Delhi District Court
State vs . 1. Nadeem S/O Naimuddin, on 7 November, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0162592010
Sessions Case No. 25/2010
Assigned to Sessions. 01.07.2010
Arguments heard on 05.09.2012
Date of judgment 07/11/12
FIR No. 34/2010
State Vs. 1. Nadeem s/o Naimuddin,
2. Naimuddin s/o Islamuddin,
3. Smt. Jubuesha @ Sanno @ Zaibun
Nisha w/o Naimuddin,
All r/o B242/5, Kabir Nagar, Delhi.
Police Station Jyoti Nagar
Under Section 498A/304B/302/34 IPC
JUDGMENT
1. Station House Officer of Police Station Jyoti Nagar had filed a challan vide FIR No.34/2010 dated 23.01.2010 u/s 498A/304B/34 IPC for the prosecution of accused persons namely Nadeem, Naimuddin and Smt. Jubuesha @ ZabunNisha @ Sanno in the court of Ld. MM. Since death had taken place within seven years of marriage. Hence, SDM was called. Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court. SC No.25/2010
State Vs. Nadeem and others 1/67
2. In brief, facts of the case are that on 21.01.2010 a DD No.11A Ex.PW13/B was recorded at police station Jyoti Nagar regarding quarrel and said DD was marked to HC Sunil Kumar for investigation. On receipt of this DD, HC Sunil Kumar along with Ct. Bijender reached at the spot i.e. Guru Harkishan Public School, Loni Road, Shahdara where one chowkidar of aforesaid school namely Amarjeet met them and he told them that one lady had fallen down from the roof towards playground of school and she has been taken to GTB Hospital by public persons. Thereafter, HC Sunil Kumar along with Ct. Bijender reached at GTB Hospital and collected MLC of injured Kamar Jahan vide Ex.PW13/D wherein injured was declared unfit to make statement by the doctor. Thereafter, HC Sunil Kumar had informed to SHO about the facts of this case. It came into his notice that incident had taken place within 2 ½ years of marriage of injured, hence HC Sunil Kumar had also informed the SDM about the incident on phone. SDM and SHO had come in GTB Hospital and they had interrogated the parents of injured in the hospital. HC Sunil Kumar had recorded statement of Nadeem, husband of injured vide Ex.PW13/C. Thereafter, investigation of the present case was handed over to S.I. Rakesh Yadav.
3. On 22.01.2010, copy of DD No.23B Ex.PW13/A was assigned to SI Rakesh Yadav which was in connection of death of Smt. Kamar Jahan in GTB Hospital. SI Rakesh Yadav along with HC Sunil reached in the mortuary of GTB Hospital. There, Sh. Naveen Kumar Saxena, SDM was also present. SDM completed inquest SC No.25/2010 State Vs. Nadeem and others 2/67 proceeding and SI Rakesh Yadav assisted him. Dead body was identified by PW Mohd. Irshad and Smt. Anwari vide their statements Ex.PW2/A and Ex.PW3/A respectively. SI Rakesh Yadav had filled up inquest form Ex.PW10/A and made request for postmortem vide Ex.PW10/B. Thereafter, aforesaid inquest papers along with copy of DD No.11A Ex.PW13/B, copy of DD No.23B Ex.PW13/A, statement of Naeem recorded by HC Sunil Kumar Ex.PW13/C, MLC of Kamar Jahan Ex.PW13/D, photocopy of statement of Mohd. Irshad Ex.PW13/E, photocopy of statement of Smt. Anwari Ex.PW13/F, carbon copy of death certificate of Kamar Jahan Ex.PW13/G and death summary Ex.PW13/H were sent to concerned doctor for postmortem examination and one the same day postmortem was conducted vide postmortem report Ex.PW13/I. After postmortem dead body was released for burial to father of deceased Kamar Jahan vide Ex.PW2/C. SI Rakesh Yadav had seized parcels.
4. SDM had recorded statement of PWs Mohd. Irshad and of Smt. Anwari, parents of deceased vide Ex.PW2/B and Ex.PW3/B respectively and directed SHO PS Jyoti Nagar for necessary action as per law. On the basis of said statement of PW Mohd. Irshad Ex.PW2/B, FIR Ex. PW19/A u/s 498A/304B IPC was recorded at police station Jyoti Nagar.
5. Thereafter, IO had prepared the site plan of the place of occurrence vide Ex.PW19/B at the instance of chowkidar of Guru Harkishan Public School, Jyoti Nagar, Loni Road, Delhi.
SC No.25/2010
State Vs. Nadeem and others 3/67
6. On 27.01.2010, complainant Mohd. Irshad had come at police station and produced one marriage CD of deceased Kamarjhan with accused Nadeem, Ex.P1, photocopy of Nikahnama Ex.P2, photocopy of Nikahnama (from the record of Masjid) mark XX, photocopies of passbook Mark X4 and X5, photocopy of list of dowry articles mark X1 to X3, photocopy of receipts regarding purchasing of dowry articles etc. mark X6 to X25 and sixteen photographs of aforesaid marriage are collectively Ex.P4. During the course of investigation, accused persons were arrested for the offences u/s 498A/ 304B/34 IPC. CHARGE:
7. On the basis of material available on record, this court framed a charge vide order dated 09.03.2011 against accused persons namely Nadeem, Naimudeen and Smt. ZaibunNisha @ Jubuesha @ Sanno for the offences punishable u/s 498A/304B/34 IPC and alternatively charge u/s 302/34 IPC to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
8. In order to prove its case prosecution has examined 20 witnesses namely PW1 ASI Tahir Hussain, PW2 Mohd. Irshad, PW3 Smt. Anwari, PW4 Hasan Ali, PW5 Gulam Mohd., PW6 Imran, PW7 Irfan Ali, PW8 Sh. Amarjeet Singh, PW9 Mohd. Yasin, PW10 Sh. Navin Kumar Saxena, PW11 HC Krishan Vir, PW12 Ct. Satender Singh, PW13 S.I. Rakesh Yadav, PW14 ASI Gurnam Singh, PW15 HC SC No.25/2010 State Vs. Nadeem and others 4/67 Rajender Singh, PW16 ASI Suchitra, PW17 HC Sunil Kumar, PW18 Ct. Devender, PW19 Inspector K.K. Upadhyay and PW20 Inspector Jaipal Singh.
9. PW1 ASI Tahir Hussain. This is the witness of arrest of accused Nadeem. In his presence on 23.02.2010 at about 9:45 p.m. secret informer met with I.O. and informed about the presence of accused Nadeem in his house. This witness has proved arrest memo Ex.PW1/A and personal search memo Ex.PW1/B of accused Nadeem. This witness has also proved his disclosure statement vide Ex.PW1/C.
10.In his cross examination by ld. defence counsel, this witness has deposed that no other police official was with them at the time of arrest of accused Nadeem except himself and Investigating Officer and no public persons had come nearby the place of arrest. This witness has further deposed that I.O. had not called any public persons to join the investigation and information of arrest of accused Nadeem was passed over to one of his friends and I.O. had obtained signature of that friend on arrest memo of accused Nadeem. On showing Ex.PW1/A by ld. defence counsel, this witness admits that signature of that friend of accused Nadeem is not on arrest memo of accused Nadeem. This witness denied that no friend of accused Nadeem was present or was informed about his arrest. This witness further denied that signatures of accused Nadeem were obtained on papers forcibly.
11.PW2 Mohd. Irshad. This is a material witness being complainant and father of deceased Kamar Jahan. This witness has deposed that on 26.12.2007 SC No.25/2010 State Vs. Nadeem and others 5/67 marriage/nikah of her daughter was solemnized with accused Nadeem at his residence according to Muslim Rites and Customs and they had delivered dowry articles on the day of marriage to inlaws of his daughter as per their capacity, photocopy of list of dowry articles mark X1, X2 and X3 and he had also given cash in sum of Rs.2,50,000/ to accused Naeem on the day of marriage and Alto car was also given to inlaws of his daughter Qamar Jahan.
12.This witness has further deposed that his daughter visited her parental house after 23 days of her marriage and she told them that her inlaws were complaining that the marriage had not been performed as per their status and she further stated "kin kanglo se paala pada hai, apni beti ko bhi knaglo ki tarah rehansehan sikhya hai", these words were spoken to her by her husband Nadeem, fatherinlaw Naimuddin, motherinlaw ZaibunNisha @ Sanno and ChachaSasur Shamshuddin @ Shammi.
13.This witness has further deposed that whenever his daughter had visited his house to reside with him for a few days after every 1520 days then she used to complain that her inlaws were harassing her for the demand of more dowry. Accused Naeem had demanded Rs. 7 lacs from him in the presence of his Samdhi Yasin and he had given Rs.50,000/ another time Rs.65,000/ again Rs.1,10,000/ to accused Naeem. This witness has further deposed that accused persons used to give beating to his daughter on the demand of dowry and they used to demand Rs. 7 lacs, out of which he had given Rs.2.5 lacs to them.
SC No.25/2010
State Vs. Nadeem and others 6/67
14.This witness has further deposed that 78 days before her death his daughter had visited his house and she was very disturbed and on his asking she had informed him that her husband Nadeem, fatherinlaw Naimuddin, motherinlaw Zaibun Nisha @ Shanno and ChachaSasur Shamshuddin @ Shammi had been asking her to get Rs.4.5 lacs and they were saying in case she does not bring the aforesaid amount then they will get her declared mentally ill and get accused Nadeem remarried. This witness has further deposed that accused Naeem and his brother Shammi had also visited his house in those days and told him to keep his daughter with him and he explained the things to them that he would pay Rs.4.5 lacs slowly and gradually and thereafter he sent his daughter with them. This witness has further deposed that his daughter told him not to send her as she is afraid of her in laws and she fears that they may kill her but he made his daughter understand and sent her with them.
15.This witness has further deposed that on 21.01.2010 at about 4:30 p.m., he had received telephonic information from police station Jyoti Nagar that his daughter Qamar Jahan has fallen from fourth floor of her matrimonial house and she is admitted in GTB Hospital in serious condition.
16.This witness had identified the dead body of his deceased daughter Kamar Jahan at GTB Hospital vide Ex.PW2/A. This witness has proved his statement Ex.PW2/B which was recorded by SDM, Shahdara, Delhi. This witness has received dead body of his deceased daughter against receipt Ex.PW2/C after postmortem SC No.25/2010 State Vs. Nadeem and others 7/67 examination. This witness had handed over the marriage photographs and video CD of his daughter, copy of Nikahnama, list of dowry articles and some photocopies of receipt regarding dowry articles to the I.O. which he seized vide seizure memo Ex.PW2/D. This witness had correctly identified all the case property.
17.In his cross examination by ld. defence counsel, this witness has deposed that during life time of deceased Kamar Jahan, he had complained the fact of daughter being troubled by the accused persons to Haji Mashooq Ali (cousin brother of accused Nadeem) and he had also taken him to the house of the accused persons on 4 or 5 occasions to resolve the issues.
18.Ld. defence counsel has confronted his statement Ex.PW2/B wherein he had stated to the SDM that he had given cash of Rs.2.5 lacs and Alto Car to the accused Naeem on the day of marriage.
19.In his cross examination, this witness has further stated that he had not stated to the SDM that accused Naeem had demanded Rs.7 lacs from him in the presence of his Samdhi Yasin and he had given Rs.50,000/, another time Rs.65,000/ and again Rs.1,10,000/ to accused Naeem.
20.Statement Ex.PW2/B of this witness was confronted by ld. defence counsel on the fact that he had stated to the SDM in his statement that accused persons used to SC No.25/2010 State Vs. Nadeem and others 8/67 give beating to his daughter on the demand of dowry and they used to demand of Rs.7 lacs.
21.This witness had denied that his daughter was having any psychiatric problem/mental illness. This witness has further deposed that he does not know if on 18.01.2010 his daughter had underwent a CT scan examination.
22.This witness has further deposed that he had not made any complaint of cruelty to any authority/police authority against accused persons. This witness had denied that his daughter was having any pshychiatric problem/mental illness or that his son Irfan had gone to Holy Family hospital along with his daughter for her treatment.
23.PW3 Smt. Anwari. This witness is mother of deceased. This witness has deposed on the same footing as deposed by PW2. This witness has proved his statement Ex.PW3/A regarding identification of dead body of her daughter and statement Ex.PW3/B recorded by the SDM.
24.This witness has been cross examined at length by ld. defence counsel. In her cross examination by ld. defence counsel, this witness has deposed that her daughter (deceased) was Graduate and one Mashooq Ali of Okhla had got the marriage arranged of her deceased daughter. This witness has deposed that no family member of inlaws of her daughter had met her in GTB Hospital. This witness SC No.25/2010 State Vs. Nadeem and others 9/67 denied that her daughter was suffering with mental illness or that she was undergoing regular treatment for the same or that she and her family had also been providing treatment to her.
25.PW4 Hasan Ali. This witness has deposed that deceased Kamar Jahan was sister inlaw (Nanad) of his daughter NazoonNisha and his daughter got married to Irfan Ali brother of Kamar Jahan on 21.04.2002. This witness has further deposed that he had participated in the marriage ceremony of Kamar Jahan and marriage was performed as per the capacity of Irshad Ali and Alto car, jewellery about 10 tollas, furniture, utensils, refrigerator, Oven, washing machine etc. were given in the marriage to the inlaws of Kamar Jahan.
26.This witness has further deposed that after 34 months he was called by Irshad Ali and there his daughter and Irshad Ali told him that there is a quarrel in the matrimonial house of Kamar Jahan on the issue of less dowry and requested him to accompany him to the house of accused Nadeem to make them understand.
27.This witness has further deposed that about 45 months of marriage he along with Irshad Ali, Irfan Ali, A. Haji and 45 other persons had gone at the house of Nadeem at Kabir Nagar, there parents of Nadeem, uncle of NadeemShammi and 23 other relatives had met them and they had requested them not to tell anything to Kamar Jahan regarding quarrel and less dowry and whatever they want to say they communicate with them. This witness has further deposed that inlaws of SC No.25/2010 State Vs. Nadeem and others 10/67 Kamar Jahan assured them that they will not repeat any such quarrel.
28.This witness has further deposed that after about one year from the marriage of Kamar Jahan in a function at his house in Saket, Kamar Jahan had also come and she told him that her husband, fatherinlaw, Naimuddin, motherinlaw Zaibunisha and his uncle Shammi used to harass her for more dowry and making her life difficult and she felt that they can do anything with her. Thereafter, again he along with Irshad Ali and his son Irfan, Imran and other relatives visited the matrimonial house of deceased to make them understand.
29.This witness has further deposed that on 21.01.2010 Sh. Irshad Ali informed him over telephone that Kamar Jahan has been removed to hospital after being fallen down from roof and requested him to reach at GTB Hospital. This witness had reached at GTB Hospital and found Kamar Jahan unconscious and on 22.01.2010 Kamar Jahan was declared dead by the doctors.
30.This witness has been cross examined at length by ld. defence counsel. In his cross examination by ld. defence counsel, his statement Ex.PW4/DA was confronted.
31.PW5 Gulam Mohd. This witness has deposed that his daughter Shahana got married to Azharuddin s/o Irshad Ali on 05.12.2009 and Kamar Jahan was nanad of his daughter.
SC No.25/2010
State Vs. Nadeem and others 11/67
32.This witness has deposed that he had visited the house of Irshad Ali after 45 months of marriage of his daughter and he found Irshad Ali in a disturb state and on his asking he informed that inlaws of Kamar Jahan including her husband, fatherinlaw, motherinlaw and uncle (name he does not know) have been harassing her for less dowry. This witness along with Irshad Ali and one more person visited the matrimonial house of Kamar Jahan and they had made understand aforesaid four persons not to giving beatings to Kamar Jahan and not to threaten her to kill her for demand of dowry and Irshad Ali had delivered a sum of Rs.1,10,000/ for starting of business to the accused Nadeem and accused Naimuddin.
33.This witness has further deposed that aforesaid four accused persons used to demand more dowry from Kamar Jahan and used to beat mercilessly her for more demand of dowry and cash.
34.This witness has further deposed that after about 18 days, he had received a telephone from his soninlaw - Azharuddin and it was told to him that Kamar Jahan is admitted in GTB Hospital and he along with his wife reached at GTB Hospital where it came into his notice that Kamar Jahan has been thrown from the roof of her matrimonial house by accused Nadeem, Naimuddin, Smt. Zaibunisha and uncle of Nadeem. This witness has further deposed that in the morning at about 9:00 a.m. on 22.01.2010 Kamar Jahan was declared dead by the doctors. SC No.25/2010
State Vs. Nadeem and others 12/67
35.This witness has been cross examined at length by ld. defence counsel. In his
cross examination by ld. defence counsel, this witness has deposed that he had visited the police station to getting the FIR registered along with Irshad Ali on 21.01.2010. This witness had confronted with statement Ex.PW5/DA on the fact that he had told in his statement to police that he had visited the house of Irshad Ali after 45 months of marriage of his daughter and he found Irshad Ali in a disturb state and on his asking he informed him that inlaws of Kamar Jahan including husband, fatherinlaw, motherinlaw and uncle have have been harassing her for less dowry.
36.PW6 Imran. This witness has deposed that he had one sister Kanwar Jahan (Kamar Jahan) (deceased in this case) and five brothers in the family and his aforesaid sister was 12th standard pass. This witness has tendered educational certificates of Kamar Jahan i.e. mark sheet and certificate of secondary examination Ex.PW6/A and PW6/B respectively, provisional mark sheet and certificate of senior secondary examination Ex.PW6/C and PW6/D, certificate of basic computer course Ex.PW6/E and character certificate Ex.PW6/F. This witness has deposed that his aforesaid sister was physically and medically fit.
37.This witness has further deposed that on 26.12.2007 they had solemnized the marriage/nikah of his sister Kamar Jahan with accused Nadeem with pump and show and they had delivered dowry articles as per their capacity. This witness has filed original nikahnama of his sister (since deceased), photocopy of nikahnama is SC No.25/2010 State Vs. Nadeem and others 13/67 Ex.PW6/G already Ex.P2 (OSR). This witness had also filed some photographs of his sister's marriage on file vide Ex.PW6/H1 and PW6/H2 which are depicting his sister, his father, fatherinlaw of his sister who is accused in the present case and Shamshuddin @ Shammi who is Chacha of accused Nadeem. This witness has also filed CD of the marriage of his aforesaid sister vide Ex.PW6/I1, I2 and I3. Objected by ld. defence counsel for tendering certificate, photographs and CD on file.
38.This witness has deposed that Kamar Jahan (deceased) was closest to him among all brothers. This witness has further deposed that after 34 months of marriage, when she used to come her parental home, she used to complaint that her inlaws had been demanding dowry and asking her to bring more dowry and they also used to beat her. The deceased was beaten by accused Nadeem (husband), accused Smt. Jubuesha @ Zaibun Nisha @ Sanno (motherinlaw), accused Naeem (father inlaw) and Chachiya Sasur, Shammi who used to reside there most of the time on account of demand of dowry and accused Smt. Jubuesha @ Sanno and Naeem used to demand money. Again said accused Nadeem also used to demand money and his father used to pay the amount to accused Naeem. This witness has further deposed that his sister also used to tell all these things to his mother about beating and dowry demand. This witness has further deposed that his sister used to call him on his phone number 9717211750 and told him that she was not happy and she had been tortured by accused persons namely Naeem, Smt. Jubuesha @ Zaibun Nisha @ Sanno and Nadeem on pretext of dowry and used to tell her that she does SC No.25/2010 State Vs. Nadeem and others 14/67 not know any work.
39.This witness has further deposed that at one point of time, Shammi (Chachiya Sasur of deceased) met him at Sadar Bazar and advised him why do not he pay amount to accused persons, if anything happened to the deceased then don't make any complaint to him.
40.This witness has further deposed that about 15 days before incident, his sister had come to attend the marriage of his younger brother namely Mohd. Azahardduin where she had complaint that she was not happy at her matrimonial house as she had been tortured by accused persons on account of aforesaid reasons and she had also complained that accused persons used to taunt her by saying that "kin kanglo se pala pad gaya hai". Thereafter, after 34 days of marriage all the accused persons and Shammi had taken Kamar Jahan back to her matrimonial home.
41.This witness has further deposed that on 21.01.2010 he was told by his father that he had received a phone from Police Station Jyoti Nagar that Kamar Jahan was admitted in the GTB Hospital. This witness along with his family members reached in GTB Hospital and found his sister admitted there and it came into his notice that his sister Kamar Jahan had been thrown from fourth floor of her matrimonial home by all three accused persons present in court and Shammi. This witness has further deposed that he can identify Shammi if he produced before him.
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State Vs. Nadeem and others 15/67
42.This witness has further deposed that on 22.01.2010, his sister was declared dead by the doctor in the morning at about 9:00 a.m. and on the same day, postmortem was conducted. Thereafter, his family received the dead body of his sister for burial. This witness had brought two photographs of the marriage of his brother Azaharuddin which had been tendered on file vide Ex.PW6/J1 and PW6/J2 and these photographs are depicting the photographs of devar of deceased, deceased (Kamar Jahan), Rehan (minor child of deceased), Kumari Soni @ Mehjabi, Nadeem, Irfan etc. This witness had also brought documents i.e. computer generated invoice of Alto Car which is in the name of Irshad Ahmad and original bill of some articles and jewellery and steel furniture which had been tendered on file vide Ex.PW6/K1 to PW6/K22. Objected by ld. defence counsel for tendering the documents.
43.This witness has been cross examined by ld. defence counsel at length. In his cross examination, this witness has deposed that his sister was never under medical treatment for any reason and his sister had delivered a child under the supervision and care of her inlaws in a hospital and all expenses had been borne by her in laws.
44.PW7 Irfan Ali. This witness is the elder brother of Smt. Kamar Jahan (deceased). This witness has deposed that on 26.12.2007, marriage of his aforesaid sister was performed with accused Nadeem at New Delhi. After 34 months, Kamar Jahan SC No.25/2010 State Vs. Nadeem and others 16/67 had told him on phone that she had been tortured and beaten by her husband, fatherinlaw, motherinlaw and Shammi (Chachasasur) on account of demand of dowry. This witness has further deposed that she used to tell him the facts whenever she had visited his house and she used to weep for hours at his home during her visit on account of demand of money by aforesaid accused persons and his parents used to make her understand to join her matrimonial house as they would fulfill the demands of accused persons. Accordingly, she used to join her matrimonial house.
45.This witness has further deposed that lastly, Kamar Jahan had come to his house before 1520 days of the incident. At that time, her motherinlaw, fatherinlaw, accused Nadeem and Shammi (chachiasasur) had come to take her back. At that time she was not well due to some gum problems and she was saying "Papa mujhe mat bhejo mein lot ke vapas nahi aa paungi". This witness has further deposed that his parents had sent her along with aforesaid accused persons on their request.
46.This witness has further deposed that when Kamar Jahan had come to his house, after threefour months of her marriage, she had also told them that the jewellery articles given by his parents in her marriage had been kept by her motherinlaw and mortgaged with someone.
47.This witness has further deposed that he had visited the matrimonial house of SC No.25/2010 State Vs. Nadeem and others 17/67 Kamar Jahan for threefour times and once with Sh. Hasan Ali, his fatherinlaw and every time, she had made same complaints regarding beatings and torture by accused persons. This witness had met with accused persons and other family members at her matrimonial house and he had requested them not to beat Kamar Jahan. This witness has further deposed that accused persons had replied that if they pay them money they would not torture and beat Kamar Jahan. In his presence, his father had given Rs. 1 lac to accused Naeem to fulfill the demand of dowry. Whenever, this witness had visited the matrimonial house of Kamar Jahan his father was with him. This witness has further deposed that they had not insisted the accused persons too much as Kamar Jahan was pregnant at that time and they were under impression that things may be improved after delivery.
48.This witness has further deposed that on 21.01.2010, at about 05:00 06:00pm, it came into his notice that father and motherinlaw of Kamar had pushed her from 3rd floor of their house. Again said, accused Nadeem was also present there. This witness along with his mother, his younger brother - Imran, he does not remember the names of other persons but one or two members of his family had reached at GTB Hospital at about 06:00pm by car and his father had already reached at GTB Hospital. The condition of Kamar Jahan was very critical and no one was with her at that time and on 22.01.2010, she expired in GTB Hospital. This witness had correctly identified all three accused persons present in court and this witness has deposed that he can identify Shammi (chachiasasur of deceased) if he be produced before him.
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State Vs. Nadeem and others 18/67
49.This witness has been cross examined at length by the ld. defence counsel. In his cross examination, this witness was confronted with statement Ex.PW7/DA on the fact that he had stated to the police in his statement that after 34 months Kamar Jahan had told him on phone that she had been tortured and beaten by her husband, fatherinlaw, motherinlaw and Shammi (Chachasasur) on account of demand of dowry.
50.This witness has further deposed that he cannot tell any date of his visit to the matrimonial house of his sister. However, all these visits were before delivery of child by his sister. They had not made any complaint to any authority regarding any complaint made by his sister. This witness has further deposed that he does not know if his sister was taking treatment in I.H.B.A.S. and Vimhans Hospital as well as from Dr. Gurubax Singh.
51.PW8 Sh. Amarjeet Singh. This witness is the Chowkidar of Guru Harkishan Public School, West Jyoti Colony, Delhi and on 21.01.2010, he was on duty as a Chowkidar at the gate of school. This witness has deposed that at about 04:15pm or 04:30pm fiveseven public persons came at the gate of aforesaid school and requested him to open the same as one lady had been fallen from a building. This witness had immediately made a call at 100 number and opened the gate of school and public persons came with a vehicle and took the injured with them to hospital. This witness has further deposed that he could not see the lady or the place where SC No.25/2010 State Vs. Nadeem and others 19/67 she had fallen.
52.This witness has been declared hostile by Ld. APP for the State. Even in his cross examination by Ld. APP for the State, this witness has not supported the case of prosecution. His statement Ex.PW8/A has been confronted by Ld. APP for the State.
53.PW9 Mohd. Yasin. This witness has deposed that Mohd. Irshad is fatherinlaw of his niece Nazma and he had been in visiting terms with PW Mohd. Irshad being his Samdhi. This witness had attended the marriage of Kamar Jahan (deceased) on 26.12.2007.
54.This witness has further deposed that in the month of April 2008, his niece Nazma told him that Kamar Jahan was being harassed by her inlaws, namely, accused Nadeem, Naimuddin and Smt. Zebunisha on account of demand of dowry. It was also told him that Kamarjahan was also being taunted by aforesaid accused persons for less dowry.
55.This witness has further deposed that once he had received telephone call of Kamarjahan and she had told him that behaviour of aforesaid accused persons was not good with her on account of demand of dowry. After some days this witness along with Mohd. Irshad had gone at the matrimonial house of Kamar Jahan and her inlaws met them and they tried to make understand all three accused persons, SC No.25/2010 State Vs. Nadeem and others 20/67 present in court, not to harass Kamarjahan on account of demand of dowry and they both were also assured by them that they will not repeat the same things.
56.This witness has further deposed that thereafter, after about 46 months from their first visit, he along with Mohd. Irshad again visited the matrimonial house of Kamar Jahan in Kabir Nagar, Delhi and they again tried to make understand all three accused persons, present in court, not to harass Kamarjahan on account of demand of dowry and they both were also assured by them that they will not repeat the same things. In his presence Mohd. Irshad had delivered a sum of Rs.50,000/ to accused Naimuddin and a sum of Rs.65,000/ to him on second visit as accused Naimuddin was urgent need of money for his business and just to keep happy Kamar Jahan at her matrimonial house.
57.This witness has further deposed that on 21.01.2010, at about 05:00/06:00pm he had received a telephone call of Mohd. Irshad and he told him that Kamarjahan was admit in GTB Hospital and he reached there and found Kamarjahan admitted there in ICU. Some persons were saying that Kamarjahan had been thrown by her in laws from the roof of her matrimonial house.
58.This witness has further deposed that Shamshuddin @ Shammi (chachiasasur of deceased) was in visiting terms at the matrimonial house of deceased and he also used to beat Kamarjahan along with accused persons present in court on account of demand of dowry. This witness has further deposed that on following day at SC No.25/2010 State Vs. Nadeem and others 21/67 about 08:00/09:00am, it came into his notice that Kamar Jahan was declared dead by the doctors in GTB Hospital.
59.This witness has been cross examined at length by ld. defence counsel. In his cross examination, this witness has deposed that he had reached in GTB Hospital at about 07/08:00pm on 21.01.2010 and all the inlaws of deceased Kamarjahan were also present in hospital at that time. In his presence PW Irshad had met police officials in GTB Hospital on 21.01.2010 and 22.01.2010 and during both two days police had inquired from PW Irshad regarding the facts of present case.
60.This witness was confronted with statement Ex.PW9/DA on the fact that he had stated to police in his statement that in the month of April 2008, his niece Nazma told him that Kamar Jahan was being harassed by her inlaws, namely, accused Nadeem, Naimuddin and Smt. Zebunisha on account of demand of dowry and that it was also told to him that Kamarjahan was also being taunted by aforesaid accused persons for less dowry. This witness has also confronted with statement Ex.PW9/DA on the fact that he had stated to the police in his statement that once he had received telephone call of Kamarjahan and she had told him that behaviour of aforesaid accused persons was not good with her on account of demand of dowry.
61.PW10 Sh. Navin Kumar Saxena, Superintendent Central Jail, Tihar, New Delhi, is a material witness. This witness has deposed that on 21.01.2010, he was posted SC No.25/2010 State Vs. Nadeem and others 22/67 as SDM Shahdra, Delhi and he was informed about the incident of present case by the police of P.S. Jyoti Nagar, that one lady is admitted in GTB Hospital. This witness had reached there at about 01:30pm and found dead body of Kamarjahan in mortuary. S.I. Rakesh Yadav, P.S. Jyoti Nagar had produced Mohd. Irshad and Smt. Anwari before him. This witness had interrogated them and recorded their statements vide Ex.PW2/B and Ex.PW3/B respectively. This witness had made endorsement on the aforesaid statements addressing to SHO to taken action as per law at point 'Y' and whatsoever aforesaid PWs told him same was recorded in their statements.
62.This witness had completed inquest proceeding with the help of S.I. Rakesh Yadav by filling up inquest form Ex.PW10/A which bears his signature and seal at point X. Dead body was identified by PW Mohd. Irshad and Smt. Anwari vide statements Ex.PW2/A and Ex.PW3/A respectively. This witness had filled up request for postmortem, Ex.PW10/B which bears his signature and seal at points X and Y. Aforesaid inquest papers along with other relevant documents were sent to concerned doctor for postmortem. Thereafter, this witness had directed S.I. Rakesh Yadav to hand over the dead body to its legal heirs.
63.On the same day, this witness had reached at the spot i.e. ground of Guru Harikishan Public School, Jyoti ColonyKabir Nagar, Delhi along with one police official and he had inspected the place from where Kamarjahan had been lifted by the public persons and it came into his notice that she had fallen from the roof of SC No.25/2010 State Vs. Nadeem and others 23/67 third floor.
64.In his cross examination by ld. defence counsel, this witness has deposed that at the time of recording of statement of PW Mohd. Irshad his wife Smt. Anwari was present there in the mortuary of GTB Hospital and PW Mohd. Irshad was also present at the time of recording of statement of PW Smt. Anwari in the same room at some distance and he had taken approximately one hour in recording statement of both PWs. This witness has further deposed that he had not met any of the in laws of deceased when he was in hospital. This witness has deposed that the inquest papers were filled up with the assistance of the I.O. and the statement Ex.PW2/A and Ex.PW3/A regarding identification of dead body had been recorded at the mortuary by the I.O. This witness has further deposed that the statement Ex.PW2/B and Ex.PW3/B were recorded by him in his own hand.
65.PW11 HC Krishan Vir, is a formal witness being MHC(M). This witness has deposed that on 10.02.2010 S.I. Rakesh Yadav, had handed over one sealed box containing viscera material along with sample seal to him to deposit the same in Malkhana. He had also handed over one copy of seizure memo to him and he had taken custody of aforesaid sealed parcels etc. and made entry as per the copy of seizure memo at serial No.123/10 in register no.19 vide Ex.PW11/A.
66.This witness has further deposed that on 27.04.2010, aforesaid sealed parcels, sample seal, forwarding letter etc. were sent to FSL through Ct. Devender for SC No.25/2010 State Vs. Nadeem and others 24/67 analysis vide RC No.7/21/10. This witness had made endorsement at register no. 19 to this effect vide Ex.PW11/B. Ct. Devender, had handed over one receipt to him regarding depositing sealed parcels etc. to dealing clerks at FSL vide copy of RC Ex.PW11/C. This witness has further deposed that so long as aforesaid sealed parcels etc. remained in his custody nobody tampered with them and expert opinion is still awaited as per register no.19. (OSR).
67.PW12 Ct. Satender Singh. This is the witness of arrest of accused Naimuddin. This witness has proved arrest memo Ex.PW12/A and personal search memo Ex.PW12/B of accused Naimuddin. This witness has been cross examined by Ld. APP for the State. In his cross examination by ld. APP for the State, this witness admits that police had recorded his statement on 24.02.2010 and accused Naimuddin was arrested at about 1:00 p.m.
68.PW13 S.I. Rakesh Yadav. This witness has deposed that on 22.01.2010, at about 11:50am, copy of DD No.23B, Ex.PW13/A was assigned to him to take action into the matter, which was in connection of death of Smt. Kamar Jahan in GTB Hospital. This witness along with HC Sunil reached in the mortuary, Sh. Naveen Kumar Saxena, SDM was also present there. SDM completed inquest proceeding and this witness had assisted him. Some writing work was done by him on the direction and dictation of SDM during inquest proceeding. Dead body was identified by PW Mohd. Irshad and Smt. Anwari, vide their statements Ex.PW2/A and Ex.PW3/A respectively.
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69.This witness had filled up inquest form Ex.PW10/A and he had also filled up inquest for postmortem Ex.PW10/B. Thereafter, aforesaid inquest papers along with copy of DD No.11A Ex.PW13/B, copy of DD No.23B already Ex.PW13/A, statement of Nadeem recorded by HC Sunil Kumar Ex.PW13/C, MLC of Kamar Jahan Ex.PW13/D, photocopy of statement of Mohd. Irshad Ex.PW13/E, photocopy of statement of Smt. Anwari Ex.PW13/F, carbon copy of death certificate of Kamar Jahan Ex.PW13/G and death summary Ex.PW13/H were sent to concerned doctor for postmortem examination and on the same day postmortem examination was conducted vide postmortem report Ex.PW13/I. After postmortem dead body was released for burial to father of deceased Kamar Jahan vide Ex.PW2/C.
70.During the course of investigation, this witness had seized sealed parcels containing viscera material of deceased vide seizure memo Ex.PW13/J on being produced before him by mortuary staff along with sample seal.
71.This witness has further deposed that SDM had left the mortuary at about 03:10pm and he had directed him to hand over the dead body to its legal heirs on the completion of postmortem. SDM had also handed over to him statement of PWs Mohd. Irshad and of Smt. Anwari Devi, Ex.PW2/B and Ex.PW3/B respectively at the time of leaving the mortuary.
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72.This witness along with HC Sunil Kumar etc. left the mortuary and reached at P.S. where he had deposited sealed parcel of viscera along with sample seal to MHC(M) HC Kishanvir. So long as aforesaid sealed parcel etc. remained in his custody nobody tampered with them.
73.This witness had handed over the statement PWs Mohd. Irshad and Smt. Anwari before SHO Ins. K.K. Upadhyay as directed by SDM. This witness had made endorsement addressing to D.O. to register the FIR for offence punishable u/s 498 A/304B IPC after going through the contents of statements and endorsement of SDM. Endorsement made by Insp. K.K. Upadhyay vide Ex.PW13/K. This witness has been cross examined by ld. defence counsel at length.
74.PW14 ASI Gurnam Singh. This is also the witness of arrest of accused Naimuddin. This witness has proved arrest memo Ex.PW12/A and personal search memo Ex.PW12/B of accused Naimuddin.
75.PW15 HC Rajender Singh. This is the witness of arrest of accused Smt. Zaibunisha @ Sanno. This witness has proved the arrest memo Ex.PW15/A and personal search memo Ex.PW15/B of accused Smt. Zaibunisha. This witness has deposed that ASI Suchitra Sharma had taken personal search of accused Smt. Zaibunisha @ Sanno. Thereafter, ASI Suchitra had taken aforesaid accused to GTB for medical examination.
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76.In his cross examination by ld. defence counsel, this witness has denied that accused Zaibunisha @ Sanno was not arrested in the manner and from the place as stated by him before this Hon'ble Court.
77.PW16 ASI Suchitra. This witness has deposed that on 24.02.2010,she had joined investigation of the present case along with Insp. K.K. Upadhyay and HC Rajender and they reached at the house of accused Smt. Zaibunisha @ Sanno on receiving secret information at about 11.40 am and arrested her on the pointing out of secret informer at the place of her house i.e, B242/5, Kabir Nagar, Delhi and IO directed her to take the personal search of aforesaid accused and she had taken the personal search of accused as per rule. In her presence IO had prepared arrest memo Ex. PW15/A and personal search memo Ex. PW15/B and accused Smt. Zaibunisha @ Jubuesha Sanno was taken to GTB Hospital where she was medically examined. This witness has further deposed that they had produced accused Smt. Zaibunisha @ Jubuesha @ Sanno before the court on the same day and Ld. MM sent her to J/C.
78.In her cross examination by ld. defence counsel, this witness has denied that accused Smt. Zaibunisha @ Sanno was not arrested in the manner and from the place as stated by her before this Hon'ble Court. This witness denied that she is deposing falsely.
79.PW17 HC Sunil Kumar. This witness has deposed that on 21.01.2010, he was on SC No.25/2010 State Vs. Nadeem and others 28/67 emergency duty at Police Station Jyoti Nagar and during his duty at about 04:30pm copy of DD No.11/A already Ex.PW13/B was assigned to him by DO. This witness along with Ct. Bijender reached at the spot i.e. Guru Harkishan Public School, Loni Road, Shahdara where one chowkidar of aforesaid school, namely, Amarjeet met them and he told him that no quarrel had taken place there as mentioned in DD. It was told by him that one lady had jumped. He again said, one lady had fallen down from the roof towards playground of school. It was also told by him that lady was taken GTB Hospital by public persons by a private van.
80.This witness along with Ct. Bijender reached in GTB Hospital and he collected MLC of injured Kamarjahan, already Ex.PW13/D, upon which injured had been declared unfit to make statement by the doctor. This witness had informed to SHO on phone about the facts of this case. Some persons had met him in the GTB Hospital, who told him that incident had taken place within 2 ½ years of marriage of injured. This witness had also informed the SDM about incident on phone and kept pending DD No.11A as no witnesses of incident had met him in GTB Hospital. SHO and SDM had come in GTB Hospital. They both had interrogated the parents of injured in GTB Hospital. Nadeem had met him in GTB Hospital prior to arrival of SHO and SDM.
81.This witness had interrogated him and recorded his statement already Ex.PW13/C. On 22.01.2010, this witness had handed over the aforesaid statement, copy of DD No.11/A and MLC of injured to S.I. Rakesh Yadav.
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82.In his cross examination by ld. defence counsel, his statement Ex.PW17/DA was confronted on the fact that injured was taken to GTB Hospital by the public persons in a private van.
83.PW18 Ct. Devender. This is a formal witness. On 27.04.2010, this witness had taken one sealed box containing viscera material along with sample seal and forwarding letter from the custody of MHC(M) to FSL, Rohini, for analysis vide RC No.7/21/10 and deposited the same to dealing clerk there and returned to P.S. This witness had handed over the receipt to MHC(M)/HC Krishanvir regarding depositing of aforesaid parcel. So far as sealed parcels remained in his custody nobody tampered with them.
84.PW19 Inspector K.K. Upadhyay is a material witness being I.O. this witness has deposed that on 23.01.2010, he was posted at P.S. Jyoti Nagar, Delhi and on that day, S.I. Rakesh Yadav handed over him the statements of Mohd. Irshad and Smt. Anwari dated 22.01.2010 which were recorded by Sh. Naveen Kumar Saxena, SDM, Shahdara, Delhi upon which he made endorsement addressing to SHO, P.S. Jyoti Nagar for necessary action as per law. This witness had gone through aforesaid statements and made endorsement, upon the statement of Mohd. Irshad, addressing to duty officer to register the case u/s 498A/304B IPC and to hand over the investigation to him which is Ex.PW13/K. This witness had presented the statement of Mohd. Irshad, Ex.PW2/B before DO/WASI Suchitra Sharma, who SC No.25/2010 State Vs. Nadeem and others 30/67 had got typed the FIR through computer operator, Ex.PW19/A. This witness had identified her signature in official capacity. Thereafter, this witness had taken investigation of this case in his hand.
85.During the course of investigation, this witness along with HC Sunil Kumar reached at the spot i.e. Playground of Guru Harkishan Public School, Jyoti Nagar, Loni Road, Delhi and inspected scene of crime at the instance of chowkidar of that school, namely, Amarjeet Singh and prepared site plan, Ex.PW19/B. This witness had indicated A point in the site plan to show the place where injured had fallen and point2 to show the roof from where injured had fallen. Thereafter, this witness had recorded statement of aforesaid chowkidar.
86.During the course of investigation, on 27.01.2010, complainant Mohd. Irshad had come at P.S. and produced one marriage CD of deceased Kamarjhan with accused Nadeem, Ex.P1 photocopy of Nikahnama Ex.P2, photocopy of Nikahnama (from the record of Masjid) Mark XX, photocopies of passbook Mark X4 and X5, photocopy of list of dowry articles Mark X1 to X3, photocopy of receipts regarding purchasing of dowry articles etc. Mark X6 to X25 and sixteen photographs of aforesaid marriage are collectively Ex.P4. Same were taken on record by this witness vide seizure memo Ex.PW2/D. This witness had made search of accused Nadeem, Naimuddin and Jubunesha @ Sanno and Shamshu at the instance of complainant but in vain on that day.
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State Vs. Nadeem and others 31/67 87.During the course of investigation, on 23.02.2010, at about 09:45pm at the
instance of secret informer accused Nadeem was arrested vide arrest memo Ex.PW1/A and personal search memo Ex.PW1/B. This witness has proved disclosure statement of accused Nadeem vide Ex.PW1/C.
88.On next day, accused Nadeem was taken out from the lockup of P.S. Gokalpuri and this witness along with HC Gurnam Singh and Ct. Satender made search of his coaccused persons at his instance. During search, at about 12:30pm, at the instance of accused Nadeem, Naimuddin, father of accused Nadeem was arrested vide arrest memo Ex.PW2/A and personal search memo Ex.PW2/B.
89.During the course of investigation, on 26.02.2010, this witness had produced accused Nadeem and Naimuddin before the concerned court and they were sent to JC. This witness had deputed S.I. Rakesh Yadav to assist the SDM for inquest proceedings of this case as HC Sunil earlier was dealing with DD No.11A.
90.During the course of investigation, on 24.03.2010, this witness along with WASI Suchitra Sharma and HC Rajender reached at Gali No.03, in search of accused persons where secret informer met them and he told that accused Smt. Jebunisha @ Sanno was present in her house. Thereafter, they reached at the gate of H.No.B242/5, Kabir Nagar, Delhi, where, accused Jebunisha @ Sanno was sitting in the Gali in front of her house. This witness had arrested her on the pointing out of secret informer vide arrest memo Ex.PW15/A and personal search memo SC No.25/2010 State Vs. Nadeem and others 32/67 Ex.PW15/B. Personal search of accused Smt. Jebunisha @ Zaibunisha @ Sanno was taken by WASI Suchitra Sharma. This witness had interrogated accused Smt. Smt. Jubuesha and on the same day accused Smt. Zaibunisha @ Jubuesha @ Sanno was produced before the court after her medical examination and from there she was sent to JC. This witness had recorded statement of WASI Suchitra Sharma and HC Rajender. This witness had correctly identified all the three accused present in court. This witness had also made efforts to search named accused Shamshu @ Shamshuddin till 13.04.2010 but he could not be traced. Next day, this witness was transferred to P.S. Harsh Vihar, hence, he handed over the case file to MHC(R) of P.S. Jyoti Nagar.
91.In his cross examination by ld. defence counsel, this witness has deposed that S.I Rakesh Yadav had presented statement of Mohd. Irshad Ex.PW2/B before him at P.S. at about 09:00pm on 22.01.2010 and he had handed over the same to DO on 23.01.2010 at about 10:00am for registration of FIR. This witness had received the copy of FIR along with rukka at about 11:00am on 23.01.2010. This witness has further deposed that they had reached in the playground of Guru Harkishan Public School, Loni Road, Shahdara, Delhi at about 11:30am by a govt. vehicle.
92.PW20 Inspector Jaipal Singh is a material witness being 2nd I.O. This witness has deposed that on 16.04.2010, investigation of the present case was assigned to him by the order of Sr. Police Officials. This witness has deposed that he had collected case file from MHC(R) and had gone through the same and by that time accused SC No.25/2010 State Vs. Nadeem and others 33/67 persons were in custody and major part of the investigation had already been completed by the previous I.O. Inspector K.K. Upadhyay and others.
93.This witness has further deposed that on 27.04.2010, sealed parcels of this case along with sample seal, forwarding letters were sent to FSL, Rohini, Delhi for analysis through Ct. Devender after taking out from the custody of MHC(M) HC Kishanvir and he had recorded statement of Ct. Devender and HC Kishan Vir after depositing the sealed parcels of this case.
94.During the course of investigation, on 06.05.2010, this witness had recorded statement of PW Imran Ali (brother of deceased) u/s 161 Cr. P.C.
95.During the course of investigation, on 19.05.2010, this witness had completed investigation and prepared charge sheet against accused persons namely Nadeem, Naimuddin and Smt. Jabunisha @ Sanno, present in court correctly identified.
96.This witness has proved supplementary charge sheet in respect of FSL report dated 23.05.2012 vide Ex.PW20/A and forwarding letter of the aforesaid report vide Ex.PW20/B.
97.In his cross examination by ld. defence counsel, this witness had denied that statement of PW Imran was not recorded correctly by him or that witnesses have been introduced in this case wrongly and falsely by him in view to create a false SC No.25/2010 State Vs. Nadeem and others 34/67 case against accused persons namely Nadeem, Naimuddin and Smt. Jebunisha. STATMENT OF ACCUSED PERSONS U/S 313 CR. P.C.:
98.After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. was recorded wherein all the accused persons denied all the allegations and evidences and circumstances put to them.
99.Accused persons have deposed that they are innocent and falsely implicated in the present case. They had nothing to do with the incident and they had never demanded, nor taken any dowry from Kamarjahan or her family members. As a matter of fact, Kamarjahan was suffering from mental illness and for which she had been taking treatment even before her marriage with accused Nadeem. They had also supported her in her illness and tried to get her treated from various hospitals like Holy Family, I.H.B.A.S. The medical records are already on record and have been duly verified by the police. The incident had taken place due to her unstable mental state. Sahil @ Naved had taken her to GTB Hospital, where, they had met the police and statement of Nadeem was also recorded. Accused has further deposed that all the PWs have deliberately concealed the facts of illness of Kamarjahan to make out a false case against them.
100.All accused persons has preferred to lead defence evidence. DW1 Babu Khan and DW2 Saleem were examined as defence witnesses.
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101.DW1 Babu Khan, this witness is the brotherinlaw (Jija) of Irshad Ali and he is also a cousin brother of Irshad Ali and reside in his neighbourhood. This witness has further deposed that Kamar Jahan was his niece and she was very good natured and well behaved girl. Since her childhood she was suffering with mental illness because of which she used have fits and used to become out of control and used to be controlled only after prolonged efforts. Deceased was under treatment by some mulla, molvi for the illness by her parents. Due to this reason she was facing some problem for her marriage. Marriage between Kamar Jahan and accused Nadeem was settled in his presence and same was performed in a community hall at Sadiq Nagar as per Muslim Customs in his presence and after marriage, Kamar Jahan was living at her matrimonial house in peaceful and happy manner.
102.This witness has further deposed that on 06.09.2008 when he had gone to Holy Family Hospital, where Kamar Jahan met him and he asked her why she had come, then she replied that she was happy and also stated him that her inlaws are keeping and treating her well despite her illness. She had further informed that she had come to the hospital along with her brother Irfan with regard to her treatment. Complainant Irshad also used to tell him during conversation that in laws of Kamar Jahan are very good and he had find a good relative and Kamar Jahan was very happy.
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103.This witness has further deposed that on 21.01.2010, from his relative in Tuglakabad, he had come to know that Kamar Jahan had jumped from roof of her matrimonial house. This witness has further deposed that he cannot say how and why she had jumped and as per his understanding it is quite possible that she had jumped from the roof under influence of her fits and as per his knowledge, allegations of complainant against accused persons are baseless.
104.DW2 Saleem, this witness has deposed that accused Nadeem and his family members are known to him for last about 12 years being his neighbours and he had attended the marriage of accused Nadeem with Kamar Jahan which was performed in community centre at Sadiq Nagar, New Delhi. After the marriage, he had talked with Kamar Jahan on 23 occasions where she had told him that she is very happy in her matrimonial house and she was getting love and affection much more than what she used to get in her own family. This witness had accompanied the family of accused Nadeem with deceased one or twice on the occasion of anniversary. Deceased Kamar Jahan was happy with the family of accused Nadeem at her matrimonial home. This witness has further deposed that he had received phone calls from accused Nadeem and he used to tell him that Kamar Jahan was not mentally fit and sometimes she used to eating the food and sometimes she hunger herself for 23 days and that she used to jump continuously on the bed. This witness had accompanied accused Nadeem and his family members along with Kamar Jahan to hospital for her treatment whenever she used to become ill due to fits.
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105.This witness has further deposed that on 21.01.2010, he had received a phone call of his neighbour and he had told him that deceased Kamar Jahan had jumped from roof of her matrimonial house. This witness has deposed that he believe that she had jumped from the roof under the influence of her illness. This witness has further deposed that accused persons are not responsible for death of deceased Kamar Jahan. This witness has further deposed that he had not heard at any point of time that accused persons had demanded any dowry from the deceased and her family during her life time.
106. After examination of DW's, D.E. was closed and case was listed for arguments. ARGUMENTS:
107.Ld. APP for state, Sh. Zenual Abedeen argued that on the statement of PW Irshad Ali, father of deceased Ex.PW1/A before the SDM present FIR Ex.PW6/C u/s 498A/304B IPC was registered at PS New Usmanpur. Accordingly, three accused persons namely Nadeem, Naimudeen and Smt. Jubuehsa @ Zaibunisha @ Sanno were arrested and booked for the offences u/s 498A/304B/34 IPC. Ld. APP for State submits that statement of father of deceased is sufficient to prove the case of prosecution. Ld. APP for the State further submits that since the statement of father of deceased support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 498A/304B/302/34 IPC. SC No.25/2010
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108.Ld. APP for the State further argued that (1) Kamar Jahan (deceased) was married with accused Nadeem on 26.12.2007 and date of incident is i.e. 22.01.2010 within the seven years of marriage, (2) cruelty, (3) unnatural death and (4) soon before death.
109.Ld. APP for the State has further argued that demand of dowry abated deceased to commit suicide and due to demand of dowry she was under fear of death. Accused have drive the deceased to commit suicide.
110.Ld. APP for the State further argued that PW Irshad Ali, father of deceased Kamar Jahan is a important witness who had deposed regarding continuous harassment for not bringing adequate dowry and given beatings to deceased Kamar Jahan.
111.Ld. APP for the State further argued that there is a demand of Rs.1,00,000/ from all the accused persons.
112.Ld. APP for the State further argued that PW Anwari, mother of deceased had deposed on the same footings as deposed by PW Irshad Ali.
113.Ld. APP for the State further argued that PW7, PW8, PW9 and PW11 have deposed on similar footings as deposed by PW Irshad Ali. SC No.25/2010
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114.Ld. APP for State further argued that statements of PW1 and some other PWs are sufficient to convict the accused persons for offences charged as prosecution has proved its case beyond reasonable doubt. On these grounds, Ld. APP for the State has submitted that there are sufficient evidence to convict the all accused persons.
115.During the course of arguments, counsel for complainant had filed written submissions and he had pressed his arguments basically on the three aspects that marriage, death of deceased within seven years of marriage and unnatural death of deceased is not disputed.
116.Ld. counsel for complainant further submitted that presumption has been raised against all the accused persons that they had committed dowry death of deceased.
117.On the other hand Ld. counsel for accused persons argued that case was registered on 23.01.2010 u/s 304B/34 IPC r/w 498A/406 IPC. Deceased suffered injuries on 21.01.2010 and died on 22.01.2010 at about 9:00 or 10:00 a.m. Case of prosecution is that accused persons used to harass deceased on account of demand of dowry of Rs. 7 lacs.
118.Ld. counsel for accused persons further argued that marriage of accused Nadeem with Kamar Jahan (deceased) was taken place on 26.12.2007. 20 PWs were examined and after statement of accused persons two DWs were examined. SC No.25/2010
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119.Ld. counsel for accused persons further argued that FIR does not disclose the fact of 304B IPC i.e. soon before death on account of demand of dowry. Statement u/s 161 Cr. P.C. are vague. Deceased was under treatment for psychiatric and due to fit on account of psychiatric problem she had jumped from the roof of her matrimonial home.
120.Ld. counsel for accused persons further argued that documents mark 'X' filed on record by PW2 cannot be read in evidence. Further, same had been prepared. Out of Rs.7.00 lacs, Rs.2.50 lacs were given at the time of marriage and further on three various occasion Rs.1.10 lacs, Rs.65,000/ and Rs.50,000/ were also given but no date is mentioned by the complainant.
121.Ld. counsel for accused persons further argued that statement of complainant Ex.PW2/B has been confronted on various points.
122.Ld. counsel for accused persons further argued that PW3 in her testimony states that she had received telephone call at about 4:30 p.m. on 21.01.2010 from police station Jyoti Nagar and PW2 also repeat the same which is not possible at the same time. PW3 has further deposed that accused Naimuddin and Shamshuddin had asked them to keep deceased with them but no demand had been made by them.
123.Ld. counsel for accused persons pointed out that as PW3 Smt. Anwari states that deceased was graduate but PW2 states that she was 12th standard passed. SC No.25/2010
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124.Ld. counsel for accused persons further argued that allegations of cruelty are there and on other hand it is also on record that all the expenses of delivery of Rehan, son of deceased had been incurred by the accused persons.
125.Ld. counsel for accused persons further argued that document Ex.PW10/A at Column No.7 reflects alleged history of fall from roof, as per MLC, as column No. 13 due to fall from roof, column No.20, 21 shows that she was suffering from depression and as defence this fact has been stated by themselves.
126.Ld. counsel for accused persons further argued that as per prosecution accused persons had pushed deceased from the roof. PW2 has concealed the fact that deceased was suffering from mental illness. PW3 in his cross examination has deposed that no family member of inlaws of deceased met with her and this witness was not aware as to by what vehicle she had travelled back. Statement of PW3 is contradictory.
127.Ld. counsel for accused persons further argued that PW4 Hasan Ali is a interested witness being close relative of complainant and he is a hearsay witness. As per PW4, after 34 days he was called by Irshad Ali but he further states that after about 45 months of marriage he along with Irshad Ali, Irfan visited the house of accused. Statement of this witness has been confronted. SC No.25/2010
State Vs. Nadeem and others 42/67
128.PW5, this witness had visited the house of deceased 45 months after marriage of his daughter namely Shahana whereas his daughter was married on 05.12.2009. That means relations between this witness and complainant.
129.As per fact no demand of dowry has been brought on record. No nature of demand of dowry has been established. PW5 has stated that he had gone along with Irshad Ali to police station whereas Irshad had stated that he had gone alone on 21.01.2010. This witness along with two persons had visited the house of accused by an Alto car, which is claimed to be given as dowry, but same is in the name of Irshad/complainant that does not comes under the definition of dowry. Statement of this witness has been confronted.
130.Ld. counsel for accused persons further submits that copy of CD has not been supported neither CD maker has been brought in dock hence, it should not be read in evidence.
131.PW6 states that deceased after 34 months, whenever she used to come, she used to complaint that her inlaws had been demanding dowry and asking her to bring more dowry whereas PW2 states that she used to come at the gap of 15 days. Statement of this witness is also confronted.
132.As whereas no one from the family of deceased was present in GTB Hospital but I.O. states that he had recorded the statements of PWs. As per PW6 accused SC No.25/2010 State Vs. Nadeem and others 43/67 Nadeem used to go early to his shop and used to return in the late night. PW7 Irfan Ali is contradictory to PW1 ASI Tahir Hussain and PW2 Irshad Ali that deceased used to come after 34 months of her marriage. There is no complain that accused would kill her. PW7 states in his cross examination that he cannot tell any date of any his visit to the matrimonial house of his sister, however, all these visits wee before the delivery of child how the question of soon before death arise.
133.Ld. counsel for accused persons further argued that phone is the same which is mentioned in document issued by Holy Family Hospital.
134.Ld. counsel for accused persons further argued that PW8 states that she had been fallen and all the buildings were 5 storey and 3 storey as per PW5.
135.PW9, this witness had gone with Irshad and is the witness of payment of Rs. 50,000/ and Rs.65,000/ but without date. This witness in his cross examination states that all inlaws of Kamar Jahan were present in GTB Hospital on 21.01.2010.
136.Ld. counsel for accused persons pointed out towards cross examination of PW19 Inspector K.K. Upadhyay where he has deposed that he had verified medical papers of deceased produced by the accused persons on the direction of court and it came into his notice that deceased Kamar Jahan was under treatment of psychiatric and neuro. No objection has been raised by Ld. APP nor counsel for complainant. SC No.25/2010
State Vs. Nadeem and others 44/67
137.Ld. counsel for accused further argued that accused persons had never demanded any dowry and Sahil had remained at GTB Hospital along with them.
138.Ld. counsel for accused persons further argued that prosecution has been failed to bring home case u/s 498A IPC or basic ingredients are missing. PWs are interested, contradictory, vague and inconsistent, hence, their testimony become unreliable being family members.
139.Ld counsel for accused persons further argued that prosecution has proved death in unnatural circumstances and within seven years but prosecution has not proved subjected cruelty or harassment by accused persons u/s 498A IPC, soon before death u/s 304B IPC and no evidence of cruelty or harassment soon before death.
140.Ld. counsel for accused persons has relied upon following citations :
a. Raja Ram v. State of Rajasthan, IV (2000) CCR 111 (SC);
b. State of Haryana v. Ram Singh, 2002 AIR(SCW)219;
141. On these grounds, ld. counsel for accused persons has prayed for acquittal of all the accused persons from the charges.
PERUSAL OF RECORD/OPINION:
142.Arguments heard. Record perused. On perusal of record it is revealed that on SC No.25/2010 State Vs. Nadeem and others 45/67 21.01.2010 a DD No.11A Ex.PW13/B was recorded at police station Jyoti Nagar regarding quarrel and said DD was marked to HC Sunil Kumar for investigation.
On receipt of this DD, HC Sunil Kumar along with Ct. Bijender reached at the spot i.e. Guru Harkishan Public School, Loni Road, Shahdara where one chowkidar of aforesaid school namely Amarjeet met them and he told them that one lady had fallen down from the roof towards playground of school and she has been taken to GTB Hospital by public persons. Thereafter, HC Sunil Kumar along with Ct. Bijender reached at GTB Hospital and collected MLC of injured Kamar Jahan vide Ex.PW13/D wherein injured was declared unfit to make statement by the doctor. Thereafter, HC Sunil Kumar had informed to SHO about the facts of this case. It came into his notice that incident had taken place within 2 ½ years of marriage of injured, hence HC Sunil Kumar had also informed the SDM about the incident on phone. SDM and SHO had come in GTB Hospital and they had interrogated the parents of injured in the hospital. HC Sunil Kumar had recorded statement of Nadeem, husband of injured vide Ex.PW13/C. Thereafter, investigation of the present case was handed over to S.I. Rakesh Yadav.
143.It is further revealed that on 22.01.2010, copy of DD No.23B Ex.PW13/A was assigned to SI Rakesh Yadav which was in connection of death of Smt. Kamar Jahan in GTB Hospital. SI Rakesh Yadav along with HC Sunil reached in the mortuary of GTB Hospital. SDM completed inquest proceeding and SI Rakesh Yadav assisted him. Dead body was identified by PW Mohd. Irshad and Smt. Anwari vide their statements Ex.PW2/A and Ex.PW3/A respectively. SC No.25/2010
State Vs. Nadeem and others 46/67
144.On perusal of record, it is further revealed that SI Rakesh Yadav had filled up inquest form Ex.PW10/A and made request for postmortem vide Ex.PW10/B. Thereafter, aforesaid inquest papers along with copy of DD No.11A Ex.PW13/B, copy of DD No.23B Ex.PW13/A, statement of Naeem recorded by HC Sunil Kumar Ex.PW13/C, MLC of Kamar Jahan Ex.PW13/D, photocopy of statement of Mohd. Irshad Ex.PW13/E, photocopy of statement of Smt. Anwari Ex.PW13/F, carbon copy of death certificate of Kamar Jahan Ex.PW13/G and death summary Ex.PW13/H were sent to concerned doctor for postmortem examination and postmortem was conducted vide postmortem report Ex.PW13/I and after postmortem dead body was released for burial to father of deceased Kamar Jahan vide Ex.PW2/C. SI Rakesh Yadav had seized parcels.
145.On perusal of record, it is further revealed that SDM had recorded statement of PWs Mohd. Irshad and of Smt. Anwari Devi, parents of deceased vide Ex.PW2/B and Ex.PW3/B respectively and directed SHO PS Jyoti Nagar for necessary action as per law. On the basis of statement of PW Mohd. Irshad Ex.PW2/B, FIR Ex. PW19/A u/s 498A/304B IPC was recorded at police station Jyoti Nagar.
146.On perusal of record, it is further revealed that I.O. had prepared site plan Ex.PW19/B at the instance of Amarjeet Singh, chowkidar of Guru Harkishan Public School, Jyoti Nagar, Loni Road, Delhi.
SC No.25/2010
State Vs. Nadeem and others 47/67
147.On perusal of record, it is further revealed that during the course of investigation, on 27.01.2010, complainant Mohd. Irshad had come at P.S. and produced one marriage CD of deceased Kamarjhan with accused Nadeem, Ex.P1 photocopy of Nikahnama Ex.P2, photocopy of Nikahnama (from the record of Masjid) Mark XX, photocopies of passbook Mark X4 and X5, photocopy of list of dowry articles Mark X1 to X3, photocopy of receipts regarding purchasing of dowry articles etc. Mark X6 to X25 and sixteen photographs of aforesaid marriage are collectively Ex.P4 and same were seized by the I.O. vide seizure memo Ex.PW2/D.
148.On perusal of record, it is further revealed that accused Naimuddin was arrested vide arrest memo Ex.PW12/A and his person search was conducted vide personal search memo Ex.PW12/B, accused Zaibunisha @ Sanno was arrested vide arrest memo Ex.PW15/A and her personal search was conducted vide personal search memo Ex.PW15/B and accused Nadeem was arrested vide arrest memo Ex.PW1/A and his personal search was conducted vide personal search memo Ex.PW1/B.
149.On perusal of record, FSL Report Ex.PW20/A revealed that metallic poisons, ethyl and methyl alcohol, cyanide phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A, 1B, 1C and 1D.
150.During the course of perusal of record, written submissions on behalf of complainant perused. On perusal of written submissions, it is revealed that SC No.25/2010 State Vs. Nadeem and others 48/67 categorically deposition of PWs highlights the following facts :
i. The deceased was married to the accused Nadeem in the year 2007 and the accused Naimudeen is fatherinlaw of deceased while accused ZaibunNisha @ Sanno is the motherinlaw of the deceased.
ii. At the time of marriage of the deceased with the accused No.1, large amount of dowry was given to the family of the accused. After the marriage, the deceased was subjected to continuous cruelty/harassment by all the accused persons pertaining to the lust of more dowry demands.
iii. The deceased was continuously under the threat that she might be killed by the accused persons pertaining to dowry demands.
iv. Soon before the death of the deceased, she was being subjected to cruelty/harassment by all the accused persons.
v. The accused persons had killed her pertaining to dowry demands.
vi. The death of the deceased had taken place within 7 years of her marriage and the death was unnatural. The death took place in the matrimonial house of deceased, i.e. house of the deceased.
151.On perusal of record, it is further revealed that medical documents pertaining to treatment of deceased Kamar Jahan in respect of mental illness records goes to show that OPD card for Psychiatric treatment dated 05.12.2008 onwards upto 01.01.2009 in respect of treatment of Kamar Jahan from Institute of Human Behaviour & Allied Sciences. Similarly other medical documents issued from Holy Family Hospital, Sant Parmanand Hospital, V.B. CT Scan and Angiography SC No.25/2010 State Vs. Nadeem and others 49/67 Centre etc. are also regarding the psychiatric treatment of deceased. In their statement u/s 313 Cr. P.C. All the accused persons has claimed to be innocent and that they had been falsely implicated. They also claimed that they had never demanded any dowry nor taken any dowry from Kamar Jahan or her family members. As a matter of fact Kamar Jahan was suffering from mental illness for which she has been taking treatment even before her marriage and that she was getting treatment from various hospital like Holy Family, I.H.B.A.S. etc. They further submitted that medical records regarding treatment have already been duly verified by the police at the time of bail.
152.Before reaching any conclusion, it will be relevant to discuss section 498A/ 304B/302/34 IPC are being reproduced hereunder:
498A IPC. Husband or relative of husband of woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
304B. Dowry death. (1) Where the death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called SC No.25/2010 State Vs. Nadeem and others 50/67 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation. For the purpose of this subsection, 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for term which shall not be less than seven years but which may extend to imprisonment for life.
Section - 302 IPC "302 Punishment for murder - Whoever commits murder shall be punished with death, or (Imprisonment for life), and shall also be liable to fine."
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
CONTRADICTIONS:
153.From the perusal of record, it has come on record that present case has been registered on the statement Ex.PW2/B of PW Irshad Ali wherein he had put the allegations against accused Nadeem that he had demanded Rs.7 lacs, out of which he had paid Rs.2.50 lacs to him and a Car. In support of his version, PW3 Smt. Anwari, who is mother of deceased also made same complaint against accused Nadeem.
154.During the course of trial, PW Mohd. Irshad and PW Anwari including PW4 Hasan Ali, samdhi of complainant, PW5 Gulam Mohd., samdhi of complainant, PW6 Imran, brother of complainant, PW7 Irfan Ali, brother of complainant and SC No.25/2010 State Vs. Nadeem and others 51/67 PW9 Mohd. Yasin, samdhi of complainant have been examined as material witnesses.
155.On perusal of record, it is also revealed that statement of PWs Irshad, father of deceased Smt. Anwari, mother of deceased, Hasan Ali, and Gulam Mohd. , Mohd.
Yasin, all are the Samdhi of complainant, Imran and Irfan are sons complainant, and brothers of deceased have also been confronted with their statements.
156.As per PW1, accused Naeem had demanded Rs.07 lacs from him in the presence of his Samdhi Yasin and he had given Rs.50,000/, another time Rs.65,000/ again Rs.1,10,000/ to accused Naeem. This witness has further deposed that accused persons used to give beating to his daughter on the demand of dowry and they used to demand Rs. 7 lacs, out of which he had given Rs.2.5 lacs to them. PW7 Irfan Ali states that his father had given Rs.1 lacs to fulfil the demand of dowry which is not corroborated with the statement of PW2.
157.Since there is lot of contradictions in the testimonies of material PWs. PW3 Smt. Anwari, mother of deceased has deposed in her testimony that deceased was graduate where as PW2 states that she was 12th standard passed.
158.PW2 and PW3 have stated in their testimonies that no family members of inlaws of her daughter (deceased) had met her in GTB Hospital whereas PW9 states that all the inlaws of deceased Kamarjahan were also present in hospital when he SC No.25/2010 State Vs. Nadeem and others 52/67 reached there at about 7:00 - 8:00 p.m. on 21.01.2010. MLC Ex.PW13/D also reflects that deceased was got admitted in the GTB Hospital by Sahil, one of family member of inlaws of deceased.
159.PW4 Hasan Ali, PW5 Gulam Mohd., PW6 Imran, PW7 Irfan Ali and PW9 Mohd. Yasin who are the family members of complainant have deposed on the same footings as of PW2 and PW3. Their statement have been confronted in the same manner as of PW2. None of PWs could disclosed the date of cruelty upon the deceased or even could not alleged the time of demand of dowry by the accused persons. All the PWs have leveled common allegations against accused persons without alleging any dates.
160.PW4 in his testimony before court has stated that after 34 months he was called by Irshad Ali, there his daughter and Irshad Ali had told him that there is a quarrel in matrimonial home of Kamar Jahan on issue of less dowry and requested him to accompany to the house of accused Nadeem to make him understand whereas PW in his entire testimony has not stated so. Even PW3 in her entire testimony could not deposed the aforesaid fact. None of material PWs could disclose the date of demand of dowry or of cruelty by accused persons.
161.Further, statement Ex.PW2/B have been confronted at various points. SC No.25/2010
State Vs. Nadeem and others 53/67
162.Since document Ex.PW10/A at Column No.7 reflects alleged history of fall from roof, as per MLC, as column No.13 due to fall from roof, column No.20, 21 shows that she was suffering from depression and in support of his case this fact has been stated by the complainant.
163.PW5 Gulam Mohd. Has stated in his testimony that after about four month of his daughter he find Irshad Ali in a disturb state and on his asking he informed him that inlaw of Kamar Jahan including husband, fatherinlaw, motherinlaw, Uncle have been harassing her for less dowry and he along with Irshad and one more person had visited matrimonial home of Kanwar Jahan whereas this fact has not been disclosed by PW2 and PW3 in their testimony. Further, PW5 in his testimony stated that he had made understand four aforesaid persons not given beatings to Kamar Jahan and not to threaten her to kill for demand of dowry and Irshad Ali had delivered a sum of Rs.1,10,000/ to Nadeem and accused Naimuddin not to harass Kamar Jahan for demand of dowry. This fact has also not been deposed by PW2 and PW3 in their testimonies. This witness further goes to say that he had visited police station to getting FIR registered along with Irshad Ali on 21.01.2010 and that in his presence police had met Irshad Ali in hospital and had made enquries from him. These facts are also absent from the testimony of PW2 and PW3.
164.Further, this witness again goes to say that he along with Irshad Ali and two other persons visited the house of accused persons by an Alto car owned by Irshad ALI SC No.25/2010 State Vs. Nadeem and others 54/67 in the area of Jyoti Nagar in the evening time. This fact is also absent from the testimony of PW2 and PW3. Rest of statement of this witness is confronted by ld. defence counsel.
165.PW6 who is the brother of deceased states that deceased was 12th standard passed whereas PW3 states that she was graduate. PW6 further states that at one point of time Shammi (Chachiya Sasur of deceased) had met him at Sadar bazar and advised him why do not he pay amount to the accused pesrons. If anything happened to deceaed then do not make any complaint to him. Surprisingly this witness has also been failed to disclose the date when Shammi had met him in Sadar bazar and what amount of dowry he had asked him to pay to the accused. This witness had stated that deceased had been thrown from fourth floor of her matrimonial home by the accused persons and Shammi whereas site plan Ex.PW19/B does not corroborated this fact. It reflects that the floor from where deceased was allegedly thrown was the third roof including the ground floor.
166.Further, this witness had stated that he along with his brother Irfan had visited the matrimonial house of his sister (deceased) generally 34 times and she used to reside on third floor those days but PW7 Irfan Ali states the never visited the matrimonial house of his sister with his brother Imran (PW6).
167.PW7 comes with a new fact that lastly before 1520 days of incident, at that time SC No.25/2010 State Vs. Nadeem and others 55/67 Kamar Jahan was not well due to gum problem and she was saying "papa mujha mat bhejo mein lot ke vapas nahi aa paungi" none of PWs either it is complainant or the mother or brothers of deceased, no PWs has stated this fact in their testimony. PW9 Mohd. Yasin, he is the hearsay on the fact of cruelty upon deceased as he told by Nazma, his niece.
168.Since postmortem report has been admitted by ld. counsel for accused persons. Hence, I.O. had exhibited postmortem report and its contents wherein alleged history of fall from height vide MLC No.C272/10 dated 21.01.2010 at 5:00 p.m. has been shown and details of injuries shows lacerated wound of size 2 cm x 1 cm deep present over external aspect of right arm 5 cm above elbow with underlying fracture. Blue colour bruise measuring 12 cm x 10 cm present over geuteal (buttock) region left side.
DEFENCE WITNESSES:
169.Further, DW1 Babu Khan who is jija of complainant has deposed that since her childhood Kamar Jahan (deceased) was suffering with mental illness because of which she used to have fits and used to become out of control and used to be controlled only after prolonged efforts and deceased was under treatment by some mulla, molvi for the illness by her parents. DW2 has deposed that Kamar Jahan was happy with the family of accused Nadeem at her matrimonial home and he had received phone calls from accused Nadeem and he used to tell him that Kamar Jahan was not mentally fit and sometimes she used to eat the food and sometimes she hunger herself for 23 days and that she used to jump continuously on the bed. SC No.25/2010
State Vs. Nadeem and others 56/67 This witness further deposed that he had accompanied accused Nadeem and his family members along with Kamar Jahan to hospital for her treatment whenever she used to become ill due to fits.
170.Further, DW2 Saleem has also deposed that he had talked with Kamar Jahan on 23 occasions where she had told him that she is very happy in her matrimonial house and she was getting love and affection much more than what she used to get in her own family. This witness has further deposed that he had received phone calls from accused Nadeem and accused Nadeem used to tell him that Kamar Jahan was not mentally fit and sometimes she used to eat the food and sometimes she hunger herself for 23 days and she used to jump continuously on the bed. This witness had accompanied accused Nadeem and his family members along with Kamar Jahan (deceased) to hospital for her treatment whenever she used to become ill due to fits.
171.I.O. had verified medical papers of deceased on the direction of Court at the time of bail and it came into his notice that deceased Kamar Jahan was under treatment of psychiatric and neuro.
172.As per the case of prosecution marriage between accused Nadeem and deceased took place on 26.12.2007 and Kamar Jahan died unnatural death on 22.01.2010. Death of deceased within 07 years of her marriage is not disputed. SC No.25/2010
State Vs. Nadeem and others 57/67
173.Since from the testimonies of material PWs, no specific date of cruelty of harassment on account of demand of dowry by the accused persons could come on record. Even it has also not come on record that soon before death deceased was subjected to cruelty or harassment on account of demand of dowry. In this regard, it is pertinent to mention here that no circumstances have been proved by the prosecution connecting the accused subjected to cruelty or harassment upon deceased on account of demand of dowry. Further, from the testimonies of material PWs allegations of cruelty and harassment are contradictory with each other. Hon'ble Supreme Court in case "State of Rajasthan Vs. Teg Bahadur, 2004(8) J.T. 116", has held that:
"Prosecution has to prove 1. The death of married woman was within seven years of marriage. 2. a little prior to death, her husband or relative on point of demand of dowry subjected cruelty to her or harassed her. 3. Prosecution has to rule out the possibility of natural or accidental death so as to bring within purview of "death occurring otherwise then in normal circumstances".
"On the careful scrutiny of the statements of the aforesaid witnesses, it is seen that witnesses have given different statements regarding demand of dowry. According to him, with respect to dowry, dispute was raised at the time of marriage. According to Om Prakash, when Suman returned to her parents' house, she complained about demand of dowry by the inlaws. There is no corroboration about the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under these circumstances, we are of the opinion, that there is lack of evidence to prove the demand of dowry and that the evidence led by the prosecution bristles with discrepancies and contradictions. On the basis of the evidence, it could not be treated to have been proved that actually the accused had made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed."SC No.25/2010
State Vs. Nadeem and others 58/67
174.Since it is established that at the time of marriage there was no demand of dowry.
From the perusal of MLC and postmortem report, both does not suggest any antemortem injury upon the person of deceased except hamorrhagic shock as a result of antemortem injury to chest and pelvis produced by blunt force impact.
The provisions of section 304B IPC has application when death of woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry.
175.The crucial question arise whether there were any cruelty or harassment with the deceased in connection of demand of dowry soon before death?
176.In response to this question none of PWs in their testimony had stated that any complaint had been made to any authority regarding demand of dowry against the accused. Moreover, from the testimony of PWs it is revealed that there are mere general allegations against the accused persons and there is no definite evidence on record regarding harassment or cruelty on account of demand of dowry by accused persons to the deceased at any time having immediate proximity to the death of deceased by the accused persons. Therefore, basic requirement of cruelty or harassment soon before death to bring application of section 304B IPC cannot be said to be met out.SC No.25/2010
State Vs. Nadeem and others 59/67
177.Hon'ble High Court of Delhi in case "Sohan Lal & Others v. State, 2011 (3) JCC 1966," wherein it has held that :
"Deceased died of unnatural death within seven years of her marriage Trial court acquitted the accused as merely because deceased committed suicide in the matrimonial home, no inference could be drawn that it must be an outcome of a cruelty or torturous act committed by the respondents or by any of them - Appeal against acquittal There is no complaint made either to the police or to any other authority regarding any demand of dowry or any harassment allegedly meted out to the deceased during her life time there are contradictions as to the time and manner of the alleged demands, moreover, the evidence is completely lacking to show that any harassment much less than cruelty as envisaged under section 498A was meted out to the deceasedConclusion reached by the trial court cannot be faulted with. Petition dismissed. "Penal code 1860 Sec. 498A - Cruelty The generic statements that deceased was given beatings without specification as to how the beatings were given, whether any object/weapon was used to give those beatings and similarly without the details as to how the deceased was harassed Would be insufficient to hold that the deceased was treated with cruelty within the meaning of Sec. 498A or that the deceased ended her life on account of the said cruelty."
178.Hon'ble High Court of Delhi in case "Rani v. The State of NCT of Delhi, H.R. (2011), Delhi," has observed that :
"To bring home an offence under Section 304B IPC it is an obligation of the prosecution to prove in those cases where death of a woman occurs within 7 years of her marriage that soon before her death, she was subjected to cruelty or harassment by her husband or any other relative, in connection with a demand of dowry. Mere making of demand is not the only prerequisite for proving an offence under Section 304B IPC. The prosecution was thus supposed to prove that the demand made by the accused was coupled with a harassment or cruelty in connection with the demand. Unnatural death can be called a dowry death only if, after making a demand of dowry, the SC No.25/2010 State Vs. Nadeem and others 60/67 accused perpetuates cruelty on the victim so that the demand made by him is got fulfilled by perpetuation of cruelty on the victim. If the alleged demand of dowry is not coupled with cruelty, harassment or any other such act on the part of accused, Section 304B of IPC would not be made out. In this case, none of the three brothers stated that cruelty was perpetuated on Janki or she was harassed by the appellant or by any other relative for not fulfilling the demand. I consider in these circumstances conviction of the appellant under Section 304B IPC was totally illegal and unjust. The conviction seems to be the result of a callous criminal justice system where neither the defence counsel prepared the case nor the prosecution discharged his duty in an impartial manner nor the Judge considered it as his duty to see what offence was made out and everyone acted in a mechanical manner."
179.Before reaching at any conclusion the Section 113 B of the Evidence Act is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry SC No.25/2010 State Vs. Nadeem and others 61/67 Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
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 cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death SC No.25/2010 State Vs. Nadeem and others 62/67 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. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait jacket 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 113B of the Evidence Act.
The expression `soon before her death' used in the substantive Section 304B 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 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 has received the goods knowing them to be stolen, unless he can account for his 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 SC No.25/2010 State Vs. Nadeem and others 63/67 concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law.
180.In order to raise the presumption of dowry death u/s 304B IPC, it must be shown that victim was subjected to cruelty or harassment by the accused persons for or in connection with any demand of dowry soon before her death. Since from the testimonies of material PWs same could not come on record. Hence, presumption under section 113B Evidence Act does not arise.
181.The Hon'ble Apex Court in 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' AIR 2005 SC 785' reiterating and elaborating the similar principles defining section 498A IPC and 304B IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) SC No.25/2010 State Vs. Nadeem and others 64/67 Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred with seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within SC No.25/2010 State Vs. Nadeem and others 65/67 seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
182.From the testimony of material PWs it has also come on record that there is material contradictions in their testimonies and no PWs could disclose exact date of cruelty or harassment on account of demand of dowry by accused. Moreover, all these PWs have made material improvement in their version before the court. As essential ingredients that cruelty must have been committed before death is absent. Hence, offence u/s 304B does not attract.
183.In reference to section 498A IPC no circumstance has been shown by the prosecution indicating any willful conduct on part of the accused causing any cruelty or harassment on account of demand of dowry with any specific date. Allegations levelled by PWs are illusory which does not inspire that any cruelty had been committed upon the victim. Only mere general allegations cannot be put as willful conduct towards demand of dowry or cruelty by the accused.
184.Further, FSL report also does not corroborate the allegations of complainant
185.As far as offence u/s 302 IPC is concerned, it could not be brought on record by prosecution that there was intention on the part of accused persons to commit the murder of deceased rather it is established from the medical documents placed on record that deceased was suffering from mental illness. Hence, jumping by herself under the influence of fits from the house is not ruled out. Hence, offence SC No.25/2010 State Vs. Nadeem and others 66/67 u/s 302 IPC is not made out against accused persons.
186.From the close scrutiny of testimony of material PWs, it has been established that none of them corroborating the fact with each other. Moreover, their statements have been confronted. Since all PWs have impeached their testimony by making improvement before the court. Hence, they cannot be said to be reliable witness. After taking into consideration testimonies of PWs, perusal of record and circumstances, this court at this stage, comes to the conclusion that case of prosecution does not inspire the confidence of this court as prosecution has been failed to prove its charges u/s 498A/304B/302/34 IPC against accused persons namely Nadeem, Naimuddin and Smt. Jubuesha @ Sanno beyond reasonable doubt. Accordingly, this court acquit accused persons namely Nadeem, Naimuddin and Smt. Jubuesha @ Zaibunisha @ Sanno from charges u/s 498A/304B/302/34 IPC by giving them benefit of doubt.
187.In terms of Section 437 (A) Cr. P.C. accused persons namely Nadeem, Naimuddin and Smt. Jubuesha @ Zaibunisha @ Sanno are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room. PRONOUNCED IN THE OPEN COURT ON THIS 07.11.2012.
(RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS, DELHI.
SC No.25/2010
State Vs. Nadeem and others 67/67