IN THE COURT OF MM (MAHILA COURT02) (SOUTHWEST), DWARKA COURTS, DELHI PRESIDING OFFICER: NEHA, DJS. IN THE MATTER OF : State Vs. Anuj Kapoor & Anr. FIR No. 140/10 PS: Nanakpura U/s 498A/406/34 IPC Date of Institution : 12.12.2012 Date of reserving of order : 26.11.2018 Date of Judgment : 11.01.2019 JUDGMENT
1. Serial No. of the case : 248/16 2. Name of the Complainant : Neha Kapoor 3. Date of complaint : 19.03.2010 4. Name of accused person :1. Anuj Kapoor S/o Late Parvesh Kapoor 2.Veena Kapoor W/o Late Parvesh Kapoor Both R/o Flat no.1, Swastic Residency, Narayan Vihar, Kargi Road, Dehradoon, Uttrakhand. 5. Offence charged : U/s 498A/406/34 IPC 6. Plea of accused : Not guilty 7. Final Order : Acquitted FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 1 of 27 PS: Nanakpura Counsels for the parties. Ms. Rajesh Kumari, Ld. APP for the State.
Sh. Aklank Jain, Ld. Counsel for both accused persons.
BRIEF REASONS FOR ORDER:
1. The accused persons namely Anuj Kapoor and Veena Kapoor have been chargesheeted for committing offences punishable under Section 498A/406/34, Indian Penal Code (45 of 1860) (hereinafter referred to as “IPC“). It has been alleged by the prosecution that during the subsistence of marriage of accused Anuj with complainant Neha, both accused, in furtherance of their common intention, subjected the complainant to cruelty to meet unlawful demands. It is also alleged that accused persons were entrusted/having dominion over stridhan articles of complainant which they misappropriated to their own use and did not return to the complainant despite demand.
2. Complaint was made and an FIR was registered. IO conducted the investigation. After completion of investigation, the present chargesheet has been filed for offences punishable under Section 498A/406/34 IPC against accused Anuj Kapoor (husband) and Smt. Veena Kapoor (motherinlaw).
3. Cognizance of offence was taken and both accused were summoned to face trial. The copy of the chargesheet was supplied under Section 207 Cr.P.C. to the accused persons.
4. Vide order dated 11.12.2014, charge for offence u/s 498 FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 2 of 27 PS: Nanakpura A/406/34 IPC was directed to be framed against both accused. Accordingly, charge for offence u/s 498A/406/34 IPC against both accused was framed, to which they pleaded not guilty and claimed trial.
5. Prosecution Witnesses have been summoned for evidence and total 11 prosecution witnesses have been examined to prove the case of the prosecution against the accused persons.
6. PW1 Ms. Neha Kapoor is the complainant. She has deposed that she married accused Anuj Kapoor on 03.02.2005. It was a love marriage and she informed about the marriage to her parents, through her uncle on 05.02.2005. Initially her parents got angry but later they organized a function (a lunch for friends and families of both the sides) on 07.02.2016. The said function was celebrated as a marriage function. All the articles including jewelleries, T.V. etc. were given by her parents in that function. She came to her matrimonial house at Subhash Nagar, Delhi. On the very same day, her motherin law namely Veena Kapoor took all her jewelleries on pretext of safe keeping and assured her that she would handover the same to her whenever she needed.
7. PW1 has further deposed that her husband used to get angry on petty things. Whenever she used to ask for her stridhan from her motherinlaw for any function, her motherinlaw used to refuse to handover the same. This used to happen on almost every function like Diwali, Karva Chauth etc. Whenever she used to discuss this matter with her husband, he used to get angry and beat her. On the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 3 of 27 PS: Nanakpura occasion of Diwali 2005 also, her husband beat her up on the same issue. On first marriage anniversary, her parents came to her matrimonial house and gifted various articles, including gold articles and cash etc. to her and the accused persons. After her parents left, her husband, motherinlaw, sisterinlaw namely Meenu Juneja started giving taunts to her that the articles given by her parents were of sub standard quality. On 01.12.2005, she gave birth to a daughter. Her motherinlaw was not happy as she was expecting a male child. She also refused to take her daughter in her lap. Whenever she used to talk on this issue with her husband, he did not use to support her and beat her up. Her husband used to come late at night and completely drunk and whenever she objected, he used to give her abuses and beat her up.
8. PW1 has further deposed that in July 2006, her mother inlaw retired from her service. All inlaws planned to shift to Uttarakhand. However, the same was not informed to her. After about a month, they shifted to Uttarakhand. One week prior to first birthday of her daughter, her husband told her to ask her parents to bring Rs. 2 Lakh in the birthday of the daughter as he was planning to start a business. When she objected to the demand, her husband got angry and said that he would send her back to Delhi, if the demand was not met. She called her father and told him that Anuj was planning to start a small business and she asked him to bring Rs. 2 lacs on birthday of daughter. Her parents gifted various articles including gold jewellery and cash. Her father also gave Rs. 2 lakhs to her which she handed over to her husband. When her parents left, her husband, motherin FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 4 of 27 PS: Nanakpura law and sisterinlaw started giving taunts that the goods brought by her parents were not as per their expectations.
9. PW1 has further deposed that her husband took a rented shop at Rajpur Road, Dehradun and started doing business. She used to do all the household chores and also used to help her husband at his shop. Despite all her efforts, her husband used to get angry on petty issues and started beating. Her husband did not use to give her any money for her daily expenses. He also started forcing her to do some job. Due to this, she took up a job in Himalayan Public School, Dehradun. She alone had to manage both her job and school and also look after her daughter. When she started doing the job, things went good for 23 months but the situation again changed. In Dehradun also, her motherinlaw did not hand over her jewellery to her whenever she asked to give the same for wearing in any function. She used to say that the same were lying in a bank locker.
10. PW1 has further deposed that in 2008 on occasion of Lohri, her husband beat her mercilessly when she asked for her jewellery. On 23.07.2009, her husband called her to cook dinner as he was on the way back to home. Her husband and motherinlaw came to her and took her inside the room of her motherinlaw. Both accused started beating her mercilessly without any reason. Her husband also forced a pillow on her face to kill her. Somehow, she came outside the room and rushed towards the main door but she found that the door was locked. She was bleeding from her forehead and near her left eye. She shouted for help but no one came for her FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 5 of 27 PS: Nanakpura rescue. She called her parents and informed her father about the incident. Her husband snatched the phone. Her father called back on that number but she was not able to pick it up. Her father immediately called the husband of her sisterinlaw namely Rakesh Juneja and also to the Mama of her husband namely Arun Gaba. Thereafter, her husband shouted at her and opened the main door. She picked her daughter and left the house. Someone informed her husband that since he had mercilessly beaten her up, he would be in trouble. Thereafter, her husband came to her and got her talk to Rakesh Juneja who asked her to stay quiet and assured her that he would settle down the issue. Thereafter, her husband took her to Sunder Palace Hotel, Dehradun. They spent a day there. In the meantime, relatives from both the sides called on the mobile phone of her husband and they all assured them to stay quiet in order to save their matrimonial life. On the assurance of relatives, she went to her matrimonial house.
11. PW1 has further deposed that in December 2009, her husband asked her that he had booked train tickets for her and her daughter so that she could visit her parent’s house. When she reached Delhi, she called her husband but the phone was switched off. She came to know from the neighbours that the house was locked and even the car was not there. Later on, she came to know that her husband had come to Delhi on the same day to her uncle’s house. Her husband told her uncle to keep the complainant in Delhi. Thereafter, her husband went away. She called him but he did not take her call. In the night, her husband called her and asked her that there was no need for her to FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 6 of 27 PS: Nanakpura come to Dehradun. She also came to know that they had filed a false complaint against her that she voluntarily left her matrimonial house. Her husband also filed a false divorce case against her in Dehradun in 2010. She was left no option but to complain to the police. Hence, she made a complaint to CAW Cell which is Ex. PW1/A.
12. PW1 has further deposed that when she left Dehradun, there was only one bag with her which has only some clothes of her and her daughter. All her istridhan articles were lying with her mother inlaw. She handed over the marriage photographs and other documents to Police which was seized vide Ex. PW1/B. She handed over the list of articles which is Ex. PW1/C. She proved tickets booked by her husband in December 2009 as Ex. PW1/D and the complaint filed by her at PS Madhu Vihar as Ex. PW1/E.
13. PW2 Sh. Kuldeep Chander Trikha is the father of the complainant. He has deposed that his daughter’s marriage was solemnized on 03.02.2005 and it was love marriage. Keeping in mind the reputation and prestige of the families, he decided to perform an arranged marriage on 07.02.2005 at his house and some ceremonies were done at Birla Mandir. He arranged lunch for the relatives from both the sides. The photographs of marriage are Ex. PW2/A. After giving sufficient dowry articles, he sent his daughter to her matrimonial house. When his daughter came to his house on phera ceremony, she told that her inlaws taunted her for bringing less dowry.
14. PW2 has further deposed that on the next day, the in FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 7 of 27 PS: Nanakpura laws of his daughter arranged a function in the name of reception. He alongwith his relatives went there and gave sufficient articles. On 01.12.2005, his daughter gave birth to a girl child. On this, her in laws taunted her that they were already burdened with his daughter and they have got more burden now. They were not happy with the girl child. After going to matrimonial home at Subhash Nagar from the hospital, the behaviour of the accused persons did not change. They did not even provide proper meal to the complainant and often taunted that her parents had not given anything in the marriage. On several occasions, the accused tried to beat the complainant. On one night, the complainant called him and informed that she was standing on the road and she complained about misbehavior of accused Anuj Kapoor in the matrimonial house. When he reached there and confronted accused Veena Kapoor, she felt sorry.
15. PW2 has further deposed that in the month of June 2006, motherinlaw of complainant retired from job. All of a sudden, they said that they were going to small town at Uttrakhand. They sold their property at Subhash Nagar and shifted to Dehradoon. As the accused were not providing basic amenities to his daughter and her child, she joined a school on provisional basis to meet her basic needs.
16. PW2 has further deposed that accused Anuj also demanded salary of the complainant. Both accused beat his daughter and also misbehaved with her. On 23.07.2009, accused Anuj came home all drunk and beat the complainant and even coaccused Veena asked Anuj Kapoor to beat the complainant and teach her a lesson. In FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 8 of 27 PS: Nanakpura the night at about 12 midnight, the complainant called and narrated about the incident. Thereafter, he informed brotherinlaw (Jija) and uncle (Mama) of accused Anuj and told them that he was going to Dehradun. Uncle of Anuj said that he was not aware of all these things and he assured that he would talk to the accused persons. Suddenly, accused Anuj asked his daughter that if she wanted to go to Delhi, he would take her there. While Anuj was coming to Delhi, his uncle called him and asked him not to go to Delhi but to stay at some hotel. Thereafter, accused Anuj and the complainant went to hotel Sunder Palace Dehradun and remained there as there were several bruise marks on the body of his daughter. In the morning, he alongwith his wife and brother inlaw went to the house of mama of accused Anuj at Ramesh Nagar. They all showed their unawareness about the issue and they called Anuj and talked to him.
17. PW2 has further deposed that in the month of December 2009, his daughter asked accused Anuj that she wanted to go to Delhi. Accused deboarded his daughter at railway station at Dehradun and himself came to Delhi by his car to his friend’s house namely Surender Pal Vij in the evening. He picked his daughter from railway station. In the evening, his friend Surender Pal Vij came to his house and told that accused Anuj, his mother and his mami had come to his house and asked him to arrange a meeting with them. Thereafter, they told these facts to his daughter to which she got upset and started weeping. His daughter burst out and narrated the entire facts to his friend. Thereafter, they went to the house of his friend at around 12 noon on FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 9 of 27 PS: Nanakpura the next day. Accused Anuj, his mother and his mami were present in the meeting. Both accused demanded additional dowry and when the demand was objected to, both accused left the house. Thereafter, accused Anuj had filed a complaint against his daughter that she had left matrimonial house on her own. After few days, he received copy of divorce petition filed by accused Anuj against Neha at Dehradoon. Thereafter, his daughter filed a complaint before CAW Cell on which FIR was registered.
18. PW3 Sh. Surender Pal Vij is the friend of the complainant’s father. He has deposed that on 20.12.2009, both accused with Mami of accused Anuj came to his house and told him to arrange a meeting with complainant’s parents. When he inquired about the complainant, both accused said that she had already come to Delhi. The meeting was arranged on 21.12.2009 where mother of accused Anuj demanded money for establishing business for accused Anuj. Heated arguments took place and both accused alongwith mami ji left the house.
19. PW4 Smt. Ranjana Trikha is the mother of the complainant. She has deposed that on 03.02.2005, her daughter solemnized love marriage. They went to meet Anuj and Neha at his mama’s place and decided that the marriage would be solemnized in Birla Temple on 07.02.2005. On 07.02.2005, after marriage Anuj and his entire family was called for lunch. They gave jewelery and other articles to her daughter and her inlaws. On 01.12.2005, one grand daughter was born. After birth of the girl child, the inlaws of Neha FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 10 of 27 PS: Nanakpura were not happy because she gave birth to a girl child. Accused Anuj and Veena started harassing the complainant for bringing more dowry. After retirement of motherinlaw, they shifted to Dehradoon. They went to Dehradoon on first birthday of grand daughter on 01.12.2006. During their visit, they gave Rs. 2 lacs cash and gold article. They also gave some amount for scooter. In 2006, Neha was again tortured but she did not inform them anything as it was love marriage.
20. PW4 has further deposed that on 23.07.2009, they got a call from Neha at late night. Neha said that she was out of the house in mid night and she was beaten by her motherinlaw and husband. She was thrown out of the house with small child. They told her that they would come to Dehradoon. The mama of Anuj living in Delhi was informed by Anuj that Neha had left the house. Mama called them and asked not to go to Dehradoon and he would patch up. Mama called Anuj and asked him to take Neha and child in a hotel for two days. After two days, Anuj, Neha and child went back to the matrimonial home but still the accused persons tortured her and asked her to bring more dowry. On 20.12.2009, Anuj asked Neha to go to Delhi and Neha came to Delhi with child in train. On the same evening, Surender Vij called to inform that Anuj and his mother came at his house to keep a meeting with them. On 21.12.2009, the meeting was called and both accused asked Neha to give in writing that she would not leave the house without permission and that the accused were not harassing her. They also asked for more money. Her husband did not allow for anything, as the daughter was thrown out of the house after beating.
FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 11 of 27 PS: Nanakpura
21. PW5 Sh. Rajiv Chopra is jija of father of complainant. He has deposed that after marriage, he had come to know from Kuldeep that there was some problem in the matrimonial life of the complainant. He also came to know that the complainant had come to Delhi on 20.12.2009. He attended the meeting on 21.12.2009 where he found that both accused were demanding dowry because of birth of girl child to the complainant.
22. PW6 Subhash Chand is a friend of the complainant’s father. He has deposed that on 06.02.2005, Kuldeep had demanded Rs. 50,000/ from him to solemnize marriage of complainant.
23. PW7 Gopal Krishan is also one friend of the complainant’s father. He has deposed that on 06.02.2005, Kuldeep had requested for an amount of Rs. 50,000/ for expenses of his daughter’s marriage.
24. PW8 Gaurav Bajaj is the son of tent house proprietor. He has deposed that Bajaj Tent House was run by his father and the business was closed two years ago after death of his father. The death certificate is Ex PW8/A. He proved that the document Ex PW8/B was in the handwriting of his father.
25. PW9 SI Krishanji (retd.) is the first IO of the case. He served notice to complainant to produce marriage card, photographs and other relevant documents which were seized vide Ex PW 9/B. The Notice u/s 91 Cr.P.C is Ex PW 9/A.
26. PW10 SI Hari Singh (retd.) is also second IO of the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 12 of 27 PS: Nanakpura case. He has deposed that he had interrogated accused persons and also went to Dehradoon to recover the istridhan but no recovery was effected. He also visited Sunder Palace Hotel in Dehradoon to receive record of stay of the complainant with accused Anuj in the hotel. He verified the tent bill and marriage certificate from Akhil Bharat Hindu Maha Sabha.
27. PW11 Inspector M C Pandey is one of the IO with whom investigation remained for sometime. He served notice to the complainant under section 91 Cr.P.C which is Ex. PW11/A.
28. All the witnesses were cross examined. The prosecution evidence was closed vide order dated 02.06.2018. Accused were examined under Section 313 Cr.P.C r/w Section 281Cr.P.C. Substance of incriminating evidence was put to them separately. Accused persons denied all the incriminating evidence.
29. The accused persons examined themselves in defence. Thereafter, the matter was fixed for defence evidence.
30. DW1 is Ms. Veena Kapoor is the accused herself. She has deposed that she has celebrated all the festival and functions after the marriage and incurred expenses. They even celebrated birthday of the complainant. The grand daughter got a award of Chubby Cheeks and they celebrated this also. They even got published invitation card for the mundan of the child. She has the photographs of all the functions. On some of the photographs, the complainant had also mentioned the occasion on which the photographs was taken. On the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 13 of 27 PS: Nanakpura marriage, she had gifted three rings, one gold chain, one mangalsutra to Neha and she has got the receipts to show the purchase. They have even got the complainant enrolled in computer course and she got the certificate to prove it. She has got even hand written document of Neha to prove that very nominal amount was given by her family members on functions and occasions. The same is Ex. DW1/1. When the complainant was coming to Delhi on 20.12.2009, she said that one family was coming to see her brother and her brother might get engaged and she needed money for the function. She had withdrawn an amount of Rs. 1 lac from the account and gave Rs. 50,000/ to Neha. She always treated the complainant with love and affection but she was very abusive towards me. She (complainant) used to call her “bitch” and sometimes she even used to push her from her elbow out of the kitchen.
31. DW1 has further deposed that when the complainant gave birth to a girl child, she was very happy on this but the mother of complainant was not happy and she was expecting a baby boy. After delivery, she had taken leave to take care of the complainant. The complainant herself got the return ticket from Delhi cancelled. The complainant was maintaining one album of the functions of the child and other festivals. She proved some of the photographs as Ex. DW1/2 to Ex. DW1/22, the bills of purchase of jewellery as Ex. DW1/23 to Ex. DW1/24, the bills of fee receipts of computer course as Ex. DW1/25 & Ex. DW1/26 and original passbook showing withdrawal of Rs. 1 lac before the complainant went to Delhi on 20.12.2009 as Ex.
FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 14 of 27 PS: Nanakpura DW1/27.
32. DW2 Anuj Kapoor is also one of the accused. He has deposed that he has never harassed the complainant in any manner. False allegations has been made against him that he used to beat the complainant after consuming alcohol. No articles as per the list was given to him and only cash sagan of Rs. 1,100/ was given to him and his mother at the time of vidayi and Rs. 500/ to his relatives. He has borne all the expenses of his daughter since beginning. He had closed his shop at Dehradoon and Neha had given all the articles (artificial jewellery) to her friends and family. The complainant had also completed her Graduation during her stay in the matrimonial house. The complainant has stated that she was forced to do a job because he did not have much income. However, in the maintenance case, she had claimed that he was earning Rs. 50,000/ per month. She had made false allegations that he used to take her salary.
33. DW2 has further deposed that the child was brought up with love and affection and even her photo was published in magazine “Womens Era” in August, 2008. He proved three photographs of marriage and one photograph of reception as Ex.DW2/A colly, vaccination record of girl child as Ex.DW2/B, copy of registration certificate of scooter as Mark D1, copy of DD deposited with Director of School of Open Learning as Mark D2, list of artificial jewellery with price in the handwriting of complainant as Ex.DW2/C, magazine ‘Womens Era’ as Ex.DW2/D, certified copy of complaint to SSP Dehradoon as Ex.DW2/E and certified copy of petition as Ex.DW2/F. FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 15 of 27 PS: Nanakpura The articles mentioned in the list Ex.DW2/C were disposed off by the complainant and she had given the money to her parents.
34. The accused did not examine any witness in defence and DE was closed vide order dated 09.10.2018. Thereafter, the matter was fixed for final arguments.
35. Written arguments were filed on behalf of the accused and the complainant. Oral arguments also heard.
36. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts against the accused persons. The prosecution witnesses have proved that both accused used to harass the complainant to fulfill unlawful demands. It is also proved beyond reasonable doubt that accused persons had kept all the jewellery of the complainant and did not return on demand. The prosecution has proved all the ingredients of the offences punishable under Section 498A/406/34 IPC and the guilt of the accused persons has been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.
37. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimony of the prosecution witnesses. The evidence of prosecution witnesses is not reliable. The prosecution has failed to prove beyond reasonable doubts that accused persons had ever beaten the complainant or demanded dowry or any jewellery of the complainant was kept by the accused persons. Hence, it is prayed, the benefit of doubts may be FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 16 of 27 PS: Nanakpura given to the accused persons and they may be acquitted.
38. I have heard the rival submissions and carefully perused the material available on record.
39. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
40. Both accused have been interalia charged for committing offence punishable under section 498A & 406 IPC. The prosecution has alleged that both accused had subjected the complainant to cruelty / harassment to meet unlawful demands of dowry. Section 498 A IPCprovides punishment for subjecting a woman to cruelty. The essential ingredients of section 498A IPC are :
A. A woman must be married. B. She must be subjected to cruelty. C. Cruelty must of the nature of : (i) Any willful conduct as was likely to drive such woman: a.
to commit suicide; b. cause grave injury or danger to her life, limb or health (either mental or physical);
(ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand.
(iii) Woman was subjected to such cruelty by : (1) husband of that woman, or (2) any relative of the husband.
41. It is settled that for proving offence u/s 498A IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry or any willful FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 17 of 27 PS: Nanakpura conduct on the part of accused 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.
42. The complainant has made several allegations against the accused persons. This Court shall now decide whether the prosecution has been able to prove the allegations against the accused persons beyond reasonable doubts.
43. The complainant has deposed in her examination that on her first marriage anniversary, her parents came to the matrimonial house and gifted various articles including gold for her and her inlaws but after her parents left, the accused persons taunted her over the quality of articles. It is settled that mere taunts do not constitute ‘cruelty’ within meaning of Section 498A IPC.
44. The complainant has further alleged in her evidence that on 01.12.2005, she had given birth to a daughter and the mother in law was not happy as she was expecting a male child and she even refused to take the girl child in her lap.
45. In the complaint to CAW cell Ex.PW1/A, the complainant has not made any such allegations against the motherin law that she was not happy on birth of girl child or that the motherin law did not take the girl child on lap.
46. The accused have examined themselves in defence to prove that they liked the girl child very much and the complainant has made false allegations. DW1 Smt. Veena Kapoor has produced the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 18 of 27 PS: Nanakpura original album of the functions of the child. The photographs placed by the witness show that the child was treated with love and affection. The medical card / vaccination card of the child proved as Ex. DW 2/B also shows that the child was given regular vaccination. The documents placed by the accused prima facie shows that the accused persons used to take proper care of the child and the child was treated with love and affection by both accused.
47. The complainant has further stated in her examination in chief that accused Anuj used to come late at night completely drunk and whenever she used to say anything to him, accused used to give her abuses and beat her up. The complainant has not mentioned any specific date or month even by way of approximation when these incidents have taken place.
48. As per the examination in chief, the incident had taken place also during the time while she was living in Delhi with the accused persons. There is no explanation of the complainant as to why she did not inform her parents or as to why her parents did not come to talk to the accused persons about their alleged behaviour.
49. PW2 Kuldeep Chander has stated that on several occasions, accused tried to beat the complainant and on one night, the complainant called him and said that she was standing on the road and she was crying at that time. He went to the house of the accused and confronted the situation to the motherinlaw after which she felt sorry.
50. As per the testimony of the father, once while the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 19 of 27 PS: Nanakpura complainant was living in Delhi with her inlaws, the complainant has called him and informed about the harassment and he had talked to the motherinlaw / accused Veena Kapoor on which she apologized about the behaviour.
51. In the entire examination in chief, the complainant has not stated that at any point of time, her father had come to the matrimonial house at Delhi and talked to the motherinlaw about the misbehaviour or alleged harassment by accused Anuj Kapoor or any of the accused have apologized for such behaviour.
52. In the examination, the complainant has further stated that one week before birthday of the daughter, her husband / accused Anuj Kapoor told her to ask her parents to bring Rs.2,00,000/ on the birthday of the daughter as he was planning to start a business. When she objected to the demand, the husband got angry and told her that he would send her to Delhi if the demand was not fulfilled. Thereafter, she called her father and told him to bring Rs. 2 Lacs cash with him as accused Anuj was planning to start a business.
53. The complainant has deposed in her evidence that she had asked her father to bring Rupees 2 Lac cash as accused Anuj was planning to start a business. However, in the complaint to CAW Cell Ex.PW1/A, in para no. (e), she has stated that her husband and in laws forced her to demand Rs.2,00,000/ from her father for purchase of residential flat at Dehradun, Uttaranchal. There is contradiction in the statement of the complainant recorded before the Court and the allegations made in the police complaint.
FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 20 of 27 PS: Nanakpura
54. In the police complaint, she has stated that the demand of Rs. 2 Lacs was made to purchase a flat at Dehradoon. However, in the evidence, she has stated that accused Anuj demanded Rs 2 lakh to start a business. Further, in the evidence, she has stated that she asked her father to bring Rs. 2,00,000/ cash and she informed her father that accused Anuj needed Rs 2 lacs to start a business. However, in the police complaint, the complainant has stated that she informed her father that accused Anuj needed a loan.
55. The complainant has not made any such allegation in the police complaint that the demand of Rs. 2 lacs was made before the first birthday of the daughter. The father of the complainant has also not stated that any such demand of Rs.2,00,000/ was made from him by the complainant at the instance of the accused persons. He has only stated that he had given Rs. 2,00,000/ at the time of first birthday of the granddaughter.
56. There are material contradictions in the statements of the complainant and her parents as regards the mode of payment of Rs. 2 lacs. In the examination dated 30.08.2016, the complainant had stated that she had asked her father to bring Rs. 2 lacs cash when he comes to birthday of her daughter to Dehradoon and her parents gifted various articles and cash for her, her daughter and all inlaws. Her father also gave Rs. 2 lacs to her which she handed over to her husband.
57. The father has stated in his cross examination that he had given the amount of Rs. 2 lacs by way of FD of Karnataka Bank. He FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 21 of 27 PS: Nanakpura has stated in the cross examination that he had made payment to Neha on the first birthday of her child, FD was made in Kartnataka Bank and copy was given to accused Anuj on the second birthday of the child.
58. As per the testimony of the father, the amount of Rs. 2 lacs was in the form of FD and it was given to the complainant on the first birthday of the child and the copy of FD was given to accused Anuj on the second birthday of the child.
59. Contrary to the statement of father, the mother of the complainant/PW4 has stated in the examination that during visit to Dehradoon on first birthday of grand daughter on 01.12.2006, they had given Rs. 2 lacs cash. The contradiction in the statement of the witnesses are material and it creates doubt over the demand of Rs. 2 lacs or payment of Rs. 2 lacs as per the demand.
60. The complainant has further alleged in her evidence that on 23.07.2009, accused Anuj and Veena had given merciless beatings to her and she was also bleeding from her forehead. This was the first time when she had called her parents and told her father that accused Anuj and Veena had beaten her badly.
61. As per the testimony of the complainant, she had informed her father / PW2 about the alleged harassment by the accused persons only on 23.07.2009 and not prior to that. However, PW 2 Kuldeep Chander stated that after birth of the girl child and before June 2006, once the complainant called him and informed about the misbehaviour and he also visited the matrimonial home. FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 22 of 27 PS: Nanakpura
62. Perusal of the complaint Ex.PW1/A would show that in the complaint, the complainant has not made any allegation about any such incident of 23.07.2009. The allegations made by the complainant in complaint Ex.PW1/A are very general and vague as regards the mental and physical harassment. She has not stated in complaint that she was assaulted or beaten by any accused on 23.07.2009.
63. The father of the complainant has also stated that on 23.07.2009, the complainant called him and informed that she was mercilessly beaten by both accused and thereafter, he talked to the relatives of accused Anuj who assured to sort out the matter. PW2 Kuldeep Chandra has stated that he was informed about the incident at about 12 midnight.
64. As per the testimony of PW2, he was informed about the beating and injuries on the same day. However, he had not filed any police complaint nor he went to Dehradoon to provide medical treatment to the complainant or to talk personally to the accused persons and the complainant about the alleged incident. He had talked to the relatives of the accused persons. The conduct of the father in not going to Dehradoon or filing any police complaint makes it difficult to believe that any such incident had taken place.
65. The complainant has further stated in her examination that in December 2009, when she expressed her wish to go to Delhi to meet her parents, accused Anuj book train tickets and she came to Delhi with the daughter by train. But accused himself came to Delhi by car. She has further alleged that in December 2009, accused Anuj FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 23 of 27 PS: Nanakpura came to her uncle’s house and told her uncle to keep the complainant in Delhi and also said that there was no need for the complainant to come back to Dehradoon. Thereafter, her husband /accused Anuj went away. He called the accused but he did not take her call and later, accused Anuj called her and asked her that she need not come back to Dehradoon.
66. In the entire examination, the complainant has not stated that any meeting had taken place at her uncle’s house or that any demand was made by accused Anuj or his mother to take the complainant to Dehradoon or any condition was put by accused Anuj or Veena to take the complainant to Dehradoon.
67. The father of the complainant has stated that one meeting was held at the house of Surender Pal and heated arguments took place in that meeting. He had also alleged in the examination that accused Anuj and Veena demanded additional dowry in the meeting and asked the complainant to give in writing that she would live peacefully and not misbehave with any family member. Thereafter, quarrel started between them and accused persons left the house.
68. PW3 Surender Pal Vij has also deposed about the meeting held on 21.12.2009. He has stated that accused Veena said that they needed money for establishing business of Anuj and she also put condition that the complainant would give in writing that she would live peacefully.
69. PW4/ mother of the complainant has also stated that the demand of more money was made by accused Anuj and Veena in the FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 24 of 27 PS: Nanakpura meeting held on 21.12.2009.
70. PW5 Rajiv Chopra is one of the person who had attended the meeting held on 21.12.2009. He has deposed that during the conversation of meeting, they found that there was demand from the side of accused Anuj and Veena because of birth of girl child. He has stated that he came to know about the demand from the gestures and there was no specific demand. He has deposed, “We had come to know about the demand only from the gestures like they were saying “Hamara kaam bhi nahi hai”, “Delhi chorke hum dehradoon chale gaye”, “ab to karki bhi ho gayi” and there was no specific demand.”
71. It is clear from the testimony of PW5 that there was no demand of money by any accused in December 2009. The allegations made by the complainant, her parents and public witnesses as regards the demand in December 2009 is contradictory. Further, in the police complaint Ex. PW1/A also, the complainant has not stated that any demand of money was made on 21.12.2009. In these facts and circumstances, this Court is of the view that the material on record is not sufficient to prove that any demand of money was made on 21.12.2009 or the accused persons refused to take the complainant to the matrimonial house due to nonfulfillment of demand.
72. The complainant and her parents have admitted in their evidence that accused Anuj had filed complaint in Dehradoon and he had also filed a divorce petition and after receipt of notice of divorce, the complainant had filed the present complaint. There is no explanation of the complainant and her family members as to why no FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 25 of 27 PS: Nanakpura complaint was filed after 21.12.2009 when the settlement talks between the parties failed and no talks had taken place thereafter. There is no explanation for delay in filing of complaint with CAW Cell.
73. In view of the discussion hereinabove, this Court is of the view that the prosecution has failed to prove, beyond reasonable doubts, that accused Anuj or Veena had subjected the complainant to cruelty or harassed her to fulfill any dowry demand.
74. The accused persons have also been charged with offence u/s 406 IPC.
75. In the examination in chief, the complainant has stated that on the same day of the marriage, her jewellery was taken by motherinlaw Veena Kapoor on the pretext of safe keeping. The complainant has not produced any jewellery bill to show that jewellery as mentioned in the list Ex. PW1/C was purchased or gifted to her in the marriage.
76. In the police complaint Ex. PW1/A, she has stated that all her jewellery and other istridhan, accumulated over the years being gifts and other purchases including those from her salary, have been usurped by her motherinlaw and she has disposed of the same. As per the allegations in the police complaint, the jewelleries, which was accumulated by the complainant over a period of time, were allegedly taken by accused Veena Kapoor. There is no allegation in the police complaint that jewelleries were taken by the accused on the day of marriage.
FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 26 of 27 PS: Nanakpura
77. Mere vague allegations of the complainant that the accused persons had misappropriated her jewellery without any specific date, month or year are not sufficient to prove that the jewellery was entrusted to accused Veena Kapoor or to accused Anuj and they misappropriated the same to their own use/ refused to return the same on demand. Therefore, this Court is of the view that the prosecution has failed to prove the essential ingredients of offence punishable u/s 406 IPC beyond reasonable doubts.
78. In view of the discussion hereinabove, this Court holds that prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Accordingly, benefit of doubt is given to the accused persons. Both accused are acquitted of the charges alleged.
79. Bail bond and surety bond of both accused u/s 437 A Cr. P.C. alongwith photographs and address proof have been furnished and accepted.
Digitally signed by NEHA NEHA Date:
2019.01.11 18:15:45 +0530 Pronounced in the open Court (NEHA) on 11th January, 2019 Metropolitan Magistrate Mahila Court02/Dwarka New Delhi FIR No. 140/10 State Vs. Anuj Kapoor & Anr. Page No. 27 of 27 PS: Nanakpura