Raj Kumar Bansal & Ors vs State & Anr
2009 Latest Caselaw 4220 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: 9th October, 2009
                       Judgment Delivered on: 21st October, 2009

+                            CRL.R.P.339/2001

        RAJ KUMAR BANSAL AND ORS.           ..... Petitioners
                      Through:  Mr.J. Buthar, Advocate.

                       versus

        STATE AND ANR.
                                                 ..... Respondents
                             Through:   Mr. Manoj Ohri with Ms. Fizani
                                        Husain, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the
        Digest?                                      Yes

INDERMEET KAUR, J.

1. Parvesh Kumari had been married to Raj Kumar Bansal on

16.11.1984 at New Delhi. Kanta Devi Bansal is the mother-in-law

of Parvesh Kumari and Neelam Bansal was her married sister-in-

law. Matrimonial home of the parties was at E-348, Greater

Kailash-I, New Delhi.

2. On the occasion of the Rokna ceremony and thereafter

again on the occasion of the 'Shagun' ceremony, C.L. Aggarwal

the father of the Parvesh Kumari had paid a sum of Rs.10,000/-.

Two days before the date of marriage Raj Kumar Bansal and his

mother Kanta Devi Bansal demanded Rs.31,000/- in cash failing

which they would not solemnize the marriage. Since the

preparations for the marriage had almost culminated, PW-3

succumbed to this pressure and agreed to make the payment of

the aforestated amount of Rs.31,000/- which was accordingly paid.

At the time of marriage a double bed with beddings, dressing

table, washing machine, sewing machine, radio, two wrist

watches, pressure cooker, 21 sarees, two sets of gold and four

bangles weighing 15 tolas were also given.

3. The married couple, however, did not pull along amicably.

Soon after the marriage Parvesh Kumari noticed that the attitude

of her husband, mother-in-law, sister-in-law was changed towards

her. They started taunting and abusing her. They called her with

contemptuous names like 'kanjar', 'chandaal', 'bhutani'. She i.e.

Parvesh Kumari was tortured and harassed on small counts;

whether it be for the filling of water in the bucket or the use of

soap. Parvesh Kumari was told by her in-laws that if her parents

agreed to give a scooter, cooler, T.V. her harassment would come

to an end; and since these articles had not been given by her

parents, at the time of time of marriage this demand was made

upon the complainant and her family. The cruelty on the victim

continued and increased day by day.

4. On the occasion of Janmasthmi, Parvesh Kumari was

severely beaten, so much so that blood started oozing out.

Demand for the dowry articles was reiterated by her in-laws. Her

sister-in-law also pushed and beat her. She was pressurized to do

dirty jobs including cleaning of the toilet and sweeping the floor.

5. On the occasion of Teej her brother Vijender Kumar PW-4

had come to visit her but her in-laws imposed a condition that he

could meet her only if the petitioner's demands are met.

6. On 11.11.1985 Ms.Jasbir Kaur, PW-6, a friend of the

complainant had come on the occasion of Deewali. In her

presence the victim was harassed and abused by her in-laws.

7. On 17.11.1985 the parents and brother of Parvesh Kumari

had come to see her but they were not allowed to meet her.

8. On 23.11.1985 Mrs.Brijesh Jindal PW-12 and her husband

S.K.Jindal PW-11 i.e. her sister and brother-in-law had come to

meet her but they were also not allowed access to the

complainant. Demand for dowry was again reiterated by her in-

laws.

9. On 25.11.1985 the parents of the victim came to her house;

a police officer H.C. Hukum Chand PW-8 was also summoned from

the police post Greater Kailash; in his presence the complainant

Parvesh Kumari left her matrimonial home as she could no longer

bear the torture being inflicted upon her. She was medically

examined on the following day i.e. 26.11.1985.

10. This was the complaint Ex.PW-2/A which had been lodged by

Parvesh Kumari before Anti Dowry Cell, pursuant whereto FIR

under Section 498A/406 of the IPC has been registered against Raj

Kumar Bansal, the present petitioner, his mother Kanta Devi

Bansal and his sister Neelam Bansal.

11. Before the learned Metropolitan Magistrate, the prosecution

examined 12 witnesses of whom the complainant Parvesh Kumari

was examined as PW-2. She reiterated her version as given by her

in her complaint Ex.PW-2/A. Her father C.L.Aggarwal was

examined as PW-3 and he corroborated the testimony of his

daughter. The brother of the victim Vijender Kumar Aggarwal was

examined as PW-4. Two neighbours living in the vicinity namely

Dheeraj Gulati PW-1 and Sanjay Jawa PW-5 were also examined

but both these witnesses were disbelieved by the trial Court. The

friend of the victim Jasbir Kaur who had come to visit Parvesh

Kumari on the occasion of Deewali on 11.11.1985 had been

examined as PW-6. Since the sister and the brother-in-law of the

victim i.e. Brijesh Jindal and S.K.Jindal i.e. PW-12 and PW-11 did

not come out with the entire truth, their testimony was dis-

regarded. The testimony of Raj Kumar Aggarwal PW-7 the

brother of Pravesh Bansal had also been ignored. ASI Hukum

Chand PW-8 was the person in whose presence the victim had

finally left the matrimonial home on 25.11.1985. Investigation

was initially carried out by Inspector Anjani Kumar PW-9; challan

was thereafter filed by SI Dayal Singh PW-10.

12. The trial judge had convicted all the accused persons under

Sections 498A/406 of the IPC. Smt.Kanta Dev and Ms.Neelam

have been sentenced to undergo probation and were also directed

to pay a fine of Rs.4000/- each which amount stood deposited.

The said persons did not challenge the judgment. The petitioner

Raj Kumar Bansal had been sentenced to undergo RI for three

years and directed to pay a fine of Rs.3000/- in default of payment

of fine RI for a period of one year for the offence under Section

498A of the IPC; for the offence under Section 406 of the IPC he

has been directed to pay fine of Rs.5000/- in default of payment of

fine RI for one and half years. The fine stood deposited.

13. Raj Kumar Bansal had challenged this judgment in appeal.

Vide the judgment of the learned Additional Sessions Judge dated

04.4.2001 the conviction of the petitioner was maintained under

Sections 498A/406 of the IPC; no modification was also made of

the sentence imposed upon him. It is this judgment which in the

subject matter of this criminal revision petition.

14. On behalf of the petitioner, it has been urged :-

I. There are inherent contradictions in the testimony of

Parvesh Kumari PW-2 and her father C.L.Aggarwal PW-3.

Qua the incident of 17.11.1985 PW-2 had stated that her

parents and brother were allowed to meet her but this

has been denied by PW-3 who had stated that when he

had gone to meet to his daughter on 17.11.1985 he was

denied access to her.

II. PW-2 had recited that on 11.11.1985 her friend Jasbir

Kaur PW-6 had come to visit her but there is no mention

about the said fact in the petition which she had filed

under Section 9 of Hindu Marriage Act seeking restitution

of conjugal rights. There is no such mention by PW-3

either thus clearly establishing that PW-6 had in fact

never visited PW-2 on 11.11.9185.

III. PW-2 had stated that her brother PW-4 had come to

visit her on the occasion of Teej but this did not find

mention in the testimony of PW-4 again discrediting the

version of PW-2.

IV. PW-3 had stated that their neighbours were present on

25.11.1985 when his daughter accompanied him from the

matrimonial home; who were those neighbours and why

they have not been examined is not answered by the

prosecution.

V. PW-8 had proved the DD entry Ex.PW-8/A which was

to the effect that on 25.11.1985 the victim Parvesh

Kumari wished to leave the matrimonial home with her

parents as her husband used to beat her because of

domestic disputes. It is submitted that this document has

categorically recited that there was no demand for dowry

and the disputes did not relate to dowry; this document

has wrongly been ignored by the Courts below.

VI. PW-3 has admitted that the marriage between his

daughter and his son-in-law had been arranged pursuant

to an advertisement; he has deposed that the husband

was a divorcee; this fact was well known to the family of

the victim at the time of marriage but had been denied by

PW-2 who had on oath stated that this factum of her

husband having been divorced earlier was not known to

her; in her petitioner under Section 9 of Hindu Marriage

Act she had stated that it was 'soon' after the marriage

that she came to know from her neighbour that her

husband was a divorcee; all these conflicting stands

throw out the credibility of both PW-2 and PW-3 who are

the star witnesses of the prosecution.

VII. There is no evidence of any demand of dowry and the

ingredients of Section 498A of the IPC are clearly missing.

VIII. Istridhan of Parvesh Kumari had been returned to her

vide seizure memo Ex.PW-2/B. Ex.PW-2/C which is the list

of unreturn istridhan were, in fact, all taken away by PW-2

on 25.11.1985 itself. Ingredients of Section 406 of the

IPC are also missing.

15. Learned defence counsel had placed reliance on various

judgments to support the aforesaid submissions :-

i. State of Haryana v. Ashok Kumar @ Billu, 2001(3) Crimes

179(SC)

ii. Surjit Kaur Chopra v. State & Anr. 144(2007) Delhi Law

Times 483

iii. Desh Depak Kapoor vs. State ( Delhi Administration) 134(2006) Delhi Law Times 246(DB) iv. Suraj Prakash v. State of Delhi 135(2006) Delhi Law Times

v. Surender Kumar & Another v. The State( NCT of Delhi) 2007 III AD (Delhi) 175 vi. Neera singh( Smt.) Vs. The State ( Govt. Of NCT of Delhi) & Ors. 2007 III AD (Delhi) 508 vii. Sanjeev Kumar Aggarwal v. State & Anr. 2007[4] JCC

viii. Balwant Singh & Ors. v. Sate of H.P. JT 2008(10) SC 589

16. The revisional powers of the High Court are limited; they

should be exercised only in those cases where trial Court has no

jurisdiction to try the case or where the appellate Court has

wrongly shift out evidence which was admitted by the trial Court to

be admissible or where material evidence has been overlooked

either by the trial Court or the appellate Court or where the

acquittal is based on the compounding of an offence, which is

invalid under the law; or any other case of a similar nature. The

object of this revisional jurisdiction is to confer upon the superior

Criminal Courts a kinds of paternal or supervisory jurisdiction, in

order to correct miscarriage of justice, arising from a

misconception of law, irregularity of procedure and similar

infirmities.

17. On the perusal of the record it is noted that the two Courts

below have appreciated all these arguments which have now been

addressed before this Court. Not only did the first court to go into

these arguments and deal with each one of them; the second

appeal court i.e. the court of learned Additional Sessions Judge had

also re-appreciated the evidence and drawn a conclusive finding

that the versions of PW-2 and PW-3 suffer from no infirmity; apart

from their corroborative versions being the victim and her father;

her brother PW-4, her friend PW-6 have also fully supported the

case of the prosecution; the ingredients of both the offences i.e.

the offence under Section 498A & 406 of the IPC for which the

petitioner has been convicted are clearly met out.

18. This court has re-examined the contradictions in the

testimony of the aforestated witnesses as pointed out by learned

counsel for the petitioner. The investigation of this has been set

into motion on the complaint of PW-2 Parvesh Kumari. In this first

complaint she had detailed the incidents of cruelty as meted out to

her during her matrimonial life. She had detailed that on the

occasion of Teej her brother Vijender Kumar PW-4 had come to

meet her but meeting with him was conditional only if the dowry

demands were met; incident of 11.11.1985 when PW-6 had visited

her; on 17.11.1985 her parents had come to see her but they were

not allowed to meet her; on 24.11.1985 her sister and brother-in-

law i.e. PW-13 and PW-11 were not allowed to meet her; she had

finally left the matrimonial home on 25.11.1985. Version of PW-2

on oath in Court has reiterated this entire version. She has

deposed that prior to her marriage with Raj Kumar Bansal her

father at the time of 'Rokna' ceremony and again on the 'Tika' had

paid Rs.10,000/- to her husband and in-laws. Two days before the

marriage a demand of Rs.31,000/- had been made which had been

fulfilled. At the time of marriage furniture articles as also electrical

items had been given. Soon after the marriage the attitude of her

husband and in-laws changed. They started taunting and

harassing her. She has on oath corroborated all the aforestated

averments as contained in her complaint and the same need not

be reverted to as both the Courts below had gone into the same in

deep depth and detail. In her cross-examination nothing has been

elicited which could discredit her version. In fact, in her entire

lengthy cross-examination nothing has been pointed out by the

learned counsel for the petitioner which could assail her version.

19. The father of PW-2 examined as PW-3 has also fully

corroborated the version of his daughter. He has admitted that

the marriage between his daughter and son-in-law was pursuant to

an advertisement in the newspaper; in his cross-examination, he

has stated that he did not tell his daughter that she was to marry a

divorcee as his conscience did not allow him to tell her this fact. In

this context PW-2 has deposed that prior to the marriage it was

not known to him that her husband was a divorcee. On this count

version of PW-3 is contrary and admittedly in the advertisement

seeking matrimonial alliance, it had been disclosed that the

petitioner was a divorcee; it is also difficult to believe that the

father would not have told this crucial fact to his adult daughter;

and on this count it can be said that PW-3 has not come out with

the truth but this not being material to the controversy in issue

both the Courts below had rightly ignored this argument.

20. Version of PW-2 that on 11.11.1985 i.e. on the day of

Deewali her friend Jasbir Kaur visited has visited her is

corroborated by the version of PW-6. She had deposed that she

had gone to the matrimonial home of Parvesh Kumari to give her

sweets; her sister-in-law and her mother-in-law came down stairs

and started quarreling with Parvesh Kumari; they questioned her

as to why she had not told them about her friend's visit; her

husband also joined them and they all started abusing Parvesh

Kumari and taunted her for not brining cooler, fridge, T.V. and

scooter; in her presence Raj Kumar Bansal also slepped Parvesh

Kumari. PW-4 has also corroborated the testimony of PW-2 that on

25.11.1985, PW-2 left the matrimonial home in the company of her

father, mother and her brother.

21. PW-2 is the victim of the incident. It is true that PW-3,

PW-4 and PW-6 are persons closely associated with the

victim but merely because they are close associates of

the victim is no ground to discredit their testimony;

their versions are clear, cogent, cohesive and inspire confidence;

they are also the persons best in the knowhow of the

circumstances in which Parvesh Kumari was leading her

matrimonial life; PW-3 being her father, PW-4 being her brother

and PW-6 being her childhood friend; it was natural for PW-2 to

disclose her woes and confide in these close associates.

22. MLC of the victim shows that she was medically examined

on 26.11.1985 at the AIIMS hospital i.e. the one day after she had

left the matrimonial home. Her complaint as is evident from MLC

has noted pain all over her body with allegations of having been

beaten on the previous day i.e. on 25.11.1985; tenderness of the

ribs had also been noted.

23. Ex.PW-8/A was the purported DD entry which had been

recorded on 25.11.1985 by ASI Hukum Chand PW-8. A copy of the

said document was placed on record; original having been

destroyed wherein it had been stated that the dispute between the

husband and wife was related to a domestic matter; husband had

given beatings to his wife but there was no dispute regarding

dowry. On this count the first appellate Court has discredited this

document Ex.PW-8/A as admittedly original of the said document

has not been placed on record. It had further been held that even

if this document is disbelieved and presuming that the the

disputes between the husband and wife were not arising out of a

dowry demand; nevertheless the definition of cruelty as

encompassed in Section 498-A of the IPC also included cruelty

which would be of such a nature which was likely to drive a woman

to cause grave injury or danger to life. On this count the

deposition of the aforestated witness has not been assailed.

24. For the offence under Section 498A of the IPC essential

necessary ingredient is subjecting a woman to cruelty by either

her husband or a relative of the husband. This section had been

incorporated pursuant to an amendment in the Indian Penal Code

by Criminal Law (Second Amendment) Act 1983 w.e.f. 25th

December, 1983. The object of this provision was to prevent

torture to a woman by her husband or by the relatives of her

husband.

25. Necessary ingredients of this Section entail:-

i. The woman must be married;

ii. She must be subjected to cruelty or harassment; iii. Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

26. The extended meaning of cruelty is contained in explanation

(a) of Section 498A IPC. As per this definition cruelty means 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, etc. or harassment to coerce her or any other 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 demands.

27. A new dimension had been given to the concept of cruelty.

Concept of cruelty varies from individual to individual; depending

upon the social and economic status to which such a person

belongs. Cruelty under Section 498A need not be physical; even

mental torture may amount to cruelty in a given case.

28. Section 406 of the IPC is the penal provision for a criminal

breach of trust, which has been defined in Section 405 of theIPC.

To make out a criminal breach of trust it is not sufficient to show

that the money or the valuable security has been retained; it must

also be shown that the accused disposed it of in some way other

than that in which he was bound to apply it.

29. The evidence on record qua the said offence is the

deposition of PW-2; her list of dowry articles which had been

returned back to her have been proved vide seizure memo Ex.PW-

2/B. Her list of unreturned articles is Ex.PW-2/C. Version of PW-2

is corroborated by the version of her father PW-3 on this count.

Investigating SI Dayal Singh PW-10 had along with PW-2 and PW-3

on the pointing out of the complainant had got the articles

recovered and seized vide memo Ex.PW-2/B. Accused had stated

that the complainant had taken back all her dowry articles on

25.11.1985; on 30.12.1985 a statement has been made by

accused Raj Kumar Bansal wherein he had stated that the articles

lying with him as per the list Ex.PW-2/C had been tick marked and

would be returned back by 02.1.1996. On the said date i.e. on

02.1.1996 further time had been sought and admittedly till the

date of judgment of the first Court i.e. up to 27.8.1996 no such

articles as contained in Ex.PW-2/C had been returned. Ingredients

of Section 406 also stand established.

30. Conviction of the accused calls for no interference; there is

perversity or illegality in the order under challenge.

31. The sentence inflicted upon the accused is RI for three years

the offence under Section 498A of the IPC; fine under Section 406

of the IPC already stood deposited at the time of filing of the first

appeal.

32. The offence relates to the year 1985; much water has flowed

in the last almost more than a quarter of a century i.e. in this

intervening period of 25 years. Both the parties stand divorced

and they are leading their independent and separate lives. The

petitioner has suffered a loss of service in terms of the punishment

inflicted upon him. The nominal roll of the appellant shows that as

on 29.10.2002 he had suffered sentence of almost more than two

years and two months which was inclusive of the remissions

earned by him.

33. In 2006 Crl.LJ 2141 SC Jaya Ram BT, in similar circumstances

where the parties had been living separately for the last many

years and the rancour between the parties having subsided; the

period of substantive sentence was reduced to the period already

undergone. In this back ground the petitioner is sentenced to the

period of the sentence already undergone by him.

34. Petition is disposed of in the above terms.

(INDERMEET KAUR) JUDGE

21st October, 2009 nandan