Delhi District Court
State vs . Parvez on 13 October, 2010
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IN THE COURT OF SH. GURDEEP SINGH:ASJ 04
NORTH EAST DISTRICT: KARKARDOOMA COURTS:DELHI
State Vs. Parvez
S.C No. 74 / 0 8
FIR No: 248 / 2 0 0 6
PS: Gokalp u ri, Delhi
U/s:4 9 8 A/304 B/ 3 4 IPC
13 / 1 0 / 2 0 1 0
O R D E R O N S E N T E N C E
Pr.: Sh. Virender Singh, Ld. Addl. PP for the state
Convict Parvez in J / C .
Sh. O.P Aggarwal, Advocate for the convict.
Argume n t s heard on the senten ce.
It is sub mitted on behalf of the convict that convict is
young perso n whose age is about 28 Years and he is gainfully
employed. It is sub mitted that convict is not a previous
convict and has clean antecede n t s. He is the sole bread earner
of his family. It is further sub mitted that he has old aged ill
parent s to support and the age of his ill father is about 64
years. It is further sub mitted that convict is in J / C since the
year 2006 and keeping in view, his cond u ct during the trial,
lenient view is prayed for.
On the other han d Ld. Addl. PP for the state sub mits
that this is very seriou s type of offence which is the result of a
greed of some person s who haras s the young brides to force
their paren t s to meet their unlawful dema n d in the name of
FIR No. : 248/06, PS:Gokalpuri Page 1 of 47
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dowry. Therefore, he be given the maxim u m punis h m e n t
provided under the law.
Despite the amen d m e n t in the law long back, there has
not been any respite from the social evil of dowry and the
bride is not yet treated as the family member and the
daugh ter in the house of her in laws. This is one of the basic
reason that the sex ratio is seriously against the female in
India. The several efforts and sche me s launc h e d by the
Govern me n t has bore no fruit and change in the situ ation.
The paren ts dread if daugh ter is born in their family, not
beca u se the paren ts do not want the daugh ter s to be born but
on accou n t of suc h incidents where the young bride losses her
preciou s life in the han d s of greedy dowry seekers. Unless
suc h evil is dealt with an iron han d, the situ ation is not likely
to improve. In this case, the bride died with hanging after five
mont h s of her marriage with the convict. She had severe
injuries on her body to show the hell let lose on her by the
convict.
The convict is held guilty for the offence punis h a ble U/s
498 A/30 4 B IPC. Keeping in view the facts and
circu m s t a n c e s of the case, I am of the opinion that convict is
not entitled to any leniency. Accordingly, I sentence the
convict Parvez to undergo rigorous imprison me n t for 10 years
for the offence punis h a ble U/s 304 B IPC. The convict is
further sente nce d to undergo rigorous impriso n me n t for a
FIR No. : 248/06, PS:Gokalpuri Page 2 of 47
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period of 03 years and fine of Rs. 20,000 / for offence
punis h a ble U/s 498 A IPC. In default of payme n t of fine, he
shall further undergo simple imprison me n t for six month s .
Both the sente nce s shall run concur re n tly.
Fine, if recovered, shall be paid to the paren ts of the
deceased.
Since, the convict is in J / C from the very beginning, the
benefit U/s 428 Cr. PC given to the convict.
Copy of the judgme n t and order on sente nce be given to
the convict free of cost.
File be consigned to record room.
Announced in the open
court today i.e on 13.10.20 1 0
GURDEEP SINGH
AS J0 4 / N E / KKD / 1 3 .10 . 2 0 10
FIR No. : 248/06, PS:Gokalpuri Page 3 of 47
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS:DELHI
FIR No. : 248/06
PS : Gokalpuri
U/s : 498A/304B/34 IPC
Unique Case ID : 02402R0 314512006
In the matter of
The State
Versus
1.Parvez S/o Sh. Munsi Khan R/o : B174, Gali No. 20, Mustafabad Delhi.
2. Nawab S/o Sh. Munsi Khan R/o : B114, New Mustafabad Delhi.
3. Nazma W/o Sh. Raja Babu R/o : B114, New Mustafabad Delhi.
4. Chand Bibi W/o Nawab R/o : B114, New Mustafabad Delhi.
...ACCUSED Session Case No. : 74/08 Date of Institution : 9.6.2006 FIR No. : 248/06, PS:Gokalpuri Page 4 of 47 5 Date of reserving judgment/order : 5.10.2010 Date of pronouncement : 6.10.2010.
J U D G M E N T
1. Above named accused persons were sent up to stand trial by police of PS Gokalpuri for offence punishable u/s 498A/304 B/34 IPC.
2. Briefly the prosecution case is that on 3.4.2006, wireless operator informed at the police station that Chaudhary Nawab has informed from his mobile phone that his sisterinlaw had hanged herself at H. No. 114, New Mustafabad, Eidgah Gate. On this information DD No. 18 A was recorded and SI Imadul Islam alongwith Ct. Virender were sent to spot. Area SDM was also informed. He reached at the spot and SHO also reached at the spot. Crime Team was called. Spot was inspected. Hanging rope was taken from the fan. No eye witness was found. The dead body was sent to the Mortuary, GTB Hospital. On 7.4.2006 SDM reached at the spot where Abida Begum got her statement recorded alleging therein dowry related harassment upon her daughter and suspected Parvez, Nawab, Nazma and Chand Bibi behind her death. On her statement FIR u/s 498 FIR No. : 248/06, PS:Gokalpuri Page 5 of 47 6 A/304 B/34 IPC was registered and the investigation was handed over to Inspector B. S. Kushwah. Accused Parvez, husband of the deceased and Nawab were arrested. They made their disclosure statement. Accused Chand Bibi and Nazma were absconding. Process u/s 82 Cr.PC were taken against them. After the investigation of the investigation accused Parvez and Nawab were chargesheeted.
3. Subsequently accused Nazma and Chand Bibi were also chargesheeted by way of supplementary chargesheet after their arrest. Vide order dated 25.1.2007, the chargesheet was tagged with the main case and it was directed that both the cases be tried together.
4. After supplying the necessary copies, the case was committed to the court of session vide order dated 26.06.2006 by Ld. MM.
5. My Ld. Predecessor, after finding primafacie, charged the accused Parvez and Nawab for offence punishable u/s 498A read with Section 34 IPC and u/s 304 B read with Section 34 IPC vide order dated 20.07.2006, to which accused pleaded not guilty and claimed trial. Subsequently vide order dated FIR No. : 248/06, PS:Gokalpuri Page 6 of 47 7 29.03.2007, the accused Nazma and Chand Bibi were also separately charged for offence punishable u/s 498A read with Section 34 IPC and u/s 304 B read with Section 34 IPC, to which they also pleaded not guilty and claimed trial.
6. The prosecution in support of their case examined as many as 11 witnesses.
The prosecution examined following material witnesses : PW1 Smt. Abida, mother of deceased and PW2 Sh. Mohd. Chaman, father of the deceased Anisha. PW3 Sh. L. R. Meena, Executive Magistrate as he the then was, who proved the death report as Ex.PW3/A, statement of Abida Begam as Ex.PW 1/A and statement of PW2 Mohd. Chaman as Ex.PW2/B. The prosecution also examined following formal witnesses :
PW4 Sh. Satpal Arora, Head Clerk as he the then was, is the witness who recorded the statement of witnesses on the dictation of SDM. PW7 Dr. Arvind Kumar proved the postmortem report as Ex.PW7/A, which was prepared by Dr. Barkha Gupta, as she left the services of the hospital and noticed 11 antemortem injuries apart from the ligature FIR No. : 248/06, PS:Gokalpuri Page 7 of 47 8 antemortem injury were in the postmortem report. Dr. Barkha Gupta opined the cause of death was asphyxia due to antemortem hanging and injury no. 2 to 11 were produced from blunt force impact.
PW8 SI Dinesh Kumar is the Incharge Crime Team who reached at the spot and inspected the spot. PW10 Dr. Atul Gupta, is the witness who assisted Dr. Barkha Gupta, who conducted the postmortem on the dead body. PW11 HC Anil Kumar is the photographer, crime team who took photographs of the spot from different angles and proved the same as Ex.PW9/C1 to PW9/C10 and its negatives as Ex.PW9/C11 to PW9/C20.
The prosecution also examined following witnesses of investigation : PW5 SI Aimadul Islam is the part IO, who proved seizure memo of plastic patti (niwar) as Ex.PW5/A, statement of Md. Akil and Md. Chaman regarding identification of dead body as Ex.PW5/C and Ex.PW2/A and brief facts as Ex.PW5/B in addition to other memos and identified the plastic patti as Ex.PW5/Article1. PW6 HC Vinod Kumar is the witness of arrest of accused Parvez and Nawab and their FIR No. : 248/06, PS:Gokalpuri Page 8 of 47 9 disclosure statement. PW9 Inspect B. S. Kushwaha, is the IO, who proved site plan as Ex.PW9/A, seizure of photocopy of marriage card as Ex.PW9/B,
7. The statement of accused persons were recorded U/s 313 Cr.PC. Accused persons denied the prosecution evidence and claimed innocence.
8. Accused Parvez admitted his marriage with the deceased on 20.11.2005 and stated that he did not make a telephonic call to PW1 that Anisha has suffered from heart attack and stated the call was made by some neighbourer. He further stated that he has been falsely implicated in this case. The deceased was having affair with Rakib and she was married with him by her parents against her wishes. He had once apprehended the boy and had given beatings to him. The deceased was with him at that time and she was wanted to save the boy. She committed suicide because she was in love with that boy. He was present at Chandani Chowk when she committed suicide. He stated that he wants to lead evidence in his defence, however, later on chose not to lead evidence in his defence. FIR No. : 248/06, PS:Gokalpuri Page 9 of 47
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9. Accused Nawab also admitted marriage of the deceased with the accused Parvez. He stated that witnesses are interested and officials and he has been falsely implicated in this case at the instance of father of the deceased. He had heard that the deceased was having affair with Rakib and she was married with Parvez by her parents against her wishes. He is innocent. He also stated that he wants to lead evidence in his defence, however, later on chose not to lead evidence in his defence.
10. Accused Chand Bibi also similarly stated on the line of statement of her husband.
11. Accused Nazma also admitted marriage of the deceased with the accused Parvez. She has stated that he is innocent and has been falsely implicated in this case at the instance of parents of the deceased. She is sister of Parvez and married woman. She is living separately at Dakshin Puri with his husband. At that time, she was hospitalized in Lady Harding Hospital being pregnant. She had heard that the deceased was having affair with Rakib and she was married with Parvez by her parents against her wishes. She is innocent. She similarly stated that she wants to FIR No. : 248/06, PS:Gokalpuri Page 10 of 47 11 lead evidence in her defence, however, later on chose not to lead evidence in his defence.
12. I have heard Sh. Virender Singh, Ld. Addl. PP for the State, Sh.
J. P. Garg, Advocate for the complainant, and Sh. O. P. Aggarwal, Advocate for all accused persons. I have also heard Sh. J. P. Garg, Advocate for the complainant . I have gone through the record.
13. PW1 Smt. Abida Begum testified that Anisha was her daughter and she was married to accused Parvez according to Muslim rites and religion about two years ago. After marriage, her daughter Anisha started living with accused Parvez in Mustafabad. After three months of the marriage, accused Parvez came to her house with her daughter and he demanded Rs. 1 lac and on asking as to for what purpose he was demanding the said money, accused Parvez did not disclose the purpose. They could not arrange the said money, hence, accused Parvez went to his house at Mustafabad with her daughter. After one week, she alongwith her husband went to the house of accused Parvez for taking her daughter Anisha FIR No. : 248/06, PS:Gokalpuri Page 11 of 47 12 back. When she talked to her daughter Anisha, she told that she was being harassed by the accused persons Parvez, Nawab who is jeth of her daughter, Nazma who is nand of her daughter and Chand Bibi who is jethani of her daughter for unlawful demand of Rs.1 lac, which she could not arrange and her daughter further asked to give Rs.1 lac otherwise, she (Anisha) would be killed. She alongwith her husband brought her daughter Anisha back to their home. Thereafter after 10 day, accused Parvez came to her house and took her daughter again with him. After some days, her daughter telephoned to them and she told to arrange Rs.1 lac as she was being harassed again and again, on this, she told her daughter that she would not be able to arrange so much amount as she was married just now and then, telephone was disconnected. Thereafter some days, accused Parvez telephoned them and she asked him to allow her daughter to talk with her but accused Parvez disconnected the telephone. On the next date at about 12:00 noon time, again accused Parvez telephoned her and informed that her daughter Anisha received heart attack. On this, she called her husband from his work and then she alongwith her husband reached the FIR No. : 248/06, PS:Gokalpuri Page 12 of 47 13 house of accused Parvez at Mustafabad where they found Anisha dead there. Police officials were present there. Public persons were gathered there. She found injury marks on her face and other parts of her body but her daughter was not taken to hospital. She gave statement before the SDM. She further stated that her daughter has been murdered by the accused persons, for unlawful demand of Rs.1 lac and they should be punished.
14. PW2 Mohd. Chaman father of the deceased testified that deceased was married with accused Parvez on 20.11.2005 according to Muslim Rites and religion. After marriage of her daughter, Anisha started living with her husband and other accused persons at Mustafabad. About three months of the marriage, accused Parvez came to his house with his daughter Anisha and demanded Rs.1 lac but they could not give the said money as they were unable to arrange the said money as Anish was married just now. Thereafter accused Parvez took away his daughter Anisha with him at Mustafabad and he alongwith his wife started living with tension for unlawful demand of Rs.1 lac from the side of accused persons. After some time, Anisha FIR No. : 248/06, PS:Gokalpuri Page 13 of 47 14 telephoned them that accused persons Parvez, Nawab, Nazma and Chand Bibi were demanded Rs. 1 lac and to arrange the same but they could not give the same as they were unable to arrange so much amount. Accused Parvez also telephoned and demanded Rs. 1 lac which he refused as he was unable to arrange the same. Thereafter on 5.4.2006 when he was at his work, his wife telephoned her that she has received telephone from the inlaws of Anisha that Anisha received heart attack. On receipt of this information, he came back to his house. He alongwith his wife went to the house of the accused Parvez at Mustafabad where many persons had gathered there. Police officials were also present. His daughter Anisha was dead. There were injury marks on the face of his daughter Anisha.
15. PW5 SI Aimadual Islam testified that on 5.4.2006 on the receipt of DD No. 18 A, he alongwith Ct. Gajraj reached at the spot at near Idgah in a room of a house, where he found that a dead body of a lady was lying on a cot. He informed the SDM concerned in this regard. SDM reached at the spot and he conducted the proceedings there. The dead body was sent to FIR No. : 248/06, PS:Gokalpuri Page 14 of 47 15 GTB Hospital. He had seized the plastic patti (Niwad) which was hanging with the fan.
16. PW8 SI Dinesh Kumar testified that on 5.4.2006 he was posted as Incharge Mobile Crime Team (NE) Dist. Delhi and on that day he received a message from control room and on the receipt of the same he reached at the spot at B114, New Usmanpur 33, Ft. Road, where he found that a dead body of a lady was lying on the bed. He came to know she had strangulated herself. He also found at the spot that one plastic niwar was hanging on the fan. He inspected the spot.
17. PW11 HC Anil Kumar testified that on 5.4.2006 he was posted as constable/photographer in Crime Team, NorthEast District and on that day he reached at the spot at B114, Gali No. 20, New Mustafabad, near Idgah and on instruction of IO and Incharge Crime Team taken 10 photographs of the spot and dead body from different angles.
18. Therefore when the police and crime team reached at the spot, the dead body had been brought down from the ceiling fan and was lying on the bed/cot. Dr. Barkha Gupta, who had conducted FIR No. : 248/06, PS:Gokalpuri Page 15 of 47 16 the postmortem on the body, observed 12 antemortem injuries on her body, out of which injury no.1 is regarding hanging.
19. Ld. Counsel for the accused submitted that there are material inconsistencies between the testimonies of the witnesses and alleged demand is not specific. Further submitted that the prosecution could not prove that there was dowry harassment soon before her death and cited following judgments :
i. Amritlal vs. State M. P., 2006 (2) Recent Criminal Reports (Criminal) 491. This is a judgment of Madhya Pradesh High Court, (DB) (Indore Bench) with respect to the postmortem report. In the said case, it was held that the postmortem report cannot be relied on without examining the doctor even if the defence counsel has admitted the same. Further the same cannot be read against the accused if the same is not put to the accused in his statement u/s 313 Cr.PC. This judgment has no application to the facts of the present case as the postmortem report was put to the accused persons in their statements u/s 313 Cr.PC. Further the doctor who had FIR No. : 248/06, PS:Gokalpuri Page 16 of 47 17 signed the postmortem report and was present at the time of postmortem had been examined as PW10 Dr. Atul Gupta.
ii. State vs. Jane Alam and Anr. 2005 (2) Acquittal 287, judgment of Calcutta High Court. In the said case, the deceased wife died on account of burn injuries, FIR was lodged by father alleging dowry demand. Mother of the deceased spoke about dowry demand by improving upon her statement u/s 161 Cr.PC statement. In those facts accused was acquitted. The said judgment is on its facts and is not applicable to the facts of the present case. iii. P. Laxman Reddy vs. State of A. P. 2005 (2) Acquittal 206, judgment of Andhra Pradesh High Court. In the said case, the deceased wife died on account of poison. It was observed that expression 'soon before' would normally imply that interval should not be much between cruelty and death in question and there must be a proximate and live link. The accused was acquitted on the ground that there was no convincing evidence to show that deceased was subjected to harassment soon before death. FIR No. : 248/06, PS:Gokalpuri Page 17 of 47
18 This judgment reiterates the legal position on the subject. iv. Hira Lal and others vs. State Govt. of NCT, Delhi, AIR 2003 Supreme Court 2865. It was held that 'soon before' does not indicate any fixed period but applies proximity test, live link between effect of cruelty and death is necessary. In the said case there was no demand of dowry at the time of marriage as per evidences and subsequent grievances made, were resolved by authorities of crime against woman cell. The court held that settlement arrive therein did not relate to dowry demand and there was no definite evidence of illtreatment having immediate proximity to date of death of deceased. Hence accused was acquitted. This judgment was also on its fact and not applicable to the facts of the present case. It also reiterates law on the subject.
v. Suvarnasingh Tiratsingh Dhanjal vs. State of Maharashtra, 2006 (1) Recent Criminal Reports (Criminal) 921. This is a judgment of Bombay High Court (DB). In the said case, there was no demand of dowry before or at the time of marriage. The husband was FIR No. : 248/06, PS:Gokalpuri Page 18 of 47 19 demanding cash, fridge etc. after six months of marriage.
It was held that the said demand is not a demand in connection with marriage and demand does not come within the definition of dowry under Dowry Prohibition Act. However, with due respect, this judgment does not lay down correct law as the subsequent observation would show.
vi. Sanju @ Sanjay Singh Sengar vs. State of M. P. AIR 2002 Supreme Court 1998. This judgment is with respect to abetment of suicide. This case has no application to the facts of the present case as the present case is of dowry death.
vii. Sunil Bajaj vs. State of M. P. AIR 2001 Supreme Court 3020. In the said case, no evidence of demand of dowry or subjecting deceased to cruelty for or in connection with dowry and there were vague and inconsistent statements of interested witnesses being parents and brothers of the deceased and there was no demand of dowry at the time of marriage. In view of material, contradiction and serious omission, the accused was acquitted. The judgment was FIR No. : 248/06, PS:Gokalpuri Page 19 of 47 20 on its facts and not applicable to the fact of case in hand. viii. Gananath Pattnaik vs. State of Orissa, (2002) 2 Supreme Court Cases 619. In this case, the accused was acquitted u/s 498A IPC. The hon'ble Supreme Court held that the statement of the witnesses to the effect that the deceased woman had stated to them that she was not treated well by her husband and inlaws for nonfulfillment of dowry amount are admissible u/s 304B IPC by virtue of S. 32 (1) of Evidence Act, however, not admissible for the offence u/s 498A IPC. This judgment is applicable to the facts of the case in hand as it lays down the law regarding admissibility of evidence.
ix. Teg Bahadur and Ors. vs. State of Rajasthan, VI (2004) Supreme Law Today 62. In this case the State has gone appeal against the acquittal on the basis of the discrepancies and inconsistencies. The appeal was dismissed. This judgments was on its own facts. x. State of Karnataka vs. Gnanendra & Ors, 2006 (4) RCR (Criminal) 664. This is a judgment of hon'ble Karnataka High Court (DB). It was a case of death on account of FIR No. : 248/06, PS:Gokalpuri Page 20 of 47 21 burn injuries. As per the prosecution, the deceased had made oral dying declaration before her father. The Court held that the oral dying declaration is not reliable. This case is also not applicable to the facts of the present case as there is no dying declaration.
xi. State vs. Surender and another, 2009 (2) RCR (Criminal)
8. This is a judgment of hon'ble Punjab and Haryana High Court. In the said case, the mother lived separately at different place and had no occasion to make demand of dowry and her acquittal was upheld. Further held that it was simple marriage and no demand of dowry was made. The brother alleged that accused was making demand of Maruti Car and he had given cash on three occasions but unable to give the details of amount paid, acquittal was upheld. This judgment was also on its facts, and not applicable to the facts of the case in hand. xii. Bhim Singh and others vs. The State of Haryana and others, 2009 (2) RCR (Criminal) 558. This is also judgment of hon'ble Punjab and Haryana High Court. The said case is of suicide by taking poison. The court FIR No. : 248/06, PS:Gokalpuri Page 21 of 47 22 held that the defence was able to show that father of deceased, his sons and daughter were short tempered and one of his sons committed suicide by throwing himself before running train and thus there was suicidal tendency in the family, on these facts the accused was acquitted. It was also held that demand of Rs.1.50 lacs was made for construction of the house, which does not fall within the definition of dowry. This judgment was also on its facts and not applicable to the facts of present case. xiii. Sarwan Singh and others vs. State of Punjab, 2009 (2) RCR (Criminal), 649. This is also a judgment of hon'ble Punjab and Haryana High Court. In the said case, it was held that interval should not be much between cruelty or harassment concerned and the death in question, proximate and live link between the effect of cruelty based on dowry demand and death is required. This judgment reiterate the law on subject.
xiv. Gurucharan Kumar and another vs. State of Rajasthan, AIR 2003, Supreme Court 992. In this case the deceased died after two months of marriage. The deceased wrote FIR No. : 248/06, PS:Gokalpuri Page 22 of 47 23 letter to her mother and friend not supporting the prosecution that the deceased was being subjected to torture and harassment and on those facts the accused was acquitted. This judgment is also not applicable to the facts of present case.
xv. Chandrama Singh and others vs. The State of Bihar, 2006 (3) RCR (Criminal), 105. This is judgment of hon'ble Patna High Court. In the said case, it was held that mere demand of dowry unaccompanied by any mental or physical torture, does not fall within the essential ingredients of 'dowry death' and in the absence of cruelty and harassment no presumption u/s 113B of the Evidence Act can be drawn. This judgment reiterates the legal position on subject.
xvi. Surinder Kaur and another vs. State of Haryana, AIR 2004 Supreme Court 1747. In the said case, there was charge against sistersinlaw of the accused aged about 18 years and 16 years respectively and unmarried. Allegations were general and no particulars were given and held that the harassment was not proximate to death FIR No. : 248/06, PS:Gokalpuri Page 23 of 47 24 which was after two and half months of the marriage and accused were acquitted. This judgment was also on its facts and not applicable to the facts of present case. xvii. Shailender & Anr. vs. State (Govt. of NCT of Delhi), 2010 V AD (DELHI). This is judgment of our own High Court. In the said case, the deceased was known to her husband prior to marriage and both family consented to their marriage. No dowry was demanded at the time of marriage. No complaint of dowry demand was made till her death. In letter written by her, it was only mentioned that husband used to pick quarrel and scolds her and there was no mentioning of demand of any dowry and doctor had also opined that she was suffering from 'anxiety neurosis'. The hon'ble High Court upheld that ingredients for offence u/s 498A IPC proved against husband and acquitted the other accused and further held that there was no abetment to commit suicide on the part of the accused and therefore he was acquitted for offence punishable u/s 306 IPC and further held that the presumption u/s 113 (A) Evidence Act is not mandatory in each and every case. FIR No. : 248/06, PS:Gokalpuri Page 24 of 47
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20. On the other hand, Ld. Addl. PP for the State submitted that as per the postmortem report, there were 12 injuries noticed which were antemortem in nature and same has not been explained. The burden to explain these injuries was on the accused u/s 106 of Indian Evidence Act. Further submitted that the essential ingredients to constitute the offence have been proved by the prosecution against the accused and presumption u/s 113 B Indian Evidence Act is attracted against the accused.
21. Let's have the over view of the law on the subject which find reiteration in same judgments, cited by the Ld. Counsel for defence.
22. In order to attract the offence punishable u/s 304B IPC the following ingredients must be proved i. The death of woman should be caused by any burns or bodily injury or occurs otherwise than under normal circumstances;
ii. such death should have occurred within seven years of her marriage; and iii. 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, FIR No. : 248/06, PS:Gokalpuri Page 25 of 47 26 any demand for dowry
23. Further, what is the meaning of dowry ? As per the Section 304B IPC, it is the same as provided under Section 2 of Dowry Prohibition Act, 1961. The precise meaning of the same is beautifully observed by Hon'ble Supreme Court in case titled as Satvir Singh vs. State of Punjab, 2001 A.I.R. (SC) 2828. To quote :
22. 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 mentioned in Section 304 B should be any property or valuable security given or agreed to be given in connection with the marriage.
24. In a recent judgment of hon'ble Supreme Court of India, in case FIR No. : 248/06, PS:Gokalpuri Page 26 of 47 27 titled as Ashok Kumar vs. State of Haryana AIR 2010 Supreme Court 2839 reiterates the same and held that the expression used in Dowry Prohibition Act for dowry are of wide magnitude. To quote :
11. From the above definition it is clear that 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expression 'or any time after marriage' and 'in connection with the marriage of the said parties' were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively.
These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression 'in connection with the marriage' cannot be given a restricted or a narrower meaning. The expression 'in connection with the marriage' even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time ie at, before or after the marriage, would be covered under this definition, but the demand of FIR No. : 248/06, PS:Gokalpuri Page 27 of 47 28 dowry has to be ' in connection with the marriage' and not so customary that it would not attract, on the face of it, the provisions of this section.
Further in the same judgment Hon'ble Apex Court have also explained the meaning of expression 'soon before death'
14. We have already referred to the provisions of Section 304B of the Code and the most significant expression used in the Section is 'soon before her death'. In our view, the expression 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have be read in conjunction with other relevant provisions and scheme of the Act. Further the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454] : (2009 AIR SCW 928), held that the legislative object in providing such a radius of time by employing the words ' FIR No. : 248/06, PS:Gokalpuri Page 28 of 47 29 soon before her death' is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similarly view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98] :
(AIR 2005 SC 1411 : 2004 AIR SCW 7299), where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty alongwith the demand of dowry and the death of the victim. For want of any specified period, the concept of reasonable period would be application. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of the given case.
25. Now coming to the facts of the case in hand. The marriage of FIR No. : 248/06, PS:Gokalpuri Page 29 of 47 30 the deceased with the accused Parvez took place on 20.11.2005 and she died on 5.4.2006 ie after about four and half months after the marriage. The deceased died within the seven years of marriage by way of hanging ie otherwise under normal circumstances. Therefore first two ingredients to constitute the offence punishable u/s 304B IPC stand proved against the accused.
26. Now, the prosecution is required to prove, the other ingredient and, if, prosecution, succeeds in proving and showing 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, the court shall presume that accused persons have caused dowry death and shall raise presumption u/s 113B Indian Evidence Act.
27. To prove the same, the prosecution has examined material witnesses ie PW1 Smt. Abida Begam and PW2 Mohd.
Chaman, mother and father of the deceased Anisha. PW1 Smt. Abida Begam admitted in her crossexamination that after the marriage of her daughter, she was living normally in her FIR No. : 248/06, PS:Gokalpuri Page 30 of 47 31 matrimonial home for first three months and accused Parvez and her daughter used to visit her house frequently during those three months and she (daughter) never made any complaint. She further admitted that accused Parvez was plying three wheeler auto at the time of marriage but she cannot say whether he owns the same or not. Parvez demanded Rs.1 lac from her and when she asked the purpose of Rs.1 lac, he did not give any reply. He did not give any statement to the police that Parvez demanded Rs.1 lac for the purpose of TSR. She does not know whether Parvez owns a motorcycle at a time of marriage. She does not know the day, date, month of the visit of accused Parvez and her daughter to her house being illiterate. No quarrel or dispute arose on the day, when the alleged demand was made and accused and her daughter went silently. She stated that accused came after about 10 days after the earlier visit and voluntarily stated that she had brought her daughter after one week. She was present alone at her house at the first visit when the demand was raised and on the second visit her younger son Imran and herself were present. She stated that when her daughter made complaint against her inlaws to her FIR No. : 248/06, PS:Gokalpuri Page 31 of 47 32 no one else was present. She told this fact to her father after twothree days. Accused Parvez did not visit on third occasion or thereafter to her house. Her daughter told her over the telephone that her inlaws were harassing her for money and named nand Najma, Jethani Chand, Jeth Nawab and her husband Parvez. She, however states that she does not know the date and time of receiving of telephonic call from her daughter. She stated that the telephonic call was received on mobile phone. The said mobile phone was stolen. She does not know the number of the said mobile phone. No report of the theft of the mobile phone was lodged at the police station. She was confronted with her statement that she has received telephonic call over the mobile phone, wherein the word 'mobile' is not mentioned however the word 'telephone' is written. She stated she does not know when a court question was put to her whether she knows the difference between the mobile phone and fixed line telephone. The mobile was in the name of her husband. Her husband used to leave the mobile phone in the house. She further stated that on the one day before the death of her daughter, she received a telephonic call from accused FIR No. : 248/06, PS:Gokalpuri Page 32 of 47 33 Parvez between 8:00 pm to 9:00 pm. The said telephonic call was also received on the mobile phone, however, she does not know the date when the telephonic call was received. Her younger daughter Asmin received the telephonic call and handed over the same to her. Another telephonic call was received on the next day at about 12:30 pm on the date of death of her daughter. After the marriage, she visited the house of accused Parvez fourfive times. Her daughter made complaint against her inlaws only when she brought her to her house. Her statement was recorded twice, one at the office to the SDM and another at the police station. She denied the suggestion that no demand of Rs.1 lac was made from her by the accused. She, further, denied the suggestion that her daughter had love affair with the boy living their neighbourhood and that is why she committed suicide as she was married against her wishes.
28. On the other hand PW2 Mohd. Chaman, father of the deceased, stated in his crossexamination that he never received the telephonic call of accused Parvez or her daughter directly and voluntarily stated that her wife received the telephonic call. He has mobile connection even today. The mobile phone which FIR No. : 248/06, PS:Gokalpuri Page 33 of 47 34 he is having even on the date of his evidence is the same which he was having at the time of incident and telephone number is 9899468763. He usually leaves his telephone at his house while going for job. They do not have any other mobile connection or telephone since beginning. He admitted that first three months after the marriage, there was no complaint made by her daughter against her inlaws. The demand of Rs.1 lac was not made in his presence and voluntarily stated that her wife told her about the same. His wife told him that she had inquired about the purpose of money Rs.1 lac, but he did not tell the same and left the house in angry mood. He also denied that in his statement he had stated that the accused had demanded Rs.1 lac for purchase of TSR and voluntarily stated that police did not record his statement and only SDM recorded his statement. He stated that he cannot say whether accused Parvez was having due love and affection with his daughter and voluntarily stated that he was all right for first three months and admitted that the Parvez was plying three wheeler auto at the time of marriage but he does not know whether the same was owned by him. Further admitted that he cannot tell the reason FIR No. : 248/06, PS:Gokalpuri Page 34 of 47 35 of demand of Rs.1 lac and voluntarily stated that they inquired but accused did not reply the reason.
29. Ld. Counsel for accused submitted that the witnesses are inconsistent and they are concealing material facts and therefore they are not reliable. Further submitted that alleged demand of Rs.1 lac was not in connection with dowry as no purpose was given and hence the offence punishable u/s 304B IPC is not made out.
30. PW1 Smt. Abida Begam stated that the telephone call was received on mobile phone and the said mobile phone has been stolen whereas her husband states that the mobile phone was never stolen and it is still with him even on the day when he made statement before the court.
31. It is true that the PW1 has deposed falsely to this effect but whether this fact alone can discredit the witness ? Law is well settled that if a witness deposes falsely in some part of his/her statement, the entire testimonies cannot be rejected. Both witnesses are consistent that there was everything normal for first three months and thereafter the demand was made and both FIR No. : 248/06, PS:Gokalpuri Page 35 of 47 36 are consistent that demand was made by the accused only in presence of PW1. Both witnesses are also consistent that the telephonic call was received by PW1 alone and both are consistent that the accused did not disclose the purpose of Rs. 1 lac and despite inquiry about the same. Therefore the witnesses have consistently proved that the accused after three months of the marriage made demand of Rs.1 lac and after one week of marriage when her daughter was brought she told that she was being harassed by accused Parvez and other coaccused for demand of Rs.1 lac which she could not arrange. They also proved that after some days they received telephonic call from her daughter she was being harassed again and again and thereafter again telephonic call was received and the accused Parvez did not allow deceased to talk over the telephone and on the next date, the accused made telephonic call that Anisha had received heart attack.
32. Ld. Counsel for the accused submitted that the demand was made and the accused and daughter left silently and no quarrel took place and therefore there is no question of harassment of the deceased on account of nonfulfillment of the demand. FIR No. : 248/06, PS:Gokalpuri Page 36 of 47
37 Further the accused was already having a TSR and motorcycle, therefore, he was no need of the amount and this is false version.
33. Merely because no quarrel took place at the time of raising demand, does not mean that the accused Parvez would not harasser her later on. Rather for the purpose of fulfillment of the demand, harassment is caused through the wife by the husband from their inlaws because the such demand would be fulfilled if they see that their daughter is being harassed on account of money and by that method the money is extracted from the parents of the girl and they are coerced into making payment under the circumstances so created. The accused was having TSR does not mean that he would not make further demand. The statement of Abida Begam, mother of the deceased, made before the SDM also corroborates her statement that her daughter and her soninlaw had come to her house before three months and her soninlaw had demanded Rs. 1 lac and when she inquired about the same he did not disclose the same and thereafter after one week, she brought her daughter to their house where she told her that her inlaws were FIR No. : 248/06, PS:Gokalpuri Page 37 of 47 38 harassing her for unlawful demand. The demand of money was made in this case 'soon before her death'. Now only question arises whether the demand of Rs.1 lac was in connection with the dowry or otherwise. The demand was made soon after the marriage ie after three months of the marriage and was persisted with till last. It was nothing but demand of dowry. The demand of dowry can be made before or at the time of marriage or subsequent to the marriage which can take place at any moment during the subsistence of marriage, therefore, the demand in the present case is also that of dowry.
34. Therefore the prosecution has succeeded in proving that the deceased died otherwise under normal circumstances within seven years of marriage. The doctor who conducted the postmortem noticed following ante mortem injuries :
i. Reddish brown colour, hard, dry, parchment like ligature mark was present on the neck above the level of thyroid cartilage. In centre, ligature mark was present above thyroid cartilage and upper margin was 4.5 cm below centre of chin and lower margin 13 cm above sternal notch, mark was 1.5 cm in thickness and FIR No. : 248/06, PS:Gokalpuri Page 38 of 47 39 0.3 cm deep. From here it was running on right side going backward, upward obliquely and situated 4 cm below to right angle of mandimal, going to back and then disappear over the hair line. On left side it was going upward and backward obliquely just below the left angle of mandimal and present up to 7.5 cm lateral to mid line and from there of it was absent on left side and back of neck the thickness of ligature mark on left and right side was 0.6 cm and 0.3 cm deep. No knot impression was observed. On dissection of neck area beneath of ligature mark was pale with ecchymosis of the margin with fracture of left greater cornue of hyoid bone.
ii. Purplished bruise 1.5 cm x 1 cm on external aspect of left eye lid.
iii. Multiple purplished bruise on left side of face and temple area in an area of 10 x 5 cm.
iv. Multiple purplished bruise on chin and surrounding chin in an area of 9 cm x 3.5 cm.
v. Purplished bruise left side of middle of neck placed FIR No. : 248/06, PS:Gokalpuri Page 39 of 47 40 obliquely 2.5 cm x 0.4 cm, 4 cm lateral to mid line and 7.5 cm above centre of left clevical.
vi. Purplished bruise on left breast 2 cm x 2 cm, 4 cm lateral to left nipple and 16 cm below tip of shoulder. vii. Purplished bruise 6 cm x 6 cm on middle of back of right arm, 16 cm above elbow joint.
viii. Multiple purplished bruise varying from 0.5 cm x 0.5 cm to 3 cm x 1.5 cm in an area of 14 cm x 6.5 cm placed at outer aspect of right arm.
ix. Reddish bruise of size 0.2 x 0.2 cm on dorsum of left hand,6 cm below the wrist joint.
x. Purplished bruise 4 cm x 1.5 cm at upper part of right back, 4 cm lateral to mid line and 12 cm below hair line.
xi. Purplished bruise 16 cm x 6 cm on right side of upper back, 14 cm below tip of shoulder.
xii. Bite mark of size 3 cm in diameter circular of left side of back, 13 cm lateral to mid line and 24 cm to the tip of left shoulder.
35. The deceased had 11 injuries which were otherwise than injury FIR No. : 248/06, PS:Gokalpuri Page 40 of 47 41 caused on account of hanging which would show that she was subjected to harassment and physical cruelty. The accused persons were put a specific question while recording their statement u/s 313 Cr.PC to explain the injuries, however, to which accused Pravez replied that it is incorrect and other accused stated that they do not know. The deceased was living in the house alongwith the accused persons, therefore, it was for the accused persons to explain as to how and under what circumstances, the deceased had sustained injuries which they are failed to explain. Therefore the presumption u/s 106 of Indian Evidence Act is attracted against the accused and it had to be held that those injuries were caused by the accused Parvez which amount to physical cruelty.
36. As regards the other accused persons PW1 Abida Begum has stated that her daughter told her over the telephone that her in laws were harassing her for money and named nand Najma, Jethani Chand (Bibi), Jeth Nawab and her husband Parvez but all the telephonic calls were made by accused Parvez and the demand was also personally made by the accused Parvez. She has also stated in her crossexamination that she does not know FIR No. : 248/06, PS:Gokalpuri Page 41 of 47 42 the date and time of receiving the telephonic call from her daughter when she alleged the harassment against the accused. PW2 has stated that telephonic call was received by her wife and therefore as to the fact that the daughter had made telephonic call and made complaint against Chand Bibi, Nazma and Nawab regarding harassment on account of Rs.1 lac cannot be relied upon. Therefore against these three accused persons, there are no specific allegations and therefore they are entitled to benefit of doubt.
37. Once the prosecution succeeds in proving that the soon before her death, she was subjected to cruelty for or in demand of dowry, the presumption u/s 113 (B) IPC is attracted against the accused Parvez and the court can presume that the such person has caused dowry death. Therefore, as per the presumption, I am of the opinion that the accused Parvez has caused dowry death.
38. The accused has taken defence that the deceased was having love affair with some boy and she was married with him against her wishes and therefore she committed suicide, but he has not FIR No. : 248/06, PS:Gokalpuri Page 42 of 47 43 led any evidence to rebut the presumption against him. Rather the circumstances under which the dead body was found also suggests that the accused was directly involved with her death. The dead body was not found hanging on the ceiling fan by the IO but was lying in bed, which is also a circumstance which raises presumption against accused that he has caused the death of deceased.
39. Ld. Defence Counsel has further submitted that there are inconsistencies in the testimonies of other witnesses and witnesses have given quite different description regarding ligature material. He stated that PW5 SI Aimadual Islam testified that SDM reached at the spot and he conducted the proceedings there whereas PW3 SDM states that he had not reached at the spot and had reached at the hospital. Further Ld. Counsel submitted that PW5 has stated that one plastic patti (niwad) of red colour having stitching on both sides approximately 2.50 mt/3.00 mt. having knot at one side, was found whereas PW8 SI Dinesh Kumar stated that the same which was seized by PW5 whereas IO PW9 Retd. Inspector Sh. B. S. Kushwaha claims in his crossexamination that it was FIR No. : 248/06, PS:Gokalpuri Page 43 of 47 44 a round shaped rope which was hanging from the from and the same was not flat like 'niwad'. Two PWs are consistent that it was niwar shape of material and the material produced before the court was also niwar. In fact PW9 was entrusted with the investigation subsequently and even the said material was deposited by the PW5 SI Aimadual Islam in the mallkhana. Therefore the investigating officer ie PW9 B. S. Khuswah is making statement only on the basis of his assumption. Even otherwise even if there are inconsistencies with respect to ligature material, it does not in any manner bring down the credibility of other witnesses. Therefore all the evidence suggest that accused Parvez was the husband of the deceased has caused her dowry death and accordingly it is deemed that the accused Parvez has caused her death.
40. Now coming to the offence punishable u/s 498A IPC. Ld. Counsel for accused has cited judgment of Hon'ble Supreme Court titled as Gananath Pattnaik vs. State of Orissa, (2002) 2 Supreme Court Cases 619. PW1 has proved that the accused made demand of Rs.1 lac and further the statement that the deceased had alleged that the accused was causing harassment FIR No. : 248/06, PS:Gokalpuri Page 44 of 47 45 on her on account of dowry demand, however could not be proved in view of the law laid down by the Supreme Court in case and the same is not admissible u/s 32 of Indian Evidence Act. Further the court observed as to what amounts to cruelty u/s 498A IPC. The same can be culled out from the said judgment :
6. We do not agree with the argument of the learned counsel for the appellant that even on proof of the aforesaid circumstance, as noticed by the trial court, no case was made out against the appellant as, according to him, those facts even proved do not constitute cruelty from the purposes of attracting the provisions of Section 498A of the Indian Penal Code. Cruelty for the purposes of the aforesaid section has been defined under the Explanation of the section to mean :
"(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (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."
7. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the FIR No. : 248/06, PS:Gokalpuri Page 45 of 47 46 purpose of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.
41. In the present case, as per the postmortem report of deceased, there were eleven antemortem injuries on her body which speaks volume about physical cruelty committed on her before her death and therefore the evidence u/s 498A IPC is also stands proved against accused Parvez. As regards the other co accused, no demand was made by these accused persons directly from PW1 and the evidence of PW1 is not admissible u/s 32 of Evidence Act to the effect that her daughter had told her that the accused persons were harassing her on account of nonfulfillment of dowry demand of Rs.1 lac. Therefore they are entitled to give benefit of doubt u/s 498A IPC.
42. Therefore, as per above discussion, I am of the opinion that prosecution has successfully proved offence punishable u/s 304B IPC and 498A IPC against the accused/husband Parvez beyond reasonable doubt. Accordingly accused/husband Parvez is convicted for the offences punishable u/s 304B IPC and 498 FIR No. : 248/06, PS:Gokalpuri Page 46 of 47 47 A IPC. As regards other coaccused Chand Bibi, Nazma and Nawab, they are given benefit of doubt and are acquitted of the charges. Bail bonds of these accused persons stands cancelled. Their surety discharged. Case property, if any, be destroyed after the period of appeal. File be consigned to record room. Announced in the open court today i.e. on 6.10.2010 GURDEEP SINGH ASJ04/NE/KKD/Delhi.
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