Delhi District Court
State vs Mohd. Sahid Son Of Shri Mobin Ahmed on 22 April, 2008
1
IN THE COURT OF SHRI MAHAVIR SINGHAL
ADDITIONAL SESSIONS JUDGE
KARKARDOOMA COURTS, DELHI
Case ID Number 02402R000 0 9 1 2 0 0 2
Session s Case Number 149 / 2 0 0 2
F.I.R. Number 270 / 2 0 0 2
Police Station Preet Vihar
Under Sectio n s 498A / 3 0 2 / 3 4 IPC
Commi t t e d to Sessio n s on 21.11.200 2
Argumen t s heard on 22 nd April 2008
Date of Decision 22nd April 2008
In the matter of:
State
VERSUS
1.Mohd. Sahid son of Shri Mobin Ahmed, r/o G28, Gali No.18, Jagatpuri, Delhi.
2. Nasee m Bano w / o Shri Mobin Ahmed, r/o G28, Gali No.18, Jagatpuri, Delhi.
..... Accu se d J U D G M E N T
1. Accused Mohd. Sahid and Naseem Bano have been charged in respect of offences u / s 498 A read with Section 34 IPC and 302 read with Section 34 IPC with the allegations that accused Mohd. Sahid being husb a n d and accused Naseem Page 1 of 16 2 Bano being mother in law of Shehn az, they both in furthera nce of their common intention subjected her (Shehnaz) to cruelty and also that they committed the murder of said Sheh n az by causing her death at their house.
2. Prosecution has examined 22 witnesses in support of the case. They are PW 1 Rais Ahmed, PW 2 Faizuddin, PW 3 Shakeel Khan, PW 4 Asraf Ali, PW 5 Dr. Bhim Singh, PW 6 Dr. H.S. Mahapatr a, PW 7 Tehseen, PW 8 ASI Anita, PW 9 Yavar Hussain, PW 10 Jaibu n , PW 11 HC Vinod Kumar, PW 12 K.D. Dogra, PW 13 Kamruza m a, PW 14 Constable Satya Prakas h, PW 15 HC Ramesh Chand, PW 16 Lady Constable Parmeeta, PW 17 Constable Radha Kishan, PW 18 Constable Om Kumar, PW 19 Constable Sonu Kaushik, PW 20 SI Ram Avtar, PW 21 Inspector Surender Kumar and PW 22 Dr. Dhruv Shar m a.
3. PW 5 Dr. Bhim Singh deposes that on 10.7.02, he conducted the post mortem on the body of Sheh n az and gave his report Ex.PW 5 /A. In his opinion, cause of death was cranio celebral damage conseque nt upon head injury. The injuries could be caused by blunt object. The injury No.1 was sufficient to cause death in ordinary course of nat ure. Opportu nity has been given to Ld. defence counsel to cross examine this witness. However, that opportu nity has not been availed of.
4. PW 1 Rais Ahmed is father of deceased. He deposes that Page 2 of 16 3 Sheh n az was his daughter. On 5.3.02, she was married to accused Shahid present in court. His daughter remained well for one month after marriage. Thereafter, accused Shahid and his mother, accused , dema nded scooter from the witness. He (the witness) told them that he was unable to give scooter at that time but promised to give the same at the time of marriage of his second daughter. Accused Shahid deman ded Rs . 10,000 / for doing business. Witness gave the same to him. They lived happily for some time. After that, Shahid and daughter of the witness came to his house and told him that there used to remain quarrel in their house. The witness told them to live in a room which was lying vacant in his house but they did not come. On 8.7.02, his daughter received a registered envelope containing talaqna m a which is Ex.PW 1 /A. On enquiry, his daughter told the witness that she had not signed any talaqna m a . Shahid had taken her to bank for opening account and obtained her signat u res on that pretext. She went to the house of her inlaws to find out the details of talaqna m a. After one hour, witness followed her. He saw a quarrel going on between both the accused and the daughter of witness. Both accused accu sed were telling his daughter that they would not keep her in their house. The witness requested the accused persons to call mohalla people. They called mohalla people. Intervention of mohalla persons did not yield any Page 3 of 16 4 result. In order to bring an end to the quarrel, the witness asked his daughter either to remain inside her room or to go on roof. She went on roof. Accused Naseem Bano followed her to the roof. A quarrel started between accused Naseem Bano and his daughter. The witness asked accused Shahid to get the quarrel finished. He (witness) heard Naseem Bano saying that if his daughter would not leave the house, she would be thrown. After some time, the witness heard a noise from gali that his daughter had fallen down. When accused Shahid went to the roof, the witness came out of the room in the veranda h. The witness did not see any thing upwards. Accused Shahid took his daughter ( daughter of witness) to LNJP hospital. The witness followed him. The witness gave statemen t to SDM Ex.PW 1 /B. Witness identified the dead body of his daughter vide stateme nt Ex.PW 1/C and received the same vide memo Ex.PW 1 /D. In cross examination by Ld. Addl. PP for State witness admits that he saw accused Shahid pushi ng his daughter and making her to fell down on the ground. Earlier he did not tell the same as he had forgotten the same.
5. In cross examination by Ld. counsel Shri R.S. Goswami for accused , PW 1 deposes that dema nd of scooter was made before deman d of Rs. 10,000 / . The witness did not give any money to accused Shahid before deman d of scooter. The daughter of the witness told him that she was taken to bank Page 4 of 16 5 on 3.7.02 but he does not remember the name of the bank or branch. The daughter of the witness did not leave his house before marriage. It is admitted that on 15.11.00, he lodged a missing report vide DD No.91 B at P.S Jah a ngirp uri. She was recovered 15 days after lodging of the report. The son of the witness named Shamim lodged a report about recovery of his daughter vide DD No.30 B dt. 7.1.01. Witness does not know if the boy, who took away his daughter before marriage, started visiting the house of her inlaws after marriage and took her away from there. It is denied that accused made a complaint to the witness in that regard. It is denied that witness assured him to make his daughter underst a n d and also assured about non repetition of the said incident. It is denied that due to this reason, accused Shahid and his daughter got a divorce deed prepared. It is denied that his daughter admitted guilt before the Panchayat. It is denied that the witness requested the accused persons to parden her or to keep her. It is denied that due to the said reason, his daughter went to the roof on pretext of urinating and that she jumped of her own.
6. PW 2 Faizuddin deposes that he knows both accused present in court. They are his neighbour s. On 8.7.02, he was present in Panch ayat held in the house of Mohd. Shahid. Asraf Ali, grand father of deceased, neighbo ur Shakil, Tehsin and Tasleem were also present in the said Panchayat. The Page 5 of 16 6 witness was called by Rais Ahmed, brother of deceased. The Panchayat was held as he was told that accused Shahid has divorce with the deceased. Deceased Sheh n az and her brother Rais were also present in the said Panchayat. During Panchayat, Shehn az went out on the excuse of urinating. After about two minutes, the witness heard noise of falling down of some one. He saw from the window that Sheh n az was lying down in the gali. She was having head injuries.
7. In cross examination by Ld. Addl. PP for State, PW 2 Faizuddin denies that mother in law of Shehn az went along with her (Shehnaz). It is denied that accused Shahid also went out of the room.
8. In cross examination by ld. counsel for accused, PW 2 Faizuddin deposes that accused Shahid told him that deceased was a lady of loose character. Deceased refuted the said fact. Accused Shahid asked her to swear in the name of Qura n. Deceased declined to do so and went out of the Panchayat. Her father contin ued sitting in the Panchayat. He went out after listening sound of falling down.
9. PW 3 Shakeel khan deposes that he knows both accused . They are his neighbour s. In Ju ne 2002, he heard that deceased had some affair with a person other than her husb a n d i.e accused Shahid. After some time, he heard that accused Shahid had divorced her. Rais Ahmed, father of Page 6 of 16 7 deceased called the witness in Panchayat. The Panchayat was called for settling the dispute between deceased and her husb a n d. Witness participated in the said Panchayat. The same was held in the house of accused Shahid. Accused Shahid asked the deceased to swear in the name of Quran that she did not have any affair with any other person. She was reluctan t. After some time, the witness heard noise of falling down of a person. The witness came out in the chajja and saw that Sheh n az was lying in gali.
10. In cross examination by Ld. Addl. PP for State, PW 3 Shakeel Khan denies that he saw deceased and accused Naseem Bano going to the roof while quarreling during the meeting. It is denied that accused Shahid followed them.
11. In cross examination by Ld. defence counsel, PW 3 deposes that the father of deceased continued sitting in the meeting.
12. PW 4 Asraf Ali deposes that accused Mohd. Shahid is his grand son. Deceased Shehn az was his wife. 2 / 3 months after marriage, misun der st a n di ng took place between them. Accused Shahid came to know that the deceased had affair with some boy and she had gone away with that boy. Accused Shahid divorced the deceased and she went away to her parents' house. Her father brought her back and called a Panchayat. After some time, the witness heard noise of falling down of some one. He found that deceased was lying in the Page 7 of 16 8 gali. It was 8.7.02.
13. in cross examination by Ld. Addl. PP for State, PW 4 Asraf Ali denies that accused Naseem Bano and deceased both went out of the meeting or that deceased went on the roof or that exchange of hot words contin ued between her and accused Naseem Bano. It is denied that accused Shahid also went out of the room. In cross examination by Ld. defence counsel, PW 4 deposes that father of deceased contin ued sitting in the meeting. He came out after listening the noise of falling down.
14. PW 7 Tehseen deposes that he knows both accused present in court. On 8.5.02 at about 5.00 or 6.00 p.m, he was present in his house. Father of deceased namely Raees came to him for settlement of dispute of his daughter. Witness told him that he would be reaching the house of accused . Accordingly, he went there after 10 minutes. A meeting was already going on. Accused Shahid was saying that he had divorced Shehn az as character of Sheh n az was not good. During the course of talks, Sheh n az went away from there. After some time, witness heard the noise of Dham a k a and saw Shehn az lying down in gali in front of house of accused . Witness does not know how she fell down.
15. In cross examination by Ld. Addl. PP for State, PW 7 Tehseen denies that quarrel took place frequently between Naseem Bano and Sheh n az or that Shehn az went on roof due Page 8 of 16 9 to the said quarrel. It is denied that Naseem Bano and Shahid followed Shehn az or that they went to the roof. It is denied that they started quarreling Sheh n az. It is denied that the witness saw Shehn az falling down from roof after quarrel.
16. In cross examination by Ld. defence counsel, PW 7 Tehseen deposes that father of deceased was sitting with them in the meeting. He and both the accused continued sitting with them inside the house. None of them went out. Father of deceased did not see Shehn az falling down.
17. PW 9 Yavar Hussain deposes that divorce deed Ex.PW 1 /A bears his signat u re s at point A. He signed the same at the instance of accused Mohd. Shahid on the plea that he had to obtain ration card. Wife of accused was not present at the time he signed the same divorce deed as a marginal witness. The witness knew the accused as he was residing in the gali of witness.
18. In cross examination by Ld. defence counsel, PW 9 denies that after death of Sheh n az, he colluded with her father or that he is deposing falsely at the instance of father of Shehn az.
19. PW 13 Kamruza m a deposes that he knows Mohd. Shahid. He is his friend. He knows Yavar Hussain also. Shahid obtained his signat ures as a witness on Ex.PW 1/A at point A saying that he wanted to get a ration card and in that connection, he required attestation on the form as a witness. Page 9 of 16 10
20. In cross examination by Ld. defence counsel, Kamruza m a denies that after death of Sheh n az, her father came in collusion and that he is deposing falsely.
21. PW 10 Jaibu n deposes that Sheh n az is her daughter. She married her with accused Shahid present in court on 5.3.2002. After 15 days of marriage, accused Shahid started haras sing her daughter and started deman ding scooter. After one mont h of marriage, he dema nded Rs. 10,000 / which the witness paid. The witness told Shahid that she was not able to give scooter. Accused deman ded a house also. The witness told him that she could give one room but not full house. Both accused used to beat daughter of witness. Whenever her daughter used to fall ill, accused used to leave her at her house. The witness used to provide medicines to her. After 2 to 4 days, accused used to take her back. On 5.7.02, accused Shahid left her daughter at her house on the plea that he was going out station for one week. On 8.7.2002, they received a letter from accused Shahid. It was divorce deed. The witness asked her daughter about the said divorce deed. She told the witness that her thu m b impression was obtained on the pretext of opening bank accoun t by accused. On the same day, Shehn az went to the house of her inlaws. The husba n d of the witness followed her. At about 9/ 1 0 PM, her husb a n d telephonically informed her from hospital that accused persons had pus hed Page 10 of 16 11 Sheh n az from roof . Shehn az expired in hospital.
22. In cross examination by Ld. defence counsel, PW 10 Jaibu n deposes that she did not lodge any police report regarding deman d of dowry. However,she told this fact to the police in hospital before the death of Shehn az. The witness again said that she informed this fact to police after death of her daughter. She told the police that she gave Rs. 10,000 / to accused Shahid. The witness is confronted with portion A to A of her stateme nt Ex.PW10 / DA where this fact is not recorded in this man ner. No deman d was made before marriage.
23. In the statemen t s U/ s 313 Cr.P.C, both the accused have stated that present case is false.
24. Accused have examined DW1 Shakil Khan. This witness deposes that he knows accused Shahid present in court. He is living near the house of witness. 15 to 16 persons gathered in 2002 when a Panchayat was held. It was held as there was a dispute in respect of Talaq. Talks were going on at the house of accused present in court. The witness heard that wife of accused Shahid wanted to take divorce from him. It was also heard that his wife wanted to marry with some one. It was heard that the name of that man was Gul. Accused Shahid refused to give divorce. Suddenly, the girl came out of the house and her cry was heard. Many persons including accused saw her crying. The witness saw that she had fallen down. The Page 11 of 16 12 witness took Shehn az to Deepak Nursing Home. Accused Shahid also accompa nied the witness. In cross examination by Ld. Addl. PP for State Shri Ramesh Kumar, DW 1 Shakil Khan deposes that he has no personal knowledge in respect of any dispute between accused Mohd. Shahid and his wife.
25. I have heard final argume n t s from both the parties i.e Shri Ramesh Kumar, Addl. PP for State and Ld. counsel Shri Abdul Sattar, Amicus Cariae for the accused . I have perused the case file carefully.
26. It is the cardinal principle of criminal law that prosecution has to prove its case beyond reasonable doubt. Prosecution has to stand upon its own legs.
27. Section 498 A IPC provides as below: "Whoever, being the husband or the relative of the husband of a woman, subject s such woman to cruelty shall be punish ed with imprison m e n t for a term which may exte nd to three years and shall also be liable to fine.
Explanatio n. For the purpose of this Sectio n, "cruelty" means
(a) any wilful conduc t which is of such a nature as is likely to drive the woman to com mi t suicide or to cause grave injury or danger to life, limb or health (wheth er mental or Page 12 of 16 13 physi cal) of the woman; or
(b) harass m e n t of the woman where such harass m e n t is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".
28. PW 1 Rais Ahmed deposes that accused Shahid deman ded Rs. 10,000 / for doing business. The witness gave the same to him. On the other hand, PW 10 Jaibu n deposes that after one month of marriage, accused Shahid deman ded Rs. 10,000 / which she paid. Thus, PW 1 Rais Ahmed deposes that he paid Rs. 10,000 / to accused Shahid and PW 10 Jaibu n deposes that she paid Rs. 10,000 / to accused Shahid. This is a material contradiction in the evidence of prosecution witnesses. Further, it is worth noting that in cross examination by Ld. defence counsel, PW 10 Jaibu n deposes that she did not lodge any police report regarding dema nd of dowry. She informed this fact to police in hospital after death of her daughter. No lodging of police report regarding deman d of dowry before death of Shehn az and making police report in this regard after her death creates a doubt that the report in this regard may be after thought. Thus, it is not proved that there was haras s m e n t to deceased on the part of accused with Page 13 of 16 14 a view to coercing her or her parent s to meet any unlawful deman d for any property or valuable security or on accoun t of failure by her or any person related to her to meet such deman d.
29. In view of above discus sion, I am of the considered view that offence U/s 498 A IPC is not proved against accused beyond reasonable doubt.
30. Section 302 IPC provides punis h m e n t for offence of murder. Offence of murder is defined in Section 300 IPC. The same interalia provides as below: "Except in the cases hereinaft er except ed, culpable homi cide is murder, if the act by which the death is caused is done with the intenti o n of causing death, or Secondly. If it is done with the intenti o n of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intent i o n of causing bodily injury to any person and the bodily injury intend ed to be inflict ed is sufficien t in the ordinary course of nature to cause death, or Fourthly. If the person com m i t t i ng the act Page 14 of 16 15 knows that it is so immin e n tl y dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and com m i t s such act without any excus e for incurring the risk of causing death or such injury as aforesaid."
31. In the present case, PW 1 Rais Ahmed has been examined as eye witness to the occurrence. This witness interalia deposes that he heard Naseem Bano saying that if his daughter would not leave the house, she should be thrown. After some time, the witness heard a noise from the gali that his daughter had fallen down. When accused Shahid went to the roof, he came out of the room in the veranda h. The witness did not see anything upwards. In cross examination by Ld. Addl. PP for State, the witness admits that he saw accused Shahid pushing his daughter and making her to fall down on the ground. It is worth noting that in examination in chief, PW 1 Rais Ahmed has categorically deposed that he did not see anything upwards. If this be so, the witness must not have seen accused Shahid pushing his daughter and making her to fall down on the ground. The evidence of the witness to the contrary in cross examination by Ld. Addl. PP does not inspire confidence. Further, PW 2 Faizuddin deposes that father of deceased continued sitting in the Panchayat. He went out after Page 15 of 16 16 listening sound of falling down. Similarly, PW 3 Shakeel Khan deposes that father of deceased continued sitting in the meeting. He came out after listening the noise of falling down. Moreover, PW 7 Tehseen deposes that father of deceased, did not see Shehn az falling down. He (father of deceased) was sitting with them in the meeting. He and both accused coninued sitting with them inside the house.
32. In view of above pieces of evidence and also in view of above discus sion, I am of the considered view that it is not proved beyond reasonable doubt that PW 1 Rais Ahmed is an eye witness. Thus, it is not proved on record that on 8.7.02, both the accused in furthera nce of common intention committed the murder of Sheh n az by causing her death at their house.
33. In view of my above discus sion, accused Mohd. Shahid and Naseem Bano are acquitted in respect of offences U/s 498 A/34 and U/ s 302 / 3 4 IPC. Accused are on bail. Their personal bonds and surety bonds are cancelled. Sureties are discharged. File be consigned to Record Room. Annou nced in the open court On : 22.4.2008.
(MAHAVIR SINGHAL) Additional Sessions Ju dge Karkardoom a Courts: Delhi Page 16 of 16