Delhi District Court
Criminal Case/269/1999 on 23 January, 2016
IN THE COURT OF MM01, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
Presided by : Mr Jay Thareja, DJS
State v Captain Rajinder Tiwari & Ors
FIR No. 265/99
PS Sarojini Nagar
U/S. 417/406/493/494/496/498A/34 of the Indian Penal Code, 1860
and Section 4 of Dowry Prohibition Act, 1961
Unique ID No.02403R0027502003
JUDGMENT
A) Sl. no. of the case : 137/02/13
B) The date of commission of offence : 1996 (The exact dates of various
offences alleged to be committed
by the accused persons have not
been mentioned in the charge
sheet.)
C) The name of the complainant : Minakshi D/o Shrikant
D) The name and address of accused : (i). Capt. Rajinder Tiwari, S/o Sh.
O.P. Tiwari, R/o B5/158,
Safdarjung Enclave, New
Delhi110029
(ii). Veena Sharma, W/o Sh. S.K.
Sharma, R/o A10A, Green Park
Main, New Delhi.
(iii). Rani Sharma, W/o Shri O.P.
State v Captain Rajinder Tiwari & Ors
FIR no. 265/99
PS Sarojini Nagar
Page 1 of 9
Sharma, R/o B5/158, Safdarjung
Enclave, New Delhi110029
(iv). Shashank Tiwari, S/o Shri
O. P. Tiwari, R/o B5/158,
Safdarjung Enclave, New
Delhi110029
(v). O.P. Sharma (declared P.O.
vide Order dated 10.03.2004)
(vi) Sarla Tiwari (proceedings
abated vide Order dated
01.09.2003)
E) Offences complained of : 417/406/493/494/496/498A/506
(II)/34 of the Indian Penal Code,
1860 and Section 4 of Dowry
Prohibition Act, 1961
F) The plea of accused persons : Not Guilty
G) Final Order : All the accused are acquitted
qua the offences punishable
under Sections 417/506(II)/34 of
IPC. Also, the accused Rajinder
Tiwari is acquitted qua the
offences punishable under
Section 406 of IPC and Section
4 of DP Act.
H) The date of such Order : 23.01.2016
Date of Institution :17.10.2001
Date of Final Arguments : 18.01.2016
Date of Judgment :23.01.2016
State v Captain Rajinder Tiwari & Ors
FIR no. 265/99
PS Sarojini Nagar
Page 2 of 9
THE BRIEF REASONS FOR THE JUDGMENT:
1. The present criminal case has originated from a chargesheet filed by the State under Sections 417/406/493/494/496/498A/34 of the Indian Penal Code, 1860 (henceforth 'IPC') and Section 4 of Dowry Prohibition Act, 1961 (henceforth 'DP Act') against the accused Rajinder Tiwari, Shashank Tiwari, Sarla Tiwari, Veena Sharma, Rani Sharma and O.P. Sharma. In the chargesheet, different allegations have been made qua different accused persons. In respect of all the accused persons, it has been alleged by the State that in 1996, in furtherance of their common intention, they had cheated the complainant, Minkashi, by dishonestly inducing her to consent to marry the accused, Rajinder Tiwari, on the false premise that Rajinder Tiwari had been divorced by his first wife, Sandhaya Sharma, resulting in damage in body, mind, reputation and property of the complainant, Minakshi and thereby, committed the offence punishable under Section 417/34 of IPC. Further, in respect of all the accused persons, it has been alleged by the State that after marriage of the accused, Rajinder Tiwari, with the complainant, Minkashi, they had subjected the complainant, Minakshi, to cruelty and thereby committed the offence punishable under Section 498A/34 of IPC. In respect of the accused, Rajinder Tiwari, it has been, additionally, alleged by the State that by deceitfully inducing the complainant, Minkashi, to cohabit with him on the belief that his marriage with her was lawful, the accused, Rajinder Tiwari, had committed the offence punishable under Section 493 of IPC; that by marrying the complainant, Minakshi, during the subsistence of his marriage with Sandhaya Sharma, the accused, Rajinder Tiwari, had committed the offence punishable under Section 494 of IPC; that by dishonestly or fraudulently going through the marriage ceremonies with the complainant, Minakshi, knowing that he had not been thereby lawfully married to the complainant, Minkashi, the accused, Rajinder Tiwari, had committed the offence punishable under Section 496 of IPC; that after marriage with the complainant, Minakshi, the accused, Rajinder Tiwari, had committed criminal breach of trust in respect of the jewellery State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 3 of 9 of the complainant, Minakshi and thereby committed the offence punishable under Section 406 of IPC and that after marriage with the complainant, Minakshi, the accused, Rajinder Tiwari, had asked her to bring cash of Rs. 50,000/ from her parents and thereby committed the offence punishable under Section 4 of DP Act.
2. A perusal of the Court file reveals that the aforesaid charge sheet was filed in Court on 17.10.2001. On the basis of the charge sheet, the Ld. Predecessor Judge had taken cognizance of the offences punishable under Section 417/406/493/494/496/498A/34 of IPC and Section 4 of DP Act and summoned the accused persons. Upon service of summons, the accused persons had entered appearance in Court. After supply of documents to the accused persons in compliance of Section 207 of the Code of Criminal Procedure, 1973 (henceforth "CrPC"), the Ld. Predecessor Judge had framed the charges against the accused persons on 20.10.2006, whereby, the accused, Rajinder Tiwari, Veena Sharma, Rani Sharma and Shashank Tiwari, were charged with the commission of the offences punishable under Sections 417/506(II)/34 of IPC, the accused, Rajinder Tiwari, Veena Sharma and Rani Sharma, were charged with the commission of the offence punishable under Section 498A/34 of IPC and the accused, Rajinder Tiwari, was charged with the commission of the offences punishable under Sections 406/493/495/496 of IPC and Section 4 of the DP Act. No charges were framed against the accused, Sarla Tiwari, because the proceedings against her had abated vide Order dated 01.09.2003 and no charges were framed against the accused, O.P. Sharma. as he had been declared absconding vide Order dated 10.03.2004. All the charges were read over and explained to the accused persons. The accused persons had pleaded not guilty and claimed trial. The aforesaid charges framed by the Ld. Predecessor Judge against the accused persons were challenged by the accused persons in the High Court of Delhi. Vide judgment dated 14.12.2006, the High Court of Delhi had dropped the charges under Sections 493/495/496 and 498A of IPC against the State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 4 of 9 accused persons. Consequently, the trial was conducted only qua the remaining offences.
3. During the trial conducted before the Ld. Predecessor Judge, the witness, Shrikant, was dropped vide Order dated 08.07.2014 and the prosecution had examined five witnesses viz. PW1 Meenkashi Tiwari, PW3 SI Rajiv Vats, PW4 1 Chander Mohan Shashtri, PW5 ASI Ancy Philip and PW6 SI Naresh. Out of the said five witnesses, two witnesses viz. PW3 SI Rajiv Vats and PW5 ASI Ancy Philip were formal witnesses. PW3 SI Rajiv Vats simply deposed that he had not done any investigation in this case, while it was assigned to him. PW5 ASI Ancy Philip proved on record FIR no. 265/99, Ex.PW5/A and endorsement on rukka, Ex.PW5/B. Nothing material was elicited during the cross examination of the said witnesses.
4. PW1 Minakshi was the complainant. During examination in chief, PW1 Minakshi tendered in evidence the matrimonial advertisement, Ex.PW1/A, marriage certificate, Ex.PW1/B(OSR), 19 photographs, Ex.PW1/C(colly), list of articles, Ex.PW1/A(sic), DD No.34A dated 02.11.1998, PS Sarojini Nagar, Ex.PW1/B(sic), DD No.6B dated 03.11.1998, PS Sarojini Nagar, Ex.PW1/C(sic), Medical documents Ex.PW1/D(OSR), complaint Ex.PW1/E, record of divorce petition, Ex.PW1/X1, Bio Data of Kumkum Sharma, Ex.PW1/X2(OSR), letter dated 17.08.1996, Ex.PW1/X3, letter dated 15.06.1996 alongwith photograph, Ex.PW1/X4(Colly) and various other letters, Ex.PW1/X5 to Ex.PW1/X12. Further, PW1 Minakshi interalia deposed about her background, the manner in which she had come into contact with the accused persons, her alleged marriage with the accused, Rajinder Tiwari, on 25.10.1996 at Pahari wale Shiv Mahavirji Mandir, GKI, New Delhi, conducted by Chander Mohan Shahstri, Head Priest, the entrustment of her jewellery, cash and other articles mentioned in the list Ex.PW1/A with the accused, Rajinder Tiwari, and her inlaws, the conduct of the 1 No witness was examined as PW2.
State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 5 of 9 accused persons subsequent to her marriage including dowry demands made by them, the conduct of the accused, Rajinder Tiwari, regarding usurping her cash, mortgaging her property and the demand of Rs. 50,000/ made by the accused, Rajinder Tiwari, for maintenance of his exwife. The record shows that the examination in chief of PW1 Minakshi was conducted on eight hearings during 2008 to 2012. The examinationinchief was concluded on 05.01.2012. Thereafter, PW1 Minakshi was partly cross examined on 09.04.2013. However on the same day, FIR no. 123/13, U/s 406/201/411 of IPC was registered against PW1 Minakshi for removing papers from the judicial file. Thereafter, PW1 Minakshi had stopped appearing in the matter for giving evidence and she was ultimately dropped as a witness by the Ld. Predecessor Judge on 22.04.2014.
5. PW4 Chander Mohan Shastri, was the Head Priest who had solemnized the marriage between the complainant, Minkashi and the accused, Rajinder Tiwari. During examinationinchief, PW4 Chander Mohan Shastri tendered in evidence the marriage certificate, Ex.PW1/B and deposed that on 25.10.1996 he was the Head Priest at Mahavirji Mandir, Greater Kailash and had solemnized the marriage of the accused, Rajinder Tiwari, with the complainant, Minakshi, in presence of the members of the family of the bride and groom. During cross examination, PW4 Chander Mohan Shastri inter alia deposed that due to lapse of time he did not remember if the marriage was solemnized in his presence; that he had no association with the Shiv Mandir in the locality and that he could not identify the accused persons or the complainant present in the Court on 13.09.2011. During reexamination by the Ld. APP for the State, PW4 Chander Mohan Shastri deposed that Mahavirji Temple is also known as Pahariwala Mandir and there is a separate Shiv Mandir in Shri Mahavirji Temple.
6. PW6 SI Naresh was one of the IOs of the case. During examinationin chief, PW6 SI Naresh proved on record seizure memo, Ex.PW6/A and deposed about the manner in which he had conducted the investigation. Also, PW6 SI State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 6 of 9 Naresh identified the accused and the complainant in the photographs, Ex.PW1/C(Colly) and in Court on 16.11.2015. During cross examination, PW6 SI Naresh inter alia deposed that he had seized the photographs, Ex.PW1/C vide seizure memo, Ex.PW6/A, however in the seizure memo he had not disclosed the name of the person from whom he had seized the said photographs. Further, PW6 SI Naresh denied that he had not conducted a fair investigation.
7. The record of the Court file shows that after examining the aforesaid prosecution witnesses, the prosecution evidence was closed on 16.11.2015 and the case was adjourned for recording of statement of the accused persons under Section 313 read with Section 281 of CrPC. On 21.12.2015, when the case was called for the said purpose, it was found that in the absence of the complete testimony of PW1 Minkashi, there was no incriminating evidence worthy of being put to the accused persons. Consequently, the recording of the statement under Section 313 read with Section 281 of CrPC was dispensed with and the case was adjourned for final arguments.
8. I had heard Sh. Rajesh Sirohia, Ld. APP for the State and Sh. J.P. Sharma, Ld. Advocate for the accused persons on 13.01.2016 and 18.01.2016. In support of the case of the accused, the Ld. Advocate for the accused had submitted that all the accused persons should be acquitted because in the absence of the complete testimony of PW1 Minakshi, there is no evidence qua commission of offences punishable under Sections 417/506(II)/34 of IPC by all the accused persons and the commission of offences punishable under Section 406 of IPC and Section 4 of DP Act by the accused, Rajinder Tiwari.
9. After perusing the record of the Court file and hearing the Ld. APP for the State as well as the Ld. Advocate for the accused, I find that in order to prove the guilt of all the accused persons qua the offences punishable under Sections 417/506(II)/34 of IPC and to prove the guilt of the accused, Rajinder Tiwari, qua State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 7 of 9 the offences punishable under Section 406 of IPC and Section 4 of DP Act, the State/Prosecution was required to prove the following facts:
i) That in 1996, in furtherance of their common intention, all the accused persons had dishonestly represented before the complainant that the accused, Rajinder Tiwari, had divorced his wife Sandhaya Sharma and was legally competent to marry the complainant, Minakshi;
ii) That in 1996, the complainant had believed the aforesaid representation made by the accused persons and upon such belief, consented to marry the accused, Rajinder Tiwari;
iii) That the aforesaid deception by the accused persons had caused damage or harm to the complainant, Minakshi in body, mind, reputation or property;
iv) That at an unknown date, time and place all the accused persons had threatened to kill the complainant, Minakshi and her parents.
v) That after marriage with the complainant, Minakshi on 25.10.1996, the accused Rajinder Tiwari was entrusted with properties including jewelery of the complainant and in violation of any express or implied contract between the complainant and the accused Rajinder Tiwari, the accused, Rajinder Tiwari, had dishonestly misappropriated the properties including jewelery of the complainant;
vi) That after marriage with the complainant, Minakshi on 25.10.1996, the accused, Rajinder Tiwari, had asked State v Captain Rajinder Tiwari & Ors FIR no. 265/99 PS Sarojini Nagar Page 8 of 9 the complainant, Minakshi to bring cash of Rs.
50,000/ from her parents.
10. In order to prove all the aforesaid facts, the prime witnesses of the State were Shrikant (father of Minakshi) and PW1 Minakshi. As stated earlier in this judgment, the witness Shrikant was dropped by the Ld. Predecessor Judge vide Order dated 08.07.2014 and the testimony of PW1 Minakshi was not completed due to her non appearance and subsequent dropping from the list of witnesses on 22.04.2014. The incomplete testimony of PW1 Minakshi cannot be read against the accused persons. Thus, in the absence of the testimony of Shrikant and complete testimony of complainant, Minakshi, I find that the State/Prosecution has failed to prove all the facts identified in the aforesaid paragraph.
11. In view of the aforesaid finding, all the accused are acquitted qua the offences punishable under Sections 417/506(II)/34 of IPC. Also, the accused Rajinder Tiwari is acquitted qua the offences punishable under Section 406 of IPC and Section 4 of DP Act.
12. File be consigned to the record room. The file shall be revived as and when the accused O.P. Sharma is arrested and produced before this Court for facing trial.
Announced in open Court (Jay Thareja)
today on 23 January, 2016
th
MM01/South/Saket Court/Delhi
State v Captain Rajinder Tiwari & Ors
FIR no. 265/99
PS Sarojini Nagar
Page 9 of 9