Delhi District Court
State vs . 1. Munni W/O. Subhash @ Mumtyaz on 6 January, 2007
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IN THE COURT OF SH. NAROTTAM KAUSHAL:ADDITIONAL
SESSIONS JUDGE : ROHINI COURTS: DELHI.
STATE VS. 1. MUNNI W/o. Subhash @ Mumtyaz
R/o. L-20, Sector-20, Pappan Kalan,
Delhi.
2. Suleman S/o. Subhash @ Mumtyaz
R/o. L-20, Sector-20, Pappan Kalan,
Delhi.
3. Md. Salauddin S/o. Md. Idrish R/o.
L-21, Sector-16, Pappan Kalan, Delhi.
S.NO. 226/06.
FIR NO.466/02.
PS-UTTAM NAGAR.
U/S. 498A/306/509/34 IPC.
JUDGMENT
1. Accused Munni, Suleman and Md. Salauddin have been chargesheeted by PS-Uttam Nagar to face trial for offence punishable under section 498A/306/509 read with 34 IPC.
Complainant Nizam Ansari made a statement to the SDM on 7.7.2002 that he was a rickshaw puller and he had married his daughter Hiria about two years earlier to Suleman as per Muslims rites and ceremonies. Suleman's brother in law Salauddin resided nearby and was having an evil eye on his daughter. He used to tease 2 her and ask her to massage him after removing his clothes. His daughter had, therefore, returned home within one month of marriage. About a month prior to the occurrence his daughter had been taken back to the matrimonial home by the sister and mother of her husband. On the previous date i.e. 6.7.2002 he received the information that Hiria had expired. He suspected that his daughter had been killed by Suleman, Salauddin and Munni.
On the complaint abovesaid FIR under section 498A/306/509 read with 34 IPC had been registered. Dead body was sent for postmortem examination to ascertain cause of death. Accused persons were arrested and challan was filed against all the three accused persons.
2. After complying with the provisions under section 207 Cr.P.C case was committed to the court of Sessions which in turn was assigned to this court.
3. Vide order dated 16.4.2003 charge for offences punishable under section 498A read with 34 IPC and section 306 read with 34 IPC was framed against all the three accused persons and accused Salauddin was separately charge for offence punishable 3 under section 509 IPC. All the accused persons pleaded not guilty and claimed trial.
4. Prosecution in support its case examined sixteen witnesses. The evidence was closed by the statement of learned APP for the State. Incriminating evidence that had come up against the accused persons was put to them and they stated the same to be incorrect. It was further stated that deceased had met her mother on the previous evening and was thereafter perturbed, she committed suicide after having met her mother. It was further stated by the accused persons that they had been falsely implicated as the complainant wanted money from them which they had refused. Accused persons examined one defence witness namely Lalu Ram to prove allibi of accused Salauddin and Suleman. Defence evidence was closed on the statement of learned defence counsel.
5. Complainant Fatima (PW1) is mother of the deceased. She has deposed that matrimonial home of her daughter was at a distance of 4/5 galis from her house. Accused Salauddin resided in the adjacent house of the matrimonial home of the deceased. Her daughter used to work in the kothis during the day time and sell 4 corn in the evening. She was not happy at the matrimonial home and had returned within one month of her marriage. About one year later the accused persons had taken her back with a promise to keep her happy. But about a month later on a Sunday she came to know that her daughter had expired. She has further deposed that accused Salauddin also used to ask his daughter to massage his body after removing his clothes. The deceased had complained to her husband who advised her to do whatever Salauddin wanted. The witness identified her statement made to the SDM as Ex.PW1/B. She identified photographs of her daughter. Her cross examination was deferred as she started crying bitterly after seeing the photographs of her daughter. On cross examination she deposed that her statement was recorded by the SDM in his own handwriting on yellow paper. Statement Ex.PW1/A was not the same which SDM had recorded.
Nizam Ansari (PW2) father of the deceased has deposed that accused Salauddin who is brother i n law (jija) of accused Suleman had an evil eye on his daughter and had attempted to maintain physical relations with her. She used to complain about this 5 to her husband who desired that she should oblige accused Salauddin. She used to be beaten by accused Suleman for refusing sexual intercourse with accused Salauddin. Accused Salauddin also wanted her to come to his house to massage him. He further deposed that his daughter had returned to the matrimonial home about a month prior to her death on a promise by the accused persons that she will be kept well. Deceased had met his wife a day prior to the occurrence and was upset on that day. Next day he came to know that his daughter had died. He got recorded his statement to SDM on 7.7.2002, Ex.PW2/A. He identified the clothes of his daughter. On cross examination he deposed that there were about 2000 people present when he reached the matrimonial home of his daughter on day of occurrence. He had gone to the office of the SDM on Sunday, there his statement was recorded by a SI in the presence of SDM. The SDM had questioned him and had directed the SI to record whatever he was stating. Jahangir, PW4, is a brother of the deceased. This witness has also deposed that accused Salauddin had an evil eye on his sister and desired her to massage him. His sister had complained to her mother in law and her husband but they had not come to her 6 rescue. Accused Suleman also gave her beatings after consuming liquor. She was brought back within one month of her marriage and had returned about one year later. On 5.7.2002 his sister had again complained to her mother about behaviour of the accused persons and had died on the next day. This witness was cross examined at length but his testimony was not shaken.
Tara Chand (PW5) is a cousin of the deceased on the day of occurrence. He had gone and called Nizam (PW2) from his place of work.
6. Md. Akhtar (PW6) is brother in law (sister's husband) of the deceased, he did not support the prosecution case fully. He has deposed that deceased had told her that her husband used to force her to work in kothis. On being cross examined by the learned APP for the State he admitted that Hiria had committed suicide as she was unable to bear torture meted to her by her in laws.
Gudia (PW8) is sister of the deceased. This witness has also deposed that accused Salauddin used to ask her to press his legs and massage him. She has further deposed that she had seen the deceased pressing and massaging the legs of the accused Salauddin. 7 Accused Suleman used to beat her, in case she did not oblige accused Salauddin. Accused Munni used to force her to work in kothis. He also deposed that accused Salauddin used to remove his clothes and ask the deceased to massage him. He had an evil eye on the deceased and used to tease her. On cross examination she denied that deceased had committed suicide on being fed up with the attitude of her parents.
7. E. Raja Babu (PW7) was working as SDM at the relevant time, he was deposed that statement of complainant was recorded by the police in his presence and he made endorsement on the same; the same was Ex.PW7/A. He also deposed that mother of the prosecutrix made a statement before him recorded by a police officer and endorsed by him. His endorsement was Ex.PW7/B. At the spot on 6.7.2002 he had found the dead body of a woman lying on the floor and a chunni was hanging from the ceiling. The door bolt was intact. He had ordered postmortem of the dead body and had directed that statements of the parents of the deceased be recorded as they were alleging foul play. On cross examination he deposed that probably the statements were recorded on the same 8 day i.e. 6.7.2006 in his office. He sought time to refresh his memory on this aspect. After looking at the statement he deposed that the statements were not recorded on the same day. He had not recorded the statement in his own handwriting, as he was a South Indian and did not know Hindi. He was asking the question to the witness and the answer were written by the IO. He could wrote the statement in Hindi at that time also but would have taken long time.
Dr. L.K. Barua (PW12) has been examined as a proxy doctor for Dr. Manoj Nagpal who had conducted the postmortem examination. He identified the signatures of Dr. Nagpal on the report Ex.PW12/A. Cause of death has been opined to be due to hanging.
8. HC Raj Singh (PW3) was the DO he has proved recording of FIR Ex.PW3/A and his endorsement on the rukka Ex.PW3/B. Ct. Kadam Singh (PW7) is stated to have gone with the IO to the spot and also witnessed the arrest of the accused persons. The examination in chief of this witness was deferred and was never recalled for completing his examination in chief. He was not put to cross examination. His testimony, therefore, cannot be read. 9
HC Virender Singh (PW10) was the MHC(M). IO had deposited sealed pullandas with him. He proved the entry in the register as Ex.Pw10/A. Harbir Singh (PW11) was a private photographer. He had taken five photographs of the dead body and proved the same as Ex.P1 to P5 and their negatives as Ex.P6 to P10. Ct. Raj Kumar (PW13) had received a telephonic call at about 2PM on 6.7.2002, that a lady had committed a suicide. He had recorded DD No.10 to this effect and proved it as Ex.PW13/A. WHC Saroj Bala (PW14) is a witness to the arrest of the accused Munni.
9. Inspector Raj Bala Sharma (PW15) was the SHO PS-Uttam Nagar on 6.7.2002. SDM had recorded the statement of the father of the deceased on 7.7.2002. She had made her endorsement there on. She had directed registration of FIR and handed over the investigation to SI T.S. Negi. On cross examination she deposed that case were registered on 7.7.2002 as SDM had fixed the date of recording of statements on 7.7.2002.
SI Tribhuwan Negi (PW16) is the IO. He deposed that on receipt of DD NO.10 he went to the spot and found a lady lying dead on the floor of the house. He sent the information to the SDM who 10 reached at the spot, inspected the spot and talked to the parents of the deceased. They were not in a position to make statement at that time. SDM had directed the witnesses to be produced before him on the next day. SDM had directed the dead body to be sent for postmortem examination. He had got the photographs taken, site plan prepared and had also recorded the statement of witnesses. On cross examination he deposed that he had not recorded statements of neighbour. Statements of parents of the deceased were recorded in his handwriting on the dictation of the SDM. SDM had made inquiries from the persons who had collected there. Husband of the deceased was not present, though his mother was present when the SDM reached there.
10.Learned APP for the State has submitted that from the depositions of parents, brother and sister of the deceased, prosecution case is fully established. There is ample evidence that all the three accused persons had abetted or created circumstances wherein the deceased was driven to commit suicide. She had hardly lived in the matrimonial home for a period of two months, during two years of marriage. There is sufficient evidence that accused 11 Salauddin had an evil eye on the deceased and had made sexual overtures. The other two accused Suleman and Munni, her husband and mother in law did not pay any heed to her complaints and, therefore, drove her to commit suicide. Charge under section 509 IPC is also established against accused Md. Salauddin as he used to ask the deceased to massage his body after removing his clothes.
11.Sh. V.K. Jain, learned defence counsel has submitted that the prosecution case suffers various infirmities. The deceased had met her mother on the previous evening in the weekly market. Something transpired between the mother and daughter, which abetted her to commit suicide. It is further submitted that deceased who had lived in her parents' house till about a month prior to the occurrence, was being made to do menial work by her parents and, therefore she had committed suicide.
It is further submitted that statement was made to the SDM on the day of occurrence i.e. 6.7.2002 which was not incriminating. The subsequent statement of the Mother and father of the deceased are verbatim the same. PW1 has deposed that the SDM 12 had recorded the statement on 6.7.2006 on yellow papers. These yellow papers have been withheld by the prosecution. The statement of various witnesses being parents and siblings of the deceased are not direct evidence of any cruelty meted out to her. Postmortem report has not been properly proved as Dr. Manoj Nagpal who had conducted the postmortem has not been examined. PW9, Ct. Kadam Singh was not called for completion of his evidence, therefore, his evidence cannot be read. Sh. Jain has referred to AIR 1987 SC 977 and argued that failure to examine the best evidence shall be read against the prosecution. A reliance upon 1992 Cr.L.J. 2385 has been placed to submit that charges against the accused persons have to be established beyond reasonable doubt. Reference has also been made to 1993 Cr.L.J. 134 to submit that nexus between the abettement to commit suicide and cruelty has to be established.
12.I have heard learned APP for the State, learned defence counsel and with their assistance gone through evidence and documents relied upon by the prosecution. One common thread in the statements of PW1, PW2, PW4 and PW8 is that the accused Md. Salauddin had an evil eye on deceased Hiria. He made sexual 13 overtures towards her. He asked Hiria to massage his body after removing his clothes. Hiria used to complain about this behaviour of Md. Salauddin to her husband Md. Suleman. Accused Md. Suleman instead of coming to her rescue had asked her to oblige accused Md. Suleman and not to object. Deceased had left her matrimonial home within one month of her marriage under these circumstances. She had returned to the matrimonial home about a month prior to the occurrence on the promise of accused persons that she will be treated well. But the conditions had not changed. Accused Md. Salauddin wanted the same favours and accused Md. Suleman still did not protect Hiria. This evidence which has been corroborated by each of the four witness mentioned above cannot be disbelieved. The witness are none but the parents, brother and sister of the deceased. They are the most likely persons in whom the deceased would have confided and narrated her woeful story. I, therefore, hold that this fact stands established. In my opinion, this is sufficient cruelty meted out to a woman which would drive her to commit suicide. She was subjected to sexually advance by her husband's brother in law, who was an immediate neighbour 14 and the husband instead of stopping his brother in law, admonished his wife. It has also come in evidence of Nizam Ansari, PW2, that accused Suleman used to beat Hiria when she refused to consumate sexually intercourse with Md. Salauddin.
13.The evidence as noticed above, coupled with the provision of section 113 A Indian Evidence Act; a presumption of abettment to commit suicide can be drawn in the abovesaid circumstances. In Kamalakar Nandram Bhavsar and ors. VS State of Maharashtra reported as AIR 2004 SC 503 in similar circumstances wife who was ridiculed because of her dark complexion had committed suicide and her husband, mother in law etc were convicted for offence punishable under section 498A/306 IPC. In the facts of the present case the wife was made sexual advance by the brother in law of the husband and the husband asked her to oblige him. This is sufficient harassment or cruelty as defined in explanation
(a) to section 498A IPC. This is also sufficient to drive a woman to commit suicide.
In the abovesaid circumstances I am of the opinion, prosecution has successfully proved the ill-treatment and harassment 15 to the deceased by accused Salauddin and accused Suleman to be sufficient so as to amount to abettement to commit suicide. They are both accordingly convicted for offence punishable under section 498 A read with 34 and Section 306 read with 34 IPC.
14. As regards accused Munni, PW4 Jahangir has deposed that Munni also did not pay heed to complaints of Hiria regarding conduct of Md. Salauddin. In my opinion, it is the husband who has primary duty to protect his wife. It is only from the husband that the wife would expect action against a person who is sexually harassing or tormenting her. Failure to act by the husband would be sufficient for her to take the final step. Similar, default by a mother in law would not drive a woman to commit suicide; though it may amount to cruelty punishable under section 498A IPC. I am, therefore, of the opinion, that charge under section 306 read with section 34 IPC is not established against the accused Munni but the charge under section 498A read with 34 IPC is established qua her.
15. The evidence that accused Md. Salauddin made sexual advances towards the deceased and also desired her to massage him after removing his clothes is sufficient to establish charge under 16 section 509 IPC against him. He is accordingly convicted for offence punishable under section 509 IPC also.
16. I find no merits in the arguments of Sh. Jain that the statement recorded by the SDM on 6.7.2002 on yellow papers has not seen the light of the day. Though PW1 has deposed that such a statement was records but no such question was put to the SDM; who is supposed to have recorded such a statement. PW1 Fatima is an illiterate woman, she might have got confused. This was an important issue, failure to put the same to the SDM has resulted in lack of corroboration on this aspect. There can also be no doubt on the statements of parents of deceased recorded by SDM merely, because they are similarly worded.
The delay in recording the statement of parents of the deceased by the SDM has been duly explained. On 6.7.2002 when the SDM reached the spot of occurrence, parents of deceased were not in a fit state of mind to make a statement. They were, therefore, called to the SDM's office on the next day and the statements were recorded. I find no infirmity in the prosecution case on this count as well.
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17. Failure to examined Dr. Manoj Nagpal who had conducted the Postmortem report cannot be fatal to the prosecution case. His opinion regarding the cause on death, even if presumed to have been not proved, would not disprove the guilt of the accused persons. His report has any ways been duly proved by PW12, Dr. L.K. Barua, who had seen Dr. Manoj Nagpal writing and signing on various documents during the course of his employment.
18. The judgments relied upon by Sh. Jain do not help the accused and are not applicable on the facts of the present case.
19. Various official witnesses examined by the prosecution have proved the stages of investigation and no infirmity could be pointed out therein.
20. For the abovesaid reasons it is held that prosecution has established the charges beyond reasonable doubt against accused Md. Suleman and Md. Salauddin punishable under section 498A/306 read with 34 IPC. They are accordingly convicted for abovesaid charges. Charge under section 498A read with 34 IPC is also established against accused Munni. She is, therefore convicted for offence punishable under section 498A read with 34 IPC. Accused Md. Salauddin is also held convicted for offence punishable under section 509 IPC.
Announced in the open court (NAROTTAM KAUSHAL) today i.e. 03-01-2007. ADDITIONAL SESSIONS JUDGE ROHINI COURTS : DELHI.
18IN THE COURT OF SH. NAROTTAM KAUSHAL:ADDITIONAL SESSIONS JUDGE : ROHINI COURTS: DELHI.
STATE VS. 1. MUNNI W/o. Subhash @ Mumtyaz R/o. L-20, Sector-20, Pappan Kalan, Delhi.
2. Suleman S/o. Subhash @ Mumtyaz R/o. L-20, Sector-20, Pappan Kalan, Delhi.
3. Md. Salauddin S/o. Md. Idrish R/o.
L-21, Sector-16, Pappan Kalan, Delhi.
S.NO. 226/06.
FIR NO.466/02.
PS-UTTAM NAGAR.
ORDER ON SENTENCE.
1. Vide a separate judgment dated 3.1.2007, convicts Md. Suleman and Md. Salauddin had been held guilty for offence punishable under section 498A/306 read with 34 IPC. Md. Salauddin had also been convicted for offence punishable under section 509 IPC. Convict Munni has been held guilty for offence punishable under section 498A read with 34 IPC.
2. Learned APP on behalf of the State has submitted that the deceased had hardly lived in the matrimonial home for a period of two months, during two years of marriage and was driven to commit 19 suicide. Convicts, therefore, do not deserve any lenient view and should be sentenced to undergo maximum sentence provided under the statute.
3. Sh. V.K. Jain learned defence counsel submits that convict Munni is an old lady and has already undergone imprisonment for a period of one year. Md. Salauddin has five minor children dependent upon him. He has undergone RI for a period of two years and 10 months. Convict Md. Suleman is a patient of TB and is the sole earning member for his mother Munni. He has undergone imprisonment for a period of three years and 26 days. Sh. Jain prays for a lenient approach and submits that convicts be sentenced to imprisonment already undergone.
4. I have heard learned counsels. Deceased Hiria wife of the convict Suleman was subjected to cruelty, in as much as Md. Salauddin used to make sexual advances towards her which were encouraged by Suleman. Both the convicts, therefore, do not deserve any lenient approach. They are, therefore, sentenced to undergo RI for a period of six years and to pay a fine of Rs.5000/- each for the offence punishable under section 306 IPC. In default of payment of 20 fine they shall both undergo SI for one month.
5. As regards the offence under section 498A IPC convicts Suleman and Salauddin shall undergo RI for a period of one year and shall be liable to pay fine of Rs. 2000/- each. In default of payment of fine SI for 15 days.
Convict Munni who has already undergone imprisonment for a period of more than one year is sentenced to undergo imprisonment for the period already undergone and to pay a fine of Rs.1000/- In default of payment of fine she will undergo SI for 15 days.
Convict Md. Salauddin shall also undergo RI for a period of six months for the offence punishable under section 509 IPC. He shall also be liable to pay a fine of Rs.1000/- In default of payment of fine to undergo SI for 15 days.
All sentences shall run concurrently and convicts shall also be entitled to benefit of section 428 of Cr.P.C. Announced in the open court (NAROTTAM KAUSHAL) today i.e. 06-01-2007. ADDITIONAL SESSIONS JUDGE ROHINI COURTS:DELHI.