Complainant sought leave to appeal against acquittal of husband under Sections 406/498-A IPC after the first appellate court set aside conviction. Court found no entrustment or misappropriation of istridhan and allegations of cruelty vague; leave application dismissed.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
219 Date of order: 06.08.2024
CRM-A-2709-MA-2018(O&M)
Amarjeet Kaur
…..Applicant(s)
Vs.
State of Punjab & Another
…..Respondent(s)
CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA
Present:Ms. Shanika Khurmi, Adv o cate for the applicant.
Ms. Aakanksha Gupta, A A G Punjab.
Nidhi Gupta, J.
CRM-42991-2018
This is an application under Section 5 of Limitation Ac t
read with S e ction 482 Cr.P.C. for condonati o n of delay of 327 days in filin g the appeal.
It has been mentione d in the application that th e applicant/appellant had approached the counsel well within time for filin g the appeal, but the counsel asked for cert a in documents/affidavits whic h are very m uch necessary for the adju d ication of the present case . Meanwhile the copy of the impugned judg m ent was lost by the clerk of th e counsel and the same could only be trac e d in the month of June 2018. Thereupon t h e counsel drafted the Criminal Revision which was filed befor e
this Court o n the opening day after sum m er vacation i.e. 2nd July 2018 .
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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Upon whic h the registry of this Court raised certain objections o n 06.08.2018. T hereupon it unveiled to the c o unsel that the Criminal Appeal under Secti o n 372 Cr.P.C. will lie to this Court and consequently, th e present app e al was filed and as such the d e lay of 327 days has occurred i n filing of pres e nt appeal.
I do not find that the ab o ve reasons constitute sufficien t ground for c ondonation of such inordinate and extraordinary delay of 32 7 days. Present application accordingly, stand s dismissed.
MAIN CASE
Present application und e r Section 378(4) Cr.P.C. is file d by the co m plainant/victim/wife seeking leave to file appeal agains t judgment d a ted 18.08.2017 passed by t h e learned Additional Session s Judge, Jalan d har, whereby the Criminal Appeal bearing No.CRA-63-201 7 titled as “Ha r pal Singh Vs. State of Punjab” f iled by the accused/responden t No.2 herein , has been allowed; and thereby the judgment of convictio n dated 24.01.2017 passed by learned Judicia l Magistrate, 1st Class, Jalandha r vide which t h e accused was convicted in ca s e FIR No.145 dated 23.11.201 0 under Secti o n 406/498-A IPC registered at Police Station Kartarpur , Jalandhar a n d was sentenced to underg o rigorous imprisonment for a period of o n e year each under Section 40 6 and 498-A IPC, has been se t aside.
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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reasoned j u dgment of conviction dat e d 24.01.2017, whereby th e accused/res p ondent No.2 had been convict e d under Sections 406 and 498 - A IPC and s e ntenced to undergo rigorous i m prisonment for one year eac h under Secti o ns 406 and 498-A IPC, has bee n set aside. It is submitted tha t the impugn e d order dated 18.08.2017 has been passed with legal and material ir r egularities which has caused failure of justice to th e applicant/complainant. In passing the imp u gned order, the learned cour t below has ignored the very relevant fact th a t it was the second marriage o f the accused , and that he had turned out h is previous wife also from th e matrimonial home for demand of dowry af t er beating her. The facts of th e present case are much worse, so much so t h at the accused even tried to kil l the applicant with kerosene oil whereupo n the applicant filed complain t No.1038 PT M dated 16.09.2010 to the SHO Police Station Kartarpur , Jalandhar, on the basis of which present FIR No.145 dated 23.11.201 0 under Secti o ns 406 and 498-A IPC wa s registered at Police Statio n Kartarpur. D uring investigation, the applicant had given list of dowr y articles (Ex. P B and Ex.PW1/B) along with photographs of the marriage , which were duly proved on record. The fact that dowry articles wer e recovered fr o m the accused vide Recovery M emo (Ex.PW6/A) goes to sho w that the acc u sed has been wrongly acquitted by the learned First Appellat e Court. It is f u rther submitted that the istrid h an of the applicant is still lyin g with the acc u sed.
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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offence und e r Section 406 IPC is made ou t is totally wrong, perverse an d based on th e misreading of evidence as well as settled principles of law. It i s contended t h at the list of istridhan has bee n proved on record without an y objection as Ex.PB and Ex.PW1/PA. Admitte d ly, even as per the evidence o f the Investig a ting Officer (PW7), the accus e d has got recovered the said dowry articles vide Recovery Memo (Ex. P W6/A). At no time was an y objection r a ised by the accused or his f amily members regarding th e ownership of the recovered istridhan or th e case property. It is submitte d that from the above, it is clear that offenc e under Section 406 IPC stand s duly proved against the accused. Photographs of the marriage placed on record as M a rk 1 to Mark 8 as Ex. PW6/A t o Ex.PW6/H, clearly indicate th e entrustment of dowry articles by the family of the applicant to the accuse d at the time of marriage. When the applicant/wife was thrown out of th e matrimonial home by the accused, she had demanded return of th e istridhan which was refused by the accuse d . Subsequently, the same wa s recovered b y the police vide Recovery Me m o (Ex.PW6/A) after the accuse d was taken i n to custody. It is accordingly submitted that all the essential ingredients to make out an offence under S e ction 406 IPC are made. 4. It is further submitted th a t as regards the offence unde r Section 498 - A IPC, the matrimonial cruelt y always occurs within the fou r walls of m a trimonial house and are ge n eral concealed by the famil y members o f the wife. However, despite that in the present case, th e applicant had produced several prosecuti o n witnesses in support of he r allegations. The deposition of these wit n esses took the test of cross -
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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examination and the defence failed to shatter their evidence. It i s contended t hat once the allegations of h arassment and torture to th e applicant fo r unlawful demand of dowry st a nd proved, then the accused i s liable for p u nishment under Section 498- A IPC as well. It is accordingly , prayed that the well-reasoned judgment of the learned trial Court b e upheld and the impugned judgment of t h e learned Additional Session s Judge, bet s e t aside.
5. No other argument is ma d e on behalf of the applicant.
6. I have heard learned c ounsel for the applicant and
perused the case file in great detail.
7. Brief facts of the case ar e that the applicant was marrie d to respond e nt No.2 on 20.11.2005. One child was born out of thei r wedlock, w h o is in the care and custody of the applicant. Very succinctl y put, it is the case of the applicant that at th e time of marriage, the accuse d and his fami l y demanded cash of Rs.2 lakh o r car. As the applicant failed t o satisfy the s aid demand of the accused, t hey started beating her upon which the a p plicant gave Rs.50,000/- and R s .90,000/- to the accused. The n the applicant filed complaint No.1038 PT M dated 16.09.2010 to the SH O Police Stati o n Kartarpur, Jalandhar, on t h e basis of which present FI R No.145 date d 23.11.2010 under Sections 4 0 6 and 498-A IPC was registere d at Police S t ation Kartarpur. There were seven accused named in th e complaint, t he same being accused N o .1/respondent No.2/husband; accused No.2/father-in-law; accused No.3/mother-in-law; accused SUNENA No.4/unmar r ied sister-in-law; and accused Nos.5 to 7/married sisters-in - 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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law/nanad o f the applicant/complainant. During inquiry, father-in-law , mother-in-law and sisters-in-law of the applicant were found to b e innocent an d formal FIR was registered a n d Challan was presented onl y against resp o ndent No.2.
8. The respondent No.2 fac e d trial and the learned Judicial Magistrate 1st Class, Jalandhar vide judgment of conviction date d 24.01.2017 c onvicted the respondent No.2 for the offences punishabl e under Secti o n 406 & 498-A IPC. Vide Orde r of Sentence dated 24.01.201 7 passed by the learned J.M.I.C., Jaland h ar the convict/accused wa s sentenced to Rigorous Imprisonment for a period of 1 years for th e commission of offence punishable under S ection 406 IPC, and Rigorou s Imprisonme n t for a period of 1 year f o r the commission of offenc e punishable u nder Section 498-A IPC, along w ith fine of Rs. 1000/- each an d in case of n o n-payment of fine, the convi c t shall further undergo Simpl e Imprisonme n t for a period of One M o nth each. Pursuant thereto , respondent N o.2 preferred Criminal Appeal No. 63 of 2017 titled as "Harpa l Singh Vs. St a te of Punjab" which was allo w ed by the learned Additional Sessions Ju d ge, Jalandhar vide impugned Judgment dated 18.08.2017 , whereby th e judgment of conviction passed by the court of learned Judicial Magistrate 1 st Class, Jalandhar has been set a side. Hence, present appeal.
9. Learned counsel for the applicant has placed grea t reliance upon the fact that respondent No.2 stood convicted by the learned trial Court. However, a perusal of the j udgment of conviction date d SUNENA 24.01.2017 shows that there are glari n g discrepancies therein. Th e 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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reasoning o f the learned trial Court is co n tained in Para 18 of the sai d
judgment, which reads as under:-
“18….It is relevant to mention h ere that the complainant faile d to produce bill regarding reco v ered articles before the Cour t but on the other side the accus e d also failed to place on recor d any document which shows t h at the recovered articles wer e not related to the complainan t . It is worth mention here tha t the recovered articles were taken on sapurdari by th e complainant and at that time no objection was raised by th e accused or his family member s . Version of PW1 Amarjit Kau r complainant to the effect tha t the accused subjected her t o cruelty and dishonestly misappropriated articles of he r Istridhan find corroboration from the statement of PW2 Majo r Singh, PW3 Avtar Singh and P W 5 Manjit Singh. On the othe r hand, it is the case of the accus e d that the complainant did no t want to reside with the pa r ents of accused and alway s threatened his family for false i mplication in criminal case. It i s admitted fact that after the i ntervention of Panchayat, th e complainant started to reside in a separate house with hi s husband and son and thereafter their separate ration card wa s made and same is Mark D1. S o, the plea taken by the accuse d that the complainant does no t want to reside with his famil y members seems false. It is rel e vant to mention here that th e accused failed to led any ev i dence to show that he neve r harassed or maltreated the co m plainant for dowry demand.”
10. From the above, it is c l ear that respondent No.2 ha s been convic t ed on an absurd reasoning by t he learned trial Court inter alia that the accused failed to lead any evide n ce to show that he had neve r
harassed or m altreated the complainant for dowry demand.
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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11. Furthermore, in convicting the respondent No.2, th e learned trial court has misread vital evide n ce. In para 16 of judgment o f conviction d a ted 24.01.2017, reference has been made to the testimony o f PW7/ Invest i gating Officer Inspector Tara C h and; and it has been noticed in the judgme n t of conviction that PW7 has a d mitted in his cross-examinatio n that “..he had not conducted the complete i n vestigation of the present case. He had not s een the recovered istridhan o r case property in the Court. H e admitted th a t the complainant had mentio n ed names of seven persons an d during inve s tigation six persons were d e clared innocent. He had no t demanded b ills of the recovered articles. T h at the articles were taken int o possession at the instance of complainant. H e admitted that it was found i n the inquiry c onducted by senior officials th a t the complainant had levele d false allegat i ons against the accused. No m e dical was conducted regardin g injuries..”. I t is my view that from the abov e testimony, it is patent that th e offence und e r Section 406 IPC is not made out against the accused.
12. Perusal of judgment of conviction further shows tha t there is no d iscussion whatsoever as to h o w the accused had committe d the offences under Sections 406 and 498-A IPC. The learned trial Court ha s only enume r ated/reproduced the evidenc e without any discussion ther e upon; wher e after the conclusion has been given that “…the accuse d dishonestly m isappropriated the articles o f Istridhan of the complainant, which were lateron recovered from his p o ssession by the police. As th e prosecution has succeeded in proving its case, hence the accused is hel d guilty of th e charge framed against hi m and is convicted for havin g
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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committed a n offence punishable U/s 4 0 6/498-A of the Indian Pena l Code….”. As such, I’m not in agreement wit h the view taken by the learned trial Court.
13. On the other hand, a pe r usal of the impugned judgmen t dated 18.0 8 .2017 of the learned Additi o nal Sessions Judge, Jalandha r shows that t h e following findings have been returned therein: -
“14. So far as offence punish a ble under Section 498-A IPC i s concerned, the prosecution w a s required to prove that th e accused subjected the compla i nant to cruelty with a view t o coerce her to fulfill his illegal d e mand of dowry. Complainant i n her complaint/application Ex. PA has alleged that after som e times of her marriage all t he above named persons i n connivance with each other started harassing her on th e ground of bringing less dowry a rticles and made a demand o f Rs.2 Lakh in cash or vehicle by s tating that her parents had no t given dowry articles as per the i r status and she should bring a sum of Rs.2 Lakh in cash or ve h icle from her parents and whe n she had shown her inability t o bring said cash amount o r vehicle by stating that her pare n ts had already given the dowr y articles more than their capaci t y, they started beating her an d threatening her that in case s h e is intended to remain in th e matrimonial home, she shoul d fulfill their demand, on whic h she brought Rs.50,000/- on o n e occasion and Rs.90,000/- o n second occasion and handed o ver the same to Harpal Sing h and Darshan Singh, but the gr e ed of the accused did not fulfil l and they turned out her from t he matrimonial home by givin g beating to her. She has no w h ere alleged any specific date, month or year on which a n y particular accused perso n mentioned in her complaint w h o were 7 in numbers includin g
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appellant/accused Harpal Sing h made demand of any dowr y article from her and gave beat i ng to her when she has show n her inability to fulfill their all e ged demand. She has also n o where alleged any date, month or year on which she was give n beating by any of the accused i n cluding appellant/accused an d any role played by the appella n t/accused at the time of givin g beating to her by them. Compl a inant Amarjit Kaur when c am e into the witness box as PW 1 , has admitted in her cross - examination that her marriage was solemnized in the yea r 2005 and she remained in the m atrimonial home till 2010. Sh e has also stated that she did not make any complaint to any on e against appellant/accused or his family members regardin g demand of dowry. She has als o stated that complaint move d by her before Panchayat was having different allegations tha n that of the complaint filed by h e r on the basis of which FIR wa s registered and her father has a lso not made any complaint t o any one against accused or hi s family member from 2005 t o 2010. She has also admitted in her cross-examination tha t Harpal Singh and his family m e mbers were found innocent b y the police official during the in v estigation and it has also com e on record during investigation that she along with Harpal Sing h and her child had been residi n g separately from her in-laws. Major Singh father of complainant, who came into the witnes s box as PW2, has also no wher e mentioned any date, month o r year regarding harassment c a used to her daughter by th e accused on the ground of bring i ng less dowry or demand of an y dowry article made by any of t h e accused from her. He has als o no where stated any date, month or year on which he has pai d Rs.40,000/- and Rs.90,000/- to complainant or her in-laws. I n his cross-examination, he has a lso admitted that Harpal Sing h appellant/accused and his dau g hter resided together till 201 0 and 13 prior to the present case Panchayat was convened an d
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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Panchayat has decided that bride-groom and bride woul d reside separately. He has also a dmitted that no complaint wa s made by his daughter against Harpal Singh and his famil y members during the period sh e remained in her inlaws house. He has also admitted that in Pa n chayat, it has not been allege d that Harpal Singh or his family m embers harassed complainan t by raising demand of dowry. He has also admitted that hi s daughter made demand in the Panchayat that she is intende d to reside separately from her in-laws. He has also admitte d that her daughter has not discl o sed any date, month or year o n which the demand of dowry a r ticles was made and on whic h the payment was made. Major S ingh PW4 from whom a sum o f Rs.50,000/- was obtained in t he year 2006 and Rs.90,000/ - thereafter by the father of co m plainant for giving the same t o his daughter, did not turn up for his further examination i n chief as his examination in chi e f was deferred with a directio n to produce Form ‘J' on 21.12. 2 015 by the learned trial cour t and as such, his above said st a tement can not be taken int o consideration. Hence, it can not be believed that the father o f complainant namely Major Si n gh PW2 paid Rs.40,000/- an d Rs.90,000/- to complainant wh o had given the same to Harpa l Singh and Darshan Singh, afte r getting the same from Majo r Singh PW4. Investigating Offi c er Inspector Tara Chand PW 7 has also stated in his c r oss-examination that durin g investigation it has not been f o und that beating was given t o complainant for getting dowr y articles. He has also admitte d that during investigation none o f the persons raised allegatio n of beating to the complainant by the accused with a view t o coerce her to bring dowry arti c les. He has also admitted tha t no allegation to the effect tha t Harpal Singh gave beating t o the complainant was raised against him. Complainant Amarji t Kaur has also stated in her cro s s-examination that she did no t
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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want to cohabit with her hus b and and she has not filed an y case against her husband for c o habitation with him. Thus, th e above discussed evidence produced on file by the prosecutio n shows that the complainant and her father raised vagu e allegations against accused r e garding harassment caused t o the complainant by him on th e ground of bringing less dowr y and made demand of any dowr y article. Hon'ble Supreme Cour t of India in Neelu Chopra Vs . Bharti, 2010(1) Apex Cour t J udgments 153 (SC), has hel d that the complaint filed b y complainant/wife under Sectio n 406 and 498-A IPC against th e husband, does not show as t o what accused had committe d what offence and what is the e x act role played by this accuse d in the commission of offence. There could be said somethin g against Rajesh, as the allegati o ns are made against him mor e precisely but he is no more and has already expired. Under suc h circumstances, it would be an a buse of process of law to allo w the prosecution to continue ag a inst the aged parents of Rajesh, the present appellants herein o n the basis of vague and genera l complaint which is silent a b out the precise acts of th e appellants.”
14. Thus, the learned Additional Sessions Judge in th e impugned judgment has thoroughly discus s ed the evidence and by way o f cogent reas o ning, has acquitted respondent No.2.
15. It is no longer res integra that to prove an offence unde r
Section 406 I PC, it is necessary to establish t h e following four ingredients:-
a) istridhan o f the bride be entrusted to the a ccused;
b) the good s /dowry articles so entrusted t o the accused are dishonestl y
misappropri a ted by the accused;
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c) the wife m akes demand for return of the said misappropriated istridhan ; and
d) lastly the r e is a refusal on part of the ac c used to return the said article s of istridhan t o the wife.
16. In the present case, it is the contention of the applican t that the ph o tographs of marriage (E x. P W 6/A to Ex.PW6/H) proved tha t dowry articl e s had been entrusted to the a c cused and his family. However , it is neces s ary to appreciate the differ e nce between ‘istridhan’ and ‘customary g ifts’. In the photographs, it is the customary gifts which ar e being hand e d over by the family of the a pplicant to the family of th e respondent No.2 and his relatives. It is m y view that Istridhan woul d comprise of t he gift articles given by the fa m ily of the bride for the persona l use of the bride. Whereas, the customary g ifts are given by the family o f the bride as gifts to the family of the groom. In order to establish dishones t misappropri a tion of dowry articles, there h as to be misuse of the dowr y articles by t h e accused, which comprise the istridhan of the complainant. In the present case, it is established from the evidence on record that th e prosecution has failed to prove the ent r ustment of dowry articles t o respondent N o.2, let alone the misappropri a tion thereof.
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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the learned Additional Sessions Judge as contained in Para 11 of th e impugned j udgment are relevant, th a t: “…Perusal of the sai d complaint/a p plication Ex.PA shows that co m plainant has no where allege d in her said c o mplaint/applicant about the e n trustment of any dowry articl e to appellant / accused Harpal Singh at the ti m e of either Shagun ceremony o r marriage ce r emony…” Thus, it is only in h er testimony as PW1 that th e applicant ha s alleged for the first time that gold Kara, gold ring, Rs.5,100/- , 11 boxes o f sweets, a bucket of fruits, L G TV, LG Fridge, LG washin g machine et c . were given to respondent N o.2 at the time of marriag e ceremony o n 20.11.2005.
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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year mentio n ed in which the said amount s were paid by the applicant o r her family t o the respondent No.2 or her in- l aws.
SUNENA or dispute t h e above said facts and findings. 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
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22. A s such, I find no ground is made out that calls fo r
interference in the impugned judgment. Dismissed.
06.08.2024 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No
SUNENA 2024.08.08 18:06 I attest to the accuracy and authenticity of this order
2 issues framed by the court
Should delay of 327 days in filing the appeal be condoned?
Did the First Appellate Court err in setting aside conviction under Sections 406 and 498-A IPC?
5 provisions across 3 enactments
Amarjeet Kaur
State of Punjab
Harpal Singh
Nidhi Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
