Delhi District Court
State vs . Ahsan & Ors. on 27 February, 2020
State Vs. Ahsan & Ors.
FIR No. 674/15
Police Station : Bharat Nagar
IN THE COURT OF SHRI RAKESH KUMARIV:ADDL. SESSIONS
JUDGE02cumSPECIAL JUDGE (NDPS), NORTHWEST: ROHINI
COURTS: DELHI
Sessions Case No. 53086/16
Unique Case ID: DLNW010016062016
STATE
Vs.
1. Ahsan
S/o. Md.Sultan
2. Md. Arshad
S/o. Md. Sultan
3. Md. Sultan
S/o Md. Sadik
All Resident of: N17A/415, Pather Wala Bagh
Delhi
FIR No. : 674/15
Police Station : Bharat Nagar
Under Section : 304B/498A/34 IPC
Date of Institution in Sessions Court : 18.04.2016
Date when judgment reserved : 26.02.2020
Date when judgment pronounced : 27.02.2020
JUDGMENT
1. This is the case under section 304B/498A/34 of Indian Page No. 1 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar Penal Code (IPC).
2. Case of the prosecution in brief is that the present FIR was registered on the complaint of Mohd. Yunus wherein he stated that he had solemnized the marriage of his daughter Hasina Khatoon (since deceased) with the Ahsan s/o Mohd. Sultan R/o C387, J.J. Colony, Wazirpur, Delhi, about 3 ½ years ago. Ahsan was working as junk dealer. At the time of marriage there was no demand of dowry from the side of Ahsan and his family members. After one year of marriage, Ahsan started demanding money from the complainant. Complainant gave Rs.28,000/ on one occasion and Rs. 10,000/ on another occasion to Ahsan by pledging jewelery articles. But Ahsan was demanding Rs.40,000/ and threatened the complainant that if the demand of money was not met he would kill his daughter Hasina. Ahsan used to beat Hasina. On 18/11/2015 at about 4:305:00 p.m. Ahsan made a call to his son Kitabuddin that his sister had committed suicide and her body be taken away. His statement was recorded by the Executive Magistrate Sarswati Vihar, Sub Division, Delhi, on the basis of which the present FIR was registered. Investigation was carried out. The accused persons were arrested. On completion of the investigation, chargesheet was filed in the Court of Ld. MM.
Page No. 2 of 42 FIR No. 674/15Police Station : Bharat Nagar
3. On compliance of Section 207 Cr. P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
4. After perusing the material on record, charges under Sections 304B/498A/34 IPC were framed against all the accused persons, by my Ld. Predecessor Court, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined in total 20 witnesses.
FAMILY MEMBERS OF DECEASED
6. PW9 Mohd. Yunus is the complainant/father of the deceased, PW8 Amna Khatoon, mother of the deceased and PW7 Kitabuddin, brother of the deceased. Their testimony shall be discussed in the later part of the judgment.
OFFICIAL WITNESS
7. PW15 Sh. Parvesh Kumar Lakra, Executive Magistrate deposed that on 21.11.2015, in pursuance to the communication received from SDM and SHO he went to BJRM hospital where he recorded the statement of Mohd. Yunus, father of the deceased in the presence of brother of the deceased ExPW9/A and made Page No. 3 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar endorsement ExPW15/A. He made request to autopsy surgeon for conducting the postmortem on the dead body of deceased, ExPW15/B. He recorded identification statement of Mohd. Amiruddin and Mohd. Kitabuddin of the dead body as Ex. PW15/D and Ex. PW7/A respectively.
FORMAL WITNESS
8. PW11 Jai Prakash was a jeweler. He has deposed that in the year 2015 wife of Mohd. Yunus came to him and he had given her Rs.4,000/ in lieu of the pledge of the gold articles which he pledged with him. After some days, he had given Rs.6,000/ to the wife of Mohd. Yunus in lieu of pledge of the gold articles which he pledged with him. As he was not having Rs.10,000/ he had himself arranged it on interest and further disbursed to wife of Mohd. Yunus. He had prepared a consolidated receipt ExP1 mentioning the details of gold articles that he pledged and the dates on which he disbursed the said amount. He had signed in black ink on the said receipt issued by him.
9. PW20 Sh. Sachin was the neighbour of accused. He has deposed that on 18.11.2015, at about 05:00 PM, he was at his room and at that time, he heard the noise of the door being Page No. 4 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar banged coming from down under and he came out of the room and went to the second floor and found that Ahsaan was trying to force open the door by banging it with kicks and hands but it was closed. He went close by and through the iron grill of the window he observed that the wife of Ahsaan was hanging from the ceiling fan with some duppata. Thereafter, he went out to call the landlord and when he came back by that time several persons residing in the vicinity had gathered around. The iron grill of the window was broken and after that the door could be unbolted from inside. The body of the said lady was brought down and then shifted to hospital.
POLICE WITNESSES
10. PW1 HC Narender Kumar is the Duty Officer, who proved the copy of FIR as Ex.PW1/A, endorsement on rukka as ExPW1/B and certificate u/s 65 of Indian Evidence Act as ExPW1/C.
11. PW2 Insp. Manohar Lal is the draftsman. He has stated that on receipt of information and request of the IO he reached at the spot i.e. H.NO. C387, Second floor,Wazirpur and at the instance of SI Rakesh Rana he inspected the spot and took measurements and prepared rough notes and thereafter Page No. 5 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar prepared scaled site plan. He proved the site plan as ExPW2/A.
12. PW3 SI Praveen Incharge, Crime Team, North West District was the Crime Team incharge, who on receipt of information along with Ct. Monu Yadav (Photographer) and other staff visited the spot on 18/11/2015 and inspected the same. He proved the crime scene report prepared by him as Ex.PW3/A.
13. PW4 Ct. Vijay Kumar has deposed that on the instruction of IO Insp. Satyavir Singh, he collected the sealed wooden box containing viscera of deceased Hasina Khatoon along with sample seal from MHCM vie RC no. 153/21/15 and deposited the same at FSL Rohini and handed over the receipt to MHCM.
14. PW5 HC Niyazuddin is MHCM. He has proved entries no.
1279 and 1282 of register no. 19 as ExPW5/A, RC 153/21/15 vide which one sealed wooden box containing viscera of deceased was sent to FSL as ExPW5/B and FSL receipt as ExPW5/C.
15. PW6 HC Praveen Kumar was the duty officer at PS Bharat Nagar. He has deposed that on 18/11/2015 at about 10:30 p.m. wireless operator gave him information regarding Page No. 6 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar receipt of call and on the basis of the same he recorded DD no. 31 A. He proved copy of the same as ExPW6/A.
16. PW10 HC Monu Yadav is the Photographer, Mobile Crime Team who visited the spot and took 15 photographs and prepared the CD and positive of the same. He proved 15 photographs, CD and certificate u/s 65B of Indian Evidence Act as Ex.PW10/1 to ExPW10/15, ExPW10/16 and ExPW10/A respectively.
17. PW12 HC Ashok has deposed in sync with PW SI Rakesh Rana with whom he remained in the investigation.
18. PW13 Ct. Vikram Singh was Telecaller at Channel no.
149. He has deposed that on 18/11/2015 at about 9:57 p.m. he received a call from mobile number 9266224398 from one Mohd. Aftarb and he reduced the said call into PCR form. He proved PCR form as ExPW13/A and certificate u/s 65B of Indian Evidence Act as ExPW13/B. He has further deposed that after sometime the call was made on the number from which the call was received in order to ascertain the correct address. After ascertainment, the address was found to be of Wazirpur and he recorded the correct address in the PCR form as ExPW13/C and ExPW13/C1 and and certificate u/s 65B of Indian Evidence Act Page No. 7 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar as ExPW13/D.
19. PW14 ASI Mohan Lal has deposed that on 11/2/2016 he went to the house of Amna Khatoon at village Sarai Noor Nagar, District Begu Sarai, Bihar and she had taken him to the shop of a jeweler namely Jai Prakash at Mansoor Chowk. He showed him receipt ExP1 and obtained his signatures on the other side of the receipt and made him write 'verified'. He handed over the receipt to the IO.
20. PW17 ACP Satyavir Singh, SHO PS Bharat Nagar has deposed that on 21/11/2015 SI Rakesh Rana handed over him the statement of father of deceased with endorsement of the Executive Magistrate with direction to register the FIR and in pursuance to the same he made endorsement ExPW17/ and got the present case FIR registered. Thereafter he along with SI Rakesh Rana and Ct. Dharambir reached the spot and prepared site plan ExPW17/B at the instance of SI Rakesh Rana and arrested the accused vide arrest memo ExPW17/C and carried out personal search of accused vide personal search memo ExPW17/D. He seized the ligature material vide seizure memo ExPW17/F and collected the PCR form, jewellery slip from mother of deceased, documents i.e. marriage certificate, paper cutting, disowning the accused Ahsan from his property and Page No. 8 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar burnt up photographs from father of the accused and seized the same vide seizure memo ExPW13/A, ExPW8/A, ExPW17/G respectively. He got prepared the scaled site plan, collected the crime team report and CD of the photographs. He also collected subsequent opinion about the cause of death ExPW17/H and ligature material ExPW17/I.
21. PW18 SI Rakesh Rana has deposed that on 18.11.2015, on the receipt of DD No. 31 A Ex. PW6/A, he alongwith Ct. Ashok went to C387, Second Floor, J.J. Colony, Wazirpur, Delhi and found the dead body of a lady namely Hasina Khatun W/o Ahsaan. He recorded the statement of accused Ahsaan and brother of the deceased namely Hasina Khatun as Ex. PW18/A and Ex. PW7/B respectively. Crime team was called at the spot and he got the spot inspected and photographed and passed on the information to the SDM concerned. He had seized the broken pieces of the broken window which was broken open in order to gain access over the room where the deceased was found hanging. The said pieces were seized vide seizure memo Ex. PW12/C. Thereafter, the dead body was sent to BJRM hospital mortuary through Ct. Ashok and he had passed on the information regarding the death of the deceased to her parents and they arrived here from Bihar. On 21.11.2015, the Executive Magistrate Sh. Parvesh Kumar Lakra, got conducted the Page No. 9 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar postmortem on the dead body of the deceased and after postmortem, he recorded the statement of father of the deceased and handed over the same to him. At the time of the postmortem the viscera, the clothes of the deceased were seized vide seizure memos Ex. 12/A and Ex. PW12/B respectively. He filled a form 25.35 and other inquest papers and proved the same as Ex.PW18/B and the brief facts as Ex. PW18/C. He has also proved the request for preserving the dead body as Ex. PW18/D and also recorded the statement of one neighbour namely Sachin which is Ex. PW18/E bearing my signatures at point A. Thereafter, I handed over the papers of the proceedings conducted by me so far to the SHO alongwith the statement of the father of the deceased with the endorsement of the Executive Magistrate on it for the registration of the FIR. On the same day, he joined the investigation with SHO Satyavir Singh and we went to the spot where IO arrested the accused MEDICAL EVIDENCE
22. PW16 Dr. Neeraj Chaudhary CMO, BJRM Hospital Delhi deposed that he had worked with Dr. Vishal and Dr. Anuj and identified their handwriting and signatures on the MLC NO. 107703 Ex.PW16/A at point A and B respectively as he has seen them writing and signing in the course of his official duties. He Page No. 10 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar further deposed that as per MLC the patient Hasina Khatun, aged about 24 years was brought in casualty with the alleged history of hanging and as per local examination ligature mark on neck was present.
23. PW19 Dr. V.K. Jha CMO, BJRM Hospital Delhi deposed that he had worked with Dr. N.K. Gunjan and identified his handwriting and signatures on the PM report Ex.PW19/A at point A as he has seen them writing and signing in the course of his official duties. He has further deposed that as per PM report on 21/11/2015 Dr. N.K.Gunjan conducted the post mortem on the death body of Hasina Khatun and after post mortem opined the cause of death as asphyxia due to ante mortem hanging. He further deposed that Dr. N.K. Gunjan has also preserved viscera and after the receipt of the viscera report Dr. N.K. Gunjan gave subsequent opinion no. 157/17 and 158/17 as ExPW17/H and ExPW17/I respectively bearing signatures of Dr. N.K. Gunjan at point A. ARGUMENTS OF BOTH SIDES
24. I have heard Ld. Addl. PP and Ld. Counsel for the accused and have perused the material available on record.
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25. It is argued by the Ld. Counsel for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubts. It is stated that in the examination, all the witnesses i.e. PW9 Mohd. Yunus, father of the deceased, PW8 Amna Khatoon, mother of the deceased and PW7 sh. Kitabuddin, brother of the deceased have not supported the case of the prosecution at all, several contradictions come up on record as such case of prosecution comes under the shadow of doubts and there is no other material witness examined by the prosecution to prove its case except the witnesses of medical examination and the investigation conducted by the police.
26. Per contra, Ld. Addl. PP for the State has argued that prosecution has been able to prove its case beyond the reasonable doubts.
THE RELEVANT PROVISIONS OF LAW AND PRECEDENTS SET BY THE HON'BLE APEX COURT
27. Section 304B IPC punishes "dowry death" and it provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or Page No. 12 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
28. Section 498 A IPC is much wider in nature. It makes an offence when the husband or the relatives of the husband of a woman, subject such woman to cruelty. The term "Cruelty" means not only harassment to the woman with a view to coerce her to meet any unlawful demand for any properly or valuable security but it would also include any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injuries herself.
29. It shall be relevant to examine the testimony of PW7 Sh.
Kitabuddin, brother of the deceased, PW8 Smt. Amna Khatoon, mother of deceased, PW9 Mohd. Yunis, father of the deceased and PW11 Jai Prakash because they are only witnesses who could have proved about the factum of cruelty or harassment caused to the deceased within the meaning of Section 498A IPC or about cruelty or harassment on account of dowry demand and if so, soon before her death within the meaning of Section 304B IPC.
30. Since the prosecution is placing its heavy reliance on the Page No. 13 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar testimony of the said witnesses, hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the Page No. 14 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
31. It has been held in Kaliayaperumal Vs. State of TN (2004) 9SCC 157 that the essential ingredients for constituting an offence u/s 304B IPC are under:
(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(2) Such death must have occurred within seven years of her marriage;
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(4) Such cruelty or harassment must be for, or in connection with, demand for dowry.
32. As their lordship of the Hon'ble Supreme Court in case "M. Sriniwasulu Vs. State of A.P., (2007) 12 SCC 443" held:
"8.14 The presumption shall be raised only on proof of the following essentials:Page No. 15 of 42
State Vs. Ahsan & Ors.FIR No. 674/15
Police Station : Bharat Nagar (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B of the Indian Penal Code.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
33. Further, it was considered by the Hon'ble Supreme Court of Indian in case titled as Rajinder Singh Vs. State 2015, the judgment of Hon'ble Supreme Court of India has been relied and considered in respect to the terms "soon before death" i.e. Kans Raj Vs. State of Punjab and Others (2000) 5 SCC 207 : 2000 SCC (Cri.) 935 it was held:
"15. "Soon before" is a relative terms which is required to be considered under specific circumstances of each case and no straightjacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Page No. 16 of 42 State Vs. Ahsan & Ors.FIR No. 674/15
Police Station : Bharat Nagar Act. These words would imply that the interval should not be too long before the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances sowing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstances showing the nonexistence of such treatment is not brought on record, before the alleged such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."Page No. 17 of 42 FIR No. 674/15
Police Station : Bharat Nagar
34. A conjoint reading of Section 113B of the Evidence Act and Section 304B IOC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that Page No. 18 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough. Reliance can be placed Hira Lal Vs. State and Hakam Singh Vs. State.
35. As their lordship of the Hon'ble Supreme Court in case 'Kans Raj Vs. State of Punjab, (2000) 5 SCC 207', had considered the term 'soon before'. The relevant observations are as under:
"Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any timelimit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the Page No. 19 of 42 State Vs. Ahsan & Ors.FIR No. 674/15
Police Station : Bharat Nagar expression "soon after" as used and understood in Section 114 Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance, but, normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."Page No. 20 of 42 FIR No. 674/15
Police Station : Bharat Nagar
36. It has been held in Kansraj Vs. State of Punjab and ors. 2000 (5) SCC 207 that:
"5..... a tendency has, however, developed for roping in all relations of the in laws of the deceased wives in the matter of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
37. In the State of West Bengal Vs. Orilal Jaiswal and Anr.
(1994) 1 SCC 73, Hon'ble Apex Court has observed: "We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof can not lie in the realm of surmises of conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113 A of Page No. 21 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar the Indian evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty, when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter".
38. Presumption under Section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of section 304B IPC. Since, the evidence falls short of proving the essential ingredients to Section 304B IPC, question of drawing presumption against the accused under Section 113B does not arise.
39. Section 2 of Dowry Prohibition Act defines "dowry" as Page No. 22 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar under:
Definition of 'dowry' In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a)by one party to a marriage to the other party to the marriage; or
(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II. The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code."
40. A careful analysis of the abovereferred definitions would show that dowry would include that property or valuable security which is actually given or which is agreed to be given, in connection to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marrige or at any time after the marrige, so long as it is connected with the marriage. But there Page No. 23 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar has to be a link between the property given or agreed to be given at the time of marriage, which is missing in the present case.
41. Further it has been held that minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence. The court can also not ignore the fact that these witnesses are not very educated persons. It is a settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the courts. It is also a settled principle that the statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour or a party. The contradictions have to be material and substantial so as to adversely affect the case of the prosecution.
42. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012 :
"Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but Page No. 24 of 42 State Vs. Ahsan & Ors.FIR No. 674/15
Police Station : Bharat Nagar natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements."
43. Further it has been held that "it is a true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr. P.C are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case.
44. Further in support of the submissions Ld. APP also relied upon the judgment of Hon'ble Supreme Court titled Rizan & Anr. Vs. State of Chhatisgarh decided on 21.01.2013 wherein considering/ discussing the another judgment of Hon'ble Supreme Court i.e. Guli Chand & Ors. Vs. State of Rajasthan (1974) 3 SCC 698 as well as Vadivelu Thevar Vs. State of Page No. 25 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar Madras AIR (1957) SC 1614 wherein it has been held that:
"We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon has no substance. This theory was repelled by this court as early as in Dalip Singh's case supra in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose.J. it was observed.
45. Further the reliance has been placed on the judgment of the Hon'ble Supreme Court titled as Dalip Singh and Ors. Vs. State of Punjab, AIR (1953) SC 364 wherein it has been held that:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to which to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, there is a Page No. 26 of 42 State Vs. Ahsan & Ors.FIR No. 674/15
Police Station : Bharat Nagar tendancy to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any weeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
FINDINGS/ REASONINGS OF THE COURT
46. After hearing, Learned Counsel for the defence and Learned Additional Public Prosecutor for the State, the Court is giving its findings/ reasonings, in the following paragraphs:
47. PW19 Dr. V.K. Jha CMO, BJRM Hospital Delhi deposed that he had worked with Dr. N.K. Gunjan and identified his handwriting and signatures on the PM report Ex.PW19/A at point A as he has seen them writing and signing in the course of his official duties. He has further deposed that as per PM report Page No. 27 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar on 21/11/2015 Dr. N.K.Gunjan conducted the post mortem on the death body of Hasina Khatoon and after post mortem opined the cause of death as asphyxia due to ante mortem hanging. He further deposed that Dr. N.K. Gunjan has also preserved viscera and after the receipt of the viscera report Dr. N.K. Gunjan gave subsequent opinion no. 157/17 and 158/17 as ExPW17/H and ExPW17/I respectively bearing signatures of Dr. N.K. Gunjan at point A.
48. In view of the testimony of PW16, PW17 & PW19, there is nothing on record to controvert the above medical evidence. As per the case of the prosecution, she had committed suicide by hanging.
49. The term dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of the person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as, it is a connected with the marriage, but there has to be a link between the property given or agreed to be given at the time of marriage.
50. Section 498A IPC is much wider in nature. It makes an Page No. 28 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar offence when the husband or the relatives of the husband of a woman, subjects such woman to cruelty. The term "Cruelty" means not only harassment to the woman with a view to coerce her to meet any unlawful demand for any property or valuable security but it would also include any willful conduct which is of such a nature as is likely to drive the woman to committed suicide or to cause grave injury to herself.
51. The question which arises for consideration is whether deceased Hasina Khatoon @ Munni was at any point of time subjected to cruelty as define u/s 498A IPC or whether soon before her death, she was subjected to cruelty or harassment by the accused for or in connection with any demand of dowry by the accused persons within the meaning of Section 304B IPC.
52. It is relevant here to state that present FIR was registered on the complaint of Mohd. Yunus, PW9 who is the father of the deceased. During the investigation, IO also recorded the statement of Amna Khatoon mother of the deceased and statement of Kitabuddin brother of the deceased. They are the witnesses who could have proved that her daughter Hasina Khatoon @ Munni was treated with cruelty in her matrimonial house by the accused within the meaning of Section 498A IPC or soon before her death, she was subjected to cruelty or Page No. 29 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar harassment by the accused for or in connection with any demand for dowry.
53. In view of the above, now turning to the testimony of the material witnesses. In the present case, PW7 Mohd. Kitabuddin deposed that on 18.11.2015, his brother in law (jija) namely Ahsan called him up and told him that his sister Hasina Khatoon @ Munni had hanged herself up and asked to him take her as she had died. He further deposed that when his brother in law called him, he came to JJ colony where his brother in law was residing along with his cousin brother Rustam and one Aftab and when they came there, they saw that the dead body of his sister lying in the room. He further deposed that accused Ahsan was not present there as he had fled and some of his labour was present at that time. He further deposed that his mama Jahangir was working with accused Ahsan and he came outside and called at 100 number. He further deposed that post mortom of his sister was conducted and prior to that, he called his mother Amna Khatoon from the village. He further deposed that he does not remember the exact date of marriage of his sister but, it was around 3 /3 ½ years prior to the incident. He further deposed that accused was residing at JJ colony at that time and prior to the incident, accused had been residing at the tenanted premises. He further deposed that after about 11 ½ years of Page No. 30 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar marriage, their relations remained normal but after that accused started harassing his sister for bringing no dowry as at the time of marriage they did not given any dowry. He further deposed that the accused started kabadi shop and for that he started demanding Rs. 28,000/, Rs. 30,000/ and Rs. 40,000/. He further deposed that the accused in need of money for running of said shop and the accused used to consume liquor and after consuming the liquor, he used to torture his sister. He further deposed that his sister called his mother and told about the demand being raised by the accused and told that she was being harassed and tortured for said demand. He further deposed that his mother pledged some jewellery and had given Rs. 10,000/ to accused and his sister had a conversation with his mother and he came to know through his mother about the said fact. He further deposed that he identified the dead body of his sister vide memo Ex. PW7/A and proved his statement Ex. PW7/B.
54. Thereafter, this witness declared hostile and learned Additional Public Prosecutor for the State has crossexamined this witness. In the cross examination carried out on behalf of learned Additional Public Prosecutor for the State, despite witness has denied that his sister told him that the accused used to tell him that no dowry had been given at the time of marriage and thus in lieu of that he be given the money.
Page No. 31 of 42 FIR No. 674/15Police Station : Bharat Nagar Witness further denied that he told to the police that accused threatened his parents if demand for money was not met he would kill his sister or that he told the police that his sister committed suicide by hanging herself up due to the beatings and tortures given by accused for demand of money. It is correct that the accused Ahsan used to beat his sister for money.
55. The witness has duly cross examined by ld. Defence counsel and during his cross examination, the witness has denied that accused's sister is his bhabhi as his brother got married with accused's sister 8 years back. Witness has denied that Rs. 28,000/ and Rs. 10,000/ was not given to the accused by his mother in his presence. However, voluntarily deposed that he was present in Delhi at that point of time and also deposed that he does not remember the exact dates of giving such amounts to accused as no such amounts was ever made to the accused. Witness has further submitted that he does not remember the exact date when it came to his knowledge that the accused started beating and harassing her on account of dowry demand. Further, the witness denied the suggestion that his deceased sister Hasina Khatoon was short tempered. Witness has further stated that no quarrel took place between him and the accused and denied the suggestion that the accused had cordial relations with her sister and never harassed and tortured his Page No. 32 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar sister for dowry or to bring more cash.
56. PW8 Amna Khatoon deposed that the deceased Hasina Khatoon was the eldest of all the sisters but younger to his sons Mohd. Afzal and Mohd. Kitabuddin. She further deposed that around three years prior to the date of incident, she got her daughter married to accused who is resident of JJ colony, Jhuggi. She further deposed that he started demanding money for running his shop whereas they offered him wooden articles and had given Rs. 28,000/ and then Rs. 10,000/ after pledging the jewellery articles. She further deposed that police seized the said receipt as Ex. PW8/A. She further deposed that the accused used to beat her daughter for bringing no dowry and around one and half year prior to the incident, he had to take her daughter back and she had perceptible injury in her eye and ear. She further deposed that her daughter had a black eye and had gone to PS to lodge the complaint. She further deposed that accused had kept her daughter separately in a jhuggi at JJ colony and around 15 days prior to the incident, she received a call from her daughter that behaviour of the accused was well and she was about to come to attend a marriage at Begu sarai. She further deposed that her daughter committed suicide as they were poor and accused is quite well off.
Page No. 33 of 42 FIR No. 674/15Police Station : Bharat Nagar
57. Thereafter, learned Additional Public Prosecutor for the State requested to cross examine the said witness as the witness failed to disclose the complete facts of the case. In the cross examination carried out on behalf of learned Additional Public Prosecutor for the State, witness has deposed that it is correct that after giving Rs. 10,000/ which she got after pledging the jewellery articles, accused continued to demand Rs. 40,000/ and further deposed "if is correct that because of non fulfillment of the demand of Rs. 40,000/ she continued to beat her daughter, torture and harass her daughter." Witness has denied the suggestion as "it is wrong to suggest that her daughter committed suicide and he voluntarily stated that her daughter was killed by accused Ahsan." She further deposed that the accused torture and harass her daughter and finally she died on 18.11.2015. It is correct that my daughter used to tell me about the beating, torture and harassment intend out of her for nonfulfillment of demand of money.
58. The witness has duly cross examined by ld. Defence counsel and during her cross examination witness deposed that accused's sister namely Jamila Khatoon is the wife of her son Afzal and has four children. She further deposed that at the time of marriage of accused with her daughter, the accused was doing Page No. 34 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar welding work and was running a kabadi shop. She further deposed that her brother and one of her cousin is also working with accused and had come only once prior to the date of incident to Delhi to meet her daughter. She further deposed that his two sons are residing at Delhi, one of them is residing in Wazirpur, JJ Colony. She further deposed that she does not keep mobile phone but, her daughter used to call her on the person available in the village to talk her. She further deposed that her daughter used to call her from mobile phone of accused and she called her daughter only once or twice to know her wellbeing and that time her daughter replied that she was OK but she further replied that for the sake of children, she would live. She further deposed that she did not tell the said fact to the police but she voluntarily said her daughter might have done this but she does not have copy of such report. She further deposed that she and her family members had not made any complaint against the accused for not keeping well her daughter and demanding the money but, she voluntarily stated that her daughter might had made complaint. She further deposed that she had to take her daughter back as she had perceptible injury in her eye and ear and her daughter had a black eye and she had gone to PS as well as to lodge the complaint. She further deposed that she told the fact to the police that she is a Biri worker. She further deposed that at the time of marriage of her Page No. 35 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar daughter, she was earning Rs. 100/ per day by making biri. She further deposed that after one and half year of marriage, her family could earn Rs. 60/ per day. She further deposed that she had given Rs. 28,000/ in her daughter's hand in two installments but, she did not remember the dates, month and year of handing over such amount and she further deposed that the amount was given in the presence of the accused or not. She further deposed that she had given Rs. 10,000/ to accused in his hand on the day of Ramzan. She further deposed that she had given Rs. 14,000/ to her daughter to invest in the business in the presence of accused. She further deposed that Rs. 10,000/ was handed over to the friend of accused namely Kausar to be given to the accused.
59. Witness has denied the suggestion that she never gave any amount to the accused or her daughter after the marriage. Witness has further denied the suggestion that her daughter was short tempered and 12 times, she asked her daughter to maintain cordial relations with the accused on asking of accused. Witness has further denied the suggestion that accused never demanded Rs. 40,000/ or that accused did not consume liquor or that never indulged in beatings to her daughter after consuming liquor or that in the suicide of her daughter, accused has no hand. Witness has denied the suggestion that accused Page No. 36 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar took her daughter to the hospital to save her life and she was told by other persons that accused tried to save the life of her daughter.
60. Witness has further deposed that accused along with her daughter residing separately from his father for the last 23 months prior to the dae of incident. Witness further deposed that the deceased told him that her father in law had divested his son and he had gone along with Kausar to take such amount of Rs. 10,000/ from the jeweler and such jeweler had not done any paper work in this regard. Witness has denied the suggestion that the slip Ex. P1 is a false document or that no money was taken from the jeweler to be given to the accused.
61. PW9 Mohd. Yunus deposed that he is in the work of biri making and have seven children. He further deposed that the deceased Munni was the eldest of all the sisters and around three years ago to the date of incident, she got her daughter married to the accused who was residing at Jhuggi, JJ Colony and was working as junk dealer. He further deposed that his sons Kitabuddin and Mohd. Afzal were residing at Delhi and at the time of marrige, there was no demand of dowry from their side. He further deposed that till two years after the marriage, the accused kept her daughter well but after that he raised Page No. 37 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar demand of Rs. 40,000/ from his daughter and told her to bring the same from their parents as he wanted to absorb the said amount in the business of junk dealing. He further deposed that accused and his daughter visited their house at Begu sarai and his daughter told his wife that Rs. 40,000/ is needed as demanded by her husband and his wife gave Rs. 28,000/ one time after arranging the said amount from her parents and her brother and at another occasion Rs. 10,000/ after pledging the jewelery articles to accused. He further deposed that his wife had sent the said amount of Rs. 10,000/ to accused through one of the friend of accused. He further deposed that he does not remember the name of the jeweler with whom she pledged the jewelery articles, however, his wife had given the receipt which she had received from the jeweler to the police and the said receipt is Ex. P1. He further deposed that accused used to beat his daughter for bringing no dowry and he continued to raise pressure on his daughter to bring more cash. He further deposed that his son Kitabuddin used to tell him that his daughter was not safe with the accused and he had expressed apprehension that the accused would kill his daughter. He further deposed that his daughter used to tell all the happenings to his son Kitabuddin. He further deposed that on 18.11.2015, accused made a call to his son Kitabuddin that his daughter had committed suicide and the body be taken away.
Page No. 38 of 42 FIR No. 674/15Police Station : Bharat Nagar He further deposed that his son informed him regarding this as he was at Begu sarai and on 19.11.2015, he came to Delhi and went to the hospital and on 20.11.2015, where he identified the dead body of his daughter and after post mortom, the dead body was handed over to them and his statement was recorded as Ex. PW9/A.
62. The witness has duly cross examined by ld. Defence counsel and during his cross examination witness has deposed that one of his sons used to stay at Wazirpur, near the residence of accused and the marriage with the accused of his daughter was the second marriage and earlier marriage was not dissolved. Witness has further deposed that he had not come to Delhi since the date of marriage of his daughter till the death of his daughter. He further deposed that the facts which he told to the police and his deposition were told by his son Kitabuddin. He further deposed that accused beating his daughter for bring more dowry and continued raise pressure on her for more cash. He further deposed that his daughter was not safe with the accused or that because of nonfulfillment of demand of Rs. 40,000/, the accused continued to beat his daughter, torture and harass his daughter.
63. PW11 Jai Prakash deposed that he is a jeweler at Village Page No. 39 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar Mansur Chak, Distt. Begu sarai, Bihar and in the year of 2015, wife of Mohd. Yunus came to him and he gave Rs. 4000/ in lieu of pledge the gold articles and after some days, he had given Rs. 6000/ to the wife of Mohd. Yunus in lieu of pledge of gold articles. He further deposed that he arranged Rs. 10,000/ on interest as he himself was not having such amount. He further deposed that he prepared a consolidated receipt mentioning the details of gold articles that he pledged and the dates on which he disbursed the said amount. He further deposed that the receipt Ex. P1 bearing his signature at point A on both sides and bears his mobile number. He further deposed that he was told by wife of Mohd. Yunus while asking for the said amount that she had to send the said money to her daughter as demanded by her son in law.
64. The witness has duly cross examined by ld. Defence counsel and during his cross examination witness has deposed that the signatures in the blank ink were put on the receipt after he was shown the said receipt Ex. P1. He further deposed that he never received any interest so far. He further deposed that the wife of Yunus had not brought any receipt of the jewellery articles which he pledged. He further deposed that the articles were old and he can not say from which shop the articles were purchased.
Page No. 40 of 42 FIR No. 674/15Police Station : Bharat Nagar
65. Despite of defence taken above during the cross examination of the above noted witnesses, no evidence has been led by the accused either in respect to the fact that there was no dowry demand or that deceased was short tempered or hot tempered.
66. Assimilation of the evidence of above discussed for witnesses, this court is of the considered view that, does indicate that there was a demand of money by the accused as dowry. Though there is a minor contradiction in the testimony of all the above said material witnesses as regard the stage of time and demand. They are all consistently deposed about the demand of money. Judicial notice can be taken of the social set up, where a girl/ wife chosen to and her life due to inability of her parents' to fulfill the demand of money/ dowry, being poor as in the present case. PW8 Mother of the deceased has of course, unequivocally deposed about the demand of money from the accused and consequently tortured her daughter due to which, she (deceased) has committed suicide. It has been held by the Hon'ble Supreme Court of India in case titled as Gurelal Vs. State of Uttar Pradesh. The relevant portion is reproduced here under: "In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on Page No. 41 of 42 State Vs. Ahsan & Ors.
FIR No. 674/15Police Station : Bharat Nagar the prosecution case or innocence of the accused has to be keep in mind in coming to the conclusion as to the guilt or otherwise of accused. In reaching a conclusion, the court about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, in intrinsic value and animus of witnesses."
67. In view of the above, the defence does not impress this court specially the subsequent conduct of the accused as he ran away from the house when he came to know that his wife has end her life and the plea/ explanation that he ran away because he had afraid is not plausible.
68. Therefore, I am of the considered view that the Prosecution's case successfully proved the charges levelled against the accused for the offence(s) under Section: 498A/304B IPC against the accused Ahsan. Accordingly, accused Ahsan is Convicted for the aforesaid offence(s). Copy of the order be given to the accused Ahsan free of cost.
(Rakesh KumarIV) Announced in Open Court ASJ02cumSpecial Judge, on 27th Day of February, 2019 (NDPS), NorthWest District, Rohini:Delhi Page No. 42 of 42