Delhi District Court
State vs . Mohd. Fateh Sc No. 29/14 Page 1 Of 49 ... on 15 March, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
SC No. 29/14
STATE
vs
Mohd. Fateh
S/o Mohd. Jamaluddin
R/o Village Samaysinghpur, PS Mohiuddin Nagar,
District Samastipur, Bihar
FIR No. 235/12
PS Pul Prahladpur
Offence Under Section 498A/304B IPC
Date of Committal : 20.11.2012
First Date in this Court : 21.01.2014
Date of conclusion of arguments : 12.03.2014
Date of decision : 15.03.2014
JUDGEMENT
1. The case brought by the prosecution is as follows.
2. On 10.08.2012, DD No. 32A recorded in PS Pul Prahladpur as regards suicide by a person was marked to SI Sakhi Ram, who ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 1 of 49 Pages (2) accompanied with Ct. Kuldeep reached the spot, which is a house bearing no. 27C, Gali No.2, Pul Prahladpur. In the meanwhile, SI Sunil Kumar also reached the spot as per the orders of SHO, PS Pul Prahladpur. On first floor of the said house, in one of the two rooms, a lady was found in half sitting condition in a corner with her head rested on the wall and bleeding from nose with a ligature around her neck. On the spot itself, accused Mohd. Fateh met the IO and informed that the deceased lady Afroza Khatoon was his wife who committed suicide by hanging herself with her chunni and that he had cut that chunni. Crime team was summoned to the spot and SDM Kalkaji was intimated about the occurrence who directed the dead body to be sent to the hospital. Crime team inspected and photographed the spot and SI Sunil Kumar sent the dead body alongwith the chunni ligature through Ct. Kuldeep to AIIMS. The sub inspector preserved the scene of occurrence and, thereafter, further investigation was assigned to Insp. Manoj Kumar (IO).
3. The area SDM and the IO inspected the spot of occurrence and ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 2 of 49 Pages (3) after coming back to police station, recorded the statements of Mohd. Zubair and Shabina Khatoon. In his statement, Mohd. Zubair stated that he had been residing in Rohini, Delhi for past 34 years and working as a tailor; that he had three sisters and one brother, of whom the deceased Afroza was the youngest; that the deceased got married with Mohd. Fateh about 4 years ago in Bihar; that about two months ago, the accused who was working in Delhi brought the deceased to Delhi and they started residing in the above mentioned house (spot of occurrence); that after marriage, accused used to harass the deceased for dowry and used to beat her up; that on 10.08.2012 at about 02:45 am, his sister Shabina Khatoon's brother in law telephonically informed that the deceased had hanged herself; that he suspected that either the accused had killed the deceased or the deceased committed suicide.
4. On the basis of the above statement of Mohd. Zubair, IO got registered an FIR for offence under Section 498A/304B IPC and carried out further investigation. During investigation, IO prepared site plan at ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 3 of 49 Pages (4) the instance of SI Sunil Kumar, collected articles of evidence from the spot and deposited the same in Malkhana. Thereafter, IO arrested the accused and subsequent to the postmortem, handed over dead body of the deceased to her family members. After completion of investigation, the charge sheet for offence under Section 498A/304B IPC was filed against the accused in the magisterial court, from where after committal, the trial was assigned to this court. My learned predecessor court framed charge for offence under Section 498A/304B IPC, with alternate charge for offence under Section 302 IPC, to which the accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined in all, 25 witnesses and closed its evidence, whereafter the entire prosecution evidence was put to the accused in his statement under Section 313 Cr.P.C. The accused denied the correctness of the prosecution evidence in his statement but opted not to lead any evidence in his defence. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for the State and ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 4 of 49 Pages (5) Sh. Jitender Tyagi, counsel for the accused, who took me through records.
6. A brief compendium of the evidence lead by the prosecution is as follows.
7.1 The first informant, Mohd. Zubair, in his testimony as PW1 deposed that the deceased Afroza Khatoon, who was his youngest sister got married with the accused Mohd. Fateh about four years back in Village Samaysinghpur, Bihar; that on the day of marriage of the deceased, the accused quarreled with them and demanded more dowry but the dispute was settled with the intervention of respectable persons and the deceased was sent with the accused to her matrimonial home; that even thereafter, the accused used to harass the deceased and beat her up and used to demand more dowry, due to which the deceased used to live with them for most of the time; that even after being blessed with a daughter, the accused continued to demand dowry; that the accused who was working in Delhi, brought the deceased to Delhi about two months prior to the incident and they started residing in a rented room in Pul ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 5 of 49 Pages (6) Prahladpur; that even in Delhi the accused used to harass and beat up the deceased, demanding dowry and the deceased used to narrate about that harassment to their sister Shabina Khatoon; that on 10.08.12 at about 02:45 am, Shehzada, brother in law of Shabina telephonically informed that the deceased had hanged herself; that he went to the house of the deceased where police also came and seized the blood stained mat after preparing its sealed parcel, vide seizure memo Ex.PW1/A; that the police scratched the blood stained plaster from the wall and after preparing its sealed parcel, seized the same vide seizure memo Ex.PW1/B; that the police also converted into sealed parcel one blood stained sil batta and seized the same vide seizure memo Ex.PW1/C; that dead body of the deceased was lying in the room with nasal bleeding; that the Magistrate recorded his statement Ex.PW1/D; that the accused was arrested vide arrest memo Ex.PW1/E and personal search memo Ex.PW1/F; that he identified dead body of the deceased vide memo Ex.PW1/G and accepted the dead body vide memo Ex.PW1/H after ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 6 of 49 Pages (7) postmortem; that he handed over a photocopy of the nikahnama with Hindi translation and the documents pertaining to the dowry which were seized by the IO vide memo Ex.PW1/J; that the photocopy of nikahnama is Ex.PW1/K and list of dowry articles is Ex.PW1/L. PW1 in his testimony identified the mat as Ex.P1, plaster pieces as Ex.P2, sil batta as Ex.P3 and P4.
7.2 In his cross examination, PW1 stated that before the SDM he did not allege that on the date of marriage, the accused had quarreled with them over dowry and admitted that the dispute between the parties had got settled in a panchayat. PW1 stated that he had got recorded in his statement before the SDM that even after the deceased was sent with the accused, the accused continued to harass her and beat her up due to which for most of the time she lived with them; but on being confronted with statement Ex.PW1/D, the fact of the deceased living with them for most of the time was found not recorded. PW1 further stated that he had got recorded in his statement that the deceased shared her plight with ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 7 of 49 Pages (8) Shabina Khatoon; but on being confronted with statement Ex.PW1/D, this fact also was found not recorded. PW1 admitted having not mentioned any specific dates of the alleged harassment and beatings. PW1 further admitted that no complaint of harassment and beatings was made in Bihar at any point of time. PW1 denied the defence suggestion that the accused never harassed the deceased nor demanded dowry and that they were living happily in the matrimonial home.
8. Dr. Rajnikanta Swain, a junior resident of the department of Forensic Medicine and Toxicology, AIIMS, appeared as PW2 and proved her postmortem report as Ex.PW2/A and her subsequent opinion as Ex.PW2/B. In cross examination, PW2 stated that bleeding from nose, mouth and other orifices of body is possible even after death and in the present case, except the ligature mark there was no external injury found on the deceased.
9. Sh. Abdul Gafur, landlord of the accused and the deceased appeared as PW3 and deposed that for past about two and a half month ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 8 of 49 Pages (9) prior to the incident, the accused had taken one room on the first floor of his house on rent where accused started residing alongwith the deceased and their infant child; that on 10.08.12 while he was sleeping on the ground floor at about 01:15 am, he woke up hearing the noise of beating the door; that on reaching the first floor, he saw his son Akram and the accused knocking at the door of room of the accused loudly as the door was locked from inside; that when he asked, the accused informed that the deceased had committed suicide by hanging herself, so he called PCR which came at the spot and, thereafter, they broke open door of the said room; that on entering the room they saw the deceased hanging with chunni; that he did not know as to why the deceased committed suicide as during their stay in that house, he never heard nor saw any quarrel between the accused and the deceased. Ld Defence Counsel opted not to cross examine PW3 despite opportunity.
10.1 Shabina Khatoon, sister of the deceased appeared as PW4 and deposed that her youngest sister, the deceased got married with the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 9 of 49 Pages (10) accused about 4 years back, whereafter the accused started harassing the deceased for dowry; that a panchayat was organized where the matter got settled and the deceased was sent with the accused but even thereafter, the accused continued to harass her for dowry, so she used to live occasionally with the accused and most of the time she used to come to her mother's place, where she also gave birth to a daughter; that the accused never came to her mother's house and it is they only who had to escort the deceased back to her matrimonial home, whenever she came to them; that even after birth of the child, the accused sent a message to send the deceased and the child back to his house, so she accompanied the deceased and the child to the house of the accused; that the accused again started demanding dowry and never permitted the deceased to speak to her on phone; that about two months prior to the incident, the accused brought the deceased to Delhi and they started living in Pul Prahladpur; that on one day, when she called up the deceased, the latter was weeping and complained about the further dowry torture; that her efforts to pacify ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 10 of 49 Pages (11) the accused did not turn fruitful; that about three days prior to the incident, she brought the deceased to her home where the deceased told about repeated harassment for dowry and the deceased had been beaten up by the accused even on that very day; that the deceased told her that the accused used to earn Rs.10,000/ per month but gave to the deceased only Rs.2500/ towards expenses, so she assured the deceased that she would discuss the matter with their brother and thereafter the deceased went back home; that two days thereafter the accused informed them that the deceased had died by hanging herself; that when they reached the house of the accused, they saw body of the deceased and parts of a mobile phone found scattered on the spot and there were blood stains on the mat, wall and the sil batta with impressions of dragging of the body; that she gave her statement Ex.PW4/A before the Magistrate. 10.2 In her cross examination, PW4 stated that she was residing in Pul Prahaladpur itself at some distance from the house of the deceased; that the panchayat was convened on the day of marriage when the accused was ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 11 of 49 Pages (12) demanding dowry but on that day she was not present when the compromise Ex.PW1/L was prepared. In cross examination PW4 stated that she had told the Magistrate and police in her statement that after marriage, the accused started harassing the deceased for dowry; but on being confronted with statement Ex.PW4/A, the expression "after solemnization of marriage" was found not recorded. Further, in her cross examination, PW4 stated that she had got recorded in her statement before the Magistrate that most of the time the deceased used to reside at her mother's house; but on being confronted with statement Ex.PW4/A, the said facts were found not recorded. PW4 further stated that she had stated in her previous statement that her brother and family members used to pick and drop the deceased from the house of the accused and the accused never visited her mother's house; but on being confronted with her previous statement Ex.PW4/A, the said facts were found not recorded. PW4 further stated that she had stated in her previous statement that after birth of the child the accused sent a message to send ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 12 of 49 Pages (13) the deceased and the child to his place, which she did and that the accused never allowed the deceased any conversation on phone; but on being confronted with previous statement Ex.PW4/A, these facts were found not stated. PW4 further stated that she had got recorded in her previous statement that on one day when she called up the deceased, the latter was weeping and complained as regards dowry torture; but on being confronted with previous statement Ex.PW4/A, the said facts were found not recorded. PW4 further stated that she had stated in her previous statement that she tried to pacify the accused, who did not relent; but on being confronted with previous statement Ex.PW4/A, these facts were found not recorded. Most importantly, PW4 specifically stated that she had got recorded in her previous statement that about three days prior to the incident, she brought home the deceased and the deceased told her about routine torture and even assault on that very day itself by the accused; but on being confronted with Ex.PW4/A, these facts were found not recorded. PW4 in her cross examination admitted that she had ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 13 of 49 Pages (14) not told the dates of harassment for dowry and beatings to the SDM or to the police and that she never made any complaint to the police in Delhi or even at their native place about the alleged harassment and beatings. PW4 denied the suggestion that the deceased was living happily with the accused but they were annoyed since the accused gave only Rs.2500/ to the deceased for expenses though he earned Rs.10,000/ per month.
11. Dr. Bharat, PW5 a junior resident of AIIMS hospital proved the MLC of the deceased as Ex.PW5/A.
12. Dr. Shashank Punia, PW6 a senior resident of department of Forensic Medicine and Toxicology, AIIMS hospital, deposed that the postmortem of the deceased was conducted in his presence and the opinion as regards cause of death was given by him and Dr. Swain, PW2.
13. Sh. Upender Thakur, Pradhan, Karnoti Gram Panchayat appeared as PW7 and deposed that on 18.12.08 the deceased got married with the accused and at that time the accused and his family members demanded gold ring and gold chain; that the accused also hit the table with ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 14 of 49 Pages (15) eatables, due to which families of the accused and the deceased started quarreling and the villagers had to intervene whereafter the accused and his family members apologized; that the accused undertook not to harass the deceased regarding which agreement Ex.PW1/L was signed and the deceased was sent with the accused; that later on he came to know that the accused had again demanded dowry from brother of the deceased and that the accused continued to harass the deceased even in Delhi so she committed suicide. In his cross examination, PW7 denied that the accused never demanded gold chain or gold ring and that there was mismanagement in the arrangement for the groom's family. 14.1 Mohd. Tayyab Ali, brother of the deceased appeared as PW8 and deposed that his youngest sister Afroza got married with the accused on 18.12.08; that they had given all the dowry articles as per their capability at the time of marriage but while taking meal, the accused and his family members demanded a gold chain, so a panchayat was convened and after settlement of the dispute, the deceased was sent with the accused; that ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 15 of 49 Pages (16) when the deceased returned from her matrimonial home, she told that the accused and his father and brother were harassing her for dowry but for matrimonial peace, they sent the deceased back home; that about 2 2 ½ months prior to the incident, the accused brought the deceased to Delhi and they started living in a rented accommodation at Pul Prahladpur but even, thereafter, the accused continued to harass the deceased for dowry; that on 10.08.12 his sister Shabina informed about death of the deceased so he came to Delhi and received the dead body of the deceased after identifying the same; that the SDM recorded his statement Ex.PW8/B. 14.2 In his cross examination, PW8 deposed that at the time of marriage of the deceased he was working in Indore and used to visit their native village once or twice in an year; that he met the deceased twice subsequent to her marriage; that after the marriage, no panchayat was convened alleging any harassment and he never lodged any complaint in any police station or in court as regards the alleged harassment. PW8 admitted that his another sister used to reside in the neighborhood of the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 16 of 49 Pages (17) deceased and after marriage the deceased used to reside at her matrimonial home. PW8 denied that the deceased was residing happily with the accused and there was never any demand or harassment.
15. Mohd. Salem, a resident of Pul Prahladpur appeared as PW9 and deposed that he had translated a panchayatnama and list of dowry articles from Urdu to Hindi and proved the original Hindi translation already exhibited as Ex.PW1/L as Ex.PW9/B. PW9 also proved the photocopies of Urdu documents as Ex.PW9/A and Ex.PW9/C. In his cross examination, PW9 stated that the original nikahnama, panchayatnama and list of dowry articles were not shown to him when he translated the same and he had never seen the original documents. PW9 stated that he studied Urdu and Hindi only upto 12 th standard and did not undertake any translation course.
16. SI Deepak Kumar, the duty officer of PS Pul Prahladpur appeared as PW10 and proved copy of FIR as Ex.PW10/A and his endorsement on rukka as Ex.PW10/B. ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 17 of 49 Pages (18)
17. Ct. Dharam Singh appeared as PW11 and deposed having accompanied the IO to the mortuary from where after postmortem, the dead body was handed over to brother of the deceased and the IO having received from the doctor a chunni which was converted into pulanda and seized vide seizure memo Ex.PW11/A. PW11 also deposed having received from the doctor of AIIMS a sealed envelope and a sealed pulanda which he delivered to the IO and the same were seized vide memo Ex.PW11/B.
18. SI Krishan Kumar, PW12 of the crime team proved the inspection report of the crime team as Ex.PW12/A regarding the scene of occurrence.
19. Ct. Amit, PW13 of the crime team being a photographer proved the photographs of the scene of offence as Ex.PW13/A1A8 and the receipt of photographs by the IO as Ex.PW13/B.
20. SI Rajender Kumar of PS Pul Prahladpur appeared as PW14 and deposed that on 11.09.2012, on instructions of the IO, he collected nine ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 18 of 49 Pages (19) exhibits from MHC(M) and deposited the same with FSL Rohini.
21. Ct. Kuldeep appeared as PW15 and deposed that on the night intervening 9th and 10th August, 2012, while posted as a constable in PS Pul Prahladpur, he accompanied SI Sakhi Ram to the spot where SI Sunil Kumar also had arrived and called the crime team and after the spot inspection, he removed the dead body of the deceased to the hospital and collected MLC from the doctor.
22. HC Rakesh Kumar, MHC(M) appeared as PW16 and proved the relevant entries of register no. 19 as Ex.PW16/A and copy of road certificate of register no. 19 as Ex.PW16/B.
23. Sh. Ajit Kumar, the Executive Magistrate of Kalkaji appeared as PW17 and deposed that on 10.08.12 at about 03:30 am, upon receipt of the information that a lady had hanged herself, he instructed the sub inspector to call crime team on the spot and get the photographs clicked and send the body to mortuary; that at about 02:30 pm, he visited the spot and inspected the scene of occurrence where the IO Insp. Manoj ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 19 of 49 Pages (20) Kumar and SHO, Pul Prahladpur were present; that thereafter, he went to the police station and recorded statements Ex.PW1/D and Ex.PW4/A of brother and sister of the deceased and forwarded the same for action by the concerned SHO; that he also conducted inquest proceedings and after examining the dead body, filled up Form 25.35 Ex.PW17/A and sent request Ex.PW17/B for postmortem; that after postmortem he directed handing over of the dead body to brother of the deceased; that upon receipt of the postmortem report, he forwarded the same to the IO. In cross examination, PW17 denied the suggestion that no statement was made by brother or sister of the deceased and that police had simply produced those statements which he forwarded to the SHO at the instance of the IO.
24. ASI Beghraj, the duty officer of Pul Prahladpur appeared as PW18 and proved a copy of DD No 32A as Ex.PW18/A.
25. SI Sunil Kumar, PW19 deposed that on the night intervening 9th and 10th August, 2012, while posted as sub inspector at Pul Prahladpur, ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 20 of 49 Pages (21) he received DD No. 32 with instructions to take further action, so he reached the spot where SI Sakhi Ram and Ct. Kuldeep were already present; that the dead body of the deceased also was found touching wall of the room and the accused present on the spot informed that he had married the deceased about 4 years ago; that he conveyed the information of the occurrence to the SDM, Kalkaji over telephone and on the instructions of the latter, he called the crime team to the spot, got the spot photographed and sent the dead body to mortuary, whereafter he locked the room of the occurrence; that in the noon, he again visited the spot in presence of Insp. Manoj Kumar and SDM of the area, where the IO prepared pulandas of the relevant articles of evidence and seized the same vide seizure memos Ex.PW1/AC; that the IO arrested the accused vide memo Ex.PW1/E; that he accompanied the SDM as well as the draftsman in their respective investigation steps; that he interrogated and recorded statement Ex.PW19/A of the accused. PW19 identified the case property Ex.P1 to Ex.P4. In his cross examination, PW19 denied ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 21 of 49 Pages (22) that he did not join the investigation at any stage and had fabricated the statement of the accused.
26. SI Sakhi Ram appeared as PW20 and deposed that upon receipt of DD No. 32A, he visited the spot, where SI Sunil Kumar came and took over the investigation.
27. HC Zakir Hussain appeared as PW21 and deposed that alongwith Insp. Manoj, he went to village Samastipur to make inquiry about the accused but the villagers refused to make any statement, so they went to village Karnoti where statement of Sh. Upender Thakur, Village Pradhan, was recorded.
28. Insp. Mahesh Kumar, draftsman of crime branch appeared as PW22 and proved the scaled site plan of the spot as Ex.PW22/A.
29. Insp. Manoj Kumar, the main investigating officer appeared as PW23 and deposed that while posted as inspector in PS Pul Prahladpur, he was assigned investigation of this case and after receipt of DD No. 32A, he reached the spot, where the tehsildar recorded statements of brother ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 22 of 49 Pages (23) and sister of the deceased and directed action in accordance with law, so he prepared rukka Ex.PW23/A and sent the same for registration of FIR; that thereafter, he visited the spot and at the instance of SI Sunil Kumar, he prepared the site plan Ex.PW23/B and collected from the spot the relevant articles of evidence as described above and recorded the statements of witnesses, whereafter he returned to the police station and deposited the exhibits in Malkhana; that he got the dead body identified and handed over the same to relatives of the deceased after postmortem; that he seized the articles of evidence received from the hospital and recorded statements; that he got prepared the scaled site plan and also got the spot photographed, negatives whereof were delivered to him which are Ex.PW23/C1C8; that he obtained the FSL report and subsequent opinion and filed the same with his application Ex.PW23/D & E that after investigation he filed the charge sheet. PW23 identified the case property Ex.P1 to Ex.P4 and further identified the piece of ligature material as Ex.P5.
___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 23 of 49 Pages (24)
30. Senior Scientific Officer (Biology) and Senior Scientific Officer (Physics) of FSL Rohini appeared respectively as PW24 and PW25 and proved their respective reports as Ex.PW24/A & B and Ex.PW25/A.
31. No other evidence was adduced by prosecution.
32. The entire evidence so adduced by the prosecution was put to the accused in his statement under Section 313 Cr.P.C. The accused in his statement denied the correctness of prosecution evidence and explained that he never demanded dowry, rather brother and sister of the deceased used to borrow money from him. Accused further stated that on the day of occurrence, he reached home late from his duty and asked the deceased as to why she had not cooked the dinner due to which she got angry and he left the house; that after 1520 minutes on reaching back home, he found the room latched from inside and when despite his repeated calls and knocks the deceased did not open the door he peeped in through the window and found the deceased hanging with her dupatta, whereafter he screamed and immediately his landlord came with son and wife; that they ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 24 of 49 Pages (25) started breaking the door; that the landlord called the police and son of the landlord cut the dupatta so that if alive, the deceased could be saved; that thereafter police came and after breaking open the door, took the deceased to hospital and he was taken to police station where he was made to sign some papers. Accused opted not to lead any evidence in his defence.
33. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for the State and Sh. Jitender Tyagi, counsel for the accused, who took me through records.
34. Learned Additional Public Prosecutor argued that prosecution has been able to prove its case beyond reasonable doubt that the accused is guilty of the offence punishable under Section 498A/304B IPC. As per learned prosecutor, sister as well as brothers of the deceased have deposed unambiguously as regards the harassment meted out to the deceased by the accused, demanding dowry, which ultimately led to death of the deceased in unnatural circumstances. Learned prosecutor also ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 25 of 49 Pages (26) specifically contended that there is a clear evidence that even on the day of marriage of the accused, dowry demands were raised by the accused. As per learned prosecutor, the defence put forth by the accused in his statement under Section 313 Cr.P.C. is totally vague and has to be rejected. Per contra, learned defence counsel argued that prosecution has miserably failed to prove its case beyond reasonable doubt. As per learned defence counsel, none of the prosecution witnesses described any specific incident of the alleged dowry harassment or demand by the accused. Learned defence counsel also contended that statements of brothers and sister of the deceased are tainted on account of substantial improvements, so none of them can be relied upon for present purposes.
35. At the outset, it would be apposite to take a brief look at the legal position pertaining to the main offences with which the accused has been charged.
36. Section 498A IPC contemplates that where a husband or his relative subjects the wife of that husband to cruelty, such person shall be ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 26 of 49 Pages (27) punishable with imprisonment and fine. Explanation attached to the provision specifies that the expression "cruelty" means any willful 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 - be it physical or mental health - of the said woman victim or harassment of the woman victim where such harassment is with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security or is on account of failure by her or her relatives to meet such demand. Section 498A was added to the statute book with a view to punish the husband and his relatives who torture or harass the wife to coerce her or her relatives to satisfy unlawful demands of dowry.
37. Section 304B IPC contemplates that where death of a woman is caused by any burns or body 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 his relatives for or in connection with any dowry demand, ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 27 of 49 Pages (28) such death shall be called dowry death and such husband or relatives shall be deemed to have caused her death. In order to attract the presumption of criminality under Section 304B against the accused or his relatives, prosecution has to prove that the deceased was subjected to cruelty or harassment by her husband or his relatives; that such cruelty or harassment was for, or in connection with any demand for dowry; and that such cruelty or harassment was soon before her death. In this regard, the provision under Section 113B of the Indian Evidence Act also is a vital provision, which contemplates that when question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected to cruelty or harassment by such person for or in connection with any demand for dowry, the court shall presume that such person had caused dowry death.
38. Accordingly, there must be material on record to show that soon before her death, the deceased lady was subjected to cruelty or harassment for or in connection with the demand of dowry, and only then ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 28 of 49 Pages (29) the presumption of criminality can be drawn against the accused. In most of the dowry death cases, direct evidence is hardly available and such cases are proved usually with the circumstantial evidence.
39. In the case of Gokaraju Venkatanarasa Raju vs State of Andhra Pradesh 1993 Suppl (4) SCC 191, Hon'ble Supreme Court struck a note of caution that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. It was held that court has to be watchful and avoid the danger of allowing the suspicion to take place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof; at times it can be a case of "may be true" and not "must be true" and the same divides conjectures from sure conclusions.
40. In the case of Varkey Joseph vs State of Kerala, 1993 Suppl. (3) SCC 745, the Hon'ble Supreme Court emphasized the need to ensure that suspicion does not get substituted in the place of proof. It was observed ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 29 of 49 Pages (30) that there is a long distance between "may be true" and "must be true"
and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.
41. In the case of State vs Paramjeet Singh & Ors., reported as MANU/DE/3582/2013 decided on 21.08.2013, the Hon'ble Delhi High Court observed thus:
"7. Another factor that needs to be examined by us while dealing with the charge of dowry death is the proximity between the time of demand of dowry and the time of death of the deceased. It is a settled principle of law that the demand of dowry to be covered under Section 304B of IPC, has to be made soon before death. It has been held that no definite interpretation can be given to the phrase "soon before death". It would be appropriate to reproduce the observations made by the Apex Court in the case of Satvir Singh vs State of Punjab, MANU/SC/ 0588/2001: (2001) 8 SCC 633, with respect to the phrase "soon before":
"21. Thus, there are three occasions related to dowry. One is before the marriage, second ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 30 of 49 Pages (31) is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry".
Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probabilities, have ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 31 of 49 Pages (32) been the aftermath of such cruelty or harassment.
In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to guage that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death." (underlined emphasis supplied)
42. In the case of Vipin Jaiswal vs State of AP Rep. by Pub. Prosecutor, (2013) 3SCC 684 it was observed as under:
"9....In our view, both the Trial Court and the High Court failed to appreciate that the demand, if at all made by the appellant on the deceased for purchasing a computer to start a business six months after the marriage, was not in connection with the marriage and was not really a 'dowry demand' within the meaning of Section 2 of the Dowry Prohibition Act, 1961.
10. This Court has held in Appasaheb & Anr. vs State ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 32 of 49 Pages (33) of Maharashtra (2007) 9 SCC 721:
"In view of the aforesaid definition of the word "dowry" and property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties in essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India vs Garware Nylons Ltd. AIR (1996) SC 3509 and Chemicals and Fibres of India vs Union of India, AIR (1997) SC
558)."
"11. In any case, to hold an accused guilty of both the offences under Sections 304B and 498A IPC, the prosecution is required to prove beyond reasonable ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 33 of 49 Pages (34) doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased......
16. ...In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A IPC and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused dowry death as defined in Section 304B IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment of cruelty, neither of the offences under Sections 498A and 304B IPC has been made out by the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 34 of 49 Pages (35) prosecution." (underlined emphasis supplied)
43. Falling back to the present case, as described above, prosecution has examined mainly the brothers and the sister of the deceased in order to bring home charge for offences under Section 498A/304B IPC. As also described above, none of the said witnesses deposed any specific allegation against the accused as regards dowry demand in the sense as to on which date or month or year and at which place what articles or amount of money for or in connection of marriage was demanded by the accused and from whom. All the said witnesses namely PW1 Mohd. Zubair, PW4 Shabina Khatoon and PW8 Tayyab Ali in their depositions made only general and broad allegations limited to the extent that the accused used to harass the deceased, demanding dowry.
44. As regards proximity between the death of the deceased and the alleged dowry torture, the only witness of the prosecution is PW4 Shabina Khatoon, who in her chief examination deposed that about three days prior to the incident, she brought the deceased home where the deceased told about repeated harassments for dowry and that the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 35 of 49 Pages (36) deceased had been beaten up by the accused even on that very day and that the accused used to earn Rs.10,000/ per month but gave to the deceased only Rs.2500/ per month for expenses; that she pacified the deceased, assuring to take up the matter with their brother and sent the deceased back home; that two days thereafter, the accused informed them about the hanging of the deceased.
45. As mentioned above, when PW4 Shabina Khatoon was confronted in cross examination with her previous statement Ex.PW4/A recorded before the Executive Magistrate, the said allegations were found not forming part of the same. The statement Ex.PW4/A of the said witness, recorded before the Executive Magistrate is only to the effect that on 09.08.12, the deceased met her and complained that her husband, the accused was earning Rs.10,000/ per month but gave for household expenses only Rs.2500/ to Rs.3000/ per month and on being questioned as regards household expenses, he abuses and beats her up. Further, in her statement Ex.PW4/A, Shabina Khatoon did not state before the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 36 of 49 Pages (37) Executive Magistrate that the deceased told her that the accused had beaten her up, as stated by her in her chief examination as PW4. What Shabina Khatoon stated before the Executive Magistrate in her statement Ex.PW4/A is that on that day she suspected that the deceased had been assaulted by the accused.
46. Hence, on this vital aspect pertaining to the proximity between the alleged dowry torture and death of the deceased, there are major improvements in the testimony of Shabina Khatoon.
47. Even PW1 Mohd. Zubair introduced substantial improvements in his testimony and on being confronted with his previous statement Ex.PW1/D recorded before the Executive Magistrate, the said allegations were found not mentioned. The allegation, as leveled by PW1 in his chief examination that on account of harassment by the accused, the deceased used to stay with her parental family for most of the time, was found not stated in his previous statement Ex.PW1/D recorded before the Executive Magistrate. Similarly, the statement of PW1 in his chief examination to ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 37 of 49 Pages (38) the effect that the deceased used to share her plight with Shabina Khatoon was found to be not recorded in his previous statement Ex.PW1/D recorded before the Executive Magistrate.
48. In the case of Nand Lal @ Nandu vs State, 2007 (2) JCC 1189, Hon'ble Delhi High Court dealt with the issue of reliability on improved statement of a prosecution witness and observed thus:
"In Dhanna vs State of Madhya Pradesh, 1996, Crl.L.J 3516, the Supreme Court accepted the view of the Trial Court to the effect that when a statement is made under Section 161 CrPC and that is improved upon at the trial, then a conviction for the offence of murder ought not to be made."
49. In the cases of Jagnarain Prasad vs the State of Bihar, 1998 (2) CC CASES 45 SC and Swaran Singh vs State of J&K, III (1998) CCR 139 SC also Hon'ble Supreme Court held it to be not safe to rely upon testimony of a witness who improves upon his statement made to ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 38 of 49 Pages (39) the police on vital aspects against the accused.
50. It is only Mohd. Tayyab Ali, examined as PW8 who was not confronted with his statement under Section 161 Cr.P.C. But even in his chief examination, PW8 did not put forth any specific allegation of dowry related harassment or torture or any evidence reflecting any proximity - be it in point of time or in point of conduct otherwise - between death of the deceased and harassment for dowry. Rather, contradicting his brother PW1, who had stated that for most of the times the deceased used to stay with her parental family on account of harassment meted out against her by the accused, Mohd. Tayyab Ali, in his cross examination as PW8, admitted that after the marriage, the deceased was residing at her matrimonial home.
51. As admitted by both the brothers and sister of the deceased, no complaint ever was lodged by them or by the deceased before any court or police or even any panchayat, alleging any misconduct on the part of the accused, which lends credence to the stand of the accused in his ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 39 of 49 Pages (40) statement under Section 313 Cr.P.C. and also in the suggestions extended to prosecution witnesses in cross examination that the deceased was happily residing with him.
52. Ex.PW1/D, statement of Mohd. Zubair, on the basis whereof FIR was registered and Ex.PW4/A, statement of Shabina Khatoon, which was recorded before the Executive Magistrate are the very first versions of the brother and sister of the deceased. But both these witnesses tried to insert substantial improvements in their versions while deposing during trial, as pointed out above. Besides that, in Ex.PW1/D and Ex.PW4/A, there is absolutely no mention of any dowry related or other dispute between the families of the deceased and the accused at the time of their marriage, which incident was for the first time, introduced during trial. The first version Ex.PW4/A of Shabina Khatoon recorded before the Executive Magistrate would rather show that the real dispute between the deceased and the accused was to the effect that out of his monthly earnings of Rs.10,000/, the accused used to give only Rs.2,500/ to the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 40 of 49 Pages (41) deceased. That cannot be considered as a dowry related harassment or a case of dowry death, as contemplated by Section 498A or Section 304B IPC in view of legal position discussed above.
53.1. The argument advanced on behalf of the State that at least as regards the day of marriage, the allegation of dowry torture is specific, also fails to stand the test of appreciation of evidence on record. As mentioned above, the alleged dispute of dowry demand and quarrel on the day of marriage is a total improvement as the same finds no mention in the first version Ex.PW1/D of Mohd. Zubair or the first version Ex.PW4/A of Shabina Khatoon.
53.2. As regards the said allegation, prosecution placed reliance on Urdu photocopies Ex.PW1/K, Ex.PW9/A, Ex.PW9/C and Ex.PW7/B with Ex.PW1/L and Ex.PW9/B being the Hindi translations of the panchayatnama. The case put forth by prosecution through its witnesses especially the village pradhan Upender Thakur is to the effect that on 18.12.08, at the time of marriage of the deceased, the accused and his ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 41 of 49 Pages (42) family demanded a gold ring and gold chain whereafter the accused hit the table which lead to a quarrel and intervention of the respectables, which lead to agreement Ex.PW1/L. 53.3. As regards the demand allegedly made on the day of marriage, there is a difference of versions of prosecution witnesses. As per PW7, Upender Thakur, the demand was of a gold chain and ring; as per PW8, Tayyab Ali, the demand was gold chain and Rs.50,000/ in cash; as per PW1, Mohd. Zubair and PW4, Shabina Khatoon, the said demand was a general demand of more dowry.
53.4. Further, as regards what happened at the time of marriage of the deceased with the accused, testimony of PW7 Upender Thakur cannot be read de hors the alleged panchayatnama that was executed after the alleged dispute between the bride side and the groom side got settled. Translation of the said panchayatnama is Ex.PW1/L, but the translator Mohd. Salem examined as PW9, specifically deposed that he never saw the original panchayatnama; the original panchayatnama never saw light ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 42 of 49 Pages (43) of the day and even during trial the same was not produced by prosecution.
53.5. Most importantly, keeping aside the technicality of mode of proof, I perused even the translation Ex.PW1/L. Even Ex.PW1/L is absolutely silent about any demand of dowry or even remote whisper about the same. As per Ex.PW1/L, during the meals on the day of marriage, "kuchh sirphiron ke karan bhojan ke samay marpit ki nobat aa gayi, jiske karan barati va mezban ke darmiyan becheni phel gayi" (on account of some miscreants, during the meals there was a quarrel which brought about unrest amongst the bride side and the groom side). Thence, even as regards the day of marriage, there is no reliable evidence to show that the accused or even his family raised any demand of dowry.
54. Further, PW3 Abdul Gafur is prosecution's own witness, who stated specifically in his chief examination itself that he never heard and never saw any quarrel between the accused and the deceased, who were residing in one of the rooms of his house as tenant. Despite such a ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 43 of 49 Pages (44) statement of an independent public witness in his chief examination, prosecution opted not to challenge his testimony by seeking opportunity to cross examine him. PW3 Abdul Gafur was the person living in the same house and if compared in terms of the distance, he was closer to the deceased and the accused as compared to PW1 and PW4. Such a witness, deposing specifically in chief examination that he did not witness any quarrel and such statement having gone unrebutted by way of absence of cross examination request, the entire prosecution case must fall.
55. As regards charge for offence under Section 302 IPC also, there is no evidence connecting the accused with the occurrence. The only material of possible homicide in this case was presence of blood on the spot and bleeding from nose and mouth of the deceased. But as described above, the forensic expert PW2 who had conducted the postmortem, specifically stated in cross examination that bleeding from nose and mouth and all orifices is possible even after death and that no external ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 44 of 49 Pages (45) injuries except the ligature mark were found on the dead body. Most importantly, even as per prosecution case, especially the testimony of PW3 Abdul Gafur, at the time of hanging of the deceased, the accused was not present at home and subsequently when PW3 reached the spot, he found his son and the accused knocking at the door of the ill fated room which was bolted from inside and the door was broken open after the police arrived.
56. In Narender Singh Arora vs State, 2010 (173) DLT 244, the Hon'ble Delhi High Court noted that whenever a woman dies an unnatural death within seven years of her marriage at inlaws' house, whatever be the cause of death, the parents of the deceased want the in laws to be hanged. The Hon'ble High Court observed that truth is losing significance because of the ego of the litigants to see that inlaws should be hanged and that normally inlaws are convicted on the testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 45 of 49 Pages (46) suicide for any other reason. The testimony given by the complainant in such cases is not a normal testimony. As cautioned by the Hon'ble Delhi High Court, the deceased's father and other family members who depose in the court testify after the death of their daughter and their testimony is coloured with the loss they suffered due to sudden death of the daughter, little realizing that she committed suicide not because of dowry demands but could be because of her fragile and sensitive nature. The Hon'ble Court further observed that suicide is a known phenomenon of human nature and suicides are committed by living human beings for various reasons, some are not able to bear the normal stresses which are common in life; some are not able to cope up with the circumstances in which they are placed; and some commit suicide because of frustration of not achieving the desired goals; there are many cases where students commit suicide because they failed to achieve certain percentage of marks; some commit suicide because they are not able to retain top position; some commit suicide because they are not able to cope with the demands ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 46 of 49 Pages (47) of life; some commit suicide because they suffer sudden loss; some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her inlaws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her inlaws.
57. Prosecution in the present case has failed to establish not just a complete chain of circumstances pertaining to the allegation that the deceased Afroza Khatoon was meted with any harassment or cruelty by the accused for or in connection with any dowry demand soon before her death, even the circumstances to reflect any cruelty inflicted upon the deceased Afroza by the accused in the manner as alleged, tried to be established could not be cogently and firmly so established by the ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 47 of 49 Pages (48) prosecution. At the same time, as described above, there is also no evidence that death of the deceased was a homicide, caused by the accused.
58. It is indeed sad that such an unfortunate death of a lady is going unpunished. But as described above, courts have to be phlegm to emotions while deciding whether prosecution has been able to walk through the distance between "may be true" and "must be true". Prosecution has failed to prove beyond reasonable doubt that the accused subjected the deceased to any cruelty, as contemplated in Section 498A IPC or that the accused subjected the deceased to any cruelty or harassment for or in connection with any dowry demand soon before her death, as contemplated in Section 304B IPC. Prosecution has also not been able to establish that death of the deceased was caused by the accused, as contemplated by Section 302 IPC.
59. Consequently, the accused is held not guilty of the charges framed against him and is acquitted. Bail bond is canceled. Surety is discharged. ___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 48 of 49 Pages (49) Accused Mohd. Fateh is in judicial custody and if not required in any other case, accused be immediately released. File be consigned to records.
Announced in the open court (GIRISH KATHPALIA)
on 15.03.2014 ADDITIONAL SESSIONS JUDGE05
SOUTH EAST, SAKET
NEW DELHI
___________________________________________________________________ State vs. Mohd. Fateh SC No. 29/14 Page 49 of 49 Pages