Delhi District Court
State vs Sikander Mirza on 31 January, 2026
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01), CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000613-2011
SC No. 28190/2016
FIR No. 143/2010
U/Sec. 498A/406/307/328/34 IPC
P.S. Lahori Gate
STATE VERSUS SIKANDER MIRZA & ORS.
(i) SC No. of the case : 28190/2016
(ii) Date of commission of offence : 08.10.2010
(iii) Name, parentage and address : 1. Sikander Mirza
S/o Sh. Iqbal Mirza
R/o House No. 600, Gali
Fakhrulla Beg Frash
Khana, Delhi.
2. Farzana Mirza
W/o Iqbal Mirza
R/o House No. 600, Gali
Fakhrulla Beg Frash
Khana, Delhi.
3. Khurshida Khan
W/o Sh. Shahbaj Khan
R/o G-415/B Jait Pur Ext.
Second Saurabh Vihar,
Badarpur, Delhi.
4. Sagufta Hussain
W/o Sh. Arshad Hussain
R/o House No. 11/2193
IIIrd Floor, Gali Sankar
Sita Ram Bazar, Hauz
Quazi, Delhi-06.
SC No.28190/2016
FIR No.143/2010
P.S. Lahori Gate
State vs. Sikander Mirza & Ors. Page 1 of 39
5. Seema Mirza
D/o Sh. Iqbal Mirza
R/o House No. 600, Gali
Fakhrulla Beg Frash
Khana, Delhi.
(iv) Offence complained of : Section 498A/406/
307/328/34 IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL
(vii) Date of such order : 31.01.2026
Date of Institution : 30.03.2012
Date of Judgment reserved on : 23.01.2026
Date of Judgment : 31.01.2026
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of PW-1 Ms. Sana vide complaint Ex. PW-1/A. The complainant states that the marriage of PW-1 had occurred on 24.10.2008 with accused no. 1 Sikander Mirza. She was staying with her in-laws. After 7 days of marriage accused no. 1 had told PW-1 that he has lot of debt to repay and the creditors are putting lot of pressure on him. He asked PW-1 to bring money her home. Her parents to discharge the debt. On this the mother of PW-1 namely Ms. Razia Begum/PW-2 had given Rs. 1 lakh to PW-1 SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 2 of 39 which PW-1 had handed over to accused no. 1 to discharge his debt.
After two days, the accused persons had started harassing PW-1 and started demanding more money. Accused no.1 and his mother accused no. 2 Ms. Farzana Mirza had asked the flat at Rohini available with the mother of PW-1 i.e. PW-2 Ms. Razia Begum. PW-1 had refused on which accused persons had started beating PW-1 time and again. They had tried to kill her several times. The sister-in-law had used to communicate in abusive language. On 08.10.2010 the accused person had beaten PW-1 for the reason that PW-1 had to go in a feast celebrated at the house of her mother PW-2 which was refused by the accused person. PW-1 was beaten by accused person. After some time the sister- in-law accused no. 5 Ms. Seema Mirza had bought food for PW-1 which was initially refused by PW-1. However, after some time the accused person came together with the same food and on their insistence she had eaten the said food. The vegetable potato was bitter on which the accused person had replied that due to fever PW-1 was feeling bitterness in vegetable potato. She was fed food by accused person with their hands. Around 09-10 PM in the morning her head was paining and her body was paining. She had vomited in which blood came out. She had heard her mother-in-law/accused no.2 and accused no. 3 speaking that now the fight will be over forever. Thereafter, her husband took her on motorcycle at AIMS Hospital. After treatment PW-1 had went back to the house of her parents and not at the house of accused person which is her matrimonial home.
2. FIR Ex. PW-3/A dated 13.08.2010 was registered in the matter at PS Lahori Gate and information at PS was received at 03:40 PM on SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 3 of 39 13.10.2010 vide DD no. 17A. The certificate under Section 65B on the FIR is Ex. PW-3/C. Vide Seizure memo Ex. PW-1/B dated 25.11.2010 and another seizure memo is Ex. PW-15/X dated 11.02.2011. The alleged dowry articles were seized from the accused person. The photographs of the case property are also filed on the record vide which articles were returned to PW-1 who had issued a hand written declaration Mark B on a paper dated 10.02.2010 that she had received her jewelry from the accused person and her family members will not claim any jewelry from the accused person. Mark-B is attested by three witness.
3. After investigation charge-sheet was filed and all the accused persons were summoned to face trial. Charge was given to all the accused no. 1 to 5 on 11.01.2013 u/s 498A/34 IPC and also under Section 328/307/34 IPC on 11.01.2013 to which all the accused had pleaded not guilty and claimed trial. The accused no. 1 Sikander Mirza and accused no. Farzana Mirza were further charged u/s 406/34 IPC to which they had pleaded not guilty and claim trial.
4. The prosecution has examined PW-1 to PW-17 as evidence against all the accused. Thereafter, statement of the accused no. 1 Sikander Mirza, accused no. 2 Farzana Mirza, accused no. 3 Khurshida Khan u/s 313 Cr.P.C was recorded on 11.09.2024. The statement of accused no. 4 Shagufta Hussain and accused no. 5 Ms. Seema Mirza was recorded on 09.10.2014. All the accused had preferred to lead evidence in defence. Two witness who are DW-1 Sh. Mohd. Sultan and DW-2 Sh. Gulzar Ahmad were examined as witness in defence by the accused person. Vide separate statement of accused no. 1 dated 07.04.2025 the evidence SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 4 of 39 in defence of accused person was closed. However, on the same date vide the order of the present court the DE of all the accused was closed.
5. Final arguments are heard on behalf of both the parties and record perused.
6. To prove ingredients of Section 498A IPC, the prosecution has to prove necessary ingredients laid down as under:
In 2024 SCC OnLine Bom 1205 from Hon'ble High Court of Bombay in case titled Yadavrao Versus State of Maharashtra, Through the Police Station, Hadgaon in Criminal Appeal No. 599 of 2002 Decided on April 30, 2024, [Reserved on : 22nd April, 2024] has held as under:
STATUS OF THE PROSECUTION WITNESSES IN TRIAL COURT LEGAL POSITION
18. Before adverting to the evidence and testing it, it would be apt to give a brief account of the settled law, judicial precedents as well as essential requirements for attracting offence under Section 498A of IPC.
Law is fairly settled that, for attracting the charge under section 498A of IPC, prosecution is duty bound to prove following essential ingredients:--
"(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in--
(i) any lawful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical;
(ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the lawful demand;
(iii) the woman was subjected to such cruelty by her husband or any relation of her husband."
JUDICIAL PRECEDENT As to what actually constitutes cruelty has been lucidly and succinctly dealt in the landmark case of Giridhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177, where the Court dwelling upon the scope and purport of SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 5 of 39 Section 498-A IPC has held as under:
"The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz.,
(i) to drive the woman to commit suicide or
(ii) to cause grave injury
(iii) or danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed in equally heinous to match the physical injury :
whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of 'cruelty' in terms of Section 498-A."
[emphasis added] Similar views are echoed in Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108, wherein it is held as under:
"Clause (a) of the Explanation to the aforesaid provision defines "cruelty" to mean "any willful conduct which is of such a nature as is likely to drive the woman to commit suicide". Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty."
In State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582, the Hon'ble Apex Court has observed that, "Harassment simplicitor is not cruelty. Only when such harassment is committed for the purpose of coercing a woman or any other person to meet an unlawful demand or property etc. alone would amount to cruelty punishable under Section 498-A IPC".
In Bhaskar Lal Sharma v. Monica, (2009) 10 SCC 604, the Hon'ble Apex court reiterated the essential ingredients for the said offence and pleadings which are necessary in that regard. Very recently in the case of K. Subba Rao v. State of Telangana, (2018) 14 SCC 452, following observations are made:
"6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."SC No.28190/2016 FIR No.143/2010
P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 6 of 39
19. On critical analysis of evidence of PW1 Sambhaji - father; PW2 Parvatibai - Aunt; PW5 Kusum - mother; PW6 Sandeep - brother; PW8 Satwa - uncle; PW7 Gulabrao-neighbour. It is emerging that parents, brother i.e. immediate family of deceased are speaking about proper treatment for two months after marriage, but thereafter are demanded amount of Rs. 40,000/- for motorcycle. There are allegations of taunting and commenting on looks, inability to cook proper food and unable to conceive. But, PW1 Samhbaji, though speaking about it, PW5 Kusum mother deposed about her daughter merely commented for not preparing food and her parents being addressed as begar. Informant has not stated about such comments. PW5 Kusum does not speak about looks of deceased. PW5 Kusum mother is also silent about taunting for not bearing child. She speaks about suspicion of character by husband, but informant has not stated about it. Informant's evidence is silent about any episode of beating taking place on Shimga in their house itself as is stated by PW5 Kusum. Informant does not speak about episode of Jaw-lock suffered by his daughter on account of beating, which is deposed by PW5 Kusum. Brother PW6 Sandeep did not utter word about comments on looks, preparing food or not bearing child. He merely speaks of his sister telling him about ill treatment on account of demand of Rs. 40,000/-. Rest of the witnesses i.e. PW2 Parvatibai, aunt and PW8 Satwa, uncle are not deposing what PW1 Sambhaji informant and his wife PW5 Kusum have deposed about it.
20. Therefore, it is apparent that prosecution witnesses are not consistent. None of them is able to specify when exactly and of what nature ill treatment was meted out. Omnibus and general allegations are made about comments. Above discussed versions of informant and his wife apparently are not corroborating each other. Therefore, required ingredients for attracting section 498A of IPC are missing. It is to be taken note of that in laws are already acquitted on same set off evidence from offence under section 498A of IPC, but husband is alone held guilty, which is apparently improper.
7. The first ingredient under Section 498A IPC the prosecution has to prove is that the woman was married. PW-1 has deposed that she was married 24.10.2008 with accused no. 1 as per Muslim Custom and Rights and after the marriage she was residing with her husband. In cross-examination it is deposed that at the time of marriage she was 18 years old. PW-2 Ms. Razia Begum has deposed at page 2 of her examination in chief that accused no. 1 Sikander Mirza had divorced her daughter PW-1 Ms. Sana earlier as well as on 09.10.2010. In her cross-
SC No.28190/2016 FIR No.143/2010P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 7 of 39 examination dated 11.07.2017 at first page it is deposed that she is illiterate and she is a house wife. It is deposed that Nikkah of her daughter was solemnized on 24.10.2008. The suggestion is denied that Nikkah of her daughter was solemnized in the year 2005 and Ruksati (Vidai) had taken place in the year 2008. However, PW-6 Ms. Shahjahan has deposed at page 5 of her cross-examination as correct that the Ruksati Ceremony of PW-1 was solemnized after 3 years of her Nikkah. She had attended the Nikkah Ceremony of PW-1 Sana organized at Eidgah at Shehnai Banquet Hall. PW-6 is Mausi of PW-1. PW-6 is sister of PW-2. PW-2 is mother of PW-1. PW-7 at second page of his cross- examination has admitted as correct that there was some gap between Nikkah and Ruksati. Hence, prosecution has proved on record that the marriage of PW-1 had occurred not on 24.10.2008 but prior to that. The Nikkah and Ruksati had occurred on different dates. However, It is proved on record that PW-1 and accused no. 1 had married to each other and hence the prosecution has proved the first ingredient under Section 498A IPC.
8. The second ingredient of the offence is that whether PW-1 Ms. Sana was subjected to cruelty. It is deposed by PW-1 that after seven days of marriage accused no. 1 Sikander Mirza had told PW-1 that he was under loan/debt. He does not have money to repay the loan. The creditors are pressurizing him to pay the amount. Accused no. 1 asked PW-1 to bring money from her parents. On this PW-1 went to the house of her parents and told her mother about this demand. Her mother/PW-2 had given PW-1 Rs. 1 Lakh which PW-1 had handed over to accused. After that the accused has paid the money to the creditors. PW-2 Ms. SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 8 of 39 Razia Begum has deposed at second page of her examination in chief that after 6-7 days of marriage of PW-1 she returned back to the house of PW-2. PW-1 had told PW-2 that her in-laws had to repay some loan for which demand of Rs. 1 Lakh was raised from PW-1. After 3-4 days accused person again started harassing PW-1. At page 2 of cross- examination dated 11.07.2017 it is deposed by PW-2 that she gave Rs. 1 Lakh in cash to the accused. The said money was part of her earnings from Murga Machali Mandi. To the contrary PW-3A Mohd. Wali who is the re-numbered as PW-3A at the stage of recording the final judgment since PW-3 has already deposed as ASI Veena Naiyyar. PW-3A Mohd. Wali has deposed at page 2 of his cross-examination dated 02.04.2018 that he had arranged the amount of Rs. 1 Lakh from his relatives and children. He has again said that he had taken the money from his brother-in-law and children. It is further deposed that he had taken Rs. 60,000/-from his brothers-in-law and the remaining amount was given by his children Dilshad, Irshad and Naushad. It is deposed voluntarily that his sons had given the amount to PW-3A after earning the same. PW-3A had given this amount to his daughter/PW-1 and PW-1 had taken this amount to her matrimonial home. PW-3A Mohd. Wali does not remember the date, month and year when the accused persons had demanded money from PW-1. However it is deposed voluntarily that the money was demanded after one week of marriage. The above contradictory deposition of PW-3A and PW-2 create serious infirmity and doubt in the case of prosecution about demand of Rs. 1 lakh by the accused no. 1 from PW-1, PW-2, PW-3A or its payment if any made by PW-1, PW-2, PW-3A. Further to the Contrary, PW-4 Dilshad has not deposed in his examination in chief that he had given any money to his SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 9 of 39 father PW-3A Mohd. Wali for further payment to PW-1 as part of demand of Rs. 1 lakh allegedly made by accused no. 1. PW-4 at page 2 of his cross-examination dated 02.04.2018 had come up with a totally different story that he was not present at home when PW-1 Sana came to her parents house for telling demand of Rs. 1 Lakh by accused no. 1. PW-4 has deposed that some amount was taken by his mother PW-2 Ms. Razia Begum from his maternal uncle and rest of the amount was arranged by themselves. Rs. 60,000/- was provided by maternal uncle/Mamu and Rs. 40,000/- was arranged by themselves. However, it is deposed at the same page that accused person never demanded any money after he handed over of Rs. 1 Lakh. There is no such evidence produced on record of payment of Rs. 60,000/- by Mamu of PW-4 to PW-2 who is mother of PW-1 and PW-4. Hence, prosecution has failed to prove the demand of Rs. 1 Lakh by accused no. 1 Sikander Mirza and prosecution witness has also failed to prove that any payment of Rs. 1 Lakh was made by PW-1, PW-2 PW-3A and PW-4 to the accused no. 1 Sikander Mirza.
9. PW-1 has deposed that after the payment of Rs. 1 Lakh the accused person had started demanding money from her which is contrary to the deposition of PW-4 at page 2 of cross-examination dated 02.04.2018 that after the said demand of Rs. 1 lakh the accused person never demanded any money.
10. It is deposed by PW-1 that accused no. 1 Sikander Mirza had demanded a flat from PW-1 which was in the name of mother of PW-1/PW-2. The flat was situated at Rohini. PW-1 had refused to SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 10 of 39 comply with said demand on which accused no. 1 to 5 had beaten PW-1 on and off and on many occasion accused person tried to kill PW-1. Her sister-in-law always used to abuse her and used to daily harass her mentally and physically. The accused person had prevented her from meeting her parents. PW-2 at first page of her examination in chief had deposed that she has a flat in Rohini and accused person had started demanding the said flat from them. The accused person did not allow PW-1 Sana to attend the dinner organized by PW-2 Ms. Razia Begum at her house on 08.10.2010. Later on PW-2 came to know that some quarrel was going in the house of accused person on account of flat demanded by them and she came to know that during such quarrel some poison was administered to PW-1 on 09.10.2010. At page 3 of cross-examination dated 11.07.2017 it is deposed by PW-2 that the flat was at Rohini which was allotted to her husband about 25 years back. The flat was allotted and it was not purchased. To the Contrary, PW-3A Mohd. Wali at page 2 of his examination in chief 27.03.2018 has deposed that the accused person had demanded money and a flat. The flat was in Rohini Area in the name of his wife/PW-2. Hence contrary deposition are made by PW- 2 and PW-3A as both of them are alleging for each other regarding ownership of flat at Rohini. No such documents of flat are produced on record and therefore in absence of the same it cannot be said there exist any flat either in the name of PW-2 or PW-3A at Rohini which could be demanded as dowry by the accused person.
11. PW-4 Dilshad has deposed at second page of his cross- examination dated 02.04.2018 that the accused person had made a demand of flat. It is deposed that accused no. 1 Sikander Mirza was SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 11 of 39 demanding this flat. Again said that the other accused person might have also raised the same demand. In his examination in chief at page 2 dated 27.03.2018 it is deposed that the flat demanded was in Rohini Area in the name of his mother Ms. Razia Begum/PW-2. Hence, PW-4 has deposed contrary to PW-2 since PW-2 has deposed at page 3 of her cross- examination dated 11.07.2017 that the flat at Rohini was allotted to her husband/PW-3A about 25 years back. Further, to the contrary PW-2 at first page of her examination in chief has deposed that she has a flat in the area of Rohini. None of the prosecution witness has produced any document of ownership of flat and nor they have disclosed the address of the said flat. The prosecution witness has deposed contrary to each other which is inherently improbable and inconsistent and cannot be relied upon. This creates serious infirmity in the case of the prosecution. Hence it is held that prosecution witness has failed to prove that accused person had demanded any flat either from PW-1, PW-2, PW-3A or PW-4.
12. It is further deposed by PW-1 that after few days of payment of Rs. 1 Lakh the accused person had started harassing her and taunting her and on many occasion they had tried to kill her. Her sister-in-law always used to abuse her, mentally and physically and daily harass her. The accused person did not allow her to go to attend functions at the house of her parents. They also did not allow to attend a dinner party on 08.10.2010.
ADMINISTRATION OF STUPEFYING THINGS AND ATTEMPT TO KILL .
SC No.28190/2016 FIR No.143/2010P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 12 of 39
13. The offence against which the accused are also charged with is Section 328 IPC. The necessary ingredients of which are laid down in the citation titled as Sunil Mishi @ Silly vs. State of NCT of Delhi in CRL. A. 610/2013 & Harmeshlal s/o Ajit Singh vs. The State of Maharashtra 2016 ALL MR (Cri) 1980.
30. Section 328 I.P.C. reads thus :-
"Causing hurt by means of poison etc, with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
31. A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under Section 328 IPC:-
i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing and;
ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
32. Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in this section.
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38. Dealing with the effect of non cross-examination, Supreme Court in Laxmibai (dead) Thr. LRs and Anr. v. Bhagwantbuva (dead) Thr. LRs and Ors., AIR 2013 SC 1204 observed as under:-
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 13 of 39 part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross- examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh (dead) and Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.) AIR 2001 SC 3207; and Sunil Kumar and Anr. v. State of Rajasthan, AIR 2005 SC 1096)."
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43. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
xxxxxxx SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 14 of 39 Harmeshlal
9. Once the presence of the appellant in the company of the complainant from Chandrapur through drinking of tea by complainant given to him by the appellant till the time the complainant woke up from his slumber only to find himself as left stranded by the appellant is established, a situation of drawing presumption by application of Section 114 of the Indian Evidence Act arises. Section 114 lays down that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Therefore, the presumption would be that only the appellant was responsible for drowsiness of the complainant which led to his slipping into unconscious state and it was intentionally induced by the appellant by administering him some stupefying or unwholesome drug. This presumption could have been rebutted by the appellant by bringing on record some explanation or some circumstances showing a probability that there may have been some other person involved in the case, who may have been responsible for drowsiness and unconscious state of the complainant. But, there is neither any explanation nor any circumstance brought on record in order to probablise the defence of the appellant that he had got nothing to do with the complainant. In fact, the defence of the appellant is of total denial, but as stated earlier, he has failed to establish that he had no connection with the complainant whatsoever, rather his presence with the complainant all throughout from Chandrapur till the time the complainant regained his consciousness after being into state of unconsciousness has been established in a reasonable manner and the presumption arising therefrom has not been rebutted by him.
10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.
11. Learned Counsel for the appellant has strenuously argued that as there was no medical examination of the appellant, nothing can be said with any amount of certainty that the tea that was given to the complainant was mixed with any stupefying substance. It is true that no medical examination of the complainant SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 15 of 39 has been carried out. But, we have to take into account the attending circumstances which rendered redundant the conduct of the medical examination of the complainant. According to the version of the complainant, the substance or drug administered to him in the evening of 01/01/2012 had its effect on his mind and body as a result of which he went into state of unconsciousness and came out of it only in the morning of 02/01/2012. As seen from the evidence of P.W.-7 A.P.I. Prakash Masal, who recorded the first information report, the complainant was in a dilemma as to whether the FIR should be lodged at Chandrapur or at Nagpur and ultimately it was lodged in the night of 03/01/2012 at Nagpur. By this time it was too late in the day to refer the complainant for any medical examination. It was obvious that by that time whatever effect the substance or the drug had on the mind and body of the complainant may have been weaned away. In these circumstances the medical examination of the complainant had become redundant. Therefore, I find that circumstances of the case have offered reasonable justification for absence of medical examination of the complainant in this case, which must be appreciated. Then, what remains is the testimony of P.W.-1 Vasant and I have already found that the core part of his testimony is reliable. There is no reason for the complainant to falsely implicate the appellant in this case. No probable explanation has been given by the appellant for leaving the complainant in unconscious condition some time in the night of 01/01/2012 till early morning of 02/01/2012 and, therefore, by way of adverse inference, it has to be concluded that the appellant was responsible for drowsiness and unconsciousness state of the complainant, which was induced by some substance or drug administered through tea to the complainant by him. Xxxxxxx
13. As regards the second offence punishable under Section 394 I.P.C., I am of the view that recovery of some incriminating article at the instance of the appellant was necessary in order to reasonably connect the appellant with the offence of robbery. The reason being that even though the appellant had been found to have left the complainant in unconscious state at a spot at Ajani square, Nagpur, the possibility of some other persons arriving at the said spot later on and robbing the complainant of his car, valuables, etc. cannot be ruled out. It is likely the appellant may be or may not be interested in taking away the car and other articles. It is also likely that he may have had some other motive in his mind. But, only because the appellant had done something criminal against the complainant, further inference that the appellant must also have robbed the complainant of valuable articles or car or cash and important documents, cannot be reasonably made till the time something belonging to complainant is recovered at appellant's instance and if not, the possibility of involvement of some other person cannot be said to be reasonably ruled out in this case. This possibility having not been ruled out in the instant case, there being no recovery whatsoever at appellant's instance, even the car was found in abandoned state on some road in State of Punjab, I find that learned Assistant Sessions Judge has committed illegality in recording a finding that the prosecution has also brought home to the appellant his guilt for an offence SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 16 of 39 punishable under Section 394 I.P.C. The finding recorded by the Assistant Sessions Judge in this regard, therefore, needs to be quashed and set aside.
14. It is deposed by PW-1 Ms. Sana that accused person had prevented her from meeting of her parents. On 08.10.2010 a dinner party was organized at the house of her parents. She asked the accused person to allow her to attend that function which accused person did not allow and even gave beating to PW-1. After the quarrel she was sent to second floor. After some time accused no. 5 Ms. Seema bought food for her which PW-1 refused to eat in anger. After some time all the accused came with the food and asked PW-1 to end the quarrel and eat the food. PW-1 had eaten the food which was vegetable of potato. She felt the taste of vegetable as bitter and when she had told this fact to the accused person then they had replied that since PW-1 was suffering from fever therefore she was feeling bitterness in vegetable. The accused no. 2 had fed the food to PW-1 with her own hand. After some time PW-1 had felt suffocation. In the morning she had felt giddiness. She had vomited in which blood came thereafter accused no. 2 to 5 had said that now quarrel has finished forever. Accused no. 1 the husband had taken PW-1 at AIIMS Hospital on motorcycle and after getting her admitted in the hospital accused had went away.
15. PW-2 came to know from the neighbors that accused person had administered something to PW-1 on 09.10.2010. She went to the house of accused person where she came to know that PW-1 was admitted at AIIMS Hospital. Then she had went to AIIMS. After treatment of PW-1 she bought her at her house. PW-3A Mohd. Wali has deposed that on 09.10.2010 the neighbours told PW-2 about admitting of PW-1 at AIIMS SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 17 of 39 Hospital. They waited at the house of accused person for 2-3 hours for return of PW-1 from AIIMS Hospital. Then they had went to hospital on which doctors had told them that some poisonous substance was administered to PW-1. On similar lines PW-4 Dilshad has deposed. However, he has not deposed that they had went to house of the accused person but after telling by neighbors they had straightaway went to AIIMS Hospital. The doctor had told that PW-1 was administered some poisonous substance.
16. Now medical evidence bought by the prosecution is considered. The MLC of PW-1 is Ex. PW-17/A PW-17 Dr. Deepak Kumar has deposed that the PW-1 was admitted with the history of ingestion of rat killing poison (Gel) of unknown quantity which was reported by accused no.1 the husband at about 12:30 PM. The MLC report states that the patient was bought to hospital at about 03:53 PM. The patient was complaining of dizziness, vertigo and vomiting. The patient was conscious and oriented. Her gastric lavage was done with 3 bottles of normal saline with NG Tube. The gastric content was sent for examination. In cross-examination it is deposed as correct that the gastric lavage will surely show the rat killing poison in whatever quantity it is taken. It depends upon the time of ingestion. Ld. Counsel for the complainant through Ld. APP for the State has argued that the poison has not come in medical evidence for the reason that the accused person had delayed taking the PW-1 to hospital due to which more time has lapsed and therefore it did not come in test. However there is no evidence bought by the prosecution that by what time the traces of poison wipes out from the body. In absence of such evidence the above submission of SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 18 of 39 the prosecution is only a conjecture and has no basis in fact or law and therefore the same is rejected. It is deposed as correct by PW-17 that if rat killing poison was taken then the heart rate, pulse rate and BP fluctuates which also depends on quantity and time of presentation to the hospital. It is admitted as correct that as per MLC the heart rate, BP of PW-1 was normal but her respiratory rate was increased. It is also deposed by PW-17 that the patient was conscious and oriented on 09.10.2010 who could give the statement on the same day. Hence, the medical evidence on the record does not show that any poisonous substance was administered to PW-1 by the accused person.
17. Ld. Counsel for the complainant through Ld. APP for the State has referred to MLC Ex. PW-17/A where the PW-1 was bought in emergency at 03:53 PM. It is submitted that the PW-1 was bought by accused no. 1 the husband. The husband has reported the history of ingestion of rat killing poison (Gel) of unknown quantity which was allegedly consumed on the same day at 12:30 PM. Ld. Counsel for the complainant has submitted that the patient should have been taken to nearby hospital and not to a distant hospital which is AIIMS. The accused person has taken PW-1 at AIIMS Hospital because accused no. 4 Shagufta Hussain is employed at AIIMS Hospital. For the proof of her employment Ex. PW-2/D (at page no. 159 of document file) is referred which has come at page 4 of cross-examination of PW-2 dated 24.10.2016. However, Ex. PW-2/D does not show that accused no. 4 is employed at AIIMS Hospital. Even if accused no. 4 is employed at AIIMS Hospital it also does not help the argument raised by Ld. Counsel for the complainant through State that accused no. 4 had SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 19 of 39 managed/manipulated the medical evidence which is MLC/FSL Report. It is not the case of the State that the medical evidence is manipulated and in absence of pleading no amount of evidence or argument can be allowed in this respect. Hence, the above argument of Ld. Counsel for the complaint is rejected.
18. The FSL Report is not exhibited by the prosecution (which is at page no. 145 of document file). The Ex.-1 containing transparent liquid stated to be gastric lavage of PW-1 Ms. Sana approximately 10 ML. The result of examination is that after chemical and TLC examination the metallic poison, ethyl, methyl alcohol, cyanide phosphide alkaloid, barbiturates, tranquilizers and pesticides could not be detected in Ex.-1. Hence, nothing incriminating is found in the FSL Report in the gastric lavage which was seized vide Ex. PW-9/K. Hence, the prosecution has satisfactorily proved that PW-1 Ms. Sana on 08.10.2010 had received potato vegetable from accused person which was eaten by PW-1. However, prosecution has to failed to prove that this potato vegetable was stupefying, intoxicating and unwholesome drug or other thing. Hence, it is held that prosecution has failed to prove first ingredient of Section 328 IPC.
19. Both the ingredient of Section 328 IPC are proved to be conjunctively and they are dependent on each other. In absence of proof of first ingredient it cannot be said that accused has intention to cause hurt or to commit facilitation of commission of an offence or that there was knowledge on the part of accused person that the result of their act was likely to cause hurt to PW-1. Hence, it is held that prosecution has SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 20 of 39 failed to prove ingredient of Section 328/34 IPC against all the accused and they are acquitted under said offence.
20. All the accused are also charged under Section 307 IPC. The prosecution has to prove that the accused person have intention to commit murder and the act done by the accused person. The relevant citation in this regard is reproduced hereasunder:
Honble Supreme Court of India in case titled State Of Maharashtra vs Kashirao & Ors on 27 August, 2003 CASE NO.: Appeal (crl.) 124 of 2003 has held as under:
xxxxxxxxxxxxx So far as the assaults on PW-1 is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused-
respondent No.1 under Section 307 IPC.
The essential ingredients required to be proved in the case of an offence under Section 307 are:-
(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as;
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or
(b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has been adopted by the Court SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 21 of 39 to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from legal infirmities and application of legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence.xxxxxxxxxxxxxxxx
21. The basis of charging accused person under Section 307/34 IPC was for the reason of administering some stupefying substance. The prosecution has not taken the charge in the alternative under Section 328 IPC and Section 307 IPC. The nature of offence of Section 307 IPC is offence affecting human life. The nature of offence under Section 328 IPC is of causing hurt. Both the offence are affecting human body. There is no medical evidence on record that why such administration of potato vegetable to PW-1 her life was negatively affected. There is no medical opinion that with such eating of potato vegetable such bodily injury was going to be cost to PW-1 which is so imminently dangerous which can cause in all probability death or such bodily injury likely to cause death. When the offence when caused under Section 328 IPC and specifically dealt with thereunder then it is not open to the prosecution to charge the accused person under Section 307 IPC. Section 307 IPC is more serious offence than Section 328 IPC and when the Section 328 IPC covers all the facts of the prosecution in the present case then that particular Section has to be proceeded with and not Section 307 IPC until and unless it is shown by such medical evidence that death was likely to be caused by administration of such stupefying such substance. Or that such stupefying substance was administered only for the purpose to kill the PW-1. There is no evidence in above respect with the prosecution during SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 22 of 39 the trial or before framing of charge and therefore, no occasion arose to charge the accused person under Section 307 IPC.
22. The MLC of PW-1 Ms. Sana is Ex. PW-17/A (at page no. 103 of document file). PW-1 in her cross examination dated 12.07.2016 at page 6 has deposed that her husband as well as his sister had beaten her and cause injuries on her right hand whereas in her MLC Ex. PW-17/A no injury was found recorded on right hand of PW-1. PW-17 Dr. Deepak Kumar in his examination in chief has reported that on examination of patient she was found conscious and oriented. The husband had told that the PW-1 had ingested that poison. Nothing was told by PW-1 to the doctors. PW-17 at second page of his cross examination has deposed as correct that gastric lavage will surely show rat poison in whatever quantity it is taken. It is further deposed that it depends upon the time of ingestion. Hence, when rat poison is not seen in gastric lavage of PW-1 and when prosecution has failed to prove any medical text or evidence to show loss of such evidence between the time of administration of such potato vegetable and taking of sample from gastric lavage then in absence of which it cannot be said that rat poison was at all administered to PW-1 by the accused person.
23. Ld. Counsel for the complainant has submitted that since the accused no. 1 had told the doctor about rat poison and it is recorded in MLC Ex. PW-17/A then it means that accused knew that he has administered rat poison. At the time of admission of PW-1 she was found conscious and oriented then it is for PW-1 to state complete facts to the doctor. Secondly, what accused has told to the doctor has to be corroborated by SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 23 of 39 other available evidence on record and FSL medical evidence negates the administration of rat poison to PW-1. The statement of accused to the doctor has no value in the eyes of law when such fact could be further verified in medical evidence. In absence of such relevant medical evidence no adverse can be drawn against the accused with such statement in MLC of ingestion of rat poison. Further, the accused has not stated the said rat poison was taken in potato vegetable and from the said statement of the accused to doctor it appears that the accused was stating that PW-1 herself has consumed rat poison. This is not the case of the prosecution.
24. However, keeping in view the facts and law discussed above it is held that prosecution has failed to prove the necessary ingredient under Section 328/307/34 IPC.
25. PW-1 has deposed that after admitting her to hospital the accused person had went away. She was not fit for giving statement. From hospital she had went to house of her parents. She gave the statement to Police on 12.10.2010 vide Ex. PW-1/A at the house of her parents. It is deposed that prior to registration of FIR Ex. PW-1/A her statement was recorded by the Police at PS Lahori Gate which is Ex. PW-1/C (at page no. 133 of document file). The said statement mention that on 23.06.2009 accused no. 1 had dropped PW-1 at the house of her maternal uncle at 2232, Gali Dakotan, Turkman Gate. After two days when PW-1 telephone to accused no. 1 then accused no.1 demanded car, flat and money. The MLC Ex. PW-17/A is perused where PW-1 was recorded unfit for statement on 10.10.2010 and recorded fit for statement on SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 24 of 39 11.10.2010 at 06:00 PM. However, the doctor has recorded that the patient was conscious and oriented and no reason is recorded that why the patient was not fit for statement on 09.10.2010. PW-17 at page 3 of cross examination date 09.08.2023 has deposed that the heart rate and BP of PW-1 was normal and respiratory rate was increased. It is further deposed that the patient was conscious and oriented and could give statement on the same day.
26. Hence, in view of deposition of PW-17 the Ex. PW-1/A the compliant was recorded by the Police with an unexplained delay as it was recorded on 12.10.2010 whereas the incident had occurred on 08.10.2010 and the PW-1 was taken to hospital on 09.10.2010. There is delay of about 4 days in giving the statement by PW-1. Hence, the statement was given by PW-1 after conversing with her family members at parents house. The Asal Tehrir Ex. PW-16/B records that on 11.10.2010 doctor had allowed PW-1 to give her statement however PW- 1 had refused to give her statement. Hence PW-1 had avoided giving statement immediately after having been declared fit by the doctor and there was no other reason for delaying recording of statement other than consulting other person which is therefore not fair play in the facts and circumstances of this case. Ex. PW-13/A is PCR form-1 (at page no. 101 of document file). The information was received at 04:00 PM on 09.10.2010. This information was given by father of PW-1 who has deposed as PW-3A by stating that his daughter was given something in food by her in-laws and they have taken PW-1 to hospital. Whereas PW- 3A Mohd. Wali at second page of his cross examination has deposed that on 09.10.2010 some neighbors told his wife that PW-1 was admitted at SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 25 of 39 AIIMS Hospital after which he had went with his wife to the house of accused person where he waited for 2-3 hours and then he informed the Police. Whereas PCR Form Ex. PW-13/A mention that PW-3A was suspecting that something was given to PW-1 by the accused person in the food. This shows that at the house of accused person PW-3A knew about giving of some food by the accused person and the knowledge was not acquired from the neighbors. As per the Ld. Counsel for the accused person this knowledge with PW-3A was obtained only from his daughter PW-1 Sana which means that PW-1 was fit to give statement at the time of her admission in hospital.
27. In the complaint Ex.PW1/A dated 12.10.2010 it is stated that PW-1 was beaten in the night of 08.10.2010 by her husband accused no.1, mother in law and three sister-in-law who are the remaining accused. She was beaten for stopping her to go in the invitation of a feast/food at the house of her mother/PW-2.Hence the said beating was not in reference to demand of dowry and therefore it does not attract Section 498A IPC.
28. PW-1 in cross-examination dated 12.07.2016 at page 6 has deposed that she was not able to speak in the hospital when the doctor declared her fit to give statement in MLC and therefore she did not give statement to the police on the said date. She was not able to speak even at the time of being discharged from the hospital and even after reaching home. She was not able to speak properly for 2-3 days after reaching home. The above deposition of PW-1 is contrary to medical evidence of prosecution and in absence of any specific reasonable reason it cannot be said that SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 26 of 39 PW-1 is deposing truthfully about her medical condition on 11.10.2010 when she was declared fit by the doctor. To the contrary it has already come on record that on 09.10.2010 itself PW-1 was fit to give her statement since she was conscious and oriented. Hence the above deposition of PW-1 shows that she has delayed in making statement only to improve upon the truthful version she had to make.
29. PW-1 at page 5 of her cross-examination dated 12.07.2016 has deposed that she is not aware that how many person came to visit her in the hospital as she was unconscious in the hospital which is contrary to the medical evidence brought by prosecution on record through PW- 17/Dr. Deepak Kumar who has deposed that PW-1 was conscious and oriented at the time she was brought to the hospital and she could have gave the statement on the same day. It is further deposed by PW-1 she does not know the day on which she has became conscious. It is deposed that she was not able to speak when she had regained conscious and therefore she could not make statement. She has further deposed that she does not remember the date on which she told doctors that she was not able to speak. She does not remember who were there at the hospital when she regained consciousness however she could see her mother. Hence all the above deposition of PW-1 is contrary to medical evidence. She could have given statement on 09.10.2010 itself being conscious and oriented and speaking contrary to medical evidence shows that above deposition of PW-1 cannot be believed that she was unconscious. This is further controverted by the fact that PW-1 was taken to AIIMS hospital by accused no.1 on motorcycle which is about a distance of 15 km away from her residence. It is deposed by PW-1 that she does not know that SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 27 of 39 accused no. 1 Sikander Mirza took her to AIIMS hospital as she was unconscious. It is deposed that she was taken on motorcycle. Accused no. 5 Seema had sit behind her on the motorcycle holding her. This fact of going of accused no. 5 Seema on the motorcycle with PW-1 is not so stated in the examination-in-chief which shows that PW-1 is making material improvement in her statement time and again to adjust inconsistency in her statement and this makes her deposition totally unreliable. Neither she had stated in Ex.PW1/A that accused no. 5 had sat behind her on motorcycle to take her to AIIMS hospital.
30. PW-2 in her examination-in-chief dated 24.10.2016 at second page has deposed that PW-1/complainant had told PW-2 in the hospital that her sister-in-law has given some poisonous substance to her in food and she had started vomiting with blood. Under the direction of the neighbour the accused brought her to hospital. It is also deposed by PW- 2 that accused had earlier divorced PW-1 Ms. Sana on 09.10.2010. the above deposition of PW-2 proves that PW-1 was fit for statement in the hospital on 09.10.2010 and therefore she was able to disclose the above incriminating fact to PW-2. PW-4 in his examination-in-chief dated 27.03.2018 at second page has deposed that when they had reached at AIIMS hospital on 09.10.2010 then PW-1 Ms. Sana had told her parents that her mother-in-law and sister-in-law had brought food for her on the previous night and when she ate the food then she felt that the taste of food was bitter. When she woke up in the morning around 9-9:10 AM then she felt giddy and started vomiting. PW-1 told PW-2 that before bringing food accused person had beaten PW-1 and demanded money and flat from her. The above deposition PW-4 proves that PW-1 was fit SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 28 of 39 to give statement in the hospital on 09.10.2010 and deliberately she did not give the statement to the police to further make improvement in her statement. Further, in Ex.PW1/A it is not mentioned that flat was demanded from PW-1 in the night when the vegetable potato was given by accused person to PW-1 and therefore while so stating in the hospital to her mother about demand of flat which is heard by PW-4 shows that PW-1 has tendency to falsely implicate or improve the facts and therefore this make her statement unreliable.
31. PW-3 Md. Wali in cross-examination dated 02.04.2018 had deposed that before marriage the accused person had not demanded any thing from them. All the jewellery and furniture items were given at the time of marriage were given by them on their own. PW-1 in her cross- examination dated 12.07.2016 at third page has deposed that her parents has given jewellery more than 40 Tola of gold to accused no. 1 during marriage. She had given the bills of the said 40 Tola jewellery to the IO. First of all as per deposition of prosecution own witness who is PW-1 no dowry demand was made before or at the time of marriage and therefore the giving of said 40 Tola gold does not amount to giving of dowry. Secondly no receipt is proved on record by the prosecution witness of the said 40 Tola gold jewellery though PW-1 has claimed that she had given the said receipt to the IO. However no such receipt are produced by IO on record. To the contrary PW-2 in her cross-examination dated 11.07.2017 at page 3 has deposed that she had placed on record the bill of purchase of jewellery of gold and the jewellery was mere 62 Tola. PW-3A has deposed that before marriage accused person had not demanded anything from them whereas to the contrary at page 2 of SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 29 of 39 cross-examination dated 11.07.2017 PW-2 has deposed that accused persons have demanded dowry before marriage and they had asked for car, a flat at Rohini, a shop and other things. Hence the prosecution witness are deposing contrary to each other. PW-2 is making such depositions not only contrary to the other witness on record but such deposition is not mentioned in her statement under Section 161 Cr. PC. PW-4 at first page of his cross-examination dated 02.04.2018 has deposed that there was no demand from the side of accused person before the marriage. The Stridhan articles of PW-1 were provided our of their own sweet will. PW-2 at first page of his cross-examination dated 117.2017 has deposed that she had not made any complaint to the police with regard to harassment of her daughter/PW-1 or demand of dowry. She does not remember any specific date, month or year regarding beating of her daughter by the accused person. PW-4 at second page of his cross-examination dated 02.04.2018 has deposed that the accused person had never demanded any money after the handing over of alleged Rs.1 lakh. Hence as per the proseuciotn witness there was no demand of dowry by the accused person before marriage. Even after marriage the prosecution have failed to prove on record that the accused had demanded any dowry from PW-1. Even the beating regarding dowry is also not proved on record by the prosecution by any substantive evidence.
32. PW-7 who is maternal uncle of PW-1 in his cross-examination dated 08.07.2019 at second page has deposed that both the accused no. 1 and PW-1 knew each other before marriage. Accused no.1 used to go with PW-2 to the house of members of Parliament and MLAs. It is deposed SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 30 of 39 that he had never seen beating PW-1 by accused no. 1. However accused no. 1 had left PW-1 at the residence of PW-7 in the evening and PW-1 was weeping. PW-6 who is maternal aunt/Mausi of PW-1 has deposed as correct that the departure ceremony was celebrated after three years of marriage and hence the marriage had occurred three years back from the departure ceremony in the year 2005. Hence the date of marriage has also comes in dispute between the parties. PW-1 has deposed at first page of her examination-in-chief dated 29.05.2015 that she had married on 24.10.2008. PW-6 has deposed that she had not made any complaint to the police regarding beating of PW-1 by accused persons. PW-2 at first page of her cross-examination dated 11.07.2017 does not remember any specific date, month or year regarding beating of PW-1 by accused person. PW-4 at third page of his cross-examination dated 02.04.2018 has deposed that before October 2010 there was no such incident of trying to kill her sister and the incident was happened only on 09.10.2010. Hence it is held that prosecution has failed to prove that cruelty was committed on PW-1 by the accused person for demand of dowry or that in such respect any beating was given by any accused person on PW-1.
33. PW-2 in her cross-examination dated 11.07.2017 at third page has deposed that when she had reached at the hospital to see her daughter/PW-1 at about 3 PM on 10.10.2010 then PW-1 was not in a position to speak whereas evidence has come earlier that on 09.10.2010 itself PW-1 had stated the entire facts both to PW-2 and PW3A and also to PW-4. It is deposed by PW-2 at page 2 that she had received the information from the neighbours of accused person and also from the SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 31 of 39 relatives of accused person that quarrel had taken place on 09.10.2010. She was informed on 10.10.2010 that her daughter was beaten whole night. The name of such neighbour was not disclosed. On 09.10.2010 when PW-1 was in hospital then how she could be beaten on 10.10.2010.
34. DW-1 has deposed in his examination-in-chief that the accused person were living at C-766, Jafrabad which is adjacent to his house. Accused lived with his wife at the said address for about two years in the year 2009 and 2010. In his cross-examination it is deposed that accused person had stayed there from August 2010 till November 2010. This is corroborated by the deposition of PW-1 at page no. 3 of her cross- examination dated 12.07.2016 that she lived at her matrimonial home for about 4-5 months from the date of her marriage and thereafter accused no. 1 Sikander Mirza left her at the house of PW-2/the mother in April 2009. she had stayed for about one year at the house of her mother till February 2010. It is deposed by PW-1 that she again went to her matrimonial home at Farsh Khana and then accused no. 1 taken her to rented house in the area of Seelampur where she stayed about 2 months then she returned back to Farsh Khana in the year 2010 in summers. To the contrary she has deposed that she had stayed with the accused from February 2010 till 09.10.2010 at Farsh Khana. Whereas she had already deposed that after February 2010 accused had taken her to one rented house in Seelampur where she had stayed for three months which means till April 2010 she was staying in the rented accommodation. The above facts are material facts which PW-1 has not disclosed nor prosecution witness has disclosed in their examination-in-chief. DW-2 has similarly deposed about staying of PW-1 for about two years in the year 2009 and SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 32 of 39 2010 at house no. C-766, Jafrabad which is right next to his house. Hence largely the PW-1 had stayed out of her matrimonial home and for a limited period she had residency and interaction with the accused no. 2 to 5. There is absence of accused no. 2 to 5 to have necessary occasion to commit cruelty upon PW-1. PW-1 has made vague allegation and omnibus allegation and there is absence of specific instance or occasion detailed with particulars wherein the accused person had demanded dowry from her and on refusal of the same subjected her to mental and physical cruelty. Even if the facts and evidence produced by the prosecution on record read in totality does not substantiate any ingredient of Section 498A IPC. It is held by Hon'ble Supreme Court of India in case titled Maram Nirmala Vs. State of Telangana that mere reference to name of family members in a criminal case arising out of matrimonial dispute without specific allegation indicating there active involvement should be nipped in the bud. There is often a tendency to implicate all the members of husband family when the matrimonial dispute arise out of matrimonial discord. There are generalize and sweeping allegations unsupported by concrete evidence which is misuse of legal process and abuse of process of law. The relevant para are reproduced herasunder:
Maram Nirmala v. State of Telangana, 2025 SCC OnLine SC 2913
14. The case at hand pertains to allegations of cruelty and dowry demand made by the respondent No. 2 against the appellant(s) herein. A bare perusal of the FIR however, shows that the allegations made by respondent No. 2 are vague and omnibus inasmuch as there is an absence of any specific instance or occasion detailed with particulars wherein the appellant(s) demanded dowry from respondent No. 2 and on refusal of the same, subjected her to mental and physical cruelty. The only allegations levelled by respondent No. 2 against the appellants herein are that subsequent to the birth of her daughter, the conduct of her husband underwent a change, which is stated to have been SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 33 of 39 on account of the alleged inducement exercised by the in-laws including the appellant(s) herein for the purpose of demanding additional dowry and that pursuant to the counselling conducted at the Women Police Station, Nalgonda, although the husband of respondent No. 2 and his family assured that she would be treated properly, they nevertheless continued to subject respondent No. 2 to mental and physical cruelty.
15. We therefore find that the aforesaid allegations levelled against the appellant(s), even if taken at their face value, do not prima facie disclose the commission of the alleged offences so as to warrant the initiation of criminal proceedings.
16. During the course of submissions, learned counsel for the appellant(s) brought to our notice the judgment of this Court in the case of Dara Lakshmi Narayana v. State of Telangana, (2025) 3 SCC 735 ("Dara Lakshmi Narayana") as well as other judgments which squarely apply to this case. We have perused the same.
17. This Court speaking through one of us (B.V. Nagarathna, J.) in Dara Lakshmi Narayana, while dealing with the issue of quashing of criminal proceedings instituted by the respondent wife therein against her husband and in-laws who were charged with offences punishable under Sections 498A of the IPC and Sections 3 and 4 of the DP Act, 1961, held as follows:
"27. A mere reference to the names of family members in a criminal case arising out of a matrimonial dispute, without specific allegations indicating their active involvement should be nipped in the bud. It is a well-recognised fact, borne out of judicial experience, that there is often a tendency to implicate all the members of the husband's family when domestic disputes arise out of a matrimonial discord. Such generalised and sweeping accusations unsupported by concrete evidence or particularised allegations cannot form the basis for criminal prosecution. Courts must exercise caution in such cases to prevent misuse of legal provisions and the legal process and avoid unnecessary harassment of innocent family members. In the present case, Appellants 2 to 6, who are the members of the family of Appellant 1 have been living in different cities and have not resided in the matrimonial house of Appellant 1 and Respondent 2 herein. Hence, they cannot be dragged into criminal prosecution and the same would be an abuse of the process of the law in the absence of specific allegations made against each of them.
Xxx
30. The inclusion of Section 498-A IPC by way of an SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 34 of 39 amendment was intended to curb cruelty inflicted on a woman by her husband and his family, ensuring swift intervention by the State. However, in recent years, as there have been a notable rise in matrimonial disputes across the country, accompanied by growing discord and tension within the institution of marriage, consequently, there has been a growing tendency to misuse provisions like Section 498-AIPC as a tool for unleashing personal vendetta against the husband and his family by a wife. Making vague and generalised allegations during matrimonial conflicts, if not scrutinised, will lead to the misuse of legal processes and an encouragement for use of arm twisting tactics by a wife and/or her family. Sometimes, recourse is taken to invoke Section 498-A IPC against the husband and his family in order to seek compliance with the unreasonable demands of a wife. Consequently, this Court has, time and again, cautioned against prosecuting the husband and his family in the absence of a clear prima facie case against them.
Xxx
31. We are not, for a moment, stating that any woman who has suffered cruelty in terms of what has been contemplated under Section 498-A IPC should remain silent and forbear herself from making a complaint or initiating any criminal proceeding. That is not the intention of our aforesaid observations but we should not encourage a case like as in the present one, where as a counterblast to the petition for dissolution of marriage sought by the first appellant, husband of the second respondent herein, a complaint under Section 498-A IPC is lodged by the latter. In fact, the insertion of the said provision is meant mainly for the protection of a woman who is subjected to cruelty in the matrimonial home primarily due to an unlawful demand for any property or valuable security in the form of dowry. However, sometimes it is misused as in the present case. Xxx
34. We, therefore, are of the opinion that the impugned FIR No. 82 of 2022 filed by Respondent 2 was initiated with ulterior motives to settle personal scores and grudges against Appellant 1 and his family members i.e. Appellants 2 to 6 herein. Hence, the present case at hand falls within Category (7) of illustrative parameters highlighted in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]. Therefore, the High Court, in the present case, erred in not exercising the powers SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 35 of 39 available to it under Section 482CrPC and thereby failed to prevent abuse of the Court's process by continuing the criminal prosecution against the appellants."
(underlining by us)
18. Having regard to the facts and circumstances of this case, we find that the judgment of this Court in Dara Lakshmi Narayana would apply. Hence, the impugned order of the High Court is set aside. The proceedings instituted against the appellant(s) in C.C. No. 338/2023 pending on the file of the Judicial First Class Magistrate (Prohibition and Excise offence) at Nalgonda stand quashed in relation to the appellants herein.
35. Hence it is held that the prosecution has failed to prove the necessary ingredients of Section 498A/34 IPC against all the accused person and all the accused persons are acquitted thereunder.
36. Now it is seen that whether the accused person have committed offence under Section 406/34 IPC. The accused persons are charged with that on 24.10.2008. They were entrusted with dowry articles and other articles belonging to PW-1 and the accused person had refused to return the said articles on such demand. Accused persons had used the said articles for their own end. The relevant citation is reproduced hereasunder:
Hon'ble Supreme Court of India in case titled Abhishek Saxena Versus The State of Uttar Pradesh & Anr. in Criminal Appeal No. 3628 of 2023 (Arising out of SLP(Crl.) No. 1431/2020)=2023 INSC 1088
11. Now, we will consider the accusation of commission of offence under Section 406, IPC. The essential ingredients to constitute an offence under Section 406, IPC are as follows:
(i) Entrusting any person with property or with any dominion over property;
(ii) the person entrusted
(a) dishonestly misappropriating or converting to his own use that property;SC No.28190/2016 FIR No.143/2010
P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 36 of 39 or
(b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation -
(i) of any direction of law prescribing the mode in which such trust is to be discharge, or;
(ii) of any legal contract made touching the discharge of such trust In the absence of basic ingredient of entrustment of property and dishonest usage or disposal of any such property to satisfy the offence punishable under Section 406, IPC in the present case, the charge of commission of the offence thereunder also cannot be attracted.
37. First of all the prosecution has to prove what all articles were entrusted by PW-1 to the accused person. The same is not proved on record specifically nor any receipt of purchase of such articles is produced on record. Hence vague allegation is made against the accused person. It is already discussed in evidence above that PW-1 had given 40 Tola of gold and to the contrary PW-2 had deposed about giving of 62 Tola of gold and in absence of any other specific evidence it cannot be said that such gold was given by PW-1 to accused person. Mark D1 was put to PW-1 at page 6 of her cross-examination dated 12.07.2016 regarding taking away of all her jewellery whereas at Mark D1 bears her signature and thumb impression. PW-1 has denied having put signature and thumb impression on Mark D1. Mark D1 is in handwriting on plain paper which are witnessed by Syed Baghar Ali, PW-6/Shahjahan and Md. Dilshad. Mark D1 mentions that the jewellery of PW-1 are with her and they will not blame the accused person regarding the same and neither they will claim regarding jewellery against each other. PW-2 Ms. Razia Begum has deposed as incorrect that on 31.01.2010 she alongwith PW-1 and the other person of locality went to house of PW-1 for the SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 37 of 39 purpose of talks and brought whatever gold they had given to PW-1 at the time of marriage. Ex.PW1/B and Ex.PW15/F (page no. 49 to 51 of document file) are seizure memo of articles from the accused person. It is deposed by PW-1 at page 3 of her cross-examination that on 25.11.2010 she alongwith IO and PW-2 went to her matrimonial house no. 600, Gali Mirza, Fakrulla Beg, Farsh Khana for recovery of Istridhan articles and she had recovered such articles vide Ex.PW1/B. She has deposed that certain Stridhan articles were hidden by her mother and the gold jewellery could not be recovered. However the giving of gold jewellery in absence of proof of giving has not been proved on record. The unrecovered articles are also not proved on record by any receipt of their purchase and therefore such giving of articles and there non recovery is vague evidence. PW-15 has proved recovery of articles from the accused person vide Ex.PW15/F. It was held in citation titled Abhishek Saxena Vs. State of U.P. (supra) that in absence of basic ingredient of entrustment of property and dishonest usage or disposal the Section 406 IPC cannot be attracted. There is vague allegation of PW-1 that they had entrusted the property to the accused person and that the jewellery was entrusted by her to her mother-in-law accused no. 2 Farzana. The purchase of jewellery is not proved on record. Therefore jewellery entrustment to accused no. 2 has become doubtful. It is common practice that when a girl gets married then she carries certain articles with her to her matrimonial home for her own living and it cannot be called as entrustment. No specific date of entrustment is given by PW-1 and therefore it shows that the carrying of articles during marriage to her matrimonial home is not such an entrustment to the accused person. She has also failed to prove existence of such gold SC No.28190/2016 FIR No.143/2010 P.S. Lahori Gate State vs. Sikander Mirza & Ors. Page 38 of 39 jewellery of 40 Tola with her. For about 2 years she was staying at separate house other than her matrimonial home and had not made any challenge for not giving of the said gold jewellery to her by the accused person. It cannot be said that while living separately she would be giving the jewellery to accused person or whether when she has allegedly returned back to her matrimonial home in the year 2010 then whether the jewellery was entrusted in the year 2010. Hence it is held that prosecution has failed to prove the necessary ingredient of Section 406 IPC against the accused person and accused person are held entitled to be acquitted under Section 406/34 IPC.
38. In view of above discussion it is held that prosecution has failed to prove all the allegations levelled against the accused person and therefore the accused no. 1 Sikander Mirza, accused no. 2 Farzana Mirza, accused no. 3 Khurshida Khan, accused no. 4 Sagufta Hussain and accused no. 5 Seema Mirza stands acquitted under all the charges levelled against them. The earlier personal bond of the accused person stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, accused person have furnished their bail bond as directed which will be in force for a period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally signed by
Announced in the open Court
JOGINDER PRAKASH
PRAKASH NAHAR
on 31.01.2026. NAHAR
Date: 2026.01.31
16:32:06 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT/DELHI
SC No.28190/2016
FIR No.143/2010
P.S. Lahori Gate
State vs. Sikander Mirza & Ors. Page 39 of 39