Very long and interesting story and a very tough one situation.
No.
Better to read this thread also as advocate prabhakar and i also gave the advise as below ;
https://lawyersclubindia.com/forum/what-is-304b-amp-498A-8516.asp
What steps should be taken by the complainant to prove the charges under Section 498-A and get the accused to be convicted?
That conviction rate in Section 498-A of IPC is very low. There are several reasons for this. The low conviction rate is not limited to Section 498-A. It spreads to widdth and breadth of various sections of IPC. The conviction rate in Section 300 (murder), S. 306 (abetment to suicide), S. 307 (attempt to murder), S. 354 (outrage the modesty of woman, it is a very important section to know where the victim and accused are not related to each other, but the conviction rate is abysmally low, lower than S. 498-A), S.376 (rape) etc. etc. is very low. It is pertinent to mention here that in other criminal Acts, such as TADA, POTA etc. the conviction rate was very low before repealing those Acts. That the conviction is not there does not mean that offence has not occured. It means only that the accused is not culprit and the offence in relation to the accused is not proved beyond reasonable doubt. Taking the example of murder case, where dead body is there, post-mortem report is there, weapon of offence and direct eye witnesses are there and even then, the prosecution fails to prove the case and it does not mean that the murder has not happened. It means that the accused is not a murderer. The same meaning applies to Section 498-A.
If in other IPC offences also the conviction rate is so low, then why this much noise about 498-A and its misuse? The reason behind this has got social and economic reasons. Most of the accused in S. 498-A cases belong to middle and upper middle class, where as the accused in the other sections of IPC generally belong to poorer sections of the society (exceptions are there, please). That Section 498-A accused are not habitual offenders of other criminal acts. Next, most important is that the offence described in Section 498-A is not perceived by most of the people of the society (it includes women) as “offence”. For example, Section 498-A (a) part says that any wilful conduct........cause......(whether mental.....or physical). This conduct need not related to dowry. If that wilful conduct by the husband or relative of husband causes mental agony, S.498-A attracts. But, really such thing happens to a woman and she complains about it, the society around her including her parents do not accept that it is an offence. They say it as a routine thing in matrimonial matters.
It is very important for the general public, women welfare groups, investigating authority (Police) as well as legal community and judicial authorities to understand the full meaning of Section 498-A. Section 498-A (a), there is no reference of dowry. Hence, if the cruel act does not relate to dowry, then also, complainant can invoke this provision and that cruel act is an offence and punishable.
Here is one of the reasons that why S.498-A cases fail. The complainant comes to the advocate of complainant / police station having a complaint against her husband and / or his relatives in relation to cruel acts perpetrated against her. The cruel act may be physical or mental. Now, the advocate / duty officer of police station think that mere reducing whatever she complains cannot make a strong case, as dowry demand has not arisen. Hence, immediately advises her to raise the complaint of harassment coupled with dowry demand. Hence, the complaint is made with the facts far, far away from truth. Had the complaint be reduced in its original form as dictated by the complainant and an intelligent and honest A.P.P./P.P. would have conducted the prosecution, there were better chances to provide justice to the complainant and accused could be convicted without reference to dowry. All the time, all the cruel acts as described law, need not be connected with dowry demand. Then also those cruel acts are punishable under Section 498-A, if prosecution is conducted properly.
Next, unfortunately bringing all the relatives of the husband into the complaint net, even though they are not related to offence. The duty officer/the advocate will advise her to do the same, as the pressure can be built up against the accused and his blood relations, so that dowry articles and istri dhan can be retrieved at the time of anticipatory bail/bail application. (If the dowry and/or istri dhan has to be retrieved from matrimonial home, appropriate legal procedure has to be followed and not by filing S.498-A case against the innocent). Hence, brothers-in-law and sisters-in-law living in faraway places, not related to offence, are referred in the complaint. This again dilutes the seriousness of the complaint and victim does not get justice and the real culprit gets away scot free at the end of the trial and unfortunately innocent are put behind bars at the initial stage of investigation till they get bail. If the complaint contains 25% truth, which attracts penal punishment under Section 498-A and 75% untruth, in the trial, the accused gets the benefit. At the time of reducing the complaint into FIR, the duty officer / the advocate of the complainant knows the outcome of the case and even then lures her to give such complaint, which is mixture of truth as well as false and ultimately the benefactor is the accused and not complainant.
THIS IS THE MOST IMPORTANT THING. IF YOU WANT RECONCILIATION WITH THE HUSBAND, NEVER, NEVER FILE SECTION 498-A, TILL THE CONCILIATION PROCEDURES TOTALLY FAIL AND YOU COME TO DEFINITE CONCLUSION THAT HE IS INCORRIGIBLE BRUTE AND THERE IS NO SCOPE AND LIFE TO LIVE WITH HIM.
Now, keeping these things in mind, follow the following a few Tips to successfully conduct Section 498-A case.
1. Stick to the truth, nothing but truth.
2. Sit in isolated and calm place, write yourself the complaint, in the language, whichever is convenient for you.
3. The complaint has to be addressed to S.H.O. (Station House Officer)/In-charge, CAW (Crime Against Women cell) and a copy can be forwarded to D.C.P. (S.S.P.) and Commissioner of Police(I.G. of Police). If FIR is not registered, these copies will be helpful for intervention of concerned magistrate / High Court to give appropriate directions.
4. Now the most important thing. What should be there in the complaint? The cruel acts perpetrated against you shall be mentioned. The incidents must be chronological wise (means date wise). The descripttttion must be crisp. Place, time and the offenders have to be mentioned. If any verbal abuse is there, that has be given in quotes (if you remember). I will give an example to explain this point.
“On 6th May, 2008 at about 6.00 P.M. my husband came back from office and sat on the sofa in the sitting room. At that time, my father-in-law and mother in law were sitting on other sofa and were watching the T.V. My husband asked me to serve him a cup of tea. I prepared it and took it to him. After having a single sip, he threw the entire tea on my face, shouting “where is the sugar in the tea? You are becoming lazy day by day, you do nothing except to eat away my money and keep your entire salary in your bank account”. My face has burnt due to pouring of hot tea. My younger sister, who came on that evening to meet me, immediately rushed to bathroom and brought “burnal” and applied the same on my face”.
“On 9th May, 2008 at 9.00 A.M........”
“On 26th May, at about 8.00A.M......”
Again I emphasise that stick to the facts and no fiction.
After writing this complaint, read thoroughly time and again for several times and make proper factual, grammar and sentence structure corrections. It is your complaint.
What should you do with this complaint, I explain in the next part, which I would post as soon as possible.
In the 2nd part, we came to the stage where the court gives the copy of the charge sheet and all other relevant documents to the accused. You can get them by applying for certified copies. Now, in your file, you have your complaint, FIR Copy, charge sheet and Section 161 Cr.P.C. statements and other documents you provided to the I.O. You have already verified that the statements in Section 161 are properly recorded as you said before the I.O.
By this time, there was a chance that the accused might have already gone to High Court for quashing of the charge sheet. Now after filing of the charge sheet, the accused may again go to High Court for quashing the charge sheet and criminal proceedings. If he succeeds there, the matter ends there. If he does not succeed, the trial starts.
After filing of the charge sheet, the trial does not start immediately. The court will direct the prosecution to lead its evidence. This date will be a very lengthy date, as per the availability of the diary date of the court. It oppresses you as a complainant and also defence. The date would go beyond one year.
Naturally, the prosecution shall produce the complainant as its first witness as she is the material witness and by her deposition, three-fourth of the case will be over. But, it is observed that the prosecution puts other witnesses such as duty officer, who are formal witnesses and not so much important for the purpose of proving the charge, in the first place. There would be a gap of six months from one date to another date. In this way, as a material witness, you will be put in the witness box after two and half to three years from the date of complaint. Things would be blurred by that time. You might have faced the hell of life time by your family members, relatives, friends by branding you “Section 498-A wife”, “extorting woman” and what not. In such wrecked condition if you will be put in witness box, you say something incoherently through out your deposition and the charges are not proved. To avoid this thing, you have to take the following steps:
1. Prosecution is either busy or not interested to prove the prosecution case or for any other reason, it will not tell you what happens when you stand in witness box. That is why, a week before your evidence, you go through your file. You read FIR and Section 161 statements. You contact your advocate and give him file and ask him what are those questions that can be asked in the cross-examination. He will frame the questions and also suggest the answers to be given to such questions. You discuss with him thoroughly and after that you prepare yourself for examination and cross examination.
2. Now once you stand in the witness box, the prosecution asks you – “what happened on that day”. Then you have to narrate the incident. It will ask the further questions pertaining to the various incidents in a friendly manner, so that whatever you said in FIR and Section 161 statements come out in your evidence. It is called “examination-in-chief”. Now, the court asks the defence counsel to cross examine you. He, invariably asks for a date and does not cross examine you by citing various reasons. The intention behind this is that the matter can be delayed and whatever you said in examination-in-chief will be forgotten by you. You can get the certified copy of the examination-in-chief. The next date again comes after 6 months. The defence counsel avoids the cross examination of complainant as many times as possible by various pretexts and it will be advantage for defence. Hence, on each and every date, one day before the date, you must prepare for cross examination at your home by going through the questionnaire you prepared with the assistance of your advocate.
3. In the cross examination, you must give answers very briefly. Do not try to elaborate. Already your elaboration is there in 161 statements and examination-in-chief. If you elaborate, that will spoil your case. For example he asks a question:
Q. It is wrong that your husband has ever beaten you? (It is a suggestion question)
A. Your suggestion is wrong. (You need not elaborate that he has beaten me on such and such date, because it is already there in examination-in-chief)
Q. “You left your matrimonial home on---------(so and so date) without seeking your husband’s permission? Answer only yes or no”.
A. No. (now you want to add some thing, you can say, “in fact he took me to my parental home and left me there”.) It will be recorded like this:
A: No. (Voltd.) in fact he took me to my parental home and left me there.
The above are only illustrative questions and not exhaustive.
Once, your cross examination is over, similar procedure is followed in respect of other witnesses, if any. If they are your relatives, friends, they also be properly prepared, as you prepared, to face the onslaught of the defence.
Once, prosecution evidence is over, your part is over. You have to simply wait for justice. Now, it is for the defence, whatever steps they want to take.
After completion of the trial, the trial court judge will see that whether there is any material and most important contradiction between the FIR content, Section 161 statements and the examination-in-chief and in cross examination of witnesses, more particularly in the complainant’s depositions. Further, he will see that the version put forth by the complainant is supported by the other prosecution witnesses. If no material contradiction is there and the offences alleged and proved come within the ambit of Section 498-A, the court will hold the accused as guilty.
Now, before ending this part, I would like to reply to unwarranted and uncivilized statements of some of the members of this forum.
The Bench (judges) and the Bar (advocates) have the responsibility to make the public aware of their legal rights and how to enforce them. In respect of the rights of women, children and poor industrial workers, several governments have allocated funds and are sending the advocates to the places where these people reside and tell them about their rights and how to get them implemented. Mobile vans are being arranged by the Bar Associations and are exhorting the advocates to go to various places of residence and create legal awareness among masses. Big news paper advertisements are being given. In Delhi metro stations, huge banners are being displayed explaining the rights available to women under “domestic violence” Act. The hon’ble judges are holding seminars, classes etc. to create legal awareness. I Know one of the most prominent judges of hon’ble Delhi High Court presided over meetings on the particular subjection “Section 498-A” on two or three occasions. I am doing it in my humble way. That is why, writing this write-up is neither illegal nor legal terrorism camp but a solemn responsibility, which I discharged to my level best. Even then, if any one has got any objection of any part or entire series of this article on the ground that I breached moral obligation or etiquette or violated any provisions of law, which required to be punished as per law, I repeatedly said earlier and I am saying once again here, they are free to bring this matter before any court of law to punish me. I challenged them once, if they chose they can file contempt petition and they became silent because they have no guts and they have not convinced themselves about what they are saying. I do not want to learn decency from those people who call the other hon’ble members of this forum as “Prostitutes” and “sikhandis”. I, once again, challenge them that once they file contempt petition against me on this topic or any legal advice I tendered on this forum on the ground that it has obstructed the administration of justice, I will see that they pay the cost of the litigation to the legal aid centre attached to that court and also get reprimanded for using “abusive words” against female members of this forum.
And my Last word essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India[(1997) 2 SCC 664].) A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.
