Delhi District Court
Sc No. 229/2017 State vs . Sube Khan & Ors. 1 Of 43 on 21 September, 2019
IN THE COURT OF SH. RAJESH KUMAR SINGH ,
ASJ (SOUTH) SAKET COURTS, NEW DELHI
SC No. 229/2017
FIR No. 61/17
PSFatehpr Beri
U/s. 498A/304B/302/34 IPC
Computer ID No. : DLST010036502017
State
VERSUS
1. Sube Khan ..........accused no. 1
S/o Late Sh. Chhuttan Khan,
R/o H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
Permanent Add.Villl.Taudu, Mewat,
Haryana.
2. Mohmuddin ..........accused no. 2
S/o Mr. Sube Khan,
R/o 1. Near H. No. C81, Village Kharak Riwada,
Chandanhulla, New Delhi.
2. H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
Permanent Add.Villl.Taudu, Mewat,
Haryana.
3. Sahun ...........accused no. 3
S/o Mr. Sube Khan,
R/o H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
Permanent Add.Villl.Taudu, Mewat,
Haryana.
4. Fazruddin @ Fazru ..........accused no. 4
S/o Mr. Sube Khan,
R/o H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
SC No. 229/2017 State Vs. Sube Khan & Ors. 1 Of 43
Permanent Add.Villl.Taudu, Mewat,
Haryana.
5. Noor Fatima ..........accused no. 5
W/o Mr. Sube Khan,
R/o H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
Permanent Add.Villl.Taudu, Mewat,
Haryana.
6. Nafisha ..........accused no. 6
W/o Mr. Jakriya @ Jakir,
R/o H. No. A51, Vill.Kharak Riwada,
Chandanhulla, New Delhi.
Permanent Add.Villl.Aali Meo, Teh.Hateen,
PSBaheen, Distt.Palwal, Haryana.
Date of Institution : 19th May 2017
Date of conclusion of arguments : 29th July 2019
Date of Judgment : 21st September 2019
Decision : (i) Accused Mohmuddin
Convicted u/s 498A IPC.
Other accused acquitted
u/s 498A/34 IPC.
(ii) All accused including
accused Mohmuddin
acquitted u/s 304B/34 IPC
and Section 302/34 IPC.
JUDGMENT
Facts leading to registration of FIR and filing of the chargesheet. 1.1 On 01.02.2017, information was received at PSFatehpur Beri from PCR at 11:54 pm and it was recorded vide DD No. 43A. As per the information, a lady caller had made call from C81, Chandanhulla, Kharak Village, using Mobile Phone No. 9717225359. She said that her fatherinlaw and husband wanted to kill her. They had administered some pill to her and SC No. 229/2017 State Vs. Sube Khan & Ors. 2 Of 43 she needed police help.
1.2 The DD was assigned to PW29 ASI Fateh Singh for inquiry and he reached the spot with PW18 Ct. Ravi Raj. He came to know that the PCR Caller/victim had been taken to an unknown hospital. After some time he came to know that the PCR caller/victim had been admitted in Safdarjung Hospital in burned condition. He left Ct. Ravi Raj at the spot and went to the hospital. He found that the victim Ms. Firdaus W/o Mohmuddin aged about 25 years, was admitted against MLC No. 4940. The doctor told him that patient was fit for statement and that she had given the history of being burned by the relatives while sleeping at home. She was thereafter taken to the hospital. On inquiry ASI Fateh Singh came to know that the victim had been married for about six years. He sent information to SDM, Saket. The SDM sent PW14 Mr. Ajit Singh, Tehsildar/Executive Magistrate and he recorded the statement of the victim which is Ex. PW14/A. The statement was written in Hindi. Its English translation is as follows :
"Statement of Smt. Firdaus W/o Mohmuddin, R/o Near C81, Kharak Village, Near Chandanhulla aged 24 years.
Made the statement that I live on the above mentioned address with my family. I got married to Mohmuddin on 26.09.2010 according to Muslim custom and rites. I have a son who is 4 years old. I live in a separate house with my husband. For many days quarrel was taking place between me and my husband Mohmuddin, Jeth Fazru, Sasur Sube Khan, Devar Sahun, Nanad Nafisa and Saas Noor Fatima @ Jahanj over transfer of the car in the name of Mohmuddin. Yesterday i.e. on SC No. 229/2017 State Vs. Sube Khan & Ors. 3 Of 43 01.02.2017, I was sleeping inside the house with my son Raisuddin. Between 11 pm12 am, Mohmuddin, Fazru, Sube Khan, Sahun, Nafisa and Noor Fatima entered the house all of a sudden by opening the door. Mohmuddin poured petrol over me and threw a lighted match stick, due to which my clothes caught fire. I shouted for help and with great difficulty I made call on no.
100. Mohmuddin, Fazru, Sube Khan, Sahun, Nafisa and Noor Fatima have set me ablaze using petrol with intention to kill me. Legal action be taken against them. My brother in law (Nandoi) Zakir got me admitted in Safdarjung Hospital. You have recorded my statement which has been read over to me and I have found the same to be correct."
RTI & Signature of Firdaus Signature of Tehsildar & Duty Magistrate, Saket 1.3 ASI Fateh Singh obtained the statement of the victim from the Tehsildar and returned to the place of incident. He got the scene of crime inspected by the Crime Team, South District. PW27 SI Ajay Kumar was head of the Crime Team and PW16 ASI Baldan Singh (HC at the relevant time) was the photographer. On examination of the statement of the victim, the MLC and the scene of crime, primafacie offences u/s 498A/307/34 IPC appeared to have been committed. ASI Fateh Singh prepared the Tehrir Ex. PW29/A and sent it to the police station for registration of FIR. FIR No. 61/2017 was registered at PSFatehpur Beri, U/s. 498A/307/34 IPC. Further investigation was marked to SI Vikas Rana. He has been examined by the prosecution as PW30. SI Vikas Rana took into possession the exhibits lifted by the Crime Team and prepared a rough site plan of the scene of crime SC No. 229/2017 State Vs. Sube Khan & Ors. 4 Of 43 which is Ex. PW29/C. 1.4 During investigation, statement of Mr. Shaukat Ali (PW1), father of the victim was recorded on 02.02.2017 u/s 161 Cr.PC by SI Vikas Rana. Mr. Shaukat Ali stated that the victim was his eldest daughter and she got married to the accused Mohmuddin on 26.09.2019. At the time of marriage he had given dowry beyond his capacity. After marriage, the inlaws namely Nafisa (Nanad/Sisterinlaw), Noor Fatima (Saas/Motherinlaw), Fazru (Jeth/Brotherinlaw), Sube Khan (Sasur/Fatherinlaw), Sahun (Devar/ Brotherinlaw) and the husband Mohmuddin started torturing and assaulting his daughter Firdaus for dowry. Sometimes they used to torture her to such an extent that she would come to his house due to fear. After some time her inlaws used to visit his house with members of the society such as Nawab Tyagi (PW2) and Umed Ali (PW3). They used to get the matter compromised and take Firdaus back to the matrimonial home. The inlaws used to demand a car and money from him. Many a times, Nawab Tyagi had told him that the real issue was related to car and dowry. On his failure to meet their demands, they started torturing Firdaus more. Being exasperated he gave Rs. 50,000/ in cash, 3.5 tola (35 gm) gold of meher, one tola (10 gm) gold from his own house and 1.25 kg silver to the inlaws of Firdaus in September 2016. After selling the gold and using the cash, Sube Khan bought Hundai i10 car no. DL 1ZA 5956 in the name of Fazruddin @ Fazru. Even after this, Sube Khan, Mohmuddin, Nafisa, Sahun, Noor Fatima and Fazru started pressurizing to give money for repayment of the loan of the car. He SC No. 229/2017 State Vs. Sube Khan & Ors. 5 Of 43 expressed his inability to meet the demand and thereafter they started torturing Firdaus even more. They used to make her starve for 23 days. Firdaus, Nawab Tyagi and others used to tell him about these facts. He used to keep mum to protect the marriage of his daughter. On 31.01.2017, the above named persons assaulted Firdaus badly and turned her out of the house. Firdaus made call on no. 100. The community members from the village got the matter compromised. During treatment Firdaus told her that in the night of 01.02.2017, the above named inlaws tried to kill her by setting her on fire using petrol on account of dowry demand.
1.5 Shaukat Ali also told SI Vikas Rana that he did not have any photographs, video of the marriage of his daughter and bills of the dowry articles. During investigation, SI Vikas Rana recorded the statement of Nawab Tyagi and Umed Ali u/s. 161 Cr.P.C. They corroborated the statement of Shaukat Ali. On 03.02.2017, the accused Sube Khan was apprehended on the basis of secret information. Shaukat Ali was also present at that time. Sube Khan was arrested in this case vide arrest memo Ex. PW1/A, in which his address is mentioned as 51, VillageKharak Riwada, Delhi. His disclosure statement was recorded and he pointed out the place of occurrence. 1.6 On 05.02.2017, Shaukat Ali handed over copy of Nikahnama and list of dowry articles to SI Vikas Rana vide memo Ex. PW1/B. List of the dowry articles is Ex. PW1/D and the Nikahnama is Ex. PW5/A. On 10.02.2017, information was received from Safdarjung Hospital vide DD No. 25B that the victim expired during treatment. On 11.02.2017, PW14 Mr. Ajit SC No. 229/2017 State Vs. Sube Khan & Ors. 6 Of 43 Singh, Tehsildar visited the hospital. After postmortem vide PM report Ex. PW10/A, dead body of the victim was handed over to her family members. The cause of death is opined as "Septicemic Shock as a result of antemortem thermal flame burn injuries, involving about 4550% of the total body surface area". Doctors had given exhibit (Scalp hair of the deceased) to SI Vikas Rana which were taken in possession by him vide memo Ex. PW14/D. 1.7 Accused Mohmuddin was arrested on 28.02.2017 vide memo Ex. PW30/A. His address is mentioned as near C81, VillageKharak Riwada, Chandanhulla, New Delhi. His disclosure statement was also recorded and he took the police for pointing out the place of occurrence. The other accused were absconding. Statement of the witnesses were recorded 161 Cr.PC. Ownership details of car no. DL 1ZA 5956 were obtained and it was found that it was registered in the name of the accused Fazruddin. 1.8 During investigation, it was found that on 31.01.2017 the victim had made PCR call regarding assault on her. She made the call using mobile no. 9654202969 and the information regarding PCR call was registered at PS Fatehpur Beri vide DD No. 31A dated 31.01.2017. As per record the matter was compromised by the parties. On 15.04.2017, Shaukat Ali handed over copy of DD No. 55B dated 16.03.2015 (Mark C) and copy of PCR form dated31.01.2017 (Ex. PW31/C) to the second IO Inspector Hanumant Singh. These documents were taken into possession vide memo Ex. PW1/C. The complaint dated 16.03.2015 had been made by the deceased to SHO PS Fatehpur Beri against her husband and his relatives.
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1.9 The exhibits were sent to CFSL (CBI), CGO Complex, Lodhi
Colony, Delhi on 27.04.2017 vide RC No. 61/21/17. They were deposited in the CFSL vide acknowledgment no. CFSL 2017/Bio0516. Charge sheet was filed against the accused Sube Khan and Mohmuddin u/s. 498A/304 B/302/34 IPC. It was stated that request had been sent for CDR and CAF of mobile no. 9654202969 used by the victim on 31.01.2017 and mobile no. 9717225359 by her on 01.02.2017. The documents were awaited and they would be filed with supplementary charge sheet. It was also stated that the FSL report would be filed with supplementary chargesheet and supplementary chargesheet would also be filed on arrest of the remaining accused.
1.10 The accused Sahun and Fazruddin @ Fazru surrendered before the Court and they were arrested on 27.05.2017 with the permission of the Court. The accused Noor Fatima and Nafisa surrendered before the Court on 29.06.2017 and they were also arrested with the permission of the Court. They made disclosure statements and also pointed out the place of occurrence. Supplementary charge sheet was filed for them with CDR and CAF of the above mentioned mobile numbers. The CFSL reports Ex. R1 to R3 were also filed subsequently.
Charge 2.1 Charge was framed against all accused by Ld. Predecessor vide order dated 29.07.2017 u/s. 498A, 304B/34 IPC and alternatively u/s. 302/34 IPC.
SC No. 229/2017 State Vs. Sube Khan & Ors. 8 Of 43 2.2 Charge states that in furtherance of their common intention the
accused treated the deceased with cruelty and harassed her for dowry. These acts were also done on account of transfer of ownership of car no. DL 1ZA 5956 in the name of Mohmuddin and thereby they committed offence punishable 498A/34 IPC.
2.3 On 01.02.2017, between 1112 Night at House No. C81, VillageKharak Riwada, Chandanhulla, New Delhi, they entered the house in furtherance of common intention and in connection with the matters mentioned above. Petrol was poured on the victim and lighted match stick was thrown on her, due to which she caught fire. She expired on 10.02.2017 due to the burn injuries. Thereby the accused persons committed offence punishable u/s. 304B/34 IPC.
2.4 The alternative charge is u/s. 302/34 IPC. It is stated that in furtherance of their common intention, the accused murdered the victim in the manner mentioned above.
Prosecution Evidence 3.1 Prosecution has examined 31 witnesses. Certain facts such as the date of marriage, meher of 35gm gold, the cause of death, arrest of the accused on different dates, sending of the exhibits to CFSL and the CFSL reports are not in dispute.
3.2 The important witnesses whose testimony will be relevant for decision of the case are :
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(i) PW1 Shaukat Ali. He is father of the victim. He has deposed on the lines of his statement u/s. 161 Cr.P.C. which has already been mentioned above.
(ii) PW2 Nawab Tyagi. He is the mediator, who used to accompany Sube Khan and others to settle the disputes. He was also present on 31.01.2017 when the matter was compromised between the parties in the police station.
(iii) PW3 Umed Ali. He is also stated to be one of the mediators, who used to accompany Nawab Tyagi. During his examination before the Court, he did not support the prosecution.
(iv) PW4 Roohafza. She is mother of the victim.
(v) PW9 Wasim Khan. He is brother of the victim. Police had examined him only in respect of handing over of the dead body after the postmortem. However, during his examination before this Court, he sought permission to depose on other aspects of the case also and he was allowed to do so.
(vi) PW11 ASI Babu E.K. He has been examined in respect of the complaint of the victim on 16.03.2015. He has produced the register Ex. PW11/A to show that the complaint was received in the police station.
(vii) PW12 Dr. Anmol Chugh. He is the doctor who firstly examined the victim on being taken to Safdarjung Hospital. He prepared the MLC Ex. PW12/A with his signature at point A. He recorded that the victim was got admitted by Sube Khan (Fatherinlaw). The date of burn was 01.02.2017, the time of burn was told as 11 pm, the date of admission was 02.02.2017 and the time of arrival at the hospital was 1:45 am. The victim had given the SC No. 229/2017 State Vs. Sube Khan & Ors. 10 Of 43 history as "Thermal burn sustained when patient was sleeping at home and was allegedly burned by relatives with fire. Patient was taken to Safdarjung Hospital. Patient is married since 8 years and has one kid."
(viii) PW14 Ajit Singh. He is the Tehsildar/Executive Magistrate, who recorded the statement of the victim Ex. PW14/A. The said statement is to be treated as the Dying Declaration of the victim.
(ix) PW15 Ct. Kapil. He was posted at CPCR on 01.02.2017 and he received the call made by the victim to the PCR on that day at 11:45 pm. He has produced the CPCR form Ex. PW15/A.
(x) PW16 ASI Baldan Singh. He is the photographer of the Crime Team. He has proved the photographs of the scene of crime taken by him as Ex. PW16/A1 to A9 and the nine negatives as Ex. PW16/B Colly.
(xi) PW18 Ct. Ravi Raj. He went to the spot with ASI Fateh Singh after receiving DD No. 43B. He deposed that he came to know that husband of the victim had poured petrol on her and that she had been taken to a hospital. He went to the police station on 02.02.2017 at about 1:15 pm for registration of the FIR. In his crossexamination, he stated that the accused Nafisa (Nanad of the victim) had told him that husband of victim had burned her. He claimed that he had told this fact to the IO. He admitted that this fact was not mentioned in his statement u/s. 161 Cr.P.C.
(xii) PW20 Israr Babu, Nodal Officer, Vodafone. He has proved that the mobile phone no. 9654202969 which was used by the victim on 31.01.2017 to make the PCR call, was issued in the name of mother of the victim.
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(xiii) PW24 Surender Kumar, Nodal Officer, Bharti Airtel. He has been examined in respect of mobile no. 9717225359 which is stated to have been used by the victim on 01.02.2017 to make the PCR call. He has proved that this number was issued in the name one Akram.
(xiv) PW25 ASI Munender. He attended the PCR call of Nafisa on 31.01.2017 vide DD No. 16A. On receiving the DD entry he went to house No. C81, Kharak Riwada. He came to know that the caller had gone to AIIMS Trauma Centre. He met the caller (Accused Nafisa) at AIIMS Trauma Center. She stated that she would give her statement later on. He has further deposed that on the same day information regarding quarrel was recorded vide DD No. 31A at 7 pm and it was assigned to SI Rameshwar. SI Rameshwar told him that the caller did not meet him at C81 where the quarrel was reported to have taken place. He further told that the caller had gone to the house of her maternal uncle Nawab Tyagi at Chatarpur. On 31.01.2017 at about 8:30 pm both parties came to the police station with Shaukat Ali, Moinuddin, Sube Khan and Nawab Tyagi. They entered into a compromise which is PW1/DA.
(xv) PW27 SI Ajay. He was incharge of the Mobile Crime Team. He inspected the scene of Crime with ASI Baldan. The Crime Team report is Ex. PW27/A in which the place occurrence inspected by him is described as near C81. The exhibits lifted from the place of occurrence are plastic bottle Ex. F1, burnt piece of shawl Ex. F2, burnt cloth maternal Ex. F3, burnt hair Ex. F4, SC No. 229/2017 State Vs. Sube Khan & Ors. 12 Of 43 three burnt match sticks Ex. F5, match box Ex. F6 and broken white cup Ex. F7.
(xvi) PW29 ASI Fateh Singh. DD No. 43A dated01.02.2017 was marked to him for necessary action. He went to the spot with Ct. Rishi Raj. His role has already described above in detail. He reached the place of occurrence at 11:54 pm. He deposed that it was three houses after C81. From the neighbours, he came to know that a lady had immolated herself. He left Ct. Ravi Raj at the spot and went to the hospital. After some time he came to know that the victim had been taken to Safdarjung hospital. He went to the hospital and found the victim admitted against the MLC on which patient was declared fit for statement. He inquired from the victim and came to know that she had been married for about six years. He informed the SDM, South after which PW14 came and recorded the statement of the victim. He took the statement from PW14 and returned to the spot. He got the scene of crime inspected by the Crime Team and prepared the Tehrir Ex. PW29/A. He sent the Tehrir to the PS through Ct. Ravi Raj for registration of FIR. After registration of the FIR, investigation was assigned to PW30 Inspector Vikas Rana (SI at the relevant time).
(xvii) PW30 Inspector Vikas Rana. He was SI at the relevant time and he is first IO of the case.
(xviii) PW31 Inspector Hanumant Singh. He was posted as Additional SHO of PSFatehpur Beri at the relevant time. Further investigation of the case was transferred to him from SI Vikas Rana. He filed the charge sheet SC No. 229/2017 State Vs. Sube Khan & Ors. 13 Of 43 and the supplementary charge sheet against the accused persons. 3.3 On 07.01.2019, when the matter was listed for examination of PW30 Inspector Vikas Rana (SI at the relevant time), Ld. Addl. PP submitted that the four accused who were arrested later on, had been declared P.O. and therefore charge u/s. 174A IPC should also be framed against them. This Court observed that for the offence u/s. 174A IPC, the prosecution could approach the Court of Ld. MM. Ld. Addl. PP moved an application u/s. 193 Cr.PC for framing of additional charge against the four accused u/s. 174A IPC and he also moved an application u/s. 311 Cr.P.C. seeking permission to examine three additional witnesses. Both applications were dismissed vide order dated 31.01.2019. This Court was of the view that it would not be appropriate to add the additional charge u/s.174A IPC against the four accused at the fag end of the trial when P.E. was almost complete. Section 174A IPC has not been mentioned in the supplementary charge sheet filed against the four accused and cognizance of this offence had also not been taken by Ld. MM. The prayer u/s. 311 Cr.P.C. was also rejected on the ground that the application did not fulfill the requirement of section 311 Cr.PC and that allowing the prosecution to summon the additional witness at the fag end of the trial after disclosure of the defence by the accused, could prejudice them.
Statement of the Accused Persons u/s. 313 Cr.P.C. & Defence Evidence. 4.1 Statement of all accused was recorded u/s. 313 Cr.PC and they opted for defence evidence. All accused have denied their involvement in the SC No. 229/2017 State Vs. Sube Khan & Ors. 14 Of 43 incident. They have claimed that the victim immolated herself and that they were not present at the place of occurrence at the time of the alleged incident of burning of the victim.
4.2 They examined DW1 Sanjay Kumar in respect of a complaint dated 12.3.2016 given by the accused Sube Khan to the SHO PSFatehpur Beri by DD No. 21B, DW2 Mr. Zakaria who is wife of the accused Nafisa and who according to the victim got her admitted in the hospital, DW3 Mr. Amit Shrivastav, Chief Manager, Corporation Bank who has produced the record pertaining to account no. SB/01/160167 in the name of the accused Fazru and DW4 Mr. Lalit Luthra, HR Head, Elroy Motors Pvt. Ltd., from where car in question was purchased in the name of the accused Fazru. During trial, the accused had moved an application for preservation and production of record in respect of mobile no. 9911548131, 9711981672 and 8178443476. The application was allowed and the CDR and CAF etc. of these mobile phone numbers were placed on record by the SHO, PSFatehpur Beri. The accused did not rely upon the CDR and CAF etc. of these mobile numbers during trial. At the stage of final arguments, the Court asked as to why they did not use the record pertaining to these numbers and thereafter they moved an application seeking permission to examine the witnesses from mobile service providers. The application was opposed by Ld. Addl. PP for State on the ground that the accused had not taken any defence based on these numbers and therefore, examination of the witnesses from the mobile service providers would not serve any purpose. This Court held that the issue whether the SC No. 229/2017 State Vs. Sube Khan & Ors. 15 Of 43 testimony of the witnesses from the mobile service providers is relevant or not, can be seen at final stage and it would be proper to give the opportunity to the accused as the documents were already on record. Their prayer was allowed vide order dated10.05.2019. They examined DW5 Mr. Pawan Singh, Alternate Nodal officer, Vodafone Idea Ltd. in respect of mobile number 9911548131 in the name of Fazruddin and 9711981672 in the name of Mohmuddin. They also examined DW6 Mr. Yatin Chawla, Alternate Nodal Officer, Reliance Jio Infocom Ltd. in respect of mobile number 8178443476 in the name of Mohmuddin.
Arguments and Analysis 5.1 In the present case the charge u/s 302/34 IPC has been framed in the alternative to the charge u/s 304B/34 IPC. In Vijay Pal Singh & Ors. vs. State of Uttarakhand (2014) 15 SCC 163, Hon'ble supreme Court held that section 304B IPC is not substitute for Section 302 IPC. Charge u/s 302 IPC should be framed where there is prima facie evidence to support the charge. The charge u/s 304B IPC can be framed in the alternative. 5.2 The accused are aware of the allegations and no prejudice has been caused to them by framing the charge u/s 302/34 IPC alternatively. According to the prosecution the cruelty started with demand for money to buy car. Due to the harassment meted out to the victim, her father gave gold, silver and cash to the accused which was used to buy the car in the name of accused Fazruddin. Accused had also taken loan. Victim was being harassed to bring money for repayment of the loan. Father of victim showed inability to SC No. 229/2017 State Vs. Sube Khan & Ors. 16 Of 43 pay money for repayment of the loan. The victim was insisting for transfer of the car in the name of her husband due to which there were quarrels. Finally the victim was burned in the night of 01.02.2017. I shall firstly examine the evidence for the charge u/s 302/34 IPC followed by the charge u/s 304B/34 IPC and thereafter, I shall examine the evidence for the charge u/s 498A/34 IPC.
Charge u/s 302/34 IPC 6.1 In the crossexamination of the PWs especially the police officers, lot of emphasis has been put on the number of the house where the incident happened on 01.02.2017. In the PCR call the place of incident was mentioned as house No. C81, Chandanhaulla ke pass, gaon Chhattarpur. In the crime team report Ex.PW27/A address of the site inspected by the crime team is mentioned as near C81, Kharak village, Riwada. In the dying declaration Ex. PW14/A address of the victim is mentioned as near C81. According to the accused, the victim was residing separately in a house with her husband and the accused Nafisa was residing in house No. C81 with her family. PW29 ASI Fateh Singh deposed that in the village house numbers are not in order and it is difficult to ascertain the correct house number. However, he admitted that the victim was residing after few houses from C81 where the accused Nafisa was residing. The IO PW31 Inspector Hanumant Singh also admitted this fact. In the crossexamination of PW2 number of the house where the victim was residing has been put as C84. In the crossexamination of other witnesses it has been put as C85. In the photograph Ex. PW16/A6 SC No. 229/2017 State Vs. Sube Khan & Ors. 17 Of 43 the house number appears as C82/II. Crime team inspected the place where the incident happened. In view of the statement of PW29 and PW31 it is clear that the incident did not happen at C81. It happened where the victim was residing and the same place was inspected by the crime team. Therefore, the house number where the incident took place is not material. 6.2 Ex. PW14/A is the statement of the victim recorded by the Tehsildar/Executive Magistrate PW14 Mr. Ajit Singh. This statement became the dying declaration of the victim. Ld. Counsel for the accused argued that Ex. PW14/A cannot relied upon. PW14 did not seek opinion of the doctor regarding fitness of the victim to make the statement. The statement was scribed by some one else and PW14 could not tell his name. The time of recording of the statement is not mentioned. In the statement the victim allegedly stated that petrol was poured over her whereas PW12 Dr. Anmol Chugh who had prepared the MLC of the victim when she was taken to the hospital, deposed that smell of kerosene was present. In the statement Ex. PW14/A, the victim also stated that after being burned, she made call on number 100 but there is no evidence of such call. Ld. Counsel also pointed out that PW1 stated in his crossexamination that his statement was recorded by police at the hospital but the statement has not been brought on record. The same police officer, who had examined PW1 at the hospital, went to the ICU with PW14.
6.3 Ld. Addl. PP submitted that opinion of the doctor is not a must before recording the dying declaration. PW14 had satisfied himself about SC No. 229/2017 State Vs. Sube Khan & Ors. 18 Of 43 fitness of the victim to make the statement. The statement of signed by the victim and it also bears her thumb impression. There is no reason for PW14 to fabricate the statement. There are minor discrepancies which do not create any doubt over the correctness of the dying declaration Ex. PW14/A. 6.4 In Paniben vs State of Gujarat (1992) 2 SCC 474 Hon'ble Supreme Court summarized the principles regarding dying declaration and the same are as follows:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where the dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
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(viii) Equally, merely because it is a brief statement , it is not to be discarded. On the contrary , the shortness of the statement itself guarantees truth.
(ix) Normally the Court in order to satisfy whether deceased was in a fit state of mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration , the declaration cannot be acted upon.
6.5 PW14 did not record the time when he started recording the statement Ex. PW14/A and the time when he finished recording of the statement. PW1 has deposed that he reached the hospital on 02.02.2017 at about 01:30pm. He was not allowed to meet his daughter. His wife met their daughter in the ICU. The Tehsildar came to the hospital after the Sun set. PW4 stated that she reached the hospital with her family and relatives at about 02:0002:30pm. PW9 also stated that they reached hospital on 02.02.2017 at 02:00pm. Whenever there is a medicolegal case of the police officer posted at the hospital informs the concerned police station to send an officer for investigation. In the present case, information from the hospital was received by PS Fatehpur Beri vide DD No. 34B dated 02.02.2017 , it states that "samai do baje din darj hai ki iss samai constable Ajay number 1631/SD SC No. 229/2017 State Vs. Sube Khan & Ors. 20 Of 43 range bajariye tel. ittela di ki Safdarjung Hospital se ittela di hai ki Firdaus w/o Mohmuddin aged 25 years r/o House no. A51, Village Satbari, Riwada colony, N. D. pata uprokt se jali halat main MLC number 14102/17 par dakhil karaya hai IO bheja jaye Ph Number 9873275091 Hasb Amad MLC darj roznamcha ki gai va ittela ke bare main bajariye tel. ASI Fateh Singh ke hawale ki gai jo munasib karyawahi amal main layenge." 6.6 The word "do baje din" translates to "02:00pm". In his examinationinchief PW29 ASI Fateh Singh deposed that in the intervening night of 01/02.02.2017, the DO informed him about DD No. 43 A at 11:45pm. He went to the spot. After some time he came to know that the victim had been taken to Safdarjung Hospital. He did not disclose how he came to know that the victim had been taken to the hospital. It is to be noted that DD No. 34 B does not say that ASI Fateh Singh was already working on the case and he had been informed about the MLC. DD No. 34 B mentions the time as 02:00pm. If these facts are taken into consideration, ASI Fateh Singh would have informed the SDM after 02:00pm when DD No. 34 B was marked to him. This corroborates the statement of PW1 that the Tehsildar came to the hospital after the Sun set.
6.7 Ld. Addl. PP argued that the rukka Ex. PW29/A was dispatched at 01:15pm. It is mentioned in the rukka that Executive Magistrate, Saket Mr. Ajit Singh had obtained the statement of the victim and had given the same to PW29. All accused persons are named in the FIR. These facts show that the Tehsildar/PW14 visited the hospital and met the victim at about 12:00 SC No. 229/2017 State Vs. Sube Khan & Ors. 21 Of 43 01:00pm on 02.02.2017 as stated by him in his crossexamination. Ld. Addl. PP further submitted that the statement of PW1 that PW14 visited the hospital after Sun set on 02.02.2017 may be due to confusion. Ld. Addl. PP pointed out that there could be confusion of time as it was winter season. Ld. Addl. PP has also pointed out that PW29 deposed that he had met the accused Sube Khan and Noor Fatima at the hospital. This statement has not been disputed by the accused and the accused do not claim that PW29 reached the hospital after 02:00pm. PW29 deposed that when he reached the spot, he came to know that a lady had immolated herself. Only after recording of the statement Ex. PW14/A, he came to know about involvement of the accused persons and their names. There is no reason for PW29 and PW14 who are Government officers to fabricate the statement and to implicate the accused persons falsely.
6.8 There is substance in the submissions made by Ld. Addl PP regarding time of recording of the statement Ex. PW14/A but doubt has been created in this regard. There are other deficiencies in recording of the statement. PW14 did not record any question and answer to show that the victim was in a fit condition to make the statement. The top 15 lines Ex. PW14/A have more spacing as compared to the line number 16 to 22. The space has reduced from line 16 to line 22. It appears that attempt was made to fit the entire statement in one page. PW14 could have added another page if it was required. The lines 21 and 22 appear on the left side alongwith Right Thumb Impression and the signature of the victim on the right side. If the SC No. 229/2017 State Vs. Sube Khan & Ors. 22 Of 43 victim applied her thumb impression and made the signature after the statement was recorded and read over to her, the thumb impression and the signature should have been below the line 22. PW14 deposed that the statement was recorded verbatim in his presence by a staff from his office but he could not tell his name. PW14 did not give any reason why he himself did not write the statement. In the statement Ex. PW14/A, the victim did not tell about administration of some pill to her by Sube Khan and Mohmuddin as recorded in the PCR call made by her. There is no PCR call regarding burning though it is recorded in Ex. PW14/A that after being burned the victim made PCR call with difficulty. In the statement Ex.PW14/A it is mentioned that petrol was poured over the victim. In the MLC Ex. PW12/A, the victim did not give history of use of petrol. PW12 who prepared the MLC mentioned that smell of kerosene was present. During his examination, he stated that he made this observation on the basis of clinical experience. These are additional facts which create doubt over Ex. PW14/A and it is not safe to base the conviction solely on the statement Ex. PW14/A. We will have to look for corroborative evidence.
6.9 According to PW4 Ms. Roohafza who is mother victim and PW 9 Wasim Khan, the victim made oral dying declaration to them in which she accused all accused persons of burning her. PW4 deposed that she met the victim in the hospital. The victim told her about dousing with petrol and burning by the accused persons. PW9 also deposed that he met the victim in the ICU after recording of statement by the Tehsildar. The victim told him that SC No. 229/2017 State Vs. Sube Khan & Ors. 23 Of 43 the accused persons had poured petrol over her and set her on fire. PW1 Shaukat is father of victim. He stated in his examinationinchief that on 01.02.2017 he received telephone call that the accused persons had poured petrol on his daughter due to which she was burnt and that they had tried to kill her ("petrol chidak kar aag laga kar maarne ki koshish ki"). In the cross examination he stated that on 02.01.2017 at about 10:3011:00am he received the message about the incident. It appears that in examination of PW1 the date has been wrongly typed as 02.01.2017 instead of 02.02.2017. PW1 further made voluntary statement that his daughter was not picking up the phone. Therefore, he called Mr. Ali and Mr. Ali informed him about the incident. PW1 also stated that he knows Mr. Ali since 2015. Prosecution did not get it clarified whether Mr. Ali mentioned by PW1 is the same person who has been examined as PW3 Umed Ali. PW3 stated in his crossexamination by Ld. Counsel for accused that he had not given such information to PW1. It is clear that before PW1, PW4 and PW7 reached the hospital, they had the notion that petrol had been used to burn the victim and that all accused persons were party to the incident. In the MLC Ex. PW12/A it is mentioned that history was given by the patient herself. This fact was confirmed by PW 12 in his statement before this Court. The victim did not mention use of petrol. PW12 mentioned that smell of kerosene was present. Kerosene available in the market has blue colour and petrol has light yellow colour. The victim could have made out whether kerosene was used or petrol had been used. In the MLC Ex. PW12/A it is mentioned that the victim told that she had been burned SC No. 229/2017 State Vs. Sube Khan & Ors. 24 Of 43 by relatives. Either PW12 did not ask her or she did not tell the names of those relatives. Name of Sube Khan was mentioned as the person who got the victim admitted in the hospital. PW29 has confirmed that Sube Khan and Noor Fatima were present in the hospital. We cannot presume that relatives means all accused. After recording of the statement Ex. PW14/A by the Tehsildar, IO should have got recorded the statement of victim again to seek clarification about use of the liquid, why she did not name the accused persons in the MLC and about the PCR call which is mentioned in Ex. PW14/A. This was not done. The alleged dying declaration made by the victim to PW4 and PW9 is same as the notion which PW1 was already having. In the facts and circumstances mentioned above, it is doubtful whether the victim made the alleged oral dying declaration to PW4 and PW9. PW4 and PW9 may be making the statement on the basis of the information which they already had before reaching the hospital. Therefore, it is not safe to rely upon the alleged oral dying declaration made to PW4 and PW9 also. 6.10 According to the prosecution, the victim made PCR call from mobile number 9717225359. CDR of this number is Ex. PW24/A1. CAF of the mobile number is Ex. PW24/A2. The number was allotted in the name of one Mr. Akram. PW1 deposed that Akram is his neighbour and the number was being used by his son/PW9. He further deposed that victim had been using this number since February 2017. The victim had made PCR call on 31.01.2017 also for which mobile number 9654202969 issued in the name of PW4 Ms. Roohafza was used. On 31.01.2017, PW1 and his family members SC No. 229/2017 State Vs. Sube Khan & Ors. 25 Of 43 had gone to PS Fatehpur Beri where the matter was compromised. Perusal of Ex. PW24/A1 shows that on 01.02.2017 there were conversations between the number 9654202969 and 9717225359 at 18:36:54 hours and 20:55:17 hours. The second call lasted for 943 seconds. The victim could not have talked to herself using the number 9654202969 which was used by her on 31.01.2017 and the number 9717225359 which she used on 01.02.2017 to make the PCR call. IO should have examined the witnesses to find out when mobile number 9717225359 was given to the victim and whether she was not in possession of mobile number 9654202969 on 01.02.2017. To confirm that the victim was using the mobile number 9717225359 on 01.02.2017 , IO could have examined the persons with whom conversations took place using this mobile number on 01.02.2017. He could have also obtained the Cell Location Chart of this number to confirm that this number was used from the location of the scene of crime on 01.02.2017. During arguments, Ld. Addl. PP submitted that the mobile number 9717225359 was given to the victim on 31.01.2017 and mobile number 9654202969 was taken from her on the same date. This fact has not been mentioned in the chargesheet or in the statement of the witnesses recorded u/s 161 Cr. PC. PW1 deposed that the victim was using mobile number 9717225359 since February 2017. According to the prosecution, PW1 met the victim lastly on 31.01.2017. The statement of PW1 does not explain how the victim got the mobile phone with number 9717225359 in February 2017. It is to be noted that the incident happened on the very first day of February 2017. The suggestion given by Ld. Counsel for SC No. 229/2017 State Vs. Sube Khan & Ors. 26 Of 43 the accused to PW1 in his crossexamination that he and his son were present at the spot on 01.02.2017 and that they had given the mobile number 9717225359 to the victim to make the PCR call cannot be treated as an admission by them that victim was definitely using the mobile number on 01.02.2017 and that it was victim only who made the PCR call on 01.02.2017 using this number.
6.11 Perusal of the CDR Ex. PW24/A1 of mobile number 9717225359 shows that two PCR calls were made on number 100 on 01.02.2017. The first call was made at 23:26:38 hours and the call lasted for 29 seconds. The second call was made at 23:43:40 hours and this call lasted for 25 seconds. IO did not try to find out what information was given by the PCR caller at 23:26:38 hours. Sometimes, the call is not recorded due to poor voice quality or issues related to connectivity. IO did not try to find out whether the PCR call made at 23:26:38 hours did not get recorded due to any such reason. However, this does not materially affect the case as it is evident that the victim was not burned till making of the second call at 23:43:40 hours. It is the second call on which the DD entry was made at PS Fatehpur Beri. It is to be noted that two attested copies of the concerned DD entry on record of this case. The first document mentions the DD no. 43A dated 01.02.2017. The second document mentions the DD No. as 44A dated 01.02.2017. In this document, alteration has been made in the DD number to make the same as 44A and alteration has also been made in the date to change the same from 02.02.2017 to 01.02.2017. In the rukka sent by PW29 ASI Fateh Singh the SC No. 229/2017 State Vs. Sube Khan & Ors. 27 Of 43 concerned DD number has been mentioned as DD no. 44A. The PCR form no. 1 of the said DD entry is Ex. PW15/A and it records "lady caller bol rahi hai ki mera sasur or pati mujhe maarna chahtey hai or inhone mujhe koi pill bhi khilai hai need police help."
6.12 If the PCR call recorded vide Ex.PW15/A is correct, at that moment only the accused Sube Khan and Mohmuddin were present with the victim and they had administered a pill to her so as to kill her. In such a situation there would have also been scuffle/scrimmage at the spot. In the crime team report Ex. PW27/A, there is no mention of signs of scuffle/scrimmage at the scene of crime. A broken cup was found but none of the prosecution witnesses has deposed that the cup broke during scuffle/scrimmage between the victim and the persons who allegedly burned her.
6.13 PW12 Dr. Anmol Chugh deposed that history was given by the victim herself. On the MLC Ex. PW12/A also it is mentioned "I/B self" . The time of burn is mentioned as 11:00pm. The victim did not give history of administration of pill to her by her fatherinlaw (Sube Khan) and her husband (Mohmuddin). As per the MLC, Sube Khan got the victim admitted in the hospital. PW29 has deposed that he met Sube Khan and Noor Fatima in the hospital. Nonmentioning of administration of pill by the victim in Ex. PW12/A creates doubt over the correctness of the information given to the PCR which was recorded vide Ex. PW15/A. It also casts doubt over the written dying declaration Ex. PW14/A in which there is no mention of administration of pill to SC No. 229/2017 State Vs. Sube Khan & Ors. 28 Of 43 the victim by the accused Sube Khan and Mohmuddin. In Ex. PW14/A the victim allegedly made the statement that after being burned , she made the PCR call with great difficulty. There is no PCR call regarding burning. After finding that no history of administration of pill had been given by the victim in Ex. PW12/A and Ex. PW14/A, IO should have recorded supplementary statement of the victim to take clarification in this regard but it was not done. If we compare the PCR call recorded in Ex. PW15/A and the statement Ex. PW14/A, there is a material contradiction. As per the statement Ex. PW14/A, all accused persons came together whereas as per Ex. PW15/A, the accused Noor Fatima, Shahoon, Fazruddin and Nafisa should have come to the scene of crime after the accused Sube Khan and Mohmuddin. These facts create doubt regarding presence of the accused persons at the scene of crime at the time of incident.
6.14 There are contradictions in the stand taken by the accused persons regarding their plea of alibi. In his statement u/s 313 Cr. PC, the accused Mohmuddin has stated that at the time of incident, he was stuck in a traffic jam. He received a call from Zakir (DW2) and he instructed him to take the victim to the hospital immediately. DW2 deposed that he made the phone call to the accused Sube Khan. Court Question was put to him as to why he did not make the call to husband (Mohmuddin) of the victim and he stated that at that particular moment he thought of informing Sube Khan. Accused Mohmuddin did not disclose the place where he was stuck in the traffic jam. There is contradiction in his statement and statement of DW2 regarding SC No. 229/2017 State Vs. Sube Khan & Ors. 29 Of 43 making of phone call to him after the incident. DW2 deposed that the accused Sube Khan told him to proceed towards the hospital and that he would join him on the way. In the statement u/s 313 Cr. PC, accused Noor Fatima (wife of accused Sube Khan) told that the day of the incident, DW2 brought the victim to her house in burned condition. DW2 deposed that he was sleeping in his house. He heard noise in the street. He came out and saw the victim standing in the street in a burned condition. She was surrounded by some persons of the locality. DW2 was asked about the names of those persons and he stated that he knew them by face but did not know their names. Accused could have identified those persons and could have requested the Court to summon them. This was not done. The accused Fazruddin and Mohmuddin applied for preservation and production of CDRs of three mobile numbers. However, they did not rely upon them at the time of crossexamination of the prosecution witnesses or in their statements u/s 313 Cr. PC. The Nodal officers were examined only after this Court pointed out that the accused had not used the CDRs though the same had been summoned on their request. The argument that the accused were at different locations as reflected by the CDRs and the statements of DW5 and DW6 regarding the Cell location, cannot be accepted as the accused did not take any stand regarding their location with reference to the particular mobile numbers. However, these deficiencies cannot fill the lacuna in the case of the prosecution. In Sharad Birdhichand Sarda vs State of Mahashtra (AIR 1984 SC 1622) it has been held that the infirmity or lacuna in prosecution SC No. 229/2017 State Vs. Sube Khan & Ors. 30 Of 43 cannot be cured by false defence or plea.
6.15 PW1 deposed that Mr. Ali gave him the information that "petrol chidak kar, aag lagakar marne ki koshish ki". Prosecution did not clarify whether the said Mr. Ali is the same person who has been examined as PW
3. PW3 did not make the statement that he had given such information to PW1. PW29 deposed that when he reached the spot, he came to know that a lady had immolated herself. He did not note down the names and addresses of the persons who gave him this information and did not try to find out their source of information. PW18 Ct. Ravi Raj was with PW29. PW18 has deposed that the accused Nafisa met him and told that Mohmuddin had burned the victim. He also deposed that he had told this fact to the IO. He was confronted with the statement u/s 161 Cr. PC where this fact is not recorded. If we examine the scene of crime with the help of crime team report and the photographs, it is doubtful whether the victim was burned by the accused persons. The photograph Ex. PW16/A4 shows that four match sticks and one match box are lying near each other within the white circle drawn by the crime team. The crime team report Ex. PW27/A mentions one match box at sl. no. 3 and three burnt match sticks at sl. no. 4. Presence of three burnt match sticks show that at least three attempts were made to set the victim ablaze. In such situation, the victim would have moved in order to save herself and all burnt match sticks would not be lying at the same place. 6.16 Ld. Addl. PP argued that the victim had submitted complaint dated 16.03.2015 mark C to the SHO, PS Fatehpur Beri. In the said SC No. 229/2017 State Vs. Sube Khan & Ors. 31 Of 43 complaint, she had clearly stated that attempts had been made earlier to burn her and that all accused persons wanted to kill her. She was ultimately burned. The accused Sube Khan submitted the complaint Ex. PW1/D1A dated 12.03.2016 to the SHO only to create a false defence in the event of the accused committing the offence as apprehended by the victim. No action was taken on the complaint of accused Sube Khan. The accused Mohmuddin is husband of the victim and under normal circumstances he is expected to be at his house in the night. His plea of alibi is false. The accused persons have failed to disclose how they came to know about the incident. They are the ones who have special knowledge about the incident. Adverse inference should be drawn against accused persons u/s 106 of Evidence Act. Ld. Counsel for the accused submitted that action was also not taken on the complaint Mark C of the victim . Prosecution has to stand on its own legs. 6.17 English translation of the complaint mark C dated 16.03.2015 reads as hereunder:
Sir, It is humbly submitted that I Firdaus daughter of Shaukat am resident of Loni Ghaziabad. I got married to Mohmuddin s/o Sube Khan village Satbari, House no. A51 five years ago. Demand is being continuously made from me to bring a car in dowry. On failure to bring the car, I am beaten . Twice attempt has been made to set me ablaze , however, somehow I escaped. Yesterday on 15.03.2015 at 3 O'clock my clothes and the clothes of children were burned. Thereafter, camphor was forcibly put in my mouth and SC No. 229/2017 State Vs. Sube Khan & Ors. 32 Of 43 my neck was pressed violently. Entire family troubles me. Their names are as follows: Mohmuddin, Sube Khan, Fatima, Fazru, Shahun, Nafisa w/o Zakir, Permina w/o Shahun. They regularly threatened to kill me and they beat me. Today, i.e. on 16.03.2015 I was turned out of the house after being beaten. I am going with my father.
6.18 The complaint shows that the allegations of demand of car, attempt to burn and administration of camphor were against the accused Mohmuddin. Against the remaining accused, the allegation was that they also used to trouble the victim and that they wanted to kill her. No presumption can be drawn against the accused persons regarding the incident dated 01.02.2017 on the basis of the complaint dated 16.03.2015 mark C. The incident happened after approximately two years of the complaint dated 16.03.2015.
6.19 The victim had told PW12 at the time of preparation of MLC that she had been burned by relatives. She did not tell the names of those relatives. The accused Sube Khan was present but she did not point towards him that he was one of the relatives who had burned her. PW12 did not ask the victim to name the relatives who had burned her. PW29 ASI Fateh Singh also did not ask the victim to name the relatives who had allegedly burned her. The history given by the victim at the time of preparation of MLC was contrary to the information received by PW29 on his first visit to the spot. He had been told that a lady had immolated herself whereas in the MLC, the victim stated that she had been burned by her relatives. PW29 should have SC No. 229/2017 State Vs. Sube Khan & Ors. 33 Of 43 immediately asked the victim to name the relatives but it was not done. We cannot say that by mentioning the word "relatives" to PW12, the victim intended to include her husband Mohmuddin also. The accused Sube Khan and Noor Fatima were present in the hospital. It is not the case of the prosecution that they made any attempt to threaten or persuade the victim to make statement in their favour. The victim was having dispute with the accused persons regarding transfer of the vehicle in the name of her husband. The vehicle was registered in the name of the accused Fazruddin.
We cannot rule out the possibility that out of anger the victim made the statement to PW12 that she had been burned by relatives. 6.20 In Sujit Biswas vs State of Assam (2013) 12 SCC 406 it was held thus :
"Para 13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and something "will be proved".
In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and SC No. 229/2017 State Vs. Sube Khan & Ors. 34 Of 43 unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, by keeping in mind the distance between "may be" true and "must be" true , the Court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that the miscarriage of justice is avoided, and if the facts and circumstances of the case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or mere probable doubt, but a fair doubt that is based upon reason and common sense. (vide Hanumant Govind Nargundkar vs State of MP AIR 1952 SC 343, State vs Mahender Singh Dhaiya (2011) 3 SCC 109 and Ramesh Harijan vs State of UP (2012) 5 SCC 777.
Para 14. In Kali Ram vs State of HP (1973) 2 SCC 808 this Court observed as under: (SCC P. 820, para 25) "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are SC No. 229/2017 State Vs. Sube Khan & Ors. 35 Of 43 possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in the cases wherein the guilt of the accused is sought to be established by circumstantial evidence".
6.21 The discussion above shows that it is doubtful whether the accused persons were present at the scene of crime and that the victim was burned by them in furtherance of their common intention which led to her death. Prosecution has failed to prove the charge u/s 302/34 IPC beyond reasonable doubt.
Charge u/s 304B/34 IPC 7.1 For the offence u/s 304B IPC, prosecution has to show that the lady died otherwise under normal circumstances within seven years of her marriage and 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.
7.2 It is not disputed that the victim died within seven years of her marriage and the death was unnatural. We have to examine the evidence for the second ingredient. The first complaint was made by the victim on 16.03.2015 in which she alleged that her husband was harassing her to bring a car and that the relatives of her husband also wanted to kill her. According to prosecution, the victim used to leave the matrimonial home and go to her SC No. 229/2017 State Vs. Sube Khan & Ors. 36 Of 43 parents house due to the harassment meted out to her. She would be brought back by the inlaws with the help of the mediators such as PW2 Nawab and PW3 Umed Ali. PW1 has deposed that he met Nawab 67 times since 2015 and that he did not meet Nawab before 2015. PW1 also did not know PW7 Umed Ali before 2015. PW4 Ms. Roohafza stated that initially the things were well after the marriage. There is no evidence to show that any dowry demand was made before or after the marriage and that the said demand continued even after the marriage. The demand for car started after more than four years of the marriage. Question arises whether this can be called "dowry demand" so as to attract Section 304 B IPC.
7.3 In Vipin Jaiswal vs State of Andhra Pradesh (2013) 3 SCC 684 , the accused got married to the victim on 22.02.1996. FIR was registered on 04.04.1999 alleging that sufficient dowry had been given at the time of marriage but the victim was subjected to physical and mental torture by the husband and the inlaws for not getting sufficient dowry. The husband made a demand of Rs. 50,000/ . As per the deposition of the prosecution witnesses PW1 and PW4, the demand was made after six months of the marriage as the husband wanted to buy a computer to start his own business. Hon'ble Supreme Court held that the demand was not in connection with the marriage and was not really a "dowry demand" within the meaning of Section 2 of The Dowry Prohibition Act 1961.
7.4 In the present case also, there is no evidence to show that the demand for car was continuing since the marriage. Therefore, the demand SC No. 229/2017 State Vs. Sube Khan & Ors. 37 Of 43 cannot be said to be in connection with the marrige and hence, not a dowry demand as defined under Section 2 of The Dowry Prohibition Act 1961. PW1 has deposed that the real reason behind the dispute was the car. Since prosecution has failed to establish a dowry demand, charge u/s 304B/34 IPC fails.
Charge u/s 498A/34 IPC 8.1 The charge states that at house no. C81, in furtherance of their common intention, the accused persons used to treat the victim with cruelty and harass her on account of demand of dowry and money and that she was also beaten on the issue of transfer of ownership of the Hyundai I10 car no. DL1ZA5956.
8.2 Cruelty has been defined under explanation (a) and (b) of Section 498A IPC. In the present case, the victim was being harassed and she was being treated with cruelty so that her parents could be forced to meet the demand for car. As per PW1 he was also being pressurized to give money for repayment of the loan taken to purchase the car. There also used to be quarrel over the demand of the victim to transfer the car in the name of her husband. Considering the allegations, explanation (b) of Section 498A IPC would be applicable to the present case.
8.3 Under explanation (b) to Section 498A IPC there should be an unlawful demand. The demand may not qualify dowry demand but it may still be unlawful. In this regard reference can be made to judgments by Hon'ble Supreme Court in Pradeep Kumar vs State of Haryana (2014) 7 SCC 395 SC No. 229/2017 State Vs. Sube Khan & Ors. 38 Of 43 and Modinsab Kasimsab Kanchagar vs State of Karnataka and another (2013) 4 SCC 551. Meeting of that demand is not necessary to attract Section 498A IPC but the evidence that demand was fulfilled may corroborate the allegation that such unlawful demand was made. We have to see whether there was an unlawful demand and whether all accused persons shared common intention to make the unlawful demand.
8.4 Ld. Addl. PP argued that PW2 has admitted that gold , silver and cash were given by PW1 to the accused persons. The evidence led by the accused shows that accused Fazruddin had no sufficient means to make the cash payment and he used the proceeds of gold and silver as well as the cash given by PW1 to make part payment for the car. Accused have not disclosed what was the reason for dispute between them and the victim. On the other hand, Ld. Counsel for the accused has argued that PW1 has failed to show that he had the means to give one tola gold from his own house, 1.25 kg silver and Rs.50,000/ cash to the accused persons. He has not been able to correctly tell the date , place and time when he handed over the gold, silver and cash to the accused persons. Some statements made by PW2 cannot be seen in isolation.
8.5 Firstly, let us see who was making the unlawful demand for the car. The first complaint by the victim is dated 16.03.2015. The English translation of the complaint is already mentioned above and it has been seen that the allegation of unlawful demand was specifically against the husband (Mohmuddin) . Against the other family members no specific instances were SC No. 229/2017 State Vs. Sube Khan & Ors. 39 Of 43 mentioned and there was general allegation that they also used to harass the victim and that they wanted to kill her.
8.6 Examination of the deposition of PW1 shows that the accused Nafisa, Sahun and Fazruddin did not have any talks with him in connection with the disputes which used to be settled with the help of the mediators. The car was bought in the name of accused Fazruddin but PW2 deposed that it was done as the accused Mohmuddin did not have documents to obtain the finance. PW1 has made general statement that he handed over gold, silver and cash in presence of all accused persons but he could not specify the place where it was done. In his crossexamination he stated that he handed over gold, silver and cash to the accused persons on 01.09.2016. He also deposed that in September 2016 when he went to visit his daughter, he was not allowed to go to the house of her inlaws and the meeting took place at the house of PW2. PW2 has deposed that in his presence, gold, silver and cash were not given. In his crossexamination by Ld. Counsel for the accused, PW2 made voluntary statement that he had been told separately by Sube Khan, Mohmuddin and Shaukat regarding handing over and taking over of the jewellery articles. In his crossexamination by Ld. Addl. PP , PW2 stated that Shaukat had given 3.5 tola gold of meher , one tola gold from his house and 1.25 kg of silver in September 2016 to Mohmuddin. He also stated that he was told by Shaukat that he had given Rs. 50,000/. The name of the person to whom cash was given has been wrongly typed in the statement of PW2 as Shaukat. PW2 also stated that gold and silver was given around the same SC No. 229/2017 State Vs. Sube Khan & Ors. 40 Of 43 time when the car was purchased though, in the crossexamination by Ld. Counsel for accused he stated that it was given after purchase of the car. Examination of the evidence produced through DW3 and DW4 supports the submission made by Ld. Addl. PP that cash deposits were made to purchase the car. The accused Fazruddin has not disclosed the source from where he arranged the cash amount of Rs. 1,40,000/ and Rs. 59,000/ reflected in the statement of account Ex. PW4/B produced by the dealer from whom the car was purchased. Even if the car was purchased by the accused Fazruddin using the gold, silver and cash given by PW1, the reason for purchasing the car in his name has been explained by PW2. He deposed that the car was purchased in the name of Fazruddin as Mohmuddin did not have documents to obtain the finance to purchase the car. It cannot be said that the accused Fazruddin wanted to buy the car in his own name and he was party to the unlawful demand. It is to be noted that to apply Section 34 IPC, the accused persons have to be present together and they should share the common intention. There is no evidence to this effect. After the car was purchased in the name of accused Fazruddin, its transfer in the name of Mohmuddin would have required clearing of the loan. PW1 admitted that EMIs of the car loan are being paid by Fazruddin. PW2 and PW3 have not supported the allegation made by PW1 that the accused persons were asking him to give money to repay the loan. There were quarrels over the issue of transfer of the car. On 31.01.2017 also there was a quarrel between the victim and the accused Nafisa. PW2 has deposed that the victim told him that the quarrel SC No. 229/2017 State Vs. Sube Khan & Ors. 41 Of 43 took place due to dispute regarding the car which have been purchased. Considering these facts, the quarrel over the demand of the victim to transfer the car cannot be treated as part and parcel of the unlawful demand to provide the car.
8.7 The accused Mohmuddin has not explained what was the dispute between him and the victim due to which she used to leave the matrimonial home. In the complaint dated 16.03.2015 there is specific allegation against him that he wanted a car. PW2 has deposed that he received the jewellery. Victim was insisting for transfer of the car in the name of her husband. She was not insisting for transfer of any other property owned by the accused persons. The victim would not have insisted for transfer of the car, had it not been bought with the help of her father. These facts show that the accused Mohmuddin made the unlawful demand for car. Since 2015, the victim used to leave the matrimonial house and go to her parents house. She was brought back by the accused Mohmuddin, Sube Khan and Noor Fatima with the help of the mediators. PW2 has deposed that victim was having disputes with Mohmuddin. Mohmuddin had not explained what was that dispute if not the harassment for the unlawful demand of car due to which the victim used to leave the matrimonial house. Adverse inference is to be drawn against him. As against the other accused there is no clear evidence that they shared common intention to make the unlawful demand. Therefore, prosecution has been able to prove the charge u/s 498A IPC only against the accused Mohmuddin. Against the other accused, prosecution has failed to SC No. 229/2017 State Vs. Sube Khan & Ors. 42 Of 43 prove the charge beyond reasonable doubt.
Conclusion 9.1 The prosecution has failed to prove the charge u/s 302/34 IPC against all accused persons beyond reasonable doubt and all of them are entitled to acquittal under this charge.
9.2 Prosecution has failed to prove the charge u/s 304B/34 IPC against all accused persons and all of them are entitled to acquittal under this charge.
9.3 Prosecution has proved the charge u/s 498A IPC against the accused Mohmuddin beyond reasonable doubt but it has failed to prove the charge u/s 498A/34 IPC against the remaining accused. All accused except the accused Mohmuddin are entitled to acquittal under this charge. Order 10.1 The accused Mohmuddin is convicted for the offence u/s 498A IPC. All remaining accused are acquitted for the offence u/s 498 A/34 IPC giving them benefit of doubt. All accused including the accused Mohmuddin are acquitted for the offence u/s 302/34 IPC giving them benefit of doubt and all accused including the accused Mohmuddin are acquitted for the offence u/s 304B/34 IPC. 10.2 Copy of the judgment be supplied to accused Mohmuddin free of cost. Let he be heard on the point of sentence.
(announced in the Digitally signed
(Rajesh Kumar Singh)
open Court on RAJESH Special Judge (NDPS)/ASJ
by RAJESH
KUMAR SINGH
KUMAR Date:
21st September 2019) SINGH
2019.09.21
15:17:59 South District: Saket
+0530
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