Delhi District CourtState vs . Shiv Kumar & Ors. on 3 November, 2014IN THE COURT OF MS. MONA TARDI KERKETTA: MM (MAHILA COURTS) :
                                  TIS HAZARI COURTS: DELHI
FIR NO. 494/04
P.S. TIMAR PUR
U/s. 498A/406 /34IPC02401R:­ 1221762005
                                                          STATE  VS. SHIV KUMAR & ORS.
1.DATE OF COMMISSION OF OFFENCE   :    DURING SUBSISTENCE 
                                                                                              OF MARRIAGE SINCE 15.04.1990

2. NAME OF COMPLAINANT                            :     SMT.  SUNITA GARG 
                                                                                                D/O SH KANWAR BHAN
3. NAME OF ACCUSED PERSONS, 
THEIR PARENTAGE & ADDRESS                                                      :  1. SH. SHIV KUMAR 
                                                                                    S/O SH. JAI BHAGWAN GARG
                                                                                    R/O VIKAS NAGAR, GALI NO.2.                     
                                                                                   JAURASI ROAD NEAR GEETA SCHOOL, 
                                                                                   SAMBHALAKHA PANIPAT, HARYANA.
                                                                                         2. SH.  JAIBHAGWAN GARG
                                                                                              S/O SH. NANU RAM  
                                                                                             3. SMT. KALAWATI
                                                                                                  W/O SH. JAI BHAGWAN GARG
                                                                                                 BOTH R/O VILLAGE KHANDARA,  
                                                                                                  PS MATLOTHA,  DISTT. PANIPAT ,
                                                                                                   HARYANA.
                                                                                      4. SH. PAWAN KUMAR
                                                                                                 S/O SH. DHARAM SINGH
                                                                                            5. SMT. SAROJ DEVI
                                                                                                W/O SH. PAWAN KUMAR
                                                                                               BOTH R/O VILLAGE CHHAJPUR
                                                                                                   KHURD, PANIPAT, HARYANA
                                                                                          6. SMT. SULOCHNA DEVI

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     1/15
                                                                           W/O SH. RAM KUMAR, 

                                                                     7. SH. RAM KUMAR
                                                                          S/O SH. LACHNI RAM
                                                                          BOTH R/O BHARAT NAGAR,
                                                                          LINE PAAR, SAMBHALAKHA,
                                                                          PANIPAT, HARYANA
                                                                 
                                                                       8. SH. RAMESH CHAND
                                                                            S/O SH. JAI BHAGWAN
                                                                             
                                                                        9. SMT. KAMALA DEVI
                                                                              W/O SH. RAMESH CHAND
                                                                             BOTH  R/O D­67, MANSHA RAM   
                                                                             PARK, UTTAM NAGAR, NEAR 
                                                                             NAJAFGARH ROAD, DELHI.

                                                                      10.  SH. PREM
                                                                             S/O SH. JAI BHAGWAN

                                                                      11. SMT. SANTOSH RANI
                                                                          W/O SH. PREM ( SINCE EXPIRED)

                                                                            BOTH R/O E­37, NANHE PARK,
                                                                            UTTAM NAGAR, DELHI. 

4. OFFENCE COMPLAINED OF                                      :            498A/406 /34IPC5.  PLEA OF ACCUSED PERSONS                    :         PLEADED NOT GUILTY
6. FINAL ORDER                                                       :           ACQUITTED 
7. DATE OF SUCH ORDER                                   :          03.11.2014

COUNSELS FOR THE PARTIES            
FOR THE STATE                                      :          SH.  ANUJ PRAKASH
FOR THE ACCUSED PERSONS                          :          SH. RAVINDER PAL SINGH

THE BRIEF REASONS FOR THE DECISION : ­1.                    The present case has been registered against husband and in laws of the 
   complainant. Accused Shiv Kumar is the husband, accused Jai Bhagwan Garg and 
   Kalawati are parents in law, accused Ramesh Chand and Prem are Jeth, accused 
   Kamla     and   Santosh   are   Jethani,   accused   Saroj   and   Sulochana   are   Nand   and 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     2/15
    accused Pawan Kumar and Ram Kumar are Nandoi of the complainant.  The brief 
   facts   of   the   case   as     have   been   disclosed   in     the   statement   made   by   the 
   complainant Smt. Sunita Garg D/o Sh. Kanwar Bhan R/o H. No. 1000, Gali No. 7, 
   Block­D,   Nathupura,   Delhi,   wherein   it   is   stated   that   marriage   between 
   complainant and accused  Shiv Kumar was solemnized on 15.04.1990   at Panipat 
   Haryana,  according to Hindu Rites and Ceremonies and   out of said wedlock three 
   children were born. It is further stated that after   marriage, complainant went to 
   live at her matrimonial home at village Khandra, Distt. Panipat along with accused 
   persons.   It   is   further   stated   that   soon   after   marriage,     in   laws   of   complainant 
   started   committing   cruelties   upon   the   complainant   in   furtherance   of   dowry 
   demand.2.               It   is   further   stated   that   accused   persons   used   to   quarrel   and   beat   the 
   complainant in furtherance of dowry demands. They also  used to taunt  by saying 
   " tu toh bhikhariyo ke ghar set aayi hai".  It is further stated that after some time, 
   complainant  and her husband started residing at Samalkha but  accused persons 
   did not stop committing cruelties upon her for dowry.  Whenever  complainant's in 
   laws  used to visit Samalkha, they would  instigate complainant's husband,  taunt 
   and give beatings to complainant and her children. It is further stated that   on 
   12.8.2004, her in laws came to   their place.   While watching Television, accused 
   Kamla told her to bring new TV but when complainant did not give  nod to bring 
   the same then she  dragged the complainant by catching hold her hair and told '' 
   Ek tv apne ghar se nahi la sakti to tu humare liye aur kya karegi''.  At that time,  her 
   Jeth and Nandoi also joined  and started beating  the complainant.   The parents in 
   law of complainant told '' ise aur marro humare ghar main kangalo ki koi jaroorat 
   nahi hain'' .3.      It  is further  stated that   on     23.8.2004, all accused persons turned  her and 
   children out of matrimonial house  with demand of  Rs. 50,000/­   and made clear 
   that  she shall not be allowed at matrimonial house till their demand is  fulfilled.FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     3/15
    Thereafter,   complainant   and   her   children   were     forced   to   live   without   any 
   provision for maintenance. It is also stated that accused persons used to assault 
   complainant   by     baton   blows   and   pouring   of   hot   water   and   tea.      Thereafter, 
   finding no other alternative, complainant got a complaint lodged before  CAW Cell, 
   where re­conciliation proceedings were conducted but  matter could not be sorted 
   out . Thereafter, on the basis of statement of complainant,   a case undersection 
   498A/406/34IPC was registered against the accused persons.4.       Subsequent   to   registration   of   FIR,   investigation   was   conducted   and   after 
   completion   of   investigation,   charge­sheet   was   filed   in   the     court   against   the 
   accused persons. Cognizance of the offence was taken and  accused persons were 
   summoned by Ld. Predecessor to face the trial for the offence allegedly committed 
   by   them.     They   were   supplied     with   copy   of   charge   sheet   in   compliance   of 
   provision given undersection 208Cr. PC. Arguments on the point of charge heard 
   and  vide  order  dated 4.12.2007, charge undersection 498­A/34  was directed to 
   framed against accused Shiv Kumar and Kamla Devi and undersection 406IPC 
   against   accused   Shiv   Kumar   and   remaining   accused   persons   were   discharged. 
   Thereafter, a revision  petition was preferred on behalf of the complainant, which 
   was allowed vide order dated 24.10.2008. In pursuant to said order,  charge undersection  498­A/34IPCwas   framed  against   all  discharged   accused   persons.    The 
   accused   persons   individually   pleaded   not   guilty   and   claimed   trial.     During   the 
   course   of  trial,   accused  Santosh  unfortunately   expired,     on  receiving  her   death 
   verification   report,   proceedings   against   her   were   abated   vide   order   dated 
   25.8.2011.5.           Subsequent thereto   matter was fixed for prosecution evidence.  In order to  
        prove its case, the  Prosecution  produced following ten witnesses :­(i)    W/ASI Sushma appeared as PW­1 and proved FIR Ex. PW1/A, (OSR)(ii)   ASI Rani, appeared as PW2,(iii)  Rtd. SI Chander Singh  appeared as PW 3, 


FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     4/15(iv)  Smt. Sunita Garg/Complainant    appeared as PW­4  and proved list of dowry 
   articles Ex. PW4/A, Complaint of CAW Cell vide Ex. PW4/B,(v)    W/Ct. Rakesh   appeared as PW­5 and proved arrest memos   of accused Shiv 
   Kuamar, Jai Bhagwan and Kalawati vide Ex. PW5/A, Ex. PW5/B and Ex. PW5/C and 
   personal search memos Ex. PW5/D, Ex. PW5/E and PW5/F,(vi)  Sh, Sumit Kumar, nephew of complainant appeared as PW 6,(vii) HC Vinod Kumar  appeared as PW­7,(viii) Rtd. SI Ramphal appeared as PW­8,(ix) Ct. Mukesh  appeared as PW­9,(x) IO / SI Babu Ram appeared as PW­10 and proved arrest memo of accused Saroj 
   Devi, Sulochana Devi, Ram Kumar, Pawan Kumar , Ramesh Chand , Kamla Devi 
   and Santosh Rani  Ex. PW 10/A,B,C, D, E, F, G and H,6.       After  completion  of  prosecution  evidence,  matter  was  fixed  for   recording  of 
statement of accused persons undersection 313Cr PC.  The statements of accused 
personsu/s 313Cr. PC. were  recorded,  wherein entire incriminating circumstances 
appearing on record were put to them, to which they denied as false and incorrect 
and claimed to have been falsely implicated.   In order to disprove charge against 
them, accused persons  examined Sh. Jagminder as DW 1 and Sh. Shiv Kumar as DW2 
( on an application undersection 315Cr. Pc.) Thereafter   matter was fixed for final 
arguments.7.         During   the course of final arguments,   following arguments were made on 
behalf of accused persons:(i)   Admittedly,  complainant  and accused Shiv Kumar were residing separately in 
   exclusion of other accused persons,(ii)  No medical evidence with respect to incident dated 22.8.2004 has been placed 
   on record ,(iii)    No   complaint   was   made   with   local   police   station   despite   allegations   of 
   continuous torture and harassment.  The present complaint was filed after coming 
   to Delhi and after due deliberation and in consultation  with the family members,

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     5/15(iv)  Allegations are general in nature without specific details(v)    Matter   was   earlier   settled   between   the   parties   and     in   pursuant   to   said 
   settlement,   complainant   was   duly   compensated   but   she   did   not   comply   with 
   terms and conditions   to be done on her part.     She did not come forward for 
   quashing of present FIR after receiving  compensation.   The factum of settlement 
   is established through the testimonies of defence witnesses as well as documents 
   Ex. DW 2/A­B and Mark A and B,(vi)  No recovery of dowry articles was effected and in lieu of dowry articles,  a sum 
   of Rs. one lac was given during bail proceedings.8.    The arguments of the prosecution are given below:­(i)   PW 4/ complainant has mentioned facts with specific details   but no cross 
   examination has been conducted on said facts,(ii) Settlement / compromise of the matter has no bearing on the merits of the case 
   and accused persons cannot be acquitted on the basis of said settlement,(iii) Payment of Rs. one lac and non recovery of dowry articles have no effect upon 
   the merits of the case,(iv)   Accused had the opportunity to return the dowry articles during CAW Cell 
   proceedings but  same were deliberately not returned,9.      The court has heard the submissions of both the  sides and also gone through 
entire record including testimonies of witnesses.   Before appreciating evidence on 
record, let us  first discuss the relevant legal provisions given U/s 498 A /406/34IPC.Section 498­AIPCprovides punishment  to husband or relatives of the husband of a 
woman subjecting her to cruelty. The prosecution must prove that :(i) the woman was subjected to cruelty or harassment,(ii) such cruelty or harassment was shown either by the husband of the 
        woman or by  the relatives of the husband,(iii) such cruelty was (1) with a view to derive her (a) to commit 
        suicide or (b) to cause grave injury or danger to her life,limb or 
        health,whether mental or physical or(iv) such harassment was (1) with a view to coerce her or any person 
        related to her to meet any unlawful demand of any property or 
        valuable security or(2) on account of failure by such woman or any 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     6/15
         person or any person related to her to meet such unlawful demandSection   406IPC   prescribes   punishment   for   criminal   breach   of   trust.For offence  under this section the prosecution must prove :(i)  that the  accused was  entrusted with  property  or with  
                         dominion over it,(ii) that he (a) misappropriated it or(b) converted it to his 
                           own use or (c) used it or (d) disposed of it10.     In the light of aforesaid legal provisions,   the court would now appreciate the 
 evidence brought on record to ascertain if alleged acts of accused persons amount 
 to cruelty in terms of provision given U/s 498 AIPCand if  accused Shiv Kumar is 
 guilty   of   criminal   breach   of   trust.     Undersection   498­AIPC,     demand   is   a 
 precondition   to   attract   the   provision   of   explanation(b)   ofsection   498­AIPC. 
 Admittedly, the complainant has built her case on explanation (b) ofsection 498­AIPC.   In   the   judgment   of    Smt.  Sarla   Prabhakar  Vs   State   of   Maharashtra,1990  
 Cri.L.J. Page 47(Bombay) and Rajnimal & Ors. Vs State by DSP,CB CID,1993 Cr.L.J  
 page 3019   , the court observed that cruelty by itself without demand would not be 
 sufficient   to   bring   home   the   guilt   under   explanation   (b)   ofsection   498­AIPC. 
 Harassment by itself is not a cruelty unless there is a demand of dowry   and the 
 cruelty is a consequence of that demand.The Hon'ble Supreme court inState of HP 
 Vs Nikku Ram & Ors.(1995)6 SCC 219 while interpreting the provisions ofsection 
 498­AIPCobserved   that   harassment   to   constitute     cruelty   undersection   498­A 
 explanation(b) must have the nexus with the demand of dowry and if this is missing 
 the case will fall beyond the scope ofsection 498­A. The precondition for attracting 
 the provision of this section   is the demand and if the demand is missing and the 
 cruelty is for the sake of giving torture   to the woman without any nexus with the 
 demand then such a cruelty will not be covered under explanation(b).It may be 
 cruelty   underHindu   Marriage  Actas   held  by   the  Supreme   Court   in  the   case   ofShobha Rani Vs Madhukar ReddyAIR 1988 SC 121.  The Apex court observed that 
 cruelty   under   section   498­A,IPCis   distinct   from   the   cruelty   under   theHindu 
 Marriage Actwhich entitles the wife to get a decree for dissolution of marriage.FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     7/1511.    Let us now appreciate the evidence available on record in the light of aforesaid 
legal provisions and judicial pronouncements.The   testimony   of     complainant   Smt.   Sunita/PW­4     is   reproduced   and  
        appreciated as below:­
    (11.1)   She has deposed that   sufficient dowry articles were given at the time of 
    marriage.   It be observed that no evidence has been brought on record to prove 
    the   source  of said dowry articles. ( Reference  may be  had to the  judgment of 
    Narender Kumar & Anr.Vs State (Govt. of NCT of Delhi) I (2008) DMC 337, ) 
    (11.2)   She has further deposed that her parents and brother used to give money 
    whenever they used to visit her matrimonial home and her husband used to enjoy 
    said money. She has further deposed that  accused  was not working himself but  a 
    grocery shop  was being run by  her in laws. It be observed that these facts are not 
    mentioned in her complaint Ex. PW­ 4/B as well as statement recorded u/s 161 Cr. 
    PC.   It also be observed that allegations are against accused Shiv Kumar and no 
    allegation has been leveled against other accused persons and  allegations leveled 
    against accused Shiv Kumar are general in nature without any specific details,  
    (11.3)   She has further deposed that accused Shiv Kumar used to   assault her in 
    furtherance of demand of money  to be brought from her parents. It be observed 
    that this  fact is  not mentioned in her complaint Ex. PW 4/B as well as statement 
    recorded u/s 161 Cr. PC.   It also be observed that allegation pertains to accused 
    Shiv Kumar only and nothing   has been stated against   other accused persons 
    however allegation leveled against accused Shiv Kumar is  again general in nature 
    without any specific detail,
    (11.4)  She has further deposed that accused persons were not satisfied with the 
    quality of articles given in the   marriage and they used to demand high quality 
    articles.   It be observed that these facts are not mentioned in her complaint Ex. 
    PW 4/B as well as statement recorded u/s 161 Cr. PC.   It also be observed that 
    allegations are general in nature  without any  specific details,  
    (11.5)   She has further deposed that   on 22.8.2004,   all   accused persons made 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     8/15
     demand of new colour TV and when complainant expressed her inability then she 
    was assaulted by the accused persons.  In this regard,  it be observed that though 
    no cross  examination on this point  has been conducted  but the allegation are 
    general in nature as complainant has not mentioned the role of each accused in 
    commission of cruelties. It also be observed that this allegation is not supported 
    by corroborative evidence, 
    (11.6)  She has further deposed that on 23.08.2004 she along with children  were 
    turned out of matrimonial house  in furtherance of demanded Rs. 50,000/­ and it 
    was  told  that  complainant  shall be  allowed  at   matrimonial  house  only   if their 
    demand of Rs. 50,000/­ is fulfilled and therefore, she went to  her parental house. 
    She has further deposed that she  was assaulted by the baton and sometimes hot 
    tea   was   thrown   on   her   face     by     accused   Shiv   Kumar.   It   be   observed   that 
    allegations   are   not   supported   corroborative   evidence.   It   be   also   observed   that 
    during cross­examination of PW­4 and in the testimonies of DW­1 & 2, it has come 
    on record that complainant and accused Shiv Kumar were residing separately at 
    Samalkha  and therefore claim of complainant regarding having  been turned out 
    of matrimonial house by the accused persons is falsified.12.       It is also pertinent to note that in the present case, the complainant was 
    made to CAW Cell on 01­09­2004  more than one week  after the alleged incident 
    of being  turned  out from  the  matrimonial home  and    about fourteen years  of 
    cruelties, which are claimed to have been committed since the very beginning of 
    the marriage for the reason of non­fulfillment demand of dowry  Time and again, 
    the object and importance of prompt lodging of the First Information Report has 
    been highlighted. Delay in lodging the First Information Report, more often than 
    not, results in embellishment and exaggeration, which is a creature of an after 
    thought. A delayed report not only gets bereft of the advantage of spontaneity, the 
    danger of the introduction of the coloured version, exaggerated account of the 
    incident   or   a   concocted   story   as   a   result   or   deliberations   and   consultations, 
    casting a serious doubt on its veracity. Therefore, it is essential that the delay in 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     9/15
     lodging the report should be satisfactorily explained.   (2008 V AD (Cr.)(SC) 577)
                                                                                        
    State of Andhra Pradesh Vs. M. Madhusudhan Rao).  In the present case also, no 
    explanation worth the name for delay in filing the Complaint with the police has 
    come on record. Though in the testimony of DW­1, it is mentioned that earlier 
    complainant had filed  a complaint against him before  CAW Cell, Sonipath but 
    matter was compromised   with the intervention of CAW Cell officials and they 
    lived  together  peacefully.   However,  no  such  facts  have   been  mentioned  in  the 
    testimonies of complainant and other prosecution witnesses. Even for argument 
    sake, it is presumed that a complaint was filed against the accused but the matter 
    was settled and therefore, acts of cruelties if any, committed by the accused are 
    deemed to have been condoned.  In her entire testimony, PW­4/complainant has 
    not   mentioned that earlier she did not prefer to file complaint against accused 
    persons as  she wanted to save her matrimonial life.13.      It   be   further   observed   that   the   complainant   has   alleged   that   she   was 
    physically,   mentally   tortured   in   furtherance   of   dowry   demand   by   the   accused 
    persons   but   she   has   not   placed   on   record   any   MLC   or   any   medical   record 
    whatsoever for the alleged beatings and injuries caused to her.   Though she has 
    claimed to have been beaten on 22.08.2004 in furtherance of demand of new TV 
    but  this appears to be a bald allegation for not being corroborated by supporting 
    evidence. She has not mentioned the role of each accused in commission of said 
    offence and have leveled general and bald allegation. It also be observed that no 
    complaint to  police, any other higher authority or even to relatives was made.  No 
    other witnesses be it interested or independent witnesses have been examined to 
    prove the allegations of beatings.   It seems impracticable that the complainant 
    would continue to live with accused persons despite getting repeated beatings.14.      It is also noticeable that though complainant has leveled various allegations 
    against her in laws but it is established on record that she lived at matrimonial 
    house   only   for   sometime   after   the   marriage,   thereafter,     she   along   with   her 
    husband shifted to Chhajiya village .   During cross­examination, she has stated 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     10/15
     that she stayed at matrimonial house at village Khandara for about one and half 
    years thereafter, she along with her husband shifted to Samalkha but on further 
    cross­examination, she has admitted that before shifting to Samalkha, they used 
    to reside at Chhajiya village in rented premises and all her children were born 
    there.  The version of complainant to this effect is  falsified through testimony of 
    DW­1 Sh. Jagminder, who  has  specifically  stated  that accused  Shiv Kumar and 
    complainant used to live as tenant at his house   at village Chhajiya   and their 
    children were also born there. It be observed that during cross­examination, no 
    question or suggestion has been put to this witness in order to rebut this fact and 
    therefore deemed to have been accepted to be true.(14.A )  DW­2  has also deposed on similar line, he has stated that after marriage, 
    he and complainant resided at Khandara for about one year only and thereafter, 
    they   shifted   to   village   Chhajiya,   where   they   resided   for   about   08   to   09   years 
    peacefully   and   in   the   year,   2000,   they   shifted   to   Samalkha.   During   cross­
    examination, no counter question or suggestion has been put to rebut this fact. 
    Though   the   complainant   has   claimed   that   her   in   laws   used   to   visit   them   at 
    Samalkha also and used to commit cruelties upon   there complainant but these 
    allegations are not supported by any other evidence.   Whereas DW­1 has stated 
    that no one including parents, brother and sister of accused Shiv Kumar used to 
    visit them or complainant used to visit them  as she would not like them. During 
    cross­examination, no question has been put to the witness to disprove this fact 
    and only suggestion has been given that complainant used to like accused persons 
    and he did not remember the  date, time, month or year because complainant 
    never told him that she did not like the accused persons. DW­1 has specifically 
    stated that during the period complainant and accused Shiv Kumar lived at his 
    house, there was no major quarrel between them. This fact has not been rebutted 
    by cross question and only suggestion has been given that accused Shiv Kumar 
    used   to  quarrel  and   harass  the  complainant   in  furtherance  of  dowry   demand, 
    which has been denied by the witness.  It also be observed that in the  testimony, 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     11/15
     most of the allegations are against husband of complainant and only sweeping 
    allegations have been leveled against other accused persons, which are general in 
    nature and  are without specific details.15.          It be observed that accused persons have taken the plea that matter was 
    earlier   settled   with   the   complainant   but   despite   fulfillment   of   terms   and 
    conditions of said settlement by the accused, complainant did not cooperate in 
    getting   the   FIR   quashed.   From   the   testimony   of   DW­1   and   admissions   made 
    during   cross­examination   of   complainant,   the   plea   of   accused   persons   with 
    regard   to   settlement   is   proved.   During   cross­examination,   complainant   has 
    admitted that compromise talks were initiated by the accused. She has further 
    admitted   that   she   had   received   Rs.   one   lac   against   dowry   articles   during   bail 
    proceedings. She has also admitted that 50 Sq. Yds. out of 150 Sq. Yds. of accused 
    Shiv Kumar shall be handed over to her.(15.A)       In   his   testimony,   DW­1   has   stated   that   on   16.09.2004,   he   and 
    complainant     entered   into   a   compromise   vide     Mark   A   i.e.   certified   copies   of 
    compromise dated 16.09.2004 and 08.10.2004 and as per agreement , he permitted 
    the   complainant   and   children   to   reside   at   Property   situated   at   Vikas   Nagar, 
    Samalkha but complainant did not come to reside there. Thereafter, at the time of 
    bail matter he paid a sum of Rs. 1,00,000/­ as per court order and in proceedings 
    under   section   125   Cr.   PC.,   he   transferred   50   yds.   property   in   favour   of   the 
    complainant   vide     Ex   DW­2/A.   He   has   further   stated   that   on   transfer   of   said 
    property,   complainant   started   residing   with   him   but   continued   with   her 
    quarreling,   when   the   accused   objected   ton   it,   she   shunted   him   out   of   said 
    property with the help of his brother  and lodged a false complaint against him at 
    Panipat.16.          DW­2 has further testified that on 12.02.02,   complainant   entered into 
    another agreement vide Mark B , wherein it was decided that said property shall 
    be sold and there shall not be any relation between them and complainant shall 
    cooperate in getting the present  FIR quashed but even after sale of property vide 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     12/15
     Ex DW2/B,  complainant  did  not  cooperate  accused  persons  in getting  the  FIR 
    quashed.     It   be   observed   that   during   cross­examination   of   DW­1,   nothing 
    substantial could be elicited to disprove the claims of accused persons. During 
    cross­examination, DW­1 has  admitted  that Ex DW­2/A contains his statement 
    bearing his signatures at point A.  The claims of accused persons are established 
    through document Ex DW2/A i.e. Sale deed, which proves transfer of 50 Sq.Yard 
    property in favour of the complainant, document Mark A proves undertaking of 
    parties  regarding transfer of  property situated at Samalkha and severance of ties 
    with each other and document Mark B   further proves the factum of selling of 
    property   with   mutual   agreement,     declaration   by   complainant   with   regard   to 
    having   no   grievance   left   against   the   accused,   undertaking   to   withdraw   the 
    pending cases against accused and to cooperate in quashing of present FIR.   The 
    court is of the view that after settlement, the alleged acts of cruelties on the part of 
    accused persons,   are deemed to have condoned by the complainant. The court 
    also can not turn blind eye to the fact that despite undertaking complainant did 
    not honour the settlement, which should go against her. In view of the aforesaid 
    discussion, the court is  of the considered opinion that chargeu/s 498A/34IPC is 
    not established against  the accused persons.17.          It be observed that   accused Shiv Kumar   has also been charged undersection   406IPC   for   having   misappropriated     the   stridhan   articles   of   the 
    complainant to his own wish. In order to to establish the charge ofSection 406IPC,   the   prosecution   was   under   the   obligation   to   establish   the   ingredients   ofsection 405IPC thus, it was required to be established that an entrustment was 
    made in favour of the accused and he was   having dominion over the articles of 
    the complainant and with dishonest intentions the articles entrusted to  him, have 
    been  misappropriated.   PW­4   has     not   mentioned   about   entrustment   of  dowry 
    articles   in   favour   of   accused   in   her   entire   testimony,   wherein   she   has   merely 
    stated that all  her dowry articles have been retained by the accused persons since 
    she   was   turned   out   of   matrimonial   house   but     it     be   observed   that   during 

FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     13/15
     investigation none of the dowry articles could be   recovered from the house of 
    accused, which is admitted even by PW­10/ IO SI Babu Ram and  admittedly, in 
    lieu   of   dowry   articles,   complainant   was   given   Rs.   1,00,000/­.   The   claim   of 
    complainant regarding retention of dowry articles by accused persons is falsified 
    with the fact that she and accused Shiv Kumar   were living separately from co­
    accused persons since long.18.          The list of dowry articles Ex.PW4/ A is  not witnessed by family members 
    of   the   parties,   which   casts   a   serious   doubt   over   the   genuineness   of   above 
    mentioned   list.   No   bill,   invoice   etc.   of   the   articles   and   or   of   the   conveyance 
    through  which  the  articles  reached  the  matrimonial home  of complainant  has 
    been proved on record.In such circumstances being guided by the judgment ofNeera Singh vs. State Government of NCT of Delhi & Ors.138 (2007) DLI 152,  the 
    court   is     of   the   opinion   that   entrustment   in   favour   of   the   accused   is   not 
    established.19.           It be  also observed  that    in the present case, there  is no investigation 
    regarding source of dowry articles. In the judgment of Narender Kumar & Anr.Vs 
    State (Govt. of NCT of Delhi) I (2008) DMC 337, it has been held by the Hon'ble 
    court that the court must be very cautious during trial of offences under section 
    498­A/406IPCas in all such cases in the name of investigation, except recording 
    statement of complainant and  her few  relatives nothing is done  by  the police. 
    Police does not verify any circumstantial evidence nor collect any other evidence 
    about   claims   made   by   the   complainant.   This   all   results   into   gross   misuse   of 
    provision   of   law   and   investigating   agency   in   all   such   cases   must   collect   all 
    circumstantial and other evidence in respect of claims made by complainant. The 
    courts   should   always   be   careful   in   considering   credibility   and   truthfulness   of 
    statement of complainant and relatives. In the present case also,  no investigation 
    regarding source of dowry articles has been conducted.In view of the fact that none of the ingredients ofsection 405IPC is established 
     and therefore no caseu/s 406IPC is made out against the accused.FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     14/1520.           In   view   of     aforesaid   discussions,   the   court   is  of   the   opinion   that   no 

    material evidence has been produced  on record in order to secure  conviction of 

    accused persons. Accordingly,  accused  persons are acquitted from the respective 

    charges framed  against them under section   498­A/34/ 406IPC.21.   File be consigned to Record Room.ANNOUNCED IN OPEN COURT ON 03.11.2014
CORRECTED & SIGNED ON 20.11.2014                                                        



                                                                                                          (MONA TARDI KERKETTA)
                                                                                                          MM­02 , MAHILA COURTS
                                                                                                         TIS HAZARI COURTS, DELHI 




FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     15/15FIR No.494/04P.S. Timarpur
U/SEC. 498A/34/406IPCSt.   VS. Shiv Kumar & Ors.03.11.2014

Present :­         Ld.  APP for the State.
                  Accused Santosh has expired
                  Other accused on bail with Ld. CounselVide separate judgment announced in the open court,  accused persons 
are  acquitted from the respective charges framed  u/s 498A/34/406IPC.Previous bail bonds are cancelled, sureties are discharged. Documents if 
any, be returned against receiving and endorsement if any be cancelled.In   compliance   of   provision   given   under   section   437­ACrPC,   fresh 
personal   bonds   in   the   sum   of   Rs   10,000/­   with   one   surety   each   have   been   filed, 
attested and accepted, which shall remain in force for a period of 6 months.File be consigned to Record Room.ANNOUNCED IN OPEN COURT.(Mona Tardi Kerketta)
                                                                                        MM02/Mahila Court
                                                                                     Tis Hazari Courts, Delhi




FIR NO. 494/04          PS TIMAR PUR                                               STATE VS. SHIV KUMAR & ORS.     16/15