Delhi District Court
State vs . Nafis Khan S/O Abdul Gafoor Khan, R/O ... on 4 August, 2011
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : INCHARGENE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No.04/10
Unique Case ID No. 02402R0369842009
State Vs. Nafis Khan S/o Abdul Gafoor Khan, R/o D176, Janta
Colony, Welcome, Near Chatai Wali Masjid, Delhi.
FIR No. 207/2009
PS Welcome
U/s 498A/304B IPC.
Date of Institution : 27.01.2010
Date of Reserving the Judgement : 13.07.2011
Date of Pronouncement : 21.07.2011
J U D G E M E N T : Marriages are made in heaven, is an adage. A bride leaves the parental home to the matrimonial home, leaving behind sweet memories there, with a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughterinlaw, but a daughter in fact. Alas ! The alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatters the dreams. Inlaws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The S.C. No. 04/10 Page 1/54 2 terrorist is dowry, and it is spreading tentacles in every possible direction.
2. Present is another case of unnatural death of a young lady within three years of her marriage. Name of the deceased is Farzana. The accused is her husband Nafis Khan.
3. Prosecution's case emanates from the fact that on 04.10.09 DD No. 18A was received by ASI Jalbir Singh. In pursuance to said DD entry, he along with Constable Surender reached at Chataiwali Masjid, Janta Colony, where they came to know that a burnt lady was removed to GTB Hospital. On reaching GTB Hospital, the name of burnt lady was revealed as Farzana, wife of Nafis. She was declared unfit for statement by the doctor as she was in 99% burnt condition. ASI Jalbir Singh called the crime team and got the spot inspected and photographed. Thereafter, on 06.10.09, Farzana succumbed to her burnt injuries. Shakeena Khatoon, mother of Farzana was also present in the hospital. Her statement was recorded by the police. She detailed therein that about three years ago, she got her daughter Farzana married with accused Nafis. Soon after the marriage, he started harassing Farzana and used to beat her. He used to demand a sum of Rs.20,000/ from her. When Farzana refused to pay, he used to beat her. Someone from the neighbourhood called at 100 number and informed the police that a lady has been burnt at Chataiwali Gali, Janta Colony, Welcome, Delhi. Statement of Shakeena Khatoon became S.C. No. 04/10 Page 2/54 3 bedrock of the case. Investigation was taken up. Postmortem on the dead body of Farzana was got conducted. During the course of investigation, accused Nafis Khan was arrested. Investigation culminated into a chargesheet against him.
4. Charge for offences punishable under sections 498A, 304B and 302 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
5. To substantiate the charge, prosecution has examined ASI Sheela (PW1), Dr. S. Kohli (PW2), Sh. Vimal Kumar (PW3), Tarun Kumar Sharma (PW4), SI E.S. Yadav (PW5), Dr. Shweta (PW6), Shakeena Khatoon (PW7), Mohd. Zameel (PW8), HC Jitender Kumar (PW9), Constable Sonu Kumar (PW10), Constable Surender (PW11), ASI Jalbir Singh (PW12), Constable Sunil Kumar (PW13), Dr. Ashish Rai (PW14), Inspector Surender Singh (PW15) and HC Jaipal Singh (PW16) in the case.
6. PW1 ASI Sheela was working as duty officer on 06.10.09. She recorded FIR and proved copy of the same as Ex.PW1/A. PW2 Dr. S. Kohli proved MLC of Farzana as Ex.PW2/A, which was prepared by Dr. Hitender.
PW3 Sh. Vimal Kumar, Executive Magistrate, recorded statements of parents of Farzana, namely, Shakeena Khatoon and Mohd. Jameel, which are Ex.PW3/A and Ex.PW3/B respectively.
S.C. No. 04/10 Page 3/54
4 PW4 Tarun Kumar Sharma proved photographs and negatives, which were taken while inspecting the site, as Ex.W4/A collectively.
PW5 SI E.S. Yadav inspected the place of occurrence and handed over his report to this effect to Inspector S.S. Duggal.
PW6 Shweta, Jr. Demonstrator, conducted postmortem on the dead body of Farzana. She proved the postmortem report as Ex.PW6/A. PW7 Shakeena Khatoon is the mother of deceased Farzana. PW8 Mohd. Jameel is the father of deceased Farzana. PW9 HC Jitender Kumar removed Farzana to GTB Hospital and got her admitted there.
PW10 Constable Sonu Kumar deposited exhibits of the case at FSL Rohini vide RC No.148/21/09.
PW11 Constable Surender joined investigation of the case on 04.10.09. He detailed those investigative steps, which took place in his presence.
PW12 ASI Jalbir Singh stated those very investigative steps, which took place in his presence.
PW13 Constable Sunil Kumar was working as duty Constable at GTB Hospital on 06.10.09. He transmitted the message regarding admission of a lady in burnt condition in the hospital.
PW14 Dr. Ashish Rai proved death certificate of Farzana as S.C. No. 04/10 Page 4/54 5 Ex.PW14/A. PW15 Inspector Surender Singh conducted investigation of the case. He completed investigation and filed the challan in the Court.
PW16 HC Jaipal Singh was working as MHC(M) on 04.10.09. He received exhibits of the case on different dates in respect of the case and proved the entries recorded in this regard in register No.19.
7. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He admitted that Farzana was got married with him about two or three years ago from the date of incident, that is, 04.10.09. He also admitted that he along with deceased Farzana were residing in a rented room near Chataiwali Masjid, Welcome, Delh. However, he had denied all other allegations levelled against him. His rest of the case has been of denial simpliciter. He projected that on 04.10.09, he was at Anand Vihar Metro Station. He was an auto driver. He received a telephone call from his neighbour regarding the incident. He rushed to the GTB Hospital, where he found his wife Farzana admitted there and she was unconscious at that time. Till the death of Farzana, he remained in the hospital and she did not regain her consciousness. Her motherinlaw Shakeela Khatoon demanded money from him and he used to fulfill her demand. On 05.10.09, she also demanded Rs.1 lac but he refused to pay the same as S.C. No. 04/10 Page 5/54 6 he was not in a position to give the payment of Rs.1 lac and due to this reason he was falsely implicated in this case. No complaint was made by his wife at any point of time. He told all the facts to the Executive Magistrate and to the police but they did not record her statement. Shakeela Khatoon used to demand money from his wife Farzana and due to this reason she used to remain tense. He was arrested from the hospital itself by the police. To defend himself, he has examined Ms. Tahera (DW1), Yunus Khan (DW2) and Anis (DW3) in support of his case.
8. I have heard Sh. Atul Srivastava, ld. Public Prosecutor for the State and Sh. Sajjid Ali, Advocate for the accused and have perused the record.
9. It was submitted by counsel for the accused that prosecution is relying upon the dying declaration. However, this dying declaration is shrouded with mystery, inasmuch as, as per MlC the victim was brought to hospital at 9.15pm. However, PW2 Dr. S. Kohli deposed that injured was brought to hospital at 8.30pm. Moreover, when injured was brought to hospital at about 9.15pm, she was declared unfit for statement. There is also another endorsement at 10.05pm that she was unfit for statement. Thereafter also she remained unfit till the time she expired on 06.10.2009. However, surprisingly at about 9.30pm, she was declared fit for statement. He also challenged the testimony of Dr. S. Kohli by stating that this witness was examined twice, once on 22.02.2010 and for the second time S.C. No. 04/10 Page 6/54 7 on 16.05.2011. When he appeared on 22.02.2010 at that time he deposed that victim made a statement, which was recorded by some police officials, but he did not give name of police officials who recorded that statement. However, when he was called for second time at the initial juncture itself he stated that ASI Jalbir Singh recorded her statement. He admitted in crossexamination that victim Farzana was not examined by him personally nor he referred her to the surgical ward. That being so, where was the occasion for him to declare her fit at 9.30pm to witness the alleged recording of statement. He further submitted that right from the beginning when victim was brought to hospital till she expired, she was unfit for statement and this fact finds strength from the fact that PW3 Sh. Vimal Kumar, Executive Magistrate has deposed that he was informed by the investigating officer on 04.10.09 at about 10pm regarding admission of a lady, namely, Farzana in burnt condition. He asked him to inform as and when the patient is declared fit for statement, but till her death she remained unfit for statement. He also referred to the testimony of PW12 ASI Jalbir Singh, who deposed that injured was declared fit for statement by the Chief Medical Officer and therefore he recorded statement Ex.PW2/B. He referred to the FIR for submitting that in FIR itself it is mentioned that she was not fit for statement. Under these circumstances, it was submitted that at no point of time the injured was fit for statement, S.C. No. 04/10 Page 7/54 8 and therefore there was no question of recording her statement. That being so, no reliance can be placed on the alleged dying declaration.
It was further submitted that even the provisions of Section 498A are not attracted in the instant case, inasmuch as, mother of deceased was a rag picker while her father was a rickshaw puller, who was also not earning anything. In fact the acused used to render financial help to them. It was a love marriage, and therefore there was no question of giving any dowry article in the marriage or making any subsequent demands. As such it was submitted that prosecution has miserably failed to bring home guilt of the accused beyond reasonable doubt. As such accused is entitled to be acquitted.
10. Per contra, it was submitted by ld. Prosecutor that in PCR form there is a mention that a lady set herself on fire. PW2 Dr. S. Kohli has deposed that condition of the patient was unstable. That being so, it kept on changing. Even if she was declared unfit for statement on 09.15.pm, she became fit for statement at 9.30pm, therefore in presence of the doctor statement of injured was recorded. Moreover, her recording of the dying declaration by ASI Jalbir Singh is worth considering, inasmuch as, he is not the investigating officer of the case and is therefore not interested witness, inasmuch as, the investigating officer was some other police official. As and when Farzana became fit for statement, her S.C. No. 04/10 Page 8/54 9 statement was recorded by ASI Jalbir Singh in presence of Dr. S. Kohli, who was an independent witness. As such it was submitted this dying declaration itself is sufficient to convict the accused. It was further submitted that even offence under section 304B IPC is duly proved, inasmuch as, it is undisputed case of the parties that unnatural death had taken place within 7 years of marriage. Mother and father of the deceased have clearly deposed that soon before the death, a sum of Rs.20,000/ was demanded. Due to nonfulfil of this demand, unfortunate incident had taken place. He also referred to the conduct of the accused for submitting that accused fled away from the spot. When he was arrested, he did not offer any explanation as to how the injured died. Moreover, truthfulness of the case lies in the fact that except for accused, none of his other family members have been implicated. Moreover, occurrence took place within matrimonial home, hence under section 106 of Evidence Act burden was upon the accused to prove as to how the incident had taken place. He also referred to FSL report in which kerosene oil was detected. As such, it was submitted that prosecution has been able to establish its case beyond reasonable doubt and accused is liable to be convicted for offence under section 498A/304B IPC.
11. I have given my considerable thoughts to respective submissions of the ld. counsel for the parties and have carefully perused the record. S.C. No. 04/10 Page 9/54
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12. Section 304B IPC deals with dowry death which reads as follows : "304B. Dowry Death (1) Where the death of a woman by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand of dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this subsection 'dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
13. The provision has application when death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand of dowry.
14. In order to attract application of section 304B, the essential S.C. No. 04/10 Page 10/54 11 ingredients are as follows :
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(vi) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
15. Section 113B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows : "113B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation - For the purposes of this section 'dowry death' shall have the S.C. No. 04/10 Page 11/54 12 same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."
16. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the preexisting law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive section 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B IPC and the wording in the presumptive section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman.
(2) The woman was subjected to cruelty or harassment by her husband or S.C. No. 04/10 Page 12/54 13 his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand of dowry.
(4) Such cruelty or harassment was soon before her death.
17. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'.
18. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of section 498, IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A, IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Section 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A S.C. No. 04/10 Page 13/54 14 gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences, it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to section 498A under which 'cruelty' by itself amounts to an offence. Under section 304B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. Period of operation of section 113B of Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.
19. Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') defines "dowry" as under : Section 2. Definition of 'dowry' - In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I for the removal of doubts, it is hereby declared that S.C. No. 04/10 Page 14/54 15 any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II - The expression 'valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
20. The word "dowry" in Section 304B, IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties" Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry".
21. This being the legal position, let us turn to the case in hand.
22. As regards the ingredients that death should have occurred within seven years of marriage, it is undisputed case of the parties that death of Farzana had taken place within seven years of her marriage, inasmuch as, it has come in the testimony of Shakeena Khatoon and Mohd. Jameel that Farzana got married to accused Nafis about three years prior to the S.C. No. 04/10 Page 15/54 16 incident, and this fact was admitted by the accused in his statement recorded under section 313 Cr.P.C.
23. As regards other ingredients that death of Farzana took place under the circumstances other than normal, the fact that deceased had met her unnatural death is not in dispute. In the first information report, it was categorically stated that deceased died due to burn injuries. When Farzana was brought to GTB Hospital by HC Jitender, the history was also of burn (nearly 99%). As per postmortem report Ex.PW6/A, the cause of death was shock, as a result of antemortem flame burn involving 100% of total body surface area. Even the accused in his statement recorded under section 313 Cr.P.C has not disputed that Farzana died due to burn injuries. Under these circumstances, it is established that death of Farzana had occurred otherwise then under normal circumstances.
24. Now it is to be seen whether Farzana was subjected to cruelty or harassment by her husband and this harassment was in connection with dowry demand. In this connection, prosecution has primarily relied upon the statement Ex.PW2/B made by Farzana, relating to the cause of her death and testimony of her parents.
25. In order to prove remaining two essential ingredients, prosecution is basically relying upon : (1) dying declaration made by Farzana, and S.C. No. 04/10 Page 16/54 17 (2) testimony of her parents.
26. First of all, I shall take up the dying declaration.
27. Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60 of the Evidence Act. The eighth clauses of section 32 are exceptions to the general rule against hearsay. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eyewitness to the crime, the S.C. No. 04/10 Page 17/54 18 exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court of Justice. These aspects have been eloquently stated by Lyre LCR in R.v. Wood Cock (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain :
"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? What is the world should make me now deceive, Since I must lose the use of all deceit?
S.C. No. 04/10 Page 18/54
19 Why should I then be false since it is true That I must die here and live hence by truth?"
The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth."
28. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
29. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either S.C. No. 04/10 Page 19/54 20 tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. Hon'ble Apex Court has laid down in several judgements the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817) :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja and Anr.
v. The State of Madhya Pradesh (1976) 2 SCR 764].
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh v. Ram Sagar Yadav and Ors. AIR 1985 SC 416 and Ramavati Devi v. State of Bihar AIR 1983 SC 164]. S.C. No. 04/10 Page 20/54
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(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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994].
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)].
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M.P. AIR 1982 SC 1021].
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath and Ors. v. State of U.P. 1981 (2) SCC 654].
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidau AIR 1981 SC 617].
(viii) Equally, merely because it is a brief statement, it is not to be S.C. No. 04/10 Page 21/54 22 discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza and Ors. v. State of Bihar AIR 1979 SC 1505].
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [Nanahau Ram and Anr. v. State of Madhya Pradesh AIR 1988 SC 912].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan and Ors. AIR 1989 SC 1519].
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [Mohanlal Gangaram Gehani v. State of Maharashtra AIR 1982 SC 839].
30. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated S.C. No. 04/10 Page 22/54 23 therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. Same view was taken in Gangotri Singh v. State of U.P. (JT 1992 (2) SC 417); Goverdhan Raoji Ghyare v. State of Maharasthra (JT 1993 (5) SC 87); Meesala Ramakrishan v. State of Andhra Pradesh (JT 1994 (3) SC 232); State of Rajasthan v. Kishore (JT 1996 (2) SC 595); Muthu Kutty and Anr. v. State by Inspector of Police, T.N. (2005 (9) SCC 113); Sham Shankar Kankana vs. State of Maharasthra, (2006) 13 SCC 165; Mohanlal vs. State of Haryana, (2007) 9 SCC 143; Vikas vs. State of Maharashtra, (2008) 2 SCC 516; Jayabalen vs. State of Pondicherry, (2010) 1 SCC 199 = 2010 Cr.L.J. 2234 and Jaikaran vs. State of Delhi, (1999) 8 SCC 161.
31. PW12 ASI Jalbir Singh has deposed that on 04.10.09, he was posted at PS Welcome. On that day, on receipt of DD No.18A Ex.PW12/A, he along with Constable Surender went at one house near Chataiwali Masjid, Janta Colony, Welcome. On inquiry, he came to know that injured S.C. No. 04/10 Page 23/54 24 has already been taken to GTB Hospital. After leaving Constable Surender to remain at the spot to safeguard the site, he went to GTB Hospital, collected MLC of injured in which the patient was shown 99% burnt and unfit for statement. He contacted doctor (junior resident) and also CMO GTB Hospital. CMO went near Farzana. At that time she was in a position to talk. Doctor asked him to record whatever the injured was saying. As such in presence and at the direction of Dr. S. Kohli, CMO GTB Hospital, he recorded statement of Farzana Ex.PW2/B, read over the same to her and obtained her thumb impression at point 'B'. Thereafter, he went to place of occurrence and conducted remaning proceedings.
32. As stated above, Dr. S. Kohli was initially examined on 22.03.2010.
At that time, this witness deposed that on 04.10.09 he was posted as CMO. On that day Dr. Hitender, Jr. Resident was working under his supervision. As per MLC, patient Farzana, 18 years was brought by HC Jitender of PCR with the alleged history of burns (nearly 99%) at about 8.30pm. There was no history of lost consciousness, seizure and ENT Bleeding. On examination, condition of patient was unstable. After initial statement, patient was referred to surgical emergency. The patient was unfit for statement. He proved MLC of patient as Ex.PW2/A, which was prepared by Dr. Hitender. He further deposed that on the same date, he made his endorsement on the MLC to the effect that patient was fit for S.C. No. 04/10 Page 24/54 25 statement at 9.30pm at point 'B' which bears his signatures at point 'B1'. In crossexamination, he deposed that one police official recorded statement of Farzana in his presence, but it was not mentioned in the statement as to who recorded her statement. He also admitted that date is not mentioned beneath the thump impression of Farzana. This witness was recalled on an application moved by the ld. Prosecutor on 16.05.2011. At that time, at the outset, in his examinationinchief, he deposed that on 04.10.09 he was working as CMO in GTB Hospital. On that day, ASI Jalbir Singh recorded statement of Farzana and that ASI Jalbir Singh recorded the statement verbatim. The same was read over to the injured, who after accepting it to be correct put her right thump impression at point 'E'. In crossexamination, the witness deposed that Farzana was admitted in emergency at about 9.15pm on 04.10.09 and that she was medically examined by some other doctor. He admitted that he did not examine Farzana pesonally. He also did not refer her to surgical ward and he went on stating that doctor who examined her referred her to the surgical ward. He admitted that name of the person who recorded the statement is not mentioned in the statement Ex.PW2/B.
33. The crucial question for consideration in the instant case is whether the deceased made any statement or not. As per MLC when injured was brought to hospital by PCR van at 8.30pm, she was examined by Dr. S.C. No. 04/10 Page 25/54 26 Hitender and he declared her unfit for statement at 9.15pm. The patient was brought with alleged history of burnt (merely 99%). There is another endorsement at 10.05pm on the same day ad even at that time she was declared unfit for statement. On 05.10.09 also she was examined at 9.30am and was declared unfit for statement. As stated above, the patient succumbed to injuries on 06.10.09. The testimony of Sh. Vimal Kumar, Executive Magistrate is worth consideration, inasmuch as, this witness has deposed that on 04.10.09 at about 10pm, he received information from ASI Jalbir Singh to the effect that one lady, namely, Farzana has been burnt at Chataiwali Gali, Janta Colony, Welcome and PCR officials have taken injured to GTB Hospital. He inquired from ASI Jalbir Singh regarding fitness of the injured to make her statement and he informed him that the patient is unfit for statement. He also asked ASI Jalbir Singh to inform him as and when the patient is declared fit for statement by the doctor, so that he may record her statement. On 05.10.09 he went to GTB Hospital and came to know that patient Farzana was still unfit for statement. On the intervening night of 05/061009, Farzana died in the hospital. On 06.10.09 at about 10/10.30am, he reached mortuary GTB Hospital, where he met Shakeena Khatoon, mother of Farzana, and Mohd. Zameel (father of Farzana) and recorded their statements Ex.PW3/A and Ex.PW3/B and forwarded their statement for taking S.C. No. 04/10 Page 26/54 27 necessary action. It has come in his crossexamination that he did not receive any information from the hospital or from any police official in between 04.10.09 and 05.10.09 regarding fitness of the patient.
34. It is pertinent to note that as per testimony of ASI Jalbir Singh and Dr. S. Kohli, the patient was fit statement at 9.30pm and at that time he had recorded statement of Farzana. According to Sh. Vimal Kumar, Executive Magistrate, he was informed by ASI Jalbir Singh regarding admission of Farzana in burnt condition in the hospital at 10pm. There is nothing in the statement of witness that at that point of time ASI Jalbir Singh informed him that he has already recorded statement of injured Farzana. Moreover, on the basis of endorsement made by executive Magistrate on the statement of parents of deceased, rukka Ex.PW12/B was prepared by ASI Jalbir Singh. A perusal of the same also goes to show that there is absolutely no averment in the rukka that he had recorded statement of Farzana at 9.30pm on 04.10.09. Surprisingly, the alleged dying declaration is not even signed by ASI Jalbir Singh. Moreover, if Farzana had made statement before ASI Jalbir Singh, it is not explained as to why the FIR was not got registered on that statement itself because in this statement it is recorded that Farzana got married with Nafis about three years ago. There was no issue. Her husband is a TSR driver. He used to indulge in gambling and used to consume liquor. He did S.C. No. 04/10 Page 27/54 28 not pay any money for household expenses and on that account there used to be frequent quarrel. On that day also, a quarrel had taken place. When they were residing in Sunder Nagri, at that time her husband poured kerosene oil on her. But a call was made and she was saved. On that day, her husband brought kerosene oil and told her to burn herself. She poured kerosene oil on her self and started setting herself on fire. Her husband Nafis told her in case she brings Rs.20,000/ then he will save her. She set herself on fire and then on seeing her burning, her husband went away. There are substantial allegations against the accused in this statement and had this statement been recorded by ASI Jalbir Singh in presence of Dr. S. Kohli, there is absolutely no reason as to why FIR was not got registered at the initial juncture itself and why the same was registered only after the injured breathed her last on 06.10.09 and her parents made a statement. Not only this, after Farzana died, investigation of the case was handed over to Inspector S.S. Duggal. Statement of ASI Jalbir Singh was recorded under section 161 Cr.P.C. I have carefully gone through this statement. Even in this statement, there is no whisper that injured made any statement before ASI Jalbir Singh on 04.10.09. I have also gone through the case diary, which is also conspicuously silent regarding recording of any statement of Farzana by ASI Jalbir Singh.
35. Result of the aforesaid discussion is that alleged statement of S.C. No. 04/10 Page 28/54 29 Farzana Ex.PW2/B is shrouded with mystery due to following reasons :
(a) The alleged statement is stated to be recorded by ASI Jalbir Singh. However, the same is not signed by him.
(b) ASI Jalbir Singh at no point of time stated anywhere that he had recorded statement of Farzana in presence of Dr. S. Kohli and throughout the Executive Magistrate was informed that she remained unfit for statement.
(c) Had this statement been recorded by ASI Jalbir Singh, the same being earliest in time would have formed the basis of FIR.
36. In view of the foregoing discussions, no reliance can be placed on the alleged statement Ex.PW2/B allegedly made by Farzana and therefore it is not established beyond reasonable doubt that Farzana made any statement before any police officer in presence of any doctor relating to cause of her death. That being so, this alleged statement cannot be said to be a dying declaration made by the deceased, and therefore no reliance can be placed on the same.
37. Now we are left with the statement of Shakeena Khatoon, mother of deceased, and Mohd. Zameel, father of deceased.
38. Record reveals that after deceased succumbed to injuries, Sh.
Vimal Kumar, Executive Magistrate, recorded statement of Shakeena Khatoon Ex.PW3/A, wherein she state that after marriage, her soninlaw S.C. No. 04/10 Page 29/54 30 started harassing her daughter and used to beat her. Many a times, he used to demand Rs.20,000/, but considering financial condition of her parents, her daughter used to decline and then accused used to beat her daughter. When she appeared in the witness box, she unfolded that her daughter Farzana got married with Nafis about three years ago. Initially she was kept well for two or three months. Thereafter accused started harassing her daughter. He used to quarrel and beat her. Whenever her daughter used to come to her house, at that time also Nafees used to quarrel with her daughter, and beat her in her presence. He used to demand sometime Rs.5,000/ and sometime Rs.10,000/. Her daughter was beaten to the extent that she left her food. She had fallen sick and suffered from tuberculosis. She brought her daughter to her house and arranged for her medical treatment for about 9 months and thereafter Nafis had taken her. Few days before the fateful day, accused demanded an amount of Rs.20,000/. On 04.10.09, she was informed by police officials that her daughter has been admitted in burnt condition in GTB Hospital. She went to GTB Hospital and remained with her daughter for two days. During this period, her daughter informed her that Nafis demanded an amount of Rs.20,000/ from her and when she refused to bring the same she was beaten by Nafis and Nafis poured kerosene oil on her and lit fire. One year prior to the incident, Nafis poured kerosene oil on S.C. No. 04/10 Page 30/54 31 the body of her daughter, but she saved herself. Matter was reported to Women Cell. Brother and sister of accused were informed. After intervention of people, matter was compromised. On the date of occurrence, her daughter was residing with Nafis in a rented accommodation at Chataiwali Masjid, Welcome. Condition of her daughter was critical and she used to regain consciousness after two or three hours and at that time she used to tell her regarding her happening. In cross examination she admitted that it was her second marriage with Mohd. Zameel. Farzana was born from the loins of her previous husband. She denied the suggestion that since Farzana was daughter of her previous husband, he used to beat and abuse Farzana or that he used to demand money from Farzana or that he used to given money to her. She also denied the suggestion that her husband was unemployed and was not earning anything or that due to this reason he used to demand money from her daughter Farzana. She also denied that her daughter Farzana and accused Nafis used to bear their day to day expenses. She went on stating that she has two sons and her husband and sons are earning. She further deposed that she used to vist at the house of Nafis to meet her daughter, but later on she stopped as he used to quarrel and beat her daughter in her presence. She denied the suggestion that she used to visit house of Nafis continuously and used to demand money from him or that S.C. No. 04/10 Page 31/54 32 he used to give money to her or that she stopped visiting his house when he refused to give her money. Although she admitted that she did not organize any panchayat after accused demanded an amount of Rs. 5,000/, Rs.10,000/ and Rs.20,000/ as dowry, but deposed that once she reported the matter against the accused Nafis regarding harassing and beating her daughter Farzana. She went on stating that she wanted matrimonial relationship between Farzana and Nafis to remain intact. One year prior to the date of occurrence, accused Nafis poured kerosene oil on her daughter and she complained to Women Cell. But brother and sister of accused came and the matter was compromised. She denied that no such occurrence had taken place or that she was deposing falsely.
39. PW8 Mohd. Jameel, father of deceased gave confirmation to facts as deposed by Shakeena Khatoon and this witness has also deposed that after keeping peacefully for initial period of five or six months, accused started harassing his daughter. He used to quarrel and beat her. He used to make demand, sometime of Rs.5,000/ and sometime of Rs.10,000/ from his daughter. He also deposed that his daughter was beaten to the extent that she stopped taking food and had fallen sick. She suffered from tuberculosis. As such she was brought to his house and medical treatment was provided to her. Thereafter, accused took his daughter with him. He has also deposed regarding demand of Rs.20,000/ few days before the S.C. No. 04/10 Page 32/54 33 fateful day by the accused. He also corroborated the testimony of Shakeena Khatoon by deposing that prior to this incident, accused had poured kerosene oil on the body of Farzana, but at that time she was saved. Matter was reported to women cell. Brother and sister etc of the accused were called and after intervention of people, the matter was compromised. This witness has also denied the suggestion that Nafis and Farzana were living happily. It is pertinent to note that there was no suggestion to the witness that no demand of Rs.5,000/ or Rs.10,000/ or Rs.20,000/ was made from Farzana by the accused at any point of time. The factum of demand of Rs.20,000/ as stated by Shakeena Khatoon as well as this witness before the SDM was reiterated before the Court. The maltreatment to Farzana is manifest from the fact that due to beatings given to Farzana, she had fallen sick and therefore had to be treated. Testimony of Shakeena Khatoon and Mohd. Jameel in this regard also goes unchallenged, inasmuch as, there is no crossexamination that Farzana had never fallen sick or was never medically treated. Under these circumstances, from corroborative testimony of Shakeena Khatoon and Mohd. Jameel, it stands proved that after five or six months of marriage, accused started harassing Farzana and used to beat her. There were continuous demands of Rs.5,000/, Rs.10,000/ and Rs.20,000/. She had even fallen sick due to continuous harassment. Earlier also an attempt S.C. No. 04/10 Page 33/54 34 was made to take life of the deceased as kerosene oil was poured on her. But somehow at that time she was saved. The matter was reported to Women Cell. After intervention of family members, the matter was compromised.
40. Uday Chakraborty & Ors. vs. State of West Bengal, 2010 VII AD (SC) 451 was also a case under section 498A/304B IPC. In that case the marriage survived for a period less than two years. In that case also the girl died of burn injuries. In the complaint specific allegations of demand of dowry were not made. But during the course of investigation, the facts came to the light from evidence on record and from statements of various persons made to that effect. The question arose that the father of the girl initially gave complaint, but did not give detailed information and Hon'ble High Court observed as under : "ld. Advocate for the appellants vehemently argued that this claim of demand of dowry by the accused persons is nothing but an afterthought, since there was no such mention in the First Information Report. In this respect, he has placed reliance upon the decision reported in AIR 1975 SC page 1026 (Ram Kumar Pande vs. State of madhya Pradesh), wherein it has been held by the Hon'ble Apex Court that omission of important facts, affecting probabilities of the case are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution S.C. No. 04/10 Page 34/54 35 case. So far as the present case is concerned, there cannot be any doubt that there was no mention of the dowry claim in the First Information Report. Naturally, this omission must be treated to be an important factor for judging the veracity of the prosecution case. But whether only because of this omission it can be said the entire prosecution case should be disbelieved, that is to be considered after considering the other circumstances of the case. So far as this case is concerned, it appears that the First Information Report was lodged by the defacto complainant, who is the father of the deceased, few hours after the death of the deceased. We can very well imagine the mental condition of the bereaved father while he was dictating the written complaint to another person. In fact, if we look into the evidence of this de facto complainant, then it will appear that he has also stated in his evidence to the effect.
"As I was mentally upset so I could not write each and every thing elaborately in the First Information Report like demand of dowry, rest cash of Rs.10,000/ or gold chain and more dowry or Rs.20,000/ for the purpose of business by Uday."
The explanation as given by the PW1 in this respect appears to be proper and satisfactory and I think that the ld. Trial Judge was perfectly justified is not giving much importance upon this omission in the First Information Report."
S.C. No. 04/10 Page 35/54
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41. These observations applied with full force to the facts of the case in hand, inasmuch as, it has come on record that after deceased succumbed to injuries, Sh. Vimal Kumar, Executive Magistrate, reached GTB Hospital and he recorded statement of Shakeena Khatoon Ex.PW3/A and Mohd. Jameel Ex.PW3/B. He admitted in crossexamination that Shakeena, mother of deceased was quite sad at the time when she made statement. However, he denied the suggestion that due to sadness she was not in a position to give her statement. As observed by Hon'ble High Court, one can very well imagine the mental condition of the bereaved mother, while she was making complaint to Executive Magistrate. Moreover, if certain things which she has deposed in the Court were not stated by her before the Executive Magistrate that cannot be said to be fatal. Moreover, no explanation was sought by counsel for the accused in regard to these aspects of the matter. She was not even confronted with her statement made before the Executive Magistrate. It is settled law that if the maker of a statement is sought to be contradicted, his attention has to be drawn to his previous statement under section 145 of the Evidence Act. For holding this view, I am fortified by AIR 1982 SC 839, Mohal Lal Gaga Ram Gehari vs. State of Maharashtra.
42. The result of the aforesaid discussion is that from the testimony of Shakeena Khatoon which finds confirmation from Mohd. Jameel that S.C. No. 04/10 Page 36/54 37 prosecution has been able to establish beyond reasonable doubt that deceased was subjected to cruelty and harassment by her husband in connection with demand of dowry.
43. In order to make out a case under section 304B IPC it is very essential for the prosecution to prove that such cruelty or harassment should have been meted out to the woman "soon before" her death. The words "soon before" her death does not necessarily mean immediately before her death. As observed by Hon'ble Supreme Court in Satvir Singh vs. State, 2001 SCW 3793, this phrase is an elastic expression and can refer to a period immediately before the death of the deceased or within a few days or few weeks before death. As observed by Hon'ble Apex Court in Kans Raj vs. State of Punjab and Others, (2000) 5 SCC 207, "soon before" is a relative term, which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "Soon Before" is not synonymous with term "immediately before" and is opposite to expression "soon after" as used and understood in section 114 of the illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and S.C. No. 04/10 Page 37/54 38 determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death".
Substantially similar view was taken in Kamesh Panjiyar @ Kamlesh Panjiyar vs. State of Bihar, 2005 Cr.L.J. 1418 Malesh Panjay and Kamla Panjay vs. State of Bihar, Kuntiabdullah and another vs. State of Kerala, 2004 (4) SCC 13 and Udai Chakravorty (supra).
Satyabrata vs. State of UP, 2010 (XI) AD (SC) 409 was also a case where the expression "soon before" came up for consideration. In that case demand before six months prior to death was held to come within the purview of expression of "soon before death".
44. In the instant case, although no specific dates have come as to when demand was made, but it is to be kept in mind that complainant belongs to a lower strata of society, inasmuch as, father of the deceased Mohd. Jameel was only rickshaw puller and therefore specific date, month S.C. No. 04/10 Page 38/54 39 and year are not forthcoming. One cannot lose the sight of the fact that marriage lasted for less than three years. During this period, the deceased had fallen sick and she was provided treatment for about nine months. Thereafter, attempt was made on her life by the accused by pouring kerosene oil, but she was saved and matter was ultimately pacified due to intervention of the locals. It has come in the testimony of parents of deceased that accused used to demand Rs.20,000/. However, considering the financial condition of her parents, Farzana tried to make her husband understand and on her refusal to bring money, she used to be beaten. They have also deposed that few days before the fateful day, a demand of Rs.20,000/ was made. Under these circumstances, in view of catena of decisions referred above, it is to be taken that there was torture to the deceased immediately preceding her death on account of demand of Rs.20,000/. Under these circumstances a definite conclusion can be drawn that there was evidence of torture to the deceased immediately preceding her death. The interval elapsed between inflicting of such harassment or cruelty and her death was too narrow to be widened any more. As such prosecution has been able to establish ingredients as enjoined under section 304B IPC.
45. Once prosecution has been able to establish aforesaid ingredients, the presumption against the accused arises as enjoined under section S.C. No. 04/10 Page 39/54 40 113B of the Indian Evidence Act. Of course, it is rebuttable presumption, but onus lies on the accused against whom the presumption lies to discharge it. On this aspect, the laws are no more res integra. In catena of decisions, hon'ble Supreme Court has held that once ingredient of section 304B has been established by the prosecution, the onus lies on the accused to rebut the presumption under section 113B of the Evidence Act. Reference may be made to State of Karnatka Vs. M.V. Manjunathe gowda, (2003) 2 SCC 188, where it was held as under : "In order to establish the offence under section 304B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 years of her marriage and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. Such harassment and cruelty must be in connection with any demand for dowry. If the prosecution is able to prove these circumstances then the presumption under section 113B of the Evidence Act will operate. It is a rebuttable presumption and the onus to rebut shifts on the accused."
This very authority was subsequently relied by hon'ble Supreme Court in Satbir Singh and others Vs. State of Haryana, 2005 Cri.L.J. 4137.
S.C. No. 04/10 Page 40/54
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46. The question arises whether the accused has been able to rebut the presumption. In his statement recorded under section 313 Cr.P.C., accused has admitted the factum of marriage with Farzana and that he was residing with Farzana in a rented accommodation near Chataiwali Masjid, Welcome, Delhi. He also admitted that on receipt of information PW9 HC Jitender posted at PCR Baker No.23, went to his house and found Farzana in burnt condition. He took her to GTB Hospital and got her admitted there. He also admitted that Farzana died due to burn injuries. According to him, he has an auto driver. On 04.10.09 he was on Anand Vihar Metro Station. He received telephone call from his neighbour regarding the incident. He reached hospital, where he found his wife Farzana admitted there and was in unconscious state. Till the date Farzana remained in hospital, she did not regain her consciousness. His motherinlaw Shakeena Khatoon demanded money from him and he used to fulfill her demand. On 05.10.09 also she demanded Rs.1 lac, which he refused to pay as he was not in a position to pay such a huge amount. Due to this reason, he was falsely implicated in this case. No complaint was made by his wife at any point of time. He told all the facts to Executive Magistrate and to the police, but they did not record his statement. Farzana used to remain in tension as Shakeena used to demand money from her.
S.C. No. 04/10 Page 41/54
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47. In support of his case, accused has examined three witnesses.
DW1 Tahera deposed that house of Nafis was after leaving four houses from her house. She could not tell the date, month or year. According to her at about 8.390pm, on hearing noise she came out of the house. Many persons of the locality were screaming. Door of the room was bolted from inside. Nafis is a three wheeler driver and he had gone for his work. Relations between Nafis and his wife were quite cordial. However, mother of wife of Nafis was very poor and some time dispute used to take place between Nafis and his wife over demands of money made by his mother inlaw. Sometime father of wife of Nafis also used to come but visit of her mother was more frequent. Wife of Nafis used to ask her parents not to come to her house or to demand money as income of Nafis was also not very sound. By examining this witness, accused wants to take plea that parents of Farzana used to demand money from Farzana. However, Farzana used to ask them not to visit her house as income of her husband was also not very sound. Entire statement given by this witness in examinationinchief stands demolished in crossexamination by the ld. Prosecutor, inasmuch as, she deposed that she had seen the mother of wife of Nafis once or twice when she met her in the gali. However, she had no talks with her. She was also not on talking terms with wife of Nafis. In her presence, mother of wife of Nafis did not demand money from her S.C. No. 04/10 Page 42/54 43 daughter. She never met father of wife of Nafis and he never came in her presence at any point of time. She admitted that in her presence wife of Nafis never asked her parents not to come to her house or not to demand money from Nafis. Under these circumstances, testimony of the witness that mother or father of wife of Nafis used to come to her house or used to demand money is demolished by her own crossexamination wherein she stated that no such demand was made in her presence and since she was not on talking terms with wife of Nafis, there was no question of her informing about demands made by her parents from the accused. As such testimony of this witness does not help the accused.
48. DW2 Yunus Khan has deposed that he was owner of auto rickshaw No. DLJ1077. Accused Nafis was driver of the said autorickshaw. He used to take the auto at about 2pm and used to return the same to the other driver in the morning next day. Till 04.10.2010 accused drove the TSR and thereafter he sold the said TSR. In crossexamination this witness could not place on record any proof regarding purchase of the TSR nor could tell the address of person to whom he had sold TSR. On 04.10.09 accused had not taken TSR in his presence. He admitted that he could not say whether on 04.10.09 TSR was driven by accused or not.
49. DW3 Anis has deposed that he was working as TSR driver. He used to drive the same TSR, which accused used to drive. According to S.C. No. 04/10 Page 43/54 44 him, on 04.10.09 he handed over TSR at about 2pm to the accused. On the same day, accused handed over TSR to him at about 11.30pm. By examining DW2 and DW3, accused tried to take plea that he was not present in the house when incident had taken place. At the outset, it may be mentioned that it is not even the case of prosecution that it was accused who set deceased on fire. But one thing is clear that death has occurred in abnormal circumstances, inasmuch as, the deceased had died due to burn injuries.
50. It is surprising that accused has not taken any plea as to whether it was a case of suicide or accidental death. It is not in dispute that the deceased was living in her matrimonial home when she sustained burnt injuries, which ultimately proved to be fatal. That being so, it was incumbent upon the accused to disclose as to how Farzana sustained burnt injuries.
51. In this context, observations made by Hon'ble Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharasthra, 2006 IX AD (SC) 81 = (2006) 10 SCC 681 and particularly to paragraphs 15, 21 and 22 are very material and are reproduced as under : "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the S.C. No. 04/10 Page 44/54 45 nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
XXXXXX XXXX XXXXX
21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mnd. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same beomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of the Hon'ble Supreme Court. [ State of T.N. vs. S.C. No. 04/10 Page 45/54 46 Rajendran 1999 VIII AD (SC) 348 = (SCC para 6); State of U.P. vs. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 :
1992 SCC (Cri) 642 : AIR 1992 SC 2045] (SCC para 39 :
AIR para 40); State of Maharashtra vs. Suresh [ (2000) 1 SCC 471 : 2000 SCC (Cri) 263] (SCC pra 27); Ganesh Lal vs. State of Rajasthan 1999 VII AD (SC) 558 = [(2002) 1 SCC 731 : 2002 SCC (Cri) 247] (SCC para 15) and Gulab Chand vs. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4)].
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes places in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram vs. State of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC 2077] it was observed that the fact that the accused alone S.C. No. 04/10 Page 46/54 47 was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal vs. State of Maharashtra [(1992) 3 SCC 106 : 1993 SCC (Cri) 435] the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. vs. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 :
AIR 1992 SC 2045] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at S.C. No. 04/10 Page 47/54 48 home at that time. The letters written by the wife to her relatives showed that the husband illtreated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly Hon'ble Apex Court reversed the judgement of the High Court acquitting the accused and convicted him under section 302 IPC. In State of T.N. vs. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9pm and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of stangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of crime."
S.C. No. 04/10 Page 48/54
49 Principles laid down in this case were reiterated in Jayabalan vs. UT of Pondicherry, Cri. Appeal No. 1246 of 2002 decided on 06.11.09.
52. Rani vs. State of NCT of Delhi, 2011 (1) JCC 668 was also a case under section 498A/304B IPC, wherein observations made by Hon'ble High Court are reproduced as under : "There is an unfortunate development under criminal justice system that even in those cases where accused should be examined as a witness by the defence, the accused persons are not examined as a witness. In matrimonial offences, it is the accused and his family members who know what transpired within the family and they should always volunteer themselves as witnesses in the Court so that the Court gets their side of the version by way of evidence and testimony. Under Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a death takes place within the four walls of matrimonial home, the husband and inlaws should come forward and depose as to what was the real cause of death.
The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness. I do not know why this practice developed but in all matrimonial offences, this practice is shutting the doors of the Court, to the version of the other side, by their advocates."
S.C. No. 04/10 Page 49/54
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53. In view of these observations, the factum regarding relations between Nafis and his wife was specially within his knowledge and although suggestions were tried to be given to the parents of Farzana and relations of Nafis and Farzana were quite cordial and no demand was even made by accused but this suggestion was denied by them. The burden of proving this fact was upon the accused. However, he has failed to lead any evidence in this regard and he was the best person to prove his relations with his own wife, but has not chosen to examine himself as a witness.
54. By examining DW1, he has tried to take the plea that in fact it were parents of deceased who used to demand money from him, which is also not proved in view of discussions made above.
55. The result of the aforesaid discussions is that accused has failed to rebut presumption under section 113B of the Evidence Act. On the other hand, prosecution has been able to establish beyond reasonable doubt that Farzana was subjected to cruelty by accused for nonfulfilling demands, as a result of which within seven years of marriage, Farzana died under circumstances otherwise than normal.
56. In view of the foregoing discussions, I hold that prosecution has been able to establish its case for offence under section 498A/304B IPC beyond reasonable doubt and accused has not been able to raise even an S.C. No. 04/10 Page 50/54 51 iota of doubt in the case of prosecution. As such he is held guilty and convicted for aforesaid offences.
57. Alternative charge under section 302 IPC was also framed.
However, in view of the fact that dying declaration of deceased has not been proved by the prosecution, as such there is no other evidence to prove that it was the accused who set deceased on fire. Therefore, offence under section 302 IPC is not proved, but as discussed above, since charge under section 498A/304B IPC are duly proved, he is held guilty and convicted for aforesaid offences.
Announced in the Open Court (Sunita Gupta)
st
On this 21 day of July, 2011. District JudgecumASJ, InchargeNE, Karkardooma Courts, Delhi.
S.C. No. 04/10 Page 51/54 52 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No.04/10
Unique Case ID No. 02402R0369842009 State Vs. Nafis Khan S/o Abdul Gafoor Khan, R/o D176, Janta Colony, Welcome, Near Chatai Wali Masjid, Delhi. FIR No. 207/2009 PS Welcome U/s 498A/304B IPC.
Date of Institution : 27.01.2010 Date of Reserving the Judgement : 21.07.2011 Date of Pronouncement : 04.08.2011 ORDER ON THE POINT OF SENTENCE : Vide my separate Judgement dated 21.07.2011, accused was convicted for offence under section 498A/304B IPC.
2. Today, I have heard Sh. Sajjad Ali, Advocate, for the convict and Sh. Ravinder Khandelwal, ld. Public Prosecutor for the State.
3. It is submitted by ld. counsel for the convict that the convict is a young man aged about 24 years. He has clean antecedents. As such liberal view be taken while sentencing him. S.C. No. 04/10 Page 52/54
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4. On the other hand ld. Public Prosecutor submitted that convict does not deserve any leniency as he harassed his wife for dowry and within seven years of her marriage she met her unnatural death.
5. Dowry system has become a menace to the society nowadays.
Such offences are required to be dealt with sternly. Therefore, while prescribing punishment for such offences legislature in its wisdom has prescribed that sentence awarded to offender shall not be less than 7 years and which may extent to imprisonment for life and shall also be liable to fine.
6. The mere fact that convict is a young man is not a mitigating circumstance. As such he does not deserve any leniency. Under these circumstances, he is sentenced to undergo RI for 10 years and to pay a fine of Rs.7,000/ for offence u/s 304B IPC. In default of payment of fine, he would further undergo RI for one year. He is further sentenced to undergo RI for three years and to pay a fine of Rs.3,000/ for offence u/s 498A IPC. In default of payment of fine, he would further undergo RI for three months.
7. Substantive sentences awarded to the convict shall run concurrently.
8. Fine, if realized, be paid as token of compensation to the parents of deceased. Convict shall get the benefit of period already undergone in S.C. No. 04/10 Page 53/54 54 detention during investigation and trial of the case.
9. A copy of judgement and order on sentence be supplied to the convict free of cost.
10. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 4 day of August, 2011. District JudgecumASJ, InchargeNE, Karkardooma Courts, Delhi.
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