Delhi District Court
State vs . Mohd. Sarfaraj on 28 April, 2014
S/V Mohd. Sarfaraj
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION JUDGE04
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
S.C. No. 95/01
FIR No. 410/10
U/S 498 A/304 B IPC
P.S. Keshav Puram
State Vs. Mohd. Sarfaraj
STATE VERSUS Mohd. Sarfaraj
S/O Mohd. Sabir,
R/O 310/25, Onkar NagarB,
Tri Nagar, Delhi.
Permanent Add: Fazil Pur ,
P O Shah Pur, Tehsil & P S
Taj Pur, District Samasti Pur,
Bihar.
Date of receipt of files in this Court: 29.01.2014
Date when arguments were heard: 26.04.2014
Date of judgment : 28.04.2014
JUDGMENT
1. The accused Mohd. Sarfaraj has been charge sheeted by P S Keshav Puram for commission of an offences U/S 498 A/304 B IPC.
2. Story of the prosecution in brief is that Ms. Shabana Parveen was FIR No. 410/10 P.S. Keshav Puram page 1 of40 S/V Mohd. Sarfaraj married to the accused on 07.06.2009, however, the accused treated her with cruelty at 310/25, Onkar Nagar,Tri Nagar, Delhi ( a rented accommodation ) within the jurisdiction of P S Keshav Puram in order to get her demand of dowry fulfilled and on 09.12.2010 i.e. within 7 years of her marriage she committed suicide by hanging herself with her ' chunni' i.e. her death was caused otherwise than under normal circumstances and soon before her death she was subjected to cruelty by the accused in order to get his demand of dowry fulfilled . As per the case of prosecution on 10.12.2010 the accused came to the residence of his landlord Ramphal Bhardwaj ( PW14) alongwith his mother and his child and disclosed that he had gone to make a call from STD/PCO on 09.12.2010 and when he came back, he saw his wife hanging with a chunni with ceiling fan, the accused took his wife down from the ceiling fan, made her lie down on the bed, left the room after locking it and went to his parents place at Nangloi. PW14 brought the accused to PP Shanti Nagar where a report was lodged in this regard and PW14 alongwith accused and police went to the said room, which was opened by the accused with the help of a key where it was found that the body of deceased Ms. Shabana Parveen was lying on the bed. The intimation was also given to SDM Model Town regarding the suicide having been committed by the deceased and the SDM inspected the site alongwith police on 10.12.2010. The SDM also got prepared inquest papers, got FIR No. 410/10 P.S. Keshav Puram page 2 of40 S/V Mohd. Sarfaraj the post mortem of the deceased done at BJRM Hospital and recorded the statement of witnesses . The statement of Mohd. Kasim father of the deceased was recorded by SDM on 12.12.2010 upon which he directed SHO P S Keshav Puram on 13.12.2010 to register a FIR U/S 498 A / 304 B IPC against the accused and consequently the case FIR was registered on 13.12.2010. The post mortem was conducted by PW 1 Dr. Vijay Kumar Jha on 13.12.10 who opined the cause of death as asphyxia as a result of ligature pressure over neck structure produced by ante mortem ligature hanging and that time since death was approximately 3 days. After post mortem examination, blood and viscera was preserved in common salt and as per the FSL result, no common poison was detected. After completion of the investigation, charge sheet against the accused was filed .
3. Copy of charge sheet was supplied to the accused and the Ld. Metropolitan Magistrate after complying with provision of Section 207 CrPC, committed the present case to the court of Sessions as the offence punishable U/S 304 B IPC was exclusively triable by the Sessions Court.
4. The accused Mohd. Sarfaraj is facing trial on the allegations of prosecution that he being the husband of Ms. Shabana Parveen treated her with cruelty between 07.06.09 to 09.12.10 at 310/25, Onkar Nagar, Tri Nagar, Delhi within the jurisdiction of P S Keshav Puram in order to get FIR No. 410/10 P.S. Keshav Puram page 3 of40 S/V Mohd. Sarfaraj her demand of dowry fulfilled and thereby committed an offence punishable U/S 498 A IPC. The accused is further facing trial on the allegations of prosecution that he being the husband of Ms. Shabana Parveen ( deceased) treated her with cruelty between 07.06.09 to 09.12.10 at 310/25, Onkar Nagar, Tri Nagar, Delhi in order to get her demand of dowry fulfilled and due to the cruelty meted out to her she committed suicide on 09.12.10 within 7 years of her marriage and the accused thereby committed an offence of Dowry death punishable U/S 304 B IPC. The charge was framed against the accused by the Ld. Predecessor of this court on 20.04.11 to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
5. The prosecution in order to bring home the guilt of the accused has examined total 19 witnesses in support of its case and thereafter the prosecution evidence was closed.
6. The statement of accused Mohd. Sarfaraj was recorded U/S 313 CrPC by the Ld. Predecessor of this court on 19.12.13 in which the accused denied all the material incriminating circumstances appearing in the prosecution evidence against him and stated that he was innocent and was falsely implicated in this case. He stated that the deceased used to remain under depression. He denied that the father ( complainant/PW
10) of the deceased spent Rs. 4 lacs in the marriage of her daughter. He stated that he never gave any harassment to the deceased. He, however, FIR No. 410/10 P.S. Keshav Puram page 4 of40 S/V Mohd. Sarfaraj admitted that he was married with the deceased on 07.06.09 and after the marriage he alongwith the deceased remained with PW10 at his ( PW
10) native place and thereafter he ( accused) brought deceased at Mubarak Pur, Delhi and started residing at Onkar Nagar, Tri Nagar, Delhi on rent. He admitted that on 10.12.10 at about 7.30 a.m. he alongwith his mother came at the residence of his landlord ( PW14) and disclosed to him that he had gone to make a call from STD/PCO on 09.12.10 and when he came back, he saw his wife hanging with ceiling fan with the help of a chunni and the child was playing there. He admitted that PW14 brought him to P P Shanti Nagar, a report was lodged and thereafter he ( PW14) alongwith him and police went to his house where he opened the house with the help of a key and it was found that the deceased was lying on the bed. He admitted that on 10.12.10 on receipt of DD No.11, PW2 Ct. Raj Kumar alongwith SI Mangu Lal ( PW19) with PW14 and him reached at H.No. 310/25, Onkar Nagar, Tri Nagar, Delhi on the second floor where one room was under his tenancy and he ( accused) opened the lock of the said room inside which the dead body of deceased Shabana was lying on the bed. The accused also preferred to lead defence evidence in support of his case.
7. The accused has examined one Sh. Deepak Chopra as DW1 in support of his case and has not examined any other defence witness. DW1 has deposed to the effect that he knew accused as his father was FIR No. 410/10 P.S. Keshav Puram page 5 of40 S/V Mohd. Sarfaraj working in a shop in front of his shop. He also deposed that he knew the deceased, had talks with her 2 or 3 times and on their third meeting, the deceased upon being asked about her well being told him that she was having tension regarding the selling of her matrimonial house and the said conversation was 7 - 10 days prior to her death. He also deposed that rhe accused and his family members were good by nature and he never heard from anyone about demand of dowry articles by the accused. In crossexamination, DW1 deposed that he was not a summoned witness and was called by the father of the accused to depose in the court and that at that time the father of the accused was not working in the shop in front of his shop. DW1 also deposed during examination in chief that he do not attend the marriage of accused Mohd. Sarfaraj.
8. I have heard the final arguments of the Ld. Addl. P P for the State, of Ld. Defence counsel and have perused the record.
9. Ld. Addl. P P for State argued that the death of the deceased Ms. Shabana Parveen occurred on 09.12.10 i.e. only within about 18 months of her marriage and the testimony of the material witnesses i.e. PW 10 and PW13 amply show that there was consistent demand for dowry articles from the side of the accused which extended even soon before the death of the deceased. He argued that the accused being a husband of the deceased subjected her to cruelty with a view to coerce her father i.e. PW10 to meet an unlawful demand of dowry and hence, the FIR No. 410/10 P.S. Keshav Puram page 6 of40 S/V Mohd. Sarfaraj accused has committed an offence punishable U/S 498A IPC and such conduct on the part of the husband also drove the deceased to commit suicide. He argued that from the testimony of PW10 and PW13 it is clear that soon before her death the deceased was subjected to cruelty or harassment by her husband i.e. the accused regarding demand for dowry and admittedly the death of the deceased has also been caused otherwise than other normal circumstances within 7 years of marriage and thus a presumption U/S 113 B of The Indian Evidence Act, 1872 can be raised against the accused and the prosecution has proved beyond reasonable doubt that the accused committed an offence of dowry death within the ambit of Section 304 B IPC. He submitted that the factum of marriage of Ms. Shabana Parveen i.e. the deceased with the accused on 07.06.09 and the factum of death of deceased by hanging on 09.12.10 i.e. otherwise than under normal circumstances is not a disputed fact. He also referred to Section 106 of The Indian Evidence Act, 1872 and submitted that the accused alongwith deceased were residing at 310/25, Onkar Nagar, Tri Nagar, Delhi prior to death of the deceased by hanging and the circumstances due to which the deceased committed suicide are especially within the knowledge of the accused only and the burden of proving that fact is upon the accused. He also referred to the judgment dated 20.01.2014 of Hon'ble Supreme Court of India in Criminal Appeal No. 259 of 2009 in case titled as Joshinder Yadav Vs. State of Bihar .
FIR No. 410/10 P.S. Keshav Puram page 7 of40
S/V Mohd. Sarfaraj
He argued that minor variations within the testimony of PW10 and PW13 are of no consequence at all and due to the mental condition of PW10 immediately after the death of her daughter, PW10 could not disclose the factum of demand of dowry of Rs. 1 lac to purchase a computer by the accused to PW12 i.e. the SDM concerned who conducted inquest proceedings and therefore, the said omission should not be read in favour of the accused. He also referred to the testimony of PW14 i.e. the landlord of the accused regarding the premises No. 310/25, Onkar Nagar, Tri Nagar, Delhi and argued that the conduct of the accused in taking down the hanging body of the deceased, lying it on the bed and thereafter locking the said room and going to his parents place at Nangloi also raises a presumption of guilt against the accused. He contended during arguments that the testimony of DW1 is at all not reliable as DW1 even did not attend the marriage of the accused with the deceased and DW1 admitted in the crossexamination that he was called by the father of the accused to depose in the court. He thus argued that the prosecution has proved beyond reasonable doubt the charge against the accused U/S 498 A/ 304 B IPC and prayed that the accused be convicted under the relevant provisions of the Indian Penal Code.
10. The Ld. Counsel for the accused argued that the factum of marriage of the accused with the deceased on 07.06.09 and the death of deceased on 09.12.10 by hanging at the above mentioned address of Tri Nagar, FIR No. 410/10 P.S. Keshav Puram page 8 of40 S/V Mohd. Sarfaraj Delhi is not disputed. He, however, argued that there are material contradictions in the testimony of star witnesses of the prosecution i.e . PW10 and PW13. He argued that there is no presumption that every suicide committed by a married woman has to be because she was suffering harassment at the hands of her husband or her inlaws. He referred to the judgment of Hon'ble Delhi High Court in case titled as Narender Singh Arora Vs. State (Govt. of NCT Delhi) and Ors. 173 (2010) DLT 244. He also argued that the prosecution in a case of offence U/S 304 B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. He while referring to the testimony of PW10 argued that Rs.10,000/ were paid by PW10 i.e. father of the deceased to the accused at the delivery of male child by the deceased and the customary payments in connection with birth of a child or other customary payments during other ceremonies are not enveloped within the ambit of dowry and that the dowry mentioned in Section 304 B IPC should be any property or valuable security given or agreed to be given in connection with the marriage. He also referred to the judgments of Hon'ble Supreme Court of India in cases titled as Satvir Singh Vs. State of Punjab AIR 2001 SC 2828 = JT 2001 (8) SC 208= (2001) 8 SCC 633 and Ran Singh Vs. State of Haryana AIR 2008 SC 1294. During arguments he referred to testimony of PW10 and PW13 FIR No. 410/10 P.S. Keshav Puram page 9 of40 S/V Mohd. Sarfaraj highlighting the various contradictions regarding the alleged demand of Rs.1 lac by the accused and also highlighted the fact that PW10 during his statement before the SDM( PW12), which has been proved as EX PW 10/B, did not mention anything regarding the said alleged demand of Rs. 1 lac by the accused to purchase a computer or regarding any cruelty or harassment by the accused towards the deceased soon before her death for or in connection with any demand for dowry. He argued that even PW19 i.e. IO of the case in his crossexamination has admitted that during his investigation no fact regarding any complaint against the accused prior to the case incident came to his knowledge and that no fact regarding any Panchayat to resolve the dispute between the accused and the deceased family came to his knowledge . He submitted that the accused never demanded any dowry from the deceased or her family members and that the deceased being a patient of depression due to financial problems and weak financial condition of her inlaws committed suicide. He also referred to the testimony of DW1 in this regard and deposed that DW1 has specifically deposed that above 7 to 10 days prior to the death of the deceased she was having tension regarding the selling of her matrimonial house. He argued that as there is no trustworthy evidence regarding subjection of deceased to cruelty or harassment by the accused or any relative of the accused for or in connection with any demand for dowry soon before her death, therefore, FIR No. 410/10 P.S. Keshav Puram page 10 of40 S/V Mohd. Sarfaraj the presumption U/S 113 B of The Indian Evidence Act, 1872 shall not come into picture at all and the accused can also be not convicted U/S 304 B IPC. He thus prayed that the accused be acquitted U/S 498 A/304 B IPC arguing that the prosecution has failed to prove its case against the accused beyond reasonable doubt.
11. As mentioned above, the prosecution has examined total 19 witnesses in support of its case .
PW1 Dr. Vijay Kumar Jha , M.O., BJRM Hospital, Jahangir Puri, Delhi on 13.12.10 conducted postmortem on the dead body of deceased Ms. Shabana Parveen wife of accused and has deposed that on external examination he observed the injuries, " An obliquely placed ligature mark present on front and sides of neck going upwards and backwards towards posterior hairline. The length of the ligature mark was 26 cm and breadth 2.5 cm. The skin over the ligature mark was hard and parchmentised. On dissection of neck, tissue underneath the ligature mark is pale and glistening". He deposed that after postmortem examination, he opined the cause of death as asphyxia as a result of ligature pressure over neck structure produced by antemortem ligature hanging and the time since death was approximately three days. The postmortem report has been proved as EX PW 1/A bearing the signatures of PW1 at point A. He deposed that after postmortem examination, blood and viscera was preserved in common salt and sealed with the sample seal of mortuary FIR No. 410/10 P.S. Keshav Puram page 11 of40 S/V Mohd. Sarfaraj and was handed over to the IO. He deposed that on 15.02.11, an application was moved by Inspector Ashok Kumar ( PW18) before him for subsequent opinion about the ligature material and also produced one sealed packet sealed with the seal of "ML", which upon opening was found to contain one yellow chunni. He deposed that after examination, he opined that the ligature mark mentioned in the postmortem report ( EX PW 1/A) could have been caused by the chunni examined or similar such chunni and that after examination it was sealed with the sample seal of mortuary. The subsequent opinion given by PW1 in this regard has been proved as EX PW 1/B bearing his signatures at point A. PW1 deposed after seeing the FSL result on record that as per the FSL result no common poison was detected and as such opinion given in the postmortem report was consistent and relevant. The chunni on the basis of which the opinion EX PW 1/ B was given has been proved as EX P1.
PW2 Ct. Raj Kumar has deposed to the effect that on 10.12.10 he alongwith SI Mangu Lal ( PW19), accused and Sh. Ramphal Bhardwaj ( PW14) i.e. landlord of the accused proceeded from Police Post Shanti Nagar, P S Keshav Puram, Delhi for the inquiry of DD No.11, P P Shanti Nagar and they reached at H.No. 310/25, Onkar Nagar, Delhi belonging to PW14. He deposed that they reached on the second floor of the said house, where one room was under the tenancy of the accused, that room was found locked and accused opened the lock of said room after taking FIR No. 410/10 P.S. Keshav Puram page 12 of40 S/V Mohd. Sarfaraj out a key from his pocket. He deposed that inside the said room he saw that the dead body of a lady was lying on the bed ( diwan) and the accused told that the dead body was of his wife Shabana Parveen daughter of Mohd. Kasim. He deposed that PW 19 informed senior officers, SDM Model Town was also called at the spot and the crime team also inspected the spot and photographed the spot. He deposed that one chunni of lemon color was lying near the dead body and accused told that his wife hanged herself with the help of this chunni with the fan and the said chunni was seized by PW19 SI Mangu Lal after preparing a pullanda which was sealed with the seal of "ML" vide seizure memo EX PW 2/A bearing signatures of PW2 at point A. PW2 also shifted the dead body of deceased to mortuary of BJRM Hospital on the instructions of PW19 and deposed that the dead body remained in mortuary under his supervision. PW2 has also identified the said chunni as EX P1.
PW3 SI Jagbir Singh deposed that on 13.10.10 he was working ad Duty Officer at P S Keshav Puram from 8 a.m. to 8 p.m. and on that day SHO P S Keshav Puram arrived at the Duty Officer room and handed him a rukka, on the basis of which, PW3 got the present FIR recorded on a computer through computer operator. The computrized copy of FIR has been proved as EX PW 3/A bearing signatures of PW3 at point A. The endorsement made by PW3 on the original rukka has been proved as EX PW 3/B having his signatures at point A. He deposed that after FIR No. 410/10 P.S. Keshav Puram page 13 of40 S/V Mohd. Sarfaraj registration of FIR, further investigation was marked to Inspector Atul Sood (PW8) and as such he handed over the copy of FIR and original rukka to PW8 .
PW4 Ct. Nissar has deposed that on 10.12.10 he was posted at P P Shanti Nagar, P S Keshav Puram as Constable and was working as DD writer. He deposed that on that day at about 9.30 a.m. the accused alongwith his landlord Sh. Ramphal Bhardwaj ( PW14) arrived at the Police Post and the accused informed that on 09.12.10 in the day hours, his wife hanged herself with a ceiling fan of his room after tying a chunni. He deposed that on the basis of said information he recorded DD No.11 dated 10.12.10 P P Shanti Nagar and the said DD was marked to SI Mangu Lal ( PW19) and was sent to him through Ct. Raj Kumar as he was in the area. The copy of above said DD No.11 has been proved as EX PW 4/A. PW5 SI Mata Din has deposed that on 10.12.10 he was posted as Incharge of Mobile Crime Team, NorthWest District , Pitam Pura, Delhi and upon receiving a call from North West District control room, he alongwith photographer Ct. Subhash ( PW6) and Ct. Ram Kishan Finger Print Proficient reached at H.No. 310/25, Onkar Nagar, Tri Nagar, Delhi at nd 2 floor where he met PW19 and other police staff. PW5 deposed that he noticed that a dead body of a female was lying on the bed having ligature mark on her neck and one yellow colour chunni was also found FIR No. 410/10 P.S. Keshav Puram page 14 of40 S/V Mohd. Sarfaraj lying on the bed. He deposed that photographer took the photographs of the scene of the crime at his directions and after inspection of scene of occurrence he prepared his report which has been proved as EX PW 5/A bearing his signatures at point A. PW5 deposed that due to clerical mistake, he mentioned the address as 325/10 instead of 310/25 in EX PW 5/A. PW6 Ct. Subhash deposed that on 10.12.10 he was posted as Photographer of Mobile Crime Team, North West District, Pitam Pura, Delhi and on that day on receiving a call from NorthWest District , Control Room , he alongwith PW5 and Ct. Ram Kishan Finger Print Proficient reached at above mentioned address where PW5 met PW19 and other police staff and there they noticed a dead body of female lying on the bed having ligature mark on her neck and one yellow colour chunni also lying on the bed. PW6 deposed that he took 9 photographs of the scene of the crime as well as of dead body at the directions of IO from different angles by using a digital camera and after developing the photographs same were handed over to the IO alongwith CD. The photographs have been proved as EX PW 6/1 to EX PW 6/9 and the CD has been proved as EX PW 6/10.
PW7 SI Mahesh Kumar draftsman deposed that on 23.02.11 he was called by Inspector Ashok Kumar ( PW18) for inspection of scene of crime for preparation of scaled site plan of the spot and he alongwith PW FIR No. 410/10 P.S. Keshav Puram page 15 of40 S/V Mohd. Sarfaraj 18 and PW19 reached at above said address i.e. H.No. 310/25, Onkar nd Nagar, Tri Nagar, Delhi at 2 floor and he inspected the scene of crime and took rough notes and measurements at instance of PW19 for preparation of scaled site plan. He deposed that after preparation of scaled site plan, same was handed over to IO and rough notes and measurements were destroyed after preparation of scaled site plan. The scaled site plan has been proved as EX PW 7/A bearing his signatures at point A. PW8 Inspector Atul Sood has deposed to the effect that on 10.12.10 he was posted as Additional SHO at P S Keshav Puram and on that day SHO P S Keshav Puram received information from P P Shanti Nagar that one lady had committed suicide by hanging herself at 310/25, Onkar nd Nagar, 2 floor and as such he alongwith SHO P S Keshav Puram reached at the spot where PW19 , Ct. Raj Kumar ( PW2) and SI Rajiv Ranjan ( PW17) Incharge P.P. Shanti Nagar were already present there. He deposed that the dead body of wife of the accused was lying on the nd bed in a room on the 2 floor of the said house and a ligature mark was there on the neck of dead body of deceased. He deposed that he and SHO made inquiries there and after giving instructions to PW19 to call the crime team at the spot and to get the spot inspected, left the spot alongwith SHO and as the said lady died within 7 years of her marriage in an unnatural circumstances, as such, he also informed the SDM, Model FIR No. 410/10 P.S. Keshav Puram page 16 of40 S/V Mohd. Sarfaraj Town. He deposed that on 13.12.10 after the registration of the case FIR, the investigation of the case was marked to him and on that day he recorded the statements of Mohd. Kasim ( PW10)i.e. father of the deceased and Mohd. Murtaza i.e. Jija of the deceased at the P.S. He deposed that thereafter he alongwith PW19 visited the spot and prepared the site plan at the instance of PW19 which has been proved as EX PW 8/A bearing his signatures at point A. He deposed that in the meanwhile the accused also arrived there at the spot, he arrested the accused and conducted his personal search vide memos proved as EX PW 8/B and EX PW 8/C respectively and after that he alongwith PW19 and accused reached the P.S. He also deposed that on 14.12.10 he recorded the statement of Sh. Ramphal Bhardwaj ( PW14) i.e. landlord of the accused.
PW9 Dr. Kanak Lata Verma Senior Scientific Officer ( Chemistry), FSL, Rohini, Delhi has deposed that on 08.02.11 one parcel in connection with the present case was received in the office of FSL through Ct. Bijender and on opening the same it was found containing stomach and piece of small intestine with contents, kept in a sealed jar, piece of liver, spleen and kidney kept in a sealed jar and blood sample volume approximately 4 m.l. kept in a sealed bottle. She deposed that on chemical, microscopic and TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers FIR No. 410/10 P.S. Keshav Puram page 17 of40 S/V Mohd. Sarfaraj and pesticides could not be detected. The report in this regard has been proved as EX PW 9/A bearing the signatures of PW9 at point A. PW10 Mohd. Kasim is the father of the deceased Ms. Shabana Parveen . He alongwith PW13 Mohd. Sikander (brother of the deceased) is one of the star witness for the prosecution. He has deposed in detail regarding the alleged cruelty and also regarding demand of dowry by the accused. He deposed that he identified the dead body of his daughter i.e. deceased at the hospital vide identification memo which has been proved as EX PW 10/A. He deposed that his statement was recorded twice and out of them one was recorded by the SDM which has been proved as EX PW 10/B bearing his signatures at point B. He deposed that he handed over the photocopy of Nikahnama and one photograph of his daughter ( deceased) to the police which were seized vide memo EX PW 10/C. The said photograph is EX PW 10/D and the photocopy of Nikahnama has been proved as EX PW 10/F. PW10 also deposed that he handed over photocopy of list of dowry articles to the police which has been proved as EX PW 10/E. He deposed that after postmortem the dead body of his daughter was handed over to him vide memo which has been proved as EX PW 10/F. The testimony of PW10 will be examined and discussed in detail in the later stage of the judgment.
PW11 Mohd. Murtaza has deposed that on 10.12.10 he came to know about the death of his sisterinlaw ( Saali) Ms. Shabana Parveen FIR No. 410/10 P.S. Keshav Puram page 18 of40 S/V Mohd. Sarfaraj and he came to Delhi at BJRM Hospital and identified her dead body. The statement of PW11 recorded in this regard has been proved as EX PW 11/A bearing his signatures at point A. He deposed that after postmortem the dead body of deceased was handed over to them vide memo Ex. PW10/F bearing his signatures at point B. PW12 Mr. Pradeep Baijal has deposed that on 10.12.2010, he was posted as SDM, Model Town and on that day he received a message from PS Keshav Puram about suicide/ hanging of a lady namely Shabana Parveen at 310/25, second floor, Onkar Nagar, Tri Nagar, Delhi and that he inspected the site alongwith police on 10.12.10 and found the dead body of a lady, which was found lying on the bed and that a Chunni of yellow/ lemon color was also lying on the same bed. He deposed that after inspection, he ordered SHO P S Keshav Puram for preserving the body for 72 hours at BJRM and prior to sending the dead body also directed the police to call the crime team and got inspected the scene of crime. PW12 deposed that he also directed to call the parents of the deceased and on 12.12.10 recorded the statement of Mohd. Kasim ( PW10 ) i.e. father of the deceased which has been proved as EX PW 10/B attested by PW12 at point B. He deposed that the postmortem of the dead body of the deceased was got conducted at BJRM Hospital in his presence and he got prepared inquest papers i.e. application for autopsy ( EX PW 12/A), brief facts ( EX PW 12/B) and form 25.35 ( EX FIR No. 410/10 P.S. Keshav Puram page 19 of40 S/V Mohd. Sarfaraj PW 12/C). PW12 also recorded the statement of Murtaza and Mohd. Kasim i.e. EX PW 11/A and EX PW 10/A respectively in respect of identification of dead body and deposed that after postmortem the dead body was handed over to his claimant vide memo EX PW 10/F. He deposed that SHO was directed to proceed as per law vide his endorsement EX PW 12/D. PW13 Mohd. Sikander is also one of a star witness on behalf of the prosecution alongwith PW10. PW13 is the brother of deceased and has deposed that his sister i.e. the deceased was married with the accused on 07.06.09 at Kasba Ahar. He like PW10 has also deposed regarding alleged demand of dowry and cruelty given by the accused to the deceased. He further deposed that on 14.02.11 he went to P S and handed over a list of dowry articles given to his sister at the time of her marriage and the same was seized vide memo proved as EX PW 13/A. The list of dowry articles in Urdu language as filed by PW13 on record at the time of his testimony has been proved as EX PW 13/B. The testimony of PW13 will be examined and discussed in detail in the later stage of the judgment.
PW14 Sh. Ramphal Bhardwaj is the owner of house No. 310/25, Onkar NagarB, Tri Nagar, Delhi and was also the landlord of the accused qua the above said premises. He deposed that accused used to live there alongwith his wife and a child as a tenant and prior to that parents of the FIR No. 410/10 P.S. Keshav Puram page 20 of40 S/V Mohd. Sarfaraj accused used to live there as a tenant, however, they left in July, 2009 and started living at Nangloi. He deposed that on 10.12.10, the accused came to his ( PW14) residence alongwith his mother and his child in the morning at about 7.30 a.m. and disclosed that he had gone to make a call from STD/PCO on 09.12.10 and when he came back, he saw his wife hanging with a chunni with ceiling fan and his child was playing there and that he ( accused) had taken his wife from the ceiling fan, made her lie down on the diwan/ bed , left the room after locking the same and went to his parents place at Nangloi due to fear. PW14 deposed that he brought the accused to P P Shanti Nagar, a report was lodged in that regard and he alongwith police went to the room of the accused which was opened by accused with the help of a key carried by the accused and there he ( PW14) saw that Shabana Parveen i.e. wife of the accused was lying on the bed.
PW15 Ct. Bijender deposed that on 08.02.11 upon the instructions of IO, he collected a sealed parcel sealed with the seal of hospital from MHC(M) which was deposited at FSL, Rohini vide RC No. 8/21 and the receipt was handed over to MHC(M). PW15 deposed that his statement was recorded by the IO and no one tampered with the case property till it remained in his custody.
PW16 HC Sudhir Kumar deposed that on 10.12.2010 he was posted at PS Keshav Puram as MHC(M) and on that date SI Mangu Lal FIR No. 410/10 P.S. Keshav Puram page 21 of40 S/V Mohd. Sarfaraj (PW19) had deposited one parcel sealed with the seal of ML with him and he made an entry in this regard in register no. 19 against Sl. No. 2749/10, the photocopy of which has been proved as Ex. PW16/A. He deposed that on 13.12.2010 SI Rajeev Ranjan had also deposited one parcel sealed with the seal of FMT BJRM hospital alongwith sample seal with him and he made an entry in this regard in register no.19 against Sl. No. 2753/10, photocopy of which has been proved as Ex.PW 16/B. He further deposed that on 17.02.2011 the parcel sealed with the seal of ML was taken by Inspector Ashok for seeking opinion and on the same day Inspector Ashok again deposited the said parcel with him and that time the said parcel was sealed with the seal of FMT BJRM and that he made entry in this regard in register no. 19, which has been proved as Ex. PW16/C. He deposed that on 08.02.2011 one parcel containing Viscera was sent to FSL Rohini vide RC no. 8/21/11 through Ct. Vijender Singh and on the same day Ct. Vijender handed over the acknowledgement receipt to him regarding depositing the said parcel and the entry in this regard in register no.19 has been proved as Ex.PW16/D. Copy of RC no.8/21/11 has been proved as Ex. PW16/E and photocopy of acknowledgement receipt is Ex. PW16/F. He has deposed that till the time the sample/ exhibits remained in his custody , the same were not tampered with in any manner.
PW17 SI Rajeev Ranjan has deposed that on 13.12.2010 he was FIR No. 410/10 P.S. Keshav Puram page 22 of40 S/V Mohd. Sarfaraj posted at PS Keshav Puram, on that day investigation of the case was handed over to him, he went to BJRM hospital for conducting the postmortem of dead body of deceased and SDM Model Town also came to the hospital and conducted the inquest proceedings. He has deposed regarding the identification of the dead body and conducting of inquest proceedings by SDM. He also deposed that after postmortem, the concerned doctor had given the viscera pullanda and a sample seal, sealed with the seal of BJRM HOSPITAL DELHI FMT and the same was taken into possession vide memo Ex. PW17/A bearing the signatures of PW17/A. PW17 deposed that after returning to PS, he deposited the pullanda with MHC(M) and his statement was recorded by the IO.
PW18 Inspector Ashok Kumar deposed that on 11.01.2011 the present case was handed over to him for further investigation and on 08.02.2011 he got deposited the exhibits of this case to FSL Rohini through Ct. Bijender. He deposed that on 14.02.2011 the list of dowry articles was given by brother of deceased which was taken into possession vide memo Ex. PW 13/A and the list of dowry articles is Ex. PW10/E. He deposed that he also recorded the statement of Mohd. Sikander i.e brother of deceased on 17.02.2011. PW18 also moved an application for taking the subsequent opinion of department of Forensic Medicine, BJRM hospital and sought an opinion whether the hanging was possible by the said Chunni. He deposed that on 23.02.2011 he visited FIR No. 410/10 P.S. Keshav Puram page 23 of40 S/V Mohd. Sarfaraj the spot alongwith Draftsman SI Mahesh Kumar (PW7) and SI Mangu Lal (PW19) and PW 7 had taken the rough notes and measurements of the spot and handed over the scaled site plan later on. PW18 deposed that after completion of the investigation, he filed the charge sheet in the court through SHO.
PW19 SI Mangu Lal is one of the IO of the case and has deposed on the line of testimony of other witnesses regarding investigation of the case. He also identified one lemon coloured dupatta/chunni which was seized from the bed/diwan where dead body of deceased was lying as Ex. PX1. ( The same has earlier been proved as Ex. P1).
12. The factum of marriage of deceased Ms. Shabana Parveen with the accused on 07.06.2009 and the factum of unnatural death of deceased by hanging on 09.12.2010 ( i.e. within 07 years of her marriage) at 310/25, Onkar Nagar, Tri Nagar, Delhi i.e the address at which the accused and deceased were living at that time after their marriage is not disputed. The reference in this regard can be made to testimony of prosecution witnesses, as discussed above,the statement of accused U/S 313 CrPC, to postmortem report EX Pw 1/A and the opinion of PW1 i.e. EX PW 1/B. As far as offences U/S 498 A IPC and Section 304 B IPC are concerned, the material witness for the prosecution are PW10 Mohd. Kasim i.e. the father of the deceased and PW 13 Mohd. Sikander i.e. FIR No. 410/10 P.S. Keshav Puram page 24 of40 S/V Mohd. Sarfaraj brother of the deceased. PW10 has deposed that his daughter was married to the accused on 07.06.09 and after the marriage the accused alongwith the deceased remained with him at his native place and thereafter the accused brought his daughter at Mubarak Pur, Delhi where they stayed for few days and thereafter they started residing at a house at Onkar Nagar, Tri Nagar, Delhi on rent . He further deposed that after marriage her daughter visited his house twice, on first occasion she remained with him for about one month and on the second occasion, when she was pregnant, she remained with him for about six months and delivered one male child at his native place. He has specifically deposed that accused used to demand money from his daughter and also beat her and whenever the accused demanded money from his daughter ( deceased), he ( PW10) tried to fulfill his demand of money. He deposed that after delivery of male child, accused came to his native place and forcibly took away his daughter( deceased) and at that time he fulfilled the demand of accused and paid Rs.10,000/ to him, which he took on loan. He deposed that he fulfilled the demand of Rs.10,000/ so that the accused keeps his daughter and her son happy. He also deposed that on one occasion, the accused demanded Rs. 1 lac for purchasing the computer, but he could not pay the same and thereafter the accused started giving beatings to his daughter and after 23 days of that incident, he came to know that his daughter has expired. He deposed that his FIR No. 410/10 P.S. Keshav Puram page 25 of40 S/V Mohd. Sarfaraj daughter telephoned him and told him about the demand of Rs. 1 lac and the beatings given by the accused to her. He further deposed in his examination in chief that about 10 days prior to her death his daughter telephonically informed him regarding the cruelty, harassment and beatings given to her by the accused due to non fulfillment of demand of Rs. 1 lac made by the accused for purchasing computer. PW10 deposed that her daughter also telephonically told this fact to his son ( PW13) on 08.12.10, however, perusal of testimony of PW13 shows that in his re examination by Ld. Addl. P P for the State, PW13 has specifically deposed that only his father had told him about the demand of Rs. 1 lac made by the accused for buying a computer. PW10 also deposed in crossexamination that accused had demanded Rs. 1 lac telephonically and the call was received by his son Sikander ( PW13) but he did not remember the date and time of said phone call. Perusal of testimony of PW10 and PW13 including their crossexamination show that a serious doubt has arisen regarding the alleged demand of Rs. 1 lac by the accused from the deceased or PW10 or PW13 for purchase of the computer, however, there are other allegations in the testimony of PW10 and PW13 which prove beyond reasonable doubt that the accused being the husband of the deceased subjected her to cruelty and harassed her with a view to coerce her or her relatives i.e. PW10 and PW13 to meet his unlawful demands of dowry. PW13 in this regard has deposed that FIR No. 410/10 P.S. Keshav Puram page 26 of40 S/V Mohd. Sarfaraj despite giving the dowry articles to her sister ( deceased) as per their capacity in her marriage she was being harassed by the accused and he used to beat her for dowry. He has also deposed that later on the accused and her sister shifted to Onkar Nagar, Tri Nagar, Delhi where also the accused beat her for dowry. He deposed that her sister used to make calls at their residence in every 1520 days and she used to tell them that she was being harassed and beaten by the accused for dowry. He deposed that once he went to the house of his sister and tried to reconcile the dispute between his sister and the accused and that time also the accused demanded Rs.10,000/ which was paid to him by his father. In crossexamination, PW13 has deposed that initially his sister disclosed about the harassment being meted to her by the accused when she made a visit to their house at the time of her delivery . He further deposed that Rs.10,000/ were given to the accused in his presence as the same were given at the time of delivery of his sister at their house. Nothing material has come on record in the testimony of PW10 and PW13 to discredit their testimony regarding the demand of money/ dowry by the accused from the deceased i.e. wife of the accused and also the factum of giving beatings to her by him. The perusal of EX PW 10/B i.e. the statement dated 12.12.10 of PW10 ( father of the deceased) as recorded by PW12 SDM also shows that he has interalia stated in it that his soninlaw( accused) often used to beat his daughter Shabana Parveen regarding FIR No. 410/10 P.S. Keshav Puram page 27 of40 S/V Mohd. Sarfaraj demand of dowry and also tried to give her mental stress. He has further stated in EX PW 10/B that he often used to fulfill the demand of the accused and about 56 months back when his grand son ( son of the accused and deceased) was born then also he paid Rs.10,000/ in cash to the accused so that the accused does not harass his daughter as the accused had demanded this money from him. He further stated in EX PW 10/B that his daughter told him that the accused often ill treated her, used to give her beating, used to coerce her to bring dowry and used to give her mental torture and due to that he had to fulfill the demand of the accused . He also stated that the suicidal death of his daughter is due to the fact that she was coerced to bring dowry by the accused. Nothing has come in the testimony of PW12 or PW10 to discredit their testimonies in this regard and to raise any iota of doubt over the above said facts as mentioned in EX PW 10/B. It is pertinent to note that on EX PW 10/B only, upon the directions of PW12, the case FIR was registered. The Ld. Counsel for accused has referred the judgments of Hon'ble Supreme Court of India in Satvir Singh ( Supra) and Ran Singh ( supra) and has argued that some customary payments in connection with birth of a child are not enveloped within the ambit of dowry. There can be no doubt over the law as laid down by the Hon'ble Supreme Court of India in the above said judgments, however, the said judgments shall not help the accused in this case as the facts of the present case are distinguishable, FIR No. 410/10 P.S. Keshav Puram page 28 of40 S/V Mohd. Sarfaraj as in the present case PW10 has specifically deposed that at the time of delivery of male child he fulfilled the demand of accused and paid Rs.10,000/ to him, which he took on loan and he fulfilled the demand of Rs.10,000/ so that the accused keeps her daughter and her son happy. Further, as mentioned above, PW10 has stated in EX PW 10/B that at the time of birth of his grand son he upon the asking of the accused gave him Rs.10,000/ in cash so that the accused may not harass his daughter. It is thus clear from the testimony of material witnesses and record that the said demand of Rs.10,000/ also was not due to the birth of grand son of PW10 but was demanded as dowry by the accused from PW10 in connection with the marriage of accused and deceased, although, the same was demanded at the time of birth of son of the accused and deceased . Further, from the testimony of PW10, PW13 and EX PW 10/B it is clear that there was otherwise also a continuous and persistent demand of dowry by the accused from the deceased and from PW10 coupled with physical beatings given by the accused to the deceased. It is thus evident from the above said discussion and the testimony of material witnesses that the prosecution has proved beyond reasonable doubt that the accused being the husband of the deceased subjected her to cruelty with a view to coerce her or PW10 being her father or PW 13 being her brother to meet the unlawful demands of dowry of the accused. The accused Mohd. Sarfaraj is thus liable to be convicted and FIR No. 410/10 P.S. Keshav Puram page 29 of40 S/V Mohd. Sarfaraj is thus convicted U/S 498 A IPC.
13. As far as Section 304 B IPC is concerned, the prosecution cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused 'soon before her death'. In this regard Section 304 B IPC is being reproduced as under :
" 304B Dowry Death (1) Where the death of a woman is caused 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 for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation: For the purposes of this subsection, "
dowry death" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 ( 28 to 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].
For the purposes of Section 304 B IPC, the presumption as to dowry death as provided in Section 113 B of The Indian Evidence Act, 1872 is also to be noticed, which is also being reproduced below:
" 113 B . Presumption as to dowry death FIR No. 410/10 P.S. Keshav Puram page 30 of40 S/V Mohd. Sarfaraj 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 had 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 same meaning as in section 304B of the Indian Penal Code,1860 ( 45 of 1860)]".
14. The cojoint reading of Section 304 B IPC & Section 113 B of Indian Evidence Act, as reproduced above thus shows that the prosecution has to prove that harassment or cruelty given to the deceased was related to the demand of dowry and was given ' soon before her death'. It, however, seems that PW10 and PW13 have orchestrated a story regarding alleged demand of Rs. 1 lac by the accused to help the prosecution to cross the hurdle of proving 'soon before her death'. In this context PW10 has deposed that on one occasion accused demanded Rs. 1 lac for purchasing the computer but he could not pay the same and thereafter accused started giving beatings to his daughter and after two three days of that incident, he came to know that his daughter had expired. He also deposed in his examination in chief that his daughter telephoned him and told him about the demand of Rs. 1 lac and the beatings given by the accused to her . PW10 further deposed that about 10 days prior to her death, her daughter( deceased) telephonically informed him regarding FIR No. 410/10 P.S. Keshav Puram page 31 of40 S/V Mohd. Sarfaraj the cruelty, harassment and beatings given to her by accused due to non fulfillment of demand of Rs. 1 lac made by the accused for purchasing computer . He deposed that his daughter also telephonically told this fact to PW13 on 06.12.10. He also deposed that he could not tell this fact to SDM while he was recording his statement as he was very disturbed at that time due to death of his daughter. PW10 also deposed in his examination in chief that accused also made a demand of Rs. 1 lac from his another daughter Rawana Parveen and on that issue , the abuses were exchanged between accused and Rawana Parveen and that fact was told to him ( PW10) by the father of accused being the cause of death of accused. In crossexamination, PW10, however, has deposed to the contrary to the effect that the accused had demanded Rs. 1 lac telephonically and the call was received by his son Mohd. Sikander ( PW
13) but he did not remember the date and time of said phone call i.e. in examination in chief PW10 has deposed to the effect that the accused demanded Rs. 1 lac ( from him) and in crossexamination has deposed that the said call from accused was received by his son ( PW13). PW13 on the other hand, deposed in his examination in chief to the effect that one week prior to the date of incident, he was told by his father ( PW10) that accused was demanding Rs. 1 lac to purchase a computer and on 08.12.10 his sister ( deceased) also made a call to him at around 12 O'clock in day and told him that she was being harassed by accused for FIR No. 410/10 P.S. Keshav Puram page 32 of40 S/V Mohd. Sarfaraj fulfilling his demand of Rs. 1 lac. PW13 never deposed that he got a call from accused regarding the alleged demand of Rs.1 lac. In his cross examination, PW13 materially contradicted PW10 and himself also by deposing that he did not have any talk with his sister( deceased) regarding demand of Rs. 1 lac. PW13 in reexamination by Ld. Addl. P .P. for the State deposed that only his father ( and not sister) had told him about the demand of Rs. 1 lac made by accused for buying a computer. There are thus material contradictions regarding the said alleged demand of Rs. 1 lac by accused to purchase a computer between testimony of PW10 & PW13. Further, PW10 has not told this fact to SDM in his statement EX PW 10/B i.e. his statement is totally silent regarding any such demand of Rs. 1 lac by the accused. Merely by deposing that PW 10 was disturbed due to death of his daughter and thus did not tell this fact to SDM ( PW12) is absolutely not a proper explanation as although PW10 told other material facts to PW12 during recording of his statement but how he could have forgot the most important and recent factum allegedly being the immediate cause of death of her daughter. This glaring omission is material in nature and the misery of prosecution in this regard is further compounded by the fact that there are glaring material contradictions between testimony of PW10 & PW13 regarding the said alleged demand of Rs. 1 lac by the accused. It thus raises a very strong doubt over the alleged demand of Rs. 1 lac itself by the accused FIR No. 410/10 P.S. Keshav Puram page 33 of40 S/V Mohd. Sarfaraj and due to it the prosecution has failed to prove beyond reasonable doubt that 'soon before her death' the deceased was subjected to cruelty regarding demand of dowry by the accused and no presumption in this regard as envisaged U/S 113 of Indian Evidence Act also arises. It is pertinent to note that the prosecution has not alleged any other incident to prove that soon before her death the deceased was subjected by accused to cruelty for demand of dowry. It is further pertinent to note that PW10 has also hinted regarding demand of Rs. 1 lac by accused from one Ms. Rawana Parveen i.e. another daughter of PW10 and consequent exchange of abuses between accused and Rawana Parveen and telling by father of accused to PW10 that this was cause of death of deceased. In this regard, the prosecution has not examined said Rawana Parveen or father of accused as a witness and thus this testimony of PW10 will be of no consequence at all and will not help the case of prosecution, rather it dents the case of prosecution in the context of Section 304 B IPC. In view of said discussion, it is evident that prosecution has failed to prove beyond reasonable doubt that soon before her death the deceased was subjected to cruelty or harassment by accused or his any relative for or in connection with demand of dowry and thus the prosecution has failed to prove beyond reasonable doubt that the accused caused dowry death of deceased within the ambit of Section 304 B IPC. Accused is thus acquitted U/S 304 B IPC.
FIR No. 410/10 P.S. Keshav Puram page 34 of40
S/V Mohd. Sarfaraj
15. It is however, not the end of this discussion. It is a settled law that mere omission or defect in framing charges does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. It is also a settled law that the offence U/S 304 B IPC is an offence of higher degree than Section 306 IPC and a presumption U/S 113 A of the Indian Evidence Act can also be raised against an accused on the same facts constituting offence of cruelty U/S 498 A IPC. My views are fortified by the judgment of Hon'ble Supreme Court of India in case titled as K. Prema S. Rao Vs. Yadla Srinivasa Rao 2003 (1) Crimes 62 : 2003 (1) S.C.C. 2007: 2002 (8) Scale 153. In the present case also as in K. Prema S. Rao's case ( supra) although a charge specifically U/S 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the charge as framed U/S 498 A / 304 B IPC and as the not framing of charge U/S 306 IPC has not occasioned a failure of justice, therefore, if the evidence of the prosecution is sufficient then the accused can also be convicted U/S 306 IPC even if specific charge U/S 306 IPC has not been framed. Further, it was also held by Hon'ble Supreme Court of India in judgment dated 11.11.13 in Criminal Appeal No. 1774 of 2008 in case titled as Bhupendra Vs. State of Madhya Pardesh that Section 306 of IPC is wide enough to take care of an offence U/S 304 B IPC, however, an offence U/S 304 B IPC has been made a far more serious offence with FIR No. 410/10 P.S. Keshav Puram page 35 of40 S/V Mohd. Sarfaraj imposition of a minimum period of 7 years with the sentence going upto imprisonment for life and considering the gravity of the offence it is treated separately from an offence punishable U/S 306 IPC. On that basis the Hon'ble Supreme Court rejected the contention that if a dowry related death was a case of suicide then it will not fall within the purview of Section 304 B IPC at all. The Hon'ble Supreme Court of India in said case also held that Section 306 IPC is much broader in its application and takes within its fold one aspect of Section 304 B IPC. It was further held that the said two sections are not mutually exclusive and if a conviction for causing a suicide is based on Section 304 B IPC, it will necessarily attract Section 306 IPC, however, the converse is not true.
It is also a settled law that Section 306 IPC when read with Section 113 A of the Indian Evidence Act has only enabled the court to punish a husband or its relative who subjected a woman to cruelty (as envisaged in Section 498 A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused soon before her death or earlier. If it was caused soon before her death the special provision in Section 304 B IPC would be invocable, otherwise resort can be made to Section 306 IPC. (reliance is placed upon the judgments of Hon'ble Supreme Court of India in Satvir Singh Vs. State of Punjab ( 2001) 8 SCC 633 and in Bhupendra's case ( supra) ).
FIR No. 410/10 P.S. Keshav Puram page 36 of40
S/V Mohd. Sarfaraj
16. In this context Section 306 IPC and Section 113 A of The Indian
Evidence Act, 1872 are being reproduced below:
Section 306 IPC:
" 306. Abetment of suicide
If any person commits suicide, whoever
abets the commission of such suicide, shall be
punished within imprisonment of either description of a term which may extend to 10 years, and shall also be liable to fine".
Section 113 A of The Indian Evidence Act, 1872:
"113 A. Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by woman has been abetted by her husband or any relative of her husband and it is shown that she had committed suicide with a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation: For the purpose of this section " Cruelty" shall have the same meaning as in section 498 A of the Indian Penal Code, 1860 (45 of 1860).]".
17. It is pertinent to note that in the earlier part of the judgment the accused has already been convicted U/s 498 A IPC as the prosecution has proved beyond reasonable doubt that the accused being the husband of the FIR No. 410/10 P.S. Keshav Puram page 37 of40 S/V Mohd. Sarfaraj deceased subjected her to cruelty with a view to coerce her or PW10 being her father or PW13 being her brother to meet the unlawful demands of dowry of accused. As discussed above, the factum of marriage of deceased with the accused on 07.06.2009 and the factum of unnatural death of deceased by hanging on 09.12.10 i.e. within 7 years of her marriage at 310/25, Onkar Nagar, Tri Nagar, Delhi i.e. the address at which the accused and the deceased were living at that time after their marriage is not disputed. The factum of commission of suicide by the deceased by hanging herself with a chunni ( EX P1) within 7 years of her marriage with the accused is also not disputed ( reference in this regard can be made to answers to question No.24, 25 and 26 as given by the accused in his statement U/S 313 CrPC and the testimony of PW1, PW2 and PW9). In view of the above said conviction of the accused U/S 498A IPC and the above mentioned facts, a presumption arises U/S 113 A of The Indian Evidence Act, 1872 that the husband/ accused abetted the suicide of the deceased.
The accused in the cross examination of PW10 and PW13 has tried to make out a defence to rebut the said presumption by suggesting that the deceased was a weak hearted (Kamzor Dil Ki) lady and that she could not manage with the changed circumstances of the married life and matrimonial obligations, therefore, committed suicide. The further defence of the accused is to the effect that due to the weak financial conditions of FIR No. 410/10 P.S. Keshav Puram page 38 of40 S/V Mohd. Sarfaraj her inlaws the deceased used to be in depression. All these suggestions were denied by PW10 i.e. father of the deceased, who volunteered that the deceased was very simple ( Sidhi ). Similarly, PW13 i.e. brother of the deceased denied the suggestion of Ld. Counsel for the accused in his crossexamination that his sister was under any treatment for any disease. PW19 SI Mangu Lal ( IO) also denied the suggestion of the Ld. Counsel for the accused in his crossexamination that he did not know if the deceased had committed suicide due to weak financial condition of her inlaws or that the deceased was a patient of depression due to above said financial problems. He also denied the suggestion that deceased committed suicide as she failed to adjust in the changed circumstances of married life and matrimonial obligations. The accused in his statement U/S 313 CrPC has also stated that the deceased used to remain under depression. In this regard the accused also examined DW1 Sh. Deepak Chopra, who deposed that about 710 days prior to her death the deceased had told him that she was having tension regarding the selling of her matrimonial house. The accused has, however, failed to prove on record his defence beyond preponderance of probabilities as he has failed to prove that the deceased was a weak hearted lady or that she used to be in depression due to weak financial condition of her in laws. The accused has failed to examine any doctor or to prove any medical prescription or for that matter whether the deceased was getting FIR No. 410/10 P.S. Keshav Puram page 39 of40 S/V Mohd. Sarfaraj any medical treatment for depression or even was suffering from any depression. As far as testimony of DW1 is concerned, the same is absolutely not reliable as admittedly he did not attend the marriage of the accused with the deceased and had talks for only 2 or 3 times with her ( deceased) . In this regard the accused has also failed to show or prove that the matrimonial house of the deceased was being sold or there was any tension regarding that. In these circumstances and without examining any reliable witness on record and in the absence of examining any doctor on record to show that the deceased was suffering from depression, the accused has failed to substantiate his defence beyond preponderance of probabilities and has also failed to rebut the presumption raised against him U/S 113 A of the Indian Evidence Act to the effect that he being the husband abetted the suicide of his wife ( deceased). The accused is thus liable to be convicted and is convicted U/S 306 IPC.
Let the convict be heard on the point of sentence.
Announced in the open court ( Amit Bansal)
on 28.04.14 Additional Sessions Judge 04 ( N/W)
Rohini Courts: Delhi.
FIR No. 410/10 P.S. Keshav Puram page 40 of40