Delhi District Court
Sc No.11/05, Fir No. 268/01 1 State vs Naim Ansari on 24 July, 2007
SC No.11/05, FIR No. 268/01 1 State Vs Naim Ansari
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
SC No. 11/05
FIR No. 268/01
PS Badarpur
U/s 498A/304 B IPC
State Vs Naim Ansari @ Naimullah Ansari
S/o Sh. Sh. Yusuf Ansari
R/o C-47, Gali No. 18/D
Molarband Extn., Badarpur
New Delhi.
Date of final arguments : 17.7.2007
Date of judgement : 24.7.2007
JUDGEMENT
1. Prosecution case in brief is that on the night intervening 26/27th of May 2001 one DD entry no. 79B was recorded on a telephonic information in which it was informed by one Duty Constable Om Parkash of Safdarjang Hospital that one lady who is wife of Nadim Ansari has been admitted to hospital by her husband and she is having 95% burns. On this information SI Ravi Shankar was sent to the hospital who collected MLC Ex. PW4/A of Smt. Tabbassum (deceased) after taking permission from the doctor. As per this MLC she suffered 95% burns involving her head and neck. He recorded the statement SC No.11/05, FIR No. 268/01 2 State Vs Naim Ansari Ex. PW18/C of Smt. Tabbassum, who stated that on 26.5.2001 at about 9:00 pm her husband and son were sitting on the roof and she was heating the food on her stove, suddenly the kerosene oil burst and fire caught her clothes. She came out of the kitchen to save herself shouting. The tenants of the adjoining rooms came out and extinguished the fire and her husband i.e. accused brought her to hospital. She stated that this incident had taken place accidentally and no one is responsible for it. She also stated that she has no complaint against her husband, her father in law and mother in law and in laws nor any of them ever teased her for dowry or for any other thing. SI Ram Shankar informed SDM Kalkaji. However when SDM reached in the hospital, till then Smt. Tabbassum had already expired. SDM inspected the place of offence and conducted inquest proceedings under Section 176 CrPC. He recorded the statement of Bakauddin (PW1) the father of deceased and Smt. Kitabunisha (PW7) the mother of the deceased. On this statement Ex. PW1/A recorded by SDM, the FIR was registered at the direction of SDM and Investigating Officer proceeded to investigate the case. On 27.5.2001 Investigating Officer prepared site plan Ex. PW18/C. The postmortem of the dead body was conducted on 29.5.2001. As per postmortem report, there SC No.11/05, FIR No. 268/01 3 State Vs Naim Ansari was no mark of physical violence on the dead body. The cause of death was opined to be shock following the inflammation. SDM prepared documents Ex. PW15/C, Ex. PW15/D and Ex. PW15/E, Ex. PW11/A, Ex. PW1/B. The Investigating officer obtained the post mortem report Ex. PW2/A. The dead body of the deceased was handed over to her legal heirs.
2. On 27.5.2001 Investigating Officer inspected the place of incident and seized the kerosene stove, one empty bottle of kerosene and one match box containing burns sticks and some pieces of burns clothes. The stove was got mechanically inspected and as per the report Ex. PW18/D the stove was found to be intact. During the investigation the place of incident was got photographed. Investigating Officer got prepared a scaled site plan Ex. PW16/A. During investigation the Investigating Officer also seized Nikahnama Ex. PW11/A and list of dowry articles Ex. PW11/B. After completion of in investigation charge sheet was filed in the court.
3. After complying with the requirements under Section 207 CrPC, the present case was committed to the Session Court. After hearing arguments on charge, SC No.11/05, FIR No. 268/01 4 State Vs Naim Ansari charge under Section 498A/304B IPC was framed against the accused, who is the husband of the deceased. Accused pleaded not guilty.
4. In order to prove its case prosecution examined in all 19 witnesses. PW1 Bakauddin is the father of the deceased and PW7 Smt. Kitabunisha is the mother of the deceased. PW9 Ms Tarannum is the younger sister of the deceased. She lived with the deceased for about 10 days in the matrimonial house of deceased and accused. She narrated the behaviour of the accused with her sister. PW11 Munaf is brother of the deceased. He also corroborated the testimony of PW1 his father. PW10 Smt. Baby is the tenant of the room in the neighbourhood house of the accused. She testified that when deceased caught fire Naim was sitting on the terrace. PW12 Ram Avtar is friend of the accused. He also testified that he was sitting with accused Naim, Satish and 2 or 3 persons on the terrace because there was no electricity at that time. He testified that at that time the deceased went down stairs for cooking food where she caught fire. PW13 Raj Kumar is also tenant, who was sitting on the terrace at the time of incident. PW17 Mumtaj Ahmad is the common relative of the deceased and accused. He did not support the SC No.11/05, FIR No. 268/01 5 State Vs Naim Ansari prosecution case and turned hostile.
5. PW2 Dr. A. K. Sharma conducted postmortem of the dead body vide his report Ex. PW2/A. He opined that 95% of the total body suffered from burns. Only one third front of abdomen and pubic reason was saved from the burns. No mark of physical violence was found on the body. No smell of kerosene oil found. As per this report the cause of death was shock following flammation. PW4 Dr. Sunish Goel proved MLC of Tabbassum Ex. PW4/A. He testified that she was brought to the hospital with alleged history sustaining burns injuries while she was cooking food on kerosene oil stove which suddenly burst and her clothes got fired and she got burnt. He testified that there were 95% burns on the body of patient. PW19 Dr. Pratik Arora proved the certificate and death summary prepared by Dr. Khollonglongmie on 27.5.2001 regarding the deceased. He proved the certificate Ex. PW18/B regarding the fitness of patient Smt. Tabbassum vide which she was declared fit to make statement on 27.5.2001 at 1:30 am. The death summary was proved as Ex. PW19/A and death report as Ex. PW19/B. SC No.11/05, FIR No. 268/01 6 State Vs Naim Ansari
6. PW3 HC Jorawar Singh had recorded the FIR Ex.
PW3/A. PW5 HC Kishan Lal recorded DD entry no. 9A Ex. PW5/A. PW6 ASI Jai Raj proved register no. 19 Ex. PW6/A. PW8 Ct. Desh Pal took part in investigation. PW16 Manish Nagpal prepared scaled site plan Ex. PW16/A.
7. PW14 Mohd. Yamin inspected the stove recovered from the kitchen where the incident took place. He testified that on checking the said stove he found that it was not damaged and the same was in working condition.
8. PW15 A. K. Singh was posted as SDM Kalkaji on the date of offence. He testified that when he reached at Safdarjang Hospital at 7:45 am on 27.5.2001, Ms Tabbassum had already expired. He recorded the statements of the parents of the deceased, directed the SHO PS Badarpur to register the case, requested autopsy surgeon to conduct the postmortem of deceased, conducted inquest vide report Ex. PW15/D and prepared brief facts which are Ex. PW15/E.
9. PW18 SI Ravi Shankar is the Investigating Officer. SC No.11/05, FIR No. 268/01 7 State Vs Naim Ansari
10. In statement under Section 313 CrPC accused admitted that deceased was his wife. However he denied all other allegations and took the defence that the deceased suffered burns injuries due to burst of stove. Accused did not prefer to lead evidence in defence.
11. Ld. Defence Counsel argues that the dying declaration of the deceased absolves the accused totally. It is further argued that in 2002 VII AD (S.C.) 1 the Supreme Court has held that at the time of death a man is induced by the most powerful consideration to speak only the truth. It is argued by Ld. Defence Counsel that the reliance should be placed upon the dying declaration and should be acquitted.
12. I have considered the above stated submissions of Ld. Defence Counsel. I am of the opinion that Ld. Defence Counsel has read the above stated authority out of context. In para 3 of this judgement the Supreme Court also held as under :-
"The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful SC No.11/05, FIR No. 268/01 8 State Vs Naim Ansari consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth."
13. In the present case the deceased in her dying declaration has stated that when she was heating food on her stove in her room, the stove suddenly got burst and her clothes caught fired. However PW14 Mohd. Yameen a mechanic who inspected the stove found that the stove was not damaged and the same was in working condition. As per the report Ex. PW18/D of this mechanic the stove was found to be in perfectly undamaged condition. The photograph Ex. PW18/1 and 18/5 which are the photographs of the scene of crime show the stove and there is nothing in it to suggest the bursting of it. Further more had the stove burst, the burn injuries would have come only on the front side of the deceased. However the postmortem report shows that there were 95% of burn injuries and almost entire body including head and neck, both upper limbs, both lower limbs, front and back of chest, back of abdomen were found burnt. Therefore it is clear that death of the deceased is not on account of bursting of stove. Since the murder of deceased is ruled SC No.11/05, FIR No. 268/01 9 State Vs Naim Ansari out because no ante mortem injuries were found on the person of deceased and the tenants have testified that at the time of the incident, the accused was on the terrace, the only possibility is that the deceased committed suicide.
14. Now the question to be answered is as to why deceased would not tell the truth before her death. There can be many reasons for such a situation. In the present case the deceased is Indian Muslim lady belonging to a very poor section of society steeped in orthodoxy. The Indian woman keep on tolerating all types of cruelties and when they do not find any type of social or moral support, they take the most gruesome step to end their life. However their mental conditioning of allegiance to their husband may refrain them from making allegations against their husband, specially when she knows that after her death her children require maintenance and protection from their father. In the present case the deceased was taken to the hospital by the accused. Therefore at the time of making dying declaration, she was under the influence of her husband. The deceased was having a small child. In the final moments of her life, she must have been more anxious about the future of her child and therefore she did not make any complaint lest her child is SC No.11/05, FIR No. 268/01 10 State Vs Naim Ansari left unattended, in case her husband is arrested by police. Many times woman in her last moments of her life is in a forgiving mood for her husband. There is evidence on record that deceased suppressed cruelty to her even shortly before the incident. PW1 Bakauddin the father of deceased has testified that on 26.5.2001 at about 9:40 pm accused telephoned him but PW1 could not talk to him because he was taking dinner at that time. After five minutes PW1 rang up at the telephone of landlord of accused and talked to his daughter Tabbassum. Tabbassum told PW1 that everything was normal. Thereafter PW1 had a talk with accused who told him to make Tabbassum understand otherwise something would happen. These circumstances clearly show that in fact everything was not normal and the deceased was concealing the true facts. This conduct of the deceased shows her mind set which is very common to suppressed Indian Women who won't speak a word against their husbands even if the the behaviour of their husbands is extremely cruel. This mind set is the reason as to why the deceased has not spoken a word against her husband, although there is a trustworthy evidence of cruelty inflected upon her by the accused, as would be seen in further discussion. In these circumstances I discard the SC No.11/05, FIR No. 268/01 11 State Vs Naim Ansari dying declaration from consideration.
15. Now this court is to see as to whether the ingredients of Section 304B and Section 498A IPC are fulfilled in the present case or not.
Section 304B IPC reads as under :
304-B, Dowry death.- (1) Where the 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 relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
16. Ld. APP argues that the evidence on record shows that the death of deceased took place within seven years of the marriage. This death was caused by the burns injuries under abnormal circumstances. Ld. APP points out that PW1 Bakauddin the father of the deceased has testified that on 26.5.2001, accused told him on telephone that he should make the deceased the understand otherwise something would happen. Ld. APP argues that this fact proves that accused was treating her with cruelty. Ld. APP further points out that there is evidence on record SC No.11/05, FIR No. 268/01 12 State Vs Naim Ansari that accused used to treat the deceased with cruelty because his demand for Rs.10,000/- was not fulfilled by him. Ld. APP argues that there is enough evidence on record to prove that the deceased was treated with cruelty soon before her death for not bringing Rs.10,000/-.
17. I have considered the submissions of Ld. APP. I am of the opinion that all the ingredients of Section 304B IPC stand proved in the present case except that the cruelty in question was in connection with the dowry demand. In statement Ex. PW1/A before SDM, PW1 Bakauddin does not make any allegation of any dowry demand. Rather the entire stress of his statement is that the accused used to treat her with cruelty because accused used to drink liquor with his landlord and thereafter used to abuse the deceased. Similarly in her statement Ex. PW5/B before SDM, PW7 Kitabunissa does not make any allegation of any dowry demand. PW7 in her testimony has testified that accused Naim used to demand Rs.10,000/- from them through the deceased and at different points of time they had given the money to the accused also. PW1 also testifies that his daughter Tabbassum demanded Rs.10,000/- from him on the ground SC No.11/05, FIR No. 268/01 13 State Vs Naim Ansari that accused required the said money as he has to give it to some person. He does not state anywhere that he paid any money to his daughter or accused at any point of time, rather he testifies that he told his daughter that he was not in a position to give money to her. In view of this contradictory statements of PW1 and PW7 coupled with the fact that in their statements before SDM they levelled no allegation of dowry demand, I am of the opinion that it would be highly unsafe to conclude that the cruelty inflicted by the accused upon the deceased was in connection with the dowry demand. Although PW9 Ms Tarannum, the sister of deceased has testified that accused used to demand Rs.10,000/- from her father but the thrust of her testimony is that accused used to consume liquor and used to pass his maximum time at the house of landlord and thereafter used to beat the deceased. Ld. APP has drawn my attention to Section 113B of Indian Evidence Act. However I am of the opinion that in order to raise presumption under Section 113B, prosecution must prove that soon before her death, the wife was subjected to cruelty for or in connection with demand for dowry. I have already discussed above that the prosecution has not been able to prove beyond reasonable doubt that the cruelty proved by the evidence SC No.11/05, FIR No. 268/01 14 State Vs Naim Ansari of witnesses was for dowry demand. In these circumstances I hold that prosecution has not been able to prove beyond reasonable doubt that it was a dowry death as defined under Section 304B IPC.
18. Now this court is to see as to whether the prosecution has been able to prove its case under Section 498A IPC or not. Section 498A IPC reads as under :
498-A. Husband or relative of husband of a woman subjecting her to cruelty,- Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, 'cruelty' means -
(a) any 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.
19. The perusal of this section would show that apart from the dowry demands, if the conduct of accused is of a SC No.11/05, FIR No. 268/01 15 State Vs Naim Ansari such nature as is likely to drive the wife to commit suicide, such conduct falls within the definition of cruelty as defined under Section 498A IPC. In the present case from the very beginning the witnesses have testified that the accused used to drink liquor with his landlord and thereafter used to beat the deceased. PW9 Ms Tarannum has testified that she stayed for ten days in the house of the accused before the incident. This fact has not been controverted by the accused in cross examination. It is very natural for her to have observed as to how her sister was being treated by the accused. She has testified that accused used to consume liquor and used to pass his maximum time at the house of his landlord. After consuming liquor accused used to beat her. I have no reason to disbelieve the testimony of this witness. It is pertinent to note that in fact the witnesses had made allegations against Satish the landlord also because accused used to drink liquor with him. Therefore I am of the opinion that testimonies of the witnesses in this regard are trustworthy. Testimony of PW9 is also corroborated by the evidence of PW12 Ram Avtar, who has testified that even on 26.5.2001 at about 9:30 pm or 10:00 pm accused was sitting with him, landlord Satish on terrace of the house. PW12 Ram Avtar, PW13 Raj Kumar, PW10 Smt. SC No.11/05, FIR No. 268/01 16 State Vs Naim Ansari Baby are the tenants of the same premises and all of them have testified that when the incident took place, accused was sitting on the terrace with a few persons including the PW12 and PW13 and landlord Satish. All these witnesses although have not stated anything regarding any cruelty committed by accused upon the deceased. However it is a well known fact that tenants either do not know about the physical and mental torture suffered by a wife or they support the husband to maintain good neighbourhood relationship with him. In AIR 1994 Supreme Court 1418 it was held that torture and abuses inflicted upon a daughter in-law are not generally made in public. However sufficient it to say that the testimony of these witnesses have corroborated the prosecution version and testimony of PW9. PW1 Bakauddin the father of Tabbassum has testified that on 26.5.2001 at about 9:40 pm there was a telephonic call from accused. However since PW1 was taking his dinner, accused told him that he would telephone him after five minutes. When accused did not call on telephone to him after five minutes, PW1 himself rang up at the landlord of accused and had a talk with his daughter Tabbassum who told him that everything was normal and that accused was at terrace. Tabbassum called the accused who told PW1 on SC No.11/05, FIR No. 268/01 17 State Vs Naim Ansari telephone that he should make Tabbassum understand otherwise something would happen. After about 2:15 hours the deceased was burnt. I have already opined above that this was not a case of accidental death rather the same is a case of suicide.
20. The above stated sequence shows that although the deceased was suppressing the truth from her parents about this cruelty but the cruelty was writ large in the domestic life of the deceased. PW9 has proved beyond reasonable doubt the cause of this continuous cruelty committed by accused upon his wife which ultimately led to her suicide. The sweep of Section 498A IPC is very wide. It is not limited to the cruelty in connection with the dowry demand only. Every type of cruelty which might lead a wife to commit suicide is covered under this section. There is nothing on record, nor it is the case of the accused that the victim was hypersensitive to ordinary petulance dischord and difference in domestic life quite common to the society. There is no evidence on record that she had lost normal frame of her mind and being over come by unusual psychic imbalance decided to end her life by committing suicide. The evidence adduced in the present case has clearly established that the victim was SC No.11/05, FIR No. 268/01 18 State Vs Naim Ansari subjected to abuses, humiliation and mental torture by the accused. That is why she, although was having a child and was married for the last four years chose, to commit suicide. It appears that she continued to tolerate all humiliations without even making any complaint to her parents. In fact even on the date of incident, when PW1 asks Tabbassum on telephone at about 9:45 pm, she states that everything was normal, although what accused stated to PW1 on telephone reflects that Tabbassum was treated with cruelty.
21. In view of this discussions I am of the opinion that although the prosecution has not been able to prove it a case of dowry death. However it has been proved beyond reasonable doubt that willful conduct of accused was of such a nature which was likely to drive his wife to commit suicide. I accordingly acquit the accused under Section 304B IPC but convict him under Section 498A IPC. Announced in the open court on 24.7.2007.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi SC No.11/05, FIR No. 268/01 19 State Vs Naim Ansari IN THE COURT OF SH. VINOD KUMAR ADDITIONAL SESSIONS JUDGE, NEW DELHI SC No. 11/05 FIR No. 268/01 PS Badarpur U/s 498A/304 B IPC State Vs Naim Ansari @ Naimullah Ansari S/o Sh. Sh. Yusuf Ansari R/o C-47, Gali No. 18/D Molarband Extn., Badarpur New Delhi.
ORDER ON SENTENCE 25.7.2007 Present: Ld. APP for the state.
Convict on bail with counsel Sh. M. Ansari, adv.
It is argued by counsel for convict that he has remained in judicial custody for about 9 months and he be released on the period which he has already undergone during trial.
On the other hand Ld. APP argues that in the present case, due to cruelty of the convict, his wife had committed suicide and therefore sentence should be imposed in view of the gravity of the offence.
I have considered all facts and circumstances. In the present case the victim was subjected to continuous cruelty by the convict. Such type of offences shake the conscience of the society. In the present case the victim is a woman of lower strata of the society in which it is common to treat the wife with cruelty. Such type of offences to my mind require determent punishment so that a right message reaches the SC No.11/05, FIR No. 268/01 20 State Vs Naim Ansari prospective offenders. Considering all facts and circumstances and in view of the gravity of the offences I sentence the convict to rigorous imprisonment for three years and a fine in the sum of Rs.20,000/- In default of payment of fine he shall further undergo simple imprisonment for six months.
The convict has remained in judicial custody from 29.5.2001 to 10.1.2002. Therefore this period of detention be set of against his sentence. After depositing the fine the file be consigned to record room.
Announced in the open court on 25.7.2007.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi