Delhi District Court
State vs . 1. Muntzir S/O Hazi Anwar Khan, on 9 April, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0328702009
Sessions Case No. 03/2010
Assigned to Sessions. 30.01.2012
Arguments heard on 19.03.2012
Date of Judgment 29.03.2012
FIR No. 11/2008
State Vs. 1. Muntzir s/o Hazi Anwar Khan,
r/o B887, Street No.6, Kabir Nagar,
Delhi.
2. Hazi Anwar Khan s/o Saleem Khan,
r/o E1/14, New Seelampur, Delhi.
3. Smt. Zubeda,w/o Tarikh Ali Khan,
r/o D139, A Block, New Seelampur,
Delhi.
4. Smt. Muphida w/o Anwar Khan,
5. Rubeda d/o Anwar Khan,
6. Mukhtsir s/o Anwar Khan.
All r/o E1/14, New Seelampur, Delhi.
Police Station Welcome
Under Section 308/406/498A/34 IPC
SC No.3/2010
State Vs. Muntzir and others 1/27
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Welcome had filed a challan vide FIR No.11/2008, u/s 498A/406/308/34 IPC for the prosecution of accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir in the court of Ld. MM. Accordingly, ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court.
2. Facts of prosecution case are that on 07.01.2008 at about 11:40 a.m. information regarding incident was received from control room upon which DD No.23B Ex.PW5/A was recorded. Copy of same was assigned to HC Radhey Shyam to take action into the matter. This witness along with Ct. Ashok reached at spot in pursuance of aforesaid DD. Thereafter, ASI Mahavir Singh reached at the spot at about11:50 a.m on the direction of SHO. ASI Mahavir Singh made enquiries at spot and it come into his notice that injured had already been removed to somewhere else then he along with Ct. Ashok reached at GTB Hospital leaving HC Radhey Shyam at spot. There it came into notice of ASI Mahavir Singh that no injured of present incident was got admitted by anyone in GTB Hospital. Thereafter, he along with Ct. Ashok returned to the spot and it came into their notice that injured has been removed to GTB Hospital by her mother. They again reached at GTB Hospital found injured complainant Smt. Aisya being admitted. There ASI Mahavir collected the MLC of complainant Aisya Ex.PW8/A wherein injured had been declared fit to make statement on the MLC by the doctor. SC No.3/2010
State Vs. Muntzir and others 2/27
Thereafter, ASI Mahavir Singh recorded statement of injured Ex.PW2/B and
made endorsement Ex.PW6/A for getting FIR of present case registered. Accordingly, FIR No.11/2008 u/s 498A/406/308/34 IPC registered against accused persons. During the course of investigation, accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir were arrested for the offences u/s 498A/ 406/308/ 34 IPC. CHARGE:
3. On the basis of material available on record ld. predecessor of this court framed charges vide order dated 20.04.2010 against accused persons namely Muntzir, Hazi Anwar Khan and Smt. Muphida for the offence punishable u/s 308/406/34 IPC and against accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir for the offences punishable u/s 498A/34 IPC to which accused persons did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 11 witnesses namely PW1 ASI Om Pal Singh, PW2 Smt. Aisha, PW3 Smt. Sahana, PW4 Mohd. Saleem, PW5 HC Ashok Pal Singh, PW6 ASI Mahabir Singh, PW7 W/Ct. Pinki, PW8 Dr. Shivani Jain, PW9 Dr. Sushil, PW10 Dr. V.P. Gupta and PW11 Dr. Hompriya Issar.
5. PW1 ASI Om Pal Singh is a formal witness being duty officer. This witness has SC No.3/2010 State Vs. Muntzir and others 3/27 proved FIR vide Ex.PW1/A.
6. PW2 Smt. Aisha is a material witness being complainant. This witness has deposed that she was married to Muntazir on 20.03.2001 according to Muslim customs and rites and her parents had spent Rs. 2 lacs in her marriage and they had also given dowry articles as jewellery, utensils, clothes, fridge, washing machine and other household items worth Rs. 2 lacs approx. This witness has proved the list of dowry articles given in the marriage vide Ex.PW2/A15. This witness has also proved list of dowry articles given by her parents before her marriage vide Ex.PW2/A6 dated 19.02.2001.
7. This witness has deposed that after marriage she was taken to her matrimonial home i.e. A27, Seelampur, Delhi and after 89 days of her arrival at matrimonial home, her fatherinlaw (Anwar Khan), her motherinlaw (Mufida), her husband (Muntzir), her brotherinlaw (dewar - Mukhtsir) and her sistersinlaw (Jubeda and Rubeda) were not satisfied with the dowry articles and they started demanding for more dowry. This witness has further deposed that all aforesaid accused persons harassed and told her that her father should have given a house, motorcycle and Rs. 2 lacs for starting factory when she told them that her parents are poor and they cannot afford to give so much dowry, on this they started taunting, abusing, beatings, humiliating and harassing her.
8. This witness has further deposed that after 12 days of her marriage in a day time SC No.3/2010 State Vs. Muntzir and others 4/27 when all the accused persons were present, her fatherinlaw had tried to give her electricity shock but suddenly light went off.
9. This witness has further deposed that on 25.01.2002 all the six accused persons had beaten her badly by kick blows and slap and her fatherinlaw, motherinlaw and her husband told her to bring Rs. 2 lacs, motorcycle and money for buying house. Thereafter, this witness checked out of her matrimonial home and her motherinlaw had thrown her from the first floor and she fell down and at that time she was pregnant. Thereafter, this witness went to her parental home at Mustafabad and she remained at her parental house till 13.06.2006. This witness had given birth to baby boy on 04.06.2002.
10.This witness has further deposed that on 13.06.2006 she came back to her matrimonial home at Seelampur, on the third day, after her arrival to her matrimonial home, her brotherinlaw told her that she had not brought the money and she had not fulfilled the other demand and brotherinlaw Mukhtasir had beaten her with cricket bat. This witness had fallen sick and she went to GTB Hospital and she was admitted and got operated on 24.08.2005 and her child was also with her in the hospital. This witness has further deposed that when she was in hospital, her husband, brotherinlaw and two other boys came to hospital on 22.08.2005 at about 1:30 a.m. (midnight) and they tried to snatch her son but nurses did not let them do so.
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11.This witness has further deposed that on 07.07.2006 a meeting was held at her matrimonial home and it was decided that her husband would take her from matrimonial home and keep her somewhere out in a rented house. Thereafter, her husband had taken a house in Kabir Nagar on rent and they started living there.
12.This witness has further deposed that on 22.12.2006, her fatherinlaw, motherin law, sistersinlaw (Jubeda and Rubeda) and her brotherinlaw came to Kabir Nagar in her house and told that if her parents would not fulfill their demands of Rs. 2 lacs, motorcycle and money for buying house, they will not let her live there and they had started beating her. Her sisterinlaw Jubeda had hit her with iron press on her head and her husband was having water iron rod in his hand and he hit her on her right ear and ear drum was torn. This witness has further deposed that she had also felt pain in her stomach and they have not given her any treatment and no medicine was given to her. Her neighbours had informed to her parents on telephone. This witness has further deposed that her parents came to Kabir Nagar next day and they took her to the GTB Hospital. This witness has proved her treatment slip of GTB Hospital vide mark 'A'. This witness has further deposed that her parents had requested her husband not to harassed her and to keep her properly but the attitude of her husband and other members of his family did not change at all. This witness on 27.12.2006 went to police station and lodged complaint vide mark B. Thereafter, this witness went to her parental home in Mustafabad, Delhi.
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13.This witness has further deposed that in the month of March'2007 her husband again brought her back to Kabir Nagar and she started living there but the member of her husband's family used to come there and they used to repeat their demands of dowry. On 06.01.2008 all the accused persons came to her house and they pressurized her to bring Rs. 2 lacs and she told them that her father is not in a position to give Rs. 2 lacs and all of them beaten her with kick, blows and slaps.
14.This witness has further deposed that on 07.01.2008 her motherinlaw, both sistersinlaw and fatherinlaw, her brotherinlaw and her husband again started asking for Rs. 2 lacs and she refused to bring the same as her father was not in the position to give the same, on this her motherinlaw said "pakro sali ko aur aaj iska kaam tamam kar do". On saying this, her both sistersinlaw and brotherin law had started beating her with kicks, blows and slaps, her fatherinlaw had also kicked her and gave her blow and her husband had given a 'silbatta blow' on the right side of her forehead. This witness has further deposed that they had even beaten her son and they were saying that if they beat her son then she will bring the money. Thereafter, this witness had lifted her son in order to save herself and her son. Then she had made call to 100 number and went to her parental home. Her parent had taken her to GTB Hospital. This witness has proved her statement Ex.PW2/B. This witness had proved arrest memo Ex.PW2/C and personal search memo Ex.PW2/D of her husband. This witness has proved her Nikahnama Ex.PW2/E. SC No.3/2010 State Vs. Muntzir and others 7/27
15.In her cross examination by ld. defence counsel, this witness has deposed that document containing list of dowry articles Ex.PW2/A, A1 to A5 were not prepared on the day of her marriage. This witness has further deposed that he had disclosed certain facts to the police but police did not record those facts in her statement dated 07.01.2008 and had instructed her to disclose those facts before the court.
16.PW3 Smt. Sahana, mother of complainant is a hearsay witness. This witness has deposed on the same footings as deposed by PW2.
17.PW4 Mohd. Saleem, is the father of complainant. This witness has deposed that he had married her daughter Aisha with accused Muntzir according to Muslim Rites and Customs and had delivered dowry articles as per their capacity and had spent about Rs.4 lacs. This witness has further deposed that after marriage his daugther Aisha started to live with her husband Muntzir, fatherinlaw Sh. Anwar Khan, motherinlaw Smt. Mufida, two sistersinlaw Jubeda and Rubeda and brotherinlaw Mukhtsir at Seelampur, Delhi and after marriage of his daughter, accused persons started harassing on account of more dowry. This witness has further deposed that accused persons used to demand Rs. 2 lacs to fulfil the insufficient dowry.
18.This witness has further deposed that after 34 months of marriage her daughter was kicked out by the accused persons from her matrimonial house but he does not SC No.3/2010 State Vs. Muntzir and others 8/27 remember the date, month and year. Thereafter, her daughter lived with them for about 4 ½ years.
19.This witness has deposed that in panchayat accused persons had agreed to accept her daughter but thereafter, again accused persons started to harass her again for dowry at Seelampur, Delhi. Thereafter, accused Muntzir along with Aysha started to live in a rented room at Kabir Nagar, Delhi. This witness has further deposed that when accused Muntzir had been residing with her daughter at Kabir Nagar, accused Muntzir had hit her daughter Aysha with electric water heater rod and caused ear injury to her. Thereafter, this witness took her daughter to his house and she remained with them for about 34 months. Thereafter, accused Muntzir again took her daughter to Kabir Nagar, Delhi with the assurance that "he would keep well her daughter Aysha", thereafter, accused Muntzir again started harassment with her daughter Aysha on account of demand of Rs. 2 lacs. This witness has also deposed on the same footing as deposed by PW2 and PW3.
20.In his cross examination by ld. Defence counsel, this witness admits that accused Muntzir and his mother Mufida had beaten her daughter in his presence at Seelampur but he does not remember the date, month and year of this fact. This witness further admits that neither he nor his daughter had moved any complaint with any authority on account of beatings, harassment, torture and demand of dowry by accused persons with her daughter Aysha.
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21.PW5 HC Ashok Pal Singh. This witness had been remained with the I.O. during the investigation. In his presence I.O. had collected MLC of injured Aysha mark X and recorded her statement Ex.PW2/B and prepared rukka vide Ex.PW5/B for registration of FIR. This witness had got recorded FIR from police station. In his presence, I.O. had prepared site plan mark 'Y' of the place of occurrence at the instance of injured Aysha.
22.This witness has proved arrest memo Ex.PW2/C, personal search memo Ex.PW2/D and disclosure statement Ex.PW5/C of accused Muntzir.
23.PW6 ASI Mahabir Singh is a material witness being I.O. This witness has deposed that on 07.01.2008, at about 11:40am, copy of DD No.23B was delivered to HC Radhey Shyam to take action into the matter which was in connection of a quarrel in a House of Gali No.6, Near Shamshan Ghat, Kabir Nagar, Delhi. HC Radhey Shyam along with Ct. Ashok had gone to aforesaid spot in pursuance of aforesaid DD. This witness was also directed by Inspector S.B. Yadav to reach at the spot. On enquiry it came into his notice that injured had already been removed to somewhere else. This witness along with Ct. Ashok reached at GTB Hospital leaving HC Radhey Shyam at the spot and it came into his notice there that no injured of present incident was got admitted by anyone there. Thereafter, it came into his notice there that injured had already been taken to GTB Hospital by her mother. This witness again reached at GTB Hospital where injured Aisha was found admitted. This witness had collected MLC of injured SC No.3/2010 State Vs. Muntzir and others 10/27 Aisha Mark X, this witness had recorded statement of injured Smt. Aisha Ex.PW2/B. This witness had made endorsement Ex.PW6/A, for registration of FIR. This witness had reached the spot i.e. Room at First Floor of House No. B 887, Gali No.6, Kabir Nagar, Delhi at the instance of injured and prepared site plan Ex.PW6/B.
24.This witness had arrested accusedMuntzir on the pointing out of injured and arrested him vide arrest memo already Ex.PW2/C and Personal Search Memo already Ex.PW2/D. This witness had recorded disclosure statement of accused Muntzir, Ex.PW5/C. This witness had recorded supplementary statement of Aisha and statements of PWs namely Smt. Sahana and Ct. Ashok. This witness had deposited the MLC of injured Aisha in the GTB Hospital to get nature of injury, upon which nature of injury was opined as simple. This witness had collected X ray report of injured, Mark Z with Xray plate, which was placed on judicial file.
25.This witness had collected copy of Nikhanama already Ex.PW2/E and list of dowry articles already Ex.PW2/A1 to A5 and Ex.PW2/F, which runs upto six sheets and placed the same on file.
26.During the course of investigation, this witness on 28.12.2008, formally arrested accusedAnwar Khan, Smt. Jubeda, Smt. Mufida, Ms. Rubeda and Mukhtsir vide their arrest papers (arrest memo Ex.PW6/C and Personal Search Memo Ex.PW6/D of Anwar Khan, arrest memo Ex.PW6/E of Smt. Jubeda, arrest memo Ex.PW6/F of SC No.3/2010 State Vs. Muntzir and others 11/27 Mufida, arrest memo Ex.PW6/G of Rubeda, arrest memo Ex.PW6/H and Personal Search Memo Ex.PW6/I of Mukhtsir.
27.This witness had deposed that accused persons had produced anticipatory bail order before him. This witness had completed the investigation of this case and prepared chargesheet against accused persons for offence u/s 498A/406/308/34 IPC.
28.PW7 W/Ct. Pinki is a formal witness being DD writer. This witness has proved DD No.23B vide Ex.PW5/A.
29.PW8 Dr. Shivani Jain, Sr. Resident, Ophthalmology, GTB Hospital has proved endorsement at encircled portion Ex.PW8/B on MLC of injured Aysha on behalf of Dr. Silpi Bhuyan wherein aforesaid doctor had opined nature of injury as simple on 04.02.2008.
30.PW9 Dr. Sushil. This witness has proved MLC Ex.PW9/A of injured Smt. Aysha.
31.PW10 Dr. V.P. Gupta. This witness has proved endorsement Ex.PW8/B on the MLC of patient Aysha Ex.PW9/A on behalf of Dr. Shilpi Bhuyan.
32.PW11 Dr. Hompriya Issar. This witness has proved endorsement Ex.PW11/A on MLC Ex.PW9/A regarding nature of injuries on behalf of Dr. Brijesh Kumar. SC No.3/2010
State Vs. Muntzir and others 12/27 STATEMENTS OF ACCUSED U/S 313 CR.P.C.:
33.After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. was recorded wherein all the accused persons denied all the allegations, evidences and circumstances put to them. They had admitted in their statement u/s 313 Cr. P.C. that they had not demanded any dowry from complainant, they never harassed, tortured and given beatings to the complainant at any point of time. The complainant had made some self inflicted injuries on her person to falsely implicate them in the present case.
34.Accused Muntzir admitted that complainant is residing along with her parents along with her son at the instance of her parents and she is not joining him deliberately, intentionally and with some ulterior motives.
35.All accused persons had preferred to lead D.E. but no DW present. Hence, D.E. was closed. Thereafter, matter was fixed for arguments. ARGUMENTS :
Arguments for State:
36.Ld. APP for State, Sh. Zenual Abedeen argued that present case has been registered against six accused persons u/s 498A/406/308/34 IPC.
37.Ld. APP for the State further argued that complainant was married with accused SC No.3/2010 State Vs. Muntzir and others 13/27 Muntzir on 20.03.2001 and place of torture is A27, Seelampur, Delhi where offence u/s 406/498A IPC is committed. There is continued torture at rented room at floor of House No.887, Gali No.6, Kabir Nagar, Delhi and offence u/s 308 IPC is committed. On 07.07.2006 after a panchayat accused Muntzir and complainant were living at aforesaid house but torture of complainant continued.
38.Ld. APP for the State further argued that 07.01.2008 at about 11:00 a.m. accused Muntzir hit complainant with silbatta at the instance of other accused persons.
39.Ld. APP for the State further argued that on 22.12.2006 a quarrel had taken placed between accused persons and complainant on account of demand of dowry.
40.Ld. APP for the State further argued that prosecution has examined 11 witnesses. PW1 ASI Om Pal Singh is formal witness being Duty Officer. PW2 Smt. Aysha is injured/complainant. PW3 Smt. Sahana is mother of complainant/injured. PW4 Mohd. Saleem is father of complainant/injured. PW5 HC Ashok Pal Singh has remained with I.O. during the investigation. PW6 ASI Mahavir Singh is Investigating Officer. PW7 W/Ct. Pinki is a formal witness being DD writer. PW8 Dr. Shivani Jain, PW9 Dr. Sushil, PW10 Dr. V.P. Gupta and Dr. Hompriya Issar are medical witnesses.
41.Ld. APP for the State further argued that there is charges u/s 498A IPC against all accused persons.
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State Vs. Muntzir and others 14/27
42.Ld. APP for the State further argued that there is no recovery of cricket bat regarding the incident of 3rd day since 13.06.2006. Specific role has been assigned. There is list of dowry articles on record.
43.Ld. APP for the State further argued that there is MLC Ex.PW9/A on record. Ld. APP for state further submits that prosecution has proved its case beyond reasonable doubt. On these grounds, ld. APP for the State has submitted that there are sufficient evidence to convict the all accused persons.
44.Sh. Bhu Dutt Sharma, ld. Counsel for complainant has argued that requirement of 308 IPC is completed. Intention and knowledge in this case requirement of section 308 IPC is completed.
45.Ld. counsel for complainant further argued that accused persons had beaten complainant, during beating accused Muntzir had hit the injured/complainant (accused had hit the complainant on her right side forehead). Injury is simple in nature. Medical evidence supports the case of complainant. Statement of injured is supported by medical evidence so the offence u/s 308 IPC is made out.
46.Ld. counsel for complainant further argued that so far as offence u/s 498A IPC is concerned, demand of motorcycle and Rs. 2 lacs by accused persons is sufficient to prove the offence u/s 498A IPC.
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State Vs. Muntzir and others 15/27
47.Ld. counsel for complainant further argued that complainant did not join the company of accused persons for period of five years i.e. from 2001 to 2006.
48.Ld. counsel for complainant further argued that list of dowry articles has been placed on record. Entrustment and breach of trust by refusing to return is sufficient for offence u/s 406 IPC.
Arguments on behalf of accused persons:
49.Ld. counsel Sh. F.A. Banisreal for all accused has submitted that case of prosecution is that accused Muntzir had caused silbatta injury. Complainant sustained injury at 11:00 a.m. and MLC is prepared at 6:45 p.m. complainant did not meet with police. Ld. Counsel for accused persons further argued that abrasion as mentioned on MLC may caused by falling and if injury is caused by silbatta then there must be lacerated wound. Ld. counsel for accused persons further argued that no silbatta has been recovered.
50.Ld. counsel for accused persons further argued that if six accused persons caused injury to complainant and there are injury only on thigh and single injury on her right side of forehead and injury are only three.
51.Ld. counsel for accused persons further argued that complainant went to her SC No.3/2010 State Vs. Muntzir and others 16/27 parental house. No demand of dowry articles has been made out by complainant. Moreover, when the complainant resides with her parents for about five years and thereafter she indulged in the present case and she did not make any demand of dowry articles. Hence, ingredients of Section 406 IPC are not made out. As per practice at the time of marriage list of articles prepared in the marriage. As per list of dowry articles only signature of complainant is there and none of else. In her cross examination she has deposed that list Ex.PW2/F was prepared on 07.03.2006 and not on the day of her marriage. No demand of dowry articles had been made by complainant.
52.Ld. counsel for accused persons further argued that complaint of PW2 is not reliable being she had submitted improved facts and specific allegations not met out.
53.Ld. counsel for accused persons has relied upon the following citations :
54.On these grounds, ld. counsel for accused persons has prayed for acquittal of all the accused persons from the charges.
PERUSAL OF RECORD/OPINION:
55.Arguments heard. Record perused. On perusal of record it is revealed that on 07.01.2008 at about 11:40 a.m. information regarding incident was received from control room upon which DD No.23B Ex.PW5/A was recorded. Copy of same was SC No.3/2010 State Vs. Muntzir and others 17/27 assigned to HC Radhey Shyam to take action into the matter. He along with Ct. Ashok reached at spot in pursuance of aforesaid DD. Thereafter, ASI Mahavir Singh reached at the spot at about 11:50 a.m on the direction of SHO. ASI Mahavir Singh made enquiries at spot and it come into his notice that injured had already been removed somewhere else then he along with Ct. Ashok reached at GTB Hospital leaving HC Radhey Shyam at spot. There it came into notice of ASI Mahavir Singh that no injured of present incident was got admitted by anyone in GTB Hospital. Thereafter, he along with Ct. Ashok return to spot and it came into their notice that injured has been removed to GTB Hospital by her mother. They again reached at GTB Hospital found injured complainant Smt. Aisya admitted. ASI Mahavir collected the MLC of complainant Aysha Ex.PW8/A wherein injured had been declared fit to make statement by the doctor on the MLC. Thereafter, ASI Mahavir Singh recorded statement of injured Ex.PW2/B and made endorsement Ex.PW6/A for getting FIR of present case registered. Accordingly, FIR No.11/2008 u/s 498A/406/308/34 IPC registered against accused persons. During the course of investigation, accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir were arrested for the offences u/s 498A/ 406/308/ 34 IPC.
56.On further perusal of record it is revealed that I.O. had inspected the spot i.e. Room at First Floor of House No. B887, Gali No.6, Kabir Nagar, Delhi at the instance of injured and prepared site plan Ex.PW6/B. SC No.3/2010 State Vs. Muntzir and others 18/27
57.On perusal of record, it is further revealed that I.O. had had arrested accused Muntzir on the pointing out of injured and arrested him vide arrest memo Ex.PW2/C and Personal Search Memo Ex.PW2/D. I.O. had recorded disclosure statement of accused Muntzir, Ex.PW5/C. This witness had recorded supplementary statement of Aisha and statements of PWs namely Smt. Sahana and Ct. Ashok. This witness had deposited the MLC of injured Aisha in the GTB Hospital to get nature of injury, upon which nature of injury was opined as simple.
58.On perusal of record, it is further revealed that I.O. had collected copy of nikhanama already Ex.PW2/E and list of dowry articles already Ex.PW2/A1 to A5 and Ex.PW2/F, which runs upto six sheets and placed the same on file.
59.On perusal of record, it is further revealed that on 28.12.2008, I.O. had formally arrested accusedAnwar Khan, Smt. Jubeda, Smt. Mufida, Ms. Rubeda and Mukhtsir vide their arrest papers (arrest memo Ex.PW6/C and Personal Search Memo Ex.PW6/D of Anwar Khan, arrest memo Ex.PW6/E of Smt. Jubeda, arrest memo Ex.PW6/F of Mufida, arrest memo Ex.PW6/G of Rubeda, arrest memo Ex.PW6/H and Personal Search Memo Ex.PW6/I of Mukhtsir.
60.On perusal of record, it is further revealed that PW8 Dr. Shivani Jain, Sr. Resident, Ophthalmology, GTB Hospital has proved endorsement at encircled portion Ex.PW8/B on MLC of injured Aysha on behalf of Dr. Silpi Bhuyan wherein aforesaid doctor had opined nature of injury as simple. SC No.3/2010
State Vs. Muntzir and others 19/27
61.On perusal of record, it is further revealed that there is no recovery of bat or silbatta.
62.Before reaching any conclusion, it will be relevant to discuss section 498A, 406 and 308 IPC are being reproduced hereunder:
498A IPC. Husband or relative of husband of woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Section 406 IPC Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 308 IPC "308 Attempt to commit culpable homicide - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." SC No.3/2010
State Vs. Muntzir and others 20/27
Ingredients of offence under this sections are
1. Accused commited an act;
2. The act was committed with the intention or knowledge of committing culpable homicide not amounting to murder;
3. The act was committed in such circumstances that if the accused by that had caused the death of the victim he would be held guilty for culpable homicide.
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
63.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reached a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
64.Hon'ble Supreme court in "Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116" has laid down the parameters for arriving at an opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, SC No.3/2010 State Vs. Muntzir and others 21/27 stating:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made :
'19.....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
65.Since there is no public witnesses for any incident whereas complainant in her statement has stated that all accused persons used to come at her house and had committed beatings but no public witnesses found present by the prosecution. Even no public person from panchayat has been examined to prove the allegation of complainant. Only father and mother of complainant are witnesses in the present SC No.3/2010 State Vs. Muntzir and others 22/27 case who are appears to be interested witnesses. In the absence of any independent or corroborative evidence charges u/s 308 IPC not proved. However, fact of quarrel is not denied and injury has been inflicted by accused persons has been opined as simple.
66.Hon'ble High Court of Delhi in judgement "Desh Raj Vs. Kewal Krishan and others, CRL. Rev. P.544/2001," has held that :
"Court had gathered the intention and knowledge on the part of the accused person from this oral and ocular versions of PW1 and Pw2 as also the manner in which the assault had taken place ; the part of the body on which the injury had been caused. The fact that the only one injury had been suffered by the victim; the fact that all the three accused persons were armed with three separate weapons i.e. a danda, an iron rod and a thapi yet the injury was a single blunt blow on the scalp of Desh Raj; had the accused persons the criminal intention to cause death they could have caused the death and injuries would have been in the plural and would have been on other vital parts of the body as well. The single simple blow injury suffered by Desh Raj had led the Court to conclude that the offence made out against the accused persons is one under Section 323 of the IPC".
67.As to the facts of this case gathered with the intention of the accused persons and perusal of medical report which reveals that nature of injury as "simple" and there is only one blow on the forehead of complainant. No inference can be drawn that accused had intention to commit culpable homicide while giving blow injury on the forehead to the complainant.
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68.Therefore, keeping in view of the facts and circumstances of the case, this court is of the view that prosecution has failed to prove its case against accused persons beyond reasonable doubt for the offence u/s 308/34 IPC as ingredients of these sections do not meet out. Hence, this court acquit accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir from charges u/s 308/34 IPC.
69.Since facts of quarrel and injuries upon complainant is not disputed hence this court at this stage alter the charge u/s 308 /34 IPC to 323/34 IPC and held the accused persons namely Muntzir, Hazi Anwar Khan, Smt. Muphida, guilty under section 323/34 IPC.
70.Since there is no clear and specific allegation by complainant that the accused persons were entrusted with some property or domain over it or the accused persons have dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant.
71.Hon'ble Supreme Court in case titled as "Harmanpreet Singh Ahluwalia and Others v State of Punjab and Others, Criminal Appeal No.908 of 2009", wherein it has held that :
"Indian Penal Code, Sections 406 and 405 - Criminal breach of trust - Ingredients of offence are as under :SC No.3/2010
State Vs. Muntzir and others 24/27
1. Entrusting any person with property or with any dominion over property.
2. That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust."
72.Since, on perusal of record, it is revealed that no demand of dowry articles made by complainant or her father or mother at any point of time. Hence, from the testimonies of witnesses and circumstances and facts of this case, at this stage, this court comes to the conclusion that the case of prosecution does not inspire the confidence of this court as prosecution has failed to prove the guilt of accused persons beyond the reasonable doubt for the offence u/s 406/34 IPC. Accordingly, in the absence of sufficient evidence against the accused persons this court acquit accused persons namely Muntzir, Hazi Anwar Khan and Smt. Muphida from charges u/s 406/34 IPC.
73.After arguments and careful perusal of record, observations, preceding discussions and testimonies of PWs, it is clear that the present case was registered on the statement of PW Smt. Aysha, who is complainant and she has told specific dates or time regarding the torture, harassment or cruelty committed by accused persons in connection with demand of dowry. Allegations leveled by PW Smt. Aysha appears to be true.
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74.Further. Testimony of PW2 has been corroborated by PW3 and PW4. From the testimonies of PW3 and PW4 facts of cruelty or harassment could come on record against accused persons by which it can be said that requirement of section 498A IPC are met out.
75.Since it is established that at the time of marriage there was no demand of dowry. None of PWs stated that complaints were made to authority regarding demand of dowry against the accused persons.
76.In reference to section 498A IPC circumstance has been shown by the prosecution indicating willful conduct on part of the accused persons.
77.The concepts of cruelty and its effects varies from individual to individual and also depending upon the social and economic status to which such persons belongs. Cruelty for the purpose of constituting offence u/s 498A IPC need not be physical. Even mental torture and abnormal behaviour may amount to cruelty and harassment. In order to establish the cruelty prosecution has to establish firstly the willful conduct of offender, secondly with nature of such conduct likely to drive a woman to commit suicide or cause grave injury or danger to life or limb.
78.Hon'ble High Court of Delhi in case titled "Inder Raj v Sunits 1986 Cr. LJ 1510 (Delhi), wherein it has held that :
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State Vs. Muntzir and others 26/27 "Where the husband (accused) of the complainant continuously held out threats of taking away her son and harassing her to meet his demands even by compelling her parents to sell their property, it was held that such threats and harassment amount to cruelty, an offence punishable under sec. 498A."
79.Since PW2 Smt. Aysha, has told specific dates or time regarding the torture, harassment or cruelty committed by accused persons in connection with demand of dowry. Hence, allegations leveled by PW Smt. Aysha appears to be true.
80.Since accused persons has forced complainant to entered into present case on account of cruelty by accused persons. Hence, at this stage, this court held guilty the accused persons namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir for the offence u/s 498A/34 IPC also. PRONOUNCED IN THE OPEN COURT ON THIS 29.03.2012 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.3/2010 State Vs. Muntzir and others 27/27 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI.
FIR No. 11/2008State Vs. 1. Muntzir s/o Hazi Anwar Khan, r/o B887, Street No.6, Kabir Nagar, Delhi.
2. Hazi Anwar Khan s/o Saleem Khan, r/o E1/14, New Seelampur, Delhi.
3. Smt. Zubeda,w/o Tarikh Ali Khan, r/o D139, A Block, New Seelampur, Delhi.
4. Smt. Muphida w/o Anwar Khan,
5. Rubeda d/o Anwar Khan,
6. Mukhtsir s/o Anwar Khan.
All r/o E1/14, New Seelampur, Delhi.
Police Station Welcome Convicted under 323/498A/34 IPC section ORDER ON THE POINT OF SENTENCE 09.04.2012 Pre: Ld. APP for the state.
Convicts namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir are on bail.
Sh. F.A. Banisareal, Ld. counsel for convicts.
Ld. APP for State submits that since the offence has been proved against the convicts namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda SC No.3/2010 State Vs. Muntzir and others 28/27 and Mukhtsir under section 498A/34 IPC and convicts namely Muntzir, Hazi Anwar Khan, Smt. Muphida, guilty under section 323/34 IPC. Ld. APP for the State further submits that they must be sentenced according to provisions of law to teach a lesson to such uncivilized persons. On this ground he has prayed for maximum sentence to the convicts.
On other hand, Ld. counsel for convict submits that they are very poor person and there is no previous criminal antecedents against them. Ld. counsel for convict further submits that they are facing trial since 2008 and they have learnt a lesson that how to live in a civilized society. Ld. counsel for convicts further submits that convict namely Smt. Zubeda and Smt. Rubaida are married and they are living separately at their matrimonial home. Ld. counsel for convicts further submit that convict Hazi Anwar Khan is aged about 70 years and Smt. Muphida is of 65 years of age and convict Mukhtaseer and Muntazir are age of 25 years and 33 years respectively. Ld. counsel for convicts further submits that convicts would not repeat such type of offence in future and they will live peacefully in the society. Ld. counsel for convicts has requested for lenient view and requested to release the convicts for the sentence already undergone.
Ld. counsel for convicts submit that convicts are ready to submit FDR in sum of Rs.10,000/ in the name of Master Rizwan @ Guddu as a compensation in addition to maintenance u/s 125 Cr. P.C. SC No.3/2010 State Vs. Muntzir and others 29/27 Ld. counsel for convicts had moved an application under section 4 of Probation for releasing the convicts on probation on the ground that the convicts have liabilities of their family and convicts undertake to keep/maintain good behaviour and conduct during the probation period. Copy supplied.
Probation Officer, North East District was directed to submit his report in response to the application of convicts. Probation Officer filed his report, report perused, wherein it has been submitted that all the convicts belong to a poor family and they are first offender and benefit of probation may be considered. As per report age of accused Anwar Khan is about 61 years, Muphida about 60 years, Zubeda about 40 years, Rubeda about 21 years, Muntzir about 35 years and Mukhtsir about 30 years.
In view of submission of Ld. counsel for convicts and perusal of report of Probation officer, applications of convicts are hereby allowed. Accordingly, convicts namely Muntzir, Hazi Anwar Khan and Smt. Muphida be released on probation for a period of two years for offence u/s 323/34 IPC and convicts namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir for offence u/s 498A/34 IPC on their furnishing probation bond in sum of Rs.10,000/ each with one surety.
Ld. counsel for convicts submits that convicts are ready to pay Rs.10,000/ (Rupees Ten Thousands only) to Master Rizwan @ Guddu whose date of birth is SC No.3/2010 State Vs. Muntzir and others 30/27 04.06.2002 in the form of FDR by 24.04.2012 and he shall be entitled to get its encashment after getting age of his majority. Request heard. Allowed.
Accordingly, convicts namely Muntzir, Hazi Anwar Khan and Smt. Muphida be released on probation for a period of two years for offence u/s 323/34 IPC and convicts namely Muntzir, Hazi Anwar Khan, Smt. Zubeda, Smt. Muphida, Rubeda and Mukhtsir be released on probation for two years for offence u/s 498A/34 IPC. Orders accordingly. Copy of this order be given dasti to ld. counsel for convicts as prayed.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 09.04.2012 (RAMESH KUMAR - II) ASJ01/N.E. KKD COURTS/DELHI.
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