Delhi District Court
State vs . Nishar Mohd. Etc. on 28 September, 2012
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No.50/08)
Unique ID case No. 02404R0043482008
State Vs. Nishar Mohd. Etc.
FIR No. : 842/07
U/s : 498A/306/34 IPC
P.S. : Mangol Puri
State Vs. 1 Nishar Mohd.
S/o Sh. Ishaq Mohd.
r/o P7/75, Mangol Puri,
Delhi.
2 Ishaq Mohd.
S/o Sh. Chand Khan
r/o P7/168, Mangol Puri,
Delhi.
3 Shammi Ahmad @ Shammi Mohd.
S/o Sh. Ishaq Mohd.
r/o P7/75, Mangol Puri,
Delhi.
Also at : r/o P7/168, Mangol Puri,
Delhi.
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 1/ 33
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4 Shamiudin
s/o Sh. Salimuddin
r/o P7/168, Mangol Puri,
Delhi.
Also at : r/o E703, J.J. Colony,
Bawana, Delhi.
Date of institution of case 23.02.2008
Date on which, judgment has been reserved 28.09.2012
Date of pronouncement of judgment 28.09.2012
JUDGMENT:
1 The case of the prosecution as briefly stated in the charge sheet is that on 25.11.2007 an information was received at PS Mangol Puri from Duty Constable Gurdayal at Sanjay Gandhi Memorial Hospital regarding admission of Smt. Sabra, 28 years, female, vide MLC No.17428/07. The same was reduced to writing by PW7 vide Ex.PW7/A i.e. DD No.22A dated 25.11.2007 which was handed over to Ct.Virender for being further handed over to SI Badami Lal. On receipt of the said DD, PW14 SI Badami Lal proceeded to SGM Hospital and obtained MLC of deceased Ex.PW15/A whereupon the concerned doctor declared deceased Smt. Sabra 'to have been brought dead'. Thereafter PW14 SI Badami Lal proceeded to the spot i.e. P7/75, Mangol Puri, along with Ct. Harphool. He called a private photographer and got the spot photographed. From the spot, one electric wire was S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 2/ 33 3 taken into possession vide seizure memo Ex.PW13/A after sealing it in a white cloth with the seal of 'BL'. PW14 also prepared the inquest papers and got the postmortem examination conducted on the dead body of deceased at Mortuary of Sanjay Gandhi Memorial Hospital. During the inquest proceedings, Smt. Bhoori Khatoon, mother of deceased, gave a complaint to the IO wherein she stated that deceased Sabra was eldest of her five sons and three daughters and that she had married her daughter Sabra to accused Nishar Mohd. s/o Ishaq Mohd. in the year 1995 according to their rites and customs and had also given her dowry as per their capacity. She got her youngest daughter married on 28.04.2007 and by then her financial condition had improved as her sons had started earning and so she gave substantial dowry and a motorcycle in the marriage of her said daughter. Complainant alleged that inlaws of her daughter Sabra could not tolerate giving of motorcycle to youngest daughter of the complainant by her and since that day her fatherinlaw Ishaq Mohd., husband Nishar Mohd, brotherinlaw (Dewar) Shami Ahmad @ Shammi Mohd. and brotherinlaw (Nandoi) Shamiudin started harassing and beating Sabra to bring a motorcycle for them. When complainant came to know about this, she went along with her sons Abid Hussain and Bahar Miya to meet her daughter Sabra at her matrimonial home. At that time, the deceased daughter of complainant told her that her inlaws had been harassing her and telling her that she had not brought any dowry and that since her younger sister had been given a motorcycle, she should also bring a motorcycle. This incident had taken place about 15 days before the death of daughter of complainant. Complainant and S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 3/ 33 4 her sons made deceased understand and returned home. As they were leaving, Sabra told them that she was being harassed so much that she would die. Complainant stated that since she was a poor widow, she did not have means to gift motorcycle to inlaws of Sabra and subsequently Sabra died. She expressed her suspicion that her daughter Sabra had died since her inlaws used to ask her to bring motorcycle in dowry and harassed her and gave her beatings in connection with said demand. She prayed that necessary action be taken against the persons named by her in her complaint and that dead body of deceased be also handed over to her for performing her last rites.
2 On the statement made by Smt. Bhuri Khatoon, a case u/s.498A/304B IPC was registered against the accused persons at PS Mangol Puri. During the course of investigations, IO inspected the site and prepared site plan Ex.PW16/A. He also recorded the statements of witnesses and arrested the accused Nishar Mohd. and Ishaq Mohd. The postmortem report of deceased, Ex.PW8/A, was received wherein the doctor opined the cause of death as 'Asphyxia as a result of ligature pressure over neck structures produced by hanging'. The viscera of deceased were sent for chemical analysis to FSL Rohini. The further investigations of the case were carried out by Inspr. Dev Raj Singh. Accused Shammi Ahmad @ Shammi Mohd. and Shamiudin could not be arrested and hence, charge sheet was filed pending their arrest. Subsequently on 16.05.2008, accused Shammi Ahmad @ Shammi Mohd. and Shamiudin surrendered before the Court of learned MM and S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 4/ 33 5 were arrested by Inspr. Manoj Sharma. The FSL opinion regarding the viscera was also obtained and accordingly, a supplementary charge sheet was also filed. 3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 498A/306/34 IPC were framed against the accused Nishar Mohd., Ishaq Mohd., Shammi Ahmad @ Shammi Mohd. and Shamiudin. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4 In order to prove its case, prosecution has examined 23 witnesses : Relatives of deceased : 5 PW1 Smt. Bhuri Khatoon is the mother of the deceased and she deposed as per her complaint Ex.PW1/A with several modifications. She deposed about marriage of deceased Sabra, her daughter with accused Nishar Mohd. in the year 1995 and about giving dowry articles to her in her marriage. She further deposed that she had got her other daughter married on 28.04.2007 and gave motorcycle in the dowry in her marriage. She then deposed that though her daughter Sabra was treated well by the accused till the marriage of her younger daughter on 28.04.2007 but thereafter Sabra told her that her husband Nishar Mohd. and fatherinlaw Ishaq Ahmad used to harass her to bring motorcycle from her S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 5/ 33 6 parents as they had given motorcycle in the marriage of their other daughter. About 15 days prior to death of Sabra, PW1's sons Abid and Bahar Miya went to the house of accused persons to pacify the accused persons and daughter of PW1 and returned back. About 7 days prior to her death, Sabra came to house of PW1 and made complaint of harassment against accused persons and also stated that she would commit suicide due to said harassment. The witness volunteered to state that accused Nishar Mohd. was also saying that he would commit suicide and that she came to know of death of her daughter Sabra on 26.11.2007, though she had died on 25.11.2007, as PW1 was at her brother's house. The PW1 proved her complaint as Ex.PW1/A by identifying her thumb impression thereupon and further stated that the said complaint was also signed by Mohd. Ishrat Siddiqui, son of sister of PW1, and Bahar Miya, her son, who were with her. PW1 stated that her daughter had committed suicide due to cruelty, harassment and demand of motorcycle made by accused persons. She, however, stated that her daughter Sabra had not made any complaint against her dewar Shammi Ahmad @ Shammi Mohd. and her nandoi Shamiudin and that complainant had named these two persons as at that time she was much perturbed due to death of her daughter Sabra.
6 During her crossexamination by learned defence counsel, PW1 stated that before the marriage of her younger daughter, there was no complaint of mal treatment of Sabra against the accused and that accused Nishar Mohd. Had gifted a fridge in the marriage of her younger daughter and that he had also S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 6/ 33 7 gifted a washing machine in the marriage of her daughter Mumtaz. She also termed it correct that deceased had not made any complaint when she visited them 7 days prior to her death and that Sabra had not made any telephonic call to her prior to her death. She stated that Sabra had told them that Ishaq Ahmad was asking for a motorcycle from them and that she had so informed about 15 days prior to her death and that no complaint had been filed by them with the Police in this regard. 7 PW2 Abid Hussain is the brother of the deceased. He deposed on the lines of PW1, however, he added certain new facts. He deposed about the marriage between deceased Sabra and accused Nishar Mohd. and birth of three children from their wedlock. He also deposed that his deceased sister used to embroidery work on export clothes to meet her daily expenses while her brotherinlaw was doing work of bangle seller. He further deposed that they had given sufficient dowry articles and a motorcycle at the time of marriage of Shamim, younger sister of PW2, on 28.04.2007 and that at that time, accused Nishar Mohd., his father Ishaq Ahmad, brother Shammi Ahmad @ Shammi Mohd. and Bahnoi Shamiudin also demanded a motorcycle. PW2 stated that at that time they did not bother about the said demand and so his sister was harassed, beaten and instigated to bring motorcycle by accused persons and this was narrated to them by their deceased sister Sabra. PW2 further deposed that he along with his mother Bhuri Khatoon and younger brother Bahar Miya, went to matrimonial house of his deceased sister to pacify the matter and at that time Sabra again told them that she was harassed and tortured in S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 7/ 33 8 connection with demand of motorcycle and was threatened that she would be turned out of the house. She also told that her dewar Shammi Ahmad @ Shammi Mohd. wanted a partition and that her behnoi Shamiudin was also demanding money from her fatherinlaw i.e. accused Ishaq Mohd. PW2 stated that they tried to pacify the matter and explained about their incapacity to fulfill the demand and that when they were returning back to the house, his deceased sister told them that she was so harassed and tortured by all the accused persons to bring the motorcycle in dowry that she would commit suicide. On that day, PW2 and others made Sabra understand and returned back to their house, however, accused persons continued to harass deceased and on 25.11.2007 she committed suicide by hanging herself and that she did so due to harassment by the accused persons.
8 During his crossexamination, PW2 stated that at the time of marriage of his younger sister Shamim, accused Nishar had gifted a refrigerator. He volunteered to state that its amount was paid by them. From further cross examination of PW2, it is brought out that his deceased sister had not informed him that she was beaten up by the accused persons in connection with demand of dowry and that accused Shamiuddin, Ishaq Mohd. and Shammi Ahmad @ Shammi Mohd. had not demanded any article in dowry from them. 9 PW3 Bahar Miya is also one of the brothers of the deceased. His examinationinchief is reflection of statement given by his brother Abid Hussain, S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 8/ 33 9 who was examined as PW2. The PW3 also proved the seizure memo of photocopy of Nikahnama of Sabra and accused Nishar Mohd. As Ex.PW3/A. During his crossexamination, contrary to his statement in examinationinchief that Sabra used to do embroidery work to meet her expenses, in his crossexamination, he stated that his sister Sabra used to help her husband in his bangle business. It is further brought out from crossexamination of PW3 that accused Nishar Mohd. had given fridge int he marriage of his younger sister. PW3 could not state what had been given by accused Nishar Mohd. In the marriage of his elder sister Mumtaz Banu. It is also brought out from crossexamination of PW3 that when he, his brother and mother had visited matrimonial home of Sabra, 15 days prior to her death, they did not meet accused Ishaq Mohd. Shammi Ahmad @ Shammi Mohd. and Shamiudin and that on that day, Sabra told them that it was her fatherin law Ishaq Mohd. who was demanding motorcycle and that PW3 did not inquire about the said demand from accused Ishaq Mohd. The PW3 also stated that his sister Sabra had not made any complaint to him regarding harassment by accused persons, however, on the day of Eid, his sister was crying and telling something to his mother.
10 PW4 Shahid Hussain is the brother of deceased, who had identified her dead body vide memo Ex.PW4/A and taken the same after postmortem examination vide receipt Ex.PW4/B and deposed regarding the same.
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 9/ 33
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11 PW12 Hamid Hussain is also brother of the deceased and he had given a
statement identifying the dead body of his deceased sister Sabra vide Ex.PW12/A and deposed regarding the same.
Neighbours of the deceased : 12 PW5 Ruksana Begum is a neighbour of deceased. She deposed that about two years ago on 25th day of the month, she was present with her motherin law in the house and that at about 2:30 PM, she heard a child crying and came out of her house along with her mother in law and saw that Sabra, who was residing just next to her house, was lying on the ground of her house and her dewar Shammi i.e. accused Shammi Ahmad @ Shammi Mohd. took her to hospital. This witness was put a leading question by learned Additional PP regarding the factum of deceased hanging from the ceiling and on being so, led the witness termed it correct that when she went to house of deceased Sabra, she saw her hanging from the balli of the ceiling with an electric wire and had brought her down and rubbed her hands and feet.
13 During her crossexamination, PW5 stated that she knew accused Nishar Mohd. since last about 7 years and that she had not heard any quarrel between accused Nishar Mohd. and deceased Sabra and that she did not remember if there had been any demand of dowry by accused Nishar Mohd. from S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 10/ 33 11 the parents of deceased Sabra and that parents of deceased had never informed her regarding the demand of dowry by accused persons and that no one was present in the house when PW5 and her mother in law saw the incident and that accused Shammi was called later on.
14 PW6 Rahisa Begum is the mother in law of PW5. She too deposed about the factum of finding deceased Sabra hanging from the balli of the ceiling with an electric wire and further deposed that they had brought the deceased down and rubbed her hands and feet and had taken deceased along with accused Shami Ahmad @ Shammi Mohd. to SGM Hospital. She could not state why Sabra had committed suicide. During her crossexamination PW6 also stated that she knew Nishar Mohd. since last 7 years and that she had not heard any quarrel between accused Nishar Mohd. and deceased Sabra and that she did not remember if there had been any demand of dowry by accused Nishar Mohd. from the parents of deceased Sabra and that parents of deceased had never informed her regarding the demand of dowry by accused persons and that no one was present int he house when PW6 and her daughter in law saw the incident and that accused Shammi Ahmad @ Shammi Mohd. was called later on.
Police Witnesses :
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 11/ 33
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15 PW7 HC Raj Kumar deposed that on 25.11.2007, he was working as
duty officer at PS Mangol Puri and that on that day at about 3:20 PM, he received a message from Duty Constable Gurdial from Sanjay Gandhi Memorial Hospital regarding the admission of Smt. Sabra, 28 years, female vide MLC No.17428/07 and the said message was reduced into writing by him vide DD No.22A dated 25.11.2007 and handed over to Ct. Virender to further hand it over to SI Badami Lal for further necessary action and proved the true copy of DD No.22A dated 25.11.2007 as Ex.PW7/A. 16 PW10 ACP Om Prakash deposed that on 26.11.2007, he was posted as SHO, PS Mangol Puri and on that day he received a complaint of complainant Smt. Bhuri Khatoon Ex.PW1/A and on the said complaint, he made his endorsement Ex.PW10/A for registration of the case and after registration of the case FIR for offence u/s.498A/304B/34 IPC, the investigation was handed over to SI Badami Lal. 17 PW11 HC Ramesh Chand deposed that on 26.11.2007, he was working as duty officer at PS Mangol Puri and on that day at about 12:45 PM, he received a rukka from SHO, PS Mangol Puri, for registration of the case and he registered the case FIR No.842/07 u/s 498A/304B/34 IPC. He further deposed that after registration of FIR, he also made endorsement on the original rukka vide DD No. 17A and thereafter computer generated copy of FIR and original rukka were hnaded over to SI Badami Lal for further investigation and he has proved the computer S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 12/ 33 13 generated copy of the FIR as Ex.PW11/A and endorsement on rukka as Ex.PW11/B. 18 PW20 Ct. Munesh Kumar deposed that on 27.12.2007 he was posted as Constable at PS Mangol Puri and on that day on the instructions of IO, he took the exhibits of this case from MHCM PS Mangol Puri to FSL Rohini vide RC No. 306/21/07 and after depositing the same at FSL Rohini, he handed over the receipt in this regard to the MHCM.
19 PW22 HC Rajpal Singh deposed that on 25.11.2007 he was posted at PS Mangol Puri as MHC(M) and on that day, SI Badami Lal had deposited one cloth parcel containing electric wire sealed with the seal of BL and he made entry in register No.19 against Sr. No. 6604 and proved the photocopy of said entry as Ex. PW22/A. PW22 further deposed that on 26.11.2007, Insp. Mahesh Kumar had deposited one parcel (one wooden box containing Viscera) sealed with the seal of SGMH MORTUARY, Mangol Puri alongwith sample seal of the same and he made entry in register no. 19 against Sr. No. 6605 and proved the photocopy of said entry as Ex. PW22/B. PW22 further deposed that on 27.12.2007, the parcel (Viscera) and sample seal were sent to FSL, Rohini through Ct. Bhunesh Kumar vide RC No. 306/21/07 and he made entry in register no. 19 and proved the photocopy of said entry as Ex. PW22/C and on the same day, Ct. Bhunesh Kumar handed over the acknowledgment receipt to him regarding depositing the case property in FSL and S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 13/ 33 14 proved the photocopy of acknowledgment receipt as Ex. PW22/D and photocopy of RC No. 306/21/07 as Ex. PW22/E. 20 PW22 further deposed that as per record on 15.7.2007 the cloth parcel was taken to SGM hospital for seeking opinion and subsequently it was again deposited and at that time it was sealed with the seal of SGMH Mortuary, M. Puri, Delhi. HC Raj Kumar, the then MHCM made entry in this regard in register no. 19 and proved the photocopy of same as Ex. PW22/F and he further deposed that he can identify the signatures of HC Raj Kumar at point A on it as he has seen HC Raj Kumar while signing and writing during the course of his duty. PW22 further deposed that on 2.7.2008, one parcel (remnants of viscera) and FSL report sealed with the seal of FSL Delhi were received by the then MHCM HC Raj Kumar through Ct. Madan Kumar and same were handed over to Insp. Manoj Kumar by him and HC Raj Kumar made entry in this regard in register no. 19 and proved the photocopy of same as Ex. PW22/G and he can identify the signatures of HC Raj Kumar at point A. He further deposed that till the time the case property remained in his possession, the same was not tampered with in any manner. 21 PW15 Dr. P.C. Prabhakar, MO of Sanjay Gandhi Memorial Hospital deposed that on 25.11.2007, patient Smt. Sabra w/o Sh. Nisar, 28 years, female, was brought by her husband Nishar Mohd. with the alleged history of hanging and after examination, he declared patient Sabra brought dead vide MLC Ex. PW15/A. S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 14/ 33 15 He further deposed that the patient was also examined by Gynecologist namely Dr. Manisha Tomar and she also opined the patient "brought dead" with no gynecological reason elicited as to cause of death and made her endorsement on the MLC as Ex.PW15/B. 22 PW8 Dr. V.K. Jha, Medical Officer, Babu Jagjiwan Ram Memorial Hospital, deposed that on 26.11.2007 at about 12.00 Noon, he along with Dr. Manoj Dhingra had conducted the postmortem on the dead body of Sabra, which was sent by SI Badami Lal, vide PM report Ex.PW8/A and that on examination, he found external injuries as an obliquity placed ligature mark present on front and sides of neck going upwards and backwards towards posterior hair line the length of the ligature mark was 25 cm and breadth 1 cm placed on front 4 cm below chin, 5 cm and 2 cm below right and left ear lobus on sides respectively and the skin on the ligature mark was hard and parchmentised and on the dissection of neck tissues underneath the ligature mark was pale and glistening. He further deposed that after the postmortem examination, they opined the cause of death was Asphyxia as a result of ligature pressure over neck structures produced by Antemortem ligature hanging and time since death was approximately 20 hours and total number of inquest papers were 14 in numbers and were returned along with PM report and blood and viscera was preserved with sample seal to rule out common poisoning.
23 PW8 further deposed that on 15.7.2008, SHO, PS Mangol Puri moved
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an application before him for opinion regarding the ligature material and the ligature material was in a pullanda which was duly sealed with seal of BL and the same was opened and was found contain an electric wire. He further deposed that after examination, he opined that ligature mark mentioned in Ex. PW8/A could have been caused by this wire or similar such wire and after examination, wire was again sealed with the sample seal of mortuary and he gave his subsequent opinion Ex. PW8/B. The witness was shown the FSL result of blood and viscera report No.FSL2007/C4670 dated 26.6.2008 from the judicial file and after going through the same, he deposed that it shows the presence of zinc phosphide, which is a poisonous substance, and even after perusal of viscera report, he was of opinion that the cause of death in the present case is asphyxia as a result of ligature pressure over neck structure produced by antemortem ligature hanging though there is ingestion of zinc phosphide before death.
24 PW9 Dr. Manoj Dhingra, CMO, Sanjay Gandhi Memorial Hospital, deposed that on 26.11.2007, at about 12.00 Noon, he along with Dr. V.K. Jha had conducted the postmortem on the dead body of Sabra, aged about 28 years, female and that the dead body was sent to Sanjay Gandhi Memorial Hospital by SI Badami Lal of PS Mangol Puri and deposed on the lines similar to PW8 Dr. V.K. Jha. 25 PW18 Dr. Adesh Kumar, Sr. Scientific Officer (Chemistry), FSL, deposed that on 27.12.2007 one parcel sealed with the seal of 'SGMH MORTUARY S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 16/ 33 17 MANGOL PURI DELHI83' labeled as "PMR No.1060/07 viscera of Sabra" was received in his office and same was alloted to him for chemical examination. He further deposed that after opening the parcel, it was found to contain Exs.1A, 1B & 1C and on chemical TLC & AAS examination, Ex.1A was found to contain Zinc Phosphide, and Exs. 1B & 1C were found to contain Phosphide. He further deposed that after chemical examination, the remnants of exhibits were sealed with the seal of AY FSL, DELHI and he proved his detailed report as Ex.PW18/A. 26 PW14 SI Badami Lal, is the first Investigating Officer of this case and he deposed about investigations carried by him and various documents prepared by him during the course of investigations. He deposed that on 25.11.2007, after receipt of DD No.22A Ex.PW7/A, he along with PW13 Ct. Harphool went to Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi where he collected the MLC of Sabra W/o Nishar on which doctor declared that the patient was brought dead and thereafter, he along with Ct. Harphool went to the spot i.e. P7/75, Mangol Puri where he called a private photographer and got the spot photographed. He further deposed that from the spot, one electric wire Ex.P1 was taken into possession, after sealing it in a white colour cloth with the seal of BL, vide seizure memo Ex. PW13/A. He further deposed that he also recorded the statements of witnesses at the spot and that the statement of parents of deceased could not be recorded as they did not meet him at that time.
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27 PW14 further deposed that on 26.11.2007, he again went to Sanjay
Gandhi Memorial hospital, Mangol Puri, Delhi alongwith Ct. Harphool, there he got conducted the postmortem on the dead body of deceased and since many persons (relatives of deceased) had gathered there so he called SHO Insp, Om Prakash who also reached the said hospital and they handed over one written complaint on behalf of Bhuri Khatoon, mother of deceased to the SHO and on the basis of said complaint, Insp. Om Prakash prepared rukka and the said rukka was taken by Ct. Harphool to PS for registration of case and subsequently, PW13 Ct. Harphool came back after getting the case registered along with copy of FIR and original rukka and handed over the same to him.
28 The PW14 further deposed that he got postmortem examination conducted on the dead body of deceased and that the doctor handed over viscera in a wooden box sealed with the seal of Hospial, along with sample seal, to him after the postmortem examination and that thereafter the dead body was got identified by relatives of deceased i.e. Shahid vide Ex.PW4/A, Hamid Hussain vide Ex.PW12/A and Nisar Mohd. Vide Ex.PW14/A and later the dead body of deceased was handed over to them vide memo Ex.PW4/B. The PW14 further deposed that on return back to PS, he handed over viscera and sample seal to Inspr. Mahesh, who took the same into possession vide seizure memo Ex.PW13/B. From PS, PW14 along with PW13 HC Harphool went to spot where they met accused Nishar Mohd. and Ishaq Mohd. Inspr. Mahesh also reached there and prepared site plan at the instance of S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 18/ 33 19 PW13. Accused Nishar Mohd. and Ishaq Mohd. were arrested by Inspr. Mahesh vide arrest memo Ex.PW13/C and Ex.PW13/D respectively and were personally searched vide memo Ex.PW13/E and Ex.PW13/F respectively. Both the accused were interrogated and their disclosure statements Ex.PW13/H (of accused Nishar Mohd.) and Ex. PW13/G (of accused Ishaq Mohd.) were recorded. Thereafter both the accused were sent for medical examination to Sanjay Gandhi Memorial Hospital. PW14 identified the case property i.e. the electric wire Ex.P1 and also identified accused Nishar Mohd. and Ishaq Mohd.
29 PW16 Inspr. Mahesh Kumar was handed over investigations of the case on 26.11.2007. He deposed that on that day, PW14 SI Badami Lal handed over a parcel containing viscera along with sample seal of SGMH to him, which was seized by PW16 vide memo Ex.PW13/B. Thereafter PW16 proceeded to the house of deceased at P7/75, Mangol Puri, along with PW13 Ct. Harphool and PW14 SI Badami Lal, where he prepared site plan Ex.PW16/A at the instance of PW14 SI Badami Lal. He also interrogated accused Nishar Mohd. and Ishaq Mohd., who were present there and arrested them vide memo Ex.PW13/C and Ex.PW13/D respectively, prepared their personal search memo vide Ex.PW13/E and Ex.PW13/F respectively and recorded their disclosure statements vide Ex.PW13/H and Ex.PW13/G respectively. The PW16 also recorded statements of witnesses, got both the accused medically examined at SGM Hospital and thereafter brought back the accused to PS. On 24.12.2007, PW16 collected S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 19/ 33 20 postmortem report Ex.PW8/A from SGM Hospital and on 27.12.2007, he sent the exhibits of the case to FSL Rohini. After his transfer from the PS, further investigations of the case were handed over to PW17 Inspr. Dev Raj. 30 PW17 Inspr. Dev Raj deposed that during the course of investigations, he obtained NBWs of accused Shammi Ahmad @ Shammi Mohd. (Dewar of deceased) and Samiudin (Nandoi of deceased) on 07.02.2008. On 18.02.2008, he obtained Ex.PW17/A (earlier marked as Mark "X") i.e. photocopy of Nikahnama of deceased Sabra and took the same into possession vide memo Ex.PW3/A and also recorded statements of Bahar Miya, brother of deceased, in this regard. Thereafter PW17 was transferred and the remaining investigations were carried out by PW23 Inspr. Manoj Sharma.
31 PW23 Inspr. Manoj Sharma deposed that he received investigations of the present case on 16.05.2008 and that on that day, he along with HC Sanjeev and Ct. Parvesh went to Rohini Court (Mahilla Court) where accused Samiudin and Shammi Ahmad @ Shammi Mohd. surrendered themselves. PW23 arrested accused Shammi Ahmad @ Shammi Mohd. and Shamiudin vide arrest memo Ex.PW19/A and Ex.PW19/B respectively, conducted their personal search vide memo Ex.PW19/D and Ex.PW19/C respectively and recorded their disclosure statements vide Ex.PW21/A and Ex.PW21/B respectively and thereafter produced both the accused to the concerned court from there they were remanded to JC.
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32 PW23 further deposed that on 15.07.2008, he took one cloth parcel
(containing electric wire) sealed with the seal of BL from MHCM to seek subsequent opinion and produced the said pullanda along with an application Ex.PW23/A seeking opinion before Dr. V.K. Jha, who gave opinion Ex.PW8/B on the backside of the said application. He also handed over cloth parcel containing electric wire, which at that time was sealed with the seal of SGM H Mortuary, along with sample seal to PW23, who brought it back to PS and deposited the same with MHCM. On 02.07.2008, MHCM handed over FSL report to PW23. After completing investigations, PW23 prepared supplementary charge sheet against accused Samiudin and Shammi Ahmad @ Shammi Mohd. and filed the same in the Court.
33 PW19 Ct. Parvesh Kumar and PW21 HC Sanjeev had accompanied PW23 Inspr. Manoj Sharma to Rohini Courts on 16.05.2008 and deposed on the lines of PW23.
34 After closing of prosecution evidence statement of accused was recorded u/s 313 CrPC. The accused stated that they are innocent and had been falsely implicated in the case. They also examined two defence witnesses i.e. DW1 Sh. Ram Dulare and DW2 Kumari Arsi in order to prove the defence taken by him.
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35 DW1 Sh. Ram Dulare is the neighbour of accused Nishar Mohd. and he
stated that there are about 45 houses between his house and the house of accused Nishar Mohd. and he has been living at the said address for the last about 3035 years. He further deposed that he had never seen any quarrel taking place between accused Nishar Mohd. and his wife Sabra nor did he ever hear about any such quarrel and that he had never seen the mother in law of accused Nishar Mohd. 36 DW2 Kumari Asri is the daughter of accused Mohd. Nishar and deposed that on 25th November, she had come back from her tuition classes and her mother Sabra took her school bag and asked her to go out and play and she went out to play and after some time, when she came back, she saw that her mother was hanging from a log (Balli) in the room. She further deposed that her friend namely Simran was also present with her at that time and she called her mother and in the meantime, their neighbours also came there and a large crowd also gathered there. 37 I have heard the learned Additional PP as well as learned counsel for accused persons and also perused the record carefully.
38 Ld. Additional PP has contended that prosecution has succeeded in proving its case against accused persons beyond reasonable ground and that from the testimonies of PW1 Bhuri Khatoon, PW2 Abid Husain and PW3 Bahar Miya, prosecution has succeeded in proving that deceased was mentally and physically ill S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 22/ 33 23 treated in connection with demand of a motorcycle after the parents to deceased gifted a motorcycle in the marriage of their younger daughter (younger sister of the deceased) and that continuous illtreatment and cruelties by accused persons in connection with demand of motorcycle, let deceased to commit suicide. It is accordingly, prayed that accused persons be convicted for the charged offences. 39 On the other hand, counsel for accused persons has contended that prosecution has failed to prove its case against accused persons beyond reasonable doubt and that prosecution has failed to prove that accused persons had ever raised a demand of motorcycle on deceased and / or her family members or had illtreated, harassed or tortured deceased in connection with the said demand. He has contended that deceased was living happily in her matrimonial home and used to jointly participate with her husband / accused Nishar Mohd. in all functions of her parental family and that accused Nishar Mohd. had gifted expensive articles like washing machine and refrigerator in marriage of other two sisters of deceased and it is unlikely that such person would demand dowry. He has relied upon on following judgments in support of his contention that accused persons are entitled to benefit of doubt to be acquitted of charges in the present case.
40 Section 498A IPC under which the accused persons have been charged requires :
(a) the accused is the husband or the relative of the husband of the victim S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 23/ 33 24 woman, and
(b) he subjected the woman to cruelty by
(i) any willful conduct which was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or death (whether mental or physical) of the woman ;
(ii) harassment of the woman 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.
41 The question which arises before the court is whether deceased died unnatural death within seven years of her marriage with accused Nishar Mohd, and whether the same was as a result of harassment and cruelty on account of dowry. 42 Section 306, under which the accused has been charged, provides for punishment for abetment of suicide. Before Section 306 can be acted upon, prosecution is required to prove that :
(i) A deceased had committed suicide ;
( ii ) The accused had abeted the commission of such suicide. 43 The term abetment referred to in Section 306 IPC is dealt with in Section 107 IPC and the legal position as regards Section 306 IPC is as under : S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 24/ 33 25 " 107 Abetment of a thing - A person abets the doing of a things, who First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy thing ; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation - A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily cases or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
44 It has been clearly brought out by judgment of the Apex Court in case of Randhir Singh Vs. State of Punjab (2004) 13 SCC 129, as follows : " 12 Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 25/ 33 26 of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 45 It has been further observed in case of State of W.B. Vs. Orilal Jaiswal, that, "the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 26/ 33
27
46 In order to prove that deceased Sabra had died a suicidal death,
prosecution had examined PW15 Dr. P.C. Prabhakar, who prepared the MLC of deceased vide Ex.PW15/A. He gave a specific finding of a ligature mark around the neck of the deceased and also declared the patient "brought dead" vide MLC Ex.PW15/A. The PW15 had also referred the patient for Gynecological examination and as per opinion given by gynecologist namely Dr. Manisha Tomar also the patient was "brought dead" with no gynecological reason elicited as cause of death. The PW8 Dr. V.K. Jha and PW9 Dr. Manoj Dhingra had conducted the postmortem examination on the dead body of deceased. The report of postmortem examination was proved as Ex.PW8/A. PW8 Dr. V.K. Jha further proved the opinion given by him regarding the ligature material as Ex.PW8/B wherein he observed that the ligature mark mentioned in Ex.PW8/A could have been caused by said wire or similar such wire. During his deposition, PW8 was shown FSL result of blood and viscera vide report No. FSL/2007/C4670 dated 26.06.2008 which showed presence of Zinc Phosphide, a poisonous substance. After perusal of the viscera report, PW8 stated that he was of the opinion that the cause of death was Asphyxia as a result of ligature pressure over neck structure produced by ante mortem ligature hanging though there was also ingestion of Zinc Phosphide before death. A specific question was put to PW8 if ingestion of Zinc Phosphide could have cause death of Sabra, to which PW8 replied that ingestion of zinc Phosphide had not contributed to the cause of death of the deceased Sabra. Thus from the postmortem report Ex.PW8/A and testimony of doctors PW8, PW9 and PW15, S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 27/ 33 28 prosecution has succeeded in proving that deceased Sabra had died an unnatural death.
47 In order to prove the other necessary ingredients of section 306 IPC prosecution was required to prove that accused had abated the commission of such suicide. The allegation against the accused persons is that they were unhappy that younger sister of deceased Sabra had been gifted a motorcycle in her marriage and were demanding that they be given a motorcycle too and for this reason, they used to harass, torture and beat the deceased. However, the testimony of the prosecution witnesses in this regard does not support the prosecution version. First of all, PW1 Bhuri Khatoon has herself exonerated accused Shammi Ahmad @ Shammi Mohd. And Shamiudin of all the allegations stating that she had named them in her complaint Ex.PW1/A as she was perturbed due to death of her daughter. Further the crossexamination of PW2 Abid Husain also clarifies and brings out the fact that deceased had never informed about being beaten by the accused persons in connection with demand of dowry and that accused Shamiudin, Ishaq Mohd. and Shammi Ahmad @ Shammi Mohd. had never demanded any article of dowry from the family of the deceased. In contradiction PW3 Bahar Miya stated that his deceased sister had informed him that her fatherinlaw Ishaq Mohd. was demanding a motorcycle thereby giving rise to inference that other three accused namely Nishar Mohd., Shammi Ahmad @ Shammi Mohd. and Shamiudin had not demanded anything.
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 28/ 33
29
48 Further there is again contradiction in the testimony of material
prosecution witnesses i.e. PW1 Bhuri Khatoon, PW2 Abid Hussain and PW3 Bahar Miya regarding the visit paid by them to the house of deceased 15 days prior to her death. While PW1 Bhuri Khatoon states in her examination in chief that she had sent her son Abid Hussain and Bahar Miya and after pacifying the accused persons and her daughter Sabra, they returned back. On the other hand, in her crossexamination, PW1 states that she and Bahar Miya had paid the said visit to her daughter's house. PW2 does not specify the time of visit but from his examination in chief, it appears that some of accused had met them, though he does not name them specifically. He also deposed that they had tried to pacify them (accused they met) and told them their incapacity to fulfill their demand due to domestic expenditure. He has also stated that deceased had told them that her brother in law (dewar) Shammi Ahmad @ Shammi Mohd. wanted partition while behnoi Shamiudin was demanding money from her father in law i.e. accused Ishaq Mohd. To the contrary PW3 states that he, his mother and elder brother Abid Hussain had visited house of his deceased sister Sabra 15 days prior to her death and that at that time, they had not met accused Ishaq Mohd., Shammi Ahmad @ Shammi Mohd. and Shamiudin and that on that day, his sister Sabra informed that accused Ishaq Mohd. was demanding a motorcycle but they did not inquire about the said demand from accused Ishaq Mohd. Thus there is no corroboration in the testimony of material witnesses regarding the person / accused, who had made the S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 29/ 33 30 alleged demand of the motorcycle. It is noteworthy that from the testimony of PW1, PW2 and PW3, it is clearly established that deceased Sabra was living happily in her matrimonial home with her husband and three children and whatever dispute arose between them had resulted when a motorcycle was gifted in the marriage of younger sister of deceased Sabra on 28.04.2007. It, however, also brought out from testimonies of these witnesses that accused had gifted a refrigerator in the marriage of younger sister of the deceased, though PW2 stated that money for refrigerator was given by them, this is not corroborated by testimony of PW1 Smt. Bhuri Khatoon and PW3 Bahar Miya. Rather PW1 Smt. Bhuri Khatoon states that accused Nishar Mohd. had gifted a washing machine in the marriage of her another daughter Mumtaz. It thus appears that accused Nishar Mohd. not had only sufficient funds to buy articles likes refrigerator, washing machine etc., but had sufficiently cordial relation with his inlaw to have gifted said articles in marriage of his sisterinlaws (younger sisters of deceased). In these circumstances, the probability of accused Nishar Mohd. being perturbed by gifting of motorcycle by his inlaws in marriage of younger sister of deceased or raising demand for one himself thereafter appears to be far fetched and remote for under normal circumstances a person, who is greedy and makes demand of dowry, would not be willing to part with any money or to gift any articles to any member of family of his inlaws when he himself is dissatisfied due to unfulfilled demand of dowry. Further the testimony of the neighbours i.e. PW 5 Rukhsana and PW6 Rahisa Begum also firmly establishes that deceased Sabra and her husband were S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 30/ 33 31 living happily in their matrimonial home and that there was no demand of dowry made from family of deceased by her husband and in laws to their knowledge nor had family of deceased informed them about it. There is no reason why the neighbours would depose in favour of the accused persons and not narrate about a demand of dowry and illtreatment, if any, or complaint made to them by the deceased or her family members regarding any ill treatment or torture in connection thereto. Generally, close neighbours are the persons who would witness such a happening due to their proximity rather than the family members of a girl and are best witnesses in such like case.
49 Coming to the allegations of demand of dowry, Hon'ble Supreme Court in a case titled as Meka Ramaswamy v. Dasari Mohan and Others AIR 1998 Supreme Court 774 has held that when there is no evidence that dowry was demanded before or at the time of marriage, accused persons are entitled to be acquitted of charges therefor. In the present case contrary to allegations of demand of dowry, the evidence led by prosecution indicates that deceased was enjoying a happy matrimonial life with her husband and had cordial relation with her inlaws. 50 The question which arises for consideration is whether accused had in any way instigated the deceased to commit suicide. It has been held by the Hon'ble Supreme Court in a case titled as Sudhakar and Another vs. State of Maharashtra, 2000 Cri. L.J. 3490, that where the cause of committing suicide is not legally S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 31/ 33 32 proved, accused cannot be held responsible for abetment of ultimate offence of suicide. In the said case, the prosecutrix committed suicide 12 years after their marriage and plea of the prosecution was that the commission of demand of dowry from her, which resulted in her suicide, allegedly of abetment of suicide. Because accused was not held guilty for the offence u/s 498 A IPC and in these circumstances, the Hon'ble Apex Court observed that there was no cogent and reliable evidence to connect the accused with the commission of crime i.e. abetment to suicide. Similar view has been taken in judgments reported in case S.S. Chheena Vs. Vijay Kumar Mahajan & Anr., 2010 (3) JCC 2314, and Amalendu Pal @ Jhantu Vs. State of West Bengal, 2010 (1) JCC 133 (Supra), relied upon by learned counsel for accused persons.
51 In the present case, prosecution could not show any nexus between the suicide by the deceased and conduct of the accused persons which may have led the deceased to commit suicide. It is possible that the deceased herself was under
depression by the discriminatory treatment given to her younger sister by her parents and brothers, who had gifted a motorcycle in her marriage, and on this account, she committed suicide without any provocation or abatement from any person.
52 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 32/ 33 33 opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit accused Nishar Mohd, Ishaq Mohd., Shammi Ahmad @ Shammi Mohd. and Shamiudin of the charged offences, giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 28.09.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 33/ 33
34
FIR No. 842/07
PS Mangol Puri
28.09.2012
Present : Ld. Addl. PP for the State.
All four accused on bail with counsel.
Arguments heard.
Vide separate judgment, announced today in the open Court, accused persons Nishar Mohd., Ishaq Mohd, Shammi Ahmad @ Shammi Mohd. and Shami udin have been acquitted of the charged offence.
Accused persons request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 28.09.2012 S.C No.50/08 State vs. Nishar Mohd. Etc. Page Nos. 34/ 33