How to prove Section 498-A Offences?

Before reading the part – II, please read the part I placed on this forum: Forum Home > Family Law > What steps should be taken by the complainant to prove the c

Part – II OF HOW TO PROVE THE CHARGES UNDER SECTION 498-A:

In the first part, I explained you that how to make a complaint and submit it to the police authorities.  After receiving the complaint, immediately it cannot be translated to F.I.R (First Information Report).  On the basis of the complaint, the crime against women cell will initiate conciliation proceedings.  It is mandatory in matrimonial disputes.  It gives notice to the husband and other persons mentioned in the complaint and hear both the parties and try to resolve the matter.  This is the best time for the offender to mend his ways and live peacefully with aggrieved wife.  Here I am using the word offender instead of accused, because accused may be offender or innocent and innocent need not to mend his ways).  His advocate, his well wishers, his family members must prevail upon him to look into himself and accept his offence and find out the solution for reunion.  But, often it is seen that the people around him will feed his ego instead of giving appropriate advice.

After conciliation efforts come to nought, the complaint is translated into F.I.R.  Here, you must be extremely careful and check up that all the material facts, which you mentioned in your complaint have been truthfully reflected in F.I.R.  The F.I.R. is a prescribed proforma, in which material facts of the complaint are mentioned. A copy of the F.I.R. is given to you. You are entitled to the copy of the F.I.R. as a legal right.  Now, in your file, you have your complaint as first page and this F.I.R. as second page. 

Once F.I.R. is lodged, the entire colour and complexion of the case changes, and it is no more Mrs. X Versus Mr. X.  Now, the case is between the State Versus Mr. X.  The State, from now onwards, supposed to treat that the offence is happened against it and not just against you.  You are not a party in the case, any more.  You are a just complainant and prime witness to the offence caused against the State.  The State is supposed to hunt down the offender without mercy and put all its best efforts to bring the charges home.

After F.I.R. is lodged, the investigation starts.  One of the police officials is appointed as I.O. (Investigation Officer) and he is to collect the information to prove the charge.  He collects all the requisite documents from you, such as marriage card to prove the factum of marriage, ration card to prove the relationship of relatives of husband and other relevant documents, photos etc. showing gifts and other things exchanged at the time of marriage or list of gift items listed at the time of marriage.  You must also assist the I.O. by handing over such documents / items, which may not be in his knowledge and as you only know their existence.  In these documents / items comes your diary in which you might have written about physical and mental assaults you received from your husband.  Next item is the letters - that you might have written letters to your parents, sisters and brothers conveying your pain due to matrimonial atrocities, your medical treatment papers if you received any treatment due to physical assault etc. 

Thanks to the contributor.  That circular substantiates my proposition that even the police invariably attach the offences under Section 498-A of IPC with dowry demand.  It is very difficult to convince them that without dowry demand also a wife can be physically assaulted, mentally harassed and it is an offence under Section 498-A.

Now, we will come to the main point.  The I.O. collects the documents.  Then most important part of the investigation takes place.  He will take down your statement in his own handwriting under section 161 of Criminal Procedure Code (Cr.P.C.).  You are the star witness / material witness in this case.  Your statement is utmost important to prove the charges.  You have to give your statement completely emphasising the incidents you mentioned in your complaint and F.I.R.  You should not try to improve your case by adding fresh allegations or by exaggerating the incidents mentioned in your complaint.  You have to stick to your complaint.  Otherwise your case will be spoiled.   In addition to this, if there are other witnesses, their statements are also taken by the I.O. under Section 161 of Cr.P.C. in his own handwriting.  In these other witnesses, your parents, your sisters, brother or your close friends, with whom you shared your grief, the neighbours of matrimonial home may come.  Some of them may be eye witnesses and some of them may give only “hearsay evidence”.  Hearsay evidence means that they have not seen the offence(s) with their own eyes but heard them from some other source and their evidence may not be good qualitatively, but may be helpful for corroboration purposes, if the material witness proves her case.  These Section 161 statements recorded by I.O. in his own handwriting are not to be signed by you or other witnesses.  Your signature on your statement under Section 161 is expressly prohibited under Section 162 of the Cr.P.C.  Hence, Section 161 statements will be in the handwriting of the I.O. and placed in the enquiry file without the signatures of the witnesses.  You ask the copy of the Section 161 statements.  He will generally refuse.  You do not have any legal right to get it at this stage.  That is why I suggest you that after giving your statement under Section 161 of Cr.P.C. you come back to your home and write down on paper the statement out of your memory and keep it in your file.  After 4 or 5 days, you move an application under right to information Act seeking the copy of Section 161 statements.  During the investigation time, the police department has got the power to refuse to give it to you.  Even then, your application under RTI will be helpful to you in trial stage.

Now, there is a possibility of changing the Section 161 statements during the investigation stage by the vested interests as they have not been written in your own handwriting and they are not signed by you.  If such a change takes place, that will be detrimental to your case.  The newly created section 161 statements may be exaggerating or diluting the offences you mentioned in your complaint and FIR and in both circumstances, that will spoil your case.  The most unfortunate thing is that even after losing the case, you may not be knowing that Section 161 statements are not the same, which are recorded in your presence at the time of investigation and they have been changed at the later stage.  There is a loop-hole at this stage, which defence (accused) can use it with the assistance of conniving investigating authority. 

After the investigation is completed, the charge sheet along with the Section 161 statements and other related documents are placed on court file and the hon’ble court will supply them to the accused free of cost.  You will not get them in the capacity of complainant.  But you can apply for the same and you will get the certified copies of all the documents placed on  the court file.  Once, you receive them, the first thing you have to do is to go through Section 161 statement and verify that whether that is the statement you have given it before I.O. or not and other section 161 statements are the same as given by other witnesses.  If you find any contradiction on material fact, you have to inform the court before framing of the charges.  If you have engaged an advocate, he shall bring these facts before the court.  Once charge sheet and documents are supplied to the accused, the investigation part of the case is concluded.  Now the trial starts.

I hope that I explain about trial part in the next part.

Till then, good-bye.