In the Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate02 Mahila court (SouthEast), Saket Courts, New Delhi. FIR No: 134/2013 PS: H.N. Din U/s : 498A/406/34 IPC State v. Mohd. Nasir & Ors. JUDGMENT
Date of institution : 27.04.2016 Cr.C No. : 91733/2016 Name of the complainant : Smt. Nasima, W/o Sh. Mohd. Nasir, r/o H.No. B21, Nizam Nagar Basti, Hazrat Nizamuddin, New Delhi. Name & address of the accused :1. Mohd. Nasir S/o Sh. Taj Mohd. 2. Taj Mohd. S/o Sh. Bhundu Khan 3. Rukeaia W/o Taj Mohd. All R/o H. No. 175, Nizam Nagar Basti, H.N. Din, New Delhi. Offence Complained of : U/s 498A/323/341/34 IPC Offence Charged of : U/s 498A/323/341/34 IPC Plea of the accused persons : Pleaded not guilty. Final Order : Acquitted FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 1 of 10 Date of arguments : 04.07.2019 Date of announcing of order : 04.07.2019 BRIEF FACTS:
1. Brief facts of the case are that since the marriage of the complainant with accused Mohd. Nasir, he alongwith his mother and father subjected the complainant to cruelty and harassed her by demanding more dowry and misappropriated her stridhan articles entrusted to them and also gave beatings to her and caused simple hurt to her by restraining her.
2. As per the complaint of the complainant, she was married to the accused Mohd. Nasir on 18.01.2013 as per Muslim Rites and Rituals. That soon after the marriage, all the accused persons started demanding dowry from the complainant and harassed the complainant for bringing insufficient dowry. Further the complainant was mentally and physically tortured. On 07.05.2013, husband of the complainant gave beatings to her for not bringing sufficient dowry and at that time, the parents in law of the complainant also entered the room and gave beatings to her. Due to the aforesaid beatings, complainant became unconscious and regained consciousness only in the hospital.
3. Pursuant to this complaint dated 08.05.2013 against the accused persons, FIR was registered on 08.05.2013 and the matter was FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 2 of 10 investigated. Charge sheet was filed on 27.04.2016. The Court took cognizance of offence and summoned the accused. Vide order dated 03.05.2019, charge was framed against accused for the offence punishable U/s 498A/323/341/34 IPC. Accused persons pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead. During trial, parties entered into mediation settlement on 12.07.2017 and later the complainant retracted from the settlement and the matter was proceeded as per law.
4. In order to prove its case, prosecution examined one witness.
PW1 complainant Naseema deposed that she got married to accused Mohd. Nasir on 17.01.2013. She again stated that she was not sure it might be 18.01.2013. She got married to accused Mohd. Nasir as per Muslim rites and rituals. Thereafter, she alongwith her inlaws namely Taj Mohd. and Rukhaiya Begum and her husband Nasir started residing in the matrimonial house. She was presently residing in her matrimonial house alongwith aforesaid accused persons. She had settled the matter with the accused persons and she did not wish to pursue the present matter. She had settled the matter in mediation centre on 12.07.2017 but she did not have any financial assistance to file quashing order. She did not wish to pursue her present matter. She has two children aged three years and four years.
Thereafter, the witness was crossexamined by Ld. APP for the State and she deposed that it was correct that she had filed her complaint FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 3 of 10 with the police on 08.05.2013. Thereafter, the witness was shown her complaint which she correctly identifies and the same was Ex.PW1/A. It was correct that upon her complaint, an FIR was registered. The copy of Nikahnama was mark A. She did not know the contents of her complaint and the witness was declared hostile and she denied the contents of her complaint Ex.PW1/A from point A to A1.
Opportunity to crossexamine the witness was granted to the accused persons but they did not ask any question to the witness.
5. Prosecution had cited about fourteen witnesses in all and among them complainant was the star witness. In support of its case, complainant was summoned. However, complainant was declared hostile by the prosecution and she did not substantiate regarding the allegations of her complaint.
6. Thereafter, PE was closed and statement of accused persons were dispensed with as nothing incriminating on record came against them. Thereafter, final arguments were advanced by Ld. APP and defence counsel.
7. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 4 of 10
8. Observations qua offence u/s 498A IPC :
(i) The case of the prosecution rests on the assertion that during almost five months of the marriage between the parties, complainant was subjected to physical and mental cruelty on account of failure by her to meet unlawful demands of dowry raised by the accused persons and also that the accused persons refused to return stridhan of the complainant, entrusted to her. It is admitted that the marriage between the parties were solemnized on 18.01.2013 and thereafter, she remained in her matrimonial house only till 08.05.2013 i.e. she remained in her matrimonial home only for a period of five months. Accused persons have denied these allegations and raised manifold defences.
(ii) It is the foremost defence of the accused that the prosecution has miserably failed to prove its allegations of cruelty of any nature upon the complainant by the accused persons. As per complaint Ex. PW1/A dated 08.05.2013 parties got married on 18.01.2013. The allegations in the aforesaid complaint have not been reiterated in the testimony of complainant as PW1. It has also come in evidence in the testimony of PW1 that the accused persons had never demanded any dowry from the complainant and she was never subjected to any cruelty.
(iii) It has been stated by the complainant in Ex. PW1/A though not reiterated by her as PW1, that after her marriage, accused persons had FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 5 of 10 demanded dowry and committed cruelty upon her though she had not stated the same during her testimony before the court. To the contrary, during her crossexamination on behalf of Ld. APP for the State complainant has denied of making her complaint Ex.PW1/A and has denied that no such demand was ever made. Credibility of such an allegation is also dubious for the reason that there is not even any averment made by the complainant against the accused persons of having committed cruelty for demand of dowry which could lead the complainant to commit suicide.
(iv) It has been asserted by the complainant in Ex. PW1/A that accused and his family members started demanding dowry and the family of accused persons had given severe beatings to her on 07.05.2013 but to the contrary as PW1, complainant has not even vaguely stated that accused demanded dowry from her. There is no specification of the amount of cash demanded by the accused or his family members after marriage or even the amount paid by the complainant to the accused in fulfillment of any of his demand. The allegation of demand of unspecified and are also obscure. As such, the allegations of demand of dowry by the accused lack credence.
(v) Further as per PW1/A there is no specification of the manner in which the complainant was mentally or physically harassed by the accused or his family. The complaint as well as testimony of PW1 is silent on the FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 6 of 10 specific date, month, year, event or occasion of any beating given to the complainant by the accused or the manner of such beating i.e. slapping, kicking etc. Admittedly, the complainant did not lodge any complaint regarding any such alleged beating or harassment prior to the present complainant and are, therefore ambiguous and vague.
(vi) There is neither any averment nor any piece of evidence in the form of a medical report or otherwise, to draw a logical inference of such a threat to be of a nature likely to have driven the complainant to commit suicide or caused grave injury or danger to her life limp or health. In absence of any assertion to this effect, it cannot be assumed that such a threat or alleged callous or indifferent behavior of the accused was with a view to coercing her to meet any demand for property or valuable security or on account of her failure to meet such demand. Reliance is placed upon decision in Sanjeev Kumar Aggarwal Vs. State & Ors. Crl. M.C. No. 264553/2005 decided on 12.10.2007 wherein following observation was made : “…..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.
Explanation (b) to Section 498A 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 FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 7 of 10 security or is on account of failure by her or any person related to her to meet such demand.
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. Mere demand for property etc. by itself is also 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….”
(vii) Similar view was adopted in the decision reported as Smt. Sarla Prabhakar Waghmare Vs. State of Maharashtra & Ors. 1990 (2) RCR 18, wherein Hon’ble Bombay High Court observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands. Hon’ble Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 observed that offence U/s 498A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry. Further, while interpreting the provisions of Section 304B, 498A, 306 and 324, IPC in the decision reported as State of H.P. Vs. Nikku Ram & Ors. 1995 (6) SCC 219 the Supreme Court observed that harassment of constitute cruelty under explanation (b) to Section 498A FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 8 of 10 must have nexus with the demand of dowry and if this is missing the call will fall beyond the scope of Section498A IPC.
(viii) Even the allegations that the accused used to gave beatings to the complainant have not been corroborated by any reliable piece of evidence. There are discrepant statements regarding the allegations levelled by the complainant against the accused persons. Therefore, the allegations levelled by the complainant are discrepant and devoid of specific details and as such does not inspire confidence of the court.
(ix) Also, there is no evidence such as a medical report, photograph or otherwise to prove any physical injury to the complainant which she would have received had she been assaulted.
(x)The material witness in this case is complainant (as per chargesheet) and she has turned hostile and therefore, there is nothing to support the fact that the allegations levelled by the complainant against the accused had taken place. Complaint of the complainant has thus not been proved. The complaint upon which the prosecution of accused persons was initiated has not been proved. As such the evidence on record is not sufficient to prove the guilt of accused persons.
FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 9 of 10
(xi) It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
(xii) Further, the averments of entrustment or demand are not corroborated by any independent witness such as elder brother of complainant or any documentary proof of such handing over of cash to the accused or even the exact date, month, year or occasion of such handing over of money. As such there is no convincing evidence on record to believe the allegations of the prosecution regarding commission of offence u/s 498A/323/341/34 IPC. Accused persons are accordingly acquitted of offence U/s 498A/323/341/34 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan) on 04.07.2019. Metropolitan Magistrate, (Mahila Court02), SouthEast, Digitally signed Saket, New Delhi.
by SHEETAL CHAUDHARY SHEETAL PRADHAN CHAUDHARY Date:
PRADHAN 2019.07.05 13:29:34 +0530 FIR No. 134/2013; PS H.N. Din State Vs. Mohd. Nasir & Ors. 10 of 10