A woman turns up with some photographs (not marriage photos !! ) and claims that her neighbour is her husband !! She happily files a DV case and claims reliefs only to loose the whole case !!
IN THE COURT OF MS. VIJETA SINGH RAWAT: MM-03: (MAHILA COURT): SOUTH EAST DISTRICT: SAKET COURTS : NEW DELHI
Case ID No. 02406R0063962012
Ms. Kajal, W/o Sh. Vivek Choudhary, D/o Sh. Inder Kumar Makhija, R/o I-52, Top Floor, Lajpat Nagar, Part-II, New Delhi……. Complainant
Vivek Choudhary S/o Sh. Yadhuraj Singh R/o 129, Krishna Colony, Bharatpur, Rajasthan …… Respondent
Date of institution of case : 22.03.2012
Date of Reserving order : 21.04.2016
Date of Order : 08.07.2016
1. The present complaint u/s. 12 of The Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act’) has been instituted on 22.03.2012 by Kajal (hereinafter referred to as ‘the complainant’) against Vivek Choudhary (Husband) (hereinafter referred to as ‘the respondent) seeking CC No. 364/1/15 Kajal vs. Vivek Choudhary PS: Lajpat Nagar Page No. 1 of 6 following reliefs :- (a)Protection order under section 18(a), (b), (e) and (f) of the Act. (b)Residence order u/s. 19(a), (b), (d) and (f) of the Act or rent of Rs. 5000/- per month. (c)Monetary relief u/s. 20 of the Act as under:- i.Rs.25,000/- per month as medical expenses. ii.Rs. 15,00,000/- for loss or removal of property, iii.Rs. 50,000/- towards mental and physical torture, iv.Rs. 50,000/- per month for maintenance, v.Rs.10,000/- per month for household expense. (d)Compensation under section 22 of the Act. (e)Litigation expense.
2. The brief facts of the present case are that the complainant was married to the respondent on 10.05.2006 as per Hindu rites and rituals at Banke Bihariji Mandir, Vrindavan thereafter, her father spent Rs. 20,00,000/- and she was residing at 129, Krishna Colony, Bharatpur, Rajasthan for a month and then at 306, Sant Nagar, East of Kailash, New Delhi at house of sister of respondent. It is alleged that mother-in-law and father-in-law of the complainant repeatedly harassed the complainant for being over weight and therefore, not suitable for the respondent. Sister of respondent, Smt. Sonali Chaudhary also taunted her for bringing insufficient dowry and was joined by the mother-in-law. It is further the case of the complainant that husband of Smt. Sonali Chaudhary, Sh. Dharmender Chaudhary had evil eye upon the complainant and had molested her on various occasions. Further, that on 31.12.2007, brother-in-law Sh. Prashant Chaudhary had also physically assaulted the complainant and subsequently, as well she was beaten by the respondent and the family member for protesting against Prashant. It is alleged that between 2007 till 07.12.2011, the complainant has been beaten by the respondent many times. Since, 07.12.2011 when the respondent was at her parental home the respondent took certain jewelery and Rs. 30,000/- (forcibly) and abandoned the complainant. Thereafter, she went to the Bharatpur home where she was denied entry and subsequently, she filed a police complaint at PS Lajpat Nagar on 03.01.2012. It is alleged that the respondent earns Rs. 1,00,000/- from his transport business and is also having property for more than Rs. One Crore.
3. Notice of the complaint was issued to the respondent vide order dated 23.04.2012.
4. The respondent entered appearance by 02.04.2014. He filed a reply alongwith an application u/s. 340 Cr.PC.
5. In the reply, the respondent, denied the factum of marriage and has averred that the complainant and the respondent never had a domestic relationship. Various grounds have been raised for creating doubts on the alleged marriage having taken place. It is merely stated that the respondent is a taxi driver and he and the complainant were tenants in the same property in different rooms and were therefore, acquainted with each other. It is stated that they never had a physical relationship. The respondent has averred that the complainant is the legally wedded wife of one Pradeep Karmakar and their matrimonial disputes are pending. It is also denied that the complainant needs maintenance and on the contrary is a certain that the complainant works at a call center and earns Rs. 60,000/- per month. All allegations of domestic violence were denied.
6. In the rejoinder filed by the complainant, it is again asserted that parties are married and that they have resided together at top floor, Lajpat Nagar Part-II in property No. I-52.
7. The respondent was proceeded ex-parte vide order dated 12.02.2015. Application to set aside the ex-parte proceedings was dismissed vide order dated 14.09.2015.
8. Matter was then listed for evidence. By way of complainant evidence, the complainant examined herself as CW1. She has tendered affidavit Ex.CW1/A alongwith following documents :- i. Mark-A is bank statement of respondent for the period 28.02.2010 to 30.06.2011, ii. Mark-B photographs iii. Mark-C (colly.) rejoinder.
9. The witness was not cross-examined. Complainant evidence was closed on 23.02.2016.
10. Final arguments have been heard. This Court has thoughtfully considered the material on record and arguments advanced by both the parties.
11. The issues which are required to be proved to entitle a relief under the Act are as under :- (a)Whether the complainant was having a domestic relationship with the respondents in a shared household? (b)Whether the complainant was subjected to domestic violence by the respondents so as to qualify her to be an aggrieved person under the Act? Further, since, we are dealing with a quasi criminal proceeding, the proof test required is of preponderance of probabilities.
12. As per sec. 2(f), “”domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;”
13. The primary burden to prove issue (A) was upon the complainant. The complainant has testified before this Court that she was married on 10.05.2006 at Vrindavan. However, the factum of marriage is disputed. As proof of marriage, the complainant has beyond her bald statement not adduced any documents. The photographs tendered (also not proved as per law) are not of the marriage. No witness to marriage has also been produced by the complainant to substantiate her claim. The premise of domestic relationship is marriage between the parties. In the considered view of this Court, the complainant has failed to prove her marriage with the respondent and consequently, the existence of domestic relationship from such marriage.
14. Further, in the application u/s. 12 of the Act, complainant stated that she was residing at Sant Nagar. When the marriage came to be disputed, the complainant relied upon the tenant verification form, locker operation report and bank account statement to show that parties resided together as a couple at I- 52, Lajpat Nagar. However, the documents have not been proved as per law. In the considered view of this Court, the complainant has also not passed the test laid down in Indra Sarma vs. V.K.V. Sarma, SLP (Crl.) No. 4895 of 2012 date of decision 26.11.2013 to even show that relationship with respondent as “relationship in the nature of marriage”. Hence, the issue is decided against the complainant as she has failed to discharge the burden upon her.
15. No finding on the issue is being given in view of finding on issue A.
16. Since complainant has failed to prove its case all reliefs sought are declined.
17. Application is accordingly dismissed. Copy of the judgment be given Dasti to the parties.
File be consigned to Record Room after due compliance.
(VIJETA SINGH RAWAT)
Announced in the open Court on 08th July 2016) MM-03: (MAHILA COURT) SED:SAKET COURTS:NEW DELHI
IN THE COURT OF MS. POOJA AGGARWAL: METROPOLITAN MAGISTRATE02 (MAHILA COURT) : SOUTH DISTRICT : SAKET COURTS:NEW DELHI
State Vs. Sanjay Sharma & Ors.
FIR No. : 40/02
U/S : 498A/406/34 IPC
PS : Hauz Khas
UID NO. : 02403R0264822003
DETAILS OF THE CASE
a) Serial number of the case : 139/2(14.07.2014)
b) Date of commission of offence : Since 26.02.2000 till 11.01.2002
c) Date of institution of the case : 05.04.2003
d) Name of the complainant : Ms. Rinku Sharma D/o: Sh. Kishan Sharma
e) Name, Parentage & Address : 1. Sh. Sanjay Sharma (Husband) S/o Sh. Khem Chand Sharma
- Sh Khem Chand Sharma (Father in Law) S/o Sh. Chida Lal
Smt. Maalwati (Mother in Law)BW/o Khem Chand Sharma
All R/o.: AE25, Preet Vihar, Acheja, Hapur, UP
- Sh. Parmod (Brother in Law/Jeth) S/o Khem Chand Sharma R/o.: Village Dholana,BPS Dholana, District Hapur, UP
Sh. Vinod (Brother in law/Behnoi) S/o Sh. Daya Chand R/o.: Village Kharkhoda, Post Kharkhoda, District Meerut, UP
Smt.Indresh@Indu (Sister in Law/ Nanad) W/o Sh. Mukesh Sharma R/o Village Chajjupur, Post Pratap Pur, District Meerut, UP
f) Offence complained of : 498A/406/506/34 IPC & Sec. 3 of Dowry Prohibition Act r/w 34 IPC.
g) Plea of accused : Not guilty.
h) Arguments heard on : 30.03.2016
i) Date of judgment : 18.04.2016
j) Final Order : Acquittal
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The accused Sanjay Sharma (husband), Sh Khem Chand Sharma (father in law), Smt. Maalwati (mother in law), Sh. Parmod (Brother in law/Jeth), Vinod (Brother in law/Behnoi) and Smt. Indu (Sister in law/Nanad) have been sent to face trial for offences under section 498A/406/34 IPC with the accused Sanjay(husband), Khem Chand(father in law), Parmod (Brother in law/Jeth), and Vinod (Brother in law/Behnoi) also facing trial for offences under Section 506/34 IPC and accused Sanjay (husband) and Khem Chand Sharma (father in law) also facing trial for offences under section 3 of Dowry Prohibition Act r/w 34 IPC.
2. As per the case of the prosecution the complainant Rinku Sharma was got married to accused Sanjay on 26.02.2000 by her maternal uncle (mama) in which marriage around Rs. 2.5 lakhs were spent and sufficient dowry was given. However, accused Khem Chand Sharma (fatherinlaw), Maalwati (Mother in law), Promod (Brother inlaw/jeth) and Indy @ Khiliya (sisterinlaw/nand) started taunting her for insufficient dowry and asked her to bring Rs. 1.5 lakhs cash without which they would not allow her to live there. When the complainant expressed the inability of her uncle (mama) to meet the demand then they started beating and harassing her. They also did not give her food and whenever she used to eat food her sisterinlaw Indu @ Khiliya kicked the food.
3. The accused Sanjay used to bring a girl home and when the complainant tried to stop him after seeing their objectionable conduct, accused Sanjay Sharma and all other family members started beating her and saying that not only had she not brought anything but was accusing others. The complainant however used to tolerate the behavior of her inlaws as she was residing with uncle (mama) since birth and asked her uncle to talk to her inlaws who tried to reason with them and told them that he could not meet their demand but he will give some money. Then one day her fatherin law told her that her uncle had said he will give something and she should bring it upon which she asked her uncle who gave Rs. 60,000/ to her husband and fatherinlaw.
4. On 13.01.2001 the complainant was beaten up by accused Sanjay Sharma, Khem Chand Sharma, Maalwati, Parmod, Indu and Vinod and she was ousted from matrimonial home due to illegal demand for dowry and she was told that until she brought Rs. 1 lakh in cash, motorcycle and gas they would not allow her to live in the matrimonial home. Her entire istridhan was retained by them and since then she is residing with her uncle (mama).
5. On 13.05.2001 at around 08.00 am accused Sanjay, Khem Chand, Pramod, Vinod @ Babli and Tek Chand who resides in village Kharkhoda, Meerut, U P came to the house of her uncle (mama) at IIT Hauz Khas, Delhi and started abusing the complainant as well as her uncle (mama) demanding Rs. 1 lakh and other articles demanded by them upon which they would take the complainant back or else they would be killed and in case any complaint was made her uncle (mama) and children would also be taken care of and police would not be able to do anything.
6. After registration of FIR on 11.01.2002, investigation was carried out and upon completion of the same, charge sheet was filed in the court on 05.04.2003. All the accused entered appearance and were supplied complete set of challan and documents in compliance of Section 207 of Code of Criminal Procedure, 1973. On 23.07.2008, charge was framed against the accused Sanjay Sharma (husband), Sh Khem Chand Sharma (father in law), Smt. Maalwati (mother in law), Sh. Parmod (Brother in law/Jeth), Vinod (Brother in law/Behnoi) and Smt. Indu (Sister in law/Nanad) for offences under section 498A/406/34 IPC; against accused Sanjay(husband), Khem Chand(father in law), Parmod (Brother in law/Jeth), and Vinod (Brother in law/Behnoi) for offences under Section 506/34 IPC and against accused Sanjay (husband) and Khem Chand Sharma (father in law) for offences under Section 3 of Dowry Prohibition Act r/w 34 IPC. The accused pleaded not guilty to the charges levelled against them and claimed trial.
7. To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined 10 witnesses.
8. PW1 ASI Adesh Kumar, was the duty officer at PS, Hauz Khas who proved registration of the present FIR (Ex. PW1/A) upon the complaint Ex.PW1/B and subsequent marking of the case for investigation to SI Dharam Pal Kalra. He was not crossexamined despite opportunity.
9. PW2 Mukesh Sharma being the uncle / mama of the complainant has testified that the complainant ie daughter of his sister stayed with FIR No.: 40/02 State Vs. Sanjay Sharma & Ors. Page no. 5 of 23 him since her childhood and he had brought her up at village Khardhoda, District Meerut, U P. from where she did her schooling. He got Rinku married to the accused Sanjay on 26.02.2000 and gave all the dowry articles at that time. After her marriage the complainant Rinku was kept well for sometime but thereafter her fatherinlaw, motherinlaw, husband, sisterinlaw, brotherinlaw (jeth) and brotherinlaw (nandoi) started harassing her for dowry and used to beat her. He has testified that upon demand of all accused persons for Rs. 1.5 lakhs after marriage he arranged for Rs. 60,000/ and gave it to the accused Sanjay and Khem Chand Sharma and told them that he could not meet their further dowry demand. He has further testified that thereafter the accused beat the complainant, ousted her from her matrimonial home, demanded the remaining amount and threatened to kill her if she did not bring the remaining amount. He has further testified that he along with some relatives went to the village of accused to settle the matter but they refused to do so until their demand of cash was met and as the accused did not respond positively, after waiting for sometime they went to CAW Cell but no settlement could be arrived at. He further testified that on one day in 2001 when he was residing at the IIT Campus, accused Sanjay, Vinod along with 23 persons whom he do not identify came in the early morning and threatened him to take the complaint back otherwise they kill them and thereafter, the present case was registered upon recommendation from CAW Cell to the PS. He also testified regarding arrest of accused vide arrest memo Ex. PW2/A to Ex. PW2/F, personal search memo of accused Khem Chand Sharma and Sanjay Sharma vide Ex. PW2/G and Ex. PW2/H and also correctly identified all the accused persons in the court. He was duly crossexamined by the accused.
10. PW3 Anita (mami of the complainant) has testified that her niece Rinku got married to the accused Sanjay in 2000 at Kharkhoda Village, District Meerut, U.P. but all functions prior to the marriage were held at the premises of IIT Delhi and that despite good amount being spent in the marriage the accused started committing physical violence against her niece, used to demand money after marriage and did not allow her to go out of the house. She has further testified that once they threw her out of the matrimonial home whereafter she reached at their residence at IIT and thereafter her husband called all the six accused and paid Rs. 60,000/ to them. PW3 has further testified that her husband had requested the accused that he would not be able to to pay anything more but the accused continued their atrocities upon her niece. She has further testified that in 2001 her niece returned to their home but she could not say whether accused had ousted the complainant from her matrimonial house or if she had left the matrimonial house herself. She has further testified that even today the complainant cannot hear properly and that she was told by the complainant that the accused used to beat her. She was also duly crossexamined by the accused.
11. PW4 Pushkar Dutt was the uncle of the mother of the complainant and merely testified as to attending the wedding and giving certain gifts to the complainant. The defence was not able to elicit anything material during his crossexamination.
12. PW5 Rinku Sharma ie the complainant herein has testified that she was got married by her maternal uncle Mukesh Sharma in Delhi on 26.02.2000 in which marriage many stridhan or dowry articles were handed over to accused persons and her uncle had spent 22.5 lacs in her marriage but her husband and in laws were not happy with the amount which was spent by her uncle because as per them it was very low. She has testified that after her marriage, accused persons i.e. her fatherinlaw, motherinlaw, husband, brotherinlaw (jeth), sisterinlaw, brotherinlaw (nandoi) demanded 11.5 lacs from her and that they started harassing her for demand of dowry telling her that if she did not fulfill the abovesaid demands she could not live at the matrimonial home. PW5 has further testified that her Mamaji arranged the amount of Rs 60,000/ and gave the same to Sanjay Sharma (husband) and Khem Chand (fatherinlaw) and that thereafter her mamaji requested them that he cannot fulfill their further demand of dowry as he was not financially capable for fulfilling the same. She has further testified that thereafter, accused persons started beating her and they demanded rupees 1 lac, one motorcycle and LPG gas from her. As per the testimony of PW5, on 13.01.2001, accused persons thrashed her out from her matrimonial home after which she returned to her paternal home and started living alongwith her mamaji. She has further testified that on 13.05.2001, Khemchand i.e. her fatherin law, her nandoi, her jeth and her husband reached at her paternal home, gave beating to her mamaji and used filthy language against her whole family and also said that police was informed regarding the incident then they will kill her family. She relied upon her complaint ExPW1/B and correctly identified the accused whose identity is also not disputed. She also relied upon the list of stridhan articles ExPW5/A and ExPW5/B; Marriage card Mark X and further testified that her other documents i.e. bills, receipts etc were handed over by her mamaji. She was also duly crossexamined by the accused.
13. PW6 ACP Meera Sharma testified as to being assigned the complaint Ex. PW1/B when she was posted at Women Cell but also testified that as she was transferred to another district, the inquiry was marked to Insp. Raj Laxmi. She was not crossexamined despite opportunity.
14. Retd SI Gurdev Singh was also examined as PW6 who testified as to arresting the accused Vinod, Pramod, Indresh and Maalwati vide arrest memo Ex. PW2/E, Ex. PW2/D, Ex. PW2/F and Ex. PW2/C with his signatures at point A and also as to releasing them on furnishing bail bonds. He also testified as to accompanying Ct Shamim to Ghaziabad for recovering stridhan articles as per the list Ex. P1 and giving copy to accused Khem Chand, depositing the stridhan in malkhana, recording the statement of witnesses, preparing the chargesheet and filing the same in the court. During his crossexamination, he testified that the maternal uncle of the complainant who had also accompanied them for recovery of the dowry articles had not raised any objection for the recovery of the dowry articles.
15. PW7 Inspector DP Kalra, one of the investigating officers, testified as to arresting the accused Sanjay and Khemchand as also conducting their personal search vide Ex. PW2/H and Ex. PW2/G with his signatures at point B as also as to taking the accused to AIIMS for medical examination. He also testified as to recording the statement of Mukesh and Ct Surender and depositing the recovered articles with the malkhana PS Hauz Khas. He was duly cross examined by the defence.
16. PW8 Harbiri testified as to attending the mang Bharai rasam at IIT Campus, Hauz Khas Delhi. The defence was not able to elicit anything material during her crossexamination.
17. PW9 MHCM HC Naval Kishore proved entry 1483 dated 05.01.2003 in register 19 Ex. PW9/A. The defence was not able to elicit anything material during his crossexamination.
18. Thereafter the Prosecution Evidence was closed and the statement of each accused was recorded under Section 313 Cr.PC wherein the incriminating evidence was put to each accused who all claimed that they were falsely implicated in the present case by the complainant. They further stated that they wished to lead Defence evidence.
19. To prove their defence, accused examined Sh Khem Chand Sharma as DW1 after his application under Section 315 CrPC was allowed. He was duly crossexamined by the Ld. APP for the State.
20. On 30.03.2016 final arguments were advanced by Sh. Ritendra Singh, Ld. APP for the State and by Sh. VP Bidhuri, Ld Counsel for the accused. While the State argued that the prosecution has been able to prove its case beyond reasonable doubt, the accused put forth an argument that in view of the contradictions brought forth during crossexamination, the accused having raised reasonable doubt were entitled to the benefit of the same.
21. I have carefully considered the submissions made on behalf of the State as well as by the accused. I have also given my thoughtful consideration to the entire evidence placed on record.
22. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts. It is only if the State is able to discharge its burden, that the onus shifts on to the accused. Since the accused have been charged for offences under section 498A IPC, it was for the prosecution to prove that during the subsistence of a marriage between the complainant and accused Sanjay, she was subjected to cruelty or harassment by accused Sanjay being the husband or by the other accused being the relatives of her husband with cruelty being of such a nature as to be (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. Further it was also for the prosecution to prove that the accused had been entrusted with the stridhan/dominion over stridhan of the complainant and that they had dishonestly misappropriated or converted the same to their own use to prove the offence under Section 405 IPC punishable under Section 406 IPC. It was also for the prosecution to prove that the accused had threatened the complainant with injury to her person with the intent to cause alarm to her to prove the offence punishable under Section 506 IPC. It was further for the prosecution to prove that the accused took money from the uncle of the complainant towards dowry to prove the offence under section 3 of Dowry Prohibition Act. It was also for the prosecution to prove the common intention of the accused for the said offences.
Appreciation of evidence Demand of Rs 11.5 Lakhs
23. The complainant as PW5 has testified during her examination in chief as to her being harassed by accused persons i.e. her fatherin law, motherinlaw, husband, brotherinlaw (jeth), sisterinlaw, brotherinlaw (nandoi) and them demanding 11.5 lacs from her “after her marriage”. She has further testified as to the accused harassing her for demand of dowry telling her that if she did not fulfill the abovesaid demands she could not live at the matrimonial home. However, the testimony of PW5 in respect of both the assertions is vague nature lacking in material particulars in as much as there is no evidence on record sufficient to identify the period referred to as being “after her marriage” and no specific role being attributed to any particular accused nor any time, place or period of the harassment being deposed to by the complainant. Thus, only general allegations have been made by the complainant in respect of the same.
24. The testimony of the complainant in respect of the demand of Rs 11.5 Lakhs having been made by the accused also does not inspire confidence in as much as in her complaint Ex. PW1/B as relied upon by her during her evidence she has only mentioned therein the demand of Rs 1.5 lakhs bringing forth a variation from the version put forth by her during her evidence in the court. The same assumes significance in the absence of any justification having been brought on record by the prosecution to explain the said variation.
25. It is duly noted that though PW2 has also testified in respect of the harassment and beating of complainant by the accused for dowry, she same cannot be relied upon as he has himself admitted during his crossexamination that the complainant Rinku was neither harassed and nor beaten in his presence and that he was informed about the said harassment and beating by the complainant herself when she visited his house. Thus, he is merely a hearsay witness to the said facts and further his testimony does not even disclose the period that had elapsed since the alleged harassment and beatings and him being informed as no date, time or place of such harassment/beating have been deposed to nor has it been deposed to as to when the information about the same was given by complainant to PW2. Thus, the testimony of the PW5 in respect of the harassment and beatings remains vague and uncorroborated even by the testimony of PW2.
26. It is also important to note that while in her examination in chief the complainant as PW5 has testified as to the demand being made by all accused, her complaint Ex. PW1/B as relied upon by her attributes the demand of Rs. 1.5 lakhs only to the accused Khemchand, Maalwati, Pramod and Indu and nothing has been attributed against the accused Vinod and Sanjay in respect of the demand of the same. Thus, the PW5 has made material improvement in her testimony in the court. The same assumes significance as the allegations against the accused are already devoid of material particulars as to the date, time or place when/where the demand was made and the absence of cogent evidence having been brought on record by the prosecution as to the persons who made the demand indicates the failure of the prosecution to prove a material ingredient required to be proved for it to be able to discharge the onus cast upon it.
From whom the amount was demanded
27. It is also pertinent to note that as per the testimony of PW5, the demand of Rs 11.5 lakh was made to her by the accused which is contrary to the deposition of PW2 Mukesh ie her uncle (mama) who has testified that after her marriage, all the six accused demanded the amount of Rs. 1.5 lakhs which he could not afford but at the instance of the accused, he arranged for Rs 60,000/ and gave it to the accused Sanjay and Khemchand thereby implying that the demand was made directly to him and it was upon the insistence of the accused that he arranged the money. Even during his cross examination, PW2 has gone to testify that he had told the IO the names of all the accused that they had demanded Rs1.5 lakhs but he was duly confronted with his previous statements Mark A to E where it was not so mentioned. Thus, in view of the contradictory depositions of the PW2 and PW5, it remains unproved by the prosecution as to whom the purported demand was made. To whom the money was given
28. As per the testimony of PW5 as well as PW2 during their examination in chief, the sum of Rs 60,000/ was given to the accused Sanjay as well as Khem Chand. During her cross examination however PW5 has testified that the sum of Rs 60,000/ was given to her fatherinlaw and not to her husband. Even PW2 during his crossexamination has also testified that he had given the amount to Khem Chand Sharma.
29. Interestingly, the prosecution witness PW3 Anita ie aunt of the complainant has not supported the case of the prosecution in this respect as she has testified during her examination in chief that once the complainant was thrown out of her house and she reached their residence at IIT Delhi, the PW2 called all the six accused and paid the sum of Rs 60,000/ to them. It is pertinent to note that neither PW2 nor PW5 have testified as to the complainant being thrown out by the accused or as to the payment of Rs 60,000/ being made to all the accused. Thus, the testimony of PW3 is not consistent with the version put forth by the prosecution through PW2 and PW5.
30. It is also duly noted that the testimony of PW2 as well as PW5 is completely silent as to the date, time or place where the sum of Rs 60,000/ was handed over to the accused. Nothing except oral testimony of PW2 and PW5 in respect of the amount having been paid has come on record that too with PW3 not supporting the same. No bank records of the PW2 have been proved in evidence by the prosecution to corroborate the oral testimony of PW2.
31. The lack of the same especially the details as to the date when the payment was made assumes significance as PW2 during his cross examination has testified that he had handed over the sum Rs 60,000/ to the accused six months prior to the registration of the case. As per record, the FIR was registered on 11.01.2002 and even the complaint was received by CAW cell on 02.08.2001. Thus if the testimony of PW2 is accepted wherein he has testified that the complainant had been ousted from her matrimonial house on 13.01.2001, it would imply that the PW2 had handed over the sum of Rs 60,000/ after the complainant had already been ousted which is not the case of the complainant or the prosecution and thus the evidence as adduced by the prosecution in respect of the amount being given to the accused remains unproved.
32. PW5 has testified in the court in respect of the accused beating her after her uncle expressed inability to fulfill further demand and demanding the sum of Rs 1 lakhs, motorcycle and LPG gas. However, it is duly noted that the deposition of PW2 as also of PW3 is totally silent as to any demand of motorcycle or LPG gas being made from the complainant. Thus the oral testimony of the complainant same remains uncorroborated even from the testimony of the prosecution witnesses themselves and no justification has come on record as to why the complainant would have told them about all other demands but omit to mention about this demand. Thus, the subsequent demand for Rs 1 lakhs, motorcycle and LPG gas remains unproved.
Ouster from matrimonial home on 13.01.2001.
33. As per the testimony of PW5, on 13.01.2001, accused persons thrashed her out from her matrimonial home after which she returned to her paternal home and started living alongwith her mamaji/PW2. PW2 has also testified during his examination in chief without giving any specific date, month or year that the accused had beaten the complainant and ousted her from her matrimonial home demanding the remaining amount. He has however gone one step ahead and further testified that the complainant was also threatened by the accused that in case she did not bring the money, she would be killed and that due to the same the complainant was not ready to go back.
34. It is duly noted that the testimony of the complainant is completely silent as to her being threatened or ousted from the matrimonial home due to nonfulfillment of the demanded amount which makes it difficult to believe the testimony of PW2 in respect of the same especially when during his crossexamination, he was duly confronted with his previous statements Mark A to E wherein no such threat has been mentioned by him. Thus the incident dated 13.01.2001 remains unproved.
Incident dated 13.05.2001
35. As per testimony of PW5, on 13.05.2001, Khemchand i.e. her father in law, her nandoi, her jeth and her husband reached at her paternal home, beat her mamaji and used filthy language against her whole family and also said that police was informed regarding the incident then they will kill her family. During her crossexamination she has testified that on 13.05.2001, no other person was accompanying her inlaws and that her fatherinlaw was also known as Tek Chand Sharma whose name she had given in the statement. However, she was duly confronted with her previous statement wherein it was not so recorded. It is duly noted that in her complaint Ex PW1/B as relied upon by PW5, she has mentioned her fatherinlaw by name ie Khem Chand Sharma and thereafter she has mentioned the names of two more accused before naming Sh Tek Chand Sharma stated to be residing at Kharkhoda and hence her testimony as the Tek Chand Sharma being an alias of her fatherinlaw is patently false.
36. It is duly noted that PW2 has not testified to the specific date of the incident but has merely testified that in 2001 when he was residing at IIT Delhi, one day the accused Sanjay, Pramod and 23 persons whom he did not identify came to his place in the early morning and threatened him to take the complaint (in CAW Cell) back or else they would kill them. During his crossexamination he testified that he had told the IO regarding the accused coming to his residence and as to the threat extended by accused Sanjay, Vinod alongwith two other persons upon which he was duly confronted with his previous statements Mark A to E wherein it was not so recorded.
37. It is interesting to note that the prosecution has miserable failed to prove even the identity of the accused who have been alleged to be present at the place of incident on 13.05.2001 as it is difficult to fathom that if the accused Khem Chand was indeed present on 13.05.2001 as testified by PW5, why the PW2 who had got the complainant married and hence would have dealt with the head of family of the accused, not recognize the said accused when he could recognize even Pramod who was only the brother in law. Thus, the identity of the accused as also of Sh Tek Chand Sharma remains a unproved with the explanation furnished by the complainant being false on the face of it.
38. It is also duly noted that both the prosecution witnesses have testified as to different incidents having taken place on 13.05.2001 with the complainant testifying as to incidents of physical violence against her uncle/mama ie PW2 but the alleged victim of such beatings not testifying about the same in his testimony. Further while PW2 during his examination in chief has testified as to him being threatened to withdraw the CAW Cell complaint, the testimony of PW5 is completely silent as to the same who has rather testified that the accused had threatened to kill their family if the police was informed about the incident.
39. It is pertinent to note that during the crossexamination of PW5, the defence has been able to elicit from her a denial as to having stated in her previous statement that on 13.05.2001, either she or PW2 had demanded return of the dowry articles from the accused upon which she was duly confronted with her previous statement under section 161 CrPC wherein it was so recorded. It is also duly noted that in her complaint Ex. PW1/B as relied upon by her, the complainant ie PW5 has mentioned about demand being made by the accused for the remaining dowry/demanded amount whereas in her statement under Section 161 CrPC she has mentioned that it was she and her uncle who had demanded back the dowry articles which two versions being inherently opposite cannot be said to have coexisted thereby indicating the falsity of atleast one. It is also noted that for reasons best known to her she omitted to testify about the dowry demand by her uncle during her examination in chief and also falsely denied about the same during the crossexamination thereby allowing the defence to impeach her credibility as a witness.
40. During her examination in chief the complainant as PW5 has relied upon the list of stridhan articles ExPW5/A and ExPW5/B but entire testimony is silent as to her entrusting the same to anyone especially to any of the accused herein or as to her stridhan articles being retained by the accused or as to them having been misappropriated by the accused in any manner. No other evidence in respect of the same same has been brought on record by the prosecution. Thus the ingredients for offence of Section 406 IPC remain unproved.
41. In addition to the various omissions, improvements as well as contradictions being brought forth in the testimony of the prosecution witnesses, the defence has also been able to impeach the veracity and credibility of the PW5 for instance during her cross examination she has asserted that her baraat had come to IIT Delhi despite her being shown her marriage card as relied upon by her wherein the place of marriage is mentioned as Kharkhoda, Meerut and despite PW2 and PW3 having testified that the marriage itself had taken place at Kharkhoda UP.
42. Thus, from the entire evidence on record, various contradictions, improvements and variations in the testimony of the eyewitnesses have been brought forth and hence the prosecution has not been able to prove its case beyond a reasonable doubt and thus the accused are entitled to be given the benefit of doubt. Accordingly accused Sanjay Sharma (husband), Sh Khem Chand Sharma (father in law), Smt. Maalwati (mother in law), Sh. Parmod (Brother in law/Jeth), Vinod (Brother in law/Behnoi) and Smt. Indu (Sister in law/Nanad) are acquitted for offences under section 498A/406/34 IPC; accused Sanjay(husband), Khem Chand(father in law), Parmod (Brother in law/Jeth), and Vinod (Brother in law/Behnoi) are acquitted for offences under Section 506/34 IPC and accused Sanjay (husband) and Khem Chand Sharma (father in law) are acquitted for offences under section 3 of Dowry Prohibition Act r/w 34 IPC in the FIR no. 40/02 PS Hauz Khas. All the six accused are directed to furnish bail bonds in compliance of Section 437A Cr.PC for the sum of Rs 15,000/ which shall remain in force for six months from today whereafter the earlier bail bonds of the accused shall be cancelled and their sureties be discharged. Endorsement, if any, be cancelled and documents, if any, be returned upon proper application and due verification.
43. File be consigned to the record room after necessary compliance.
Pronounced in open court on 18.04.2016 (Pooja Aggarwal)
Metropolitan Magistrate02 (Mahila Court), South Saket Courts/New Delhi.
IN THE HIGH COURT OF GUJARAT AT AHMEDABADCRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 350 of 2016
DILIPBHAI MOTIBHAI SONARA….Applicant(s)
KAJALBEN W/O DILIPBHAI SONARA D/O HIRABHAI VAGHJIBHAI CHHAIYA & 1….Respondent(s)
MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 1 – 2
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 04/07/2016
1. Rule. Learned advocate Mr. Ashish M. Dagli waives service of notice of rule on behalf of respondent Nos. 1 and 2.
- Heard learned advocate Mr. Devendra Pandya for the applicant and learned advocate Mr. Ashish Dagli for respondents. Perused the record.
Petitioner herein is husband, whereas respondent No.1 is wife and respondent No.2 is their minor son. The petitioner has challenged the judgment and order dated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by the Family Court, Rajkot. By such impugned judgment, the Family Court has awarded an amount of Rs.5000/- towards maintenance of wife and Rs.3000/- towards maintenance of minor son with cost of Rs.10,000/- The Family Court has awarded an amount of Rs.2,00,000/- as lumpsum amount for the purpose of provision for residence.
The petitioner has challenged such order on several grounds. However, if we peruse the impugned judgment, it becomes clear that present petitioner has defended the claim of maintenance before the Family Court. The petitioner has adduced his own evidence, so also examined two witnesses and produced relevant documentary evidence either to prove his income so also income of the wife. However, the fact remains that so far as income of the wife is concerned, the land in question is not owned by her and, therefore, at the most, she may get some labour charges as agricultural laborer, if at all she is able to do agricultural work. Whereas it is the case of the petitioner husband that wife is working in Beauty Parlour and earning Rs.10,000/-. However, there is no supporting or corroborating evidence to that effect except pleadings and statement by the petitioner.
As against that, petitioner is also owning 11 hectares of agriculture land though it is stated that some of the plots of land owned by his sister. It has also come on record, that his sister is unmarried and she is also serving as a teacher and earning Rs.15,000/- per month. Even evidence of the petitioner husband has confirmed such situation and, therefore, there is reason to believe that husband is having reasonable income and thereby he can certainly maintain his wife and son.
Considering the rival submissions, when petitioner has not disclosed his correct income or relevant evidence for consideration of his income, the Family Court has relied upon the legal provisions regarding adverse inference and held that petitioner must be earning Rs.15,000/- for awarding compensation to his wife and minor child. Therefore, considering overall facts and circumstances so also requirement of wife to stay with dignity, the Court has awarded such amount as maintenance for two living persons and, therefore, I do not see any reason to reduce the same.
However, so far as additional amount of Rs.2,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
Therefore, though amount of monthly maintenance may not be disturbed, so far as lump sum amount for residential accommodation is concerned, the same needs to be quashed and set aside. Otherwise also it is quite clear and obvious that an amount of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where wife is residing. In such circumstances, practically while considering quantum of maintenance to be paid to the wife, the Court can consider the proper amount of residential accommodation. In the present case, when Court has awarded total Rs.8,000/- towards maintenance of both applicants from the total income of Rs.15,000/-, it is made clear that this amount includes the provisions for rental accommodation and considering all such aspects, such amount is not reduced to any extent.
For arriving at such conclusion, I am placing reliance on the following decisions: (1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569. (2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706. (3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530
In view of above facts and circumstances, revision is partly allowed. Thereby impugned order so far as lump sum amount of Rs.2,00,000/- for the purpose of residence is quashed and set aside. Rest of the order regarding maintenance would remain in force. Interim relief shall stand vacated. Rule is made absolute accordingly.