Delhi District Court
State vs (1) Sameer Ali on 17 July, 2018
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44604/15
CNR No. DLNE01-000204-2012
STATE Versus (1) SAMEER ALI
S/o Rahat Ali
R/o A-46, Gali No. 4,
Shastri Park, Delhi-110053.
(2) RAHAT ALI
S/o Saddiq
R/o A-46, Gali No. 4,
Shastri Park, Delhi-110053.
(3) FARZANA
W/o Rahat Ali
R/o A-46, Gali No. 4,
Shastri Park, Delhi-110053.
FIR No. : 88/2012
PS. : Seelampur
U/s. : 498-A/304-B/34 IPC
Chargesheet Filed On : 06.06.2012
Date Of Allocation : 03.07.2012
Judgment Reserved On : 17.07.2018
Judgment Announced On : 17.07.2018
JUDGMENT:
1. In the intervening night of 09/10.03.2012, an information was received at PS Seelampur which was recorded vide DD No. 33-A. It was informed that one Naaz w/o Sameer was admitted at Hindu Rao Hospital at about 11.40 p.m. Naaz was declared brought dead. The DD was marked to SI Mukesh Kumar. He alongwith Ct. Mahender Singh reached the hospital and collected MLC of Naaz. Relatives of Naaz were not found at the hospital. SI Mukesh SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 1 of 42 alongwith Ct. Mahender Singh reached at the address mentioned in the MLC i.e. H. No. A-46, Gali No.4, Shastri Park, Delhi - 110053. It was found that Naaz was married about three years prior to her death. Therefore, concerned SDM was informed. The SDM reached the spot and recorded statement from one Saleem s/o Aash Mohd. who was brother of the deceased. The SDM handed over the statement to SI Mukesh Kumar for further action. SI Mukesh prepared rukka and got registered the FIR.
2. Saleem had alleged in his statement that Naaz was married to Sameer around three years ago. The middleman Suleman informed him that family of Saleem was not good family. The middleman told him that they would have to arrange non-veg food in the marriage and would have to spend huge money. Saleem alleged that they had given various articles in the marriage and spent around Rs. 7 lakhs. He alleged that after 1 - 2 months of marriage, Naaz complained to him that her in-laws were torturing her for not bringing sufficient dowry. Naaz told him that she was beaten also by the in-laws. He stated that Naaz lived separately with Sameer on suggestion of Mahila Aayog but she had joined back the matrimonial house 4 - 5 months prior to her death. However, the in-laws again started torturing her. He alleged that on 10.03.2012 at about 12:45 am after midnight, he received call from cousin of Sameer and he informed him that condition of Naaz was very bad and she was taken to hospital. They also reached Hindu Rao Hospital where they found that Naaz was having mark of knot on her neck and she was brought dead. He alleged that Sameer, his parents and his two sisters were responsible for death of Naaz.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 2 of 42
3. FIR was registered u/s 498-A/304-B/34 IPC. Postmortem was got conducted. Body was handed over to relatives after postmortem. IO collected exhibits from hospital. He also collected mobile phone of the deceased found at the scene of crime. He arrested accused Sameer Ali. Sameer allegedly confessed to the crime. Copy of Nikahnama and list of dowry articles were also collected. Parents of Sameer i.e. Rahat Ali and Farzana were also arrested. Copies of proceedings conducted at CAW Cell, Kirti Nagar were also obtained. It was also found that father of the deceased had arranged Rs. 2 lakhs through loan from one Jagjit Singh by mortgaging his property. Money was ultimately paid to the accused persons. Exhibits were sent to FSL. After completion of investigation, chargesheet was filed u/s 498-A/304-B/34 IPC against Sameer Ali and his parents Rahat Ali and Farzana. No material was found against his sisters.
4. After compliance of section 207 CrPC, learned MM committed the case to Sessions Court as offence u/s 304-B IPC was exclusively triable by it.
5. Vide order dated 18.08.2012, my learned Predecessor framed charges for offences u/s 304-B/34 IPC, in the alternative u/s 302/34 IPC and also u/s 498-A/34 IPC against the accused persons. Accused persons pleaded not guilty and claimed trial.
6. In order to prove the charges, the prosecution examined around 26 witnesses.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 3 of 42
7. Statements of accused persons u/s 313 CrPC were recorded. Accused persons examined 05 witnesses in defence.
8. Evidence led by the parties may now be noted.
MATERIAL WITNESSES
9. PW-1 is Saleem. He is brother of deceased Naaz. He deposed that Naaz was married with accused Sameer on 02.04.2009. He deposed that 15 days prior to marriage, one Suleman had come to him and told that family of accused Sameer was not good and they would have to spend lot of money in the marriage. PW-1 stated that they spent around more than Rs. 7 lacs in the marriage. Various articles including one motorcycle, double bed, washing machine, refrigerator, etc. were given to the accused persons. He further deposed that after about 1-2 months of the marriage, the in-laws of Naaz started harassing her for bringing less dowry. He stated that after about 1 ½ year of marriage, accused Sameer left Naaz at the parents house and refused to take her back. PW-1 alleged that during this period, accused Sameer used to demand cash amount of Rupees One lac and Rupees Two lacs on several occasions. Accused Sameer also demanded big car for himself as well as golden chain. PW- 1 also deposed that eight days prior to her death, his sister Naaz told him on phone to take her back from matrimonial house as she was fed up with the harassment caused to her by the accused persons. PW-1 said that he advised her to bear the same for some time.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 4 of 42
10. PW-1 went on to depose that on 10.03.2012 at about 11:15 pm, he received telephone call from Sameer (wrongly typed as Saleem) but Sameer disconnected the phone immediately. At about 12:45 am, he received telephone call from cousin of Sameer who told him that Naaz was serious and admitted at Bara Hindu Rao Hospital. Thereafter, PW-1 alongwith his brother and other relatives reached the hospital where the doctors told them that she was brought dead to the hospital. They also found signs of knot (fanda) on her neck. PW-1 further deposed that local SDM also came there and recorded his statement which is Ex.PW1/A. The SDM also recorded statements of his father, mother and brother. He also deposed about receiving dead body of Naaz after postmortem. He identified all the accused persons.
11. In cross-examination, it has come that it is usual practice to serve non-veg food in their marriages. It has come that Naaz had made a complaint to CAW Cell, Kirti Nagar, after 1 ½ years of marriage and the said complaint was compromised and Naaz started living with Sameer Ali separately from parents-in- law. It has come that he had not visited matrimonial house of Naaz after she had compromised the dispute at CAW Cell. He could not tell mobile number of Naaz from which he had received call eight days prior to her death. It has come that they had not informed Naaz about death of her Nani and due to this, she could not attend her last rites. It has come that after living separately for 4 - 5 months, Naaz and Sameer shifted to the matrimonial house. He stated that he had seen injury marks on hand, stomach and neck of Naaz. He denied all the suggestions of the defence.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 5 of 42
12. PW-3 is Alam Khan. He is another brother of deceased Naaz. He also deposed about the events after marriage of Naaz. Deposing on the same lines as PW-1 regarding harassment for bringing less dowry and demand of further dowry, PW-3 stated that his father, on 26.05.2010, had given Rs. 2 lacs to accused Sameer and Rahat Ali on their demand, after mortgaging one room of their house. The room was mortgaged to one Jagjit Singh. PW-3 deposed that even after receiving this money, the behaviour of the accused persons did not improve and they continued to beat Naaz. He deposed that Huma and Heena, sisters of accused Sameer, also used to give beatings and harass Naaz for insufficient dowry. All the accused also used to taunt Naaz that had they married Sameer in some other family, they would have got large amount of dowry and car. PW-3 also deposed that Naaz told him that the accused persons used to snatch articles given to her by them (family of Naaz) and hand over the same to elder sister of Sameer namely Samreen. PW-3 also stated that Naaz told him that accused used to give her beatings on trivial issues. Sometimes when she was sweeping the floor, the accused used to step on her feet.
13. PW-3 further deposed that on 09.03.2012, Naaz called him on phone several times and told him that at the time of cooking rice, she had left the lid opened on which accused Farjana gave her beatings. Naaz also told that accused Rahat also used to beat her. PW-3 stated that he told Naaz that they would come to her matrimonial house on 10.03.2012. Naaz also told PW-3 that Sameer was demanding money for running his business. Thereafter PW-3 deposed about receipt of call by his brother Saleem (PW-1) in the intervening SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 6 of 42 night of 09-10.03.2012 and also about Naaz being admitted in dead condition in the hospital. He deposed that from the hospital, they went to the house of accused persons but it was found bolted from outside. Accused persons did not open the door despite their shouting. He stated that accused Sameer and Rahat came in the balcony and said that they have lot of money and nothing could be done against them. As such, they (complainant side) made call at 100 number at about 2:00 am. He deposed that PCR came there. PCR apprehended Sameer only at 4:00 am. They went to police station. SDM met them in the police station and recorded statements. Statement of PW-3 recorded by the SDM is Ex.PW3/A.
14. PW-3 was further examined on 10.05.2013 and he deposed again about the happenings of the same period about which he had earlier deposed. In addition to those facts, he deposed that on 09.03.2012, Naaz had telephoned their elder sister Afsari at about 3:30 pm and told her that her in-laws were beating her. Afsari informed him (PW-3) at about 4:00 pm. Afsari advised him to bring back Naaz and to meet one Sher Mohd. PW-3 deposed that he met Sher Mohd. and asked him to counsel the accused persons not to beat Naaz. Sher Mohd. assured to help. He deposed that when he was coming back, Sameer called him and abused him over phone. He deposed about complaints made to Women Cell and DCP Nanakpura which is Ex.PW3/B. Proceeding sheets of CAW Cell are Ex.PW3/C. He referred to a complaint dated 30.01.2011 made by Naaz to PS Hari Nagar which is Ex.PW3/G. He stated that on 22.02.2011, there was settlement between Naaz and Sameer. After settlement, Sameer took Naaz SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 7 of 42 to a rented accommodation. He stated that for some time Sameer kept Naaz well and as such, proceedings before CAW Cell were closed on 10.03.2011.
15. PW-3 deposed that after disposal of the complaint before CAW Cell, accused Sameer again started demanding dowry from Naaz. Because of the demands, PW-3 says his father gave money to accused on many occasions and when his father stopped paying money, Sameer again took Naaz to matrimonial house.
16. In cross-examination, he admitted that date of marriage of Sameer with Naaz was 02.04.2009 and not 02.03.2009. He denied that nothing was given to accused persons as dowry in the marriage. PW-3 does not remember when Naaz came to the parents house after marriage for the first time. He does not remember when Naaz told him about harassment and cruelty caused to her by her in-laws.
17. Regarding arranging loan through mortgage, PW-3 denied that his father had sold the property to Jagjit Singh rather than mortgaging it. He denied that the said sale was for the purpose of personal business requirement and not for arranging money to be given to the accused persons. He denied that he never received any call from Naaz on 09.03.2012. It has come that all the accused were present in their house when they (PW-3 and his family members) reached their house and that no accused had tried to flee. He says that SDM recorded his statement at the hospital. It has come that Naaz had withdrawn her complaint at CAW Cell after settlement. It has come that Naaz did not make any SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 8 of 42 complaint from 10.03.2011 to 09.03.2012 to the police against her husband or any of the in-laws. It has come that PW-3 or his family members have not enquired about well being of daughter of Naaz who is residing with the accused persons even after death of Naaz. One letter was admitted to be in handwriting of Naaz by PW-3 and the same is Ex.PW3/X1. It has come that Nani of Naaz had died. PW-3 denied the suggestion that Naaz committed suicide because they (parental family members) did not inform Naaz about death of Nani to whom she was emotionally attached.
18. PW-5 is Aas Mohd. (wrongly typed as PW-4). He is father of deceased Naaz as well as PW-1 and PW-3. He deposed on the common lines as PW-1 and PW-3. He deposed that on 08.03.2010, Naaz gave birth to a girl child in Hindu Rao Hospital and it was a cesarean birth and when doctor demanded blood for Naaz, Rahat Ali and Sameer refused to give blood and thereafter, his son Alam Khan gave blood. After the delivery, the aforesaid accused persons started harassing Naaz on account of giving birth to a girl child and they used to say to her that they want a boy and not a girl. Thereafter, the accused persons started raising their demand.
19. He deposed that on 26.05.2010, he mortgaged one room of his house with Jagjit Singh S/o Charan Jeet Singh R/o 1/26, Subhash Nagar, Delhi for Rs.2,00,000/- because in-laws of Naaz used to torture and harass her for not bringing sufficient dowry. Thereafter, he gave the said Rs.2,00,000/- to Sameer and Rahat Ali. The documents regarding the mortgage were handed over to SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 9 of 42 police by Jagjit Singh. The photostat copy of the the mortgage agreement is Ex.PW4/A, and photostat copy of receipt is Ex.PW4/B.
20. He deposed that he gave Rs.2 lacs to Rahat Ali and Sameer on the same day, when he executed the agreement and received amount from Sh. Jagjit Singh. After about 10-15 days, Naaz was given beatings by her in-laws and accused Sameer, Huma and Hina and Farzana had left Naaz near to his house and went away. Thereafter, on the next day, the accused Sameer told him to keep Naaz at his house. Naaz thereafter, made a complaint at Women Commission. Accused Sameer, thereafter, compromised with Naaz. After that, Naaz and her daughter started residing with Sameer at separate accommodation at Shastri Park.
21. He deposed that prior to about 4-5 month of death of Naaz, Sameer and Naaz came back to their matrimonial house at Shastri Park to reside there. After Naaz started residing at her matrimonial house, her parents-in-law, Huma, Hina and Sameer again started harassing and torturing her and they also used to give beatings to her. Thereafter, Sameer started demanding money amounting to Rs.10 lacs and he also raised demand of Honda City Car. He, thereafter, gave Rs.2000/-, Rs.3000/- and Rs.6000/- on different occasions, to Sameer.
22. He deposed that on 09.03.2012, Naaz made call to his son Alam Khan and told him that accused were giving beatings to her and she requested him to take her to her parental house. Alam Khan told her that he would come on the next day.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 10 of 42
23. He deposed that on 10.03.2012, at about 1.00 a.m. (night) friend of Sameer made call to his son Salim and told that condition of Naaz was bad and she was admitted in the hospital. He could not tell the name of the said friend of Sameer. Salim thereafter, called his maternal uncle Ikramuddin, as he was in his house, at that time and informed that Ruksana @ Naaz had expired and she had been killed by her in-laws. He stated that he was not in his house, at that time, as he was at the house of Ikramuddin. He reached Delhi at 4.00 a.m. and reached at the PS Seelampur. At the police station, he came to know that his daughter Raksana @ Naaz had been killed by her in-laws and, thereafter, sent to Hindu Rao Hospital. Thereafter, his sons and daughter went to the matrimonial house of Raksana @ Naaz, where all the accused were present. His children told him that the accused persons told them that Raksana @ Naaz had been killed by them and sent to Hindu Rao Hospital.
24. He stated that at the police station, the police officials made inquiries from him and took him to the office of the SDM, Seelampur. SDM, Seelampur recorded his statement, which is Ex.PW4/C.
25. Evidence of PW-5 remained incomplete as he had expired. As such, evidence of PW-5 cannot be considered.
26. PW-6 is Shahnawaz. He is another brother of Naaz. He deposed on the same lines as other brothers. He deposed about identifying dead body of Naaz vide statement Ex.PW6/A. He deposed about receiving dead body after postmortem vide Ex.PW6/B. His cross-examination is also on similar lines. SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 11 of 42
27. PW-7 is Smt. Zamila. She is mother of the deceased. She deposed on the same lines as other family members. She deposed that after about 10 - 15 days of marriage, Naaz came to her house and told that accused persons used to beat her with belts and demanded dowry. She deposed that Naaz told her that accused persons were demanding Honda City Car and cash of Rs. 10 lakhs. She deposed that accused persons used to say to Naaz that if they had married Sameer in some other family, they would have got Honda City Car and cash of Rs. 10 lakhs. She deposed that Naaz told her that accused Rahat Ali used to threaten her on various occasions and asked her to bring the cash of Rs. 10 lakhs and Honda City Car and in case she failed to satisfy their demands, he would get Sameer Ali married in some other family, after getting divorce from her. PW-7 deposed that Naaz also told her that accused Farzana was demanding a Golden set and accused Sameer Ali was demanding a Golden Chain from her. She stated that Naaz was given beatings on various occasions for demands of dowry, by the accused persons and Naaz used to tell her and family members about beatings. She deposed that they used to pacify her and asked her to bear the treatment for some time as with the passage of time, everything would settle down.
28. She deposed that on 26.05.2010, they let out their house at Tihar Village on lease and took a loan on it and paid a cash amount of Rs. 2 lakhs to Rahat Ali and Sameer Ali, to meet their demands. Thereafter, they treated Naaz better, for some time, but, thereafter, they again started treating her with cruelty. SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 12 of 42
29. She deposed that after about 1 ½ year of her marriage, Naaz gave birth a daughter at Hindu Rao Hospital and thereafter, the accused persons again treated her with cruelty and said that they were expecting a boy child from her. On objecting the taunts of the accused persons, Naaz was again given beatings by the accused persons. Thereafter, the accused persons snatched all the jewellery articles from Naaz and the accused persons left her at their residence. The accused persons had demanded a cash amount of Rs. 10 lakhs, Honda City Car, a gold chain for accused Sameer Ali even at that time. They had also threatened Naaz that in case, she failed to fulfill their demands, she alongwith her daughter would be killed by them. Thereafter, Naaz remained at their house for about 5 - 6 months. During their period, none of the accused visited their house to take her back. Accused Rahat Ali and Sameer Ali used to extend threats to them on phone, on various occasions that Naaz would be taken back by them only after fulfillment of their demands, otherwise, Naaz and her daughter would be killed by them. Thereafter, Naaz lodged written complaint at PS Hari Nagar, when, she was receiving repeated threatening calls from the accused persons. Naaz also lodged a report at Crime Against Women Cell and in the said proceedings, the matter was got compromised, with the help of the police officials and the accused Sameer Ali agreed to reside separately from his family members, with Naaz, in a tenanted accommodation. Accused Sameer Ali also got her complaint settled at Crime Against Women Cell. Thereafter, he again started giving beatings to Naaz and started demanding money from her. She deposed that thereafter, she paid cash amount of Rs. 5,000/- on one occasion SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 13 of 42 and cash amount of Rs. 7,000/- on another occasions. After about 2 - 3 months, he again shifted to his parental house. Thereafter, all the accused persons again started giving beatings to Naaz on the demands of bringing dowry. When, Naaz used to clean the floor, accused Farzana used to give her beatings on her hands with her feet. Naaz also used to tell her that accused Heena and Huma also used to taunt her and they also used to incite accused Farzana to commit cruelties on Naaz.
30. She deposed that about 10 - 15 days prior to death of Naaz, accused Sameer Ali had visited their house with Naaz and their daughter. Even at that time, accused Sameer Ali quarreled with them and started hurling abuses on them and Naaz. Naaz refused to go back to her matrimonial house with accused Sameer Ali. She deposed that Naaz also told her that accused Rahat Ali, Farzana and Sameer would kill her, for their demands of dowry. Accused Sameer Ali forcibly took Naaz back to her matrimonial house.
31. PW-7 deposed that on 09.03.2012, her son Alam Khan received a phone call from Naaz and she told him to take her from her matrimonial house to her parental house. She deposed that Naaz also told him that accused Farzana, Rahat Ali and Sameer Ali would kill her for their demands of dowry. She deposed that at that time, her son Alam Khan told her that he would visit her house on the next date as they were not present at their house at that time and they had gone to their native village. In the night of the same day, all the accused persons committed murder of Naaz. In the night, her son Saleem received a SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 14 of 42 phone from the cousin brother of Sameer, who told him that Naaz was admitted at Hindu Rao Hospital in a serious condition. Thereafter, her son Alam Khan, Saleem and daughter Afsari went to the Hindu Rao Hospital, where, they came to know that all the accused persons had run away after committing the murder of Naaz. She deposed that they were also informed by her son at their native village and they came to Delhi in the morning at about 4:00 am. Thereafter, they also went to Hindu Rao Hospital, where, they were informed about the death of Naaz. Thereafter, postmortem of dead body of Naaz was conducted at Hindu Rao Hospital and thereafter, her dead body was handed over to them.
32. She deposed that her statement was recorded at the hospital by the SDM which is Ex. PW7/A. PW-7 identified all the three accused persons.
33. She voluntarily stated that when accused Sameer Ali used to visit their house, he used to ask Naaz to get several dishes prepared for his meal, from PW-7.
34. In cross-examination, she denied that huge money was not spent in the marriage of Naaz or that various articles such as motorcycle, TV, fridge, etc. were not given in the marriage. It has come that she had not told other family members about various facts which were told to her by Naaz when she came to parental house after 15 days of the marriage. PW-7 rather clarified that she told these facts for the first time to the SDM. It has come that she did not make any complaint to Sameer about the facts told by Naaz to her. She denied that the house at Tihar Village was sold and not leased out. It has come that daughter SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 15 of 42 born to Sameer and Naaz was still residing in Sameer's house. She denied all suggestions regarding torture and cruelties. She denied that Naaz was attached too much with her Nani. She admitted that they had not informed Naaz about death of Nani. She denied that Naaz committed suicide because they had not informed her about death of Nani. She denied that she had stated to the SDM that Naaz wanted to meet her Nani but accused persons were not allowing her to visit house of Nani. However, PW-7 was confronted with her previous statement Ex.PW7/A wherein this fact was mentioned. PW-7 clarified that she had never made this part of statement to the SDM. She denied that they had not informed Naaz about death of her Nani because they were not having any relationship with Naaz.
35. PW-19 is Afsari. She is sister of the deceased. Her evidence is also on the same lines as other family members. She deposed that on 09.03.2012 at about 3:30 pm, Naaz had made call to her from mobile no. 8586826444 to her number 9350297209 and told that the in-laws were torturing her and beating her. PW-19 told Naaz and she would discuss the matter with brother Alam Khan and would bring her back from matrimonial house.
36. She was cross-examined as other family members. She denied all the suggestions. Regarding death of Nani, PW-19 also stated that she had not told Naaz about the said death. She, however, told that someone from the family might have told Naaz about this. She denied that Naaz committed suicide due to shock caused to her when she discovered about death of her Nani and the fact SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 16 of 42 that family members did not tell her about it.
37. PW-20 is Ikramuddin. He is maternal uncle (mama) of deceased Naaz. He too deposed about torture and cruelties faced by Naaz at the hands of accused persons.
38. He was also cross-examined on similar lines as other family members.
39. PW-21 is Sher Mohammad. He is distant relative of accused persons. He did not support prosecution case. He was cross-examined by learned Prosecutor but still he did not support its case.
40. PW-9 is Jagjit Singh. He deposed that he met Aas Mohd. only one month prior to lending money to him on 26.05.2010. He deposed that he had given money to Aas Mohd. on loan at the instance of one dealer Gurvinder Singh. He deposed that he lent a loan of Rs. 2 lakhs to Aas Mohd. as the said Aas Mohd. had given him a room for keeping his goods in it. A document was executed regarding this loan transaction.
41. He deposed that he came to know from Aas Mohd. and his family that the deceased was killed by her in-laws and a case has been registered. He deposed that original of the document executed regarding the loan had been returned back to Aas Mohd. as he had already repaid the loan amount to him. He identified Ex.PW4/A and Ex.PW4/B. He deposed about seizure of loan documents vide seizure memo Ex.PW9/A. SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 17 of 42
42. This witness was cross-examined by learned Prosecutor as he was resiling from his previous statement. In the said cross-examination, he denied the suggestion that Aas Mohd. had told him the fact of harassment of his daughter by her in-laws, on the date when he took the loan from him and executed the documents. He denied the suggestion that he had supplied the copies of the documents to the police officials vide seizure memo Ex. PW9/A.
43. In cross-examination on behalf of accused persons, he denied that he had purchased one room from Aas Mohd. for consideration of Rs.3.5 lakhs. He denied that Ex.PW4/A and Ex.PW4/B were not loan documents. He denied that he had given loan to Aas Mohd. on 04.05.2012. He was confronted with his previous statement in this regard. He denied that he had never given any loan to Aas Mohd.
44. PW-13 is Arjun Singh. He deposed that in March/April 2011, accused Sameer Ali alongwith his wife Naaz was residing on the ground floor of his house as a tenant for a rent of Rs. 2500/- per month. He deposed that in October 2011, they had left his house and started residing with their parents at House No. A-46, Gali No. 4, Shastri Park, Delhi due to some family problems. He deposed that he did not know about the relation between Sameer Ali and Naaz nor he knew about any quarrel between them.
45. This witness was cross-examined by learned Prosecutor as he was not supporting prosecution case.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 18 of 42
46. In the said cross-examination, he denied the suggestion that during their stay in his house, Sameer and Naaz used to quarrel on one or other thing. He denied the suggestion that during the said period, parents of Sameer Ali visited them and they had also quarreled with Naaz. He was confronted with his previous statement Ex.PW13/A in this regard.
47. There is no cross-examination on behalf of accused persons. INVESTIGATION WITNESSES
48. PW-2 is SI U. Balashankaran. He was incharge Crime Team. He deposed about visiting the spot at about 2.45 am of 10.03.2012 alongwith photographer Ct. Inder and other team members reached at the spot i.e. A-46, Gali No. 4, Shastri Park. He inspected the site and prepared report which is Ex.PW2/A.
49. PW-10 is Ct. Mahender. He had accompanied SI Mukesh and reached Hindu Rao Hospital on 09.03.2012. He deposed that dead body of deceased Naaz was got preserved. No family member of deceased was present in the hospital. Thereafter, they had gone to A-46, Gali No. 4, Shastri Park. SI Mukesh Kumar also informed the SDM who came to the spot and recorded statement of Saleem, brother of deceased. He deposed that after returning from hospital, SI Mukesh Kumar produced sealed parcel and sealed viscera petti to the IO Inspector M.P. Singh who seized the same.
50. In cross-examination, he stated that accused persons were present SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 19 of 42 at the ground floor and the first floor of their house. He stated that SDM had reached at the spot in his presence at about 1.00 a.m.
51. PW-11 is Ct. Shyam Lal. He deposed that on 10.03.2012, after receiving the information, he alongwith SI E.S. Yadav and other staff reached at Mortuary, Bara Hindu Rao Hospital. There, SI Mukesh Kumar met them. He deposed that at the direction of SI Mukesh, he had taken 9 photographs of the dead body of deceased Naaz W/o Sameer Ali and handed it over to the IO. Photographs are Ex.PW11/A-1 to Ex.PW11/A-9 and negatives are Ex.PW11/B-1 to Ex.PW11/B-9.
52. PW-14 is SI Sarita. She deposed that on 07.04.2012, complainant Aas Mohd. came to the police station and he handed over photocopy of marriage certificate (Nikahnama) Ex.PW-8/A and list of dowry articles / stridhan given in the marriage, to the IO Inspector M.P. Singh. Inspector M.P. Singh had taken the above said documents into possession vide seizure memos Ex.PW-14/A & Ex.PW14/B.
53. PW-15 is SI Brijveer Singh. He deposed that on 10.03.2012, he accompanied SI Mukesh at the spot at Shastri Park, Delhi. SDM Seelampur had also reached there and recorded the statements of PWs namely Salim and Aas Mohd. He deposed that he does not remember the name of other witnesses. After recording the statements of PWs by the SDM, those statements were handed over by him to SI Mukesh. Thereafter, SI Mukesh prepared rukka and handed over the same to him which he had taken to PS Seelampur and present SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 20 of 42 case was got registered by him through Duty Officer. After registration of the case, Duty Officer handed over the original rukka and copy of FIR to him for handing over the same to Inspector M.P. Singh as further investigation was assigned to him. Thereafter, he handed over rukka and copy of FIR to Inspector M.P. Singh in the police station itself. After handing over the above said documents to Inspector M.P. Singh, he remained in the PS and Inspector M.P. Singh left for the spot.
54. PW-18 is Sh. Radha Charan. He deposed that on 10.03.2012, he was posted as SDM, Seelampur. On that day, he had received a telephonic call from PS Seelampur in early morning about the death of a lady. He had gone to the spot i.e. A-46, Gali No. 4, Shastri Park, Delhi at 2 nd floor. He made the inquiry from the local people and came to know that lady was taken to Hindu Rao Hospital, Delhi and she had died. He had gone to his office. Father and brother came to his office. He recorded their statements Ex.PW4/C and Ex.PW1/A. He forwarded the statements to SHO PS Seelampur for necessary action. Later on, he had gone to mortuary Hindu Rao Hospital and prepared inquest papers Ex.PW18/A (Colly). Postmortem on the dead body of deceased Naaz @ Rukhsana was got conducted. Dead body was identified by her relatives. Later on, at about 3:00 pm, he had recorded statement of Alam Khan, brother of deceased and Smt. Jamila, mother of deceased which are already Ex.PW3/A and Ex. PW7/A.
55. PW-24 is SI (Retd.) Rajender Singh. He deposed that on SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 21 of 42 22.11.2010, he was posted as Sub-Inspector at CAW Cell, West District, Kirti Nagar, Delhi. On that day, complaint No. 833/10 dated 22.11.2010 made by Smt. Naaz was assigned to him for enquiry. He conducted the enquiry and submitted final report dated 29.03.2011. In the said complaint, complainant made allegations against her husband, in-laws and sister-in-laws that they used to subject her to physical harassment in connection with dowry demand. Smt. Naaz and her husband compromised the matter and, therefore, the said complaint was filed. It was agreed between them that the complainant and her husband Sameer Ali would stay in a rented accommodation. Original complaint is Ex.PW3/B. Final report comprising 29 pages excluding index is Ex.PW24/A. Proceedings are Ex.PW3/C. The proceedings were closed on 10.03.2011 and the same is Ex.PW24/B. Complaint dated 30.01.2011 made by the complainant Smt. Naaz is Ex.PW3/G.
56. In cross-examination, it has come that Naaz had not made any complaint against Sameer or her in-law from 22.02.2011 to 10.03.2011. Similarly, no complaint was received after settlement and withdrawal of complaint at CAW Cell by the deceased.
57. PW-25 is Insp. M.P. Singh. He deposed that on 10.03.2012 at about 03.00 p.m., PSI Brajveer produced copy of FIR of this case and rukka to him as investigation was assigned to him after registration of FIR. Thereafter, he alongwith PSI Brajveer had reached at H. No. A-46, Gali No. 4, Shashtri Park, Delhi. Ct. Mahender was present there. In the meantime, SI Mukesh Kumar also SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 22 of 42 reached there. Accused Sameer Ali was also present there. SI Mukesh Kumar had produced sealed parcel brought by him from mortuary which were taken into police possession through seizure memo Ex.PW16/B. He inspected the site at the instance of SI Mukesh Kumar and prepared site plan Ex.PW25/A. One mobile phone was found in the bedroom of the deceased at second floor which was taken into police possession after keeping in a pulanda which was sealed with the seal of 'MPS' through seizure memo Ex.PW16/C. It was owned by the accused Sameer Ali that the said mobile phone belongs to Smt. Naaz @ Ruksana. Seal after use handed over to SI Mukesh Kumar.
58. He deposed that he interrogated accused Sameer Ali and arrested him vide arrest memo Ex.PW16/D and his personal search was conducted vide memo Ex.PW16/E. He recorded disclosure statement of accused Sameer Ali which is Ex.PW16/F. Thereafter, accused Sameer Ali was taken to police station. He deposited exhibits in the malkhana. Accused Sameer Ali was got medically examined. He deposed that on the next day, the accused Sameer Ali was produced before the Court and from there, he was sent to judicial custody. Family members of the deceased Smt. Naaz had arrived at police station. He made enquiries from them and recorded their statements. He made search for other accused persons namely Rahat Ali and Farzana but they were not found there.
59. He deposed that on 07.04.2012, father of the deceased had produced copy of nikahnama Ex.PW8/A of the deceased Smt. Naaz which was SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 23 of 42 taken into police possession through seizure memo Ex.PW14/A. He had also produced list of the stridhan articles Ex.PW25/B which was taken into police possession vide memo Ex.PW14/B.
60. He deposed that on 19.04.2012, he alongwith Ct. Narender and W/Ct. Geeta were present at pusta. He received an information that accused Rahat Ali and his wife Farzana were going to their house after passing from there. He asked some public persons to join the investigation but no one had agreed. Thereafter, they had reached near Shashtri Park Crossing, GT Road and there accused persons Rahat Ali and Farzana were apprehended at the instance of secret informer. They were interrogated and arrested in this case through arrest memo Ex.PW23/A and Ex.PW22/A and their personal search was conducted vide memo Ex.PW23/B and Ex.PW22/B respectively. Disclosure statement of accused Rahat Ali was recorded vide memo Ex.PW25/C and of accused Farzana vide memo Ex.PW25/D. They were brought to police station and got medically examined. On the next day, they were produced before the Court.
61. He deposed that during investigation, he had collected the record of complaint made by deceased Smt. Naaz before CAW Cell, West District, Kirti Nagar. Said record is on the file. I had also recorded statement of SI Rajender Singh who had conducted the enquiry.
62. He deposed that on 04.05.2012, father of the deceased Aas Mohd. came to him alongwith one Jagjit Singh to whom he had mortgaged his room for SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 24 of 42 Rs.2,00,000/- and produced the relevant documents which are Ex.PW4/A. Said documents were taken into police possession through seizure memo Ex.PW9/A. He recorded statement of Sh. Jagjit Singh. He had also collected call detail record (CDR) of the deceased and placed the same on record. He had also collected age record of Hina and Huma, daughters of Rahat Ali who were found juvenile. During investigation, he had recorded statement of witnesses, collected PM Report, Crime Team Report and sent exhibits to FSL, Rohini. After completing the investigation, he had submitted the charge-sheet before the Court.
63. He tendered FSL report dated 16.05.2013 in evidence which is Ex.PW25/E. He also exhibited FIR of this case which was registered by WSI Sarita and which is Ex.PW25/F. The defence had objected to mode of proof of these documents. He also identified case property i.e. Mobile as Ex.P-1
64. In cross-examination, he stated that he was present in the police station when the rukka and case FIR was handed over to him by PSI Brajveer. He was cross-examined at length regarding investigation conducted by him. It has come that he did not collect the cloth with which Naaz had hanged herself. He stated that said cloth/chunni was also not handed over by first IO to him.
65. PW-26 is Ct. Sunder Singh. He deposed that on 09.03.2012, he was posted as photographer in Crime Team of District North-East. On that day, he alongwith other staff of the Crime Team reached at the spot. There, he had taken four photographs with different angles. Out of the said photographs, three SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 25 of 42 photographs are on the record. Same are Ex.PW26/1 to Ex.PW26/3. Negatives are Ex.PW26/4 to Ex.PW26/7. There is no cross-examination. MEDICAL/EXPERT WITNESSES
66. PW-4 is Dr. M.K. Panigrahi. He had conducted postmortem examination on the dead body of deceased Naaz @ Rukhsana W/o Sameer on 10.03.2012 at about 1.20 p.m. He prepared PM Report No. HRH/23/12 which is Ex.PW4/A.
67. He gave opinion for cause of death as, "death of the deceased in this case could be possible due to asphyxia".
68. He gave final opinion after receipt of Chemical Analysis of Viscera. As per final opinion, cause of death was due to asphyxia consequent to antemortem hanging.
FORMAL WITNESSES
69. PW-8 is Iftekar Ahmad. He deposed that he got performed the marriage of Sameer s/o Rahat and Naaz d/o Aas Mohd. on 20.04.2009. He proved photocopy of the marriage certificate/nikahnama dated 20.04.2009 as Ex. PW8/A.
70. PW-12 Sh. Israr Babu is Alternate Nodal Officer from Vodafone Mobile Service Ltd. He produced Original Customer Application Form of mobile No. 8586826444 which was registered in the name of Naaz Khan, CDR for the SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 26 of 42 period from 01.03.2012 to 10.03.2012 and Certificate of Section 65 (B) of Indian Evidence Act. Photocopy of the CAF is Ex.PW12/A (OSR), CDR is Ex.PW12/B and Certificate of Section 65(B) of Indian Evidence Act is Ex.PW12/C.
71. PW-16 is SI Mukesh Kumar. He deposed that he was on emergency duty on 09.03.2012 and he received DD No.33A at about 11.40 p.m. regarding admission of one lady in Hindu Rao Hospital who was declared as brought dead. The DD No.33A is Ex.PW16/A (objected to by Ld. Defence Counsel to the mode of proof). After receiving the above said DD, he alongwith Ct. Mahender went to Hindu Rao Hospital and collected the MLC of deceased. On the MLC, doctor mentioned the patient as brought dead. The dead body was already got preserved in the mortuary of Hindu Rao Hospital. No relative of deceased met them in the hospital. Thereafter, he alongwith Ct. Mahender went to the spot i.e A-46, Gali No.4, Shastri Park, Delhi and on reaching there, he came to know that the deceased namely Naaz @ Ruksar was married about three years ago. He informed the crime team and SDM concerned. Accordingly, SI U. Bala Krishnan alongwith his staff came to the spot and he inspected the spot. The photographer took the photographs. He left Const. Mahender at spot to safeguard the spot and after leaving him there, he came back to the police station.
72. He deposed that at about 09.00/10.00 am, Sh. Radha Charan SDM informed him about his arrival on the spot and asked him to reach there. He deposed that therefore, he alongwith PSI Brijvir reached the spot. SDM made SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 27 of 42 the inquiry at the spot and also inspected the site. He also recorded statements of family members of deceased Smt. Naaz. After making endorsement on the statements, SDM handed over the same to him. He deposed that he prepared Rukka Ex.PW16/A after making endorsement on the statement of Salim and sent it to police station through PSI Brijvir for registration of FIR. Thereafter, they had reached Hindu Rao Hospital Mortuary for getting the postmortem of the deceased. SDM prepared inquest papers. Dead body was got identified through the relatives of the deceased and postmortem was got conducted. Dead body was handed over to the relatives of the deceased vide receipt Ex.PW16/B. Doctor had produced two pullandas to him in sealed condition alongwith sample seal. Thereafter he had gone to the spot where Insp. M.P Singh met him as investigation was assigned to him. He deposed that he produced said pullandas and sample seal to Insp. M.P. Singh which were taken into police possession by the IO vide seizure memo Ex. PW16/A. IO prepared site plan at his instance. One mobile phone E-52 five which was lying on the bed in the room was seized by the IO vide seizure memo Ex. PW16/C.
73. He deposed that accused Sameer was arrested by the IO vide arrest memo Ex.PW16/D and his personal search was conducted vide memo Ex.16/E. Disclosure statement of Sameer was also recorded vide memo Ex.PW16/F. Thereafter, they had taken the accused Sameer to police station. Pullandas was deposited in the malkhana. Accused was got medically examined.
74. In cross-examination, it has come that when he reached the spot i.e. SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 28 of 42 A-46, Gali no. 4, Shastri Park, Delhi, at about 01.00-01.15 a.m., parents of accused Sameer Ali had met him there. He denied that accused Sameer Ali was present there.
75. PW-17 is ASI M.M. Khan. He deposed that on 09.03.2012 at about 11:40 pm, an information was received by him from Hindu Rao Hospital through Duty Constable Raj Kumar that one lady namely Naaz W/o Sameer was brought to hospital in unconscious condition by her husband. Said lady was declared brought dead by the doctors on her MLC No. 1398/2012. He reduced the said information into writing in Roznamcha vide DD No. 33A and handed over the copy to SI Mukesh Kumar who had gone to attend the call alongwith Ct. Mahender Singh. Copy of DD No. 33A is Ex.PW16/A.
76. PW-22 is W/Ct. Geeta. She deposed that on 19.04.2012, she was posted at PS Seelampur. On that day, she had reached at Shastri Park Crossing, GT Road alongwith Ct. Narender and met IO Insp. M.P. Singh who had joined them in the investigation of this case. Thereafter, at about 4:00 pm, accused Farzana and Rahat Ali were apprehended while coming from Pusta Road Side at the instance of secret informer. No public person had joined the investigation despite efforts. She apprehended accused Farzana. Both the accused persons were interrogated and arrested by the IO. Their personal search was also conducted. They were got medically examined in GTB Hospital and sent to lock- up at PS Seelampur. Arrest memo of accused Farzana is Ex.PW22/A. Personal search of accused Farzana was conducted by her vide Ex.PW22/B. She SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 29 of 42 identified accused Farzana and Rahat Ali.
77. PW-23 is Ct. Narender Kumar. He deposed that on 19.04.2012, he was posted at PS Seelampur. On that day, he had reached at Shastri Park Crossing, GT Road alongwith W/Ct. Geeta and met IO Insp. M.P. Singh who had joined them in the investigation of this case. Thereafter, at about 3:45 pm, accused Farzana and Rahat Ali were apprehended while coming from Pusta Road Side at the instance of secret informer. No public person had joined the investigation despite efforts. Both the accused persons were interrogated and arrested by the IO. Their personal search was also conducted. They were got medically examined in GTB Hospital and sent to lock-up at PS Seelampur. Arrest memo of accused Rahat Ali is Ex.PW23/A. Personal search of accused Rahat Ali was conducted vide memo Ex.PW23/B. He identified accused Farzana and Rahat Ali.
STATEMENTS OF ACCUSED PERSONS
78. Incriminating circumstances appearing in evidence against accused persons were put to them as required U/s. 313 Cr.P.C. Accused persons stated that they were innocent and were falsely implicated. They stated that Naaz committed suicide because her family members did not inform her about death of her Nani to whom she was very much attached.
DEFENCE WITNESSES
79. DW-1 Praveen Sharma is neighbour of accused persons. He SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 30 of 42 deposed that behaviour of accused persons towards Naaz was good and their relations were cordial. He deposed that birth of daughter to Naaz was celebrated and he had attended that function. However, family members of Naaz had not come in that function. He deposed that on 09/10.03.2012 at about 10:30/11:00 pm, he was present in his house and came to know that Naaz had committed suicide. He stated that he did not notice any quarrel or fight between Naaz and Sameer prior to her death.
80. In cross-examination, he denied suggestions of the prosecutor that Naaz used to be ill-treated and tortured by the in-laws.
81. DW-2 Shahbuddin is also a neighbour. He also deposed on the same lines as DW-1. He was cross-examined on the same lines. DW-3 Mohd. Farukh is a family friend of the accused persons. He also stated that relations between Naaz and her in-laws were cordial. DW-4 Smt. Asha Devi is also an acquaintance of accused persons. She too deposed that Naaz was happy in the matrimonial house. Similarly, DW-5 Begum Anisa has also deposed that Naaz was happy in her matrimonial house.
SUBMISSIONS OF THE PARTIES
82. I have heard Sh. D.K. Singh, Ld. Addl. PP for the State and Sh. Surender Chauhan, Ld. Counsel for the accused persons.
83. Learned Addl. PP argued that prosecution has examined many witnesses from family of deceased who show that deceased was unhappy in her SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 31 of 42 matrimonial house and that she was being tortured and harassed in connection with dowry demands. He also referred to testimonies of police officials and other witnesses and submitted that prosecution has proved the charges beyond reasonable doubt.
84. On the other hand, learned Counsel for the accused persons prayed for acquittal. He submitted that testimonies of family members of the deceased are not reliable. He pointed out various defects in the testimonies of various family members. He contended that the loan theory was also demolished as the document relied upon by the prosecution was document of sale and not document regarding any loan. He also pointed out that there was no contact on phone with the deceased by any of the family members. He argued that deceased had committed suicide because she was shocked to hear about death of her Nani and that her own parents and family members did not inform her about death of Nani. He pointed out that deceased was very much attached with her Nani and she could not bear the loss. He also vehemently argued that the previous complaints made by the deceased at CAW Cell were rendered useless after she had compromised with accused Sameer at CAW Cell and started living with him in a rented accommodation. Learned Counsel submitted that after compromise, deceased was happy with her husband and there were no complaints by her. He contended that there was no cruelty committed upon deceased soon before her death to make out a case of dowry death. He argued that there was no dowry death and deceased had committed suicide. He relied upon Civil Appeal Nos. 7114-7115 of 2014 titled Suman Singh vs. Sanjay SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 32 of 42 Singh decided by Hon'ble Supreme Court of India; Mat. App. 08/2012 titled Neeraj Kumar vs. Pooja Verma decided by Hon'ble High Court of Delhi; (2016) 12 SCC 331 titled State of Karnataka vs. Dattaraj & Ors.; (2008) 13 SCC 233 titled Baldev Singh vs. State of Punbaj and Criminal Appeal No. 1029 of 2001 titled Sunil Bajaj vs. State of MP decided by Hon'ble Supreme Court of India.
FINDINGS
85. From the submissions of the learned Counsels, the following points for determination arise in the present case:
a). Whether ingredients of the offences as charged have been fulfilled or not?
86. Ingredients of the offence u/s 304-B IPC are:
a). the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
b). such death should have occurred within seven years of her marriage;
c). she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
d). such cruelty or harassment should be for or in connection with demand of dowry;
e). such cruelty or harassment is shown to have been meted out to the woman soon before her death.
87. As per postmortem report Ex.PW4/A, following injuries were noticed SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 33 of 42 on the dead body:
On External Examination:
There was a ligature mark in the form of superficial pressure abrasion, brownish black in colour and measuring about 27 cm long and variying width with maximum width of 4 cm present on the anterior aspect of the neck over and above the thyroid cartilage of neck. On the left side, it runs upwards and backwards and is placed about 2 cm below the left angle of the madible and 5 cm below the left mastoid process to end on the lateral aspect of left side neck. On the right side, the ligature mark runs upwards and backwards to be placed at 4 cm below the right angle of the mandible and 8 cm below the right mastoid process and ends on the right lateral aspect of the back of the neck. The ligature mark was discontinued on the back of the neck, which measures about 11 cm long. No other visible recent external injuries detected on the body of the deceased.
On Internal Examination:
All the organs were found intact and congested. Trachea was found intact with mucosa congested. Both the lungs were found intact, oedematous and congested the meninges and the brain were found intact and congested. Viscera and clothes of the deceased were preserved, sealed with the seal of FMHRH and alongwith the sample seal handed over to IO.
88. As per opinion of PW-4, cause of death was asphyxia as a result of ante mortem hanging. Since death was due to hanging, it was unnatural death. The deceased died within seven years of marriage. These two ingredients stand satisfied.
89. As far as other ingredients of the offence u/s 304-B IPC are concerned, prosecution has relied upon testimonies of the family members. PW-1 Saleem (brother), PW-3 Alam Khan (another brother), PW-6 Shahnawaj SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 34 of 42 (another brother), PW-7 Zamila (mother) and PW-19 Afsari (sister) are material witnesses in this regard. Evidence of the father PW-5 Aas Mohd. is to be ignored as he had died before completion of his evidence.
90. All these witnesses have deposed that before marriage, the accused persons pressurized them for arranging non-veg food in the the marriage. They have further stated that after marriage, accused persons started harassing deceased for more dowry. They referred to complaint filed by deceased before CAW Cell. It is alleged by these witnesses that Rs. 2 lakhs were given by their father (PW-5) by mortgaging property. They have also deposed that after deceased had joined back company of her husband, she was again harassed and tortured in connection with dowry demands.
91. Before evaluating their testimonies, it would be relevant to take note of the law regarding interpretation of the phrase "soon before death". It is now well settled that this expression does not mean "immediately before death". Rather, it requires that there must be proximity between the period of harassment or cruelties and period of death. The Hon'ble Supreme Court discussed the law in the judgment reported as (2014) 2 SCC 240 titled Tummala Venkateswar Rao vs. The State of AP. It observed:
"5. It was next contended by Shri Rai that the so called harassment for dowry was not shown to have been made immediately before the death of Neelima as required by law for conviction. It is too late in the day to accept this contention since the term "soon before her death" has been consistently held by this Court not to mean immediately before the death.SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 35 of 42
6. This Court in the case of Kailash versus State of Madhya Pradesh (2006) 12 SCC 667 : AIR 2007 SC 107 has observed as under:
"No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before"
is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link [see Hira Lal v. State (Govt. of NCT), Delhi]."
7. This Court in the case of Hira Lal versus State (Govt. of NCT), Delhi (2003) 8 SCC 80 has observed as under:
"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 36 of 42 before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration
(a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before"
is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
8. X X X X X
9. It is obvious from this provision that the term "soon before her death" has been employed by the Parliament to refer to cruelty or harassment which was meted out in proximity to the death has to be considered as the cause of the death as held supra. The provision does not employ the term "at any time before" nor "immediately before" and must be construed according to its true import."
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 37 of 42
92. Thus prosecution was required to show that the deceaed was subjected to cruelties and harassment in connection with dowry demands soon before her death.
93. Arrangement of non-veg food is a normal thing in Muslim marriages. Demand for non-veg food cannot be taken as any demand of dowry.
94. Document regarding the loan is Ex.PW4/A. However, perusal of the document shows that it was a sale agreement and not a mortgage. This has certainly dented the loan theory propounded by these witnesses. There is no proof of payment of any such money worth Rs. 2 lakhs. There are only oral accounts in this regard. Merely from oral testimony, it cannot be said with certainty that Rs. 2 lakhs were paid to accused persons.
95. As far as CAW Cell complaint is concerned, it is worth noting that deceased had compromised the said complaint and had started living again with accused Sameer. It has come on record that she lived happily in the rented accommodation. It has also come that from rented accommodation, deceased shifted back to matrimonial house. This further strengthens the conclusion that there were no disputes between husband and wife after their reunion.
96. It has come in evidence that after deceased had joined back company of accused Sameer Ali pursuant to settlement at CAW Cell and till her death, there was no complaint whatsoever to any authority from the side of deceased. This means that everything was going good in the matrimonial life of SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 38 of 42 deceased and accused Sameer Ali. The previous complaint was disposed of as settled before CAW Cell.
97. It has been held in the case of Kailash v. State of M. P., (2006) 12 SCC 667 that no presumption u/s. 113-B could be drawn if it is shown that after alleged cruelties or harassment regarding demand of dowry, the dispute stood resolved and that there were no evidence of further cruelties or harassment. Thus, if the deceased had condoned previous acts of cruelties, by joining back the company of the husband, those acts of cruelties cannot be made basis for convicting the husband for dowry death particularly when there is no evidence of further cruelties and harassment. The condoned acts are wiped out from the canvas of allegations.
98. In the present case also, deceased had compromised her complaint before CAW Cell and it was closed on 10.03.2011. Thereafter, there was no complaint about any torture or cruelties or harassment. Though family members of the deceased have deposed about few such incidents but those are only oral accounts without any concrete proof. On the contrary, there are testimonies of various persons who were neighbours and they have stated that there was no dispute between husband and wife. Evidence of DW's reveal this fact. Most importantly, there is evidence of the landlord PW-13 Arjun Singh in whose house deceased and accused had resided as tenant after reunion. He says that there was no quarrel between them till they resided in his house. This piece of evidence is crucial and is in favour of the accused persons. SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 39 of 42
99. Evidence of family members about subsequent cruelties or harassment is not very inspiring. PW-1 Saleem (brother) has admitted in cross- examination that he did not visit house of Naaz after she joined back her husband. This conduct is sufficient to cast doubts about his claims that Naaz was being harassed again by accused persons. Similarly, evidence of other family members is also not much helpful on this aspect. It is an admitted position that the deceased had not made any complaint against the accused persons after joining her husband after settlement and till her death.
100. PW-1 claims that deceased had called him on phone and asked him to take her to parents home as she was fed up with the harassment caused to her by accused persons. There is no documentary proof of any such phone call. Even otherwise, as per PW-1 himself, he had asked Naaz to bear for some time and pray to God. This conduct of PW-1 shows that it was not that serious as he is trying to show it now. Had it been so, he would have immediately gone to the matrimonial house of deceased and brought her back.
101. It has been admitted by family members of deceased that they had not informed her about death of Nani. It has come on record that deceased was very much attached with her Nani. No reason has been disclosed by family members of deceased as to why they did not inform her about death of Nani. Learned Counsel for accused had suggested that the family members of deceased had cut off relations with deceased as she had again joined the matrimonial house. He alleged that the family members of the deceased did not SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 40 of 42 want deceased to come to their house and see them. He submitted that in these circumstances, the family members even did not inform about death of Nani to deceased. He contended that when the deceased came to know about it, she was shattered from inside. He contended that deceased also realized that her own family members had kept her in dark and had practically disowned her. Learned Counsel argued that all these circumstances caused deceased to end her life. He contended that it is a case of suicide.
102. It is apparent that deceased Naaz committed suicide. The reason for suicide has been explained by the accused persons. It may sound somewhat trivial an issue which may force any person to commit suicide. However, it is equally true that different human beings behave differently in given circumstances. May be deceased was emotionally very much attached to her Nani and was very sensitive towards her. When she found that she was not informed about death of her Nani, she felt broken and devastated. She could not bear the said loss. This appears to be the apparent cause for suicide.
103. It is held that prosecution has failed to prove that the deceased was subjected to any cruelties or harassment in connection with dowry demands soon before her death. The remaining ingredients thus have not been fulfilled. Charge u/s 498-A/304-B/34 IPC is bound to fail.
104. There is no evidence at all to prove that it was a case of murder. Alternative charge u/s. 302 IPC also fails.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 41 of 42
105. Considering the facts and circumstances of the case, it appears to be a case of suicide.
106. Prosecution fails to prove any of the charges against the accused persons. Therefore, all the accused persons namely Sameer Ali, Rahat Ali and Farzana are hereby acquitted of all the charges framed against them in this case.
107. Accused are required to furnish bail bonds as per Sec. 437-A CrPC. At request of the accused persons, bonds already furnished by them are accepted further for a period of six months for the purposes of Sec. 437-A CrPC.
108. Case property is confiscated. It be destroyed as per rules.
109. File be consigned to Record Room.
Announced in open court Digitally signed
on 17th day of July, 2018. by SANJAY
BANSAL
SANJAY Location:
BANSAL Karkardooma
Court
Date: 2018.07.17
15:30:32 +0530
(Sanjay Bansal)
Special Judge (NDPS)/ASJ/
NE/KKD Courts/Delhi.
SC No. 44604/15 State Vs. Sameer Ali & Ors. Page 42 of 42