Delhi District Court
State vs Arshad Alam on 30 August, 2024
IN THE COURT OF SH. VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
SC No. 11665/2023
CNR No. DLSE01-012953-2023
State Vs. 1. Arshad Alam
S/o Sh. Khurshid Alam
2. Khurshid Alam
S/o Late Mustaq Ahmed
3. Shahida Khatoon
W/o Sh. Khurshid Alam
All R/o H. No. G-96,
Harkesh Nagar, Okhla
Phase-III, New Delhi.
FIR No. : 468/2023
Police Station : Okhla Industrial Area
Under Sections : 498A/304B/306 IPC
Date of committal to Sessions Court : 20.12.2023
Date on which judgment was reserved : 30.08.2024
Date on which Judgment pronounced : 30.08.2024
JUDGMENT
BRIEF FACTS OF THE CASE :
1. On 26.07.2023, vide DD No. 22A a PCR call was received regarding suicide by a lady at H. No. G-96, Harkesh Nagar New Delhi on which HC B.P Gautam went there and found body of a lady namely Farah Naaz was lying on the bed and latch of main door of room was broken from inside. During enquiry, husband of deceased told that she committed suicide by hanging herself from ceiling fan with a white colour chunni. IO called the Mobile crime FIR No. 468/23 State Vs Arshad Alam Page 1 of 22 team and FSL team and got the spot inspected and seized the exhibits i.e. chunni and bottle containing water and body of deceased was taken to AIIMS Hospital and MLC No.5499/23 was prepared. Body was preserved by doctor in mortuary and personal items were seized and deposited in Malkhana. SDM Kalkaji was informed as marriage of deceased was solemnized on 25.3.2019.
Statement of parents were recorded by Tehsildar Sh. Amit Chhabria and Inquest Proceeding U/s176 CrPC were initiated.
2. In his statement father of deceased Md. Aslam stated that his daughter Farah Naz married to accused Arshad Alam on 25.03.2019 according to Muslim customs. At the time of Roka they demanded Rs.1,00,000/-, one gold chain and ring and he fulfilled their demand and at the time of engagement both sister-in-laws i.e. Naz, Ruby and her husband demanded cash of Rs.7,00,000/- and 40 gms gold and he fulfilled their demand by selling his 2 floors of 25 sq yds each, thinking that his daughter will be happy. At the time of marriage accused persons demanded Mahindra TUV 300 costing to Rs.12,50,000/-, 20 gms gold and Rs.2.6 lacs, out of which demand of Rs.2,50,000/- could not be fulfilled and heated arguments took place between them but after persuasion of relatives, marriage got solemnized. After marriage, accused persons started beating, abusing and torturing his daughter for dowry. On 17.03.2020 his daughter gave birth to a baby boy and her in- laws demanded Rs.2,00,000/- which he gave. The accused persons kept torturing his daughter and threw her out of the house. On 19.05.2021, his daughter gave birth to a baby girl and when she went to her matrimonial home, accused persons gave her beatings but after compromise allowed her to stay there but they kept torturing her. On 18.07.2023 his daughter came to her parental house and told that accused persons still beats her and are demanding Rs.10,00,000/-. On 23.07.2023 she returned to her matrimonial home and told FIR No. 468/23 State Vs Arshad Alam Page 2 of 22 that she is still being beaten by accused persons and on 26.07.2023 her husband and in-laws killed her.
3. On the basis of statement of complainant, present FIR u/s. 498A/ 304B/34 IPC was registered and further investigation was handed over to Insp. Ajay Katewa. During investigation, IO inspected the spot, prepared the site plan, arrested the accused, recorded his disclosure statement and statement of witnesses, collected PM report and CDR of accused and sent the exhibits to FSL.
4. After completing the investigation, charge-sheet was filed in the court for the offences u/s. 498A/304B/306/34 IPC. After complying with Sec.207 Cr.PC, case was committed to the Sessions Court.
5. After hearing arguments, charge was framed against all the three accused persons on 22.03.2024 for the offences punishable u/s. 498A/304B/ 306/34 IPC to which all accused persons pleaded "Not Guilty" and claimed trial and accordingly the case was fixed for prosecution evidence.
6. During the course of the trial, prosecution examined 14 witnesses to substantiate the accusations leveled against the accused.
7. PW-1 / Smt Sofiya is the mother of the deceased Farha Naaz. She deposed that her daughter Farha Naaz got married with accused Arshad Alam on 25.03.2019. Initially the behaviour of the accused and his family members were cordial towards her daughter but after some time her daughter got suspicious of the accused as he had affair with another woman. Her daughter informed her this fact. After that quarrel started took place between them on FIR No. 468/23 State Vs Arshad Alam Page 3 of 22 this issue. Thereafter, she along with her husband Mohd. Aslam went to the house of the accused and settled their dispute, however, due to suspicious her daughter started feeling sad. On 19.07.2023 her daughter came at her home with her children and on 23.07.2023 went back to her matrimonial home. On 26.07.2023 she received call of accused Khurshid Alam that her daughter Faraha Naaz is no more. Police officials interrogated her about the incident and she told them that she gave the articles to the accused persons out of her own will during the marriage of her daughter and there were no dowry demand on the behalf of accused and his family members.
8. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-1 as she was resiling from her previous statement. In her cross- examination by Ld. Addl. PP for the State, she denied the suggestion that the accused persons demanded dowry of Rs.1,00,000/-, one gold chain and one gold ring from them. She voluntarily stated that the accused persons did not demand the articles and money from them and they gave them out of their own will. She also denied the suggestion that after marriage accused Arshad Alam started misbehaving with and assaulting her daughter. She admitted that the concerned Tehsil / Executive Magistrate enquired her about the incident and recorded her statement Ex.PW1/C. However, statement is not true and these facts were not told by her to the Executive Magistrate and contents of her statement is not read over to her by the concerned Executive Magistrate and she only signed on the paper. She denied the suggestion that her daughter committed suicide due to the continuous torture and assault given by the accused persons. She denied the suggestion that she is deposing falsely.
9. PW-2 / Mohd. Aslam is the father of the deceased. He also deposed on the similar lines as PW-1. He further deposed that when his daughter expired, FIR No. 468/23 State Vs Arshad Alam Page 4 of 22 he alongwith his wife Sofia and his son Akram went to the office of SDM and the concerned person of the SDM had taken their signatures on papers. He did not read the contents of the papers before signing and concerned person also did not read over the contents of the papers to them and the concerned SDM did not enquire him about the incident. He proved dead body identification as Ex.PW-2/A and his complaint as Ex.PW-2/B.
10. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-2 as he resiled from his previous statement. In his cross- examination by Ld. Addl. PP for the State, he stated that due to death of his daughter he got nervous and did not go to the office of senior police officer to tell truth and denied all the suggestion given to him.
11. PW-3 / Sh. Atar Singh is the neighbour and friend of PW-2 / Mohd. Aslam and deposed that he alongwith his family attended the marriage ceremony of Farha Naaz. Mohd. Aslam spent money in the marriage of his daughter out of his own will and accused persons also spent the money in marriage as per their capacity. His friend Aslam never told him that the accused persons demanded dowry.
12. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-3 as he resiled from his earlier statement. In his cross- examination by Ld. Addl. PP for the State, he stated that he did not know whether accused Arshad Alam and his family members demanded dowry in the marriage and denied the suggestion that he deliberately deposed falsely at the instance of accused persons.
13. PW-4 / Jahid Hussain deposed that he is tenant of PW-2 / Mohd. Aslam FIR No. 468/23 State Vs Arshad Alam Page 5 of 22 since 2021. On 26.07.2023 he came to know that Farha Naaz had committed suicide at her matrimonial home and he alongwith Mohd. Aslam and his wife went to police post Okhla Phase-III.
14. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-4 as he resiled from his earlier statement. In his cross- examination by Ld. Addl. PP for the State, he stated that Mohd. Aslam never told him that the accused persons used to assault / harass his daughter for dowry demand and denied the suggestion that Farha Naaz committed suicide because the accused persons used to assault and harass her for dowry demand.
15. PW-5 / Md. Azmat Ansari is the neighbour and friend of PW-2 / Mohd. Aslam and deposed that he alongwith his family attended the marriage ceremony of Farha Naaz. Mohd. Aslam spent adequate money in the marriage of his daughter as per his capacity and accused persons also spent the money in marriage as per their capacity. His friend Aslam never told him that the accused persons demanded money as dowry in marriage and after marriage accused persons were continuously demanding the dowry. He did not know the reason why Farha Naaz committed suicide.
16. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-5 as he resiled from his earlier statement. In his cross- examination by Ld. Addl. PP for the State, he stated that he did not know whether accused Arshad Alam and his family members demanded dowry in the marriage and denied all the suggestions given to him.
17. PW-6 / Sh. Amit Chhabria was the Tehsildar in the office of Executive Magistrate, Kalkaji. He deposed that he enquired and got recorded the FIR No. 468/23 State Vs Arshad Alam Page 6 of 22 statements of Mohd. Aslam and Ms. Sofia, parents of deceased and attested their statements Ex.PW-2/B and Ex.PW-1/C respectively. In his cross- examination by Ld. Counsel for the accused admitted that that he has no personal knowledge of the case.
18. PW-7 / Sh. Vinod Suri deposed that he is Manager in the Baldev Raj Jeweller Shop at DDA colony Khyala and proved the Bill No. SB#459, Bill No. SB#550, voucher No. 2319, voucher No. 2531 in the name of Ms. Sofia, Mohd. Aslam and Farha Naaz as Ex.PW-7/A to Ex.PW-7/D respectively.
19. PW-8 / Mohd. Akram is the brother of deceased Farha Naaz and deposed that his sister got married accused Arshad Alam on 25.03.2019. The behaviour of accused and his family members were cordial towards his sister. During the marriage, accused persons did not demand any dowry articles.
20. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-8 as he resiled from his earlier statement. In his cross- examination by Ld. Addl. PP for the State, he denied the suggestion that Farha Naaz told him and his family members regarding misbehaviour of accused persons and denied all the suggestion given to him.
21. PW-9 / Ms. Nagma is sister of deceased Farha Naaz and deposed that her sister got married accused Arshad Alam on 25.03.2019 according to Muslim customs. The behaviour of accused and his family members were cordial towards her sister. During the marriage, accused persons did not demand any dowry articles and she voluntary stated that her parents gave some articles in the marriage as a gift with their own will. On 26.07.2023 she was at her matrimonial home in Kerala and in the morning received the call from her FIR No. 468/23 State Vs Arshad Alam Page 7 of 22 brother Afzal regarding death of Farha Naaz. On next day, she came to Delhi through flight and did not tell anything about the case.
22. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-9 as she resiled from her earlier statement. In cross-examination by Ld. Addl. PP for the State, she denied all the suggestion given to her.
23. PW-10 ASI Babu Lal was the photographer of the Crime Team, South East District and proved the Certificate u/s. 65B of Indian Evidence Act of 40 photographs as Ex.PW-10/A and ten sheets of 40 photographs as Ex.N1(colly).
24. PW-11 / HC Rakesh Singh was the fingerprint proficient at Crime Team, south East District and deposed that he inspected the scene of crime but could not find any chance print from there and proved the scene of crime report as Ex.PW-11/A and identified the photographs Ex.N1 (colly).
25. PW-12 / SI Mahesh Kumar deposed that on 26.07.2023 he came to know about the incident and went to the spot where he met HC B. P. Gautam, Ct. Rinku and accused persons. The house of the accused was situated at first floor. He entered the room and saw that dead body was lying on bed and saw the marks of chunni on her neck and chunni was lying near the body of deceased. IO / HC B. P. Gautam called the crime team and ASI Babu Lal and HC Rakam came at the spot and inspected the scene of crime and taken the photographs. Dead body was sent to AIIMS. After few minutes parents and brother of deceased came there and he enquired from them and they made allegations of dowry demand against the accused persons. IO seized the chunni, mobile and jewellry worn by deceased. He informed SDM Kalkaji and took the parents and brother of deceased to office of SDM Kalkaji. On next FIR No. 468/23 State Vs Arshad Alam Page 8 of 22 day, he went to AIIMS mortuary and got conducted the postmortem. The doctor preserved the viscera, blood in gauge and nail clips and he seized the same. He proved rukka as Ex.PW-12/A, handing over memo of dead body as Ex.PW-12/B, seizure memo of exhibits given by doctor as Ex.PW-12/C and Ex.PW-12/D.
26. PW-13 / Insp. Ajay Katewa was the IO. He deposed about the investigation conducted by him and proved site plan as Ex.PW-13/A, disclosure statement of accused Arshad Alam as Ex.PW-13/C-1 and arrest memo of accused as Ex.PW-13/C.
27. After taking permission from the court, Ld. Addl. PP for the State cross- examined PW-13 as he partially resiled from his earlier statement. In cross- examination by Ld. Addl. PP for the State, he admitted that he seized the DVD regarding the procedure of the postmortem as Ex.PW-13/B. He admitted that mother of deceased handed over him the list of dowry articles and copy of SBI bank passbook of her elder daughter Nagma which were also seized.
28. PW-14 / HC B. P. Gautam was the first IO. He deposed about receiving DD No. 22A on which he alongwith HC Rinku went to the spot and deposed about the investigation conducted by him. He seized the mobile phone of deceased, chunni and water bottle as Ex.PW-14/A, Ex.PW-14/B and Ex. PW- 14/C and further investigation was marked to SI Mahesh.
29. After taking permission from the court, Ld. Addl. PP for the State asked a leading question from PW-14 as he did not disclose the entire fact. In reply to which, he admitted that he seized the jewellery worn by the deceased as Ex.PW-14/D. FIR No. 468/23 State Vs Arshad Alam Page 9 of 22
30. Accused persons admitted the MLC No. 5499/2023 dated 26.07.2023 as Ex.D1, PM report no. 849/2023 (colly) as Ex.D2, scaled site plan Ex.D3, witness of preservation of dead body in mortuary as Ex.D4, witness of PM of dead body in mortuary as Ex.D5, FIR as Ex.D6, deposited exhibits in FSL Rohini as Ex.D7, MHC(M) CP with RC No. 291/21/23 dated 30.08.2023, 303/12/23 dated 13.09.2023, 302/21/23 dated 13.09.2023 and 322/21/23 dated 20.10.2023 and Register No.19 and case property as Ex.D8 (colly), statement of ASI Phool Karan u/s. 161 Cr.PC as Ex.D9, GD No.22A, 23A and 40A dated 26.07.2023 as Ex.D10, DO/HC Amit Kumar to prove GD no. 22A, 23A, 40A as Ex.D11 and CPCR Form as Ex.D12 u/s. 294 Cr.PC.
31. As no incriminating evidence came against all the accused persons, therefore, statement of accused persons are dispensed with.
32. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. counsel for the accused persons and have perused the record.
33. In order to prove the offense U/s 498A/304B/306/34 IPC against accused, the prosecution was required to prove beyond reasonable doubt that accused persons tortured deceased Farah Naaz and were demanding dowry because of which Farah Naaz committed suicide. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
34. Court will first discuss the law regarding the dowry death in brief. Section 304B, IPC, deals with 'dowry death', which reads as follows:-
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal FIR No. 468/23 State Vs Arshad Alam Page 10 of 22 circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
35. The legislature has also introduced Section 113B of the Evidence Act alongside insertion of Section 304-B IPC.
"113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purpose of this Section "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
36. Sec.2 of Dowry Act, 1961 defines the term 'dowry' as under :
"Sec.2 Definition of 'Dowry': In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
37. The basic ingredients to attract the provisions of Section 304-B IPC, are as follows:-
"(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;FIR No. 468/23 State Vs Arshad Alam Page 11 of 22
(3) There was demand of dowry from the victim or family of victim.
(4) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(5) such cruelty or harassment should be for or in connection with the demand of dowry; and (6) it is established that such cruelty and harassment was made soon before her death."
38. In "Satvir Singh v. State of Haryana" Cri. Appeal No.1735-1736 of 2010 decided on 28.05.2021 it is held that Sec.304B IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental as was done earlier. The reason for such non categorization is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental. However, the Section 304B IPC endeavors to also address those situations wherein murders or suicide are masqueraded as accidents.
39. In the case of unnatural death of a married woman, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in "Satvir Singh v. State of Punjab", (2001) 8 SCC 633 wherein it was held:
"21. Thus, there are three occasions related to dowry. One is before the marriage, second 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 FIR No. 468/23 State Vs Arshad Alam Page 12 of 22 mentioned in Section 304-B 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 304-B 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 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 bee 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 which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge 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'.
40. In 'Hira Lal v. State (Govt. of NCT)', Delhi [(2003) 8 SCC 80], Hon'ble High Court of Delhi observed that :
"The expression 'soon before her death' used in the substantive S. 304-B IPC and S.113B of the Evidence Act is present with the idea of proximity test.
No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in S.114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."FIR No. 468/23 State Vs Arshad Alam Page 13 of 22
41. Adverting to the case in hand, as regards the first ingredient that the death of woman was caused by any burns or bodily injury or in some circumstances which were not normal, PM report Ex.D2 shows the death was due to asphyxia following ante-mortem hanging and there were no other marks on the body. It is also not disputed by the accused persons that death of deceased has occurred due to hanging. So, photographs Ex.N1 (colly) along- with PM report, it is proved that deceased committed suicide by hanging herself with chunni. As such, it is proved that Farah Naaz has died "otherwise than under normal circumstances".
42. It is also undisputed case of the parties that marriage between the parties occurred on 25.03.2019 and death occurred on 26.07.2023 i.e. within 7 years of the marriage, therefore, second ingredient for offence u/s. 304B IPC is proved.
43. Court will now consider whether third ingredient is also satisfied by looking at the evidence on record. Out of 14 witnesses, material witnesses in this regard are PW-1 Sofia, PW-2 Mohd. Aslam, PW-3 Attar Singh, PW-4 Jahid Hussain, PW-5 Mohd. Azmat Ansari, PW-8 Mohd. Akram and PW-9 Nagma. PW-1, PW-2, PW-8 and PW-9 are the mother, father, brother and sister respectively of the deceased and PW-3, PW-4 and PW-5 are the neighbours and friends of the father of the deceased.
44. PW-1 and PW-2 i.e. parents of the deceased deposed that they gave all the articles to the accused persons in the marriage out of their own will and there was no dowry demand on behalf of the accused family and denied the suggestion that accused persons demanded dowry of Rs.1 lac, one gold chain and one gold ring from them. As regarding the allegations of dowry in their FIR No. 468/23 State Vs Arshad Alam Page 14 of 22 statements Ex.PW-1/C and Ex.PW-2/B recorded by the SDM, both of them stated that the statement is not true and these facts were not told by them to the Executive Magistrate and contents of their statements were not read over to them and they only signed on the paper.
45. PW-8 and PW-9 who were the siblings of the deceased and they also did not depose anything about the dowry demand by the accused family and denied all the suggestions given by the prosecution qua the dowry demand.
46. PW-3, PW-4 and PW-5 were the neighbours and friends of deceased father and they specifically deposed that PW-2 spent money on marriage of his daughter and PW-2 never told them that accused persons ever demanded any dowry from them. PW-7 is the manager of the Baldev Raj Jewellers and he proved the bills of jewellery as Ex.PW-7/A to Ex.PW-7/D which were given by the family of the deceased to the accused family in the marriage but family of the deceased i.e. PW-1, PW-2, PW-8 and PW-9 have deposed that the articles in the marriage were given by them out of their will. PW-2 is the karta of the family and who bore the expenses of the marriage but he nowhere deposed about giving of any dowry, so, court comes to the conclusion that no demand of dowry during the wedding was made by the family of the accused and even if any items were given, same were given willingly at the time of the marriage.
47. The case of prosecution is that accused persons demanded one car, gold chain, gold ring and money on various occasions from the deceased and used to harass her for the same but prosecution could not bring any evidence to show on which date, month or year such demand was made and in what manner that demand was made. Further, not only a demand of dowry but there needs to be a persistent demand of dowry on behalf of the accused persons and FIR No. 468/23 State Vs Arshad Alam Page 15 of 22 one solitary instance of asking the deceased to bring dowry will not constitute an offence under sec.304B or 498-A IPC as held in "Hans Rai Sharma & Ors. Vs. Govt. of NCT of Delhi" (2010 SCC Online Del 920). Therefore, prosecution have failed to prove that any demand of dowry has been made by the accused persons to the deceased.
48. But prosecution has failed to prove any demand of dowry or deceased was subjected to cruelty or harassment by the accused persons in connection with the demand for dowry. Therefore, no presumption under Sec. 113B of the Indian Evidence Act can be fastened upon the accused persons. In view of the above appreciation of evidence, accused persons could not be held guilty for the offence of dowry death u/s. 304B IPC.
49. Another offence for which the accused persons are charged for abetment of suicide u/s. 306 of The Indian Penal Code, 1860 and same is reproduced here in below:-
306. Abetment of suicide :- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
50. The most important ingredient for the offence u/s. 306 IPC is that suicide should have been committed by the deceased. Deceased Farah Naaz was found lying on the bed by the IO and the latch of the door from inside was broken, which proves that door was closed from inside and it was forced open because of which latch broke down. Photograph Ex.N1 (colly) shows the broken latch. As per prosecution case in the room only dead body of deceased Farah Naaz was found and no other person was inside the room. Therefore, the FIR No. 468/23 State Vs Arshad Alam Page 16 of 22 only conclusion that can be drawn was that the deceased herself bolted the door from inside. Further, PM report Ex.D2 shows the cause of death as "asphyxia as a result of ante-mortem hanging". This proves that death of the deceased have occurred due to the hanging. So, it is proved beyond doubt that deceased committed suicide by hanging herself with chunni after bolting the room from inside.
51. Next important ingredient for culpability U/s. 306 IPC is that accused should have abetted the Suicide. Farah Naaz got married with accused Arshad Alam on 25.03.2019 and she committed suicide on 26.07.2023. Therefore, Farah Naaz committed suicide within 7 years of her marriage. When a married woman commits suicide within 7 years of her marriage, a presumption is drawn regarding the abetment of her suicide U/s 113A of the Indian Evidence Act, 1872 and the relevant provision is reproduced here in below:-
Sec113A. Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation - For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
52. It has been held in "Mangat Ram v. State of Haryana", AIR 2014 SC 1782, that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under section 113A of the Evidence Act would not automatically apply. The Legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to FIR No. 468/23 State Vs Arshad Alam Page 17 of 22 cruelty as defined under section 498A IPC only then the presumption under section 113A of Indian Penal Code, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary.
53. So, The presumption under Section 113A of the Indian Evidence Act will only be fastened if it is proved that accused has committed cruelty upon the deceased as defined under section 498A IPC, which is reproduced hereinbelow :-
Section 498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, "cruelty" means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
54. In "Hans Raj Sharma Vs Govt of NCT of Delhi", Crl.A.No.339-41/2005 decided on 2 March, 2010, Hon'ble High Court of Delhi has held at para10, which is reproduced herein below:-
"10. In order to succeed in charge under Section 498-A IPC, the prosecution was required to prove that the appellants had subjected deceased Lovely to cruelty, as defined in the explanation to the Section. It is not every cruelty which is punishable under Section 498-A of IPC. The cruelty, as defined in the explanation to 498-A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in Section 498-A of IPC, has necessarily to be a willful conduct which is of FIR No. 468/23 State Vs Arshad Alam Page 18 of 22 such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498-A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498-A of IPC. Of course, the expression "cruelty" would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498-A of IPC."
55. Sec.498A IPC has two explanations (a) and (b). The explanation (b) talks about the harassment related to unlawful demand of any property or valuable security but same is not the case of the prosecution as no allegations regarding any demand of property or valuable security has been made against the accused or his family members by the family of the deceased. PW-1 Sofia, PW-2 Mohd. Aslam, PW-8 Mohd. Akram and PW-9 Nagma, who were the mother, father, brother and sister of the deceased respectively did not deposed anything about demand of any dowry article by the accused. PW-1 specifically deposed that accused persons did not demand any article or money from them and they gave them out of their own will. PW-3 Attar Singh, PW-4 Jahid Hussain, PW-5 Mohd. Azmat Ansari, were the public witnesses and friend of FIR No. 468/23 State Vs Arshad Alam Page 19 of 22 the father of the deceased and they also deposed that father of the deceased never told them that accused persons demanded dowry from them and family of the deceased have spent money in the marriage out of their own will. Therefore, explanation (b) is not applicable in the present case.
56. Explanation (a) of Sec.498A IPC says that if the conduct of the accused is likely to drive the woman to commit suicide or cause danger to her mental health then it will amount to cruelty. The allegations against the accused made by the family of the deceased are that he was having an extra marital affair. No doubt extra marital affair of the husband will definitely cause grave mental cruelty to the married woman and can also drive her to commit suicide, so, if accused had extra marital affair which his deceased wife came to know about then definitely his conduct i.e. having extra marital affair, will amounts to cruelty under explanation (a) of Sec.498A IPC but for that it is necessary that prosecution has proved that accused had extra marital affair.
57. Prosecution has relied upon PW-1 Sofia, PW-2 Mohd. Aslam, PW-8 Mohd. Akram and PW-9 Nagma, who were the mother, father, brother and sister of the deceased respectively, to show that accused has extra marital affair. PW-1 / mother of the deceased has specifically deposed that her daughter has suspicion that accused is having some affair but they sorted out the dispute and except this nothing is deposed regarding any extra marital affair of the accused Arshad by any of them. Family of the deceased did not provide anything regarding extra-marital affair of accused during the investigation. Considering that no evidence regarding extra-marital affair of the accused has been brought on record by the prosecution, therefore, prosecution failed to prove that accused have any extra-marital affair.
FIR No. 468/23 State Vs Arshad Alam Page 20 of 2258. Another allegation made against the accused was that he used to torture the deceased. PW-1 and PW-2 stated that accused Arshad and deceased used to have some quarrel but later on with their intervention the dispute got settled. PW-1, who is the mother of the deceased and must be the person to whom deceased must have confided everything, has not deposed any torture done by the accused persons on her deceased daughter after the dispute got settled due to their intervention. Therefore, prosecution failed to prove any kind of torture given by the accused to the deceased.
59. No other type of cruelty or any other incident of cruelty have been alleged by the prosecution against the accused, therefore, no cruelty as defined under Sec.498A IPC was subjected upon the deceased by the accused. Therefore, no presumption under Sec. 113A of the Indian Evidence Act can be fastened upon the accused.
60. Prosecution has failed to prove that accused has abetted the suicide committed by deceased Farah Naaz. Accordingly, accused persons are acquitted of the charge under section 498A/306 IPC.
61. It is true that a young woman has lost her life in the house of the accused persons, but, then it was for the prosecution to prove that Farah Naaz committed suicide on account of cruelty or harassment meted out to her by accused persons in connection with the demand of dowry in which prosecution has miserably failed. PW-1, PW-2, PW-8 and PW-9, on account of Farah Naaz having committed suicide, obviously were angry with the accused persons and have every reason to involve them for the offence u/s. 498A/306/304B/34 IPC.
FIR No. 468/23 State Vs Arshad Alam Page 21 of 2262. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
63. There is nothing on record to establish the culpability of the accused persons in the commission of the offence charged against them. The prosecution has failed to prove the charge on the standard of proof beyond reasonable doubt.
64. In view of the above discussion, accused persons are acquitted of the charge under section 498-A/306/304B/34 IPC. Documents, if any, be returned to the rightful owner after due acknowledgment and endorsement, if any, made on it be canceled accordingly.
65. File be consigned to Record Room after completing necessary formalities.
Announced in open Court today (Vipin Kharb)
on 30.08.2024 Additional Sessions Judge-07
South-East, Saket Courts,
New Delhi
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