IN THE COURT OF MM02, MAHILA COURT, NORTH WEST, ROHINI COURTS, DELHI Presided by : Ms. Aakanksha Vyas FIR No. : 444/97 PS : Jahangir Puri U/s 498 A/406 IPC State v. Shyam Babu J U D G M E N T : a) Case no. : 5347512016 b) Name of the complainant : Sajni c) Name parentage and address of accused : (1) Shyam Babu late S/o Sh.Munni Lal (2)Gyan Chand S/o Sh.Shyam Babu, both R/o C1457, Jahangir Puri, Delhi. d) Offences charged : 498 A/34 & 406 IPC e) Plea of accused : Not guilty f) Date on which judgment was reserved : 28.02.2018 g) Final Order : Acquitted h) Date of decision : 23.03.2018 FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 Brief Statement and Reasons for Decision: JUDGMENT 1.
On 15/7/1997, a complaint was lodged by the complainant herein namely Sajni in the CAW cell to the effect that she had been subjected to cruelty on account of demand of dowry by her in laws and further that all her belongings were still with them. As per the chargesheet, efforts were made so that a compromise can be reached but they failed and eventually the FIR no. 444/97 was lodged. After completion of investigation, chargesheet was filed against the accused Shyam Babu (father in law), Gian Chand (husband), Rajkumari (mother in law); Rani, Kamlesh, Maya and Reema (all sisters in law). The accused were summoned and vide order dated 31/8/2004, accused Rani, Kamlesh, Maya and Reema were discharged. Further, during the trial, proceedings against accused Rajkumari were abated as she expired and hence the accused before this court are only Shyam Babu (father in law) and Gian Chand (husband).
2. To prove its case, the prosecution examined nine witnesses. PW1 is the complainant and she proved her complaint Ex. PW1/B and got exhibited the list of dowry articles Ex. PW1/A witnessed by her. She got also exhibited complaint made her to the Lieutenant Governor as Ex. PW1/C, marriage photograph and card as Ex. P1 and Ex. P2 seized vide memo Ex. PW1/F and the seizure memo of the recovered dowry articles i.e. Ex. PW1/D and the seizure memo of the balance articles Ex. PW1/E, the memos being witnessed by her. PW2 is the police official who proved the registration of FIR i.e. Ex. PW2/A (OSR) and her endorsement on the rukka i.e. Ex. PW2/B. PW3 and FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 PW4 are the mother and father of the complainant. PW5 is the police official who assisted the IO during investigation and he deposed about the preparation of the seizure memo Ex.PW1/D in his presence and witnessed by him. PW6 and PW7 are the neighbors of the accused who are witnesses to the seizure memo Ex. PW1/D. PW8 is the CAW cell inquiry officer as well as the second IO (investigating officer) of this case. PW9 is the first IO of this case. Thereafter prosecution evidence was closed. The testimony of the PWs shall be discussed during appreciation of evidence.
3. Statement of the accused persons was recorded under section 313 Cr PC. They denied the allegations of the complainant in toto and pleaded instead that the complainant falsely implicated them as she wanted the accused Gian Chand to stay in her parental house as Ghar Jamai. However the accused did not choose to lead defence evidence. Accordingly final submissions were heard.
4. I have carefully perused the record. Needless to state that the complainant is the most important witness in the present case. In her complaint, the complainant has stated that she got married to the accused Gian Chand on 9/11/1995. Her parents had spent beyond their capacity at the time of her marriage but the accused were not happy with the dowry. They had demanded a motorcycle, gas chulha and cash and when the complainant could not fulfill these demands, they beat her a lot and taunted her and abused her and they used to frequently beat her and abuse her. Further accused Shyam Babu and her mother in law used to say that if complainant did not get cash from her father, they will tell accused Gian Chand to kill her. The complainant alleged that on 7/7/1997, she was thrown out of her matrimonial house at 11:00 pm after being beaten. But a compromise took place and she went back to her matrimonial house but the accused persons and her sisters in law locked her in a room and then threw her out at FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 midnight. The complainant also alleged that when she reached her parental house, her arms and legs were blue and her nose was bleeding. She also stated that all her belongings are lying in her matrimonial house. The complainant has more or less reiterated these allegations in her testimony.
5. It was contended by the Ld. APP for the state that the testimony of the complainant has not been impeached during cross examination and hence the case of the prosecution stands proved beyond reasonable doubt.
6. It is pertinent to note that the complainant was initially recalled for cross examination on hearing dated 29/5/2007 but as the Ld. Defence counsel failed to cross examine her, the opportunity of the accused for cross examination of the complainant was closed. Subsequently however the witness was recalled for cross examination on the application of the accused under section 311 Cr PC which was allowed vide order dated 28/1/2010. She was cross examined partly on 26/4/2011 and then again on 12/10/2011. Thereafter on two consecutive occasions, the complainant was summoned for cross examination, but she failed to appear and hence vide order dated 6/11/2017, the court closed the cross examination of the complainant as she failed to appear in the court. In other words, the Ld. Defence counsel did not have the opportunity to fully cross examine the complainant as she failed to appear in the court for cross examination. In Ripen Kumar v. Department Of Customs 2001 CriLJ 1288, it has been held that, “It is only when the witness is permitted to be crossexamined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been crossexamined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be crossexamined then such a statement cannot be termed as an FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 evidence of the witness nor can it be read in evidence. It must be remembered that where part crossexamination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examinationinchief and crossexamination. That statement alone will form evidence.”
7. Now in the present case, the Ld. Defence counsel was unable to cross examine the complainant fully as she did not appear in the court for her cross examination. Consequently, her testimony has no value in the eyes of law. Even otherwise, the testimony of the complainant in chief examination does not salvage the case of the prosecution. Though the complainant has alleged that the accused persons demanded motorcycle, gas chulha and cash from her and when she failed to fulfill these demands they beat her, taunted her and abused her. However she failed to disclose any specific date or occasion on which the said demands were made. During cross examination the complainant was specifically questioned as to how much amount was demanded from her by the accused but she stated that she did not remember. Further the complainant also deposed that after the compromise when she came back to her matrimonial house in July 1997, the accused persons and her sisters in law locked her in a room and then threw her out at midnight. The complainant also alleged that when she reached her parental house her arms and legs were blue and her nose was bleeding. However strangely despite the serious injuries of the complainant, no call on 100 no. was made nor was any medical examination of the complainant got conducted. In fact as per the testimony of the complainant, she was turned out of the matrimonial house 45 times but there is no police complaint which has been made by the complainant on any occasion.
FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8
8. Further during cross examination, the complainant had also deposed that she had filed a case for divorce against accused Gian Chand on the ground of cruelty but it was dismissed as it was not proved by her. Albeit cruelty does not have exactly the same meaning under Hindu Marriage Act as under section 498A IPC, the definition under section 498A being more restricted, they can overlap. The fact that the complainant was unable to prove cruelty as admitted by her in the divorce case also weakens the import of her allegations.
9. The remaining witnesses i.e. the mother in law and the father in law of the complainant are merely hearsay witnesses as none of the alleged incidents of cruelty took place in their presence.
10. In so far as the offence under section 406 IPC is concerned, in order to prove the same, it is necessary for the prosecution to prove that the complainant entrusted her istridhan articles to the accused persons and they misappropriated or converted the same to their own use. The list of istridhan articles furnished by the complainant is Ex. PW1/A. As per the prosecution list of istridhan items recovered from the house of the accused is Ex. PW1/D and the list of the balance istridhan items is Ex. PW1/E.
11. Now let us look at the case of the prosecution. Firstly, there are no bills or receipts on record to prove the ownership of the alleged istridhan items. During her partial cross examination, the complainant deposed that all the purchase receipts were available with her at the time of marriage and they were handed over to the police. But they do not form part of the court record. Having said so, it is also apt to look at the ingredients of section 406 IPC. In Anu Gill v. State and Anr. 92 (2001)DLT 179, it has been held by the Delhi high Court that:
FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 “To constitute the offence under section 406 IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant.”
Further in Pehlad kumar and others v. State of Haryana II (1992) DMC 259, it was held that:
“while there are specific allegations about the entrustment of certain articles to the husbandPehlad and motherinlaw, the allegations with regard to the entrustment to the other petitioners are general, vague and not specific. Though certain articles are enumerated, a sweeping statement has been made by the complainant that these articles have been entrusted to the other relations of her husband, namely fatherinlaw, her brotherinlaw and wife of one of the brothersinlaw. The complainant has not specifically mentioned as to which item of dowry was entrusted to which of these other petitioners. Therefore, on such vague and general allegations it cannot be stated that the complainant has made out a prima facie case against any of the other petitioners than her husband and motherinlaw under Section 406, IPC.”
12. In her complaint Ex. PW1/B, the complainant has simply alleged that all the items given at the time of her marriage are with the accused persons but there is no averment as to entrustment of the articles, any demand made for them and the refusal of the accused persons to accede to that demand. Even in her chief examination, the complainant has not made any specific allegations to this effect. The complainant has not deposed as to which item of istridhan was handed over to which of the accused persons. There is no allegation that the istridhan articles had been demanded by the complainant FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8 from the accused persons on any specific date or occasion nor is there any allegation that despite demand of the complainant, the istridhan articles were not returned to her. It was contended by the Ld. APP for the state that articles mentioned in Ex. PW1/D were recovered from the house of the accused which corroborates the case of the prosecution qua section 406 IPC. Now, it is not out of the ordinary that the belongings of the complainant are in her matrimonial house where she was staying. However as stated above in the absence of the specific allegations of the complainant as aforesaid, the ingredients of section 406 IPC are not met.
13. Therefore the conclusion derived from the careful scrutiny of the evidence on record is that the offences charged against the accused persons are not proved beyond reasonable doubt. Accordingly the accused persons stand acquitted of the offences charged.
Announced in open Court (Aakanksha Vyas) on this 23th day of March, 2018 Metropolitan Magistrate Mahila Court02,North West Rohini Courts, Delhi FIR no.444/1997 State vs. Shyam Babu Page number 8 of 8