Delhi District Court
State vs Shahanshah Alam on 29 May, 2007
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IN THE COURT OF SH. NARINDER KUMAR,
ADDL. SESSIONS JUDGE, FAST TRACK COURTS
ROHINI : DELHI
SC No. 193 dated 23/12/2006 Old No.37 dt. 01/09/2003
Date of Decision: 29/05/2007
STATE
Versus
1. Shahanshah Alam
S/o Sh. Dongri Saheb
R/o 143/62, Indira Colony,
Near Subzi Mandi,
Tilak Nagar, Delhi
2. Zarina
W/o Basir Ahmad
R/o 143/62, Indira Colony,
Near Subzi Mandi,
Tilak Nagar, Delhi
3. Makhtumbi (Since discharged)
W/o Shahanshah Alam
R/o J-299, Mata Kusht Ashram,
Tilak Nagar,
Delhi.
FIR No. 740/99
PS Tilak Nagar
U/s. 498-A, 306 IPC.
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JUDGMENT
First the Facts Shahanshah Alam and Zarina accused have been facing trial for an offence punishable u/s 306 IPC read with section 34 IPC on the allegation that on the night intervening 09/10/.09.1999 at 12 midnight at W/143/62 Indira Colony, Tilak Nagar, Near Subzi Mandi, Shahanshah Alam (husband) and Zarina (sister in law) of Mahboobi since deceased abetted her to commit suicide as a result whereof Mahboobi set herself on fire resulting in her death on 13.09.1999 at about 01:10 p.m. Case of prosecution is that Shahanshah Alam and his wife Mahboobi (since deceased) were residing in jhuggi No. 62, Subzi Mandi, Ganna Mandi, Tilak Nagar, Delhi. Shahanshah Alam accused was ill-treating Mahboobi. Even on 09/09/1999, he gave her beatings. Zarina (accused) the sister in law also ill-treated her. She also used to give her beatings even prior thereto.
In her statement made before police on 10/09/1999, Mahboobi (since deceased) stated that she told -:3:- Shahanshah Alam that she would set herself on fire in case he (accused) gave her any beatings in future. At that time, Shahanshah Alam replied that she could take kerosene oil and set herself on fire. At that time, she (Mahboobi) got angry and set herself on fire after pouring kerosene oil on her person. In her statement Mahboobi further stated that Shahanshah Alam liked her sautan and that as such she was angry with him on this point.
Ahmad shah neigbourer of Shahanshah Alam accused reached the jhuggi of Shahanshah Alam and saw Mahboobi being removed in a rickshaw, with burn injuries on her person. He also witnessed Shahanshah Alam present nearby.
Case of prosecution is that SI Shekhar Lal accompanied by Ct. Satbir Singh reached DDU hospital on receipt of information that Shahanshah Alam had got Mahboobi admitted there. This information was conveyed to the P.S. by P P Vaerghese from the hospital.
Dr Rajesh Kumar Jaiswal conducted medico legal examination on the person of Mahboobi (since deceased), and prepared MLC. Dr. M.P. Singh prepared surgery note. Shahanshah Alam accused was also medico -:4:- legally examined and his MLC was prepared. Dr. Rajiv Jain made endorsement on the MLC of Mahboobi. SI Sekhar Lal collected MLC of Mahboobi in which the doctor had opined that Mahboobi was fit to make statement. The SI then moved application and then recorded aforesaid statement of Mahboobi (since deceased) in presence of Dr. Vivek, who attested the statement.
SI Sekhar Lal appended ruqqa to the statement, sent ruqqa to the PS through Ct. Satbir and got this case registered. SI Sekhar Lal then reached the spot i.e. jhuggi No.1/63, Indira Colony, Tilak Nagar, Delhi. During spot inspection, the SI found that there were two rooms. In one room , one plastic can and a water bottle were found lying. The plastic can and bottle were not containing any kerosene oil but smelt of kerosene. The plastic can and bottle were turned into a parcel sealed with the seal in presence of PW Bashir Ahmad. Rough site plan was prepared. Burnt clothes of Mahboobi i.e. salwar, kurta and chunni were also recovered from a room of jhuggi of Shahanshah. These were also turned into a parcel and sealed with the seal.
Shahanshah Alam was arrested by the police on 10.09.99 at the instance of Bashir Ahmed. SI Sekhar Lal was -:5:- informed about removal of Mahboobi (since deceased) to Safdarjung hospital. Police informed the SDM . It was on 13.09.99 that information regarding death of Mahboobi was received from Safdarjung Hospital. The SI reached Safdarjung hospital, collected the dead body and carried out inquest proceedings. Dead body was subjected to autopsy. Dr. Arvind conducted autopsy on the dead body of Mahboobi and prepared report. After autopsy, dead body was delivered to the relatives of the deceased.
In the opinion of doctor, Mahboobi died because of Septecemia consequent upon 95% antemortem flame burns and that she had died 27 hours prior to conducting of autopsy.
Co accused Smt. Makhtumbi was arrested on 21.02.99. Zarina accused was also arrested.
On completion of investigation, challan was put in court.
Charge After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble court of Session.
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Prima facie case having been made out, charge for an offence U/s. 306 read with Section 34 IPC was framed against Shahanshah Alam and Zarina accused, on 24.11.2003. Since both of them pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
It may be mentioned here that the third accused Smt. Makhtumbi was discharged vide order dated 24.11.2003.
In order to prove its case, prosecution examined following 15 witnesses:
PW10 Ahmed Shah, a person living in the neighbourhood of accused Shahanshah Alam, got up at about midnight on coming to know of burns suffered by Mahboobi. According to this witness, on reaching jhuggi of Shahanshah Alam, he found Mahboobi being removed in a rickshaw, while she was having burns; that Shahanshah Alam was sleeping nearby; and also that after the occurrence he went to take medicines in the hospital. It is also in his statement that Mahboobi had suffered burns because of dispute between the husband and wife. The witness also deposed to have made statement before the police and that clothes of the deceased were seized by the police in his -:7:- presence. Then he deposed about arrest of Shahanshah Alam accused.
PW4 Hazi Sahib deposed about self immolation by Mahboobi, but he could not tell about reason behind her death. He denied that Mahboobi ever complained to him against Shahanshah Alam. According to the witness, the husband and wife were having cordial relations. He further deposed that Mahboobi did not complain against any person of the family of Shahanshah Alam.
Medical evidence is available in the statement of PW5 Dr. Arvind who conducted autopsy on the dead body of Mahboobi and submitted report Ex.PW5/A. PW8 Dr. Rati Makkar has been examined to prove handwriting and signatures of Dr. Ashok Kumar Jaiswal on MLC of Mahboobi, and handwriting and signatures of Dr. Manu Bhandari on MLC of Shahanshah Alam.
PW9 Sh. J.C. Vashisht, Record Clerk, has been examined to prove handwriting and signatures of Dr. Rajiv Jain in respect of endorsement made on the MLC of Mahboobi.
PW11 Dr. Nishu Dhawan has been examined to prove handwriting and signatures of Dr. Ashok and Dr. Vivek -:8:- on the MLC Ex. PW8/A. PW13 Dr. Vinit Gupta has been examined to prove surgery note Ex.PW13/A to be in the handwriting and signatures of Dr. M.P. Singh.
PW14 Dr. Vivek Sharma has been examined to prove endorsement Ex.PW14/A by way of attestation of statement made by Mahboobi, before I.O. on 10.09.99 at DDU hospital.
PW1 HC Ved Singh deposed about recording of FIR Ex.PW1/A on the basis of ruqqa received from ASI Sekhar Lal, on 10.09.99 at about 2 a.m. PW2 Constable Sunil Kumar deposed to have conveyed information to PS Tilak Nagar vide DD No. 10A regarding expiry of Mahboobi at Safdarjung Hospital, on 13.09.99.
PW3 Bashir Ahmed is a witness to the identification of dead body of his sister Mahboobi at Safdarjung hospital on 14.09.99 and also having collected her dead body vide receipt Ex.PW3/A. PW7 HC P.P. Verghese has been examined to prove that on 10.09.99 at about 11.30 a.m., Mahboobi was brought to hospital in burnt condition, by her husband, and -:9:- that he informed police of PS Tilak Nagar vide DD No. 25A.
PW6 Constable Satbir, PW12 SI Sekhar Lal and PW15 HC Shamsher Singh deposed about investigation part of the prosecution story.
When examined U/s. 313 CrPC, the accused persons admitted their inter-se relationship and also relationship with Mahboobi (since deceased).
Zarina accused denied to have ever maltreated or given beatings to Mahboobi. Her plea is that immediately on learning from her neighbour that Mahboobi had suffered burns, she rushed to her jhuggi and removed Mahboobi to DDU hospital in the company of her brother Shahanshah Alam (accused). According to her, she has been falsely implicated.
Shahanshah Alam accused also denied to have ever given beatings to his wife. As regards the present occurrence, he pleaded in the manner as :
"It is wrong that any such dialogue took place between me and my wife. On that night, I was sleeping outside the jhuggi while my wife was sleeping inside the jhuggi. Lamp was burning inside the -:10:- jhuggi. That lamp was of a small glass bottle. My wife was crying inside the jhuggi that she had caught fire. I immediately got up, entered the jhuggi and found that my wife was on fire. I extinguished the fire and in that process suffered burns on my hands and feet. My sister Zarina also reached there. Many other persons from the locality gathered there. I and my sister Zarina took my wife in a auto-rickshaw to DDU hospital and got her admitted there. I and my wife were medicol legally examined."
He further pleaded that:-
"Smt. Makhtumbi is also my wife. My marriage with Smt. Makhtumbi took place about 10 years back. Prior thereto my first marriage with Mahboobi took place. I and Mahboobi used to reside together in Jhuggi no. 62. Makhtumbi used to reside in another -:11:- jhuggi in Leprosy Colony, situated near Subzi Mandi-Ganna Mandi, Tilak Nagar. I married Makhtumbi because I and Mahboobi were not blessed with any child. I and Makhtumbi were blessed with three children. It was thereafter that I and Mahboobi were blessed with a female child."
As regards present occurrence, he displayed ignorance as to how Mahboobi caught fire inside the jhuggi as he was sleeping outside the jhuggi on that night.
In this way, Shahanshah Alam also pleaded false implication. No evidence has been led by the accused persons in defence.
Arguments heard. File perused.
Occurrence is alleged to have taken place on the night intervening 09/10.09.99 at jhuggi No. W-143/62, Inder Colony near Subzi Mandi, Tilak Nagar, Delhi. Admittedly, Shahanshah Alam (accused No.1) is husband of Mahboobi (since deceased) and Muktumbi (accused No.3 already discharged) is also his wife. Mahboobi set herself on fire at the aforesaid jhuggi on the aforesaid night. She was brought to DDU hospital by her husband (accused No.1) with burns. -:12:- Shahanshah Alam (accused No.1) was also having burns on both his hands and right foot. Both the husband and wife were medico legally examined at the hospital at about 1 a.m. Present case was registered on the statement of Mahboobi recorded by ASI Sekhar Lal wherein she is alleged to have set herself on fire at the instigation of two accused persons present in the dock, and the third, who already stands discharged. Mahboobi left this world on 13.09.1999.
Main stay of prosecution is on the statements Ex. PW12/B i.e. made by Mahboobi before ASI Sekhar Lal, PW4 Hazi Sahib, her brother, PW10 Ahmed Shah, who was living in a jhuggi situated nearby, and medical evidence.
Case of prosecution is that Mahboobi used to be given beatings by her husband prior to the present occurrence and that even on 09.09.99, in the morning, she was given beatings by her husband and also ill-treated by co- accused Zarina, her sister in law (nanad).
So far as factum of beatings by her husband prior to the present occurrence is concerned, PW4 Hazi Sahib, brother of Mahboobi, deposed in court that she had never complained against her husband. She categorically stated that his sister and accused No.1 (her husband), were having -:13:- cordial relations. Then, he stated that his sister did not complain him against any other family member of Shahanshah Alam ( accused No.1).
As regards the present occurrence, he simply deposed that his sister immolated herself about five years prior thereto (with effect from 08.03.2004 when his statement was recorded in court). He displayed ignorance as to what led to her death or to set herself on fire. Thus, statement of PW4 supports the case of prosecution only on the aspect this his sister Mahboobi left this world in the year 1999 after she immolated herself but his statement does not support the case of prosecution regarding any previous incident of beating to Mahboobi by her husband.
PW3 Bashir Ahmed is another brother of Mahboobi (since deceased). He simply deposed about factum of identification of her dead body on 14.09.99 at Safdarjung hospital. He nowhere deposed that his sister ever complained him of any beating or harassment at the hands of her husband or sister in law Zarina (accused No.2).
PW10 Ahmed Shah, living in the neighbourhood of jhuggi of Mahboobi and her husband Shahanshah Alam (accused No.1), deposed that on 09/10 of a month, 5 years -:14:- prior thereto ( with effect from 26.10.2004 when his statement was recorded) at about midnight, he came to know about burning of Mahboobi.
As regards previous incident, PW10 deposed that a quarrel had taken place between Mahboobi and her husband about 2/4 days prior thereto. PW10 displayed ignorance as to what led to quarrel between the two. The witness was put leading questions on behalf of State after seeking permission from the court whereupon he admitted to have stated before the police about a quarrel which took place 3/4 days prior to the present occurrence.
A perusal of statement of PW10 would reveal that he did not depose as to at what time and where such a quarrel took place between the husband and the wife and as to what was the reason/cause of quarrel.
What led to Commission of Suicide by Mahboobi In this respect, prosecution has placed reliance on statement of PW-10 Ahmad Shah, a person living in the neighbourhood of deceased and her husband, and also on the statement Ex.PW-12/B stated to have been recorded by ASI Sekhar Lal at DDU Hospital on 10/09/1999.
Jhuggi of PW-10 was situated at a distance of -:15:- three jhuggis from the jhuggi of deceased and her husband. According to him, on the night of 09/10th of a month, at about 12:15 midnight, he was sleeping in his jhuggi, when he learnt about burning of Mahboobi. On reaching the jhuggi of the accused, he saw Mahboobi being removed in a rickshaw. At that time she was having burn injuries.
As regards the cause of burning of Mahboobi, PW10 displayed ignorance but subsequently deposed that Mahboobi got burnts because of dispute between her and her husband. However, at the same time he stated to have not himself witnessed any fight except the incidence of quarrel which took place between husband and wife 2-3 days prior to the incident of burning. As noticed above, the witness displayed ignorance as to what led to quarrel between husband and wife 2-4 days prior to the occurrence. The witness was put leading questions on behalf of State after seeking permission from the court but he denied to have stated before the police that on the day of incident any quarrel took place between Shenshah Alam (accused) and his wife (since deceased). He further denied to have stated to the police that after the quarrel Mahboobi said that she would kill herself on fire. The witness even denied to have -:16:- made any statement before the police. He denied the suggestion put forth by learned Addl. Public Prosecutor that he was deposing falsely being husband of Zarina accused no.2. In his cross examination, the witness categorically denied that police ever recorded his statement Ex.PW-10/B. According to the witness his statement was recorded on a small piece of paper. He displayed ignorance about the contents of document Ex.PW-10/B. According to the witness, he could not read or write Hindi. According to him, police enquired from him on the following day i.e. 10/09/1999.
All this goes to show that PW-10 Ahmad Shah has not supported the case of the prosecution to the effect that any quarrel took place between Mahboobi and her husband on the night intervening i.i. 09/10-09-1999 or that Mahboobi stated to her husband that she would kill herself by setting herself on fire. The statement of PW-10 does not help the prosecution.
Then there is statement Ex.PW-12/B i.e. of Mahboobi. Learned Public Prosecutor has argued that this statement made by Mahboobi in the hospital on 10/09/1999 should be treated as her dying declaration even if it was recorded by a police official and not by the SDM. It has been -:17:- submitted that a victim cannot be made to suffer if any government official did not act in accordance with rules. Reference has been made to statement Ex.PW-12/B to argue that this statement stands duly proved by Dr. Vivek who appended his endorsement to the effect that it was given in his presence. It has also been submitted that there is nothing on record to suggest that the IO was having any interest in recording statement of the deceased on his own. Then it has been submitted that in view of the allegations levelled by Mahboobi against the accused persons that they abetted commission of suicide, and the fact that her husband did not make any effort to stop his wife from burning, it can be said that prosecution has been able to prove its case against the accused.
Before invoking provisions of section 306 IPC, it has to be established that someone committed suicide and secondly that accused abetted commission of suicide. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in -:18:- pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that things.
Challenging the admissibility of statement Ex.PW12/B, learned defence counsel has argued that Mahboobi was unfit to make statement or put her thumb impression, and it becomes doubtful if she made this statement.
Learned defence counsel has referred to decision in Brij Lal and Anr. V. State (Delhi Administration) 1984 (2) Crimes 987; Chacko V. State of Kerala, 2003 SCC (Crl.) 246 and argued that no reliance can be placed on the statement as a dying declaration. Reference has also been made to decision in State of Maharashtra V. Sanjay, IV (2004) CCR 249 (SC) .
It is true that a dying declaration is not a deposition in court and it is made neither on oath nor in the presence of the accused. It is, therefore, not tested by cross examination by way of an exception to the general rule against the admissibility of hearsay evidence on the principle of necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of his statement -:19:- might defeat the ends of justice. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. ( vide Tapinder Singh v. State of Punjab, (1971) 1 SCJ 751: ( 1970 Cri LJ 1415).
In this case, ASI Shekhar Lal is alleged to have recorded statement Ex.PW-12/B. It is appropriate to refer to the note of caution in Dalip Singh v. State of Punjab, 1979 CrI LJ 700: (AIR 1979 SC 1173) that although a dying declaration recorded by a Police Officer during the course of the investigation, is admissible under S. 32 of the Indian Evidence Act, in view of the exception provided in sub-sec. (2) of S. 162 of the Cr.PC. 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. As observed in Munnu Raja v. State of Madhya Pradesh, (1976) 2 SCR 764: AIR 1976 SC 2199: (1976) Cri LJ 1718), the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. Not that such -:20:- dying declarations are always untrustworthy but, that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.
Mahboobi is alleged to have set herself on fire at about 12 midnight. As per MLC Ex.PW8/A she was brought to Deen Dayal Hospital, on the same night at about 1.10 a.m. by her husband. She was so got admitted with burns over upper limbs, face, neck, lower limbs and back. On this MLC, names of Dr.Rakesh Jain and Dr.Vivek Kumar stand recorded. There is note given by Dr.Rajesh Jain that the patient be admitted in SEW. Under the name of the doctor, there is a note about condition of the patient to make statement. Firstly, initially words UNFIT FOR STATEMENT were written, but subsequently, Letters "UN" were scored off. Secondly, this note does not bear any signatures or date or time. Ordinarily, whenever a patient initially found fit to make statement is subsequently declared unfit to make statement, separate endorsement or note is given by the concerned doctor and note in this respect is duly signed with date and -:21:- time. From all this, it can safely be said that initially the doctor found and opined that the patient was UNFIT to make statement, but then letters "UN" were scored off so as to read this note as FIT to make statement. It was for the prosecution to prove beyond doubt as to who made this note about condition of Mahboobi to make statement and at what time, and as to who altered it by scoring off the initial two letters UN and at what time. Herein, Dr.Rajeev Jain has not been examined. PW9 Sh.J.C.Vashishth, Record Clerk, has been examined to prove handwriting and signatures of Dr.Rajeev Jain. There is nothing on record to suggest as to on which date and time this endorsement/note at point 'A' about condition of the patient to make statement was made and as to on which date and time initial letters UN of the word UNFIT were scored off and by whom. In this situation, this court finds it difficult to place reliance on the note appended at point A on MLC Ex.PW8/A. Consequently, it is highly doubtful if the patient was initially fit to make statement.
As regards endorsement Ex.PW14/A made by Dr.Vivek Sharma to the effect that statement Ex.PW12/B was made in his presence, while appearing in Court as PW14 the doctor deposed that statement Ex.PW12/B was recorded by -:22:- the Investigating Officer on 10.9.1999 at about 1.30 a.m. in the casualty. In this respect, a reference to DD No.85 A Ex.PW12/A recorded at P.S.Tilak Nagar, would reveal that information regarding admission of the injured at DDU Hospital by her husband, reached the police at 1.15 a.m. on 10.9.99. In his chief-examination, PW12-SI Shekhar Lal, Investigating Officer of the case, stated in Court that he recorded statement of Mahboobi at about 1.10/1.15 p.m. But contrary to it, in his cross-examination, the SI deposed that statement of Mahboobi was recorded at about 1.25 a.m. Ruqqa Ex.PW12/C is stated to have been sent by PW12 from the hospital to the police station at about 2 a.m. It is not believable that soon after receipt of information in the police station at about 1.15 a.m, PW12 completed the statement of Mahboobi with endorsement Ex.PW12/C thereto by 2 a.m. As regards opinion of the doctor about fitness of the patient to make statement, PW12 stated that he collected MLC bearing opinion of the doctor that the patient was fit to give statement. Then he deposed to have filed an application seeking permission of the doctor about fitness of the patient. In the next sentence, he deposed that opinion was given on the MLC itself. Investigating Officer has not proved any such -:23:- application filed by him to have opinion of the doctor about fitness of the injured to make statement. PW14 Dr.Vivek Sharma displayed ignorance if Mahboobi was fit or unfit to make statement at that time but at the same time stated that statement Ex.PW12/B was made in his presence. He came forward with the version that the patient had already been certified to be fit to make statement and that he was not the right person to decide if the patient was fit for statement or not. Such an answer cannot be expected from a doctor witness. Rather, from the answer furnished by PW14 it can safely be said that he did not know at all if the patient was fit to make statement while the Investigating Officer obtained his signatures under the statement Ex.PW12/B. It was his duty first to see if Mahboobi was able or fit or competent to make statement and he should have attested the statement only after having satisfied himself that the contents of the statement were read over and explained to the patient and that she understood the same and only then her thumb impressions were obtained at points A and B. The note/endorsement about fitness of the patient to make statement was having overwriting with initial letters UN scored off. The note/endorsement was also not bearing any -:24:- date, time or signatures of any doctor. In this situation, what to say of Dr. Vivek Sharma, even a person of ordinary common knowledge could not rely on such an endorsement or note about fitness of the patient, so as to attest statement of a patient got admitted to the hospital with 95 % burns. But Dr.Vivek Sharma stated in Court that the patient had already been certified to be fit to make statement. All this further creates doubt if Mahboobi was actually fit to make statement. Let's assume for the sake of argument that Mahboobi was declared fit to make statement while she was still at DDU Hospital. It was duty of ASI Shekhar Lal to immediately inform the Sub Divisional Magistrate for recording of her statement, instead of opting to himself record her statement.
At this stage, a perusal of DD No.14 A (Ex.PW12/DX) dated 10.9.99 recorded at P.S.Tilak Nagar would be of much significance. Vide this entry Ex.PW12/DX, at 3.55 a.m. on 10.9.99 information received from Constable Mahesh of Safdarjang Hospital was recorded. This information is to the effect that doctor on duty directed the police for recording of statement of the patient by Sub Divisional Magistrate. This information was then brought to the notice of ASI Shekhar Lal.
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In his cross-examination, the ASI replied to have instructed duty officer to inform senior officers and himself having not given any such information to senior officers, but in the next breath changed his answer to say that he had himself informed senior police officers and the SDM. However, in the next sentence he stated to have not recorded this fact in the Ruqqa. The ASI wants the court to believe that he himself made telephonic call at the office of the SDM but he was informed that the SDM was busy in elections and as such could not come. In this respect, it was for the prosecution to cite the concerned official or the SDM, whosoever was telephonically contacted. But neither any official nor the concerned SDM has been examined to prove that the ASI ever contacted for recording of statement of the patient on such and such date or that the SDM was busy in connection with elections. According to the ASI, he informed the SDM in between 10.9.99 to 13.9.99. But the ASI has not stated as to at what time he so contacted the office of SDM or the SDM. The patient left this world on 13.9.99. There was sufficient opportunity with the police for getting the statement of the patient recorded from Sub Divisional Magistrate, but no step appears to have been taken by the police in this respect. -:26:- So when prosecution has failed to prove that the police took any step to contact the SDM for recording of statement of Mahboobi, it becomes doubtful if she ever made statement Ex.PW12/B before the ASI in presence of Dr.Vivek Sharma on 10.9.99 at 1.30 a.m. As regards two thumb impressions available under statement Ex.PW12/B i.e. purporting to be of Mahboobi, it is pertinent to note that ASI Shekhar Lal stated to have obtained these thumb impressions in the hospital, but a perusal of MLC Ex.PW8/A would reveal that the concerned doctors, who medicolegally examined the patient, could not obtain her thumb impressions on the MLC and the space meant for her thumb impressions is lying blank. When doctors could not get thumb impressions of Mahboobi on the MLC, it is a matter of surprise as to how the ASI succeeded in obtaining her thumb impressions under statement Ex.PW12/B. In suchlike cases, it has to be proved beyond doubt that the maker of the statement put thumb impression or signatures under the statement after its contents were read over and explained by the scribe. In this case, last sentence of the statement Ex.PW12/B is to the effect that she heard -:27:- the statement and admitted it to be correct. But a close scrutiny of statement Ex.PW12/B would reveal that this sentence was inserted by someone else lateron, even after thumb impression at point 'A' came to be affixed. PW14 Dr.Vivek Sharma nowhere stated that the statement was admitted to be correct by Mahboobi. All this leads to the conclusion that this statement Ex.PW12/B was neither read over nor explained to Mahboobi at the time or before the thumb impressions at point A and B were obtained.
Furthermore, there is addition of a material fact in statement Ex.PW12/B. A perusal of statement Ex.PW12/B would reveal that Mahboobi is alleged to have set herself on fire, at 12 midnight. But words "12 midnight" can safely be said to have been inserted lateron in between words Khud (self) and Apne( own). It was for the Investigating Officer to explain as to how these additions were made in statement Ex.PW12/B, but he has not furnished any explanation on this aspect. No explanation on this aspect speaks volumes against the Investigating Officer. Therefore, I see no merit in the contention raised on behalf of the State that the Investigating Officer had no interest in recording statement of Mahboobi.
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Let's assume for the arguments that statement Ex.PW12/B was made by Mahboobi before the police. Even then it cannot be said that any of the accused abetted her to commit suicide.
In statement Ex.PW12/B it stands recorded that Shahanshah (accused), used to give beatings to Mahboobi. As discussed above, prosecution has failed to prove this allegation by leading any evidence and her real brothers have not levelled any allegation against her husband.
It also stands recorded in Ex.PW12/B that husband of Mahboobi gave her beatings in the morning of 9.9.1999 and his sister Zarina, accused, ill treated her. There is nothing in Ex.PW12/B to suggest as to what led to any such beating on that date. As discussed above, prosecution has failed to prove this allegation as well and no cogent and convincing evidence has been led by prosecution in support thereof.
So far as incident of the evening of 9.9.99 is concerned, it stands recorded in Ex.PW12/B that Mahboobi told her husband that in case in future he ever gave her beatings she would set herself on fire, whereupon her husband replied that she could take kerosene oil and set herself on fire, as a result whereof she got enraged and set -:29:- herself on fire. But prosecution has not led any evidence to corroborate this version available in Ex.PW12/B. None of the witnesses examined in this case have deposed about any such incident which allegedly took place in the evening. When prosecution has failed to prove that any incident of beatings to Mahboobi took place in the morning, it can safely be said that there was no occasion for Mahboobi to warn her husband to set herself on fire in case of any beating in future. Keeping in view all this and there being no allegation in the statements of the two brothers of Mahboobi that her husband was maltreating her or she was maltreated on 9.9.99, the contention raised on behalf of the State that Shahanshah accused should have properly kept and maintained his wife is sans merit.
Furthermore, Mahboobi is not alleged to have set herself on fire in the evening. As stands recorded in Ex.PW12/B, she set herself on fire at about midnight. Even if any dialogue took place between husband and wife in the evening, because of absence of any further quarrel or dialogue between the two at about midnight, she cannot be said to have set herself on fire on account of any abetment at the hands of her husband. In Ex.PW12/B it stands recorded -:30:- that Mahboobi had no child and also that her husband who liked his second wife much. These assertions available in Ex.PW12/B reveal that Mahboobi felt annoyed with her husband feeling that he had more intensity of love for Maktumbi. But her brothers have not said even a word in this context. Evidence would reveal that it was the husband, who immediately stepped forward to save his burning wife. Medical evidence establishes that Shahanshah accused had burns on both hands and right foot. He was medicolegally examined on the same night. In the MLC of Mahboobi, it stands recorded that she was brought to hospital by her husband. So when the husband did his best to extinguish fire and in that process suffered burns on his person, and immediately removed her to hospital, it does not lie in the mouth of prosecution that the husband did not take any step to save his wife. Conduct of Shahanshah accused speaks volumes in his favour and it cannot be said that he abetted commission of suicide by his wife.
So far as Zarina accused is concerned, prosecution has not led any cogent and convincing evidence about her presence inside the jhuggi of Mahboobi on the midnight of 9/10.9.99. PW10 Ahamd Shah, husband of Zarina, has -:31:- categorically stated that at the time of incident of burning, Zarina was present in her own jhuggi. Even as per allegations available in Ex.PW12/D, there is nothing to suggest that she was present in the jhuggi of Mahboobi in the evening of 9.9.99 or on the night intervening 9 and 10.9.99. Conclusion In view of the abve discussion this court coms to the conclusion that prosecution has failed to bring home guilt to any of the two accused namely Shahanshah Alam and Zarina. Consequently, both the accused are acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on Dated: 29th of May 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini: Delhi