Delhi District Court
Sc No. 28097/2016 State vs Fahim & Ors 1/35 on 26 February, 2018
IN THE COURT OF SH. PRASHANT KUMAR, ASJ-04 (CENTRAL)
TIS HAZARI COURTS, DELHI
Case Sessions Case No.:-28097/2016
Unique ID no.:-02401R0022682014
CNR No. DL CT01-002011-2014
State
Vs.
1. Fahim
S/o Sh. Sirajuddin
2. Shuaib
S/o Sh. Sirajuddin
3. Junaid
S/o Sh. Sirajuddin
4. Sirajuddin
S/o Late Sh. Sarafuddin
5. Smt. Shamina
W/o Sh. Sirajuddin
All are R/o:-
H.No. 2643, Shankar Gali, Turkman Gate, Delhi
Case arising out of:-
FIR no. : 148/13
Police Station : Chandni Mahal
Under Section : 498A/406/307/34 IPC
Date of Institution : 07/05/2014
Date on which arguments heard : 05/02/2018
Date of Decision : 26/02/2018
J U D G M E N T:-
1. By this order I shall pronounce the final judgment in this case. The factual matrix of the case in brief is as under:-
SC No. 28097/2016 State Vs Fahim & Ors 1/35 In the intervening night of 12-13/08/2013, an information regarding quarrel through PCR call was received at 2:50 AM vide DD No.10PP. HC Mahender Singh reached at H.No.2643 Shankar Gali, Turkman Gate, Delhi and found that complainant Jeenat Malik and her father in law Sirajuddin who had made a PCR call were present there. Sirajuddin stated that Jeenat was bent upon to go to her mother's house due to which quarrel took place. He further stated that she had also quarreled in the same night as well, for which DD No.9PP was registered vide a PCR call made by husband of Jeenat namely Fahim Malik who had stated that his landlord had disconnected the electricity. Landlord had reconnected the electricity later on. Mother of Jeenat Malik namely Kausar also reached there and another PCR call was made by jeenat Malik vide DD No.11PP at 4:05 AM. Jeenat Malik and Kausar Jahan did not lodge any complaint nor stated to have received any injury. Kausar Jahan and Jeenat Malik left their houses. On 13/08/2013 at 11:55AM vide DD No.20B, a complaint was lodged by Jeenat Malik vide which she stated that she married with Fahim for the last 5 years who used to torture her mentally. She further stated that last night the limit was crossed that her brother in law, father in law and mother in law tried to kill her by strangulation and father in law further stated that first they shall complaint regarding suicide and then will finish her. She further stated SC No. 28097/2016 State Vs Fahim & Ors 2/35 that for some time she lived with mother in law and sister in law (Nanad). They beat her, kept her starving and tortured her while she was pregnant. She further stated that her both children were born at her mother's house. They also did not return her jewelry and filed a false complaint of theft. She further stated that thereafter, she was sent alongwith her uncle (Tauji) for 8 days. There is tension in the family due to this. It was told that as per the assurance of her in laws, she had shifted to a rented accommodation, however, they did not pay any rent. They also kept on receiving money from her father and mother. She further alleged that her husband is drunker and does no work.
As per the complaint of Jeenat Malik, ingredients of section 498A / 406 / 34 were found therefore, complaint was referred to CAW Cell.
On 03/09/2013, complainant was medically examined at LNJP hospital as she had alleged that she was having an injury at her neck which was pertaining to the incident of 13/08/2013. Doctor opined that it was 15-20 days old. Thus, an FIR under section 498 A/ 406 / 307 / 34 IPC was registered. During investigation, police seized the 'Duppatta' vide which the complainant was alleged to have been strangulated. Photographs were also taken. As per the complaint, Fahim (husband) Shuaib (brother in law), Sirajuddin (father in law) & Shamina (mother in SC No. 28097/2016 State Vs Fahim & Ors 3/35 law) were arrested. It is important to mention here that Jeenat Malik later on expired.
2. After completion of investigation, final report under Section 173 Cr.PC was filed and Ld. MM after completion of formalities, committed the matter to the Sessions Court for trial after compliance of Section 207 Cr.PC.
3. After committal, charge under Section 498A / 406 / 307 / 34 IPC was framed against accused persons i.e. Fahim, Junaid, Sirajuddin, Shuaib, and Shamina for which accused persons pleaded not guilty and claimed trial.
4. In order to establish the liability of accused, prosecution has examined 20 witnesses. Statement of the accused Fahim, Junaid, Sirajuddin, Shuaib, and Shamina U/s 313 Cr.PC were recorded on 06/01/2018 under which accused persons stated that they are not willing to lead evidence in their defence.
5. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC the points of determination which are necessary to be considered in order to arrive at a conclusion are framed as under:-
1. Whether all the accused persons in furtherance of their common intention subjected Jeenat Malik (since deceased) to cruelty by making demand of SC No. 28097/2016 State Vs Fahim & Ors 4/35 dowry as well as beating her and thereby committed an offence U/s 498A / 34 IPC.
2. Whether all the accused persons in furtherance of their common intention misappropriated the Istridhan of complainant Jeenat malik (since deceased) and committed breach of trust in that regard which is punishable U/s 406 IPC.
3. Whether in the intervening night of 12-
13/08/2013 at about 2:40 AM, all the accused persons in furtherance of their common intention strangulated complainant Jeenat Malik (since deceased) with a Duppatta with such an intention and knowledge and under such circumstances that if by that act, they would have caused her death, they would be guilty of murder and thus, committed an offence of attempt to murder punishable u/s 307 / 34 IPC.
6. All the above mentioned points of determination are taken up one by one in the following paras:-
"Whether all the accused persons in furtherance of their common intention subjected Jeenat Malik (since deceased) to cruelty by making demand of dowry as well as beating her and thereby committed an offence U/s 498A / 34 IPC"
SC No. 28097/2016 State Vs Fahim & Ors 5/35 The charge so framed against the accused persons is under section 498A/34 IPC. It is alleged by the complainant and her mother that all the accused persons used to beat her, tortured her and subjected her to cruelty, mental and physical. Thus, the essential ingredients required to be established by the prosecution is that there was a demand of dowry and complainant Jeenat Malik (since deceased) was subject to physical and mental cruelty.
7. Before proceedings further the essential ingredients of section 498A IPC may be mentioned here for further discussions. These are as under;
(i) It is the husband or relative of the husband of a woman.
(ii) Such woman is subjected to cruelty. Cruelty here implies
(a) Any willful conduct which 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.
(b) Harassment with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security.
8. This Section 498-A IPC has been incorporated as a response to Dowry Prohibition Act, 1961 and was incorporated in the Act 1983. Cruelty as defined in this Section, consist of two Clauses as mentioned SC No. 28097/2016 State Vs Fahim & Ors 6/35 above in point (ii) (a) and (ii) (b). Section 498-A IPC postulates the willful conduct on the part of the accused person. Mens rea is an essential ingredient of the offence. Complainant, in order to substantiate his or her averment has to prove that there was an unlawful demand from husband or any of her relative. It has been held in "Ramesh Chand Vs. State of UP" 1992 CrLJ 1444 (All.), that assuming that the husband asked the wife to bring some jewellery, this by itself could not be unlawful demand as no law would punish a mere demand without settlement of dowry at the time of marriage.
9. It is needless to say that such demand can be made even after the marriage. It may in some cases be that if the husband makes a demand through his wife it may also be conceded by the father-in-law and if that is done, the demand would not become unlawful and, therefore, subsequent refusal by the father-in-law is not a determinative factor whether the demand was unlawfully made unless the said demand can come within the definition of dowry.
10. Keeping in mind the essential ingredients of section 498A IPC as mentioned above, there are three key factors which are required to be looked into to establish the offence committed u/s 498A IPC. These are willful conduct of the accused; there is harassment, and injury, mental or physical is caused; there is a demand for dowry. It is important to SC No. 28097/2016 State Vs Fahim & Ors 7/35 mention here that any demand for dowry made by the accused would always amount to cruelty.
11. Coming to the 'willful conduct', prosecution has examined PW4 Kausar Jahan who is the mother Jeenat Malik (since deceased). It is stated by PW4 that her daughter Jeenat Malik (since deceased) married to accused Fahim Malik on 18/07/2008. This fact is, however, not disputed. It is stated that at the time of marriage sufficient dowry articles were given to in laws of Jeenat Malik (since deceased). PW4 stated that for about 8 months, the marriage was normal but thereafter, accused Fahim Malik started beating Jeenat Malik (since deceased) upon the instigations of accused Shamina. It is stated that Jeenat Malik (since deceased) was beaten up by her husband for illicit demand of dowry. It is further alleged that accused Fahim, Shuaib, Junaid, Shamina and Sirajuddin used to taunt and harass her daughter Jeenat Malik (since deceased). It is further alleged that when Jeenat Malik (since deceased) was about 6 months pregnant, all the accused persons sent her to her mother's house after beating her. It is stated that Jeenat Malik (since deceased) was blessed with a son while she was at her mother's house. PW4 further stated that she borne all the expenses of delivery and Jeenat Malik (since deceased) remained with her for about 8 months and no one from the family of accused came to meet her and her son. Jeenat SC No. 28097/2016 State Vs Fahim & Ors 8/35 Malik (since deceased) was persuaded and sent to her in laws house and everything remained normal but for few days only. She was harassed and beaten up by accused persons again.
12. PW4 further stated that accused Fahim, at the instance of other accused persons used to make demands. Jeenat Malik (since deceased) was tortured. She was again thrown out of her matrimonial house and came to her mother's house. Jeenat Malik (since deceased) started living alongwith her husband on a rented premises. She demanded money, at the instance of her husband, for purchasing articles and paying the rent for which Rs.25,000/- was given. PW4 further stated that Jeenat Malik (since deceased) was having some problem in her breast which later on developed into a breast cancer. PW4 had provided her treatment and spent about Rs.2.5 lakh. She was pregnant again and delivered again a boy. All her delivery expenses were borne by PW4.
13. It is further stated that Jeenat Malik (since deceased) was again harassed and beaten by the accused person and the year 2013 in the month of May or June alongwith her husband to reside with her and accused Fahim asked for Rs.20,000/- for payment of rent which was given by PW4.
14. With regard to the incident of intervening night of 12- 13/08/2013, PW4 had stated that she had received a call from her SC No. 28097/2016 State Vs Fahim & Ors 9/35 daughter Jeenat Malik (since deceased) and she had said that "Ammi Jaldi se aa jao, mujhe bacha lo, ye log mujhe jaan se maar denge". PW4 became perplexed and left for the house of Jeenat Malik (since deceased) and when reached there, she found that Jeenat Malik (since deceased) was crying in her matrimonial house and two police officials were present alongwith all the accused persons. Accused Fahim was under the influence of liquor. PW4 has further stated that accused Junaid and Shuaib were saying to their father accused Sirajuddin that "Iss kutiya ko ghar pe qun rehne de rahe ho". Jeenat Malik (since deceased) had covered her neck with her duppatta and at that time she showed her neck to PW4 and said that "at the instance of accused Sirajuddin and Shamina, both the accused Shuaib and Junaid were strangulating her with her duppatta with intention to kill her just to show that she had committed suicide".
15. PW4 further stated that Jeenat Malik (since deceased) further told that somehow she got herself released from the accused persons and confined herself in the bathroom and from there she called from her mobile and after arrival of police, she came out from the bathroom. PW4 further stated that police official had asked her to take Jeenat Malik (since deceased) from her matrimonial house otherwise something would happen to her there. It is stated by PW4 that thereafter, complaint SC No. 28097/2016 State Vs Fahim & Ors 10/35 was made to police. Police took Jeenat Malik (since deceased) to JPN hospital on 03/09/2013 where she was medically examined and again examined on 05/09/2013 at MAMC hospital.
16. It has been stated by PW4 during her examination in chief that she had given Rs. 25,000/- to her daughter which was demanded by her at the instance of her husband. It is further alleged by PW4 that she again gave Rs.20,000/- to accused Fahim Malik. Both these amounts are stated to have been given for the payment of rent. PW4 herself has stated that the rent of the premises was Rs.15,000/- to Rs.20,000/- per month.
If this fact of payment of Rs.20,000/- or Rs.25,000/- is considered to be correct, presuming for the sake of arguments, then it amounts to the rent of 2 months approximately. It is not the case of Kausar Jahan, mother of Jeenat Malik (since deceased) that she used to pay the rent frequently for her daughter or accused Fahim Malik. More so, it has not been stated by her in any of her statement recorded u/s 161 Cr.PC which is also reflected when she was confronted with her statement recorded u/s 161 Cr.PC during her cross examination by the counsel for the accused persons. Above all, PW4 has not given the exact details i.e. the date, month or year and other specific details when such money was demanded. Further, it is alleged by PW4 that such amount as SC No. 28097/2016 State Vs Fahim & Ors 11/35 mentioned above was taken by Jeenat Malik (since deceased). It is a matter of record that Jeenat Malik (since deceased) could not come to the witness box to depose to verify all these facts.
17. PW4 has further stated during her cross examination that when Jeenat Malik (since deceased) came to her mother's house and remained there for sometime, a Panchayat took place and Jeenat Malik (since deceased) was sent to her in-law's house. This fact, however, is not mentioned in her statement recorded by the IO. It is important to mention here that PW4 at that time has not stated that she had raised any objection or protest or she was not in favour of sending Jeenat Malik (since deceased) to her in-law's house nor she has stated or explained that Jeenat Malik (since deceased) had expressed her reservation to go to her in-law's house.
18. During her further cross examination dated 15/05/2017 at page no.3, PW4 admitted that at the time of delivery of child, when Jeenat Malik (since deceased) came to her mother's house, the matter was referred to mediation centre, thereafter, and it was demanded by PW4 that accused Fahim should pay Rs.2.5 lakh. PW4 has further admitted that one FDR of Rs.1.5 lakh was prepared in the name of both children under which Jeenat Malik (since deceased) was made as guardian. PW4 has further stated that Jeenat Malik (since deceased) had encashed the SC No. 28097/2016 State Vs Fahim & Ors 12/35 said FDR.
19. PW4 has further stated at page no.4 of her cross examination dated 15/05/2017 that in law's of Jeenat Malik (since deceased) used to taunt and torture her by saying that 'Naukrani Khadi ho kaam kar' and they used to abuse her. This fact, however, again, is not mentioned in her statement recorded by the IO.
20. PW4 has admitted that an FIR pertaining to the theft of dowry articles was registered. With regard to payment of Rs.20,000/- as alleged, PW4 has again, not furnished any detail as to when this amount was given. During her cross examination dated 25/02/2017 at page no.1, PW4 has stated that there was no demand of dowry before the marriage of her daughter. This fact stated by PW4 becomes relevant and important that before marriage, there was no demand of dowry.
21. With regard to the day of incident, it is stated by PW4 at page no.2 of her cross examination dated 25/02/2017 that Jeenat Malik (since deceased) had called her mother from the mobile phone of her Devar who is accused Junaid. It is important to mention here that on earlier occasion, PW4 had stated that when she was tortured and harassed on the day of incident, she locked herself in bathroom and called her mother from there. Whereas, during her cross-examination, as mentioned above, PW4 has alleged that the call was made from the SC No. 28097/2016 State Vs Fahim & Ors 13/35 mobile phone of her Devar, accused Junaid. This is a contradiction in the version of PW4, hence, it becomes relevant. More particularly, in the light of the narration of the incident by PW4, if Jeenat Malik (since deceased) had immediately locked herself in a bathroom then it is not explained as to whether she was having enough time to take the mobile of accused Junaid and locked herself in bathroom or she never locked herself in the bathroom or no such harassment as alleged by PW4 had taken place. Thus, more than one interpretation are being reflected from the narration of the incident made by PW4.
22. Another contradiction emerged from her cross examination dated 25/02/2017 at page no.3 that PW4 has stated that when she alongwith her daughter Nahid and Sanna reached at the house of accused persons on the intervening night of 12-13/08/2013. She was told by police official that she should take her daughter alongwith her otherwise something might happened to her. This fact is not mentioned in her statement recorded by the IO. PW4 further stated that when she reached at the spot on the day of incident, she called her relatives and one of the relative Nasir Malik had reached there.
Another contradiction is emerging from the cross examination of PW4 that she had stated that when she had reached at the spot on the day of incident, accused was under the influence of liquor, however, SC No. 28097/2016 State Vs Fahim & Ors 14/35 it is not recorded in her statement recorded by the IO. Similarly, another fact alleged by PW4 that at that time accused Junaid and accused Shuaib had said to their father who is accused Sirajuddin that 'Iss Kutia ko ghar pe qun rehne de rahe ho', is not there in her statement recorded by the IO".
23. Another important fact which is emerging from the testimony of PW4 is that she has stated that on the day of incident, she noticed strangulation mark around the neck of Jeenat Malik (since deceased), however, this fact has not been stated by her to the police immediately and was alleged by her after passing of many days i.e. on 03/09/2013 when Jeenat Malik (since deceased) was medically examined. As per record, she had given her complaint vide DD No.20 on 13/08/2013 alleging that accused tried to strangulate her by duppatta. However, she neither got her medically examined at that time nor explained the incident in detail. This fact, again, is not mentioned in her statement recorded by the IO that on the day of incident Jeenat Malik (since deceased) had stated this fact that accused persons had tried to strangulate her and she got herself released from them and confined herself in bathroom. PW4 further stated in her cross-examination that the factum of strangulation was also told to Nasir Malik, however, this fact again is not recorded by SC No. 28097/2016 State Vs Fahim & Ors 15/35 the IO."
24. From the testimony of PW4, it is reflected that there are number of contradictions from her statement recorded u/s 161 Cr.PC and she has made a number of improvements from her statement recorded by the IO. More so, she has also not furnished the details of the demand of dowry and has also not furnished the date, month and year when such demand was made. Above all, she has stated that prior to marriage, no demand of dowry was made by the accused persons.
25. PW7 Azizur Rehman has been examined with regard to the translated version of the marriage certificate of accused Fahim and Jeenat Malik (since deceased). It is important to mention here that marriage of accused Fahim and Jeenat Malik (since deceased) is not disputed. Therefore, this witness has corroborated the fact which, otherwise, is not disputed at all.
26. Apart from PW4, there is no other public witness examined by the prosecution qua the allegation of demand of dowry and harassment nor any other person from the family of Jeenat Malik (since deceased) i.e. her brothers etc. have been examined. All other prosecution witnesses, therefore, are police officials and concerned doctors.
27. PW1 is HC Anurag who was duty officer on 06/09/2003 at PS Chandni Mahal and recorded FIR Ex.PW1/A upon rukka Ex.PW1/B. SC No. 28097/2016 State Vs Fahim & Ors 16/35
28. PW2 is ASI Dharamvir from CAW Cell. Testimony of this witness is most important as he has deposed with regard to a complaint Ex.PW2/A made by Jeenat Malik (since deceased) which was received on 19/08/2003. It is stated by PW2 that both the parties were called on 05/09/2003 at CAW Cell and counseling was done. The proceedings undertaken at that time are PW2/B (colly) (running upto 5 pages). PW2 has further stated that on 26/08/2013, he had recorded the statement of Jeenat Malik (since deceased) which is Ex.PW2/C. Statement of accused Fahim Malik was also recorded which is Ex.PW2/E. PW2 further recorded statement of Jeenat Malik (since deceased) dated 05/09/2013 which is Ex.PW2/F and 06/09/2013 which is Ex.PW2/G.
29. From the careful perusal of all these documents and the proceedings before CAW Cell, it is reflected that though, in her complaint dated 19/08/2013, Jeenat Malik (since deceased) has alleged that her in- law's tried to strangulate her on the intervening night of 12-13/08/2013, however, during the period i.e. w.e.f. 19/08/2013 to 03/09/2013, Jeenat Malik (since deceased) never stated anything in this regard before the concerned police official CAW Cell that her in-law's tried to strangulate her. It is also reflected that during this period, she neither pressed for her medical examination nor was medically examined nor she had showed her injuries i.e. strangulation mark over her neck to any of the SC No. 28097/2016 State Vs Fahim & Ors 17/35 police officials of CAW Cell.
30. Above all, it is reflected from the proceedings undertaken before CAW Cell that accused Fahim was ready and willing to take Jeenat Malik (since deceased) with her, however, it was Jeenat Malik (since deceased) who denied to accompany him. Such conduct of Jeenat Malik (since deceased) creates a suspicion regarding her story that her in-law's had tried to strangulate her. This suspicion is further strengthened from the circumstances that on the day of incident i.e. 12-13/08/2013, when PCR call was made and when PW4 Kausar Jahan had reached at the spot, then why they had not pointed out this fact to any of the police official that at that time she was strangulated by the accused persons.
31. Proceeding further, the next witness examined by prosecution is PW5 Ct. Dharampal who brought the record pertaining to the calls made in the intervening night of 12-13/08/2013. Original DD register for this period was brought by him which shows that a call was received at 12:50 midnight alleging that "T gate near police bhawan ke paas house no. 32-36 Makaan malik ne batti kaati hai". This witness further stated that another call was received at 2:50 AM midnight regarding quarrel at H.No.2643, Shankar Gali, Asaf Ali Road. PW5 further stated that on same night another information was received at 4:05 AM regarding quarrel at H.No.2643, Shankar Gali, Asaf Ali Road. This SC No. 28097/2016 State Vs Fahim & Ors 18/35 witness has not been cross examined.
32. PW14 is Ct. Jai Singh who deposed regarding seizure of CD of marriage and certain photographs which are Ex.PW14/1. This witness has not been cross examined. Above all there is no dispute with regard to this document. Next witness examined by prosecution is PW16 HC Udai Chand who is a DD writer qua DD No.9 Ex.PW5/A, DD No.10, Ex.PW5/B and DD no.11 Ex.PW5/C. It is stated by PW16 that call pertaining to DD No.9 was received at 12:50 night of 12-13/08/2013 regarding disconnection of electricity. This DD was assigned to HC Mahender. Another call was received at 2:50 am regarding quarrel which is DD No.10 and it was assigned again to HC Mahender for necessary action. Call pertaining to DD No.11 was received at same night at about 4:05 am regarding quarrel at house which was again assigned to HC Mahender over phone. This witness has not been cross examined by the accused person. PW18 W Ct. Neetu and PW19 W SI Sangeeta are examined pertaining to DD No.20B dated 13/08/2013 which is Ex.PW18/A. The call pertaining to this DD was regarding 'Gharelu Jhagda'. These witnesses again, have not been cross examined.
33. Another witness examined by prosecution is PW15 HC Mahender Singh who had acted upon the receiving of DD No.9, 10 & 11. It is stated by PW15 that the first call was pertaining to disconnection of SC No. 28097/2016 State Vs Fahim & Ors 19/35 electricity at house no.3226, Turkman Gate. PW15 met with the landlord Imran and his tenant Fahim. It was told that accused Fahim was not paying the rent due to which electricity was disconnected. The next call at 2:15 am was regarding quarrel at H.No.2643, Shankar Gali, Asaf Ali Road. When PW15 alongwith Ct. Ravinder reached at the spot, he met with the caller Sirajuddin who stated that his daughter in law was insisting to go to her parental house and since it was late hours, that is why, the call was made. Zeenat Malik since deceased, daughter in law of Sirajuddin was present there and upon inquiry, she stated that she wanted to live with her mother. Zeenat Malik thereafter made a call to her mother from the mobile phone of PW15 and about 30 to 45 minutes after her mother reached there and Zeenat Malik alongwith her mother left to her parental house without giving any statement or stating any injury. In the meantime someone also made a call from the spot which was registered as DD No.11. PW15 has stated that he did not find any quarrel there. This witness has not been cross examined by the accused person.
34. Next witness examined by prosecution is PW20 inspector Yashpal Singh who is the IO of this case. It is stated by PW20 that on 06/09/2013, he received the copy of complaint alongwith proceedings of CAW Cell. He also received DD No.9, DD No.10, DD No.11 & DD No.16 SC No. 28097/2016 State Vs Fahim & Ors 20/35 from HC Mahender, alongwith DD No.20B. IO also received the copy of complaint made by Zeenat Malik dated 13/08/2013 which is Ex.PW20/A. After registration of FIR, accused persons were arrested respectively.
35. From the testimonies of above said witnesses, certain facts contrary to the story of the prosecution are emerging and there appears to be some improvements made by PW4 Kausar Jahan in her statement. More so, testimony of PW4 with regard to allegations of demand of dowry against the accused persons does not seem to inspire her confidence.
36. Following are the observations emerging from the testimonies of above mentioned prosecution witnesses:-
1. There is no demand of dowry prior to marriage.
2. PW4 Kausar Jahan reached at the spot on the day of incident i.e. intervening night of 12-13/08/2013. Prior to that there was a call regarding disconnection of electricity.
Even in that call Jeenat Malik since deceased had not stated anything to HC Mahender who had attended that call, that she was tortured or harassed by accused Fahim and other accused persons.
3. HC Mahender while attending the next 2 calls vide DD No.10 & DD No.11 and found nothing unusual or any instance of quarrel in his presence, at the spot in question. It is the story of the prosecution that during this period, i.e. in between the call of DD No.9 & DD No.10, accused SC No. 28097/2016 State Vs Fahim & Ors 21/35 persons had tried to strangulate Jeenat Malik (since deceased) by a Dupatta. PW15 HC Mahender has stated during his cross examination that no allegation regarding injury upon Jeenat Malik (since deceased) were made by her or her mother Kausar Jahan.
4. Kausar Jahan PW4 has stated that Jeenat Malik (since deceased) had confined and locked herself in a bathroom when accused persons were harassing her and made a call to police thereafter. Whereas, PW15 has stated that she made a call to her mother from his mobile. There is a contradiction in between the statement of PW15 & PW4 in this regard.
5. During the proceedings of CAW cell and from the testimony of PW2 ASI Dharamvir, no specific allegations of any harassment have been made. It is important to mention here that allegations of harassment, torture or cruelty should be specific and at least, should explained the facts in brief. As per record, proceedings before CAW cell kept pending for quite sufficient period of time, however, during that entire period neither PW4 nor Jeenat Malik (since deceased) had made any allegation to the concerned official that accused persons tried to strangulate her on 12-13/08/2013.
6. There are a number of contradictions in the testimony of PW4 Kausar Jahan which are mentioned above and not repeated here for the sake of brevity.
7. PW4 has made specific allegations that accused persons SC No. 28097/2016 State Vs Fahim & Ors 22/35 tried to strangulate her during the intervening night of 12- 13/08/2013. If the call made by Jeenat Malik (since deceased) was made from the mobile of and in the presence of HC Mahender, then if she would have stated anything to her mother that her life was in danger or accused persons had been harassing her or tried to strangulate her, then that would have been over heard by HC Mahender as well. However, HC Mahender has stated nothing in this regard. It again creates a doubt in the story narrated by prosecution and PW4.
8. The most important aspect to be considered is that when PW4 Kausar Jahan mother of Jeenat Malik (since deceased) had reached at the spot on the day of incident and when she was taken to her mother's house, one police official HC Mahender was present there. Even at that time, neither Kausar Jahan nor Jeenat Malik (since deceased) stated anything to HC Mahender that accused persons had tried to strangulate her. At the outset, it is mentioned that the first and foremost natural reaction of a person who has been tried to be strangulated by others, would be that as and when he sees any police officials or any of his family members, then he / she would disclose this fact to that person immediately. More so, there may be chances that such person may be under threat then such fact would be reflected and visible from his / her gestures. No such things has been noted down by HC Mahender nor stated by Kausar Jahan or Jeenat Malik (since deceased) at that time. This fact is such which cannot be ignored, hence, SC No. 28097/2016 State Vs Fahim & Ors 23/35 creates a doubt in the story of the prosecution leading towards another circumstances that no such thing as alleged by Kausar Jahan had ever happened.
37. In the light of above all observations, it is reflected that after considering the circumstances, prior to the marriage for which PW4 herself has stated that no demand of dowry was made, or the circumstances after the marriage for which no complaint at any point of time has ever been made either by Jeenat Malik (since deceased) or by her parent to any authority regarding harassment or cruelty, I am of the considered opinion that none of the prosecution witness have been able to give proper details as to how, when and in what manner Jeenat Malik (since deceased) was subjected to cruelty. Prosecution has also not been able to establish the fact that there was a demand of dowry made by the accused persons. There are some allegations of payment of Rs.20,000/- to the accused, however, demand for the same is alleged to have been made by Jeenat Malik (since deceased) herself. It is most unfortunate that she died unnaturally and could not depose before this court. More so, apart from Kausar Jahan there is no testimony of any other family member of Jeenat Malik (since deceased) like her brothers, sisters etc. Prosecution has not been able to explain as to why no other family members of Jeenat Malik (since deceased) came to depose in support of SC No. 28097/2016 State Vs Fahim & Ors 24/35 story of prosecution.
38. It is needless to say that payments, if any, made by the parents of bride, before or after marriage, cannot be turmed as demand for dowry always. If such payment is made voluntarily then it is not dowry. None of the prosecution witness is able to establish that demand was made by accused persons.
39. In the light of these discussions, I am of the considered opinion that none of essential ingredients of section 498A IPC are established by the prosecution against any of the accused persons. Prosecution has been miserably failed to establish that there was any demand of dowry. It is also reflected from the record that prosecution could not be able to establish that Jeenat Malik (since deceased) was ever subjected to cruelty, mental or physical. It stated during final arguments from the side of the prosecution that staying of Jeenat Malik (since deceased) at her parents house prior to her death, itself reflects that she was subjected to cruelty, cannot be said to qualify the submissions made by the prosecution in the final report that just because she was living at her parent house before her death, she was mentally tortured. It is needless to mention here that court cannot form any opinion merely on the basis of any surmises and conjectures. Any fact not supported by any evidence cannot be said to be proved and established. Therefore, the SC No. 28097/2016 State Vs Fahim & Ors 25/35 charge u/s 498A IPC cannot sustain against the accused persons.
40. The second for determination is as under:-
"Whether all the accused persons in furtherance of their common intention misappropriated the Istridhan of complainant Jeenat malik (since deceased) and committed breach of trust in that regard which is punishable U/s 406 IPC".
41. Section 406 IPC talks about punishment of criminal breach of trust. There are certain prerequisites for criminal breach of trust which while reading section 406 and 406 IPC together are as under:-
(a) There must be dishonest misappropriation.
(b) Such misappropriation is by a person in whom confidence is placed and such person is entrusted with the property or dominion over it.
42. In order to bring home the offence u/s 406 IPC, the ingredients of entrustment with property having dominion over it and the same having been misappropriated or converted to his own use by the accused person, are required to be proved. It has been held in "Ram Gopal Vs Prem Lata" (1991) 3 Crimes 505 (Punj) that for an offence U/s SC No. 28097/2016 State Vs Fahim & Ors 26/35 406 IPC in respect of a dowry, the complainant has to specifically alleged what articles of dowry of entrusted to which person or persons. In this regard, it is important to mention here that in present case there is neither any list of articles nor specified or filed by the complainant either before CAW Cell or before this court during trial at any point of time.
43. In this regard, the testimony of PW4 Kausar Jahan who is stated to be the mother of Jeenat Malik (since deceased), PW2 ASI Dharamvir from CAW Cell, PW2 Zaim Hussain who is stated to be the jeweller from whom the jewellery is alleged to have been purchased and IO PW20 inspector Yashpal Singh have not thrown any light upon the fact that any article was recovered from the accused persons. It is again a matter of record and not disputed by the complainant or accused persons that a theft had taken place at the house of accused Fahim under which jewellery was stolen. PW4 in her statement, has stated this fact by herself. It has, however, been stated by PW4 that such report was false. Prosecution, however, failed to bring on record anything contrary to the fact that jewellery articles were stolen by some other person. More so, after perusing the entire proceedings SC No. 28097/2016 State Vs Fahim & Ors 27/35 undertaken before CAW Cell, no such list of articles has been provided by the complainant. In these circumstances, in the light of directions given in "Ram Gopal (Supra)", as there is no list of article which are alleged to be entrusted, is provided, therefore, it cannot be considered that ingredients of section 406 IPC are fulfilled here. In these circumstances, therefore, charge u/s 406 IPC cannot sustain against the accused persons.
44. The second for determination is as under:-
"Whether in the intervening night of 12-
13/08/2013 at about 2:40 AM, all the accused persons in furtherance of their common intention strangulated complainant Jeenat Malik (since deceased) with a Duppatta with such an intention and knowledge and under such circumstances that if by that act, they would have caused her death, they would be guilty of murder and thus, committed an offence of attempt to murder punishable u/s 307 / 34 IPC."
45. With regard to the above mentioned points of determination, the prosecution has to discharge the burden of proving the fact that accused persons, in furtherance of their common intention, with an intention to cause her death, SC No. 28097/2016 State Vs Fahim & Ors 28/35 strangulated Jeenat Malik (since deceased) by her Duppatta and committed the offence of attempt to murder.
46. Before proceeding further, it is necessary to lay down the ingredients of Section 307 IPC which are required to be seen before determining the liability of the accused persons. These are:
(a) That the accused did an act;
(b) That the act was done with intention or
knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death and such bodily injury as is likely to cause death;
(c) That the accused had not excused for incurring the risk of causing such death or injury.
47. With regard to first and foremost requirement of section 307 IPC that "Accused did an act", prosecution has to prove that all the accused persons in furtherance of their common intention and prior meeting of their mind, in order to cause death of Jeenat Malik (since deceased), strangulated her by her Duppatta. As per the story of the SC No. 28097/2016 State Vs Fahim & Ors 29/35 prosecution, as already stated above, the incident pertains to the intervening night of 12-13/08/2013. When the second call vide DD No.10 was made, PW15 HC Mahender is the person who reached at the spot. It is a matter of record that another call vide DD No.11 was made from the spot in question which was again attended by HC Mahender. It has been established by prosecution and not disputed by the accused persons that when HC Mahender reached at the spot, a call was made to the mother of Jeenat Malik (since deceased) and she also reached thereafter 30-45 minutes at the spot. During this entire period and till Jeenat Malik (since deceased) alongwith her mother left to her mother's house, nothing was stated by either Jeenat Malik (since deceased) or Kausar Jahan that accused persons had tried to strangulate her.
48. It is important to mention here that the first and foremost and most natural reaction of such a person upon whom an attempt to murder have been caused, would be that she would narrate such incident to the person in whom, he / she confides or trusts. Jeenat Malik (since deceased) was having HC Mahender, a police official as well as her mother before her at that time. Her all natural reactions are also explained by PW15 HC Mahender who has stated that nothing was alleged by Jeenat Malik (since deceased) or Kausar Jahan.
49. The next most important thing to be noted is that, presuming SC No. 28097/2016 State Vs Fahim & Ors 30/35 for the sake of arguments, that Jeenat Malik (since deceased) could not find any occasion to narrate the things accordingly then, even thereafter, nothing with regard to strangulation was brought to the notice of any authority until FIR was registered. Another important thing to be noted herein and emerging from the testimonies of the prosecution witnesses is that Jeenat Malik (since deceased) though made a complaint before the CAW Cell, however, she did not explain anything to the concerned police official i.e. PW2 ASI Dharamvir that accused persons tried to strangulate her by her Duppatta.
50. From the testimonies of PW4, PW2, PW20 and PW9 Ct. Pushpender, it is reflected that the said Duppatta vide which accused persons are alleged to have tried to strangulate Jeenat Malik (since deceased) on the intervening night of 12-13/08/2013, was handed over by Jeenat Malik (since deceased) herself for which PW9 has stated that on 07/09/2013 Jeenat Malik (since deceased) came to PP Turkman Gate and handed over black colour Duppatta alleging that accused person namely Junaid and Shuaib had tried to strangulate her with an intention to kill her. It is, however, reflected that as per the story of the prosecution, when accused persons tried to strangulate her, she managed to save herself and locked herself in bathroom.
51. It is further alleged that HC Mahender reached at the spot after SC No. 28097/2016 State Vs Fahim & Ors 31/35 receiving DD No.10 and when her mother Kausar Jahan was called and reached at the spot, HC Mahender remained there and saw that Jeenat Malik (since deceased) left alongwith her mother to her mother's house. It is not the story of the prosecution that Jeenat Malik (since deceased) took that Duppatta by which she was being strangulated by the accused persons, alongwith her. It is very likely that whenever any such untoward incident happened, like allegations of strangulation of present case, the first and foremost reaction of the aggrieved person would be to seek refuge and safe place and such person would try to get out of the situation as early as possible and, in normal circumstances, would not be having any occasion to take any such article like Duppatta as in the present case, alongwith her. This creates a doubt in the story of the prosecution.
52. If she, presuming for the sake of arguments, took dupatta with her, then why she did not show it to any authority, is not explained by prosecution.
53. The next important thing which is being reflected from the record is that PW4 has made a number of improvements in her statement and none of those improvements are found supported with the story of the prosecution. Thus, in my considered opinion the testimony of PW4 cannot be said to be free from doubts. Hence, she SC No. 28097/2016 State Vs Fahim & Ors 32/35 cannot be considered to have inspire her confidence.
54. With regard to the nature of injury i.e. strangulation mark around the neck of Jeenat Malik (since deceased), prosecution has examined PW6 Dr. Bhawya and PW10 Dr. Jyoti Barwa. PW6 Dr. Bhawya has stated that on 03/09/2013, she examined Jeenat Malik vide MLC no. 182859 with alleged history of being strangulated by scarf on 12/08/2013. It is stated by PW6 that there was no fresh injury on the person of Jeenat Malik. It is further opined by PW6 that there was shining skin at the base of neck and said shining mark might be due to 15 days to 20 days old abrasions. The detailed report is Ex.PW6/A. This witness has not been cross examined by accused persons. PW10 Dr. Jyoti Barwa who had further examined Jeenat Malik(since deceased) on 03/09/2013 stated that no fresh external injury were present on the next and injury could have been possible by strangulation with Duppatta. The MLC prepared by PW10 is Ex.PW10/A. During her cross examination PW10, however, has stated that the possibility of injuries being self inflicted cannot be ruled out. PW10 also did not mention the colour of the injuries. Duppatta was also not shown to PW10.
55. Examination of these two witnesses pertaining to the alleged injuries i.e. strangulation mark, it is reflected that PW10 has not ruled out the possibilities of injuries being self inflicted. More so, the incident SC No. 28097/2016 State Vs Fahim & Ors 33/35 pertains to 12-13/08/2013, whereas, MLC of Jeenat Malik (since deceased) was conducted on 03/09/2013. There is a gap of about 20-22 days in between these two dates. During this period, Jeenat Malik also appeared before CAW Cell and stated nothing with regard to the alleged injuries nor she tried to make complaint before any authority that accused persons had tried to strangulate her. All these circumstances, create doubts in the story of prosecution, therefore, they cannot be said to form an uninterrupted chain of circumstances which cannot be said to be intervened by any third factor. On the contrary, in my considered opinion the conduct of Jeenat Malik and Kausar Jahan on the day of incident is most relevant and cannot be ignored. Neither Jeenat Malik nor Kausar Jahan has shown any any gestures that she was strangulated. Therefore, in these circumstances, in my considered opinion the possibility of the injuries being self inflicted or by some other persons apart from accused persons cannot be ruled out.
56. There are other witnesses examined by prosecution like PW11, PW12, PW13, PW17 which are pertaining to the arrest of accused persons, which otherwise is not disputed by the accused persons. 57 In the light of the above said discussions, in my considered opinion, it is reflected that prosecution has been miserable failed to establish the liability of accused persons beyond reasonable doubts as SC No. 28097/2016 State Vs Fahim & Ors 34/35 they have not been able to establish any of the essential ingredients of section 307 IPC. The first and foremost ingredient is that an overt act has committed by the accused persons for which there is no connecting chain of evidence by which it could be concluded that it was done by the accused persons. Therefore, charge u/s 307 / 34 IPC cannot sustain against the accused persons.
58. In the light of above discussions, all the accused persons namely 1. Fahim, 2. Shuaib, 3. Junaid, 4. Sirajuddin & Smt. Shamina are acquitted for the offences charged against them. Their bail bonds stand cancelled and sureties are discharged. Endorsement, if any, on documents stands cancelled. File be consigned to Record Room after Digitally signed by due compliance. PRASHANT PRASHANT KUMAR KUMAR Date: 2018.03.01 11:25:53 +0530 Announced in the open court (PRASHANT KUMAR) on 26th Day of February, 2018 ASJ-04/CENTRAL DISTRICT TIS HAZARI COURT/DELHI SC No. 28097/2016 State Vs Fahim & Ors 35/35