Delhi District Court
State vs . 1. Amroz Ali S/O Sh Nathu Ali on 24 August, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 28/10
Computer ID No. 02403R0242112010
State Vs. 1. Amroz Ali S/o Sh Nathu Ali
R/o H16/728,
Sangam Vihar,
New Delhi.
2. Afroz Ali S/o Sh Nathu Ali
R/o H16/728,
Sangam Vihar,
New Delhi.
3. Nathu Ali S/o Chhotu Ali
R/o H16/728,
Sangam Vihar,
New Delhi.
FIR No : 326/09
P.S. : Sangam Vihar
U/s. : 498A/306/34 IPC
DATE OF INSTITUTION : 21.09.2010 (Initial date of
Institution: 24.07.2010)
JUDGMENT RESERVED ON : 18.08.2012
DATE OF DECISION : 24.08.2012
State Vs. Amroz Ali etc., SC No. 28/10, (pg-1 of 43)
JUDGMENT:
1. Prosecution case in brief is that on receiving DD No. 17 at around 12:15 pm on 30.06.2009 SI Om Prakash alongwith Ct. Gopal and SHO reached Kabristan New Delhi and found inlaws of deceased Shamsheeda trying to bury her and on inspection found ligature marks on her neck. Then after taking photographs of dead body it was sent for postmortem at AIIMS mortuary. Further, inquest proceeding were conducted by SI Om Prakash and the said DD kept pending for inquiry.
2. SI Om Prakash further inspected the spot and made inquires from eye witnesses Smt. Shanti and one Jakir and recorded their statement. During inquiry dead body was identified by the deceased father Shabbir Ahmed and his cousin brother Fakir Ahmed. As per postmortem report doctor opined the cause of death as asphyxia due to antemortem injuries caused by ligature.
3. However, as no FIR was registered, a complaint u/s 156(3) Cr.P.C filed by Sh. Shabbir Ahmed father of the deceased, then on direction of Ld. MM, FIR u/s 498 A/304 B/34 IPC was registered.
4. The contents in brief of the said complaint is that the complainant Shabbir Ahmed married his deceased daughter Shamsheeda Khatoon with Amroz Ali on 07.11.97. It is further alleged in the said complaint that in the marriage of his younger daughter he had given 25 sq yards plots, thereafter same demand was also raised by accused Amroz Ali, Afroz Ali and Nathu Ali and mother in law of the deceased. And on State Vs. Amroz Ali etc., SC No. 28/10, (pg-2 of 43) 29.06.09 at around 10:30 pm a neighboring boy namely Jahangir came and told Shamsheeda has expired and thereafter complainant called Amroz Ali who stated that she was serious and was taken to Safdarjung Hospital, when he alongwith his other relatives going towards Safdarjung Hospital they again received a call from Amroz Ali that there is no need to reach Sardarjung Hospital as she already died. Further, deceased Shamsheeda was found brought dead at Safdarjung emergency.
5. It is further alleged that on 30.06.2009 while bathing dead body they noticed scars of fresh injuries upon the body of deceased and blood was oozing from nose, mouth and back side of the deceased and there were blue scars on the throat of the deceased, but despite their resistance accused took the deceased for burial and thereafter they informed police and police took the dead body in their possession.
6. It is further alleged in the complaint that Allauddin son of the deceased told that deceased were beaten by his father, grand father and uncle, who were also trying to kill him but saved by her grand mother. On further inquiry he revealed that deceased was beaten with stick by grand father, uncle and father. His uncle and father repeatedly collided her head with wall and she cried of pain, then his father caught hold the hands of his mother while pressing her mouth and uncle strangulated the throat of his mother, thereafter all these person hanged her on taand with the help of rope.
7. He further alleged in the said complaint that on 01.7.2009 after State Vs. Amroz Ali etc., SC No. 28/10, (pg-3 of 43) completion of postmortem, wife of the complainant told to the police that her deceased daughter told her that accused husband was having extra martial relation with another girl and on performing nikaha with her, they will get the plot from her father but as deceased did not allow them marriage, therefore, murdered their daughter. It is further alleged that despite recording of their statement police did not register the case and asked for some neighboring witnesses and further IO and SHO used to say that deceased was not murdered but as per doctor's opinion she committed suicide.
8. During investigation, IO Om Prakash recorded the statement of eye witness Smt. Shanti and Jakir Hussain. On 03.09.2009 at the instance of complainant Shabir Ahmed prepared site plan and also recorded his statement. Subsequent medical opinion was also sought over the cause of death and it was opined by the doctor that as per ligature hanging this is a case of suicide unless proved otherwise.
9. During investigating statement of Master Allauddin (son), Noor Jahan (mother) of the deceased, Shabbir Ahmed (father), Shakaut Ali (chacha) of the deceased recorded. Statement of master Alluddin was also recorded u/s 164 Cr. P.C. by Metropolitan Magistrate and in that statement Master Allauddin stated that deceased was beaten by accused Amroz Ali, Afroz Ali and Nathu Ali and thereafter she was strangulated and hanged with the fan (pankha).
10. However, as per the statement of Smt Shanti and Jakir Hussain the deceased locked herself inside room and the door of the said room was State Vs. Amroz Ali etc., SC No. 28/10, (pg-4 of 43) broke open by Amroz Ali by using force of his legs and they found deceased hanging from the iron angle. Accused Amroz Ali, Afroz Ali and Nathu Ali were arrested in the case. Police not relied on statement of Allauddin thus not filed chargesheet u/s 302 IPC. But relying on statement of PW5, PW6 and medical evidence, after completion of investigation filed charge sheet u/s 498 A/306/34 IPC .
11. On committal charges u/s. 498A/306/34 IPC were framed against accused Amroz Ali, Afroz ali and Nathu Ali. Prosecution for substantiating charge examined 18 prosecution witnesses summary details their deposition are as under.
Deposition of eye witnesses PW5 Shanti and PW6 Zakir Hussain:
12. PW5 Ms. Shanti deposed that 1 ½ years ago she was living as tenant in the house of Nathu Ali and at around 8.008.30 pm she had gone on the first floor to drink water and saw Amroz Ali knocking the door and told his wife is not opening the door and closed same from inside and the room was broke open by him and they saw Shamsheeda was hanging on the taand with a Chunni and other family members also came and Shamsheeda was taken to hospital. In crossexamination she stated that she was tenant in the house of Amroz Ali and running a small clinic in house of Amroz Ali and used to open it from 9.00 am to 9.00 pm and she used to quite often go on the first floor of the house and never seen Amroz Ali or any family member fighting with deceased, Shamsheeda used to suffer fits at times and in that condition she used to remove her State Vs. Amroz Ali etc., SC No. 28/10, (pg-5 of 43) clothes and also used to urinate in the clothes. She further stated that once she saw pressing the neck of his daughter who was six months old and she used to do these acts under fits.
13. PW6 Zakir Hussain deposed that on 29.06.2009 he was searching a room for himself and at around 8.30 pm Nathu Ali told him that one room was vacant at his house and at that time there was no light and asked him to come on the terrace and told that he can see the room when light will come back. He further deposed that he went on terrace and Nathu Ali offered dinner but he refused. Then Amroz ali asked his wife in loud voice to sent water no response was there. Amroz Ali starts knocking the door for opening the door. Thereafter the said door was broken and then he and Nathu Ali came down and saw Shamsheeda hanging with the chunni with the angle of taand. She was removed and given water but she did not respond and immediately taken to hospital. Deposition of PW3 Noor Jahan (mother), PW4 Master Allauddin (son), PW7 Shabbir Ahmed (father) and PW8 Shokat Ali (Chacha) of deceased Shamsheeda:
14. PW3 Noorjahan deposed that her daughter married to Amroz Ali 13 years prior to the incident and have given birth to a boy and one baby child. She further deposed that her daughter Shamsheeda was pressurized for dowry and accused used to demand piece of land and other things at other occasions. She further deposed that 2 years back her neighbour informed that her daughter died and when made inquiries State Vs. Amroz Ali etc., SC No. 28/10, (pg-6 of 43) from accused persons on telephone, they stated that she was in hospital, however when they were on the way to hospital accused persons told them that her daughter got died and asked them not to come to the hospital thereafter they reached Safdarjang hospital and found accused persons coming on threewheeler along with dead body and then they went along with them at their house at Sangam Vihar. She further deposed that in the morning she along with family came to Sangam Vihar and when dead body was washed and brought out, she was not allowed to see the face of her daughter, only, after insistence she saw her face and found some marks on her neck and her daughter son Allauddin told her mother was not died but killed by accused persons. Accused persons hurriedly lifted the body at 12.00 noon and taken towards Kabristan whereas per Muslim Rights the body is to be taken after 2.00 pm. She further deposed that thereafter she made call to 100 number, police came and dead body was taken to Safdarjang hospital for postmortem.
15. In cross examination she deposed that deceased Shamsheeda was her eldest daughter and not suffering from epilepsy though confronted with her statement u/s. 161 Cr. P.C. where it is so recorded. She further deposed that inlaws sometime used to demand lot of money. She further deposed that at the time of birth of the elder son, they incurred expenses of Rs. 90000/ but she do not have bill, as all bill were taken by the accused family. At the time of birth of daughter they spent around Rs. 5000/ to Rs.7000/. She further deposed that her husband is a labour State Vs. Amroz Ali etc., SC No. 28/10, (pg-7 of 43) and they have five children, three out of them are married and two are unmarried. She further deposed that most of the time they used to demand dowry and money. She further deposed that according to Muslim Law burial could not be performed between the 12.0002.00 in noon, she further deposed that she had seen injury mark on her head also. She however denied suggestions that they falsely implicated accused because they wanted to marry their second daughter with Afroz Ali. She further deposed that at the time of marriage there was no demand of dowry, however, they had given a plot of 25 sq. yds. in the marriage of her younger daughter Samida. She further deposed it is correct that they did not stay with the dead body of their deceased daughter on that night as their house was at a walking distance from the house of the accused persons.
16. PW4 Master Allauddin son of accused Amroz Ali aged around 10 years deposed that in June or July year he did not remember. On that day he was at his home and all the relatives of his chachi came to their house and in that meeting some quarrel took place. He further deposed that he do not know the name of those persons who came to meet and when those persons left quarrel took place between his Dada and Dadi, thereafter his Chacha and Dada. He further deposed that on Monday when his father Amroz Ali came quarrel again taken place with his mother. He further deposed that quarrel took place between his mother and Chachi thereafter his mother went down stairs and sat on rickshaw. He further deposed that thereafter his Dada told his father to bring his State Vs. Amroz Ali etc., SC No. 28/10, (pg-8 of 43) mother upstairs, thereafter his father hit the head of his mother against the wall, then his Bua and Chachi went down stairs and closed the door so that nobody could come inside. He further deposed that thereafter his Dadi snatched his sister from his mother, then his father hit his mother with danda and she fell down and got unconscious. He further deposed thereafter that his father lifted his mother and kept her on bed and his youngest uncle caught hold him, therefore, he cannot tell the incident to anybody. He further deposed that his dada caught hold of her legs and his chacha caught hold of her hands and his father pressed the neck of his mother. He further deposed that chacha told his father to leave, then chacha pressed her neck then hanged her with ceiling with support of duptta. Thereafter, his mother was brought down, then chacha hit his mother by kicks on her stomach thereafter blood started oozing from the stomach of his mother. Thereafter, they called dada, bua and chachi who had cleared the blood stains by chadder in Tasla. He further deposed that Dadi had taken out the cloths of her mother and wore new cloths to his mother then they took their mother to hospital.
17. In cross examination deposed that he had given the statement before the magistrate that he did not go to school and presently staying at the house of Mama and in mama house there is Nana, Nani, Bade Mama and children of Mama and they use to go school. He further deposed that he can not tell the day when his mother got died and on that day there was no electricity in the house and he was going to the roof and no guests had come in the house, he further deposed that on the ground floor State Vs. Amroz Ali etc., SC No. 28/10, (pg-9 of 43) tenants were residing but he do not know the name of the tenants he further deposed that at the time of death his mother was on the middle floor and after the death of his mother, police came made inquiries from him in the police station. He further deposed that he had not told the police that his mummy and Dadi loves him and mummy and papa used to love each other, however, confronted with statement u/s. 161 Cr.P.C. He was further confronted with statement given to the police where he stated that his papa was outside the room and he was trying to open the room by legs when door was opened his mother was on bed and his father sprinkled water over his mother to make her mother conscious thereafter his dada and chacha came down stairs and then took took his mother to the hospital. He was further confronted with his statement given to the magistrate over the factum of meeting of the relatives further he was also confronted with quarrel between the dada and dadi and also confronted with the quarrel with between his mother and chachi and father hit head of his mother on the wall, he was also confronted with the fact that father hit the mother with Danda therefore his mother fell down and got unconscious, he was further confronted with the fact that his father lifted his mother and put her on the bed. He was also confronted with the fact that Dada caught hold legs of his mother and chacha caught hold of hands of his mother and father had pressed her neck. He was also confronted with the fact that his chacha hit his mother with legs on her stomach and thereafter blood starting oozing out from the stomach of his mother. He was also confronted with the fact that State Vs. Amroz Ali etc., SC No. 28/10, (pg-10 of 43) dada, bua and chachi had cleared the blood stains by chaddar he further deposed that it is correct that there is lady Doctor namely Shanti having a shop on the ground floor and denied suggestion that his mother used to remain ill and was occasionally suffering fits and become unconscious. He further denied suggestion that on that day when mother died he was on the roof of the house along with his Dada, Dadi, Chacha and Chachi and had not seen anything.
18. PW7 Shabbir Ahmed deposed that on 29.06.2009 he received a message that her daughter Shamsheeda had died through his neighbour Jahangir. Her marriage was solemnized with Amroz Ali 13 years back with Muslim rights. He further deposed that till the marriage of younger daughter Shamida, the married life of his daughter was going well. They had given a plot of 25 sq. yds. in the marriage of younger daughter Shamida inlaws and husband of Shamsheeda also started demanding one plot, then inlaws and their family members starting beating her daughter for demand of plot and further deposed that they had not given and expenses at the time of birth of children and use to harass her daughter. He further deposed that they had taken deceased to Safdarjung Hospital on the pretext that she was ill and thereafter when they reached Safdarjang Hospital she was found dead. He further deposed that when body was washed her wife seen the marks on the neck of his daughter. He further deposed that when they reached hospital they found her dead and doctor told in the hospital that she was brought dead in the hospital and dead body was brought back to the State Vs. Amroz Ali etc., SC No. 28/10, (pg-11 of 43) matrimonial house, when they wanted to see her face they were obstructed and taken the dead body to Kabristan at 12 O'clock against customs then their relatives called police, police came at Kabristan and took photographs of the dead body, taken it to AIIMS mortuary. He further deposed that in PS SHO met them and sent him to Om Prakash. He told him to bring the rope from which she was strangulated and clothes which she was wearing at that time of death alongwith one witness. Then the police told them to give back the child to the father but they had taken the child alongwith them at their house. He further deposed that the identification statement of deceased was recorded on 01.07.2009 and after postmortem dead body was handed over to them. IO had taken his signatures on some blank, also recorded his statement and police had not taken any action therefore they filed a complaint and also made complaint to DCP and pursuant to this case was registered.
19. In his cross examination deposed that he used to work of stone grinding (Ghisai) and residing in Delhi for the last 40 years and have two sons and three daughters including Shamsheeda. He further deposed that after getting the information on the same day they went to Sardarjang hospital but doctor had not told him any reason of the death of Shamsheeda and just stated that she was brought dead. At that time he could not see any injury on the face of Shamsheeda but later on had seen the injuries on the back side of head in the morning. He further deposed that he had seen the deceased in the Gallery of hospital but there was dark in the Gallery and just glanced through her face. He further State Vs. Amroz Ali etc., SC No. 28/10, (pg-12 of 43) deposed that he cannot tell whether deceased was taken in emergency ward or OPD ward and further denied suggestions that there was no light in the Gallery he further deposed that deceased was covered with the chaddar in the hospital and thereafter accused persons had taken deceased Shamsheeda at their house and they all come back to their house, he further deposed that they again went to the house of accused persons at around 7.308.00 am in the morning. He further deposed that at that time he had not seen the dead body of his daughter as they were bathing the dead body of deceased Shamsheeda. He further deposed that as soon as they reached the their house Gulshan Bano went inside at the time of bathing of dead body and she told that there are injury marks on the head of the deceased as well as ligature marks on the neck. At that time they had not called the police and police was called at Kabristan by Wasim on 30.06.2009 at 12.28 pm prior to that nobody had called the police. He further deposed that police came on call and police officials of PS Sangam Vihar also came at Kabristan. He further deposed that at that time he had not told anything to police about the harassment given by the accused to deceased Shamsheeda and they come back from the hospital at around 55.30 pm in the evening. He further deposed that Om Prakash heard their statement and stated that from their statement no case is made out thereafter taken the signatures on 2 or 3 blank papers and stated that he will be prepare his statement later on and on the next day police had not shown his statement, thereafter they complained to SHO, who told them to go to Om Prakash. Thereafter, they went to ACP State Vs. Amroz Ali etc., SC No. 28/10, (pg-13 of 43) and DCP but not allowed to meet them, however not made any written complaint in this regard. He further confronted with Ex.PW7/C where it is not recorded that the accused persons used to beat his daughter, he further stated that complaint Ex.PW7/C was prepared by the counsel and further deposed that he had not stated in the complaint that accused persons had concealed Allauddin and also stated in complaint that the child was found on the roof but duly confronted with the complaint Ex. PW7/C. He further deposed that at around 11.00 am on the day when the dead body was given bath Allauddin was brought from the roof by his wife where he was concealed and he further deposed that the younger daughter of deceased Shamsheeda was not taken by him in his possession at that time.
20. He further deposed that daughter of deceased Shamsheeda is in the custody of accused family and further denied suggestions deceased was suffering from epileptic fits and also denied suggestions that she was treated in Jeewan hospital for epilepsy but he cannot tell whether Shamsheeda was treated in AIIMS in July, 2001 and had no knowledge of medical papers mark Ex.PW7/DB having two pages. He further denied suggestion that she was treated in Jeewan hospital and have no knowledge of medical papers mark Ex. PW7/DC. He further deposed that he had no knowledge of her daughter remained hospitalized in Safdarjung hospital from 29.04.2002 to 02.05.2002. He further denied suggestions that she was suffering from epilepsy fits when she was admitted for delivery of her daughter in Safdarjung hospital from State Vs. Amroz Ali etc., SC No. 28/10, (pg-14 of 43) 22.11.2007 to 27.11.2007 and he further deposed that Amroz has illicit relations with sister in law (salli) of Afroz but cannot tell that he had seen both together. He further denied suggestion that she was suffering from epilepsy fits.
21. PW8 Shokat Ali deposed that deceased Shamsheeda married to accused Amroz Ali around 13 years back. He further deposed that after the marriage of Samida, younger daughter of his brother Shabbir Ahmed the accused persons harassed and demanded a plot of 25 sq.yds from deceased Shamsheeda and Shamsheeda used to be beaten in matrimonial house by the inlaws and husband. He further deposed that they several time beaten, inflicted cruelty both physically and mentally to his daughter. He further deposed that on 29.06.2009 he came to know that Shamsheeda had died and went to the house of accused persons and they forced for early burial of deceased against customary rituals. He further deposed that Gulashan Bano disclosed that she found some marks on the neck and also disclosed the fact with them and on this they doubted that she was killed by accused persons. He further deposed that his niece Shamsheeda had told him that if her inlaws will not receive the plot of 25 sq. yds. they will kill her. He further deposed that he had seen one injury on the head of the deceased and postmortem of the dead body was handed over to them for burial on 01.07.2009.
22. In cross examination deposed that he cannot tell the year when first and second child of Shamsheeda were born and do not know the name of the husband of Samida sister of deceased Shamsheeda. Samida resides in State Vs. Amroz Ali etc., SC No. 28/10, (pg-15 of 43) Village Dhosri near Shikarpur, Distt. Bulandshehar and he do not know what articles were given to her marriage. He further deposed that he got the knowledge Shamsheeda had expired in the morning and told by Praveen mami of the deceased, he further deposed that after getting the knowledge of the death of Shamsheeda, he along with his wife Nazma went to house of accused. Further deposed that Shamsheeda was never sick and did not suffer from any fits as per his knowledge. He further deposed that police had recorded statement when he went to get the body and thereafter never met the police. He deposed that he had not told the police that deceased Shamsheeda used to gets fits confronted with the statement which mark A to A and further deposed that he had not stated to police that Shamsheeda was used to beaten and harassed by his matrimonial house. He further deposed that he had not told to the police that Shamsheeda used to be harassed for 25 sq. yds. plot and deposed that he went to the house of his brother one month prior to the incident and at that time Shamsheeda was not at his house. He further deposed that he met Shamsheeda 1 ¼ months prior to the incident in a marriage in their street.
Deposition of police officials, doctor and other witnesses:
23. PW1 Ajay Kumar deposed that he is running photographer shop at D Puri and on 30.06.2009 he had gone for lunch and his cousin Chaudhary was present at the shop who took photographs of the dead body in tempo brought in front of the shop by the police but due to technical problem no photographs could be developed and handed over the State Vs. Amroz Ali etc., SC No. 28/10, (pg-16 of 43) memory card to the police.
24. PW2 ASI Sanjay kumar deposed that on 01.09.2009 on the direction of SHO registered FIR over complaint u/s. 156 (3) Cr.P.C.
25. PW8 Mohd. Nasir deposed that on 09.01.2010 he was working as a photographer and at the instance of IO reached Sangam Vihar where he took 6 photographs by Digital Camera and after that same handed over to IO. In the cross examination he stated that no CD of the photographs taken through Digital Camera was prepared and not issued any receipt of money received for the photographs. PW10 Sahil Chaudhary deposed that on 30.06.2009 when he was working as photographer at Muskan Studio, at around 02.30 p.m. at the instance of police he had taken several photographs of the dead body but print of same could not be taken out due to some technical fault.
26. PW11 Ct. Gopal deposed that on 30.06.2009 he alongwith ASI Om Prakash reached the spot and therein they made inquiries and they found deceased Shamsheeda had committed suicide and they came to know that Shamsheeda was taken for burial thereafter they reached burial ground and dead body was taken into possession by IO at the direction of SHO and was sent to mortuary and photographs of the dead body were taken at Muskan Studio. In his cross examination he deposed that call was received at about 12.30 pm and first they went to the house of accused persons and no statement was recorded at the house. At burial ground there were number of public persons. He further deposed that father and brother of the deceased were present at the burial ground State Vs. Amroz Ali etc., SC No. 28/10, (pg-17 of 43) but they were not interrogated. He further stated that he had not seen any sign of injury on the head or stomach of the dead body. He further deposed that on 01.07.2009 statement of Shabbir and cousin of deceased was recorded by IO and at that time he had not heard them making any grievance to the IO.
27. PW12 SI Om Prakash deposed that on on 30.06.2009 on receiving DD no. 17A he along with SHO Ct. Ram Gopal reached spot and thereafter to Kabristan and found some marks on the neck of the dead body and had taken dead body to AIIMS hospital, in the meanwhile at market took photographs of the dead body. He further deposed that they had came back to PS, he recorded the statement of Shabbir Ali. On 01.07.2009 he went to AIIMS and postmortem was conducted and was directed at the time of hearing of bail application to bring the subsequent opinion of doctor whether the case was suicidal or homicidal. He took opinion on 08.07.2009 and produced the same in the court on 09.07.2009 and on that date court directed him to give 3 days notice accused in case they are required arrested and further the matter was fixed for 20.07.2009 and on that day the court had directed him to deposit the case file in the court and he was returned back the file on 25.10.2009. he further deposed that on 01.09.2009 he was handed over the application u/s 156(3) Cr.P.C. with order for registration of FIR and after registration of FIR he recorded statement of Shanti and Zakir Hussian on 02.09.2009.
28. In cross examination he deposed that he received the information at around 12.30 pm on 30.06.2009 and in Kabristan on physical State Vs. Amroz Ali etc., SC No. 28/10, (pg-18 of 43) examination of body except the ligature marks on the neck and found no other sign of injury either on head or any other part of the body. He further stated that he has recorded the statement of Shabbir and Noorjahan on 30.06.2009 but that was not found on court file and further stated that he had recorded the statement of Shanti and Zakir Hussain on 30.06.2009 same were Ex. PW12/DA and Ex. PW12/DB. In further cross examination deposed that he made inquiries from one Shanti and Zakir Hussain and also inquired from the relatives of accused persons but nothing was complaint about maltreatment to Shamsheeda by accused persons. He further deposed that relatives also told that Shamsheeda was suffering from fits and under treatment. He further deposed that accused persons also handed over him the copy of treatment of Shamsheeda prior to incident which he placed on the police file. He further deposed that in statement PW Shanti also told that prior to incident deceased Shamsheeda tried to commit suicide and also tried to press the neck of the child. He further deposed that complainant party had made complaint against him and allegations were levelled by complainant party found incorrect, however he was censured by Addl. DCP.
29. On reexamination by Ld. Addl. P.P. on some other material facts he deposed that he recorded the statement of Zakir and Shanti on 30.06.2009 and on 01.07.2009 he prepared inquest papers for postmortem of deceased and also recorded the statement of identification of dead body. He further deposed that on 03.09.2009 he State Vs. Amroz Ali etc., SC No. 28/10, (pg-19 of 43) prepared site plan of the spot at the instance of Shabbir Ahmed and also recorded his statement. In further cross examination deposed that child Allauddin was with the complainant and they brought the child in court on 05.10.2009 and it might be possible that when the child produced in the court for recording statement u/s. 164 Cr.P.C. he was already tutored by complainant party. He further deposed that he found no injury mark on the head of deceased.
30. PW13 HC Rakesh deposed that on 22.03.2010 accused persons Amroz Ali, Afroz Ali and Nathu Ali surrendered themselves thereafter they are interrogated and arrested by IO and their disclosure statement was also recorded. PW14 Ct. Meendya Ram also deposed on the same lines.
31. PW15 Dr. Shiva Prasad deposed that on 11.07.2009 he conducted postmortem of deceased and found an oblique ligature mark brownish in colour present over anterior neck and no other injury was present on the body and given subsequent opinion that ligature injury always suicidal in nature unless proved otherwise. In cross examination deposed that there was no sign of any other injury like beating only ligature mark injury was present on the body. The further deposed that there is a difference when neck is pressed by hand or by pressing of neck by hanging with help of chunni and in present case ligature mark was found to be due to hanging with chunni and rope and not due to pressing of neck by hands.
32. PW16 J.D. Meena deposed that on 16.11.2009 he was entrusted with further investigation and on 04.12.2009 he inspected the spot but State Vs. Amroz Ali etc., SC No. 28/10, (pg-20 of 43) accused persons were not found. On 17.12.2009 he called eye witnesses and recorded supplementary statement and on 22.12.2009 he re examined Shanti, further on 07.01.2010 he obtained the NBW against all accused. He further deposed that he called one photographer namely Nasir on 09.01.2010 and took the photographs of the spot at first floor after braking locks. All the accused persons surrendered before court on 22.03.2010 and thereafter they were arrested and disclosure statements were recorded. He further deposed that on 23.04.2010 he obtained CDR of phone number 9891384337 from 29.06.2009 to 30.06.2009 and also obtained PCR forms, further recorded the supplementary statement of complainant.
33. In cross examination deposed that on 14.12.2009 he visited the spot and found mother of accused and other occupants in the house and further there is no recovery pursuant to the disclosure statement of accused persons and witness Zakir and Shanti gave same statement as given to previous IO.
34. PW17 Lady Ct. Munesh Dangi deposed that on 19.03.2010 she accompanied IO for conducting proceedings u/s. 83 Cr.P.C. PW18 Shri Munish Markan, Metropolitan Magistrate deposed that he recorded the statement of master Allaudin, aged around 7 years u/s. 164 Cr.P.C. In cross examination deposed that he found that child was making the statement without any hesitation and in normal manner and he cannot say that if he asked any question regarding the stay of child before recording of the statement and also denied suggestion that the State Vs. Amroz Ali etc., SC No. 28/10, (pg-21 of 43) was being tutored by his nana and other relatives.
35. In statement u/s. 313 Cr.P.C. All accused persons denied incriminating circumstances put to them. Accused Amroz Ali stated that deceased was suffering from various diseases and also suffering from fits and in the state of fits she used to be violent and was treated at Safdarjung hospital, however, none of the accused persons opted to lead defence evidence.
Material Exhibits:
36. Ex.PW2/A is FIR registered u/s 498A/304B/34 IPC on 01.09.2009. Ex.PW2/B is endorsement for registration of FIR in compliance to order dated 20.08.2009 passed by Ld. Metropolitan Magistrate with direction of registration of FIR. Ex.PW7/C is a complaint u/s 200 Cr.P.C filed by complainant Shabbir Ahmed in the court of Chief Metropolitan Magistrate alongwith application for registration of FIR u/s 156(3) Cr.P.C. Ex.PW7/D is the complaint lodged before DCP on 01.08.2009 by complainant Shabbir Ahmed.
37. Ex.PW11/A DD no.17A dated 30.06.2009 recorded at PS at around 12.30pm regarding death of one lady Ex. PW12/A is site plan of the spot. Ex.PW8/P1 to Ex.PW8/P6 photographs of the place of occurrence taken on 09.01.2010. Ex.PW12/C is the inquest report. ExPW11/B is the application for keeping the dead body in AIIMS mortuary. Ex.PW12/DA and Ex.PW12/DB are statements of Smt. Shanti and Zakir Hussain recorded by IO Om Parkash on 30.06.2009.
State Vs. Amroz Ali etc., SC No. 28/10, (pg-22 of 43) Ex.PW15/A is the postmortem report and as per postmortem report cause of death is asphyxia due to ante mortem hanging caused by ligature. Ex.PW15/B is subsequent opinion given by Dr. Shiva Prasad that ligature hanging is almost always suicidal in nature unless proved otherwise and homicide is rare and it is prerogative of IO to take a final view based on circumstantial evidence. Ex.PW13/G , Ex.PW13/H and Ex.PW13/J are disclosure statements recorded by IO of accused persons. Ex.PW16/A is the seizure of memory card from PW Ajay Kumar of the photographs taken on 30.06.09, however a technical fault was found in memory card therefore no photographs could be taken. Ex.P1 is the memory card. Ex.PW16/A is the PCR control form regarding information of death of deceased Shamsheeda on 30.06.2009. Ex.PW16/B and Ex.PW16/C are the call details and application form of mobile connection of one Wasim who informed police on 100 number on 30.06.2009 Ex.PW13/A, Ex. PW13/B and Ex. PW13/C are arrest memos of accused persons. Ex. PW13/D, Ex.PW13/E and Ex.PW13/F are personal search memos of accused persons. Ex.PW4/A is the statement of Master Allauddin recorded by Metropolitan Magistrate on 05.10.2009. Mark PW7/DB , Mark PW7/DC, Mark PW7/DD are medical record of deceased Shamsheeda regarding her treatment of epilepsy fits and other diseases of the year 2001 and 2007. Ex.PW12/DA is the censure order passed against IO Om Parkash.
38. Ld. counsel for the accused from DLSA submitted that PW5 and PW6 State Vs. Amroz Ali etc., SC No. 28/10, (pg-23 of 43) independent eye witnesses have categorically deposed that deceased Shamsheeda had committed suicide and their version is duly corroborated by testimony of PW15 Dr. Shiva Prasad who conducted postmortem of dead body, categorically stated that the present case is of ligature hanging and it is almost always suicidal in nature. Ld. Counsel further submits that PW15 stated that injuries suffered by deceased could not be possible due to pressing of neck by hands. Ld. Counsel further submits that PW4 Allauddin had stated that deceased was inflicted with head injuries by collision with walls and dandas and further with kick injuries on stomach due to which lot of blood came out but no such injury was found in postmortem report . Ld. Counsel further submits that PW15 categorically deposed that no other injuries noticed except the ligature injuries. Ld. Counsel submits that this itself shows that PW4 Allauddin is a tutored and fabricated witness.
39. Ld. counsel further submits that PW4 has given 3 different versions. His version in 161 and 164 cr.P.C and in court are all different. Ld. Counsel further submits that bare perusal of his testimony shows this witness is not stating truth. Ld. Counsel further submits that during initial investigation neither PW7 nor PW8 stated anything to the police about the harassment and beating caused by the in laws. Ld.counsel submits that PW8 categorically in cross examination stated that he had not stated the factum of beating, harassment or demand of plot to the police in his statement. Ld.counsel further submitted that PW8 even in his deposition before the court had not stated that PW4 Allauddin told them about the State Vs. Amroz Ali etc., SC No. 28/10, (pg-24 of 43) killing of his mother by accused persons and other family members. Ld. counsel further submits that first time the plea raised by PW7 regarding the witnessing of the incident by PW4 in complaint to DCP on 01.08.2009 more than one month of the incident.
40. Ld. Counsel further submits that the testimonies of PW3 and 7 on the factum of demand of plot and demand of money on the face of it is incredible and not worth relying upon and all allegations of harassment, beating and demand are vague. Ld. Counsel further submitted that none of the witness could site even a single specific incident of demand of money and beating on account of that. Ld. Counsel further submits that the main allegation is demand of plot after the marriage of their younger daughter Samida and as per record Samida got married 34 years after marriage of deceased Shamsheeda i.e, around 20002001. Ld. Counsel further submits that deceased died in 2009 and therefore allegations of demand of plot since 2001, do not in any manner appears reliable.
41. Ld. counsel further submits that the parents of deceased were duly informed about the incident on the night itself and they had seen dead body of deceased Shamsheeda in night at Safdarjung hospital and was duly satisfied about cause of her death, therefore, had not raised any hue and cry on that night and even in the morning. Ld. counsel further submits that parents of deceased Shamsheeda even not choose to stay with dead body on that night and came in the morning. Ld. counsel further submits that the dead body was taken for cremation at 12 noon after considerable period of time and there is nothing on part of accused State Vs. Amroz Ali etc., SC No. 28/10, (pg-25 of 43) persons that they had taken the dead body for burial in haste. Ld. counsel further submits that prosecution could not prove any allegation of beating and demand of dowry and the testimony of Allauddin is not worth consideration at all. Ld. counsel further submits that prosecution could not prove its case and requested for acquittal of accused persons.
42. Ld. Addl. PP submits that as per testimony of PW5 and 6 alongwith the medical record, deceased committed suicide and there are allegations of demand of plot and demand of money on the accused persons. Ld. Addl. PP further submits that the conduct of accused persons is suspicious because they have not informed the parents of deceased after incident and they came to know about the same from neighbours. And further noticed the foul play therefore, informed the police on next day. Ld. Addl. PP further submits that accused persons had taken the body for burial at 12 Noon against Muslim rites and customs which itself shows their suspicious conduct. Ld. Addl. PP further submits that PW4 Allauddin own son of accused has also deposed against his father which itself shows that the accused persons are inflicting maltreatment to deceased in house. Ld. Addl. PP further submits that medical evidence coupled with the allegations of demand of money and plot made deceased to commit suicide, therefore accused persons are liable to be convicted for offence u/s 498A /306/34 IPC. Ld. Counsel for the complainant though found assisting the Addl. PP at the time of final arguments but had not made any submissions to the court and this court vide order dated 18.08.2012 also given one more opportunity to State Vs. Amroz Ali etc., SC No. 28/10, (pg-26 of 43) complainant to file written arguments but they not choosen to file any written arguments.
43. Arguments heard. Record perused.
44. Brief background of prosecution case is that deceased Shamsheeda married to accused Amroz Ali on 07.11.97 and out of that marriage two children were born one son PW4 Allauddin aged around 10 years and one daughter aged about 34 years. On 29.06.09 deceased Shamsheeda has committed suicide by hanging herself with the help of chunni on taand and the same was witnessed by PW5 Shanti and PW6 Zakir Hussain. PW5 Shanti deposed that she is RMP doctor running clinic on ground floor of accused house and PW6 Zakir Hussain came on that day in search of some room in house of Nathu Ali. Pursuant to this incident accused Amroz Ali took the deceased to Safdarjung hospital and parents of the deceased were informed by one Jahangir regarding the incident and they also reached the hospital and deceased was found brought dead at Safdarjung hospital thereafter brought back to house of accused persons and dead body remained at the house of accused for entire night and taken for cremation at around 12 pm. At that time the son of complainant Shabbir Ali called the police and police reached the Kabristan and taken the dead body in its possession and after taking photographs at market and preserved the dead body at AIIMS mortuary.
45. On 01.07.2009 the postmortem of deceased was conducted and as per postmortem report she died of asphyxia due to ante mortem hanging by ligature and further subsequent opinion was also sought in this regard State Vs. Amroz Ali etc., SC No. 28/10, (pg-27 of 43) and as per subsequent opinion it is a case of suicidal hanging. However, police had not registered any FIR even after postmortem report. Then complainant Shabbir Ahmed had filed a complaint before the DCP on 01.08.09 and despite this no action was taken by police, thereafter he lodged a criminal complaint alongwith application u/s 156(3) Cr.P.C for registration of FIR. Pursuant to which Ld. Metropolitan Magistrate vide order 20.08.09 issued direction for registration of FIR, thereafter, FIR u/s 498A/304B/34 IPC was registered. During investigation statements of Allauddin u/s 164 Cr.P.C was also recorded, in which Master Allauddin alleged that deceased was killed by accused persons. However, police on seeing entire facts and circumstances filed chargesheet u/s 498A/306/34 IPC.
46. Now the first contention required to be appreciated whether deceased committed suicide or was killed by accused persons. Whether deceased committed suicide or killed:
47. There are four important witnesses examined before this court during trial who can throw light upon the cause of death of deceased. PW5 Ms.Shanti, PW6 Zakir were stated to be present at the time of incident and saw deceased hanging with the help of chunni on taand and deposed that deceased committed suicide. PW15 Dr. Shiva Prasad who conducted postmortem of deceased on 01.07.09 categorically stated in his deposition that deceased died due to ante mortem hanging caused by ligature and given subsequent opinion that as per literature hanging is almost always suicidal in nature and homicidal hanging is rare and State Vs. Amroz Ali etc., SC No. 28/10, (pg-28 of 43) further stated that there were no other injury mark on body of deceased except the ligature mark on her neck and ligature mark in present case was found due to hanging by chuuni or rope and not due to pressing by hands.
48. PW5 Shanti in her deposition categorically stated that at around 88.30 pm, she went on first floor for drinking water, found Amroz Ali knocking the door and when she asked why, he is knocking door then accused told her that his wife is not opening the same thereafter, he broke open the door and saw deceased Shamsheeda found hanging on taand angle with chunni. And thereafter, Amroz Ali immediately brought down dead body and found her pulses beating and then deceased was taken to hospital. PW6 Zakir Hussain also stated that at around 8.30 pm on the day of incident he was at the house of Nathu Ali and went there to see vacant room and at that time light (electricity) was also not there and he was at the terrace, then, when deceased Shamsheeda had not given water, then Amroz Ali knocked the door and then opened the door with force of his legs and he also found Shamsheeda hanging with chunni on angle of taand. Thereafter she was removed to hospital. As per testimony of both these witnesses deceased Shamsheeda was found in hanging position in closed room and same was opened by accused Amroz Ali by the force of his legs. PW15 Dr. Shiva Prasad also corroborated their version that this is a case of suicidal hanging caused by ligature.
49. However, PW4 Allauddin son of accused Amroz ali aged around 10 State Vs. Amroz Ali etc., SC No. 28/10, (pg-29 of 43) years, might be 78 years at the time of incident gave counter version and stated that her mother deceased Shamsheeda was killed by accused persons. This witness in his examination in chief he stated that on Monday a quarrel had taken place between his mother and chachi and thereafter his mother (deceased Shamsheeda) went downstairs and sat on rickshaw, thereafter she was brought back by his father (Amroz Ali) and hit the head of his mother against the wall. Then his bua and chachi went downstairs and closed the door and his dadi snatched his sister form his mother. Thereafter his father hit deceased with danda and when she fell down and got unconscious then accused Amroz Ali lifted her on bed and thereafter his chacha Afroz Ali caught hold of her. Then his dada caught hold of legs of his mother and his chacha caught hold of hands of his mother, his father pressed neck of deceased then chacha also pressed neck of his mother then they hanged their mother with ceiling with support of dupatta and thereafter, chacha brought his mother down and hit her with kicks on stomach and blood started oozing out of stomach then dada, chachi and bua cleared blood stains . Dadi taken out clothes of his mother and new clothes were worn by bua and chachi and then thereafter she was taken to hospital.
50. This witness has implicated the entire family including Bua, Chachi and Dadi for killing of deceased and as per this witness deceased received head injuries because of collision with the wall as well as through danda and also received kick injuries on the stomach pursuant to which lot of blood came out which was cleared by his dada, bua and chachi.
State Vs. Amroz Ali etc., SC No. 28/10, (pg-30 of 43) However, the testimony of this witness when read with postmortem report as well as with deposition of PW15 Dr. Shiva Prasad who conducted postmortem who did not find any ante mortem injuries on deceased like beating etc and only injury he found was that of ligature mark and further completely ruled out of ligature marks to be caused due to pressing of neck by hands, makes the testimony of PW4 Allauddin incredible and unreliable.
51. Further the other independent eye witnesses i.e, PW5 and PW6 also makes his version of incident false and there came nothing on record that PW5 and 6 are not truthful witness.
52. None of the witnesses i.e, PW7 Shabbir Ahmed father of deceased, PW8 Shaukat Ali chacha of deceased or PW3 Noor Jahan mother of deceased stated that these PW5 and 6 are concocted witnesses. PW4 Allauddin also not stated that PW5 and 6 are concocted witnesses. PW4 confined that PW5 Dr. Shanti resides at their ground floor.
53. The testimony of PW4 is also discredited on account of fact that he made number of improvements from his statements recorded by the police as well as to the Magistrate. He was confronted with his statement u/s 164 Cr.P.C over material parts and on the manner of infliction of injuries to the deceased.
54. The testimony of this witness also found suspect because there is nothing on record to show that this witness has stated anything about the incident of killing of his mother on the day of incident on 30.06.2009, when police came to kabristan. PW7 Shabbir Ahmed in cross State Vs. Amroz Ali etc., SC No. 28/10, (pg-31 of 43) examination categorically stated at Kabristan that he has not stated to police that deceased was harassed. First documentary evidence that PW7 Shabbir Ahmed disclosed to the police that PW4 Allaudin told them that the deceased was killed by accused person was on 01.08.2009 i.e, almost after 32 days of the incident and this time delay is not explained anywhere why they have not made any complaint to the higher officers immediately if the deceased was killed by accused persons as witnessed by PW4 Allaudin.
55. PW7 Shabbir Ahmed stated that they found Allaudin (PW4) on the roof of the house on 30.06.2009, who told them that his mother was killed and PW3 Noor Jahan also stated that Allaudin that his mother was killed by accused. But, surprisingly, none of these witnesses had stated these facts to the police on the date of incident nor made any complaint to the police in this regard to the police immediately. However, waited for more than 32 days to lodge complaint before the DCP. PW8 Shoukat Ali (Chacha) not stated that he came to know that from PW4 Allauddin that deceased was killed by accused persons. He even not stated that deceased was killed by accused and this fact was seen by PW4. PW8 also not stated that he was told by PW3, PW7 or any other relative that deceased was killed. This witness in cross examination also stated that he had not told to police that Shamsheeda used to be harassed or beaten for 25 Sq. yards plot.
56. Therefore, on over all analysis of the testimonies of PW5, PW6, postmortem report and testimony of PW15 Shiva Prasad who conducted State Vs. Amroz Ali etc., SC No. 28/10, (pg-32 of 43) postmortem, deceased Shamsheeda is found to have committed suicide and it cannot be inferred from the record that deceased was killed by anybody. Testimony and circumstances associated with the testimony of PW4 Allauddin do not found to be credible at all and he appears to be completely tutored and fabricated witness, further appears to be deposing under the influence of PW7 Shabbir Ahmed (nana) and PW3 Noor Jahan (nani) or other relatives of deceased.
Allegations of Beating and Demand of Plot
57. As per complaint U/s 200 Cr.P.C Ex. PW7/C accused persons started demanding plot of 25 yards from PW7 after the marriage of their younger daughter Samida as he had given her plot of 25 yards in the marriage, then on this pretext they have started bearing their daughter. PW3 Noor Jahan, mother of deceased also deposed in examination in chief that accused used to demand piece of land and other things on one or other pretext and always harassed and beaten her deceased daughter. In cross examination she stated that accused persons some time demand plot and some time demand money and most of the time they used to demand money. However, this witness also deposed that there was no demand at the time of marriage by the accused persons. This witness have made general allegation of demand of piece of land and money. She had not deposed in testimony before court when they demanded piece of land and money and why they demanded piece of land. This witness also not stated that they demanded 25 sq. yards plot.
58. PW7 Shabbir Ahmed stated that as he had given 25 square yards plot in State Vs. Amroz Ali etc., SC No. 28/10, (pg-33 of 43) the marriage of younger daughter Samida, thereafter accused persons also demanded plot and started giving beating to his deceased daughter Shamsheeda because of demand of the plot. However, in cross examination he could not tell from whom he purchased the plot and he had also not given papers of that plot to the police and also could not tell particulars of that plot given in marriage. This witness also stated that there was no demand from accused persons at the time of marriage and he had not made any allegation of demand of money by the accused persons. Further in cross examination stated that on the day of incident he had not given any complaint to the police regarding harassment of the deceased.
59. PW8 Shaukat Ali brother of the PW7 Shabbir Ahmed have further improved and stated that deceased Shamsheeda told him that if accused persons will not receive 25 square yards plot then they going to kill her. This fact was not stated by PW3 or PW7. PW8 could not stated that which plot was given to deceased's sister Samida in her marriage nor could state what articles were given to her and this witness had also not stated accused person have ever demanded money from deceased Shamsheeda.
60. PW3 Noor Jahan disclosed about vague demands of piece of land and money by accused persons, however, no demand of money was deposed by PW7 Shabbir Ahmed and PW8 Shaukat Ali. None of the witness could state which plot they had given to their daughter Samida in marriage. Further, the marriage of Samida was performed as per State Vs. Amroz Ali etc., SC No. 28/10, (pg-34 of 43) statement of PW8 Shaukat Ali after 34 years of marriage of deceased Shamsheeda i.e, around in the year 2000/2001. However, PW7 in his complaint Ex. PW7/C gave another story by stating that accused told them that he will get plot on marriage with another girl but that fact is not deposed by any witness in testimony. PW8 in cross examination stated that he had not told police about beating, harassment and demand of plot. Therefore, to base allegation of harassment and beating on basis of demand of plot since 2002001 to 2009 is all incredible and not worth reliable.
Allegation of expenses incurred at the time of birth of son Allaudin and younger daughter
61. PW3 Noor Jahan in her examination in chief nowhere stated that they incurred the expenses in the birth of elder son and daughter of deceased Shamsheeda, however in cross examination stated that they spent Rs. 90,000/ at time of birth of son and Rs.50007000 at time of birth of daughter but could not provide any bill in this regard. On the other hand stated that those bills she had given to accused persons. But PW7 Shabbir Ahmed had not stated that he spent Rs. 90,000/ or 5,000 to 7 000/ at the time of birth of son and daughter of deceased Shamsheeda. During investigation at no point of time these witnesses have stated that they were asked to spend the money at the time of birth of children. The allegations relating to demand of money expenses at the birth of child or harassment on account of demand etc are not at all appear reliable and of worth consideration.
State Vs. Amroz Ali etc., SC No. 28/10, (pg-35 of 43) Description of Injuries:
62. According to statement of PW15 Dr. Shiva Prasad who conducted postmortem injury he found no other injury on the body of the deceased except the ligature injuries. In cross examination he also clarified that there was no sign of any other injuries like beating etc and only ligature mark was present on the body and further also deposed that death in the present case is due to hanging and not due to pressing of neck.
63. However, PW3,4,7,8 have deposed about number of injuries on the body of the deceased. PW7 in his complaint dated 01.08.2009 before DCP (Ex.PW7/D) had stated that on 30.07.09 mother and bhabhi of deceased had seen number of fresh injuries on body of the deceased and they found blood was oozing out from nose, face and on the back side of the head of the deceased. And further found injuries on the neck. PW7 in his complaint u/s 200 Cr.P.C also stated the same facts. PW4 Allauddin in his statement U/s 164 Cr.P.C stated that he had seen his chacha was hitting his mother with dandas and thereafter pressed her neck and thereafter, his chacha had tied one dupatta over the neck of his mother and pulled her with the help of dupatta from the taand. PW4 also stated that his chacha hit his mother with kick and blood oozing out of the stomach and cleaned by dadi and bua etc.
64. PW3 Noor Jahan in examination in chief stated that in the morning they were not allowed to see the face of her deceased daughter, though not case as per complaint, however, further stated that she saw face of her daughter and found some marks on her neck. In this statement she had State Vs. Amroz Ali etc., SC No. 28/10, (pg-36 of 43) not stated that she had seen injuries on head or blood oozing out from the nose, mouth etc. of the deceased. PW7 Shabbir Ahmed in examination in chief stated that his wife and Gulshan Bano nephew of wife had seen two marks on neck of her daughter however, in cross examination he stated that he had seen the injuries on back side of the head in the morning. In cross examination he further improved over the factum of injuries over the body of deceased. PW8 Shoukat Ali (chacha) also stated that he had seen one injury on the head of the deceased in mortuary.
65. Thus, all the witnesses have given different versions about injuries over the body of deceased. They not only improved in their statements about the version of injuries however their version of injuries are in complete contradiction to postmortem report and deposition of Dr. Shiva Prasad who conducted postmortem. The inconsistencies and improvements in the description of injuries clearly shows that they are bent upon making all sort of allegations against accused persons to bring the present case in category of homicidal death.
Conduct of PW7 Shabbir Ali and PW3 Noor Jahan after getting the information of death of their daughter deceased Shamsheeda:
66. PW7 Shabbir Ahmed stated that he received an information of death of deceased Shamsheeda from his neighbour. Thereafter, he reached Safdarjung hospital and found her dead and he went to Safdarjung hospital alongwith his wife and other relatives. PW3 Noor Jahan also stated that one Jahangir told about death of Shamsheeda and after that State Vs. Amroz Ali etc., SC No. 28/10, (pg-37 of 43) they called accused persons and accused told that they were in the Safdarjung hospital and when they were on way accused persons told them that deceased got died and reached Safdarjung hospital. PW7 and 3 alongwith relatives thereafter seen the deceased in Safdarjung hospital and as per their testimonies they also made inquiries from doctor and doctor told them that she was brought dead. Then they came back alongwith dead body of their daughter to house of accused persons and PW3 in cross examination stated that they have not stayed alongwith dead body in night and came back to their house and again went back to their house at around 7.308 am and then accused persons took the deceased for burial at around 12 am.
67. According to both these witnesses, they have seen the dead body of deceased in safdarjung hospital and also made inquiries from doctor. This itself shows that there is nothing transpired from their conversation with doctor that something fishy happened with the death of the deceased. Further, their conduct that they again went to accused home and without any suspicion went back to their house in the night and came back at around 7.308.00 in the morning. Thereafter they remained for four hours till 12 noon till then they also did not raise any objection however when the deceased was taken to burial ground they called the police.
68. It is specifically stated by PW7 Shabbir Ahmed that they have not levelled any allegation of harassment etc when police reached the burial ground. Their lateron story that Allauddin told them about the killing of State Vs. Amroz Ali etc., SC No. 28/10, (pg-38 of 43) his mother was also not told to police when they had taken into possession the dead body from burial ground. PW8 Shoukat Ali chacha of deceased also not stated anywhere in his testimony that Allauddin had ever told anybody that his mother was killed by the accused persons.
69. Thus overall conduct of PW3,7,8 from the night of 29.06.2009 i.e, the day of death of deceased and till 30.06.09 till she was taken to burial ground do not show any suspicious circumstance which could be read against the accused persons and their involvement in killing deceased Shamsheeda.
Circumstance of burial:
70. PW3 and PW7 stated that in contravention to the Muslim customs accused persons had taken dead body for burial at 12 Noon and as per Muslim customs the burial could not take place between 12 noon to 2 pm. PW7 neither in his complaint Ex. PW7/D nor in his complaint u/s 200 Cr.P.C Ex. PW7/C have stated that deceased was taken for burial in contravention to Muslim rights however, only stated that they had forcibly taken the deceased for burial. Surprisingly, this delayed allegation of forcible taking is also made to police after 32 days of the incident. As already discussed that PW3, PW7 and other relatives accompanied the dead body from Safdarjung hospital to matrimonial house and thereafter also remained with dead body since 12 noon on next day, it did not appear that accused persons had shown any haste in taking the deceased for burial at 12 Noon, therefore, this allegation that State Vs. Amroz Ali etc., SC No. 28/10, (pg-39 of 43) deceased was forcibly taken to burial ground or against the Muslim right is all appears to be after though and improvement.
Factum of "No Electricity":
71. PW4 Allauddin in his statement U/s 164 Cr.P.C as well as in his testimony had stated that at the time of incident, there was no light. In 164 Cr.P.C statement he stated that he heard number of cries of his mother and therefore came to room at first floor. The story of injury as depicted by PW4 in the circumstances that 'no electricity' at spot, which is a locality which is inhabited by low strata people, it is unlikely that incident of this kind in which their cry/shouts will not be noticed by any neighbour. PW6 also stated that there was no electricity at time of incident, thus this circumstance also confirmed his presence at spot.
Further, testimony of PW5, PW6 and medical evidence, make deposition of PW4 Allauddin unreliable.
Defence:
72. Accused persons raised defence that deceased was suffering from epilepsy fits and in this regard they have confronted witnesses with the medical documents of Safdarjung hospital of year 2002 and also of 2007 and further relied upon the testimony of PW5 Dr. Shanti who also stated that deceased used to get epilepsy fits and in state of fits once she tried to strangulate the younger daughter when her age was about 6 months.
The medical documents as relied by defence of epilepsy fits etc is of 2002 and 2007 and death took place in the year 2009. it is hardly believable that when somebody is suffering from such a disease and had State Vs. Amroz Ali etc., SC No. 28/10, (pg-40 of 43) not done anything untoward for such a long time then because of this disease even if exist will commit suicide therefore the defence of accused that she committed suicide due to epileptic fits do not appear to be convincing at all.
Effect of non registration of FIR immediately after incident:
73. Incident in the present case happened on 29.06.2009 and the factum of suicide is confirmed by postmortem report on 01.07.2009, IO Om Parkash stated to have recorded the statement of PW5 Shanti and PW6 Zakir Hussain on 30.06.2009 and the same are also duly exhibited as PW12/DA and Ex.PW12/DB. PW7 Shabbir Ali in his statement categorically stated that he had not made any allegations of harassment to the police officials at burial ground. PW8 also stated that he had not told police in his statement about beating, harassment and demand of plot. PW11 Ct. Gopal also stated that no grievance was made to the IO on the day of incident. And further other police officials also stated that on inquiry by relatives nothing was alleged against accused persons. The death in this case occurred after around 13 years of marriage therefore non registration of FIR immediately after the incident in those circumstances do not smacks any apparent malafides of the police.
Thus, no hand of accused found in delaying registration of FIR. Reason for Suicide:
74. It is certain that deceased committed suicide and nobody will take his or her life without any reason. The allegations of torture and harassment due to non fulfillment of demand of plot as already discussed do not State Vs. Amroz Ali etc., SC No. 28/10, (pg-41 of 43) appear to be at all credible and that cannot be looked as a reason of her suicide. PW4 Allauddin in his deposition before court also could not state why his mother was beaten or killed by accused persons and somehow he implicated the entire family including dadi, chachi and bua.
75. However, some hint of reason of commission of suicide by deceased Shamsheeda appears from the statement of PW4 Allauddin u/s 164 Cr.P.C where in stated that his father (accused Amroz Ali) used to bring one girl from factory on his motorcycle to the house and used to take food with her at the house and thereafter used to leave her, however this factum he had not deposed in his testimony. Neither this fact was deposed by PW3 and PW7. It is settled law that statement u/s 164 Cr.P.C cannot be used as substantive evidence therefore whatever PW4 stated in 164 regarding his father's relation with one factory girl cannot be taken into account, further, other prosecution witnesses do not choose to tow this line however, relied upon the vague and stereo typed allegation of demand of piece of plot after the marriage of their daughter Samida which as already discussed in detail appears to be not reliable at all.
76. Deceased died by locking the reason for suicide in her heart and prosecution not able to surface it out during the evidence. Hence, prosecution also unable to prove the reason of the commission of suicide.
77. To attract offence u/s 498A IPC, the prosecution has to prove the mental or physical cruelty over the deceased by her husband or inlaws however, State Vs. Amroz Ali etc., SC No. 28/10, (pg-42 of 43) in view of the above discussion the prosecution unable to prove any allegation of mental or physical cruelty or harassment on demand of dowry against the accused persons, hence, offence u/s 498A IPC is not proved against the accused persons. Further to attract offence of abetment of suicide, cruelty as envisaged u/s 498A IPC is required to be proved. Once offence u/s 498A IPC is not proved then no presumption u/s 113 A Evidence Act could be raised against accused persons. Hence, offence u/s 306 IPC is also not proved against the accused persons.
78. On overall appreciation of the evidence, the testimony of the relatives of the deceased over harassment, beating and demand of money or plot as already discussed do not appear to be reliable at all. Further testimony of PW4 Allauddin appears to be all after thought, tutored and fabricated.
The description of incident of killing as narrated by PW4 do not at all appear to be reliable. Prosecution even could not prove any reason why deceased committed suicide.
79. Burden of proof is on prosecution, however prosecution unable to prove its case against the accused persons. Hence, all accused persons given benefit of doubt and acquitted of all charges framed against them. Their previous bail bonds are converted into bail bonds u/s 437 A Cr.P.C and shall remain valid till expiry of six months.
Announced in Open Court
On 24th August, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Amroz Ali etc., SC No. 28/10, (pg-43 of 43)