Delhi District Court
Ex. Pw2/D1 Consent For Issuing … vs Unknown on 23 April, 2018
        IN THE COURT OF METROPOLITAN MAGISTRATE
     (MAHILA COURT) -02 CENTRAL DISTRICT, TIS HAZARI
                    COURT, DELHI
                Presided by : Ms. Sonam Singh


State v. Shekhar Chand Pandey and Others
FIR No. 193/2002
Police Station : Subzi Mandi
Under Sections: 498A/406/34 of the Indian Penal Code, 1860 (in short "IPC")
CIS No. 288095/16


Date of institution        : 05.04.2004
Date of pronouncement: 23.04.2018


                                           JUDGMENT

a) Serial number of the case : 170/2/09

b) Date of commission of : Since 07.02.1999 offence

c) Name of the complainant : Ms. Geeta Pandey

d) Name, parentage and : 1. Shekhar Chand Pandey @ address of the accused Chander Shekhar Pandey persons S/o Sh. Gopal Dutt Pandey

2. Gopal Dutt Pandey S/o Sh. Madhva Nand Pandey

3. Madhu @ Mohini Pandey W/o Sh. Gopal Dutt Pandey State v. Shekhar Chand Pandey and Others

4. Maya Pandey D/o Sh. Gopal Dutt Pandey

5. Ganga Pandey D/o Sh. Gopal Dutt Pandey R/o H. No. J-281/34B, Gali No.9, Vijay Colony, Usman Pur, Delhi-

110053.

6. Rekha @ Sonu D/o Sh. Gopal Dutt Pandey R/o Flat No. 176, Asha Pushpa Vihar, Ghaziabad, near Daber Building, U.P.

e) Offence complained of            : Sections 498A/406/34 IPC
f) Plea of the accused              : Accused persons pleaded not guilty
g) Final order                      : Accused Ganga Pandey and Rekha
                                      Pandey already stand discharged
                                      from all the offences i.e. offences
                                      punishable under Sections 498A
                                      and Section 406 IPC and accused
                                      Maya Pandey was discharged for
                                      the offence punishable u/s 406 IPC,
                                      vide order dated 14.09.2004
                                      passed by learned predecessor of
                                      this court.


                                      Accused Maya Pandey stood
                                      discharged from the offence
                                      punishable u/s 498A IPC vide order
                                      dated 25.05.2005 passed by Ld.
                                      ASJ, Delhi.


                                      Accused persons Shekhar Chand
                                      Pandey, Gopal Dutt Pandey and
                                      Madhu @ Mohini Pandey stand
                                      acquitted   of   the  offences
                                      punishable     under   Section
                                      498A/406/34 IPC

State v. Shekhar Chand Pandey and Others

 h) Date of final order              : 23.04.2018



BRIEF FACTS AND REASONS FOR DECISION OF THE CASE

1. Vide this judgment, the accused persons Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey are being acquitted of the offences punishable under Sections 498A/406/34 IPC in this case for the reasons mentioned below.

CASE OF THE PROSECUTION

2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) is that the accused persons, namely, Shekhar Chand Pandey @ Chandra Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey, during the subsistence of marriage between the complainant Ms. Geeta Pandey, and accused Shekhar Chand Pandey since 07.02.1999, subjected Ms. Geeta Pandey to cruelty by making unlawful demands of dowry in furtherance of their common intention. Further, according to the prosecution, the willful conduct of the said accused persons was of such a nature which was likely to drive the complainant to commit suicide or caused her grave injury or danger to her life, limb or health. It is also alleged that the said accused persons were entrusted with istridhan of the complainant and misappropriated the same for their own use and refused to return the same on her demand in furtherance of their common intention. Hence, it is the case of the prosecution that the accused persons have committed offences punishable under Section 498A/406 read with Section 34 IPC.

3. The investigation was done by the IO SI Chander Singh, who filed the police report under Section 173 of the Cr. P.C. in respect of the offences punishable State v. Shekhar Chand Pandey and Others under Section 498A/406 read with Section 34 IPC COURT PROCEEDINGS

4. The learned predecessor of this court took cognizance upon the said police report on 05.04.2004 and on 25.05.2004, the accused persons were supplied with the copies of police report and documents.

CHARGE

5. Vide order dated 14.09.2004, the learned predecessor of this court framed the charge against the accused Accused Maya Pandey, Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey persons for the offences punishable under Section 498A read with Section 34 of the IPC and against all the aforesaid accused persons except accused Maya Pandey also for the offence punishable u/s 406 IPC, to which they pleaded not guilty and claimed trial. Vide the said order, the accused Ganga Pandey and Rekha Pandey were discharged from all the offences i.e. offences punishable under Sections 498A and Section 406 IPC but accused Maya Pandey was discharged only for the offence punishable u/s 406 IPC. Thereafter, vide order dated 25.05.2005 passed by Ld. ASJ, Delhi, even accused Maya Pandey was discharged from the offence punishable u/s 498A IPC EVIDENCE OF THE PROSECUTION

6. Thereafter, the matter was listed for prosecution evidence.

(i) Prosecution Witnesses In order to prove and substantiate its case, the prosecution the prosecution in all has examined Eight witnesses, namely:

State v. Shekhar Chand Pandey and Others Sr.

            Designation and Name Role in the present case
      No
            of the Witness
      1.    PW 1 HC Subhash                    Duty Officer
      2.    PW 2 Smt. Geeta Pandey Complainant
      3.    PW 3 Smt. Basanti Devi             Mother of the complainant.
      4.    PW 4         Inspector         Rita 2nd investigating officer and
            Amrohi                              arrested the accused Rekha
                                                @ Sonu, Gopal Dutt, Mohini
                                                @ Madhu, Maya Pandey and
                                                Ganga Pandey

5. PW 5 Sh. Anand Sharma Brother of the complainant

6. PW 6 Sh. Jugal Kishore Witness of certain articles being handed over by accused Shekhar Chand Pandey to police at CAW Cell, Sarai Rohilla

7. PW 7 Retired SI Dilip 1st investigating Officer of the Kumar case.

8. PW 8 Retired SI Chander 3rd Investigating Officer of the Singh case.

(ii) Documents on record:

The prosecution witnesses relied on the following documents:

     Sr.    Exhibits/                Nature of documents
     No Marks
     1.     Ex.PW1/A                 Copy of the FIR
     2.     Ex.PW2/A                 List of dowry articles given, at the time
                                     of marriage, by the parents of the
                                     complainant and from the side of her
                                     husband
     3.     Ex. PW2/B                List of istridhan given to the
                                     complainant      at    the     time     of
                                     engagement, by her parents and in-


State v. Shekhar Chand Pandey and Others

                                  laws
     4.    Ex. PW 2/C            Complaint at CAW Cell, Nanak Pura
     5.    Ex.PW2/D1 to D2 Photographs of marriage
           (wrongly
           mentioned          as
           PW2/D1,         since
           certain documents
           which           were
           confronted to the
           complainant       had
           already been given
           the    identity    of
           Ex.PW2/D1
     6.    Ex. PW2/D3            Marriage card
     7.    Ex.PW2/F              Seizure memo of dowry articles

     8.    Ex. PW 2/G List of dowry articles, which were
                      given by the parents of the
                      complainant at the time of marriage

9. Mark A1 to A8 Photographs of recovered articles

10. Mark A Receipt of hospital

11. Ex.PW2/D Income tax records for the year 1999 to 2000 of the father of the complainant

12. Ex. PW4/A Arrest memo of Rekha @ Sonu

13. Ex. PW4/B Arrest memo of accused Gopal Dutt

14. Ex. PW4/C Arrest memo of accused Mohini @ Madhu

15. Ex. PW4/D Arrest memo of Maya Pandey

16. Ex. PW4/E Arrest memo of Ganga Pandey

17. Mark CD1 and CDs Mark CD2

18. Ex. PW7/A Endorsement on the complaint

19. Ex. PW8/A Arrest memo of accused Shekhar Chand Pandey

20. Ex. PW8/B Personal search memo of accused Shekhar Chand Pandey

21. Ex. PW8/C Fard Adam Baramdgi memo

22. Ex. PW8/D Disclosure statement of accused Shekhar Chand Pandey

23. Ex. PW8/E Fard Adam Baramdgi memo The prosecution witnesses were confronted with the following documents by the accused persons:

State v. Shekhar Chand Pandey and Others

        Sr.      Exhibits/         Nature of documents
       No       Marks
       1.       Ex. PW2/D1 Consent for issuing Medical ID
                (Colly)    Card, pension payment advice,
                           application for post retirement
                           passes of the       father of the
                           complainant of which show his
                           salary to be Rs. 6375/-
       2.       Ex. PW2/D2        Statement given to the police
                                  dated 17.05.2002
       3.       Ex. PW2/D3        Translation of the statement which
                                  is Ex.PW2/D2
       4.       Ex. PW2/D4        Cross     examination   of   the
                                  complainant before the HMA court
                                  in divorce proceedings
       5.       Ex. PW2/D5 Certified copy of objection and
                and    Ex. affidavits filed by the complainant
                PW2/D6     in a case under Guardianship Act.
       6.       Ex. PW2/D7        Certified copy of application filed
                                  before the Guardianship Judge
                                  dated 28.09.2004
       7.       Ex PW2/D8         Certified copy of the judgment and
                                  decree dated 06.08.2014 passed
                                  by the Ld. Family Court, THC ,
                                  Delhi whereby the marriage of
                                  complainant and accused Shekhar
                                  Chand Pandey was dissolved
       8.       Ex. PW2/D9        Certified copy of order dated
                                  06.09.2016 of the Hon'ble High
                                  Court of Delhi in MAT APP. (F.C.)
                                  15/2015 titled as Geeta Pandey v.
                                  Shekhar Chand Pandey confirming
                                  the grant of divorce.
       9.       Ex. PW2/D10 Record of enumeration bearing
                            serial no. 0820259
       10.      Ex. PW2/D10 Record of enumeration bearing
                            serial no. 0820259
       11.      Ex. PW2/D11 Order of the court of Sh. Deepak
                            Jagotra, Ld. ASJ, Delhi dated
                            21.10.2003

State v. Shekhar Chand Pandey and Others

         12.     Ex. PW3/DA        Statement   under   Section   161
                                  Cr.P.C.
        13.     Ex. PW5/DA        Statement of     Anand Sharma
                                  under Section 161 Cr.P.C.


Thereafter, prosecution evidence was closed vide order dated 11.07.2016. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.

THE STATEMENT OF THE ACCUSED PERSONS UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED PERSONS

7. The Accused persons in their statements under Section 313 Cr.P.C. recorded on 03.06.2017 denied the entire evidence put to them. They have stated that the marriage of Shekhar Chand Pandey with the complainant was a dowry-less marriage. Both their families knew each others’ financial condition and they were fully aware that father of complainant, being the sole bread earner of the family, was employed as a car driver with the Railways, Govt. of India and for this reason also there was no occasion for them to demand dowry from the complainant or her family members. They also stated that she is hyper sensitive and suspicious and right from the very beginning, she had an eye on the ancestral properties of Gopal Dutt Pandey and had always pestered and demanded that the said properties be transferred in her name and upon not doing so, the complainant used to give several threats of committing suicide and involving them and their family members in false and frivolous cases. It is also stated that on 29.04.2002, the complainant picked up a fight and threatened to commit suicide by threatening to consume Sulphuric Acid kept in a bottle nearby,if her illegal demands were not fulfilled. Thereafter, a complaint was filed and the matter was investigated by the police, however, on 17.05.2002, the complainant on her own left the matrimonial home and ultimately, beside others, also filed the instant false case against them only with a view to seek vengeance, harass and extort money from them. Further, they stated that no State v. Shekhar Chand Pandey and Others unlawful demand was ever made from the complainant or her family members. It was lastly stated that the marriage of Shekhar Chand Pandey alongwith the complainant has already been dissolved by decree of divorce passed by the Ld. Family Court, THC, Delhi.

EVIDENCE OF THE DEFENCE

8. Thereafter, the matter was listed for defence evidence. Vide separate joint statement of the accused persons on 20.07.2017, defence evidence stood closed as the accused persons did not wish to lead any evidence in their defence.

FINAL ARGUMENTS

9. The Court heard the final arguments on 20.03.2018 and 26.03.2018.

ANALYSIS AND FINDINGS

10. I have heard the submissions of Sh Vikas, Learned Assistant Public Prosecutor for the State as well as that of Sh. Amardeep Singh, Ld. counsel for the accused persons. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.

I. Charge under Section 498A IPC

11. In order to decide the present case, it is important to discuss the legal provisions. In order to establish the charge under Section 498A IPC against the accused persons, the prosecution was required to prove the following:

i) that the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey were either the husband or relative of the husband of the State v. Shekhar Chand Pandey and Others complainant Smt. Geeta Pandey; and

ii) that the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey had subjected the complainant to cruelty.

12. The term “cruelty” has been defined in the Explanation to Section 498A I.P.C. There are two limbs of the section i.e. the first type of cruelty is when there is willful conduct of a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. The willful conduct can be either physical or mental. The second type of cruelty as per the said section is harassment with a view to coerce her or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand. The Hon’ble apex court in the case of State v. Prem Chand and Ors 2016 SCC OnLine Del 3667 : (2016) 231 DLT 204 (DB) : (2016) has also explained the two types of cruelties contained in Section 498A, in the following words, as reproduced below:

“17. Section 498A IPC lays down two types of cruelties. The first, being, wilful conduct of a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. Wilful conduct can be both mental and physical but it must relate to a woman. The second, being harassment with a view to coercing her or any person related to her to meet unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand. The second aspect is relatable to the property, and should be with a view to coerce her or any other person related to her to meet any unlawful demand of property or valuable security. Further, the harassment should be on account of her failure or failure of any other person related to her to meet the said demand.”

13. Let us now appreciate evidence on record and first see whether the first ingredient is made or not i.e. Whether the accused persons Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey are the husband or relative of the complainant, Smt. Geeta Pandey?

Whether the accused persons Shekhar Chand Pandey, Gopal Dutt State v. Shekhar Chand Pandey and Others Pandey and Madhu @ Mohini Pandey are the husband or relative of the complainant, Ms. Geeta ?

14. As per the case of the prosecution, the accused Shekhar Chand Pandey is the husband of the complainant and other accused persons namely, Gopal Dutt Pandey and Madhu @ Mohini Pandey are the father-in-law and mother-in-law of the complainant respectively. The complainant, Smt. Geeta Pandey stepped into the witness box as PW2 and categorically deposed in her examination-in-chief recorded on 06.03.2009 that she got married with Shekhar Chand Pandey, in accordance with Hindu rites and ceremonies on 07.02.1999. Further, even PW- 3/Smt. Basanti Devi and PW-5/Sh. Anand Sharma, who are the mother and the brother of the complainant respectively testified that the accused Shekhar Chand Pandey, accused Gopal Dutt Pandey and Madhu @ Mohini Pandey are the husband, father-in-law and mother-in-law of the complainant respectively. The said prosecution witnesses have not been cross examined on the said aspects. Further, the factum of marriage between the complainant and the accused Shekhar Chand Pandey and that of the accused persons namely, Gopal Dutt Pandey and Madhu @ Mohini Pandey being the father-in-law and mother-in-law of the complainant have not been disputed by the accused persons in their statement recorded under Section 313 Cr.P.C. either. Hence, it stands proved that accused Shekhar Chand Pandey is the husband of the complainant and accused Gopal Dutt Pandey and Madhu @ Mohini Pandey are the father-in-law and mother-in-law of the complainant respectively. Thus, the first ingredient of the offence stands established.

Whether the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey had subjected the complainant Ms. Geeta Pandey to cruelty?

15. As already discussed, the prosecution is required to prove that the complainant was subjected to cruelty in terms of Explanation to Section 498A by State v. Shekhar Chand Pandey and Others the accused persons. Let us first examine the second limb i.e. whether the complainant faced harassment with a view to coerce her or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand.

Whether the accused persons harassed the complainant with a view to coerce or any person related to her to meet an unlawful demand of any property or valuable security or on account of her failure or of any person related to her to meet such demand?

16. The case of the prosecution is that the accused persons harassed the complainant with dowry demands on various occasions, such as at the time of marriage and also after the marriage. Specifically, the complainant/PW2 has deposed that after the marriage there was a demand of car made by the accused persons and due to non-fulfillment of the demand, the complainant was given beatings by the accused persons. Further, it was stated by the complainant that the accused persons used to trouble her for money and she was given beatings in regard to these demands also. It was also deposed by her that when the dowry demands were unfulfilled, her father-in-law, accused Gopal Dutt Pandey asked her father to take her back to her parental house.

Allegation of dowry allegedly given by the parents of the complainant to the accused persons at the time of marriage

17. In the complaint made by the complainant, which is Ex. PW2/C, the complainant stated that her parents spent around Rs. 4.5 Lacs to Rs. 5 Lacs on the marriage, additionally, Rs.1,80,000/- was spent on the arrangements of the marriage function and Rs. 18,000/- was given as deposit amount for booking the venue for the marriage function. She further stated that the arrangement for the tent and food was made, according to her in-laws. There is also a list of articles, which were allegedly given in the marriage, which have also been described in State v. Shekhar Chand Pandey and Others the said complaint. The complainant/ PW-2 Smt. Geeta Pandey deposed on the same lines in her testimony by reiterating that the said articles were given to the accused persons and the said amount of money was incurred by her parents for the marriage. However, it is pertinent to note that in her testimony she made an improvement, by alleging that the expenses for the marriage were incurred as per the direction of the accused persons. This fact was neither mentioned by her in her complaint Ex. PW2/C nor by other prosecution witnesses. If in fact, directions were given by the accused persons, at least one of the family members of the complainant i.e. amongst PW-3/Smt. Basanti Devi and PW- 5/Anand Sharma who are the mother and brother of the complainant would have explicitly stated so but there is not even a whisper regarding any demand made by the accused persons, at the time of marriage, in their testimonies and thus, the said fact mentioned is an afterthought of the complicate to implicate the accused persons. Furthermore, neither the complainant nor the other prosecution witnesses have stated that at the time of marriage, the dowry articles were demanded by the accused persons and hence, merely because articles were given as dowry, does not qualify as a dowry demand and could have been gifts. Hence, the said allegation even if proved will not amount to an offence punishable under Section 498A IPC.

Allegation regarding trouble caused to the complainant by the accused persons after 04-05 months of marriage

18. Another allegation by the complainant as per the Ex. PW2/C, is that after 04- 05 months of the marriage, the accused persons started to trouble her in different ways. She has reiterated the exact fact even in her deposition before the court and the same was corroborated by her mother PW-3/Smt. Basanti Devi. However, the complainant and her mother have failed to mention as to how the accused persons troubled the complainant and what methods were adopted by them to harass her and whether the trouble was caused in relation to any dowry demand. Neither the complainant nor the other prosecution witnessesState v. Shekhar Chand Pandey and Others described any specific instance or nature of the trouble which was allegedly caused to the complainant. Thus, it is seen that this allegation is general and bald in nature, as no date and time has been mentioned as to when the accused persons troubled the complainant and whether any dowry demand was made in respect of the harassment caused to the complainant. In a judgment pronounced by the Hon’ble Apex Court, in the case of Surender Kaur v. State of Haryana (2004) 4 SCC 109, it was held that statements which are omnibus in nature, sans particulars of the time and the date when a woman was harassed or when dowry demands were made and the nature of the demands made not being amplified, lack in credibility.

An allegation regarding demand of car as dowry by the accused persons

19. The prosecution has argued that the accused persons demanded a car from the mother of the complainant. However, a close perusal of the complaint Ex. PW2/C shows that it is stated therein that the accused persons had demanded for a car in the complainant’s name and stated that they would return the money spent in buying the car as they had black money which they could not disclose. Further, it is stated that when her mother refused to fulfill their demand, as a consequence of which, the complainant was given beatings. The same facts were repeated by her in her deposition but neither in the complaint nor in the deposition, she clarified that as to which accused persons gave her beatings. She also contradicted herself, since in her complaint, she stated that the demand was made to her mother but in her testimony, she stated that it was made to her parents. She failed to state the date, time and place when the demand was made and when she was given beatings. She also omitted to state the mode by which she was given beatings and even the role played by the accused persons in giving her beatings. No MLC was filed by the complainant to show that she was given beatings. In this respect, the testimony of PW-3/ Smt. Basanti Devi, is the most relevant which also exposes the falsity of the statement made by the complainant. PW-3/ Smt. Basanti Devi stated in her State v. Shekhar Chand Pandey and Others cross-examination recorded on 25.01.2017 stated that she could not recall whether she told her daughter regarding a request made by the accused persons for buying a car in the name of the complainant, since they had black money and they would subsequently return the same. In fact, even otherwise , in case the accused persons requested for a car from the mother of the complainant, the same would not qualify as a dowry demand, since, the accused persons had allegedly stated that they would have returned the money.

Allegation regarding demand of money by accused persons

20. The complainant PW-2/Smt. Geeta in her complaint and deposition stated that the accused persons asked her to bring money from her parents. In her testimony, she made an improvement by stating that the accused persons gave her beatings in respect of the dowry demand. Similarly, the complainant in her deposition alleged that the accused Gopal Dutt Pandey, who is her father-in-law asked her father to take her back to her parental house when the dowry demand was unfulfilled. This was also an improvement, since she had not categorically mentioned her father-in-law in the testimony in the testimony but only stated that “they” had asked her to be taken back in her complaint. The complainant also failed to mention as to what dowry demand was made by the accused Gopal Dutt Pandey and on what date, time and place, the dowry demand was made. These allegations are general and sweeping in nature and do not bring out the acts or the utterances of the individual accused and thus, they are worthless. Bald allegations without particulars are worthless unless allegations of active involvement with particulars are made, without which no offence under Section 498A IPC is made out.

21. In view of the aforesaid discussion, it is apparent that the prosecution has failed to prove the second limb of Section 498A IPC.

22. It was also argued by the prosecution that the first limb of Section 498A is State v. Shekhar Chand Pandey and Others also clearly attracted in the present case i.e. the accused persons’ conduct towards the complainant was of a nature which was likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health. Let us now explore this aspect.

Whether the accused persons conduct towards the complainant was of a nature which was likely to drive her to commit suicide or to have caused her grave injury or danger to life, limb or health?

Allegation regarding the accused persons wanting to kill her, threat to perform the second marriage of accused Shekhar Chand Pandey and beatings given by Shekhar Chand Pandey after consuming alcohol

23. The complainant in her complaint Ex. PW2/C alleged that the accused persons had the intention to kill her. However, the complainant failed to elaborate as to how the accused persons intended to kill her. It is a bald allegation made bereft of specific particulars and hence, unworthy of reliance. Further, she stated that she was threatened by the accused persons that they would perform the second marriage of the accused Shekhar Chand Pandey to another girl who would provide them sufficient dowry. However, she did not specify in her complaint as to which accused persons threatened her and on what date, time and place, this threat was met out to her. Although, in her testimony, she made an improvement by naming her mother-in-law i.e. accused Madhu @ Mohini Pandey and a sister-in-law who gave the threat. PW3 Basanti Devi in her examination-in-chief had testified that the accused Shekhar Chand Pandey had got married with another girl, namely, Renu in the year 2007 and that the complainant had filed a complaint in the year 2011 at PS Kasna and PS Ram Nagar, Uttrakhand. However, this aspect of performance of second marriage by the accused accused Shekhar Chand Pandey was not mentioned by the complainant. In fact, even, the aforesaid complaints were never brought State v. Shekhar Chand Pandey and Others on record. The complainant also stated in her complaint that the accused Shekhar Chand Pandey would come home drunk and give her beatings. However, the said allegation was not supported by her in her testimony, as there is not even a whisper regarding it.

Allegation regarding her name not being mentioned in the ration card

24. Another grievance of the complainant, as mention in the said complaint and her deposition was that her name was not added to the ration card by the family members. By no stretch of imagination, this act can amount to any sort of mental or physical cruelty, though the complainant may have felt hurt with their alleged conduct, which can at most be said to be unfair.

Allegation of forced statements given by the complainant to the police at the behest of the accused persons

25. The complainant in her complaint stated that on 08.05.2002 at 10.00 pm, the police came and asked her to appear on 09.05.2002. Thereafter, the police again paid a visit on 10.05.2002, when, her mother in law, father in law and sister in law and husband threatened her to give a statement in writing and, in failure to comply with the direction, they threatened to kill her once the police would leave. She also stated that they made her write that she had made a mistake of eating something and that she would not repeat the same in future and would live amicably, although she specified that she had not eaten anything. It is also stated by her that on 17.05.2002, the police again turned up and they made her sign a document which was not even read out to her. The complainant reiterated the same facts in her deposition. However, it is apparent that the complainant has failed to disclose all the facts .It is obvious that the police would not have randomly come to the house of the complainant. Thus, in view of the fact that the complainant failed to disclose the complete facts story, herState v. Shekhar Chand Pandey and Others testimony does not inspire the confidence of the court and she cannot be said to be a trustworthy witness.

26. It is also seen that the complainant admitted in her cross-examination that the police had met her on 17.05.2002, in regard to one complaint of the accused, with regard to the fact that the complainant had eaten something poisonous. Moreover, she has admitted to have studied up to B.A. 2 nd year and considering the qualification of the complainant, it is hard to believe that the complainant would have signed on documents without reading them. It is also incomprehensible as to why an independent state agency, which is the police would forcefully make her sign on statements. No complaint was made by the complainant regarding her statement being taken forcefully till the said complaint date 30.05.2002. There is no explanation as to why she did not make the complaint immediately and why there was a delay. In this regard, the statement made by PW3 Basanti Devi in her cross-examination is also relevant. She simply stated that she could recall whether her daughter Geeta had persistentily demanded that properties be transferred in her name and upon not being successful, she picked up a bottle of Sulphuric Acid and threatened the accused persons that she would falsely implicate the accused persons, if her demand was not fulfilled. She also stated that she could not recall whether the accused persons had filed a complaint in this regard. Hence, the fact that the accused persons made the complainant forcibly sign her on statements seems unbelievable and casts a doubt on the story of the prosecution.

Allegation of the complainant being thrown out from the house

27. The complainant had testified that she was thrown out from her matrimonial house, however, the same was not mentioned by her in her complaint Ex. PW2/C and is thus, an improvement. Furthermore, it is interesting to note the facts described by the complainant in her testimony, which ultimately led to her leaving the house, although they find no mention in her complainant and are State v. Shekhar Chand Pandey and Others merely improvements. She stated in her deposition that her parents had received an anonymous call regarding the fact that the complainant’s life was in danger and consequently, the father of the complainant called the father-in-law of the complainant, thereby informing him that his health was not good and they should send the complainant to the parental house. She further deposed that after hearing this, the accused Shekhar Chand Pandey allowed her to go back but with servants and thereafter, she had not returned to the matrimonial house, since her in-laws wanted her parents to write that she should be sent back, subject to the condition that they will write that she will be the responsibility of the accused persons. But as, they refused to write any such thing, she was not sent to the matrimonial house. It is pertinent to note that the complainant and her mother/PW3 Basanti Devi, failed to disclose the name of the person who made the anonymous call, despite being specifically asked. Another factor which makes the allegation doubtful is as to why would the servants have accompanied her to her parental house. In this regard, the testimony of mother of the complainant, PW3, Smt. Basanti Devi is also relevant who deposed that the accused persons along with servants had dropped the complainant to their house. In case, the accused persons had actually thrown her out of the side, why was she given the privilege of being accompanied with servants has not been explained by the prosecution.

Other factors which make the story of the prosecution doubtful Testimony of other material witnesses

28. PW 3 Smt. Basanti Devi and PW-5 Sh. Anand Sharma did not describe any specific incident in regard to the dowry demands made by the accused persons coupled with harassment or torture on account of non-fulfillment of dowry demand nor regarding any willful conduct of the accused persons of such a nature which was likely to drive the complainant to commit suicide or caused her State v. Shekhar Chand Pandey and Others grave injury or danger to life, limb or health. It is also seen that, PW3 Smt. Basanti Devi and PW5 Anand Sharma admitted in their cross-examination that they had attended the Namkaran ceremony of the first child and further, PW-3 Basanti Devi stated that she could not recall whether she had attended the Katha of Devi Mata as well as Katha of Lord Satyanarayan, also at the house of accused persons. Such a course of action is entirely incompatible with the theory, sought to be advanced by the prosecution, that there was discord between the complainant and the accused persons, and that she was repeatedly being ill treated by them. Significantly, there is nothing to indicate that the mother of the complainant or the brother ever hesitated in going to the house of the accused persons, which would have been the natural reaction, if the complainant had been subjected to repeated ill-treatment and dowry demands by the accused persons, from the beginning of the marriage. Furthermore, they are interested witness and it is settled position of law that courts must be cautious and careful while weighing the evidence of witnesses who are partisan or interested, since they have an axe to grind.

Other relatives and independent witnesses not made witnesses

29. No other relative or independent witness was examined to prove the cae of the prosecution. It is seen that the father of the complainant did not come to the witness box. It was stated by PW5 Anand Sharma that the father of the complainant had suffered a paralysis attack, although no medical document was brought to substantiate the same. It is also incomprehensible as to why he did not appear as a witness, in light of the testimony of the said witness, who deposed that his father was making normal conversation.

Improvements made by the complainant in her deposition

30. There were several improvements made by PW-2 in the Court which were confronted to her by showing her complaint Ex.PW2/C which also makes her an unreliable witness. The same were as follows:-

State v. Shekhar Chand Pandey and Others

a) The fact that all the accused persons and her sister-in-laws used to demand dowry from her everyday.

b) That at the time of her marriage, brother in law of accused Shekhar Chand Pandey had taken Rs.1,80,000/- from her father for the expenditure on food and tent and gave the same to accused Gopal Dutt Pandey

c) The fact that she was not taken to functions by the accused persons.

d) That all accused persons use to demand money from the father of the complainant and say that her parents had not given anything, as per their expectations.

e) The fact that all her jewellery articles were taken by her husband from her and one gold ring which was taken by her three sister-in-laws.

f) The specific allegation against her mother-in-law and sister-in-laws threatening her to solemnize the marriage of accused Shekhar Chand Pandey.

g) The complainant being forced to write by the accused persons that if she eats anything, she will be held responsible.

h) The telephone lines of her room and matrimonial house being disconnected.

i) The fact that police came to her matrimonial house on 17.05.2002 at 02.00 pm in civil dress and threatened her by saying that girls have to tolerate the wear and tear of the family and took her signatures forcibly on a paper.

j) The fact that the complainant was not given fruits at her matrimonial house and the same were given to the servants.

k) The fact that the accused Shekhar Chand Pandey used to spend more time with her parents instead of her.

l) The fact that her mother-in-law and sister-in-laws used to instigate for her ill- treatment.

m) The incident regarding anonymous phone call being made to the parents of the complainant and her father making a phone call to the father-in-law informing him that his health condition was not good and they should sent the complainant to their house, subsquent to which, the accused Shekhar Chand Pandey allowed her to go to her parental house but with servants.

n) The fact that she never went back to her matrimonial house, since her parents wanted that her in-laws give in writing that she will be sent back only when they will write that if she will be sent back to her matrimonial house, then it will be the responsibility of the accused persons, since, her in-laws refused to give anything in writing, she was not sent back to her matrimonial house.

o) The fact that she turned out of her matrimonial house only in two pair clothes and had not taken any dowry articles and istridhan with her.

State v. Shekhar Chand Pandey and Others

p) The fact that at the time of her marriage, brother-in-law of accused Shekhar Chand Pandey took Rs. 1,80,000/- from her father for the expenditure incurred on and did not give the same to her father-in-law.

q) The fact that when she was turned out from her matrimonial house on 17.05.2002, she was not physically fit as she was pregnant and her son wsa suffering from Asthama, that of her dowry articles remained in the possession of accused Shekhar Chand Pandey and his family members.

31. In view of the aforesaid discussion, it is apparent that the prosecution has failed to prove either the first or second limb of cruelty.

II. Charge under Section 406 I.P.C.

32. In order to establish the charge under Section 406 IPC against the accused persons, the prosecution was required to prove beyond reasonable doubt that the accused persons exercised dominion over the dowry articles gifted in the marriage and/or the stridhan of the complainant and misappropriated the same.

33. In Anu Gill v. State, 2001 (2) JCC (Delhi) 86, the Hon’ble High Court of Delhi observed in paragraphs 6 as under:

“To constitute the offence under Section 406 IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant; that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that the articles of istridhan were even entrusted to her.

34. Thus, to prove the charge under Section 406 IPC, the prosecution is required to prove the following:

i) that the complainant had entrusted her dowry articles and/or stridhan to the accused persons;

State v. Shekhar Chand Pandey and Others

ii) that the complainant had demanded her dowry articles and stridhan from the accused persons; and

iii) that the accused persons have refused to return the dowry articles and/or stridhan of the complainant.

35. Let us now examine whether the ingredients of Section 406 IPC are fulfilled in the present case or not:

i. Whether the complainant had entrusted her dowry articles and/or stridhan to the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Pandey?

36. It is alleged by the complainant in the complaint Ex.PW2/C that in her mar- riage, an amount of around Rs. 4.5 Lacs to Rs. 5 Lacs was spent on the marriage by her parents. She also stated that Rs.1,80,000/- was spent on the arrangements of the marriage function and Rs. 18,000/- was given as deposit amount for booking the venue for the marriage function. Further, she stated the following articles had been given, as listed below:

a. colour television of Sony b. 1 music system of Sony c. 1 washing machine of BPL d. 1 steel almirah e. Two bed sets f. 1 nose nath g. 2 gold kangan h. 1 gold jhumki I. 1 gold mangalsutra j. 1 gold maangtikka k. 2 gold rings for the groom l. 1 gold chain for groom State v. Shekhar Chand Pandey and Others m. One pair of silver anklets n. Garments worth Rs. 50,000/- to the entire family o. Utensils for the home p. An amount of Rs. 11/- to Rs. 11,000/- given to guests who had come for Milni i.e total amount of Rs. 25,000/-.

37. The complainant/PW-2 in her testimony stated that her parents had given her husband a gold ring, at the time of engagement and one at the time of marriage. She also testified that all the jewellery articles were given by her parents to her and her husband vide the list filed along with the complaint. She deposed that other arti- cles, such as coloured television, music system, both of Sony brand, bed and bed- ding along with household articles were also given, which have been mentioned in the said list. She further stated that at the time of marriage, her parents had given cash to her in laws, her mother had also given Rs. 34,000/- to her in-laws to pur- chase sofa and that the marriage was attended by 700 barastis and for milni cere- mony, from Rs. 11/- to Rs. 1100/- were given to each member who attended the marriage from the side of her in-laws. She relied on the list of dowry/stridhan items, which were allegedly given in her marriage by her parents as well as the side of the husband, which is Ex.PW2/A and a list which is Ex.PW2/B, which is allegedly the list of stridhan which was given to her by her parents, as well as the items given by her in-laws to her at the time of engagement. Lastly, she relied on a list of stridhan articles, including gold articles, which is Ex.PW2/G, allegedly given to her at the time of marriage.

38. Though, the prosecution had relied upon the list of dowry articles, which are Ex.PW2/A, Ex.PW2/B and Ex.PW2/G. However, perusal of the said lists shows that no date has mentioned on it. Without any mention of the date, it cannot be said for certain, as to when it was prepared i.e. whether it was at the time of marriage or subsequent to it. Even the complainant/PW2 Geeta Pandey admitted that she could not say when, where and by whom the said lists were prepared . The same is, therefore, not sufficient to prove that the articles mentioned therein had been given State v. Shekhar Chand Pandey and Others in dowry in the marriage or engagement of the complainant with the accused Shekhar Chand Pandey.Further, the prosecution has not filed, let alone proved, any photographs of the alleged dowry articles, which are claimed to have been given by the complainant’s parents but not returned by the accused persons, although there are photographs of recovered articles Mark A1 to A8 but those photographs do not prove that articles had been given in dowry to the accused persons. Furthermore, no bills or invoices of the dowry articles have been filed by the prosecution nor any shopkeeper or jeweler was cited as a witness to prove that articles had been pur- chased by the complainant or the family of the complainant. The complainant and her mother both stated in their testimonies that they could not recall whether any bills regarding purchase of dowry articles were given to the IO or not. No bank statements were filed to show purchase of the dowry items.

39. The complainant admitted that her father was a driver with the Railways and per Ex.PW2/D-1 i.e. documents such as, consent for issuing Medical ID Card, pen- sion payment advice, application for post retirement passes of the father of the complainant, his salary was Rs. 6375/- per month and as such the story of payment of dowry to the tune of Rs. 4.5 Lacs to Rs. 5 Lacs in the marriage of Geeta cannot be believed. Further, the complainant admitted that he was the sole earning mem- ber of their family consisting of her mother, two brothers and herself. The prosecu- tion also failed to bring on record the income tax returns of the year 1999-2001, which could have assisted in proving the story of the prosecution, as the date of marriage was 07.02.1999. It is also seen that she stated in her cross-examination that her parents had taken loan for marriage from relatives but failed to mention their names and no documents were brought on record to show such transactions.

40. In the examination in chief of PW5 Anand Sharm, certain CDs were put to him i.e. Mark CD1 and Mark CD 2 but he stated that he did not remember whether they were the CDs of marriage. The said CDs were objected to by the accused per- sons. In his cross-examination, he stated that he did not remember who had pre- pared the CDs or from where they were procured. The videographer who prepared the CDs was never cited as a witness. Even otherwise, the mere footage of articles State v. Shekhar Chand Pandey and Othersbeing given to the accused persons would not prove that dowry articles were being entrusted to them, as they could be gifts given out of love and affection, since, in the Indian society, the parental family of a woman gives a number of gifts/articles to the family members of the groom and to the groom, both at the time of wedding and after the wedding voluntarily. In view of the aforesaid, the prosecution has failed to prove as to what all dowry articles were given by the parents of the complainant in her marriage.

41. In her complaint, PW-2/ the complainant had not specified the person(s) to whom the alleged articles were given by her family members in her marriage. There is no specific allegation of entrustment of any dowry/stridhan article of the com- plainant to the accused persons in the entire complaint. She merely stated that her jewellery articles were taken away by them but did not mention specifically as to which accused had taken them. Only at the time of her deposition, she made an im- provement and stated that her entire stridhan and dowry articles were taken from her by her husband and given to her father-in-law and mother-in-law. The date, month or even year had not been mentioned by her, when the said incident took place. The vague allegations against the ‘in- laws’ are not sufficient to hold that any property of the complainant had been entrusted to the accused persons.

42. In Sukhbir Jain & Anr. v. State, 1993 JCC 91 / II (1992) DMC 259, the Hon’ble High Court of Delhi observed in paragraph 9 as under:

“Regarding offence under Section 406 IPC to spe- cific allegation has been made as to which item was entrusted to whom and when she demanded back those articles and from whom and he/she refused. To constitute an offence under Section 406 IPC it is essential that there must be a clear and specific al- legation that the accused was entrusted with some property or with dominion or power over it by the complainant and that the accused dishonestly mis-

appropriated the same or converted the same to his own use and that the accused refused to return back these articles when the same were demanded by the complainant. Mere general allegations made State v. Shekhar Chand Pandey and Others in the complaint concerning entrustment of articles of dowry to all the accused at the time of marriage or such like vague allegations would not be suffi-

cient to prima facie make out a cognizable offence under Section 406 IPC. The allegations made by the complainant show that there are no clear, dis-

tinct and specific allegations regarding entrustment to the petitioners, dishonest misappropriation by them or conversion to their own use and refusal by them to return back the articles. The most vital and essential ingredients of the offence under Section 406 IPC are missing and as such no prima facie case against the petitioners under Section 406 IPC is spelt out from the allegations made in the com-

plaint. The concerned Metropolitan Magistrate has rightly held it so but the learned Addl. Sessions Judge has misinterpreted the provisions Section 406 IPC and the allegations made in the com-

plainant while ordering that Sushil Jain petitioner be also proceeded with under Section 406IPC. No conviction can be made under Section 406 IPC on the basis of vague and general allegations made in the complaint”. (emphasis supplied)

43. It is also material to note that in the case of Neera Singh Vs. State (Govt. of NCT of Delhi) and others, 138 (2007), DLT 152, the Hon’ble Delhi High Court au- thoritatively laid down that as per provision of Section 2 of Dowry Prohibition Act, there is mandate of law for preparation of list of dowry articles at the time of mar- riage duly signed from bride side as well as from groom side. The said mandate has not been followed by the family of the complainant in the present case. In view of the aforesaid, it is seen that the aspect of entrustment, could not be proved by the prosecution.

ii) Whether the complainant had demanded her dowry articles and stridhan from the accused persons Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey?

44. In the complaint Ex. PW2/C, the complainant has nowhere stated that she had ever demanded her dowry articles or stridhan from the accused persons, Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey.

State v. Shekhar Chand Pandey and Others Only in her testimony, the complainant, PW-2 Smt. Geeta Pandey stated that she had demanded return of her jewellery articles from the accused persons. She was silent in regard to demand of the other stridhan items. Further, it is seen that she has only made a sweeping statement that all the articles are in possession of her husband and in laws. Thus, the complainant has not specifically stated at what time and place, she demanded the return of the dowry articles. Her evidence is totally general and vague without any specific detail. No date(s) on which demand(s), if any, was/were made by the complainant to the accused persons, Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey to return the dowry articles or stridhan have been mentioned in the testimony of the complainant PW-2, her mother, Smt. Basanti Devi/ PW-3 or her brother/ PW 5 Sh. Anand Sharma. Thus, the prosecution has failed to prove that the complainant had demanded her dowry articles and stridhan from the accused persons, Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey. The said ingredient of the offence punishable under Section 406 IPC has also, therefore, not been estab- lished.

iii) Whether the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey had refused to return the dowry articles and/or stridhan of the complainant?

45. While in the complaint Ex. PW2/C, the complainant has alleged that all the dowry articles given by her family members are in the possession of the accused persons but there is not even a whisper in the entire complaint regarding the fact whether the accused persons refused to return the alleged dowry articles/stridhan of the complainant. The complainant only in her testimony made a vague statement that the accused persons had refused to return her jewellery articles. Even, her tes- timony is silent on the aspect of refusal by the accused persons, in respect of the other dowry articles. She failed to mention, the date, time and place when they had refused. It is also pertinent to note that none of the prosecution witnesses deposed that there was refusal on part of the accused persons to return the said dowry/ stridhan articles of the complainant.

State v. Shekhar Chand Pandey and Others

46. In view of the above discussion, the prosecution has failed to prove the charge in respect of the offence punishable under Section 406 IPC against the ac- cused persons Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey.

47. It is a cardinal principle of criminal jurisprudence that prosecution is to prove the guilt of the accused beyond the possibility of any reasonable doubt. It is also a settled principle that thought there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, trustworthy and unimpeachable evidence before an accused can be convicted. This principle of law has been reiterated by the Hon’ble apex court in the following cases : Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W. Singh v. State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P, (2006) 10 SCC 172.

48. In the aforesaid circumstances, this Court is of the opinion that the prosecution has failed to prove its case against the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey. Accordingly, the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey are acquitted of the offences punishable under Section 498A/406 read with Section 34 I.P.C Conclusion

49. In light of the above discussion, in the considered opinion of this Court, the prosecution has failed to prove its case against the accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey beyond reasonable doubt. Accused Shekhar Chand Pandey, Gopal Dutt Pandey and Madhu @ Mohini Dutt Pandey are entitled to the benefit of doubt. They are hereby acquitted of the State v. Shekhar Chand Pandey and Othersoffences punishable under Section 498A406 read with Section 34 I.P.C.

50.    File be consigned to Record Room.                         Digitally signed
                                                     SONAM       by SONAM
                                                                 SINGH
                                                     SINGH       Date: 2018.04.24
                                                                 16:55:40 +0530
Announced in open Court on 23.04.2018
                                                        (SONAM SINGH)
                                           Metropolitan Magistrate (Mahila Court)-02,
                                           Central District, Tis Hazari Courts, Delhi.
                                                          23.04.2018




State v. Shekhar Chand Pandey and Others

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