Delhi District Court
And Anr. vs . Yadla Srinivasa Rao And Ors., Air 2003 ... on 7 March, 2018
1
IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE
NDPS02(CENTRAL):TIS HAZARI COURTS:DELHI
S.C. No. 27780/2016
FIR No. 296/2004
PS Hauz Qazi
U/s 498A/306/304B/302 IPC
State
Versus
1. Firdos Begum
W/o late Mohd. Hamid,
R/o H.No.1451, Chhata Nawab Shah,
Farash Khana.
2. Mohd. Nasir
S/o Late Mohd. Hamid,
R/o H.No.1451, Chhata Nawab Shah,
Farash Khana.
Date of Institution: 24.02.2005
Date of Judgment : 06.03.2018
JUDGMENT
Smt.Ruksana (since deceased) married Mohd. Nasir (accused) in May 2002. On 28.12.2004, at about 1:00 p.m., at her matrimonial home i.e. H.No.1451 A, Chatta Nawab Kha, Fararurkhana, Delhi, she was found in 2 flames. She died on 31.12.2004, at LNJP hospital due to 100% burns.
2. Case of prosecution is that Smt.Ruksana was subjected to harassment and cruelty by her motherinlaw Smt.Firdos Begum and husband Mohd. Nasir, as a result whereof, she died.
Case of prosecution is that information reached the police, whereupon concerned Sub Divisional Magistrate was apprised of. Police also reached the matrimonial home of Smt.Ruksana and inspected the same.
At the time, Smt.Ruksana was brought to LNJP hospital on 28.12.2014, she apprised the doctor that she was subjected to harassment by her inlaws and therefore, she had taken this step. Dr.Safulla, Junior Resident medically examined Smt.Ruksana and observed 100 per cent burns and further that her clothes were smelling of kerosene.
Sh. Bishan Chandra, SDM reached LNJP Hospital and found Smt.Ruksana lying admitted there in burnt condition. Doctor declared her fit to make statement. Thereupon, Sub Divisional Magistrate recorded her statement wherein, she levelled allegations against her 3 motherinlaw, husband and jeth for subjecting her to harassment. The Sub Divisional Magistrate also recorded statement of brother Mohd. Aslam and father Mohd. Ahsan of Smt.Ruksana. That is how the case was registered.
Inquest proceedings were carried out in respect of dead body of Smt.Ruksana and then dead body was subjected to autopsy.
Case of prosecution is that Mohd. Aslam, brother of the victim, while present at his house I.e. house adjoining the matrimonial home of Smt.Ruksana, heard screams emanating from matrimonial home. Thereupon, he reached the matrimonial house, opened door of a room and found his sister on fire inside. It is also case of prosecution that Firdos Begum accused, motherinlaw was seen present outside the room. On enquiry, she told that Mohd. Nasir, husband of the victim was also there. Mohd. Nasir is said to have run away from the spot on seeing Mohd. Harun.
Spot was inspected by the Crime Team. Both the accused persons were arrested. On completion of investigation, challan was put in court. FSL report was collected.
On completion of investigation, challan was put 4 in court.
3. After compliance with provisions of Section 207 Cr.P.C, case came to be committed to Court of Session.
4. Initially, charge for an offence u/s 498A and 306 read with section 34 IPC was framed against both the accused persons. Ultimately, vide order dated 25.07.2013, my Learned Predecessor observed that as per order dated 12.4.13 charge was to be amended. Accordingly, charge was amended for the offence u/s 304B IPC and in the alternative, for offence u/s 302 IPC.
Since they pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
5. Prosecution examined following 10 witnesses: PW1: Dr.Vinita PW2: HC Nathi Ram PW3: Mohd. Aslambrother of the victim PW4: Mohd. Ahsanfather of the victim PW5: Sh. Bishan Chandra, Retd. SDM PW6: Dr. Vijay Dhankar PW7: ASI Jag Mohan 5 PW8: HC Santa Kumar PW9: Inspector Ashok Kumar PW10: Sh. S.D.Dahiya, Retd. ACP
6. When examined u/s 313 Cr.P.C, the accused persons admitted factum of marriage of Smt.Ruksana but denied all other circumstances appearing in evidence against them. Plea of accused Firdos Begum is as under: "On that day, Ruksana was present in front of the room, with child in her lap. She handed over the child to me saying that she was going to talk to her father. Saying so she went out of the house. I then heard her talking loudly to her father at her parental house. 15 20 minutes thereafter she returned home. At that time, she was having a chaddar on her person. She then entered her room. After sometime, I heard screams emanating from her room. At that time, my son Nasir was not present at our house. I raised hue and cry. After sometime, some one came from outside and tried to open the door of the room where Ruksana was screaming. Since the door was lying bolted from inside, the same could not be opened from outside. Police 6 reached the spot and broke open the door. At that time, some one poured bucket of water on the person of Ruksana as she was on fire. About two hours thereafter, brother and father of Ruksana reached there....................................................... My daughter in law Heena was present at the house. She also helped in bringing Ruksana out of the room. Mohd. Haroon is my son. He was suffering from fever. He was present on the first floor portion. Police removed Ruksana to hospital. My son Nasir was not present at the house. He returned home after two hours on coming to know about the incident from someone outside." Plea of accused Mohd. Nasir is as under: "On 28.12.2004 I was not present at the house. I was returned in the evening. When I reached near my house, persons from the neighbourhood told that my wife suffered burnt. At that time, I found my house lying closed. I wanted to reach hospital but my in laws stopped me from going there. I was given beatings by them."
However, they have opted not to lead any evidence in defence.
77. Arguments heard. File perused.
8. Learned Addl. Public Prosecutor has referred to the statement of PW3 Mohd. Aslam, statement of PW5 Sh.Bishan Chandra, SDM and to the dying declaration of the victim before the doctor and the other recorded by the Sub Divisional Magistrate and submitted that prosecution has been able to prove that both the accused instigated Smt.Ruksana for commission of suicide and as such both of them are liable to be held guilty, convicted and sentenced for an offence u/s 306 r.w. section 34 IPC.
In support of his contention, Learned Addl. Public Prosecutor has relied on decision in "K.Prema S. Rao and Anr. Vs. Yadla Srinivasa Rao and Ors., AIR 2003 SC
11.
9. On the other hand, Learned Defence Counsel submits that prosecution has miserably failed to prove that any of the two accused instigated Smt.Ruksanavictim to commit suicide or any kind of harassment to compel her to commit suicide, and as such both the accused persons are entitled to acquittal.
8In support of his contention, Learned Defence Counsel has relied on decision in "Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh, 2002 Cri. L. J. 2796.
Medical Evidence
10. As per medical record available in the statement of PW1 Dr.Vineeta from JPN Hospital, on 28.12.2004 Ruksana was brought to the Casualty of the said hospital with 100% burns and her clothes were smelling of kerosene oil.
PW1 proved MLC Ex.PW1/A prepared by Dr.Safulla, Junior Resident under her supervision.
In her cross examination, Dr.Vineeta clearly stated that the patient was attended by Dr.Safulla. Dr. Vineeta displayed ignorance as to where Dr.Safulla was posted on the day she made statement in court as PW1. There is nothing in the statement of PW1 Dr.Vineeta that whereabouts of Dr.Safulla were not available with Medical Record Department. In the given circumstances, when the patient was attended by Dr.Safulla, the concerned doctor should have been examined.
The other medical evidence led by the 9 prosecution in the form of statement of PW6 Dr.Vijay Dhankar from Maulana Azad Medical College, who conducted autopsy on the dead body of Ruksana on 31.12.2004.
In the opinion of the doctor, cause of death in this case was of septicemia consequent to infected burns; 100% burns of the total body surface area ; all burns were antemortem and were caused by flames of fire. Statement of PW6 has gone unchallenged.
Be that as it may, from the MLC Ex.PW1/A, it stands proved that on 28.12.2004 at 1:20 p.m, when Ruksana was got admitted and was medically examined by Dr.Safulla, she had 100% burns and she had been smelling of kerosene.
11. As noticed above, accused persons were initially charged with commission of offence u/s 498A and 306 read with section 34 IPC but subsequently amended charge for an offence u/s 304B IPC and in the alternative charge for an offence u/s 302 IPC was added vide order dated 25.07.2013.
Admittedly, Smt. Ruksana died within a period of 10 7 years of her marriage. From the above medical evidence, it stands proved that her death occurred due to burns.
To prove charge u/s 304B IPC, it was for prosecution to prove that Smt. Ruksana died otherwise than under normal circumstances and also that soon before her death she was subjected to cruelty or harassment or by any relative of her husband or in connection with any demand of dowry.
12. At the time, the victim was medicolegally examined by Dr.Safulla on 28.12.2004 at 1:20 p.m, she told said doctor that her inlaws had subjected her to severe harassment and that is why, she had taken this step. Though, prosecution has not examined Dr.Safulla, from the note recorded by said doctor in the MLC, it cannot be said that the victim was set on fire by someone. Rather, it can safely be inferred that victim set herself on fire.
13. Ex.PW5/A is the dying declaration of the victim recorded by Sub Divional Magistrate (PW5). In this dying declation, the vitim clearly stated that her motherinlaw Firdos Begum, husband and jethani had done nothing. From this sentence. It can safely be inferred that version of 11 the victim was that she was not set on fire by anyone of the accused or her jethani.
Prosecution has not brought on record any evidence to suggest that any of the two accused set the victim on fire at her matrimonial home or caused her death.
PW4
14. PW5 concerned Sub Divisional Magistrate, also recorded statement of Mohd. Ahsan, father of the victim. Prosecution examined Mohd. Ahsan as PW4 in chief examination on 07.10.2009 and 12.01.2010. However, thereafter, his presence could not be secured, he having left this world. The fact remains that testimony of PW4, recorded only in chief examination cannot be relied on for want of opportunity to the accused for cross examination.
PW3
15. Then, there is statement of PW3 Mohd. Aslam, brother of the victim. According to him, his sister was frequently harrased by her inlaws I.e. motherinlaw, her husband; that his sister used to complain father that both these accused used to beat and harras her; that both of 12 them used to take her salary from her on its withdrawal on her account by her.
It is not in the statement of PW3 Mohd. Aslam that his sistervictim ever told him personally about any harassment or incident of beating with her by any of the two accused prior to 28.12.2004. Testimony of PW3 in this regard is a hearsay evidence, he having stated whatever his sister told the father.
As noticed above, no reliance can be placed on the incomplete statement of PW3 Mohd. Aslam.
As regards the allegations against the two accused that they used to take her salary on its withdrawal from her account, case of prosecution is that she used to serve as a Nurse with LNJP hospital. This allegation does not find mention in the version narrated by the victim to Dr.Safulla or in dying declaration Ex.PW5/A. In Ex.PW5/A, victim alleged that she was subjected to harassment so as to stop her from rendering service in job and that there were many other things. Learned Defence Counsel has rightly submitted that dthe two versions put forth by the prosecution are in contradiction with each other. In case, the motherinlaw 13 and husband of the victim were interested in getting salary of the victim, they would have never asked her to leave job.
Furthermore, PW3 Mohd. Aslam, brother of the victim did not state that any of the two accused ever asked his sister to leave the job. The victim nowhere stated in Ex.PW5/A as to when she was subjected to harassment on this ground I.e. of not leaving of job. She also did not explain as to what were the other factors for which she was being subjected to harassment and by which of the two accused.
It is significant to note that this sentence that "she was being subjected to harassment to leave the job" and that "there were many other factors" appears to have been inserted subsequently. This sentence comes after the sentence, "I have heard the statement and found it correct".
Once the victim closed her statement by stating so, there was no occasion for her to add by stating that she was being subjected to harassment in not having left the job and that there were many other factors. This insertion creates doubt if Ex.PW5/A contains the version actually narrated by the victim.
16. In her statement Ex.PW5/A made before the 14 SDM, the victim also stated that her motherinlaw used to harass her and that her husband and motherinlaw had beaten her. The victim did not state as to on which date she was so subjected to harassment or beating by the said two accused.
17. Another significant aspect available in the dying declaration Ex.PW5/A is that motherinlaw of the victim poured kerosene oil on her and set her on fire and that her husband, on seeing her, went away.
This version is not in consonance with the version narrated by the victim to Dr.Safulla. As per MLC, the vitim told the doctor that "she had taken this step"
because of harassment by her inlaws. Therein, she did not apprise the doctor of the fact that her motherinlaw had poured kerosene on her and set her on fire, or that her husband had gone away on seeing her. Because of this material contradiction also, no reliance can be placed on this version said to have been given by the victim to the Sub Divisional Magistrate.
18. It is case of prosecution itself that marriage of 15 Ruksana with Mohd. Nasir was result of love affair. This fact rules out possibility of any demand of dowry by any of the two accused before marriage. There is nothing in the statement of PW3 Mohd. Aslam or in any of dying declarations of the victim to suggest that any demand of dowry was put forth by any of the two accused before or after the marriage, what to say of any such demand soon before her death.
Question arises as to why Smt.Ruksana set herself on fire on 28.12.2004?
19. PW3 Mohd. Aslam is said to have reached matrimonial home of the victim soon after the occurrence. According to him, at about 12:45 pm, he heard screams emanating from the matrimonial home of his sister. On reaching there, he knocked at the door of the home, but no one answered. He further deposed that there was more screams. Then, he broke open the door and saw his sister in flames. He then picked up a blanket, threw it on her and since flames were rising, he poured water on her and then removed her to LNJP hospital.
It is not case of prosecution that PW3 witnessed 16 anyone setting his sister on fire within his view. There is also nothing in his statement made in court that his sister told her any fact at that time.
20. As regards the version given by the victim to Dr.Safulla, the victim stated that she had taken this step because she was being subjected to harassment by her in laws.
It was for the prosecution to prove as to on which date and for what reason, she was subjected to any kind of harassment. There is nothing on record to suggest that prior to 28.12.2004, any incident of harassment was reported to the police. Prosecution has also failed to prove as to why Smt.Ruksana set herself on fire on 28.12.2004. There is no evidence that anyone saw any of the two accused instigating Smt.Ruksana to commit suicide or set herself on fire.
Conclusion
21. In view of the above discussion, court finds that prosecution has failed to prove that any of the two accused subjected Smt.Ruksana to any harassment after her 17 marriage or soon before her death, what to say of any harassment on account of any unlawful demand of dowry. Prosecution has also failed to prove that any of the two accused did commit murder of Smt.Ruksana.
In absence of any evidence regarding any instigation by any of the two accused for commission of suicide by Smt.Ruksana on 28.12.2004, court finds that prosecution has failed to prove even the charge of abatement to commit suicide.
As a result both the accused are acquitted in this case.
Case property be disposed of on expiry of period for appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Digitally signed byAnnounced in the open Court NARINDER NARINDER KUMAR on this 6th day of March, 2018 KUMAR Date: 2018.03.08 14:16:02 +0530 (NARINDER KUMAR) SPECIAL JUDGE2NDPS ACT (CENTRAL DISTRICT) TIS HAZARI COURT:DELHI