Thus, above all clarifies that in order to successfully establish the commission of offence u/s 498A IPC, prosecution must prove two facts essentially, firstly, there was a demand of dowry; secondly, there was harassment following the above demand.
In the present case in hand, there is no doubt to the fact that cross examination of PW2 Narender Pal and PW4 Kamlesh prove the fact that deceased and accused Robin Diwan knew each other before their marriage and the marriage was solemnized in Dharamshala and all the articles were given in the marriage by the parents of the deceased on their own wish unlike on the demand made by accused persons and from the evidence brought on record, it is not proved that the stated sum of Rs. 1.25 lacs was spent for purchase of jewellery which was handed over to the deceased by her parents, as pointed out by ld Counsel for accused. These facts do not go to prove or disprove the very fact of demand of dowry made after their marriage as alleged but have questioned the credibility and trustworthiness of these witnesses. This Court has ample empathy with these witnesses who found their young daughter dead just after few months of her marriage but it can not be ignored that the testimony of witnesses show that what was done by them out of their own will at that time, is being colored of being done against will during deposition. Evidence of these witnesses is silent as to why the attempt of accused Robin Diwan to keep deceased away from her parents and family while visiting Vaishno Devi, should not be accepted as natural wish of a man who is recently married to seek some moments with his wife to which wife, deceased in the present case, never resisted or complained of and whether and how the deceased was being harassed when the demand of Rs. 1.5 lacs made by mother in law and husband of deceased as deposed by PW2 and PW4, was not fulfilled. Did parents of the complainant have to take any steps to cause accused Robin and Darshana to withdraw this demand? Did they ever questioned to the accused for raising such demands? It is also very strange to note that at one hand, accused Robin Diwan who deposed to have joined these witnesses with deceased to Vaishno Devi on 05.04.2010, is alleged to have been trying to keep deceased away from her parents, on the other hand, it is deposed that deceased came to her parental house on 22.04.2010 i.e. only within 20 days of their visit to Vaishno Devi where she must have spent ample time with her parents. Why accused would allow the deceased to visit her parents so shortly when he would have been trying to keep her away from her parents? Thus the testimonies of these witnesses PW2 and PW4 do not inspire the confidence and it remains unproved that the accused persons raised the demand of dowry after their marriage.
12. In Ramesh Kumar v. State (Govt. of NCT of Delhi), 2014 (207) DLT 438, the Court held that:
“In order to succeed in charge under Section 498-A IPC, the prosecution required to prove that the appellants had subjected deceased Priyanka to cruelty, as defined in the explanation to the Section. It is not every cruelty which is punishable under Section 498-A of IPC. The cruelty, as defined in the explanation to 498-A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act.
The cruelty, so as to attract penal provisions, contained in Section 498-A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression ‘willful’ in the explanation to Section498-A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section498-A of IPC. Of course, the expression ‘cruelty’ would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498-Aof IPC.
If the woman is harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498-A of IPC. The expression ‘harassment’ has not been defined in Section 498-A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. But, it is not harassment of every nature which is punishable under Section 498-Aof IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.”
In Savitri Devi Vs Ramesh Chand and others 2003 CrLJ 2759, Hon’ble High Court of Delhi also observed that :
16. For the purpose of S. 498 A IPC which is peculiar to Indian families victim spouse is always the ‘wife’ and guilty is the husband and his relatives-near or distant, living together or separately. Ingredients of cruelty as contemplated under S. 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. Divorce. In constituting ‘cruelty’ contemplated byS. 498A IPC the acts or conduct should be either such that may cause danger to life, limb or health or cause ‘grave’ injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be “wilful” i.e. intentional. So to invoke provisions of S. 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and wilful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with marital life.
17. Similarly offence of ‘harassment’ is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is eating the very vitals of matrimony and tearing familial social fabric apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of “harassment of a woman” if done to coerce her or her relatives to fulfil the unlawful demands for property or valuable security.
18. The word ‘harassment’ in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to coerce any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to “harassment” as contemplated by S. 498A. Word ‘Coercion’ means pursuading or compelling a person to do something by using force or threats. Thus to constitute “harassment” following ingredients are essential:-
(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to pursuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfil unlawful demands for any property or valuable security.
Therefore, it is also crystal clear that, in order to establish the commission of offence under section 498A IPC, it is necessary to prove that woman is subjected to cruelty or harassment which should be different from word used in ordinarily and must bear the sting as required under section 498A IPC, by positive evidence. Death of a woman does not invoke any presumption fact that woman was meted out with any harassment.
In case, in hand, the testimony of witnesses lacks the specification as to how the deceased was harassed/treated/forced in order to fulfill the demand of Rs. 1.5 lakh or Rs. 6.5 lakhs. In his statement made to SDM i.e. Ex. PW2/A, Narender Pal specified two demands one of Rs. 1.5 lakh and another of Rs. 6.5 lakhs but made very evasive statement that mother-in-law of deceased had been mounting pressure for Rs. 6.5 lakhs . Similarly, he deposed as PW1 that “…Robin pressurized my daughter to bring Rs. 6,50,000/- for her sister’s marriage and to build home …. on 26.04.2010, my daughter Ritu made a call at 9:00 a.m. and 5:00 p.m. and disclosed that her mother-in-law is forcing her to ask for the said amount”. In same manner, PW4 Kamlesh stated to SDM that deceased told her on 26.04.2010 that she is being harassed for bringing money and deposed in Court that “on 26.04.2010, my daughter called me twice and informed me telephonically that she was being harassed by her in laws for said amount of Rs. 6.5 lakhs…… My daughter was being tortured and harassed by her in laws for money and might have been killed by them…..On 22.04.2018, when my daughter had come to visit our house, she had already lost a lot of weight and had informed me that she was being tortured and harassed by her in laws for money…”.
“Harassment “and “torture” are the qualifying terms for the treatment given to an individual. It is the conduct of accused towards victim. Same conduct may be perceived differently by different persons but irrespective of individual perceptions, the court is under obligation to examine if the conduct alleged had been grave or serious or of such magnitude that it is likely to cause grave injury to physical or mental health of a victim spouse, where victim spouse is a reasonable person or a person of average or normal sensibilities. Therefore composite picture should be drawn as to the acts, incidents or conducts so that it could be ascertained whether these amount to cruelty physical or mental. Unless such kinds of physical or mental ill-treatments when taken together lead to the inference of persistent cruelty charge of cruelty cannot stick.
The only deposition that deceased was harassed or tortured or she lost weight, is unable to highlight the conduct of the three accused enabling the court to examine its magnitude /gravity. Hence, this court holds that the evidence in respect of the harassment caused to the victim, which is one of the essential ingredient to be established to prove the offence under section 498A IPC, is also lacking in the prosecution case.
13. Therefore, in view of the above discussion, all of the three accused namely Robin Diwan, Ashok Kumar and Darshana are hereby acquitted of the offence charged under 498A IPC for inadequacy of evidence.
Announced in open Court on 27.04.2018 at 03.45 PM (Aanchal) Metropolitan Magistrate-04 (Mahila Court) West District Tis Hazari Courts: Delhi