Delhi High Court
State vs Sameer Ali & Ors on 7 February, 2020
Equivalent citations: AIRONLINE 2020 DEL 636
Author: Sangita Dhingra Sehgal
Bench: Manmohan, Sangita Dhingra Sehgal
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 28.01.2020
Judgment pronounced on: 07.02.2020
+ CRL. L.P. 657/2018
STATE ....Petitioner
Through: Ms. Aashaa Tiwari, APP with Insp.
Gyaneshwat Singh, ATO/Seelampur
Versus
SAMEER ALI & ORS. .... Respondents
Through: Mr. Surender Chauhan and
Mr. Gaurav Sharma, Advs with
respondents in person
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. The present leave petition is instituted on behalf of the State
under Section 378(3) of the Code of Criminal Procedure, 1973,
(hereinafter referred as "Cr.P.C.") against the impugned judgment of
acquittal dated 17.07.2018 passed by the Court of ASJ / Special Judge
(NDPS), North East District, Karkardooma Courts, Delhi, (FIR No.
88/2012, P.S. Seelampur), registered under section 498-A/304-B/34
of the Indian Penal Code, 1860 (hereinafter referred as "IPC")
whereby the respondents were acquitted for the said offences.
CRL.L.P. 657/2018 Page 1 of 31
2. The brief facts of the case as noted by the learned Trial Court are as
under: -
"1. In the intervening night of 09/10.03.2012, an
information was received at PS Seelampur which was
recorded vide DD No. 33-A. It was informed that one
Naaz w/o Sameer was admitted at Hindu Rao Hospital at
about 11.40 p.m. Naaz was declared brought dead. The
DD was marked to SI Mukesh Kumar. He alongwith Ct.
Mahender Singh reached the hospital and collected MLC
of Naaz. Relatives of Naaz were not found at the hospital.
SI Mukesh alongwith Ct. Mahender Singh reached at the
address mentioned in the MLC i.e. H. No. A-46, Gali
No.4, Shastri Park, Delhi - 110053. It was found that
Naaz was married about three years prior to her death.
Therefore, concerned SDM was informed. The SDM
reached the spot and recorded statement from one
Saleem s/o Aash Mohd. who was brother of the deceased.
The SDM handed over the statement to SI Mukesh Kumar
for further action. SI Mukesh prepared rukka and got
registered the FIR.
2. Saleem had alleged in his statement that Naaz was
married to Sameer around three years ago. The
middleman Suleman informed him that family of Saleem
was not good family. The middleman told him that they
would have to arrange non-veg food in the marriage and
would have to spend huge money. Saleem alleged that
they had given various articles in the marriage and spent
around Rs.7 lakhs. He alleged that after 1 - 2 months of
marriage, Naaz complained to him that her in-laws were
torturing her for not bringing sufficient dowry. Naaz told
him that she was beaten also by the in-laws. He stated
that Naaz lived separately with Sameer on suggestion of
Mahila Aayog but she had joined back the matrimonial
house 4 - 5 months prior to her death. However, the in-
laws again started torturing her. He alleged that on
10.03.2012 at about 12:45 am after midnight, he received
call from cousin of Sameer and he informed him that
CRL.L.P. 657/2018 Page 2 of 31
condition of Naaz was very bad and she was taken to
hospital. They also reached Hindu Rao Hospital where
they found that Naaz was having mark of knot on her
neck and she was brought dead. He alleged that Sameer,
his parents and his two sisters were responsible for death
of Naaz.
3. FIR was registered u/s 498-A/304-B/34 IPC.
Postmortem was got conducted. Body was handed over to
relatives after postmortem. IO collected exhibits from
hospital. He also collected mobile phone of the deceased
found at the scene of crime. He arrested accused Sameer
Ali. Sameer allegedly confessed to the crime. Copy of
Nikahnama and list of dowry articles were also collected.
Parents of Sameer i.e. Rahat Ali and Farzana were also
arrested. Copies of proceedings conducted at CAW Cell,
Kirti Nagar were also obtained. It was also found that
father of the deceased had arranged Rs. 2 lakhs through
loan from one Jagjit Singh by mortgaging his property.
Money was ultimately paid to the accused persons.
Exhibits were sent to FSL. After completion of
investigation, chargesheet was filed u/s 498-A/304-B/34
IPC against Sameer Ali and his parents Rahat Ali and
Farzana. No material was found against his sisters.
3. After compliance of Section 207 Cr.P.C, charges for offences
u/s 304-B/34 IPC or in the alternative u/s 302/34 IPC and also u/s
498-A/34 IPC were framed against the respondents to which the
respondents pleaded not guilty and claimed trial.
4. In order to bring home the guilt of the respondents, the prosecution
examined 26 witnesses in all. The statement of the respondents was
also recorded under Section 313 of the Code of Criminal Procedure
wherein they pleaded their innocence by denying all the incriminating
CRL.L.P. 657/2018 Page 3 of 31
circumstances and claimed to have been falsely implicated by
prosecution. Respondents examined 05 witnesses in their defence.
5. Learned APP for the State Ms. Aashaa Tiwari opened her
submissions by contending that the impugned judgment dated
17.07.2018 was based on conjectures and surmises; that the view
taken by the learned Trial Court is contrary to the facts of the present
case and that the prosecution has successfully proved its case against
the respondents for the charged offences beyond any reasonable
doubt.
6. Learned APP for the State argued that the learned ASJ failed to
appreciate that the death of Ms. Naaz occurred in a short span of 3
years from the date of her marriage and that the deceased was
subjected to cruelty by the respondents persons soon before her death
in connection with demand for dowry, hence, the respondents are
liable to be punished for the offence punishable under Section
498A/304B/34 IPC. In support of her contention, learned APP
submitted that the father of the victim mortgaged his property in order
to fulfill the demands of the respondent of Rs. 2 lakhs and placed
reliance on the mortgage agreement (Ex. PW-4/A) placed on record.
7. Adding to the said contention, she deposed that the factum of cruelty
is evident from the deposition of the prosecution witnesses who have
deposed on the lines of the prosecutions' case and is corroborated by
the Medical Evidence on record.
8. Learned APP for the State further contended that the evidence on
record further reflects that the deceased was subjected to cruelty on
CRL.L.P. 657/2018 Page 4 of 31
account of demand for dowry on previous occasions also which is
evident from the proceedings before the CAW cell (Ex. PW-3/C).
9. Negating the contentions of the learned APP for the state, the counsel
for the respondents Mr. Surender Chauhan argued that the trial court
while taking into consideration the material available on record
including but not confined to the depositions of the prosecution
witnesses, medical evidence etc have passed the well reasoned
judgment dated 17.07.2018 and the same does not call for this court's
interference.
10. The counsel for the respondents further argued that the complaint
which was filed before the CAW cell (Ex. PW-3/B) was compromised
on 10.03.2011 wherein the deceased unequivocally deposed that she
was having no grievance against her husband and it was decided that
both the deceased and the respondent Sameer Ali will be living
separately from the date of compromise before the investigating
officer.
11. Adding to his submissions, the learned counsel for the respondents
contended that the testimony of the prosecution witnesses reflects that
there was no act of cruelty on the part of the respondents against the
deceased and that the incidents narrated by them were all prior in time
than the settlement before the CAW cell took place. Moreover, even
the medical evidence on record reflects that apart from the ligature
mark caused due to hanging, there were no injury marks on the body
of the deceased which counters the story of the prosecution as to the
deceased being subjected to physical torture in relation to demand for
dowry.
CRL.L.P. 657/2018 Page 5 of 31
12. Concluding his arguments, the learned counsel for the respondents
contended that the witnesses brought in defence by the respondents
have unequivocally deposed that there were no differences between
the deceased and the respondents and they were living a happy life. So
far as the contention relating to the mortgage taken by the father of the
deceased is concerned, the learned counsel for the respondents
contended that the documents relied on by the prosecution which are
(Ex. PW-4/A) and (Ex. PW-4/B) reflect that the said documents are of
sale and not mortgage which falsify the claim of the prosecution as to
mortgaging one room in order to fulfill the respondents' demand of
dowry. In terms of the aforesaid contention, the learned counsel
argued that there exists no reason to interfere with the well reasoned
judgment of the trial court.
13. We have heard the counsel for both the sides at length and carefully
examined the impugned judgment along with the material available on
record as well.
14. At the outset we deem it appropriate to refer to the ingredients of the
offence under section 304B of the Indian Penal Code. In Criminal
Appeal No. 724 of 2019 titled Kashmira Devi vs. State of
Uttarakhand and Ors. decided on 28.01.2020 the Apex Court has
reiterated the ingredients of the offence punishable under section
304-B which are as under:
"18. The Appellant is convicted Under Sections 498-A
Indian Penal Code and 304B Indian Penal Code - dowry
death. For sustaining the conviction Under Section 304B
Indian Penal Code, the following essentials must be
satisfied:
CRL.L.P. 657/2018 Page 6 of 31
(i) the death of a woman must have been caused by
burns or bodily injury or otherwise than under normal
circumstances;
(ii) such death must have occurred within seven years
of her marriage;
(iii) soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or
by relatives of her husband;
(iv) such cruelty or harassment must be for or in
connection with demand for dowry;
(v) such cruelty or harassment is shown to have been
meted out to the woman soon before her death.
(Vide Kans Raj v. State of Punjab and Ors. (2000) 5
SCC 207 and Smt. Shanti and Anr. v. State of
Haryana (1991) 1 SCC 371)."
15. The facts of the present case are clear to the extent of principle (i) and
(ii) as enumerated above. In the present case, we are confined only to
the extent of determining whether the deceased was subjected to
cruelty by the respondents soon before her death in connection with
the demand of dowry.
16. In order to ascertain whether the deceased was subjected to cruelty
soon before her death, we deem it appropriate to refer to the
testimonies of the material witnesses. The prosecution has examined
26 witnesses to prove the charges against the respondents, however,
we may discuss only the material witnesses at the present stage. PW-1
(Saleem) in his statement before the court has deposed as follows:
"Marriage of my late sister Naaz was performed with
Sameer S/o Rahat Ali R/o Shastri Park on 02.04.2009.
Fifteen days prior to the marriage date, the middle man
CRL.L.P. 657/2018 Page 7 of 31
Suleman called me and my brother Alam Khan to his
house and he told me that Sameer S/o Rahat Ali and his
family is not a good family and you will have to spend lot
of money in marriage "MURGE BAKRE KI ROTI KARNI
PAREGI AUR SHADI KA BADA INTZAM KARNA
PAREGA"
We spent huge amount, more than Rs.7 lakhs in the
marriage and gave marriage articles including a
motorcycle, double bed, washing machine, refrigerator
etc. to the accused persons.
After about 1-2 months of her marriage, her in-
laws started harassing her for bringing less dowry. After
about 1½ year of the marriage, accused Sameer left my
sister Naaz at about house and refused to take her back
to her matrimonial house. During this period, the
accused Sameer used to demand cash amount of 1 lac
and 2 lacs on several occasions. He also used to demand
a big car for himself. He sometimes demanded a golden
chain from us.
About 8 days prior to her death, my deceased
sister told me on phone to take her back to her parental
house as she was fed up with the harassment caused to
her by the accused persons. I asked her to bear the
harassment for sometime and to pray with the God.
On 10.03.2012, at about 11.15 p.m., I received a
telephone call from Saleem, who disconnected the
telephone immediately. Thereafter, at about 12.45 mid
night, I received a telephone call from the cousin of
Sameer, who told me that my sister Naaz is serious and
she was admitted at Bara Hindu Rao Hospital. I along
with my brother and other relatives reached at Bara
Hindu Rao Hospital, where doctors told us that she was
brought dead to the hospital and they found signs of knot
(Fanda) on her neck.
CRL.L.P. 657/2018 Page 8 of 31
The Local SDM came there and recorded my
statement vide memo Ex.PW1/A, which bears my
signatures at point A. The SDM also recorded the
statements of my father, brother and mother.
In his cross-examination, PW-1 (Saleem) has deposed as follows:
".... It is correct that my late sister Ms. Naaz had made a
complaint to CAW Cell, Kirti Nagar, after 1½ year of her
marriage. It is correct that in the reconciliation
proceedings before the CAW Cell, my sister had
compromised the matter with her husband Sameer Ali
and both started living separately. My younger brother
Alam Khan used to accompany my late sister to CAW
Cell, as I was unable to accompany her.
....It is correct that I have never visited the
matrimonial house of my sister, after she filed the
complaint in the CAW Cell. It is correct that I have never
visited the house of my late sister, after she compromised
the matter in the CAW Cell and started living with her
husband, separately. Vol. My younger brother Alam
Khan used to visit my late sister. I use a mobile phone. I
had disclosed my mobile number to the police and I have
not changed my mobile number for last about 10 years.
My sister had called me, 8 days prior to her death,
through her mobile phone, on my mobile phone. I don't
remember her mobile phone number now.
xxxx xxxx xxxx xxxx
It is wrong to suggest that even after compromise
before CAW Cell, the relation between my sister and
accused Sameer were good. The daughter of my deceased
sister was born prior to the settlement in CAW Cell, but, I
do not remember her date of birth. The said child is
residing with the accused.
xxxx xxxx xxxx xxxx
CRL.L.P. 657/2018 Page 9 of 31
.... My deceased sister had not called me on phone
on 09/03/2012. I had seen injury marks on her hand and
her stomach, besides the injury mark on her neck. She
was having several haematomas on her head. It is wrong
to suggest that the body of my deceased sisterwas not
having injury marks as stated by me in court today."
17. Another brother of the deceased, Alam Khan was examined as PW-3
who deposed as under:
"Deceased Naaz was my real sister. She was married to
accused Sameer S/o Rahat Ali, accused present in the
Court, correctly identified by the witness on 02.03.2009
at Community Centre, Ashok Nagar, Delhi. We had given
Istridhan in the marriage as per our status i.e.
Motorcycle, Fridge, Cooler, Washing Machine,
Ahlmirah, Double Bed and other furniture, utensils,
jewellery and other articles. After the marriage, my sister
went to the house of accused at Shastri Park, Delhi.
Immediately after the marriage, accused Sameer and his
father Rahat Ali and mother Farzana, also present in the
court today, correctly identified by the witness, started
harassing my sister on account of insufficient dowry.
Huma and Heena, the sisters of accused Sameer, are not
present in the Court also started harassing my sister on
account of insufficient dowry. All the accused persons
used to demand a car and cash of Rs.10 lacs from my
family including my father.
On 26.05.2010, my father had given Rs.2 lacs to
accused Sameer and Rahat Ali on their demand, after
mortgaging one room of our house, which was
mortgaged with one Jagjeet Singh. Thereafter too,
accused persons did not change in their behavior and
used to give beatings to my sister and used to say Sameer
is the only son in the family and we will get a large
amount of dowry and a car, if he would married in
another family. Huma and Heena also used to give
beatings to my sister and used to say that they would get
CRL.L.P. 657/2018 Page 10 of 31
gold chain, if Sameer would married in another family
and they got only silver Pajeb. My sister told me that she
was being given beatings by the accused persons, just
after one or two days of her marriage. She also told me
that the accused persons used to snatch the articles,
given to her by us and hand over the same to the elder
sister of accused Sameer, namely Samreen. She also told
me that the accused used to give her beatings on trivial
issues and some times they even step upon her feet, while
she was sweeping the floor. She further told me that the
accused used to taunt and harass her for insufficient
dowry.
xxxx xxxx xxxx xxxx
On 09.03.2012, my sister Naaz (deceased) made call to
my elder sister, namely Afsari at around 3.30 p.m. and
told her that her susuralwala i.e. in-laws accused
persons were giving beatings to her. Immediately, my
elder sister Afsari informed me, at about 4.00 p.m. and
told me to tell someone and to take back Naaz to our
house and she also told me to visit Sher Mohd.
xxxx xxxx xxxx xxxx
....On 22.11.2010, my sister complaint at women cell. I
can identify her hand writing and signatures. The
complaint addressed to DCP, Nankpura is Ex. PW3/B,
which bears signatures of my sister Naaz at point A, B
and C and I also identify her signatures on other
documents attached with Ex.PW3/B. The note sheet of
proceedings of CAW Cell, Kirti Nagar Ex.PW3/C, which
bears my signatures at point A & B and also bears
signatures of my sister Naaz at point C, D, E & F. On
27.01.2011, at Women Cell the accused Sameer and his
father manhandled with Naaz and said that "tu chahe jha
chali ja tujhe jab tak vapas leke nahi jayenge jab tak unki
demand puri nahi ho gi". In this regard, on 30.01.2011,
complaint at PS Hari Nagar was made by my sister Naaz,
which is Ex.PW3/G, which bears her signatures at point
CRL.L.P. 657/2018 Page 11 of 31
A. After many dates, on 22/02/2011 settlement arrived
and Sameer took my sister Naaz to rented
accommodation. For some period Sameer kept my sister
Naaz properly and thereafter, he succeed to get closed
the complaint Naaz, on 10.03.2011. The accused Sameer
did not mend his behavior and he used to raise his illegal
demands of dowry form my sister Naaz and because of
that my father gave money to the accused on different
occasion and when, my father stopped giving money to
Sameer, he took my sister Naaz back to the matrimonial
house at Shastri Park.
On 09.03.2010, prior to death of my sister Naaz, I
had talked with her on phone many times and she told me
that Sameer, Rahat Ali, Farzana, Huma and Hina are
giving beatings to her with belt and asking her to bring
money from her house.
In his cross-examination, PW-3 (Alam Khan) has deposed that:
I know Jagjit Singh. I do not remember as to when and
how I met Jagjit Singh for the first time. Vol. It's been
almost four years as on date since I know him. I was
present when my father took Rs. 2,00,000/- (two lakhs)
from Sh. Jagjit Singh. It is correct that my signature does
not appear on Ex. PW4/A & Ex. PW4/B. It is incorrect to
suggest that my father sold the property to Sh. Jagjit
Singh and not mortgage the same.
xxxx xxxx xxxx xxxx
.....It is correct that accused persons along with their
family members were present at their house at Shastri
Park when we reached there. It is correct that none of the
accused persons tried to flee from the spot. It is incorrect
to suggest that the house was not found bolted from
inside or that despite our shouting accused did not open
the door. It is wrong to suggest that accused Sameer and
Rahat did not come at the balcony of the house or that
CRL.L.P. 657/2018 Page 12 of 31
they did not say that they had a lot of money or that we
cannot do anything against them.
xxxx xxxx xxxx xxxx
It is correct that my sister withdrawn the complaint
from the CAW Cell as my sister and her husband Sameer
amicable settle their dispute. It is correct that my sister,
her husband Sameer and their daughter started living
separately on rented accommodation. It is correct that
they were living happily at the rented accommodation.
Vol. they lived happily for sometime. It is correct that in
my religion majority of members are non vegetarian and
eat Murga-Bakra happily. Vol. it is not so common in the
area where I reside. It is wrong to suggest that my father
had not spent more than Rs. 7-8 lakhs on the marriage of
my sister Naaz. It is wrong to suggest that Sameer did not
use to make threatening calls to my sister or that he did
not use to say her that he would not take her back unless
his demands are fulfilled.
xxxx xxxx xxxx xxxx
....It is correct that my sister did not make any complaint
from 10.03.2011 to 09.03.2012 to the police against her
husband, in laws and other family members. Vol. she
used to make complaint to us during the said period. It is
correct that we did not report the matter to the police or
to the CAW Cell upon receiving the complaints from my
sister.
18. PW-5 (Aas Mohammad) in his examination-in-chief has deposed as
under:
"I am having five daughters (including deceased) and
three sons. My daughter Naaz @ Ruksana (deceased)
was married on 2nd April, prior to about three years ago
of the death of Naaz with Sameer S/o Rahat Ali R/o
Shastri Park, Delhi. The married was performed
according to Muslim Rituals and Rites at Shastri Park. In
the marriage of my daughter, I have spent money more
than to my capacity and I gave dowry i.e. motorcycle,
CRL.L.P. 657/2018 Page 13 of 31
fridge, cooler, bed, sofa, utensils, jewellery of gold and
silver and other items. After the marriage, my daughter
was taken by Sameer and his family and all the dowry
articles were also taken by her in-laws to the
matrimonial home of Naaz. My daughter Naaz visited my
house, after about 3 days of her marriage.
xxxx xxxx xxxx xxxx
On 08.03.2010, my daughter Naaz gave birth to a girl
child in Hindu Rao Hospital and it was a sezarian birth
and when doctor demanded blood for Naaz, thereafter,
Rahat Ali and Sameer refused to give blood and
thereafter, my son Alam Khan gave his blood. After the
delivery, the aforesaid accused persons started harassing
my daughter Naaz on account of giving birth to a girl
child and they used to say to my daughter that they want
a boy and not a girl. Thereafter, the accused persons
started raising their demand.
On 26.05.2010, I mortaged one room of my house with
Jadish Singh S/o Charan Jeet Singh R/o 1/26, Subhash
Nagar, Delhi for Rs.2,00,000/- because the in-laws of
Naaz used to torture and harass her for not bringing
sufficient dowry. Thereafter, I gave the said Rs.2,00,000/-
to Sameer and Rahat Ali. The documents regarding the
mortgage were handed over to police by Jagjeet Singh.
The photostate copy of the mortgage agreement is
marked as Ex.PW4/A, which bears my signatures at point
A, respectively and photostate copy of receipt is
Ex.PW4/B, which bears my signatures at point A and B.
xxxx xxxx xxxx xxxx
I gave Rs.2 lacs to Rahat Ali and Sameer on the same
day, when I executed the agreement and received amount
from Sh. Jagjeet Singh. After about 10-15 days, my
daughter Naaz was given beatings by her in-laws and
accused Sameer, Huma and Hina and Farzana had left
Naaz near to my house and went away. Thereafter, on the
next day, the accused Sameer told me to keep Naaz at my
house. Naaz thereafter, made a complaint at Women
CRL.L.P. 657/2018 Page 14 of 31
Commission. Accused Sameer, thereafter, compromised
with Naaz. After that, Naaz and her daughter started
residing with Sameer at separate accommodation at
Shastri Park."
19. PW-6 (Shahnawaz) was examined before the court who has deposed
that:
"...In order to meet the demands of Sameer and his
parents, my father had mortgaged our house No. WZ-
668, Tihar Village with Jagjeet Singh for Rs. 2 lakhs and
thereafter, my father gave Rs. 2 lakhs to accused Sameer.
After about 10-15 days of giving money Rs. 2 lakhs, my
sister was turned out from her matrimonial house and
she was left near to our house by Sameer, Uma, Heena
and Farzana. Regarding the harassment and cruelty
made by the accused persons to Naaz, she made a
complaint at Kirti Nagar, CAW Cell.
xxxx xxxx xxxx xxxx
Around 10 or 15 days before the death of my sister a
phone call was made by Naaz to my brother Saleem and
she told that she used to beat by Sameer and Rahat Ali
with belt and her mother-in-law and sister-in-laws joined
them in giving beatings to her and they could kill her
because of dowry demands. My brother made to
understand her that everything would be settle in couple
of days. On 09.03.2012, I and my parents were present at
Gand Nagla near Garh Baksh near Garh Mukteshwar,
UP and in the evening at about 5.00 or 6.00 p.m., a
phone was received by me from my brother Alam Khan,
wherein, he told me that Naaz is being beaten by her in-
laws."
20. The mother of the deceased, Zamila was examined as PW-7 who
deposed that:
"I am having 8 children including deceased Naaz. My
daughter Naaz was married on 02.04.2009, with Sameer
CRL.L.P. 657/2018 Page 15 of 31
Ali S/o Sh. Rahat Ali, according to Muslim rites and
ceremonies. We had spent a sum of about Rs. 7-8 lakhs in
her marriage. We had given the articles like Motorcycle,
TV, Fridge, Cooler, Alhirah, Washing Machine, Double
Bed, Sofa, Brass and Cooper Utensils and other articles
for her use, in her marriage. After her marriage, she
started living at her matrimonial house at Shastri Park,
with the accused persons.
xxxx xxxx xxxx xxxx
On 26.05.2010, we let out our house at Tihar Village on
lease and took a loan on it and paid a cash amount of Rs.
2 lakhs to Rahat Ali and Sameer Ali, to meet their
demands. Thereafter, they treated Naaz better, for some
time, but, thereafter, they again started treating her with
cruelty.
After about 1½ year of her marriage, Naaz gave
birth a daughter at Hindu Rao Hospital and thereafter,
the accused persons again treated her with cruelty and
said that they were expecting a boy child form her. On
objecting the taunts of the accused persons, she was
again given beatings by the accused persons.
xxxx xxxx xxxx xxxx
Thereafter, my daughter lodged and written
complaint at PS Hari Nagar, when, she was receiving
repeated threating calls from the accused persons. My
daughter also lodged a report at Crime against women
cell and in the said proceedings, the matter was got
compromised, with the help of the police officials and the
accused Sameer Ali agreed to reside separately from her
family members, with my daughter Naaz, in a tenanted
accommodation. Accused Sameer Ali also got her
complaint settled at Crime Against Women Cell.
Thereafter, he again started giving beatings to my
daughter Naaz and started demanding money from her.
Thereafter, I paid cash amount of Rs. 5000/- on one
occasion and a cash amount of Rs.7000/- on another
occasions. After about 2-3 months, he again shifted to his
parental house. Thereafter, all the accused persons again
CRL.L.P. 657/2018 Page 16 of 31
started giving beatings to my daughter Naaz on the
demands of bringing dowry. When, my daughter used to
clean the floor, accused Farzana used to her give
beatings on her hands with her feet. My daughter also
used to tell me that accused Heena and Huma also used
to taunt her and they also used to incite accused Farzana
to commit cruelties on my daughter Naaz.
About 10-15 days prior to her death, accused
Sameer Ali had visited our house with my daughter Naaz
and their daughter. Even at that time, accused Sameer
Ali quarreled with us and started hurling abuses on us
and my daughter. My daughter refused to go back to her
matrimonial house with accused Sameer Ali. She also
told me that accused Rahat Ali, Farzana and Sameer
shall kill her, for their demands of dowry. Accused
Sameer Ali forcibly took her back to her matrimonial
house.
In her cross-examination PW-7 (Zamila) deposed that:
It is wrong to suggest that our house at Tihar
Village was sold by my husband and not given on lease.
It is further wrong to suggest that my husband paid Rs.
2 lakh to Rahat Ali and Sameer Ali to meet their
demands. It is correct that my grand daughter namely
Mahira is still residing with the unmarried sisters-in-law
of my deceased daughter."
21. PW-19 (Afsari) the sister of the deceased has deposed as follows:
"I am house wife. Deceased Naaz was my younger sister
who was married with accused Sameer S/o Rahat Ali R/o
A-46, Gali No. 4, Shastri Park, Delhi on 02.04.2009
according to Muslim Rites and Customs. My parents had
spent about Rs. 7,00,000/- in the marriage of my
deceased sister Naaz. In the marriage, refrigerator,
cooler, double bed and motorcycle and jewellery articles
of gold & silver and other articles like brass utensils,
clothes etc. were given in the marriage. Rahat Ali had
asked to provide "Murga Bakre Ki Roti" and to make
CRL.L.P. 657/2018 Page 17 of 31
lavish arrangements "Bade Intezam". We provided
"Murga Bakre Ki Roti" and made lavish arrangements
"Bade Intezam" in the marriage.
xxxx xxxx xxxx xxxx
On this, my father had given Rs. 2,00,000/- after
mortgaging one room to Mr. Jagjeet Singh. Farzana,
Huma, Heena, Sameer and Rahat Ali used to give
beatings to my sister with belt for the issue of bringing
more dowry. My sister was blessed with a daughter
namely Mahi. Even after birth of Mahi, they continued
harassing my sister that she had given birth to a female
child and they wanted a male child. When Mahi was six
months old, Sameer and his all three sisters beaten my
sister and left her at my parental house. When Naaz was
staying in our parental house, Sameer and his family
members used to threaten her that they will not take her
back till their demands were met. They also used to
threaten that they would kill my sister Naaz and her
daughter Mahi.
xxxx xxxx xxxx xxxx
Then, my sister made a complaint against them in Crime
Against Women Cell (CAW Cell) at PS Kirti Nagar on
22.11.2010. However, matter was mutually settled in
CAW Cell and my sister and Sameer Ali had started
residing separately in a rented accommodation. Even
then, Sameer used to pressurize my sister for bringing
money from her parents and my sister used to take money
i.e. sometimes Rs.5,000/-, sometimes Rs.6,000/-,
sometimes Rs.10,000/- from my father or mother for
giving to Sameer Ali. They stayed in the rented
accommodation for 3-4 months and during that time,
Sameer Ali used to demand money from my parents
through my sister. Thereafter, Sameer Ali wanted to take
my sister to his parental house.
CRL.L.P. 657/2018 Page 18 of 31
In her cross-examination PW-19 (Afsari) has deposed that:
It is correct that the dispute between my sister and her
husband Sameer was settled on 10.03.2011 before the
CAW Cell. It is correct that my sister stayed in rented
house along with her husband and daughter separately
for 5-6 months and not for 3-4 months. (Vol. I did not
remember the exact period and I stated 3-4 months on
the basis of guess. It is correct that when I talked or met
my sister during the time she was staying separately, she
had not discussed anything regarding her father in law,
mother in law and her sisters in law. It is correct that
during that time, my sister Naaz made no complaint
against her father in law, mother in law and her sisters in
law.
xxxx xxxx xxxx xxxx
It is incorrect to suggest that my father had not given
Rs. 2,00,000/-"
22. From the perusal of the testimonies of the prosecution witnesses, it is
evident:
• That the deceased was subjected to cruelty for dowry after her
marriage and a complaint (Ex. PW-3/B) against the respondents
was filed by the deceased with the CAW cell after about 1 ½
years of her marriage. However, it is evident from the
testimonies of the material witnesses as well as the record of the
CAW cell (Ex. PW-3/C) that the same was settled before the
CAW cell on 10.03.2011 with the condition that the deceased
will live separately with the respondent Sameer along with her
daughter;
• That after the said settlement before the CAW cell, the
deceased along with her husband lived in a separate
CRL.L.P. 657/2018 Page 19 of 31
accommodation for some time, however, shifted back with the
rest of the respondents after 2-3 months which is evident from
the testimony of PW-7 (Zamila) wherein she has deposed that
"After about 2-3 months, he again shifted to his parental
house.";
• That though the prosecution witnesses have deposed that the
deceased was subjected to cruelty by the respondents even after
the settlement dated 10.03.2011 took place before the CAW
cell, however, there is nothing on record to show that the
deceased or any of her relatives made a complaint to the police
or to the CAW cell. Moreover, the record is also clear that the
deceased had condoned the act of cruelty and started living
together with the respondents;
• That there is no documentary evidence on record to prove the
alleged phone call made by the deceased to PW-1 (Saleem)
eight days prior to the alleged incident;
• That the reliance on the documents (Ex. PW-4/A) to prove that
the father of the deceased mortgaged a room to one Jagjit Singh
in order to fulfill the demand of Rs. 2,00,000/- as dowry does
not hold good as the document on the face of it reflects that the
same is a sale agreement and not a mortgage agreement.
Moreover, there is nothing on record to prove that the said
amount was transferred to any of the respondents.
23. Having perused the testimonies of the material witnesses, we deem it
appropriate to refer to the medical evidence on record. Dr. M.K.
Panigrahi examined the deceased and prepared the post-mortem report
CRL.L.P. 657/2018 Page 20 of 31
(Ex. PW-4/A) and was put to stand as PW-4. In his statement before
the court, he has deposed as under:
"On 10.03.2012, I was posted as CMO, Forensic
Medicines at Hindu Rao Hospital, Delhi. On that day, at
about 1.20 p.m. I had conducted postmortem examination
on the dead body of deceased Naaz @ Rukhsana W/o
Sameer vide PM Report No. HRH/23/12.
On External Examination: There was a ligature mark in
the form of superficial pressure abrasion, brownish black
in colour and measuring about 27 cm long and variying
width with maximum width of 4 cm present on the
anterior aspect of the neck over and above the thyroid
cartilage of neck. On the left side, it runs upwards and
backwards and is placed about 2 cm below the left angle
of the mandible and 5 cm below the left mastoid process
to end on the lateral aspect of left side neck. On the right
side, the ligature mark runs upwards and backwards to
be placed at 4 cm below the right angle of the mandible
and 8 cm below the right mastoid process and ends on
the right lateral aspect of the back of the neck. The
ligature mark was discontinued on the back of the neck,
which measures about 11 cm long. No other visible
recent external injuries detected on the body of the
deceased.
On Internal Examination: All the organs were found
intact and congested. Trachea was found intact with
mucosa congested. Both the lungs were found intact,
oedematous and congested the meninges and the brain
were found intact and congested. Viscera and clothes of
the deceased were preserved, sealed with the seal of
FMHRH and alongwith the sample seal handed over to
IO.
In my opinion, the cause of death of the deceased
in this case could be possible due to asphyxia. The
ligature mark i.e. the external injury No. 1 of the PM
report was antemortem in nature and could have been
CRL.L.P. 657/2018 Page 21 of 31
caused by constriction of the neck by a ligature material
around the neck. The time since death, at the time of
postmortem examination was about 14 to 17 hours
approximately.
xxxx xxxx xxxx xxxx
I have seen Chemical Analysis of Viscera report no.
FSL2012/C-2714 dated 16.05.2013 on the judicial
record. After going through the Viscera report as per
which no common poison was detected in the Viscera of
the deceased, I am of the opinion that death of the
deceased in this case was due to asphyxia consequent to
antemortem hanging.
In his cross-examination PW-4 (Dr. M.K. Panigrahi) has deposed that:
I do not know as to who brought the deceased to the
Casualty of the hospital. There was no other visible
external injury present on the body except the ligature
mark. No definite opinion can be given regarding the
exact nature of ligature material. The death of the
deceased was caused due to asphyxia consequent to
hanging.
24. From the perusal of the testimony of PW-4 (Dr. M.K. Panigrahi) it is
evident that the cause of death of the deceased was asphyxia
consequent to antemortem hanging. Moreover, the testimony of
PW-4 (Dr. M.K. Panigrahi) further makes it clear that there were no
other visible external injury present on the body except the ligature
mark. In addition to the aforesaid, the factum of physical assault on
the person of the deceased is further ruled out from the testimonies of
the defence witnesses. DW-1 (Praveen Sharma), the neighbor of the
respondents has deposed that:
"Accused persons are my neighbour since long, I know
them for the last 35 years. Accused Sameer was married
with deceased Naaz on 02.04.2009. I had also attended
CRL.L.P. 657/2018 Page 22 of 31
the said marriage. The behaviour of accused Sameer as
well as his family members towards Naaz was good and
cordial. Even both the families i.e. family of accused and
family of Naaz were also on good terms. I did not notice
any quarrel or dispute between Naaz and accused
persons.
I had also attended celebration of birth of
daughter to Naaz and Sameer. I say that family of
Sameer was happy due to birth of the girl child. The
family members of Naaz had not attended the said
function.
On 09/10.03.2012 at about 10:30/11:00 pm, I was
present at my home. I came to know that Naaz had
committed suicide. Prior to her death, I did not notice
any quarrel or fight between Naaz and accused Sameer
or any of his family members. One day prior to death of
Naaz, I had visited house of accused persons as accused
Rahat Ali had come from hospital on that day. Naaz had
even offered me tea. I did not sense any dispute between
Naaz and accused persons. Even Naaz never complained
to me about any ill-treatment by the accused persons.
The accused persons are family of good-natured people
and are well behaved in the society.
In his cross-examination DW-1 (Praveen Sharma) has deposed that:
Naaz had lived separately from her in-laws with her
husband for about 5-6 months. It was 7-8 months prior to
her death. The house of the accused persons is big one. It
is wrong to suggest that Naaz started living separately
because of ill-treatment and torture by her in-
laws/accused persons. (Vol. in fact Naaz herself wanted
to live separately but after separation, she used to come
for whole day to the matrimonial house). House of
accused persons is adjacent to mine. I used to visit house
of accused persons at least every month. (Vol. There was
no fixed schedule). Naaz had also visited my house once
or twice. I had heard that Naaz had filed a complaint
against the accused persons with Women Commission. I
CRL.L.P. 657/2018 Page 23 of 31
am not aware if the Women Commission gave any
directions to the accused persons. It is wrong to suggest
that Naaz was being tortured for bringing more dowry or
that she used to be beaten in this regard. It is wrong to
suggest that being neighbour of the accused, I am giving
evidence falsely in their favour. It is wrong to suggest
that I am deposing falsely."
25. The testimony of DW-1 (Praveen Sharma) finds corroboration from
the testimonies of the other defence witnesses who have all deposed
on the lines of DW-1 (Praveen Sharma).
• DW-2 (Shahbuddin) has deposed that One day prior to
09.03.2012, I had visited the house of accused persons. The
atmosphere in the house was cordial. Naaz had even offered me
tea and snacks. I did not notice any dispute between Naaz and
accused persons. Even Naaz never complained to me about any
ill-treatment by the accused persons.
• DW-3 (Mohd. Farukh) has deposed that I was not having any
interaction with Naaz however, she used to interact with my
wife and children in my house. Naaz never complained to my
wife about any ill-treatment or torture by accused Sameer.
Naaz was having a daughter with her and she used to visit my
house along with her.
• DW-5 (Begum Anisa) has deposed as I had regular interaction
with Naaz (since deceased) as the window of my house and the
window of house of Naaz were facing each other and there was
a distance of about 8 feet between the windows. We used to talk
regularly while standing on the window and also deceased
CRL.L.P. 657/2018 Page 24 of 31
Naaz used to visit my house on several occasions. During my
meeting with Naaz she had never made any complaint against
her husband and any of her in-laws. Naaz was having very
cordial relation with her husband and in-laws.
26. Hence, the medical evidence on record when read along with
testimony of the defence witnesses reflects that there was no quarrel
between the respondent Sameer Ali with the deceased and the
deceased was not subjected to any kind of physical assault soon before
her death.
CONCLUSION
27. What constitutes "soon before death" for the offence punishable
under section 304B of the IPC has been elaborately dealt in Criminal
Leave Petition No. 474/2015 titled State vs. Sandeep Kumar and Ors.
decided on 27.01.2016 wherein one of us (Sangita Dhingra Sehgal, J.)
was a member. The relevant portion has been reproduced hereunder:
"9. In Raman Kumar Vs. State of Punjab (2009) 16 SCC
35, Hon'ble Supreme Court observed:
"13. The provision has application when death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any
relatives of her husband for, or in connection with
any demand for dowry. In order to attract
application of Section 304B IPC, the essential
ingredients are as follows:
(i) The death of a woman should be caused
burns or bodily injury or otherwise than
under a normal circumstance.
CRL.L.P. 657/2018 Page 25 of 31
(ii) Such a death should have occurred
within seven years of her marriage.
(iii) She must have been subjected to cruelty
or harassment by her husband or any
relative of her husband.
(iv) Such cruelty or harassment should be
for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to
have been meted out to the woman soon
before her death.
14. xxxxxxxxxx
15. xxxxxxxxxxAs per the definition of "dowry
death" in Section 304B IPC and the wording in the
presumptive Section 113B of the Evidence Act, one
of the essential ingredients, amongst others, in
both the provisions is that the woman concerned
must have been "soon before her death" subjected
to cruelty or harassment "for or in connection with
the demand for dowry". Presumption under
Section 113B is a presumption of law. On proof of
the essentials mentioned therein, it becomes
obligatory on the court to raise a presumption that
the accused caused the dowry death. The
presumption shall be raised only on proof of the
following essentials:
(1) The question before the court must be
whether the accused has committed the
dowry death of a woman, (This means that
the presumption can be raised only if the
accused is being tried for the offence under
Section 304B IPC.) '
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
CRL.L.P. 657/2018 Page 26 of 31
(3) Such cruelty or harassment was for, or
in connection with any demand of dowry.
(4) Such cruelty or harassment was soon
before her death.
16. A conjoint reading of Section 113B of the
Evidence Act and Section 304B IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to
bring it within the purview of the "death occurring
otherwise than in normal circumstances". The
expression "soon before" is very relevant where
Section 113B of the Evidence Act and Section
304B IPC are pressed into service. The
prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence
in that regard has to be led in by the prosecution.
"Soon before" is a relative term and it would
depend upon the circumstances of each case and
no straitjacket formula can be laid down as to
what would constitute a period of soon before the
occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a
proximity test both for the proof of an offence of
dowry death as well as for raising a presumption
under Section 113B of the Evidence Act. The
expression "soon before her death" used in the
substantive Section 304B IPC and Section 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 the expression "soon
before" used in Section 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
CRL.L.P. 657/2018 Page 27 of 31
of goods soon after the theft, is either the thief who
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 cruelty or harassment
concerned 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 death concerned. If the alleged incident of
cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of the
woman concerned, it would be of no consequence."
10. In Amar Singh v. State of Rajasthan (2010) 9 SCC 64,
Hon'ble Supreme Court observed:
"29...What is punishable Under Section 498-A or
Section 304-B Indian Penal Code is the act of
cruelty or harassment by the husband or the
relative of the husband on the woman. It will be
also clear from Section 113-B of the Evidence Act
that only when it is shown that soon before her
death a woman has been subjected by any 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
within the meaning of Section 304-B Indian Penal
Code. The act of subjecting a woman to cruelty or
harassment for, or in connection with, any demand
for dowry by the accused, therefore, must be
established by the prosecution for the court to
presume that the accused has caused the dowry
death."
CRL.L.P. 657/2018 Page 28 of 31
28. Applying the aforesaid principles to the present case, the findings are
twofold. Firstly, the act of cruelty on the part of the respondents for
which the complaint was registered before the CAW cell cannot be
said to have a proximate link with the death of the deceased as it has
come on record that the deceased was living happily with the
respondents and there is nothing to the contrary on record. Secondly,
the medical evidence negates the existence of any act of cruelty
immediately before the death of the deceased wherein it has come that
there were no injuries apparent on the person of the deceased.
29. Hence, in terms of the above discussion, there is nothing on record to
prove that the deceased was subjected to cruelty in order to fulfill the
demand for dowry by the respondents soon before her death.
Consequently, the presumption of section 113B of the Indian Evidence
Act cannot be raised against the respondents in the present case.
30. It is settled law that any acquittal order cannot be lightly interfered
with by the Appellate Court, though it has wide powers to review the
evidence and to come to its own conclusion. Further, the power to
grant leave must be exercised with care and caution because the
presumption of innocence is further strengthened by the acquittal of an
accused. The Apex Court while dealing with the powers of an
appellate court in an appeal against acquittal, in Sampat Babso Kale
and Ors. vs. The State of Maharashtra reported in AIR 2019 SC 1852
held as under: -
"7. With regard to the powers of an appellate court in an
appeal against acquittal, the law is well established that
the presumption of innocence which is attached to every
Accused person gets strengthened when such an Accused
CRL.L.P. 657/2018 Page 29 of 31
is acquitted by the trial court and the High Court should
not lightly interfere with the decision of the trial court
which has recorded the evidence and observed the
demeanour of witnesses. This Court in the case of
Chandrappa and Ors. v. State of Karnataka (2007) 4
SCC 415, laid down the following principles:
42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal
is founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition
on exercise of such power and an appellate
court on the evidence before it may reach its
own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as,
"substantial and compelling reasons", "good
and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear
in mind that in case of acquittal, there is
double presumption in favour of the
accused. Firstly, the presumption of
CRL.L.P. 657/2018 Page 30 of 31
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law.
Secondly, the Accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."
31. For the abovementioned reasons, this Court does not find any reason
to interfere with the impugned judgment.
32. Accordingly, the present leave petition, being bereft of merit, is
dismissed.
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J. FEBRUARY 07, 2020 afa CRL.L.P. 657/2018 Page 31 of 31