498a trial
PT
(Querist) 12 May 2013
This query is : Resolved
Dear Sir,
Myself and my father are accused in a false 498A and 4 of DP Act case filed. Cross examination of PW1 (Complainant wife), PW2 (Father in law), PW3 (Relative of PW1) is complete. Awaiting Cross of IO's. An independent non-relative witness PW4 turned hostile at Deposition
My family appreciates your counsel in this difficult time.
(i) My lawyer says we should not summon PW4 an independent non-relative witness who gave witness stmt in Police station and turned hostile at Deposition. Do you agree
(ii)A copy of the witness stmt in our record is signed by the IO (Police). Is the witness stmt not required to be signed by the witness him/ her self
(iii)There is lot of difference between the FIR Vs Witness Stmt Vs Deposition even on (a) the place of occurrence of offence and (b) the quantam of supposed allegation of dowry demand. Is this a strong point in my favor
(iv)During cross exam of PW1, PW2 when the contradictions were pointed out, both assailed police for not including items in witness stmt told to them. Will this go against me? Will Magistrate force a re-investigation
(v)Other than Deposition (evidence) of complainant PW1, PW2 and PW3, no iota of evidence- documentary, electronic or otherwise - no material evidence was placed on record. Can myself and father be held guilty based only on Deposition
(vi) During Cross, we nailed few lies and contradictions of PW1 while the rest was reiterated. Will this suffice
(vii) Apparently the IO did not visit the so called place of occurence of offence nor did she inquire/ question the two accused. Will this help me?
(viii) Will documents which are marked with objection be taken on record by Magistrate for purpose of Judgment
(ix) I had filed for divorce in USA and on receipt of summons PW1 filed the 498a complaint. I was unable to mark divorce related summons, certificate etc. Should I take the stand
(x) Myself and PW1 cohabited for 5 years in USA and except about 2-3 weeks in India, rest of the time was spent in US. Further except for 1 allegation all others in US. Does 188 crpc apply to all other allegations
(xi)498a complaint was filed 8 yrs after marriage and about 3 years after separation. Will this help my case
Thank you all for your advice and support
ajay sethi
(Expert) 12 May 2013
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 02, 2010
Date of Order: 10th August, 2010
Crl. M.C. No. 799/2009 10.08.2010
SUDHIR KAPUR & ORS. ..... Petitioner
Through: Mr.Sanjeev K. Grover, Advocate
versus
STATE & ANR. ..... Respondent
Through: Mr. O.P. Saxena, APP
Mr. Pawan Narang & Mr. Puskal Gagoi,
Advs. for R-2
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. Present petition has been filed for quashing of FIR No. 540/07, registered against the petitioner at P.S. Defence Colony, under Section 498-A/406/34 IPC .
2. The marriage between the petitioner and the respondent had taken place on 4th March, 1984. The parties started living separate from each other in 1992. The petitioner filed a divorce petition against the respondent in 1996. The present FIR was lodged against the petitioner by wife under Section 498A/406 IPC after about 15 years of living separate from her husband and
after about 11 years of filing the divorce petition.
3. It is argued by counsel for the respondent/wife that offence under Section 406 IPC was also involved and the dowry articles etc. of the wife were not given back. This averment has no substance. The wife had all opportunities right from 1992 onwards to demand back her articles, if any, lying with the husband. The very fact that wife did not demand any article from the husband after 1992 till lodging of FIR shows that there was no entrustment of property by wife to the husband or to his relatives. After husband had filed divorce petition, she had again opportunity to make an application before the concerned court under Hindu Marriage Act for the return of dowry articles, Istridhan, if any, under section 27 of the Act. Had there been any article lying with the husband, she would have moved the application. She did not initiate any such move, nor did she serve any notice on her husband or in laws for return of any of her articles lying with them. It is only when her appeal against the decree of divorce was dismissed by the High Court, and she preferred an SLP, she thought of lodging of an FIR also.
4. Under Section 468 of Cr. P.C., the cognizance of an offence where the maximum sentence of imprisonment is up to 3 years, can be taken within 3 years. Under Section 498A/406 IPC maximum sentence is up to three years imprisonment. Thus the cognizance of the offences against petitioner cannot be taken by the Court. The FIR lodged against the husband in respect of offences committed under Section 498A/406 IPC in 1992 or prior to that, is barred by limitation. I, therefore, allow the present petition and hereby quash FIR No. 540/2007, P.S. Defence Colony, New Delhi, registered under Sections 498A/406/34 IPC. The petition stands allowed.
AUGUST 10, 2010
SHIV NARAYAN DHINGRA, J.
ajay sethi
(Expert) 12 May 2013
in your case complaint under 498A has been filed 3 years after separation and after you have filed for divorce . as per abovementioned judgement complaint ought to have been filed within period of 3 years . the fact that complaint has been filed belatedly and too 3 years after separation would help you in your case .
Raj Kumar Makkad
(Expert) 13 May 2013
No more to add in the detailed reply of Ajay.
PT
(Querist) 16 May 2013
THanks Sir
However complainant made sure that atleast one allegation was pertaining to five months prior to filing complaint. The allegation is frivolous and nothing happened but it does fall within limitation.
Appreciate your response to individual questions
