Criminal Revision No.231/2017 IN THE COURT OF SH. PULASTYA PRAMACHALA SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Revision No. : 231/2017 Under Section : 498A/406/34 IPC FIR No. : 92/2003 PS : Pandav Nagar CNR No. : DLET01-010188-2017 In the matter of :- 1. SH. BABU LAL S/o. Late Gopal, R/o. Village & PS Pahasu, District Bulandshahar, U.P. 2. SMT. SARBATI W/o. Sh. Babu Lal, R/o. Village & PS Pahasu, District Bulandshahar, U.P. 3. SH. BRAHAM DEV S/o. Sh. Babu Lal, S/o. Late Gopal, R/o. Village & PS Pahasu, District Bulandshahar, U.P. 4. SH. RAJBIR S/o. Sh. Tejpal, R/o. 368, Gali No.3, Guru Ram Dass Mandir Marg, Mandawali Fazalpur, Delhi-110092. 5. SMT. PUSHPA W/o. Sh. Rajpal, R/o. 368, Gali No.3, Guru Ram Dass Mandir Marg, Mandawali Fazalpur, Delhi-110092. 6. SMT. VIDHYA DEVI W/o. Sh. Suresh, R/o. Village Alipur, PO Pali, PS Madrak, District Aligarh, U.P. Page 1 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 7. SH. RAJ KUMAR S/o. Sh. Babu Lal, R/o. H.No.120, Prem Vihar, Shiv Hanuman Mandir, Khora Colony, U.P. 8. SH. SATISH S/o. Sh. Babu Lal, R/o. H.No.120, Prem Vihar, Shiv Hanuman Mandir, Khora Colony, U.P. 9. SH. RAM AVTAR S/o. Sh. Babu Lal, R/o. H.No.120, Prem Vihar, Shiv Hanuman Mandir, Khora Colony, U.P. ............PETITIONERS VERSUS 1. STATE (GOVT. OF NCT OF DELHI) 2. MS. ARCHANA D/o. Sh. Gulab Singh, R/o. H.No.B-157, Pandav Nagar, Mother Dairy, New Delhi-110092. ...........RESPONDENTS Date of Institution : 04.09.2017 Date of Receiving : 05.09.2017 Date of reserving order : 29.11.2017 Date of pronouncement : 15.12.2017 Decision : Petition is partly allowed. ORDER
1. This revision petition is directed against two orders dated 10.08.2017 and 19.08.2017, passed by the trial court in a case titled as State v. Babu Lal etc., bearing FIR No.92/2003, under Section 498A/406/34 IPC, PS Pandav Nagar. Vide impugned order dated 10.08.2017, the trial court decided to frame charges against accused persons/ petitioners herein, on 19.08.2017 and vide impugned order dated 19.08.2017, the trial court framed charges for offences punishable under Section 498A/406/34IPC against petitioners herein.
Page 2 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 BRIEF FACTS OF THIS CASE :-
2. Briefly stated, this case was lodged on the complaint of Smt. Archana Raj and in her complaint dated 12.09.2002, complainant made following relevant allegations. She was married to Raj Kumar on 19.11.1999 at Delhi. Her husband was employed as teacher in a Government School. After her marriage her husband, mother-in-law and father-in-law passed taunts being dissatisfied with dowry articles. Her sister-in-laws Pushpa, Vidhya, Nand Kumari along with other in- laws started demanding plot in Delhi as well as a vehicle. After a month from marriage husband of complainant, Pushpa and Rajbir (husband of Pushpa) took jewelleries of the complainant on the pretext of keeping the same in locker. The jewelleries received by complainant from in-laws were taken by her father-in-law and mother- in-law on third day from marriage on the pretext that same would be given for use whenever required. In August 2000 complainant was pregnant when she was beaten by her mother-in-law and father-in- law. At that time, complainant was residing in Jagat Puri and thereafter, her husband with his parents shifted to Khoda village. When complainant visited that village, then she was beaten by her husband, Satish and Hakim. They also poured kerosene oil on her threatening that she would be burnt, if she defied them. Thereafter, complainant and her husband started residing in Jagat Puri. Her husband was given money time to time by parents of complainant, still he was not satisfied. In February 2001 complainant had gone to native place of her husband with her husband. Parents of complainant also visited that place, however, they were insulted by elder brother-in-law, husband and other in-laws of the complainant. They demanded Rs.20,000/- in cash and thereafter, parents of complainant brought her with her daughter to Delhi. In Delhi husband of complainant again assured not to assault complainant, if Page 3 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 Rs.20,000/- was given to him. This amount was again given to him, still behaviour of husband and other in-laws of complainant did not change. During pregnancy of complainant, mother-in-law and her husband used to assault the complainant and they had went away from nursing home. When complainant gave birth to a daughter, then she was taunted by her mother-in-law, father-in-law and husband. After two and half months from the birth of her daughter, mother-in- law, husband and Pushpa abused complainant and threw her daughter on floor resulting into injuries to the daughter. Husband of complainant used to change house frequently. Some time he used to keep complainant at his native place, some times at Khoda where Satish and Ram Avtar were residing. Husband, Satish and Ram Avtar used to beat complainant at this place. In 2001 on next day of Diwali, complainant had to take shelter in the house of neighbor because she was severely beaten by her brother-in-law Satish and husband. In-laws of complainant used to visit her house time to time. On 20.06.2002 husband of complainant had left her by locking her from outside. Police was called at 100 number and thereafter, police opened the door. At that time, matter was resolved with intervention of police, but on same evening husband of complainant gave sever beatings to her. On 20.07.2002 husband of complainant deserted her while taking away all the certificates and medical documents of complainant. On 03.09.2002 complainant left the tenanted house and started residing with her parents. Her streedhan was still lying with her husband and in-laws.
3. After completion of investigation, IO filed chargesheet on 16.07.2004. Thereafter, on 19.08.2017 charges were framed for aforesaid offences against all accused persons/ petitioners. GROUNDS : –
4. Being aggrieved of the decision taken by the ld. trial court in this Page 4 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 case, petitioners have preferred this petition on the following relevant grounds :-
● That the trial court failed to appreciate that whenever there are two views arising from the evidence on records i.e. one in favour of prosecution and another in favour of the accused persons, the court had to take consideration in favour of the accused. ● That the trial court failed to appreciate the entire evidence and the documents on record including the statement under Section 161 Cr.P.C. There is not even a single averment as to when the accused persons, who are residing at separate and far away premise, reached in the matrimonial house, besides where the complainant was residing and the method and manner in which, she was treated with cruelty.
● That complainant totally failed to describe in the FIR or in her first complaint, any specific date and time, when she was treated with cruelty by which particular accused and the method and manner, in which she was treated with cruelty.
● That the trial court failed to appreciate that complainant and her husband were residing in Delhi, whereas the other accused mentioned in the FIR were residing out of Delhi. No specific date has been mentioned by complainant when the particular accused arrived at her place of residence or committed cruelty to her. ● That the trial court failed to observe that there is no proof regarding the jewellery as alleged by the complainant. In one complaint, complainant submitted that “after one month of her marriage, her husband had taken all her jewelleries stating that he would keep the same in locker, but after some time she came to know that her mother-in-law, father-in-law, sister-in-law and husband had sold out her jewelleries and had purchased a plot in Khora colony”. Whereas in the FIR she stated that “after one Page 5 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 month of her marriage, her husband, sister-in-law Pushpa and brother-in-law Sh. Rajbir took her jewelleries by saying that they would keep in locker.” It is the first time, when complainant improved her version and said that her mother-in-law and father- in-law had taken the jewelleries, which was gifted by her in-laws on third day of marriage. Complainant concocted allegations as and when she got the opportunity.
● That prosecution failed to procure the invoice of the jewelleries alleged to have been given to the complainant or to record the statement of concerned jewelleries or any other merchant for the items mentioned in the complaint, no prima facie case under Section 406 IPC exists and petitioners are liable to be discharged by court and the impugned orders may kindly be set aside/ quashed.
5. Ld. counsel for petitioners argued that all the petitioners except husband (Sh. Raj Kumar) had been residing separately beyond Delhi and there is no specific allegations against other petitioners. He further submitted that there is contradiction in initial complaint with second complaint (copy of same was obtained by petitioner from DWC cell and filed in 125 Cr.P.C proceedings. Therefore, with permission of trial court, certified copy was placed in this file.) He further submitted that in the year 2001 complainant wrote that there was no demand of dowry. He further submitted that no particular date was mentioned by complainant about visit of other in-laws to cause cruelty. He further argued that no offence under Section 498A and 406 IPC made out against petitioners except husband. Streedhan generally lies at the place where complainant resides. He further argued that in the initial complaint, complainant had not made allegation about entrustment of streedhan to other petitioner except Page 6 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 her husband. Later on, version of complainant was improved in FIR, with only purpose to include others. Ld. counsel further argued that father of complainant did not make any allegation regarding any demand by in-laws, in his statement under Section 161 Cr.P.C and there is no supporting document in support of any allegation.
6. Per contra, ld. Addl. PP for State argued that even unlawful demand is covered in Section 498A IPC and allegation of dowry is not so required. He further argued that there is disclosure of allegations of beating and circumstances of mental cruelty and documentary record of every allegation is not possible. He further argued that allegation of misappropriation of jewelleries are made in both complaints. APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
7. During arguments, ld. counsel for petitioners referred to another complaint of complainant given before Delhi Women Commission submitting that a certified copy of this complaint was obtained from proceedings under Section 125 Cr.P.C initiated by complainant and it was filed on the record with permission of ld. MM. In this complaint, complainant had alleged that her jewelleries were taken away by her husband after a month from her marriage and after some time, she came to know that mother-in-law, father-in-law, sister-in-law and husband of complainant had sold her jewelleries and purchased a plot in the name of her brother-in-law at Khoda. Ld. counsel submitted that such fact disclosed in previous complaint of the complainant, shows that in the complaint given to the police false allegations were made against Pushpa and Rajbir regarding taking jewelleries from the complainant.
8. I have perused the record. Undisputedly this previous complaint of the complainant gives a different account of entrustment of jewelleries received by complainant from her parents. It has to be seen that at the time of making both the complaints, much water had Page 7 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 flown and there could not be any scope of a new development taking place so as to change the factum of entrustment of jewelleries. It is well apparent that names of Pushpa and Rajbir in the second complaint given to police were added later on. In the previous complaint complainant had alleged that her husband had taken her jewelleries, which was sold by her husband, parents-in-law and sister-in-law. However, as far as entrustment of jewellery is concerned, allegation is confined to husband only. Rest part of the allegations were apparently based on some subsequent information if received by complainant. Unfortunately, police did not make any investigation on the lines of such allegations for reasons that such allegations were not made in the complaint given to the police. For this situation, it is only complainant, who is to be blamed. It is well apparent that complainant took name of Pushpa and Rajbir in the subsequent complaint by way of embellishing the allegations so as to incorporate additional names.
9. While framing charge, especially in the cases like in hand, court has to be cautious in the sense that it is natural tendency to incorporate as many names as possible in the complaint. However, the court has to look for specific role of every alleged person, so as to find out a prima facie case based on strong suspicion being made out against such person. The comparison of two complaints do show that name of Pushpa and Rajbir as the persons taking jewelleries form the complainant after a month from her marriage, was exaggerated allegation. If the previous complaint and second complaint are read in harmonious manner, then the only allegation is made out against the husband of the complainant, who took jewelleries from the complainant to keep them in locker. In the first complaint, there were allegations against mother-in-law, husband and sister-in-law of the complainant to the effect that when complainant enquired about plot Page 8 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 purchased in Khoda, then she was beaten. However, for offence under Section 406 IPC, it is the entrustment and misappropriation of the entrusted property, which guides the court. Such allegations are only found to be made against husband of the complainant. Trial court has framed charge for offence under Section 406 IPC against all named accused persons, which in my opinion is certainly fallacious because there is no specific allegation of entrustment of property and misappropriation of the same against other accused persons except husband. There is one vague allegation in the subsequent complaint that mother-in-law and father-in-law of complainant had taken her jewelleries received from her in-laws. However, such allegations were not made in the first complaint, which is not a natural scenario to take place. Especially, when in the first complaint also complainant had made a number of allegations. In these circumstances, I find that strong suspicion for a case under Section 406 IPC can be raised only against husband of the complainant, rather than other accused persons.
10.As far as allegations for offence under Section 498A IPC are concerned, on compound reading of both the complaints I can find consistent allegations of continuous torture in the name of physical assault or abusing, taunts etc. only against husband, mother-in-law and sister-in-law namely Pushpa. There are some allegations against father-in-law, brother-in-laws namely Satish and Ram Avtar and Jeth, but these allegations do not reflect any continuous act on their part so as to be covered within definition of cruelty, which could be related to any unlawful demand.
11.To explain the requirement of law, I would refer to observations made by High Court of Delhi in the following manner. In Sanjeev Kumar Aggarwal & Ors. v. State & Anr., Crl.M.C. No.2645-53/2005, decided on 12.10.2007, explaining ingredients of Section 498-A IPC Page 9 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 and the term ‘cruelty’, Delhi High Court held that :-
i. Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
ii. Explanation (b) to Section 498-A provides that cruelty means 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.
iii. Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. It is only, where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the Section.
12.Thus, in order to bring home the assumption of guilt under Section 498-A IPC, the prosecution has to establish following ingredients :-
i. The accused is either husband or relative of the husband of a woman, who subjected such woman to cruelty, and ii. The accused persons willfully conducted themselves in such manner as was likely to drive that woman to commit suicide, or iii. Which caused grave injury or danger to life, limb or health (mental or physical) of that woman, or iv. Which caused harassment to that woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security, or v. To harass woman or any person related to that woman on account of fulfillment of that woman or her relatives to meet unlawful demand.
13.One or two instances of incident of conflict or assault related to any demand cannot be sufficient to invoke Section 498A IPC against such person.
14.As far as contentions of petitioners that complainant with her husband were residing in Delhi and they had been residing at native place, is concerned, I find that allegations show that complainant had been visiting and residing with other members of her matrimonial Page 10 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.231/2017 home and her mother-in-law as well as sister-in-law and Pushpa are alleged to keep visiting her place in Delhi on regular basis. Therefore, such argument cannot be a basis to ignore the aforesaid allegations of the complainant.
15.In view of my foregoing discussions and findings, it is directed that trial court shall proceed further with the trial against accused Raj Kumar, Sarbati and Pushpa for offence under Section 498A IPC and against accused Raj Kumar for offence under Section 406 IPC. Revision petition is accordingly partly allowed.
16.Remaining accused persons stand discharged and they shall appear before the trial court on the date fixed to furnish bond under Section 437A Cr.P.C each in the sum of Rs.25,000/- with one surety in the like amount.
17.TCR be sent back along with copy of order to the trial court. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court PRAMACHALA No.3, Karkardooma Courts, Delhi Date: 2017.12.15 16:48:03 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 15.12.2017 Special Judge (PC Act) CBI, East (This order contains 11 pages) Karkardooma Courts, Delhi Page 11 of 11 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi