Delhi District Court
State vs Shakilluddin Etc on 8 April, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.20/09
FIR No.213/03
U/s 498A/304B/302/34 IPC
PS New Friends Colony
State
Vs.
1. Shakilluddin S/o Wakilluddin
2. Razia Begum w/o Wakilluddin
3. Rukshana D/o Wakilluddin
4. Rani w/o Mohd. Rafiq
5. Reshma w/o Salim @ Sehzada
........ Accused
Challan filed on : 26.03.03
Received by Fast Track Court on:01.04.2009
Reserved for Order on : 28.03.2011
Date of Pronouncement : 08.04.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 27.04.03 on receipt of DD no. 23 copy of which is Ex.PW20/A ASI Prem Chand alongwith Ct. Aas Mohd and Ct. Jawahar Singh reached at G67 Muradi Road, Batla House where they saw one burnt dead body wrapped in a blanket lying on the cot and the wooden cot was also found burnt and one plastic cane containing kerosene oil and State Vs.Shakilluddin etc FIR no.213/03 Page No. 1 of 46 some broken bangles were also found there. Crime team was summoned and SDM was also informed. The dead body was removed to AIIMS Hospital. The articles lying at the spot were seized. SDM reached in the hospital on 28.04.03 and inspected the dead body. He recorded the statements of parents of deceased Quamar Sultana. The statement of her mother Nasim Bano is Ex.PW2/A and her father Nababuddin is Ex.PW1/A. In his statement complainant Nababuddin alleged that he solemnized the marriage of his daughter Quamar Sultana during the month of May 2001 with Mohd. Shakeel . After marriage whenever Sultana used to come to her parental house she used to make complaints regarding her mother in law, husband and sister in laws. Her daughter states that her in laws used to behave with her like maid. Last year they had thrown his daughter out out of matrimonial home. But her husband came to their house and took her away saying that it will not happen again. (ainda aisi galti nahin hogi). His sons had also given Rs.30,000/. He used to demand other articles. They had given him gold chain. When child was born, they had given some goods. His daughter had come to visit his house on 3rd/4th April. May be, she had come with demand of some money, but she did not disclose anything seeing their condition. On 18.04.2003 she was taken by her husband Mohd. Shakeel. On 27.04.2003 they received telephone call in the evening that their daughter has been burnt. They made telephone call but could not contact. He called up his relatives State Vs.Shakilluddin etc FIR no.213/03 Page No. 2 of 46 who had gone to Okhla where his another damad(son in law) and daughter met them and they reached at the spot. They had informed that Quamar Sultana had been burnt and she had died. He suspects mother in law of his daughter, her husband, Shakeel, Nanad (sister in law) Rani, Reshma and Rukshana have committed her murder and thereafter burnt her. His daughter was pregnant for about four months. The SHO made his endorsement to register the case on the basis of statement Ex.PW1/A of Nababuddin. The investigation had been carried out and accused persons were arrested. After completion of the investigation, challan u/s 498A/304B/34 IPC has been filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 29.08.03.
3. The charge against accused persons has been framed u/s 498A/304B/302/34 IPC on 08.10.04 by my Lord Hon'ble Mr. Justice S.L.Bhayana, the then Ld. ASJ to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 24 witnesses.
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5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. In defence the accused persons have examined three witnesses. DW1 Rahisuddin, DW2 Mohd. Salim and DW3 Raju. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.counsel on behalf of the accused persons, I have perused the testimonies of all the PWS.
8. PW1 Nawabuddin is the complainant and father of deceased Quamar Sultana and he has stated that his statement Ex.PW1/A was recorded by the SDM.
9. PW2 Naseem Bano is the mother of deceased Quamar Sultana and she has also stated that her statement Ex.Pw2/A had been recorded by the SDM.
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10. PW3 Salauddin is the brother of deceased Quamar Sultana and PW4 Abida Begum is the sister of deceased.
11. PW5 Dr. Arvind Kumar has deposed that Dr. Lt. Col. Ravi Raoji, Jr. Resident has conducted the post mortem examination on the dead body of Quamar Sultanaa and he has stated that the post mortem report is Ex.PW5/A.
12. PW6 ASI Jai Karan has deposed that on 28.04.03 he was working as DO and on that day Insp. Ramesh Kumar handed over rukka Ex.PW1/A to him and he recorded FIR no. 213/03. The copy of FIR is Ex.PW6/A.
13. PW7 Ajimuddin is the husband of PW4 Abida Begum who had gone with his wife to Okhla on the day of incident and received information about mishappening with his sali (sister in law).
14. PW8 Ct.Aas Mohd. accompanied ASI Prem Chand to G67 Batla House and found one lady in burnt condition who was wrapped in a blanket. He has stated that crime team took the photographs and police seized the articles i.e one plastic cane of kerosene oil about half liter, some half burnt match sticks, broken bangles and ashes of burnt State Vs.Shakilluddin etc FIR no.213/03 Page No. 5 of 46 clothes of deceased lying the room vide memo Ex.PW8/A. One pair of small and big ear rings and one paijeb of silver were seized vide memo Ex.PW3/A. IO also seized one small wooden box and one pullanda containing the clothes of the deceased, one dibbi having hair of deceased in the hospital vide memo Ex.PW8/B. He identified the cane Ex.P1, match box containing four half burnt match sticks Ex.P2 and broken bangles Ex.P3.
15. PW9 SI Begaram is the witness from Crime teach who reached at the spot and he has deposed that Ct.Balwant took the photographs of the spot from different angles. The photographs are Ex.P4 to P23.
16. PW10 ASI Premchand has deposed that on receipt of DD no.23 on 27.4.03, he reached at the spot and found dead body of a lady wrapped in a blanket and one kerosene oil cane, half burnt match sticks were also found lying. He informed the crime team who came and took the photographs. He informed the SDM and removed dead body to hospital. He seized the articles lying at the spot. The dead body was preserved in AIIMS Hospital. Ct.Balwant Singh took the photographs. He has further deposed that on 28.4.03 SDM Defence colony came in the hospital and recorded the statements parents of deceased. He completed the inquest proceedings. Post mortem of dead State Vs.Shakilluddin etc FIR no.213/03 Page No. 6 of 46 body was got done and dead body was handed over to the parents of deceased. He seized the viscera along with other three pullandas vide memo ex.PW8/B. He also seized ear rings and other worn articles of deceased vide memo Ex.PW3/A. He identified the case property.
17. PW11 Rajesh Kumar is the then SDM of Defence Colony. He has deposed that on 28.4.03 he reached in Mortuary of AIIMS Hospital and inspected the dead body of Quamar Sultana and prepared the death report. He recorded the statement of Nawabuddin Ex.PW1/A and Nasim Bano Ex.PW2/A and prepared the brief facts which are Ex.PW11/A. The inquest form is Ex.PW11/B, form no. 25.35 is Ex.PW11/C. He directed IO to initiate legal proceedings against the accused persons as there were allegations for harassment and torturing for dowry.
18. PW12 SI Mahesh Kumar has deposed that he prepared the scaled site plan which is Ex.PW12/A.
19. PW13 Insp. Rajesh Sharma has deposed further investigation was entrusted to him and he got prepared the site plan through SI Mahesh Kumar. He sent exhibits to CFSL on 29.6.03 through Ct. Gajanand.
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20. PW14 ASI Prem Chand (again examined as PW14 while he has already been examined as PW10). He has further deposed that he recorded the statement of Salauddin regarding identification of dead body of Qamar Sultana which is Ex.PW14/B. He also recorded the statement of Nayamuddin which is Ex.PW14/C. The dead body was handed over vide receipt Ex.PW14/D. He identified the pair of paijab of silver as Ex.PW14/A1 and gold ear rings as Ex.PW14/A2.
21. PW15 Ct. Jawahar Singh has deposed that on 27.4.03 he reached at the spot with ASI Prem Chand where they found one dead body of lady in burnt condition. ASI Prem Chand had seized 5 liter cane containing half liter kerosene oil and also seized burnt match stick .
22. PW16 L/Ct.Anju has deposed that on 28.04.03 he joined the investigation and they reached at G67 Muradi Road, Batla House where SI Rajesh Kumar arrested accused Razia Begum, Ruksana and Rani vide arrest memo Ex.PW15/A, B and C and conducted their personal search vide memo Ex.PW15/D, E and F. IO also recorded the disclosure statement.
23. PW17 Ct. Birjanand has deposed that on 29.6.03 he had taken the viscera to CFSL, Hyderabad and on 1.7.03 he deposited the State Vs.Shakilluddin etc FIR no.213/03 Page No. 8 of 46 same there.
24. PW18 Ct. Balwant has deposed that on 27.04.03 he reached at the spot and on the direction of ASI Prem Chand he took two photographs of the spot. The negatives are Ex.PW18/1 (colly.) and the photographs are Ex.P4 to P8.
25. PW19 Ct. Raj Singh has deposed that he joined the investigation with SI Rajesh Kumar and they went to G67 Batla House where accused persons Shakilluddin, Rani, Razia, Ruksana were arrested vide arrest memo Ex.PW19/A, Ex.Pw15/F, Ex.PW15/D and Ex.PW15/E. IO recorded the disclosure statement of Shakilludin which is Ex.PW19/C.
26. PW20 Ct. Sanjay Singh has deposed that on 27.4.03 he was working as DD writer and he recorded DD no.23. This DD was destroyed as per the order of ACP. The copy of order is Ex.PW20/A.
27. PW21 HC Tota Ram has deposed that he was posted as MHCM and he made entry regarding depositing of case property in the malkhana. The entry is Ex.PW21/A. He sent the same to CFSL vide RC no. 27/21/04. He also made entry no.915 Ex.PW21/B regarding depositing the case property.
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28. PW22 SI Rajesh Kumar has deposed that on 28.4.03 further investigation was entrusted to him and he prepared the site plan at the instance of ASI Prem Chand which is Ex.PW22/A. He further deposed about arrest of accused Razia, Ruksana, Shakilluddin and Rani vide memo Ex.PW15/A,B,C and Ex.PW19/A and conducted his personal search vide memo Ex.PW15/F,D, Ex.PW19/B and Ex.PW15/E. He prepared the disclosure statement of Skilluddin Ex.PW19/C.
29. PW23 Retired SI Randhir Singh has deposed that he collected the CFSL result from Hyderabad.
30. PW24 Sh SN Rasool is the witness from CFSL Hyderabad and he has deposed that he examined the exhibits and after examination he prepared the report which is Ex.PW24/A.
31. I have also perused the defence evidence led by accused persons. DW1 Rahisuddin has deposed that his son had come to Meena Bazar at his shop and informed that his niece (Bhanji) has been burnt with stove. Thereafter he alongwith his son went to Okhla where he found household articles scattered. Police came and took the dead body with them. He directed his daughter in law Reshma that she State Vs.Shakilluddin etc FIR no.213/03 Page No. 10 of 46 should not go to Okhla because she was under treatment of Dr.Bansal. His daughter in law used to look after his entire family and house.
32. DW2 Mohd. Salim has deposed that on 27.04.03 he received telephone message that his cousin Quamar Sultana has been burnt with stove. He rushed from Meena Bazar to the shop of his father and informed him regarding the incident. He made telephone call to his bua/aunt and told her about the incident. After that he went to Okhla and when he entered in the house he saw stove lying over there and household articles were also scattered there.
33. DW3 Raju is the neighbourer of accused. He has deposed that the incident took place about 7 years ago. He heard the noise from the house of Shakilluddin as Bachao, bachao mere ghar mey bahu jal rahi hai. He immediately rushed towards the house of Shakilluddin with water bucket and sprinkled the water on the burning lady and she was wrapped in a clothe by him after taking the same from the house of Shakilluddin as her entire clothes had been burnt and she was naked. Someone stopped the TSR from the public and the said burnt lady was taken to the hospital by the mother of Shakilluddin. AT that time mother of Shakilluddin named Razia alongwith one small kid were present in the house.
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34. In the overall analysis of the testimonies of all the PWS it is revealed that PW1 Nababuddin is the father of deceased, PW2 Nasim Bano is the mother of deceased, PW3 Salauddin is the brother, PW4 Abida Begum is the sister and PW7 Ajimuddin is the jija of deceased. These witnesses including PW11 Rajesh Kumar, the then SDM are the main star witnesses of the prosecution. PW1,2,3,4 & 7 are the near relatives of the deceased. Before discussing their deposition made in the court and to bring the guilt of the accused persons u/s 498A/304B IPC it is necessary to discuss the relevant provisions. Section 304B relates to dowry death. The same was introduced in the Indian Penal Code and it reads as under: Sec.304 B (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 demands for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. For the purpose of this sub section dowry shall have the same meaning as in section 2 of the dowry prohibition Act 1961. 'Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life'.
And if the ingredients of section 304B have been completed then the presumption u/s 113 B in the Indian Evidence Act is required. State Vs.Shakilluddin etc FIR no.213/03 Page No. 12 of 46 Section 113 B Presumption as to dowry death when the question 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.
In a case of dowry death cruelty on part of husband towards his wife by prosecution has to be proved beyond reasonable doubt and section 113 B of Evidence Act does not alter this requirement of stick proof.
Section 498 A IPC reads as under: 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.
There is 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 for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
35. From the conjoint reading of section 304B of the IPC and Sec. 113B of the Indian Evidence Act it is apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Sec.304B of IPC. The ingredients of the aforementioned provisions are : State Vs.Shakilluddin etc FIR no.213/03 Page No. 13 of 46
1. That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;
2. Such death occurs within 7 years from the date of her marriage
3. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband
4. Such cruelty or harassment should be for or in connection with demand of dowry and
5. Such cruelty and harassment was made soon before her death.
36. In the normal circumstances though cruelty at any time after marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged in section 304B is to be seen before the death of a woman and it is the duty of the court to scrutinize the evidence carefully because cases are not rare in which occasionally there is demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined within the four walls of the house. However, the courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in laws are strained for any reason whatsoever it might be.
37. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological State Vs.Shakilluddin etc FIR no.213/03 Page No. 14 of 46 trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.
38. Reverting back to the testimonies of witnesses, firstly I would consider the testimonies of the witnesses adduced by the prosecution who are related to deceased Quamar Sultana. PW1 Nababuddin is the father of deceased and he has stated in his testimony that his daughter Quamar Sultana got married with Mohd Shakil in May 2001. Accused persons started harassing his daughter after marriage. Accused persons used to treat his daughter Sultana as servant and she was engaged in household work immediately after he marriage. Accused persons also used to comment on the dowry articles brought by Sultana and used to tell her that articles were of local brand and cheap quality. Accused persons also used to given beating to Sultana. Fatherinlaw of Sultana, accused Shakilluddin used to abuse Sultana after drinking and used to say that lesser dowry was given and articles are inferior. Shakiluddin also damaged washing machine given to Sultana which was got repaired by them later on. His daughter Sultana also told him that accused persons used to demand money as he got retirement. He State Vs.Shakilluddin etc FIR no.213/03 Page No. 15 of 46 told this fact to his relatives but they kept on tolerating by thinking about the married life of his daughter. On 15.8.02 his daughter Sultana was thrown away form her matrimonial home after being beaten by Razia, Rukhsana, Reshma and Rani and she was asked to bring money. Sultana stayed with him for 1012 days and thereafter taken back by accused Shakilluddin stating the such mistakes shall not be repeated in future. Sultana was sent after he called his other relatives and on the words given by Shakiluddin. A sum of Rs.30,000/ was also given to Shakiluddin on that occasion. Even thereafter the attitude of the accused persons remained the same and they kept on harassing his daughter. Whenever he visited the matrimonial house of his daughter he found her doing household work. Accused Reshma, Nanand of his daughter used to reside at her parental house after the death of her mother in law. In Apirl 2003 Quamar Sultana stayed in their house for a few days and told her that if something happens to her then her daughter should be brought up by them and her daughter should not be left with the accused persons. Sultana also told him that accused persons were demanding money from her and he told that he will make arrangements and thereafter on 17/8/4.03 she was taken away by Shakiluddin. On 27.4.03 at about 7 p.m he received information that Quamar Sultana was burnt. He tried to contact her matrimonial home but could not talk anyone. He contacted his relative at Okhla who visited the house of accused and informed him on State Vs.Shakilluddin etc FIR no.213/03 Page No. 16 of 46 telephone that she is dead and was being burnt. They also informed the police. Only on visit of his relatives in the house of accused, other persons of the locality came to know about the death of Quamar Sultana. He was told that incident took place at 4 5 pm but upto 7 p.m neither they were informed nor any doctor was called. When they reached there police was already there and later on his statement was recorded by the SDM which is Ex.PW1/A. He is confident that his daughter was killed by the accused persons present in the court. In cross examination he has stated that apart from police officials nobody has recorded his statement. He had not told to the police that the accused persons and in laws of his deceased daughter used to comment for having brought insufficient dowry and whatever has been brought was of inferior quality. He had not told the police officer that father in law Vakiluddin of his daughter Sultana used to drink alcohol and abused her daughter for bringing insufficient dowry or inferior quality also. He has also not told to the police that Sakiluddin damaged the washing machine. His daughter Quamar Sultana used to complaint against the ill treatment only to him, to her elder sister. He had not told the police the exact date as 15.8.02 when his daughter was outstead from the matrimonial house by the accused persons after being beaten by Razia, Reshma, Rukhsana and Rani. He does not remember if he had told the police that Quamar Sultana when came to reside with them she did not demand anything from looking at our State Vs.Shakilluddin etc FIR no.213/03 Page No. 17 of 46 condition although she might have come to our house in order to demand some money but she did not demand the money from them. He himself had not given Rs.30,000/ to accused Shakiluddin but his money was given to him by his son Salauddin. He had stated in his statement to the police that accused Reshma used to reside in her parental house after the death of her mother in law and in April 2003 when Quamar Sultana stayed in their house she told them that if anything happens to her, her daughter should be brought up by them and must not be left with the accused and Quamar Sultana told him that accused persons were demand money but he told her that he is not in a position to given any money but he will arrange for the same. He has been confronted with his statement Ex.PW1/A where it is not so recorded. He had not told the police that his relatives had informed police on 100 number about the incident and it was only after the visit of his relatives to the house of accused person that persons of locality came to know about the death of Quamar Sultana. He had not told the police that he was told by the persons of the locality that the incident had taken place at about 4/5 p.m but none was informed. Sehzad informed about the incident at about 6/6.15 p.m He had not told the police that who had informed him regarding the incident. He had not talked to Sehzad on phone as he was in the mosque. Sehzad is the husband of accused Reshma. He found Reshma wrapped in a cloth/blanket and her hands and feet were tied. Police was already State Vs.Shakilluddin etc FIR no.213/03 Page No. 18 of 46 there. Sultana was found lying on bed. His son in law Mohd. Aziz was at the house of his bhanja when he contacted him on phone to know about the condition of Sultana. Police did not make any call to him on that day. There was no landline phone at the house of accused but Sakiluddin was having a telephone. He denied the suggestion that Sultana had died accidently and none burnt her. He further denied the suggestion that accused persons have never demanded anything and they have been falsely implicated in this case.
39. PW2 Naseem Bano is the mother of deceased and she has deposed that her daughter Quamar Sultana got married with Shakiluddin in the year 2001 and after marriage she was not kept well and constantly harassed. Accused persons used to pass comments and harass her and used to give beatings. Accused persons also used to comment that very less dowry has given to Sultana and also used to demand more dowry through Sultana. Accused persons Reshma, Rani, Rukhsana and Razia begum used to given beating to Sultana and used to passed comments against her. Reshma also used to abet Shakeel against Sultana. Reshma demanded a sum of Rs.50,000/ and this demand was supported by Razia and other accused persons. On 15.8.2002 Sultana was beaten up and was sent to their home and she was told to bring Rs.50,000/. They told the accused persons that they were not having that amount and they were only having Rs.30,000/ State Vs.Shakilluddin etc FIR no.213/03 Page No. 19 of 46 and when they gave Rs.30,000/ Shakeel took Sultana to his home. Her son Salauddin handed over this amount to accused Shakilluddin. Later on in the year 2003 Sultana was killed by burning by the accused persons as they could not meet the demand of cash and other dowry. Her statement Ex.PW2/A was recorded by the SDM. Her daughter was pregnant when she was killed. In cross examination she has been confronted with her statement regarding stating that Reshma, Rani and Ruksana used to beat the deceased. Saleem @ Shehjaz is the son of her brother and married to Reshma. Saleem was earlier engaged to the daughter of Sizauddin and the engagement was broken due to enmity between father in law of accused Reshma and father of Saleem Sehzad. She was confronted with her statement regarding her stating about demand of dowry through deceased Sultana. She has made improvement that Reshma has demanded Rs.50,000/ from them through Sultana. She has also improvement that her daughter was asked to go to her parent's house and demand Rs.50,000/. She had stated in her statement before SDM that Nanad Reshma used to say that Quamar Sultana did not use to do the work and used to instigate her brother Mohd. Shakeel to give her beating and also used to torture her. This fact was stated by Sultana to her elder sister Abida and this fact was further told to her by Abida Begum. She was told by Sultana that both the nanad namely Rani and Rukhsana used to neglect her and used to abuse her. Saleem, son in law of accused Razia gave State Vs.Shakilluddin etc FIR no.213/03 Page No. 20 of 46 information at about 7 p.m. She admitted that once Shakilluddin had come to her house and gone away after leaving Sultana there and after few days he again came and apologized to his behaviour and had taken back Sultana. She admitted that Shakilludeen had demand Rs.50,000/ from me through Sultana. It is correct that mother in law of Quamar Sultana used to ask her son to demand a sun of Rs.50,000/because father of Sultana was retired from service. It is correct that father in law and mother in law of Sultana used to say that they would take Quamar Sultana one day on the fulfillment of their demand of cash of Rs.50,000/; She has improved her statement regarding demand of Rs. 50,000/ by Reshma. She also made improvement that Sultana was sent to their home and she was told to bring Rs.50,000/. A sum of Rs. 30,000/ was given to Shakilluddin by her through son Salauddin. The name of husband of Reshma is Saleem. Police reached at the spot before her arrival. Quamar Sultana was lying in her room and was wrapped in a blanket when she reached there. Lower middle portion of the bed was seen partially burnt. Wakiluddin was not seen there when she reached at the spot. She does not know if the marriage of present husband of Reshma was to take place with Daughter of real brother Siazuddin.
40. PW3 Salauddin is the brother of deceased and he has stated that after marriage Rani and Razia used to harass his sister. Reshma State Vs.Shakilluddin etc FIR no.213/03 Page No. 21 of 46 used to comment that Sultana had brought cheap articles in dowry and Shakeel used to beat her. Shakiluddin also made a demand of Rs. 50,000/ and Sultana was ejected out of her matrimonial home on 15.8.02 and she remained with them for 15/17 days. A sum of Rs. 30,000/0 were kept by his father with the direction that this amount should be given to Shakilluddin when he will come back to take his sister. When Skiluddin came he apologized for his behaviour and promised to behave properly with Sultana and upon believing him they sent Sultana with him and the sum of Rs.30,000/ were also given to him. His sister was taken but again accused started behaving in the same manner and demanded more dowry. Skilluddin was also abetted by other accused to give beatings to Sultana and after 8/10 days she was again sent to their home for bringing more money. Quamar Sultana used to tell about the behaviour of accused persons to his father and his elder sister. On this occasion when another demand of money made his elder sister told the accused person that they were not in a position to give further money. Skilluddin again came and promised that nothing will happen and after apologizing they sent Sultana with him. On 27th April his sister was killed by the accused persons by burning. He identified the dead body and received the same. He received information of death of his sister from Saleem. He believe all the accused persons killed his sister. He also received wearing ornaments of his sister which were found on her dead body State Vs.Shakilluddin etc FIR no.213/03 Page No. 22 of 46 vide memo Ex.PW3/A. In cross examination he has stated that he had given Rs.30,000/ to accused Shakeel. Deceased Quamar Sultana had never told about the torturing and passing of comments by accused persons for insufficient dowry. He came to know this from his elder sister and father. He has made improvement regarding demand of Rs.50,000/ by accused Shakilluddin. He has not told to the police that his father had kept Rs.30,000/ to be given to Shakilludin when he will come to take his sister. He further made improvement in his statement regarding demand by the accused second time and giving beatings to her and that she came crying to his house. When they reached in the house of accused Shakilluddin,he was present there. Crowd gathered there.
41. PW4 Abida Begum is the sister of deceased Sultana and she has deposed that on 26.4.03 she alongwith her husband had come to Okhla and she received information on telephone that some untoward incident had taken place with her sister Quamar Sultana. She went to the house of her sister and saw her sister lying dead in burnt condition. At that time her sister Sultana, her husband Sakiluddin, Razia, Vakiluddin, Reshma, Ruksana and Rani were present. They informed about the occurrence to their parents. On seeing all aforesaid persons were laughing and they were not sharing the pain of his sister Quamar Sultana and they were not worried on the death of her sister. They State Vs.Shakilluddin etc FIR no.213/03 Page No. 23 of 46 informed about the occurrence to their parents. Accused persons also used to harass her sister in connection with demand of dowry and they also used to threat her to kill her. All the accused persons are responsible for the death of her sister Quamar Sultana. In cross examination he has stated that on 27.04.03 she alongwith her husband had gone to Okhla in the house of one of his relative namely Bismillaha who is her nanad. They received call at about 7 or 7.30 p.m regarding setting ablaze her sister since she was nearer to the place. She reached there within five minutes. There was no crowd at the house of Quamar Sultana when they reached there. Her parents reached after about one hour of their arrival. Her husband informed about this occurrence. Her statement was recorded at the residence as well as in the hospital.
42. PW7 Ajimuddin is the husband of PW4 and he has stated that on 27.4.03 he alongwith his wife had gone to Okhla because he received a telephone call from his in laws house regarding some mishappening with his sister in law(saali). They saw Sultana lying dead in burnt condition. He informed his inlaws. All the accused were present there. Accused persons were not having any remorse on their faces on account of death of Sultana. Accused persons used to harass Sultana for or in connection with demand of dowry. In cross examination he has stated that he had received telephone at about 7 State Vs.Shakilluddin etc FIR no.213/03 Page No. 24 of 46 p.m from her in laws house. When they had arrived at the house of Quamar Sultana except accused persons none else from the public persons was present. Reshma was sitting in the room of her mother. Reshma's room was in her in laws house.
43. Pw11 Rajesh Kumar is the then SDM who had recorded the statement of complainant PW1 Nababuddin, father of deceased on the basis of which the present case was registered. I have also perused the said statement Ex.PW1/A of complainant Nababuddin and it is necessary to reproduce the same.
Statement of Sh. Nawabuddin s/o Imamuddin r/o 1374 Bazar Chitli Quavar, Jama Masjid, Delhi 'Vyan kiya ki maine apni ladki Quamar Sultana ki shadi May 2001 me Mohd. Shakeel S/o Mohd. Vakil r/o G67 Muradi Road, Batla House, Okhla, New Delhi ke saath ki thi. Shadi ke baad Sultana jab hamare yahan aati thi toh vah apni saas, pati va nando ki shikayat karti thi ki un ka ravaiya sahi nahi hai. Usse naukarani ki tarah vartav karti thi. Etna kuch kaarne ke babzood bhi pichle saas unhone hamari ladki Sultana ko ghar se nikal diya. Uska sauhar usko aa ker le gaya ki aayanda aisi galti nahi hoti. Mere piche mere ladko ne 30,000/ rupaye bhi diye. Baki chijon ki bhi maang karta raha. Humne use sone ki janzir di. Bacha hone per kuch saman bhi diya. Isi mahine me 34 April ko vah hamare yahan rehne ko iye thi. Ho sakta hai ki kuchch paiso ki demand lene ke liye aye ho lekin hamari halat ko dekhkar usne kuchch nahin kaha. Karib 18 April ko uska Sauhar Mohd. Shakil use le gaya. 27.4.03 ko hame phone se itla mili karib shaam ko 7 baje ki hamary lakdi jal gai hai. Hamne wahan se sampark kiya magar chaar - panch phone State Vs.Shakilluddin etc FIR no.213/03 Page No. 25 of 46 mauzood hote huye hi koi number nahim mil pya. Humne apne rishtedar ko phone kiya jo Okhla gaye huye the kisi aur kaam se vahan per mere bade damad aur beti se sampark hua aur ve foren mauka per pahunche aur unhone telephone se itla di ki Quamar Sultana jala di gai aur uski maut ko gai. Mujhe ish ghatna per shak hai ki meri ladki ko saas, sauhar Mohd. Shakeel and Nanad Rani and Reshma and Rukhshana in sabne milkar meri beti ko maara hai aur phir jala diya hai. Mer ladki karib chaar mahine se garbhvati thi. Mere saath insaf kiya jaye. In sabhi logon ke khilaph sakht karyavahi ki jaye.' sd/ Nawabuddin
44. Taking into consideration the deposition made in the court and above statement of PW1 Nababuddin, it is revealed that PW1 has made allegations that accused persons used to treat his daughter as servant and used to say that local and cheap quality articles have been brought by her and after drinking accused Skilluddin and his father used to abuse Sultana. But this version has been improved by him. Further drinking is not permitted in Muslim Community as per Islam religion/seriyat. PW1 has further stated that as he got retirement, accused persons used to demand money. He has not specified how much was demanded and when such demand was made. He has further stated that on 15.8.02 his daughter was thrown out of the house and asked to bring money. No complaint has been lodged or exhibited on record regarding throwing Sultana out of house is available. He has further stated that his daughter was beaten by Razia, Ruksana, Reshma State Vs.Shakilluddin etc FIR no.213/03 Page No. 26 of 46 and Rani. He has made improvement in this respect and even he has not named Sakilludin that he also used to beat Sultana. Further PW1 has stated that accused Skilluddin took back his daughter with the assurance that such mistakes shall not be repeated. When PW1 was experiencing such a treatment in the hands of accused persons, he should have allowed his daughter to go only after the intervention of respectables of the family and friends. But no such evidence has been adduced. PW1 has further stated that a sum of Rs.30,000/ was given to Skilluddin when he came to take back his daughter. But he has not stated that it was given against the demand of dowry raised by the accused persons. Further in cross examination he has stated that he himself had not given Rs.30,000/ to accused Shakiluddin but this money was given to him(Shakilluddin) by his son Salauddin. From this version it seems that money was given by Salauddin to Shakiludddin. While PW2 Naseem Bano who is the mother of deceased has also stated that her son gave Rs.30,000/ to Skilluddin. But in cross examination she has stated that Rs.30,000/ was given by her through son Sakilluddin. PW3 Salauddin has stated that a sum of Rs.30,000/ were kept by his father with the direction that this amount should be given to Shakilluddin when he will come to take back his sister Sultana to her matrimonial home. From this version of PW3 it seems that the money was given by father PW1 from his retirement funds and since it was already kept in the name of Quamar Sultana, State Vs.Shakilluddin etc FIR no.213/03 Page No. 27 of 46 the demand for dowry cannot be presumed. Further PW3 has stated that demand for Rs.50,000/ was made by Shakiluddin and Sultana was ejected out of the house. PW2 Naseem Bano has stated that demand for Rs.50,000/ was made by Reshma and it was supported by Razia and other accused persons. PW1 who is the father and complainant has not stated that there has ever been demand of Rs. 50,000/ from any of the accused persons. So, all these witnesses have given different versions in respect of demand of Rs.50,000/ and thereafter paying of Rs.30,000/ to the accused persons. PW1 has further improved his statement that accused Reshma was residing at the parental house after the death of her mother in law. He has further made improvement in his statement that in April 2003 his daughter told to him that if something happens to her, her daughter be brought up by them. He has also made improvement that Sultana told him that accused were demand money. PW1 has further stated that he told that he will arrange the money and on 17/18.4.03, Sultana was taken away by Shakilludin. It is crystal clear from this version of PW1 that on this day when Sultana was taken away by accused Sakilluddin from her parental house, no demand was made at that time. PW1 has levelled allegation that whenever he used to visit his daughters place, she used to do all the household work. This cannot be treated as harassment. In cross examination he has admitted that he has not stated to the police that accused persons used to comment for having brought insufficient State Vs.Shakilluddin etc FIR no.213/03 Page No. 28 of 46 dowry and whatever she has brought was of inferior quality. He has also improved his statement that accused Vakilluddina and Sakiluddin used to drink alcohol and abuse his daughter. Sultana used to speak about the ill treatment to him and her elder sister. PW1 has clearly stated in cross examination that he does not remember if he had told the police that Quamar Sultana when came to reside with them she did not demand any thing from looking at their condition although she might have come to their house in order to demand something but she did not demand the money from them. Pw1 has further made improvement regarding residing of Reshma at her parental house. Pw2 Naseem Bano has also made improvement in her statement that accused used to give beating to her daughter and used to demand more dowry. She has not specified which articles were demanded by the accused persons. Further she has stated that Reshma used to abet Shakeel against Sultana. She has not stated as to what abatment she caused and as to how and by stating what she abated accused Shakeel. Regarding demand of Rs.50,000/ she gave different version from PW3, her son and even it has not been stated as to why and for what purpose Rs.50,000/ were demanded. In cross examination she has stated that Abida disclosed her about the facts of instigation by accused Reshma. PW3 Salauddin has also stated that accused persons used to harass his sister for demand of dowry and she used to tell about the same to his elder sister and father. In cross examination he State Vs.Shakilluddin etc FIR no.213/03 Page No. 29 of 46 has stated that deceased had never told about the taunting and passing of comments by the accused persons for insufficient dowry and he came to know from his father and elder sister. So, whatever allegation has been made by him are on hearsay. Pw1 has also stated that Quamar Sultana used to tell about the harassment to her elder sister and him. So, it seems that deceased also did not disclose about anything to PW2 Naseem Bano. I have considered the testimony of PW4 Abida who is the elder sister of deceased. Considering her deposition she has stated that accused persons used to harass her sister in connection with demand of dowry and they also used to threat her to kill her. Rest of her testimony is relating to reaching at the house of her sister with her husband PW7 Ajimuddin who has also stated that accused persons used to harass his sister in law/sali in connection with demand of dowry. PW4 has not made any allegation for demand of Rs.50,000/ or that Rs.30,000/ was paid to the accused persons. It has come in evidence that deceased used to tell about harassment to PW1 and Pw4 only. But PW4 has not made any allegation about demand of any particular thing or cash by the accused persons. All the witnesses PW1,2,3,4 and 7 who are the family members of deceased Quamar Sultana have made glaring improvements in their testimonies as well as they have made contradictory statements which create doubt in the case of the prosecution. In view of the deposition of star witnesses of the prosecution, I have also considered some case law for just decision State Vs.Shakilluddin etc FIR no.213/03 Page No. 30 of 46 of the case. In case law Sunil Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note: 'Section 304B It is pleaded that last letter of deceased did not mention any allegation of dowry demand - The letter of deceased does not speak of any demand of dowry and there is totally absence of demand of dowry and so sec.498A of IPC is not at all attracted - Thus the necessary ingredients of the offence of sec.304B of IPC is absence and so the conviction and sentence of the appellant cannot sustain and so the appellant is acquitted of the conviction u/s 304B IPC. It is further stated that : Both the courts below concurrently committed the appellant - But out of so many witnesses of the neighbour none could say that there was a dowry death and the deceased was soon before her death was subjected to demand of dowry which was necessary ingredient of the offence u/s 498A of IPC committed by the husband or by any of the family members or near relatives'.
In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC 627 it is stated in headnote that :
'Evidence Act. 1872 - Sec.113B Presumption Dowry death - Against accused persons to be drawn provided the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within 7 years of marriage'.
'Dowry death - Onus of proof Preliminary facts - Proof of - Onus lies upon the prosecution - High Court erroneously shifted the burden upon the accused - About the date of marriage - Prosecution is required to prove that death occurred within 7 days of marriage - PW4 father of the deceased was not creditworthy - So were other related PW5 - Prosecution failed to discharge its initial onus of proof - PW5/ the mother stated that the deceased was depressed - This indicated that woman committed suicide in a state of depression - Hence conviction is set aside and appeal is allowed'.
In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 State Vs.Shakilluddin etc FIR no.213/03 Page No. 31 of 46 it is stated in head note that :
'Sec. 304B - Evidence Act, 1872 - Sec. 113B - Dowry Death - No incidence of demand of dowry or cruelty or harassment 'soon before death' - Letter relied on shows demand of articles by her parents by her own and not on the behalf of appellant - Improvements in the statements of prosecution witnesses - Prosecution squarely failed to establish accusations against appellant - Appeal allowed - Conviction set aside'.
In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is stated in head note that :
'Sec. 304B - Dowry death - soon before the death, deceased was subjected to cruelty or harassment by her husband for or in connection with demand of dowry - Once this is established, a legal fiction is created under section 304B IPC whereby such death would be called dowry death - On facts held, ingredients of Sec.304B IPC r/ sec. 113 B Evidnce Act not satisfied'.
In case law Appasaheb & Anr Vs. State of Maharashtra, 2008(1) Crimes 110(SC) it is stated in head note that :
'Sec.304B - Dowry death appellant convict under - Deceased died as a result of insecticide poisoning - Evidence of mother and father of deceased that when deceased visited her parents she used to narrate all treatment and beating for bringing money from her parents - Conviction by Trial court and upheld in appeal by High Court - Appeal - Both witnesses deposed that deceased was receiving ill treatment as a result of "domestic cause" as regards domestic cause they explained that there was a demand for money to meet expenses for mature and other domestic expenses - Evidence did not show that any demand for dowry was made - Essential ingredient of dowry death i.e. demand for dowry was not established - Conviction could not be sustained.
One Important point has been stated that :
'A demand for money on account of some financial stringency State Vs.Shakilluddin etc FIR no.213/03 Page No. 32 of 46 or for meeting some urgent domestic expenses cannot be termed as demand for dowry and conviction for dowry death on such demand could not be sustained'.
In case law Bhaskar Ramappa Madar & ors. Vs. State of Karnataka, 2009 (3) JCC 1622 it is stated in head note that :
'Sec.498A Demand of dowry - The facts that husband of deceased owned a truck which need heavy repairs - The amount given for the purpose does not amount to demand of dowry'.
In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is stated in head note that: 'One of the essential ingredients amongst others, is that the woman must have been 'soon before her death' subjected to cruelty or harassment for, or in connection with the demand for dowry - Nothing on record to show that any demand of dowry was made soon before her death The cause of action appears to be an ego problem on the part of the appellant, namely the deceased had not been coming to her matrimonial home - Conviction u/s 304B not proved'.
'Cruelty or harassment - When the name of the appellant/husband and his parents were material in the FIR - It is clear that all of them had been ill treating deceased for non bringing of sufficient dowry and not bearing a child Not correct to contend that FIR does not contain any statement of cruelty or harassment of the deceased especially when death occurred within 7 years of marriage and dead body was found in matrimonial home'.
It is stated in case Arvind Singh Vs. State of Bihar, 2001(1) JCC (SC 341 that: 'Sec.302, 304B and 498A - deceased wife died of burn injuries
- No independent and reliable witness - prosecution case based on evidence of interest witnesses and members of the family of State Vs.Shakilluddin etc FIR no.213/03 Page No. 33 of 46 deceased and also on the basis of dying declaration made to the mother of deceased. Deceased remained at the house and could not be admitted to hospital - parents of deceased informed - Oral dying declaration made at home and not in presence of any doctor or any other independent witness - Courts below acquitting other family members of the appellant/husband - Dying declaration not tained on basis of such dying declaration
- No clearcut evidence of dowry demand on record no doctor's evidence - Benefit of doubt extended to appellant'.
It is stated in case Sabar Bhatti & Ors. Vs. State, 2009(v) AD (Cr) (DHC) 209 that : 'Improvements of material nature in depositions of parents of M - No Particulars of dates when dowry demands made and amounts paid, given - Conviction of Z, Mother in law, and S u/s 498A, set aside'.
In case law Jai Ram Vs. State of Rajasthan, 1995(1) Crimes 611 it is stated in head note:
'Sec.304B & 498A - Deceased, Wife of appellant, was married to appellant two and half year prior to incident - cause of death as per post mortem was asphyxia due to organo phosphorus poisoning - Evidence of father of deceased that deceased used to complain that her in laws maltreated and harassed her and taunted for insufficient dowry - Significant omission in FIR and statement before police regarding demand of motor cycle by appellant - Evidence regarding cruelty and maltreatment, quite vague, inconsistent and untrustworthy - Independent two witnesses, neighbours not produced - Coaccused acquitted by trial court on same evidence - Conviction of appellant is unsustainable'.
In case Law Kalyan & Ors. Vs. State of UP, 2001(2) JCC (SC) 203 it is stated in head note that :
'Appreciation of evidence Incident stated in FIR, being the first version of the occurrence has to be given due weightage - The case of the prosecution, as sought to be proved at the trial, State Vs.Shakilluddin etc FIR no.213/03 Page No. 34 of 46 appears to be different than the one as narrated in the FIR - view taken by trial court in acquitting the appellants herein is justified'.
'Prosecution setting out a new case in evidence, which is in contradiction to the version stated in FIR - Witnesses are partisan witnesses and also inimical towards one accused - Conflict in oral evidence as against medical evidence Was High Court right in disturbing the order of acquittal - Held (NO)'.
In case law Babita Vs. State, 2009(2) JCC 1247 it is stated in head note that :
'Sec.304B and 498A no specific demand have been made except the demand of Rs.1,50,000/ which according to the father of deceased was made at the time of marriage - Cannot make out a case of harassment soon before the death - No dying declaration of deceased was recorded - Not a single instance of harassment by petitioner who is sister in law of deceased soon before her death - No basis to frame charge against petition'.
In case law titled Basavaraja and Ors. Vs. State of Karnataka, (2008) 9 Supreme Court Cases 329 it is stated in headnote that :
Criminal Trial - Charge - Appellant charged for causing death by setting deceased on fire after pouring kerosene oil on her - Such charge framed despite medical evidence that death was due to smothering and burns on deceased's persons were post mortem - while examining accused persons u/s 313 Cr.PC, two questions put to them which supported their defence rather requiring them to explain circumstances appearing in vidence against them - such casual approach in framing charge and questioning the accused u/s 313, deprecated - conviction set aside.
State Vs.Shakilluddin etc FIR no.213/03 Page No. 35 of 46 In case Law Durga Prasad & Anr Vs. State of M.P, 2010 (3) JCC 1852 it is stated in head note that: 'Sec.304B, 498A - Evidence Act, 1872 - Sec. 113B Dowry Death - Except for certain bold statements, there is no evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death - Appellant entitled to benefit of doubt'.
'Sec. 304B - Dowry death In order to hold an accused guilty of an offence of dowry death - it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of marriage - It has also to be shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry'.
'Sec. 304B - In order to bring home a conviction u/s 304B, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim - But that such treatment was in connection with the demand for dowry'.
45. Ld. APP for the state has relied upon case law titled Teyab Khan & Ors. Vs. State of Bihar, 2006 Crl. L.J. 544 (SC) it is stated in head note that :
'mere absence of viscera report showing as to whether death occurred on account of consumption of poison - does not make any difference to fate the case - Fact remains that it is a case of unnatural death - evidence of witnesses showing that deceased was being constantly harassed for demands on account of dowry - Conviction of appellant accused and co accused u/s 304B proper'.
State Vs.Shakilluddin etc FIR no.213/03 Page No. 36 of 46 In case law Kamesh Panjiyar Vs. State of Bihar, 2005 CRI. L.J. 1418 in which it is stated that : 'No evidence showing that death of deceased was due to normal circumstances - Nor any material shown to explain injuries on neck of deceased in order to prove that death was normal - Plea of accused that possible cause of death was not ascertainable as per opinion of doctor - Not tenable - Evidence of witnesses established demand of dowry and ill treatment of deceased shortly before date of occurrence - Offence of dowry death made out - conviction of accused u/s 304B, proper'.
In case law titled Satbir Singh & Ors. Vs. State of Haryana 2005 CRI L.J. 4137 it is stated that :
'Evidence showing deceased was harassed for not bringing more dowry - Ingredient of sec. 304B established by prosecution - Onus lies on accused to rebut presumption u/s 113B of Evidence Act - Defence plea that deceased died of heart attack - not tenable in absence of any evidence showing that deceased was suffering from heart ailment - Conviction of accused persons, proper'.
In case titled Ram Narain & Ors. Vs. State of Rajasthan, 2010 (CRI L.J (NOC) 517 (RAJ) it is stated that : 'Dowry death and cruelty - Proof - Allegations that accused husband and in laws harassed deceased for demand of dowry and she was done to death as the lust was not satisfied - deceased died in suspicious condition at her in laws house - No cogent explanation by accused husband as to how the crime was committed in view of sec. 106 of Evidence Act - Accused husband held guilty for offence u/s 304 B and 498A and sec.4 of Dowry Prohibition Act - Other accused persons are given benefit of doubt for charge of Sec. 304B'.
State Vs.Shakilluddin etc FIR no.213/03 Page No. 37 of 46
46. Considering the above discussion, to prove the case u/s 304B IPC three ingredients have to be proved (i) unnatural death (ii) within 7 years of marriage and (iii) soon before death she was subjected to cruelty or harassment by her husband or relative of her husband (iv) such cruelty must be in connection with demand of dowry (v) such cruelty is shown to have been meted to the woman soon before her death. In this case the death occurred due to burn injuries. The post mortem Report is Ex.PW5/A showing 100% super facial deep burn with redding around. The death of deceased Quamar Sultana took place within 7 years of marriage and it was unnatural death. So, two ingredients has been proved by the prosecution. Now it is necessary to find out as to whether the deceased was being harassed soon before her death by subjecting her to cruelty and demand of dowry. In this case PW4 & 7 are silent on this aspect. PW1 Nababuddin and PW2 Naseem Bano have stated that on 15.8.02 Sultana was beaten up and sent to their home and thereafter she was taken back by Shakiluddin only. PW1 has further stated that in April 2003 Quamar Sultana stayed in their house for a few days and she told him that if something happens to her then her daughter should be brought up by them and should not be left with the accused persons. This version of PW1 has come under improvement. Pw1 has further stated that Sultana also told her that accused persons were demanding money from her and upon State Vs.Shakilluddin etc FIR no.213/03 Page No. 38 of 46 this he told Sultana that he was not having any money at that time but he will make some arrangements. Thereafter on 17/18.4.03 Quamar Sultana was taken away by Shakiluddin to her matrimonial home. PW1 has not specified as to how much money was demanded at that time and when it was demanded. Considering the statement Ex.PW1/A he has stated that his daughter had come to his house on 34 April (34 April ko vah hamare yahan rehne ko aye thi). Perhaps she had come to demand some money (ho sakta hai ki kuch paiso ki demand lene ke liye aye ho). But she did not state anything looking into their condition( lekin hamari halat ko dekhkar usne kuch nahi kaha). This is the self presumption of PW1 but from the evidence it seems that it is not true. On 18th April she was taken away by accused Mohd. Shakeel. PW1 is only suspecting that deceased Quamar Sultana had come to demand some money but he is not sure and certain and no such demand has been made by deceased at that time while she remained at the house of PW1 from 34th April till 18th April. She had remained at the house of her parents for about 14 days before she left her parents house to her in laws house. But she did not disclose any demand of accused at that time. So, there is no evidence for harassment on account of demand of dowry soon before death in this case. So, in my view there is no evidence available on file in this case that deceased Quamar Sultana was subjected to cruelty or harassment on account of demand of dowry soon before her death. Hence, ingredients of Sec. State Vs.Shakilluddin etc FIR no.213/03 Page No. 39 of 46 304B IPC are not complete in this case. So, with due respect the case laws relied upon by the Ld.APP for the State are not applicable to the present facts and circumstances of the case.
47. I have also perused the testimonies of other official witnesses. PW14 ASI Prem Chand is the First IO and he reached at the spot on receipt of DD no.23 alongwith PW8 Ct. As Mohd. and PW15 Ct. Jawahar. They have stated that they found a dead body in burnt condition lying on bed covered with white sheet and a blanket and there was a 5 liter plastic cane containing about half liter of kerosene oil and one half burnt match box and few burnt match sticks on the floor. The plastic cane was found in closed condition. Crime team came and took photographs. All the three PWS have stated that the kerosene cane, burnt match stick and match box were seized vide memo Ex.PW8/A. The body was got preserved in AIIMS. SDM came on 28.4.03 in the AIIMS Mortuary at about 10 a.m and recorded the statements of father and mother of deceased. He conducted the inquest proceedings. After identification the dead body was handed over to her brother Salauddin and Nayamuddin. He identified the pair of paijab of silver Ex.PW14/A1 and gold ear rings Ex.A2. PW6 ASI Jai Karan is the FIR recorder. PW9 SI Begaram has stated that Ct. Balwant has taken the photographs. PW18 Ct. Balwant has stated that he took the photographs Ex.PW18/1 colly. PW19 Ct.Raj Singh has State Vs.Shakilluddin etc FIR no.213/03 Page No. 40 of 46 stated about arrest of accused Shakilluddin vide memo Ex.PW19/A and conducting of his personal search vide memo Ex.PW19/B. The disclosure statement of accused Sakilluddin is Ex.PW19/C. PW21 HC Tota Ram produced the register regarding depositing of case property in the malkhana. Pw22 SI Rajesh prepared the site plan Ex.PW22/A and he also deposed about arrest and personal search of accused persons. PW24 Sh SN Rasool, Jr. Scientific Officer has prepared the report after examining the exhibits. It is well settled law that result of investigation can never be a legal evidence. I have also considered the defence evidence.
48. DW1 Rahisuddin has stated that his son received telephonic message that his niece has been burnt with stove and he gave this message to him. He went to Okhla. He directed Reshma not to go to Okhla because she was under treatment of Dr. Bansal. His wife has expired 7 years ago and Reshma used to look after his entire family and house. DW2 Mohd. Salim has also stated that he was informed that his bua has been burnt with stove and he informed the mother of deceased. He also reached at the house of deceased and when he entered, he saw stove lying over there and house hold articles were also scattered there. DW3 Raju is the neighbourer and he has stated that he heard noise from the house of Skilluddin as Bachao, bacho mere ghar mei bahu jal rahi hai. He immediately rushed towards State Vs.Shakilluddin etc FIR no.213/03 Page No. 41 of 46 the house and sprinkled the water on the burning lady and she was wrapped in a cloth after taking the same from the house of Skilluddin. She was taken to hospital in TSR. At that time mother of Shakilluddin name Razia alongwith one small kid was present in the house. From the testimony of defence witness it has come out that Quamar Sultana burnt with stove. It has also come in the evidence of prosecution witnesses i.e. police officials that at the time of reaching at the spot, the lid of kerosene oil cane was found closed. If she had been burnt with the kerosene oil, the lid should have been open. However, as per FSL result Ex.PW24/A kerosene oil was detected in Ex.3 i.e. one sealed plastic cane containing approx 300 ml of blue colour liquid. However kerosene oil or its residue could not detected in Ex.1&2 i.e. partially burnt cloth material and a bunch of hair. This further clears that no kerosene oil was sprinkled on the body of Quamar Sultana and it is possible that she might have caught fire from the stove. In case Law 2002 (1) JCC 385 State of Haryana Vs. Ram Singh with Rai Sahab & Anr Vs. State of Haryana it is stated in head note that : 'Defence Witnesses - Appreciation of evidence of - Held: that the evidence tendered by defence witnesses cannot always be termed to be a tainted one, and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution - Held: further that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution
- Since the High Court rejected the evidence of defence witnesses quite casually - Practice deprecated - Appellant acquitted'. State Vs.Shakilluddin etc FIR no.213/03 Page No. 42 of 46
49. Alternative charge has also been framed in this case u/s 302 IPC. No one had seen accused persons setting deceased Quamar Sultana on fire. So, this case comes under circumstantial evidence. Further PW1,2,3,4 & 7 have not identified the cane recovered from the spot and they did not depose anything in this respect. Pw1 Nababuddin has alleged in his statement Ex.PW1/A that he suspects that his daughter has been killed by the accused persons and then burnt. So I have also the post mortem report Ex.PW5/A. No injury has been mentioned by the doctor except that body showing 100% superficial to deep burn with reddening around. Scalp hair are partially sniged. There is peeling of skin of hands and feet. Post mortem lividity could not ascertained. Eyes and mouths closed. So, version of PW1 seems to be false that his daughter was killed and then burnt. Further no weapon of offence has been recovered or no recovery has been effected on the basis of disclosure statement Ex.PW19/C of accused Shakilluddin. So, his disclosure statement is not admissible in evidence. No subsequent opinion has been received by the IO from the doctor who conducted the post mortem. FSL result also does not support the case on circumstantial evidence since no kerosene oil was detected on partially burnt clothes and bunch of hair of deceased. Considering the motive part, there are glaring contradictions regarding demand of dowry. Further as per post mortem report it has been brought on record that uterus (about 34 months pregnancy weight 400 State Vs.Shakilluddin etc FIR no.213/03 Page No. 43 of 46 gm), a male foetus is present in site. It is crystal clear that the deceased was pregnant for about 34 months. The inlaws were very well aware about her pregnancy. No one will take such a drastic step to burn the mother if he/she know that there is child surviving in her womb. So, I am of the view that motive also could not be proved by the prosecution. The chain of circumstances is also incomplete in this case.
50. In view of the above overall analysis of the testimonies of the witnesses and in brief whatever allegations have been levelled by PW1,2 & 3 regarding demand of dowry does not inspire confidence. The family members of deceased have made glaring improvements in their testimonies. The important ingredient of soon before is missing. The circumstances also does not connect the accused persons with the present case incident. So, in this case ingredients of section 304B IPC are absent and there is no allegation for soon before death of harassing for demand of dowry from deceased Quamar Sultana because whatever allegations have been made in the statements recorded before the court and recorded by the SDM does not inspire confidence. So, I am of the opinion that Quamar Sultana was not maltreated soon before her death or even at any time after marriage by the accused persons. The circumstances of the case also do not connect the accused persons with this case offence.
State Vs.Shakilluddin etc FIR no.213/03 Page No. 44 of 46
51. In view of my above discussions and considering the case laws discussed above, this case does not fall under the category of section 304B IPC and no presumption can be taken against the accused persons u/s 113 B of Indian Evidence Act. The prosecution has failed to bring home the guilt of the accused u/s 498A/304B/34 IPC as well as u/s 302/34 IPC.
52. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
53. In over all analysis of the testimonies of the witnesses, this case does not fall under the category of 304B IPC and I also did not find any evidence against the accused persons u/s 498A IPC and 302 IPC keeping in view the facts and circumstances of the case. So, I am of the considered view that the prosecution has failed to prove its case State Vs.Shakilluddin etc FIR no.213/03 Page No. 45 of 46 against the accused persons. In such circumstances, the accused persons are entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused persons and I therefore, hereby acquit accused Shakilluddin, Razia Begum, Rukhsana, Rani and Reshma from the charges framed against them u/s 304B/498A/302/34 IPC. All the accused persons are on bail. Their bail bond are cancelled and sureties are discharged. File be consigned to record room. Announced in the open Court on 08.04.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Shakilluddin etc FIR no.213/03 Page No. 46 of 46