Criminal Appeal (U/S) No. 17 of 1999 ~~~~~~ Against the judgment and order of acquittal dated 29.06.1999 passed by Sri Ravindra Patwari, learned Judicial Magistrate – Ist Class, Patna in Complaint Case No. 691 (C) of 1996, Tr. No. 545 of 1999. ~~~~~~ Renu Devi, wife of Kamlesh Sharma, Daughter of Chandrama Singh, resident of village – Dadupur, Police Station – Bikram, District – Patna. ……. (Complainant) .... .... Appellant. Versus 1. The State Of Bihar. 2. Kamlesh Sharma. 3. Kuresh Sharma, Sons of Rajdeo Sharma. 4. Rajdeo Sharma, Son of Not Known. 5. Sharda Devi, wife of Kuresh Sharma. 6. Mandari Devi, wife of Rajdeo Sharma. All residents of Mohalla – Awadh Puro Colony, Digha, P. S. – Digha, District – Patna. …. …. (Accused) .... .... Respondents. ~~~~~~ Appearance : For the Appellant : M/s. A. K. Thakur, Advocate. Dhananjay Kumar, Advocate. For the Respondents : Sri Ramakant Sharma, Sr. Advocate. For the State : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard. 2. This appeal is directed against the judgment and order of acquittal dated 29.06.1999 passed by Sri Ravindra Patwari, learned Judicial Magistrate – Ist Class, Patna in Complaint Case No. 691 (C) of 1996, Tr. No. 454 of 1999 for the offence under Sections 498A, 406 and 354 of the Indian Penal Code. 3. The prosecution case, as alleged, is that the complainant Renu Devi filed a complaint petition for the offence under Sections 498A, 406 and 354 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the five accused persons who are the husband, elder brother, father-in-law, mother-in-law and Gotani. It has been alleged that the marriage was solemnized on 05.05.1982. At the 2 time of marriage itself there was demand of Rs.60,000/- which was fulfilled. After the marriage there was further demand of Scooter, fridge and television and she has subjected to cruelty for non-fulfillment of the demand and was compelled to give her ornaments to her husband. It is further alleged that one night her door was knocked when she opened the door the accused no. 2 Kuresh Sharma attempted to rape and ultimately on June 1996 all the accused persons assaulted the complainant. 4. The complainant was examined on solemn affirmation and after taking cognizance trial proceeded. During the trial five witnesses were examined on behalf of the prosecution to support the prosecution case. The defence has also adduced both oral and documentary evidence. 5. The trial court taking into consideration the evidence of the parties held that the factum of marriage of the complainant with the accused Kamlesh Sharma is admitted. However, the charges were framed under Sections 498A, 406 and 354 of the Indian Penal Code. The charge under Section 354 of the Indian Penal Code is against Kuresh Sharma and disbelieved on the ground of alibi. However, the trial court found that the date is not mentioned in the complaint petition about the alleged occurrence attempt to rape or outrage the modesty of the complainant by Kuresh Sharma. 6. The trial court took into consideration the admitted fact that Kuresh Sharma is the elder brother of the husband and is in service in military and the complainant in her evidence was questioned about the date of occurrence remained silent for some time and thereafter disclosed the date as 11.09.1992 for attempt to rape or outrage the modesty. 7. The trial court taking into consideration the demeanor of this witness and further taking into consideration the letter of Kuresh Sharma written from his place 3 of posting which is 100 kilometers away from the place of occurrence as well as copy of the leave register with signature of the Squadron Leader in the official document accepted the defence of alibi and held that the prosecution has not been able to prove the charge as Kuresh Sharma was on the duty in his place of posting in the month of September. 8. The trial court further considered the subsequent conduct that even after the alleged occurrence she remained in her Sasural. Neither any case was lodged nor anything whispered nor any Panchayati held and as such the offence under Section 354 of the Indian Penal Code is not made out. 9. The trial court further took into consideration the charge under Section 406 of the Indian Penal Code. It is alleged that all the accused persons persuaded her husband for taking jewellery and the victim gave the jewellery to her husband and her husband gave to his Bhabhi and the ornaments were never returned. 10. The trial court took into consideration the evidence of the victim in cross- examination that she has communicated about the said occurrence to her father by letter but no letter has been produced and there is no evidence that the said jewellery were misappropriated and hence hold that offence under Section 406 of the Indian Penal Code is not made out as the ingredient for the offence under Section 406 of the Indian Penal Code the entrustment and misappropriation has not been proved. 11. The trial court further considered that there is no evidence that the jewellery were ever demanded nor there is any evidence that it was misappropriated and hence held that the offence under Section 406 of the Indian Penal Code has not been made out. 12. The trial court further took into consideration Ext. E/1 in which it is mentioned that he is taking his daughter Renu Kumari on 08.06.1996 along with 4 her articles in safe and secured state and hence observed that in view of this letter itself it is not mentioned that the jewellery has been retained and hence held that the prosecution has not been able to prove the charges under Section 406 of the Indian Penal Code. 13. After taking into consideration the offence under Section 498A of the Indian Penal Code and the prosecution case, the trial court considered that the prosecution case was tutored. The marriage was solemnized in 1982 and hence the trial court taking into consideration Ext. E/1 dated 08.06.1996 the fact that the complainant was expelled from the matrimonial home with honour in 1996 and the victim remained in Sasural from 1982-1986 and taking into consideration the evidence of the witnesses the trial court found that the evidence of P. Ws. 1, 2 and 3 are hearsay. P. W. 4 is the father and P.W. 5 is the complainant herself. However, with regard to the fulfillment of the demand of T.V. and fridge, the witnesses have stated that it was not purchased before them and was not given by the father of the complainant. 14. The trial court after taking into consideration the evidence regarding the demand and subjecting cruelty. It is untrustworthy and is not credible or believed with regard to the allegation of assault in June 1996. The two letters Ext. 1 and Ext. 1/A in which it is alleged that on 16.06.1996 accused persons assaulted and ultimately expelled and it has been observed that Ext. 1 and 1/A bears the signature of Renu Devi. The trial court also disbelieved the letter Ext. 1 and 1/A and finally taking into consideration Ext. E/1 that on 08.06.1996 whereas it has been mentioned in an application by P. W. 4 in which it is has been informed that he is taking her daughter Renu Kumari along with him in safe and secured state along with the articles and Renu Kumari in an application which is Ext. E/1 has stated that she is going along with her father with her sweet will and she has no complaint 5 with his in-laws. This fact has also been recorded in Ext. E/1 and these stand never established beyond all doubts that the complainant left her matrimonial home on 08.06.1996 and hence taking into consideration these facts acquitted the appellant of the charge for the offence under Section 498A of the Indian Penal Code. 15. Learned counsel for the appellant, however, contended that the trial court acquitted the appellant merely for the reasons that the date of occurrence or the specific date has not been stated or mentioned by the complainant. 16. Learned counsel for the respondents, however, contended that after leaving the matrimonial home the complainant has filed a petition for divorce and in the said Matrimonial Case 242 of 1996, against the final order a Miscellaneous Appeal was preferred bearing Mis. Appeal No. 743 of 2009 in which the final alimony has been fixed with consent of the parties. 17. However, taking into consideration the submissions and on perusal of the records as well as the evidence of the witnesses and the materials on record I find that the allegation and charges leveled against the accused-appellant has not been substantiated by the prosecution to establish the charge and the trial court has taken into consideration the evidence acquitted the accused-appellant on due consideration of the evidence and the fact and circumstance of this case. 18. Taking into consideration all aspects of the matter the contention of the learned counsel for the accused-appellant is that the order of acquittal recorded merely because the date of occurrence has not been mentioned. However, from perusal of the judgment and the evidence I find that the trial court taking into consideration the date of occurrence, even whatever stated during the evidence and rejected the prosecution case merely on the ground that the date of occurrence has not been mentioned but taking into consideration the defence of the accused persons as well as the evidence adduced on behalf of the complainant has 6 considered the fact and the corresponding document and evidence adduced by the defence with due care and caution and taking into consideration the ingredients of the offence under Sections 354, 406 and 498A of the Indian Penal Code has rejected the prosecution case merely for the reason that the date has not been specifically mentioned rather took into consideration the entire oral and documentary evidence as well as complaint of the case that the entrustment and misappropriation has not been established for the offence under Section 406 of the Indian Penal Code and further took into consideration the petition filed by the victim herself stating that she is leaving the matrimonial home with articles and has no grievance with the husband which is dated 08.06.1996 though the complaint petition filed subsequently lying his claim and the trial court has taken all aspects of the matter in great detail. Hence, I do not find any illegality or irregularity to interfere with the order of acquittal recorded by the lower court particularly. Hence, the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 18th November, 2011. Kundan/N.A.F.R.