Delhi District Court
State vs . (1) Zulfikar on 4 January, 2016
FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 45/15 Unique Case ID No. 02404R0230472011 State Vs. (1) Zulfikar S/o Sh. Latif Khan R/o P1/423/424, Sultan Puri, Delhi. (2) Mohd. Latif Khan S/o Sh. Hafiz Khan R/o P1/423/424, Sultan Puri, Delhi. (3) Sara Begum W/o Sh. Chander Shekhar R/o House No. 171, Hiran Kudna Village, Delhi. (4) Noorjahan @ Noora W/o Sh. Mohd Latif Khan R/o H.No. P1/423424, Sultan Puri, Delhi (Declared Proclaimed Offender vide order dated 25.04.2012) (5) Sona W/o Sh. Mohd Latif Khan R/o H.No.P1/423424, Sultan Puri, Delhi. (Declared Proclaimed Offender vide order dated 25.04.2012) FIR No. : 212/11 Police Station : Sultan Puri Under Sections : 498A/304B/34 IPC State V/s Zulfikar Etc. ("Acquitted") Page 1 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 Date of committal to Sessions Court: 13.10.2011 Date on which judgment was reserved: 04.01.2016 Date on which Judgment pronounced: 04.01.2016 JUDGMENT
BRIEF FACTS OF THE CASE:
1. In brief, the case of prosecution as mentioned in the chargesheet is as under:
(i) That on 22.05.2011 at about 5.25 pm, intimation was received in PS Sultanpuri that one gas cylinder had been burst at House No. P1/423, Gali no. 12, Sultanpuri, Delhi. Said intimation was recorded vide DD no. 37A ( Ex. PW7/A) and same was handed over to SI Badami Lal (PW13) for necessary action;
(ii) On the same day at about 5.29 pm, another intimation was received in PS Sultanpuri regarding burning of daughterin law at House No. P1/429. Said information was recorded vide DD no. 38A ( Ex. PW7/B) and SI Badami Lal (PW13) was telephonically informed about the contents thereof for necessary action;
(iii) On the same day i.e. 22.05.2011 at about 7.51 pm, another information was received in PS Sultanpuri from PCR regarding removal of injured Afsara to SGM Hospital and caller had informed PCR that her daughter had been burnt by her inlaws for dowry. Said information was recorded vide DD State V/s Zulfikar Etc. ("Acquitted") Page 2 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 No. 49B (Ex.PW17/A) and same was also entrusted to SI Badami Lal for necessary action;
(iv) It is further the case of prosecution that on receipt of DD no.
37A, SI Badami Lal alongwith ASI Pradeep rushed to the place of information and therefrom, both of them went to SGM Hospital and found one lady namely Ms. Afsara W/o Zulfikar (one of the accused herein) getting treatment over there. SI Badami Lal informed concerned Tehsildar regarding the incident. Accordingly, Sh. R.P. Singh, the then Tehsildar (PW9) reached said hospital and recorded statement ( Ex. PW9/A) of injured Afsara, wherein she claimed to have got married with accused Zulfikar. On 22.05.2011 at about 4.00 / 4.30 pm when she was making tea for her family members, she found that oil in the gas stove was insufficient. She poured kerosene oil into lota (mug) from plastic cane available near her. Unfortunately, said lota slipped from her hand and oil spilled over her wearing clothes as well as on the floor, due to which she caught fire and got burnt. When she cried for help, her sisterinlaw i.e. coaccused Sona (since P.O.) came there and she also called other family members and they all tried to douse the fire. She also stated in her said statement that no one was at fault for the said incident and she did not want any action against any person;
State V/s Zulfikar Etc. ("Acquitted") Page 3 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016
(v) It is further the case of prosecution that in view of aforesaid statement made by injured Afsara, DD entry was kept pending. On 23.05.2011, SDM concerned recorded statement of Babu Deen (father of injured Afsara), wherein he alleged that accused persons used to harass his daughter Afsara in connection with demand of dowry and also used to taunt her for not bringing sufficient dowry after the marriage. He alleged to have paid Rs. 2 lacs to accused Zulfikar after about one year of marriage of his daughter Afsara with said accused and also gave expensive gifts and cash amount of Rs. 50,000/ on 'Chuchak Ceremony' after birth of his maternal grand son, but still accused persons were demanding cash amount of Rs. 4 lacs and Santro Car from them. On 21.05.2011 at about 3.30 pm, he had received telephone call of Afsara and he was told that the accused persons were beating him and she asked him to come to her matrimonial house. Before he could reach there, her daughter got burnt;
(vi) On the basis of aforesaid statement, SDM concerned issued directions for taking action as per law. Accordingly, FIR in question was got registered for the offence U/s 498A IPC. Investigation was entrusted to SI Badami Lal who got the place of occurrence inspected through crime team officials and lifted relevant exhibits i.e. plastic cane, plastic mug and State V/s Zulfikar Etc. ("Acquitted") Page 4 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 partially burnt clothes from the place of occurrence and also prepared rough site plan thereof;
(vii) It is further the case of prosecution that on 24.05.2011, intimation was received in PS Sultanpuri regarding death of Afsara at about 1.46 am at Jaipur Golden Hospital. Said information was recorded vide DD no. 7A. SI Badami Lal rushed to Jaipur Golden Hospital and collected death summary of Afsara and other relevant documents from said hospital. He also got conducted postmortem examination of dead body of Afsara. Offence U/s 304B IPC was also added and investigation was entrusted to Inspector K.P. Tomar (PW18); and
(viii) It is further the case of prosecution that during investigation, accused Zulfikar and Mohd. Latif Khan were arrested, whereas Sabnam (JCL) and coaccused Sara Begum were granted anticipatory bail by Sessions Court. IO also recorded statements of relevant witnesses during the course of investigation. After completion of the investigation, chargesheet was filed against accused Zulfikar and Mohd. Latif Khan.
2. At this juncture, it may be noted that further investigation was kept pending in this case and ultimately, supplementary chargesheet was also filed against coaccused Sara Begum, whereas coaccused Noorjahan State V/s Zulfikar Etc. ("Acquitted") Page 5 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 @ Noora and Sona absconded and were declared P.O. vide order dated 25.04.2012.
3. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGE FRAMED AGAINST THE ACCUSED
4. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame charge for the offences punishable U/s 498A/304B/302/34 IPC against accused persons namely Zulfikar and Mohd. Latif Khan vide order dated 07.01.2012, to which they pleaded not guilty and claimed trial. Separate charge in respect of offences punishable U/s 498A/304B/302/34 IPC was framed against accused Sara Begum on 18.04.2013, to which she also pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined twenty one witnesses namely PW1 Babu Deen, PW2 Arif, PW3 Kasim, PW4 Dr. Mahipal Singh, PW5 Dr. Manoj Dhingra, PW6 HC Surender Singh, PW7 HC Ram Pal, PW8 Sh. Baljeet Singh, PW9 Ram Pal Singh, PW10 Sh. Ajay Kumar, PW11 Raju, PW12 Ct. Kailash Kumar, PW13 SI Badami Lal, PW14 SI Dhirender Singh, PW15 Ct. Ravi Kumar, PW16 SI Deepak Malik, PW17 Ct. Lalit Kumar, PW18 Inspector K.P Tomar, PW19 SI Pardeep, PW20 Dr. Shashikant Prabhakar and PW21 Dr. Pradeep Dua.
State V/s Zulfikar Etc. ("Acquitted") Page 6 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016
6. It may be mentioned here that Ld. Additional PP dropped PW SI Amrit Lal from the list of witnesses on 04.06.2015 as said witness was a formal witness in respect of arrest of accused Latif Khan in respect of which other witness namely PW14 SI Dhirender had already been examined during trial.
7. Thereafter, statements U/s 313 Cr.P.C. of all the three accused persons were recorded, during which all the incriminating evidence were put to them. However, they denied the same and claimed that they are innocent and have been falsely implicated in this case. Their defence is of general denial. However, all the three accused persons opted not to lead evidence towards their defence.
8. I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. Aseem Bhardwaj Adv. on behalf of all the accused persons. I have also gone through the material available on record.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. Their testimonies are detailed as under: PUBLIC WITNESSES
10. PW1 Sh. Babu Deen: He is father of deceased Afsara. He deposed that his daughter Afsara got married with accused Zulfikar on 27.12.2006 and she started residing in her matrimonial house situated at State V/s Zulfikar Etc. ("Acquitted") Page 7 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 House No. P1/423424, Sultan Puri, Delhi. He claimed to have given Rs. 50,000/ in cash and other dowry articles including motorcycle make discover, jewellery articles, etc. in the said marriage. He deposed that in laws of Afsara used to harass her for not bringing sufficient dowry in the marriage and after about one year of the marriage, he had also given Rs. 2,00,000/ in cash as per their demand. His daughter was blessed with a son and he gave Rs. 1,00,000/ cash and other articles amounting to Rs. 50,000/ in the 'Chuchak Ceremony' but still, inlaws of his daughter were not happy and they kept on harassing her for not bringing sufficient dowry. At the time of second delivery, her inlaws again demanded cash amount of Rs. 4,00,000/ and one Santro Car in 'Chuchak Ceremony'. On 15.05.2011, he alongwith his nephew visited matrimonial house of his daughter and requested accused persons that he would not be able to fulfill their demand on account of poor financial condition but they did not pay any heed to his request.
He further deposed that on 22.05.2011 at about 3.30 pm, he received telephone call of his daughter Afsara, who informed him that accused persons were beating her and asked him to immediately reach at her matrimonial house. Accordingly, he alongwith his family members left for matrimonial house of Afsara but on the way, he received phone call from some police official who informed him that his daughter had been burnt. Accordingly, they reached at Jaipur Golden Hospital, where he was informed by concerned doctor that Afsara had sustained 96% burn injuries State V/s Zulfikar Etc. ("Acquitted") Page 8 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 and there was very less chance of her survival. On the next day i.e. on 23.05.2011, Afsara expired in the hospital. During their stay, Afsara did not talk as she was unable to do so. He had identified dead body of Afsara, vide his statement Ex. PW1/A. On 23.05.2011, his statement (Ex. PW1/B) was recorded by concerned SDM. He deposed that accused persons had burnt his daughter on account of harassment and cruelty due to dowry demand. He also exhibited copy of Nikhanama as Ex. P1 and its seizure memo as Ex. PW1/C. In his cross examination, he deposed that he was running sweet shop at the time of marriage of his daughter Afsara, at Village Dhauj. He was having six daughters including Afsara. His statement (Ex. PW1/B) was read over to him before he signed the same. He was confronted with relevant portions of his testimony recorded during trial visavis his previous statement (Ex.PW1/B) recorded by SDM, as some of the material facts stated by him during chief examination, were not found recorded in his previous statement (Ex.PW1/B). He admitted that birthday ceremony of elder grandson namely Khushi Khan @ Prince (son of Afsara) was celebrated by accused persons with great pump and show. He could not disclose the registration number of the motorcycle which was allegedly given by him in dowry. He denied the suggestion that Afsara had told him in the hospital that she had sustained burn injuries while working at home. He admitted that all the medical expenses concerning treatment of Afsara, were incurred by accused Zulfikar and his family members. He admitted State V/s Zulfikar Etc. ("Acquitted") Page 9 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 that he was involved in several criminal cases registered against him at Haryana but clarified that he had already been acquitted in all those cases. He denied the suggestion that his other daughter namely Sahanawaz had filed dowry related case against her husband.
In his further cross examination on behalf of accused Latif Khan, he deposed that he had initially reached at Jaipur Golden Hospital on 22.05.2011. No complaint was made at any point of time regarding harassment of his daughter by the accused persons on account of demand of dowry. He admitted that co accused Sara Begum already got married in the year 2000 i.e. much prior to the marriage of accused Zulfikar with Afsara. However, he denied the suggestion that accused Sara Begum was in advanced stage of pregnancy at the time of incident in question. He also denied all the relevant suggestions put to him on behalf of accused persons that there was no demand of dowry from their side and Afsara was never harassed or tortured in connection with demand of dowry or that Afsara was never treated with cruelty by any of the accused persons.
11. PW2 Sh. Arif: He is brother of deceased Afsara. He has also deposed on identical lines during chief examination as deposed by his father i.e. PW1 Babuddin.
In his cross examination, he deposed that he was employed at medical store at Ballabgarh (Haryana) since the year 2007 or so and was getting monthly salary of Rs. 6000/. He met with the police at Jaipur Golden Hospital only once i.e. on 22.05.2011. He admitted that after State V/s Zulfikar Etc. ("Acquitted") Page 10 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 marriage of his sister Afsara, he frequently used to talk to her on mobile phone. He also admitted that on the birth of elder son of Afsara, her in laws had organized grand party on the eve of Chuchak Rasam. He was also confronted with relevant portions of his testimony visavis his statement U/s 161 Cr.PC (Ex. PW2/DA), and some of the material facts were not found recorded in the police statement.
In his further cross examination, he deposed that Afsara was happy with her marriage and did not complain against any one during first 23 months of her marriage. Afsara never complained in his presence that her inlaws were demanding cash amount of Rs. 2,00,000/. Afsara had complained him about her mother in law and sister in law only after ceremony of Chuchak. The Inlaws of Afsara never demanded amount of Rs. 4,00,000/ and Santro car from him. However, he volunteered that they used to demand said articles from his sister and she used to tell him about the same. He did not visit matrimonial house of his sister on 15.05.2011. He was told by his father about the conversation held between him and the accused persons on 15.05.2011, on the next day. On 22.05.2011, he was on duty when he was informed by his father regarding telephone call of his sister and he accordingly left for Delhi. His father told him that Afsara had been burnt and was admitted in Jaipur Golden Hospital. He was not aware as to who had borne the expenditure of medical treatment in the hospital. He admitted to have visited Ajmer sharif with the family of accused persons. He admitted that the entire expenses were born by the accused State V/s Zulfikar Etc. ("Acquitted") Page 11 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 persons at that time. He also admitted that visit of Ajmersharrif was completely happy and there was no complaint from either side. He also admitted that both the sons of Afsara are in custody and care of accused persons.
12. PW3 Sh. Kasim: This witness is the uncle of Afsara. He has also deposed on identical lines during chief examination as deposed by his brother i.e. PW1 Babuddin.
In his cross examination, he deposed that Afsara never stayed at her parental home for a period of one year after her marriage. The in laws of Afsara never demanded any dowry from him but used to demand the same from Afsara as told to him by his brother Babuddin. They never demanded cash amount of Rs. 2,00,000/ from him or in his presence. He admitted to have attended Chuchak Ceremony of elder son of Afsara and admitted that they were given due respect and courtesy in the said ceremony. He admitted that demand of cash amount of Rs. 4,00,000/ and Santro car was not made in his presence. On 22.05.2011, he had gone to Jaipur Golden Hospital. He did not visit matrimonial house of Afsara either on 22.05.2011 or on 23rdor on 24.05.2011. He admitted that both the sons of Afsara are in custody and care of accused persons. POLICE WITNESSES:
13. PW6 HC Surender Singh: This witness was working as Duty Officer in PS Sultan Puri on 24.05.2011 at about 2.30 am, when he had received the information from Dr. Pradeep Dua regarding admission of State V/s Zulfikar Etc. ("Acquitted") Page 12 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 patient Afsara W/o Zulfikar, who had been previously got admitted in Jaipur Golden Hospital on 22.05.2011. This witness had recorded the said information vide DD No. 7A and exhibited copy thereof as Ex.PW6/A. In his cross examination, he admitted that there is an overwriting at pointX in DD No. 7A dated 24.05.2011 and said overwriting was not initialed by him.
14. PW7 HC Ram Pal: This witness was working as Duty Officer in PS Sultan Puri on 22.05.2011. He deposed about the factum regarding receipt of information at about 5.25 pm on 22.05.2011 from Wireless Operator in respect of fire having broken out at house no. P1/423 due to bursting of cylinder. He recorded said information vide DD No.7A. He proved copy of said DD entry as Ex.PW7/A. He further deposed that on the same day at about 5.29 pm, he had received a call from wireless operator regarding death of a lady (Bahu) due to burn injuries at house No. P1/424. He recorded the said information vide DD no. 8A. He proved copy of said DD entry as Ex.PW7/B. This witness has not been cross examined by accused persons despite grant of opportunity.
15. PW12 Ct. Kailash Kumar: This witness joined investigation of this case with SI Badami Lal on 23.05.2011, when accused Zulfikar is claimed to have been arrested from his house bearing no. 423424, Sultan Puri, Delhi, vide memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW12/B. State V/s Zulfikar Etc. ("Acquitted") Page 13 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 In his cross examination, he deposed that both the aforesaid memos were prepared at the house of accused Zulfikar who alone was present in the house at that time.
16. PW13 SI Badami Lal: He is the initial investigating officer of this case. He deposed about the entire investigation conducted by him till 24.05.2011. He testified that on receipt of DD No. 37A, he alongwith ASI Pradeep had reached the place of information. In the meantime, he also received telephonic information regarding contents of DD No. 38A. He found one plastic mug in half burnt condition, some burnt clothes having smell of kerosene, some burnt and unburnt match box and one plastic cane having capacity of 40 litres containing half filled kerosene oil, lying at the spot. He informed crime team to reach at the spot and also informed SDM concerned in this regard. He came to know that injured Afsara who had sustained burn injury, had been removed to SGM Hospital by PCR Van. After leaving ASI Pradeep for preserving the spot, he rushed to said hospital, where he collected MLC of injured Afsara who was declared fit for statement. SHO concerned also reached the hospital after few minutes thereof. Tehsildar Sh. R.P. Singh also reached the hospital and he recorded statement of Afsara.
He further deposed that injured Afsara did not make any allegation against any person in said statement. Therefore, DD entry was kept pending and Tehsildar left the hospital. He returned back to the spot and got the same photographed and inspected through crime team officials. State V/s Zulfikar Etc. ("Acquitted") Page 14 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 He also got the spot photographed through private photographer. He lifted the relevant exhibits i.e. plastic cane of white colour half filled with kerosene oil, one plastic mug of green colour in semi burnt condition, one match box of Skylite containing some burnt and some unburnt match sticks, two broken bangles and some burnt clothes having smell of kerosene oil from the place of occurrence and prepared their separate cloth pullandas; sealed them with the seal of BL and seized them vide memo Ex.PW13/A. He also deposed that on next day i.e. 23.05.2011, he visited SGM Hospital and came to know that injured Afsara was shifted to Jaipur Golden Hospital. Accordingly, he went to Jaipur Golden Hospital. In the meantime, parents of injured Afsara also reached there. Said parents were quite agressive. He informed said facts to concerned SHO who directed him to produce them before concerned SDM. Accordingly, he produced the parents and other relatives of injured Afsara before concerned SDM, who recorded statement of Sh. Babu Deen who was father of injured. Thereafter, SDM concerned issued directions for taking appropriate action as per law. Accordingly, he got the FIR registered and investigation was carried out in this case.
He further deposed that on 23.05.2011 itself, he alongwith Ct. Kailash apprehended accused Zulfikar from his house and after interrogation, arrested him vide memo Ex.PW12/A. On 24.05.2011 at about 2.30 am, DD No. 7A was lodged regarding death of Afsara at Jaipur Golden Hospital. Accordingly, he rushed to said hospital and recorded State V/s Zulfikar Etc. ("Acquitted") Page 15 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 statements of relevant witnesses and got the dead body shifted to SGM Hospital, where concerned SDM conducted inquest proceedings.
On 27.05.2011, he seized CD in respect of videography of the place of occurrence made by videographer and also recorded statement of videographer namely Raju (PW11). He exhibited said CD as Ex.PW11/A. He also identified relevant exhibits i.e. plastic cane containing half filled kerosene oil as Ex.P1, plastic mug in burnt condition, match box containing match sticks and broken pieces of bangles as Ex.P2 (colly.) and burnt clothes seized from the spot as Ex.P3 (colly.).
In his cross examination, he admitted that whatever was stated by deceased Afsara, same was recorded by Executive Magistrate in her statement Ex.PW9/A. He admitted that he did not visit upper floor of the room in which incident took place. He also admitted that there was a busy road situated in front of the house, wherein incident took place. Family members of deceased did not hand over any document in support of the allegations regarding demand of dowry and cruelty.
17. PW14 SI Dhirender Singh: This witness also remained IO of this case for few days. He deposed about the investigation carried out by him during said period by testifying that he had seized photocopy of Nikahnama produced by Babu Deen, vide memo Ex.PW14/A. Photocopy of said Nikahnama is Ex.P1. He also deposed to have arrested accused Mohd. Latif on 21.07.2011 from outside the Court, vide memo Ex.PW14/B and having recorded his disclosure statement Ex.PW14/D. He again joined State V/s Zulfikar Etc. ("Acquitted") Page 16 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 investigation of this case on 18.12.2011, when he deposed to have arrested accused Sara Begum vide memo Ex.PW14/E. Nothing material came on record during cross examination of this witness.
18. PW15 Ct. Ravi Kumar: This witness was posted as photographer, Mobile Crime Team, Outer District on 22.05.2011. He deposed that on receipt of information, he alongwith other staff reached at the spot i.e. P1/423424, Sultan Puri Delhi, where he came to know that one lady namely Afsara got burnt at the second floor. At the instance of IO and Mobile Crime Team Incharge, he took 14 photographs of the spot. He proved the negatives as Ex.PW15/B1 to Ex.PW15/B14 and the photographs as Ex.PW15/A1 to Ex.PW15/A14. This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
19. PW16 SI Deepak Malik: This witness was posted as In charge Mobile Crime Team, Outer District on 22.05.2011. He deposed that on receipt of information, he alongwith other staff reached at the spot i.e. P1/423, Sultan Puri, Delhi, where they met IO and other staff. Ct. Ravi took several photographs of the spot. He carried out inspection of the spot and prepared his detailed report Ex.PW16/A. This witness has not been cross examined by accused persons despite grant of opportunity.
20. PW17 Ct. Lalit Kumar: This witness was working as DD writer in PS Sultan Puri on 22.05.2011. He deposed that at about 7.05 pm, he had received information from wireless operator that 'daughter of a person has been set on fire by her in laws'. He had recorded the said State V/s Zulfikar Etc. ("Acquitted") Page 17 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 information vide DD No. 49B and proved copy thereof as Ex.PW17/A. This witness has not been cross examined on behalf of accused persons.
21. PW18 Inspector K.P. Tomar: This witness was posted as Inspector (Investigation) at PS Sultan Puri and further investigation of the present case was marked to him. He deposed that he had collected PCR Form from PCR Unit. On 02.09.2011, HC Ram Chand had collected three sealed pullandas and same were deposited with FSL, Rohini. He had recorded statements of relevant witnesses. He denied the relevant suggestions put to him during his cross examination.
22. PW19 SI Pradeep: This witness had joined investigation with SI Badami Lal on 22.05.2011. He deposed on similar lines as testified by PW13 SI Badami Lal whose testimony has already been discussed in brief in the preceding paras. He deposed to have called private photographer namely Raju at the place of occurrence. He also deposed about handing over of crime team report to SI Badami Lal and lifting of relevant exhibits and relevant proceedings carried out by SI Badami Lal in that regard in his presence. He also identified the relevant exhibits during trial.
In his cross examination, he deposed that DD No. 37A was marked to SI Badami Lal at about 5.25 pm. When they had reached the spot, few persons were found gathered near ground floor and enquiries were made from them by SI Badami Lal and it was revealed that Afsara had sustained burn injuries and was shifted to hospital by PCR Van. He State V/s Zulfikar Etc. ("Acquitted") Page 18 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 admitted that house in which incident took place, was three storied building. He did not enter inside first floor of the house and had visited only the room situated on second floor, wherefrom exhibits were seized. Said room was not kitchen. He also admitted that there was a busy road situated in front of said house. He denied the suggestions put to him on behalf of accused persons.
MEDICAL WITNESS:
23. PW4 Dr. Mahipal Singh: This witness deposed that on 22.05.11, patient namely Afsara had been brought by HC Surender with alleged history of accidental burnt as told by herself. He had medically examined said patient, vide MLC Ex.PW4/A. This witness has not been cross examined by accused persons despite grant of opportunity.
24. PW5 Dr. Manoj Dhingra: This witness deposed that on 24.05.2011, he alongwith Dr. Deepak had conducted postmortem on the body of deceased Afsara. He proved detailed postmortem examination report as Ex.PW5/A during trial. He deposed that death in the present case was due to shock consequent to burn injuries. This witness has not been cross examined by accused persons despite grant of opportunity.
25. PW20 Dr. Shashikant Prabhakar: This witness was deputed by Medical Superintendent of SGM hospital on behalf of Dr. Rajat Bharti. This witness has identified the signature and handwriting of Dr. Rajat Bharti as said doctor was stated to have left the services of the State V/s Zulfikar Etc. ("Acquitted") Page 19 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 hospital and his whereabout were not known. He deposed that Dr. Rajat Bharti had opined that patient Afsara was unfit to give statement at 7.45 pm on 23.05.2011.
During cross examination, he admitted that the words 'fit for statement' were mentioned at portion Y to Y1 on MLC Ex.PW1/A of deceased Afsara.
26. PW21 Dr. Pradeep Dua: This witness was deputed by MS of Jaipur Golden Hospital to depose on behalf of Dr. Mayur Mani who had since left the services of said hospital. This witness has identified the handwriting and signature of Dr. Mayur Mani on the death summary (Ex.PW21/A) as well as on Death Certificate of deceased (Ex.PW21/B).
During cross examination, he could not disclose as to who had got patient Afsara admitted in SGM hospital on the basis of record available in Jaipur Golden Hospital. However, he clarified that as per hospital sheet, copy of which was exhibited as Ex.PW8/A, the name of informant was mentioned as Mohd Zulfikar husband of Afsara (one of the accused herein). He produced admission form of patient Afsara available in the record of Jaipur Golden Hospital, copy of which is Ex.PW21/DA. On the basis of said admission form, he deposed that Afsara was got admitted by accused Mohd. Latif Khan in the said hospital. He also produced relevant record i.e. Daily Patient Status Briefing Form and deposed that as per column6 of the said form, accused Zulfikar had signed on it being relative of patient Afsara. He exhibited copy of said form as Ex.PW21/DB. State V/s Zulfikar Etc. ("Acquitted") Page 20 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 FORMAL WITNESSES:
27. PW8 Sh. Baljeet Singh: This witness produced medical treatment record of deceased Afsara available in the records of Jaipur Golden Hospital and exhibited copies thereof as Ex.PW8/A (running into 14 pages). This witness has not been cross examined by accused persons despite grant of opportunity.
28. PW9 Sh. Ram Phal Singh: This witness was posted as Tehsildar/Executive Magistrate Kanjhawala on 22.05.2011. He deposed that on 22.05.2011 at about 6.00 am, he visited SGM hospital on the direction of concerned SDM after receipt of information regarding admission of one lady in burnt condition in the said hospital. When he reached the hospital, one Afsara W/o Zulfikar was found admitted therein. Concerned doctor had declared her fit for statement on her MLC. Accordingly, he recorded her statement Ex.PW9/A, on which Afsara also put her right thumb impression at pointA and same was attested by him at pointB alongwith his official seal. He further deposed that since Afsara has not made any allegation against any person in her statement, he directed police to inform her parents. This witness has not been cross examined by accused persons despite grant of opportunity.
29. PW10 Sh. Ajay Kumar: This witness was posted as SDM Saraswati Vihar on 22.05.2011. He deposed that during evening hours of 22.05.2011, he had received call regarding admission of lady Afsara having sustained burn injuries, in SGM hospital. He directed his Tehsildar Sh. R.P. State V/s Zulfikar Etc. ("Acquitted") Page 21 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 Singh to reach the hospital and to record the statement of injured lady, if she is found fit for statement.
He further deposed that on 23.05.2011 at about 5.00 pm, one Babudin visited his office and he recorded his statement Ex.PW1/B. Thereafter, he directed concerned SHO to take necessary action as per law vide his endorsement Ex.PW10/A appearing thereupon. On 24.05.2011, he came to now that Afsara had succumbed to her injuries. Accordingly, he visited said hospital and carried out inquest proceedings. He got the postmortem examination on the dead body of deceased Afsara and thereafter, handed over dead body to her legal heirs.
In his cross examination, he deposed that proceedings conducted by Tehsildar namely Sh. R.P Singh on 22.05.2011, were telephonically informed to him on 22.05.2011 itself and he did not attempt to have seen copy of statement made by Afsara before Tehsildar, prior to the visit of Babudin to his office on 23.05.2011. Whatever was stated to him by Babudin on 23.05.2011, was recorded by him in his statement Ex.PW1/B. He personally did not verify the medical condition of patient Afsara on 23.05.2011 when he had recorded statement of Babudin. He denied relevant suggestions put to him during cross examination.
30. PW11 Raju: This witness was running photography shop in the name and style of Vicky Digital Studio. He deposed that on 22.05.2011, he had visited house no. P1/423424, Sultan Puri Delhi on the asking of SI State V/s Zulfikar Etc. ("Acquitted") Page 22 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 Pardeep Kumar of PS Sultan Puri and had carried out videography of the place of occurrence. On 27.05.2011, he had handed over CD (Ex.PW11/A) to the police. In his cross examination, he deposed that he had charged Rs. 1000/ for the services hired from him against proper receipt. He could not recollect if paint and other articles used for the purpose of white washing, were lying on second floor of the house at the time of his visit over there or not.
ARGUMENTS ADVANCED AND CASE LAW CITED
31. While opening the argument, Ld. Additional PP heavily relied upon the testimonies of public witnesses i.e. PW1 Babudin, PW2 Arif and PW3 Kashim as well as on medical evidence in the form of testimonies of PW5 Dr. Manoj Dhingra, PW4 Dr. Mahipal Singh, PW21 Dr. Pradeep Dua and Autopsy Report Ex.PW5/A proved during trial. After referring to the relevant portions of testimonies of said three public witnesses, Ld. Additional PP submitted that accused persons used to harass deceased and her parents/family members in connection with demand of dowry and since she was beaten up by the accused persons in connection with demand of dowry even on 21.05.2011, prosecution has been able to establish on record that deceased Afsara was subjected to cruelty and harassment in connection with dowry soon before her death. Therefore, accused persons are liable to be convicted in this case. In support of his contention, Ld. Additional PP also relied upon presumption contained in Section 113B of Indian Evidence Act. He pointed out that deceased Afsara got married with accused State V/s Zulfikar Etc. ("Acquitted") Page 23 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 Zulfikar on 27.12.06 and is shown to have died on 24.05.2011 i.e. within seven years from the date of her marriage with said accused.
32. On the other hand, Ld. defence counsel argued that prosecution has miserably failed to establish the charges levelled against accused persons beyond shadow of doubt. For the said purpose, he referred to the relevant portions of the testimonies of relevant prosecution witnesses. Same shall be discussed in subsequent paras of the judgment. Ld. defence counsel vehemently argued that it is purely a case of accident which unfortunately led to the death of deceased Afsara. He contended that deceased was preparing tea for her family members through gas stove and due to slip of lota (mug) containing keroseen oil from her hand, oil spread over her wearing clothes as well as on the floor, due to which she caught fire and got burnt and ultimately, succumbed to her injuries. For the said purpose, he heavily relied upon so called dying declaration (Ex.PW9/A) of Afsara recorded by Tehsildar just prior to her death. Ld. defence counsel, therefore, submitted that accused persons deserve to be acquitted in this case.
33. As regards, offences U/s 498A/304B IPC charged against the accused persons, it would be relevant to note that the prosecution was under
an obligation to prove that death of deceased was caused by burns or bodily injury otherwise than under normal circumstances and she had died within seven years of her marriage and she was subjected to cruelty or harassment by husband or any relative for or in connection with demand of dowry soon State V/s Zulfikar Etc. ("Acquitted") Page 24 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 before her death.
34. Hon'ble Apex Court in the matter titled as Kanwar Pal Vs. Shakuntala And Ors., 2015 IV AD (Delhi) 450, has held that the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. Likewise, the onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 489A IPC. Relevant portions from the judgment read as under: "In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific appellant on the deceased........
In our considered opinion, the evidence of DW1 (the appellant) and Ext. D19 cast a reasonable doubt on the prosecution story that the deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A, IPC and the essential ingredient of offence under Section 498A is that the accused, as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to Section 498A IPC. Similarly, for the Court to draw the presumption under Section 113B of the Evidence Act that the appellant had caused dowry death as defined in Section 304B IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment of cruelty, neither of the offences under Sections 498A and 304B, IPC has been State V/s Zulfikar Etc. ("Acquitted") Page 25 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 made out by the prosecution.
xxxxxx
35. In Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar 2005 III AD (S.C.) 261, the Hon'ble Apex Court has held that:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have been occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
xxxxxxx
36. The Hon'ble Supreme Court has defined the term "Dowry" in S. Gopal Reddy Vs. State of Andhra Pradesh, AIR 1996 SC 2184 that "Property or valuable security so as to constitute dowry within the meaning of the Act must, therefore, be given or demanded as consideration for marriage." Therefore, the term 'consideration' assumes importance because if any article is not given as a consideration for marriage, then it would not be covered with definition of dowry. The term "Dowry" was dealt with by Supreme Court in other cases as well. In Appasaheb & Anr. Vs. State of Maharashtra, 2007 (1) Crimes 110 (SC), Hon'ble Supreme Court has held as under: "9. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before State V/s Zulfikar Etc. ("Acquitted") Page 26 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between giving or taking of property or valuable security with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section Crl. Leave Petition No. 464/2014 Page 9 of 14 304B IPC viz. Demand for dowry is not established the conviction of the appellants cannot be sustained.
37. To attract conviction Under Section 304B Indian Penal Code, the prosecution should adduce evidence to show that "soon before her death", the deceased was subjected to cruelty or harassment. There must always be proximate and live link between the effect of cruelty based on dowry demand and the concerned death. In the case of Hira Lal and Ors. State V/s Zulfikar Etc. ("Acquitted") Page 27 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 V. State (Govt. of NCT Delhi: (2003) 8 SCC 80, in paragraph (9) it was observed as under: "9. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or the purview of "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. The 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 the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 a 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 IPC and Section 113B of the Evidence [pic] 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 the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their 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 cruelty or harassment concerned and the death in question. There must be existence of a State V/s Zulfikar Etc. ("Acquitted") Page 28 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
38. If any death is caused in connection with dowry demand, Section 113B of the Evidence Act also comes into play. Both these Section 304B Indian Penal Code and Section 113B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows: "113B: Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purpose of this Section, 'dowry death' shall have the same meaning as in Section 304B, of the Indian Penal Code (45 of 1860).
39. It is imperative to note that both these sections set out a common point of reference for establishing guilt of the accused persons under Section 304B of the Indian Penal Code, which is "the woman must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry".
40. In a recent judgment titled Vipin Jaiswal Vs. State of Andhra Pradesh: 2013 IV AD (SC) 275, it has been held that : State V/s Zulfikar Etc. ("Acquitted") Page 29 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 "In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific act of cruelty or harassment by the Appellant on the deceased. On the other hand, DW1 in his evidence has stated that on 04.04.1999, the day when the incident occurred, he went to the nearby temple along with his mother (A2) and his father (A3) went to the bazar to bring ration and his wife (deceased) alone was present at the house and at about 1.00 pm, they were informed by somebody that some smoke was coming out from their house and their house was burning. Immediately he and his mother rushed to their house and by that time there was a huge gathering at the house and the police was also present. He and his family members were arrested by the police and after one month they were released on bail. What DW1 has further stated in relevant for the purpose of his defence and is quoted herein below:
While cleaning our house we found a chit on our dressing table. The said chit was written by my wife and it is in her handwriting and it also contains her signature. Ex.D19 is the said chit. I identified the handwriting of my wife in Ex.D19 because my wife used to write chits for purchasing of monthly provisions as such on tallying the said chit and Ex. D19 I came to know that it was written by my wife only. Immediately I took the Ex. D19 to the P.S. Mangalhat and asked them to receive but they refused to take the same."
41. In State Vs. Suraj Mehto & Ors. 2011 (3) C.C. Cases (HC) 432, it has been held that:
"More importantly, the prosecution has to be specific as to what kind of harassment it was, mental or physical; what was the act fo cruelty in a given case has to be proved. In State V/s Zulfikar Etc. ("Acquitted") Page 30 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 the present case no such specific act was alleged or proved."
42. In Amar Singh Vs. State of Rajasthan: 2010 (4) C.C.C. 234 (SC), it has been held:
"22. xxxxxx What is punishable under Section 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. It will be also clear from Section 113B of the Indian Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death within the meaning of Section 304B IPC. The act of subjecting a woman to cruelty or harassment for, or in connection with, any demand for dowry by the accused, therefore, must be established by the prosecution for the Court to presume that the accused has caused the dowry death.
23. xxxxxxx A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B IPC.
43. Now adverting back to the facts of the present case. The discussion made in the preceding paras would go to show that there are certain undisputed facts from both the sides. It is not in dispute that deceased Afsara got married with accused Zulfikar on 27.12.2006 and was residing in her matrimonial house situated at P1/423424, Sultan Puri, Delhi till 22.05.2011 when incident in question took place. It is also duly established on record in view of medical evidence in the form of State V/s Zulfikar Etc. ("Acquitted") Page 31 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 testimonies of PW4 Dr. Mahipal, PW5 Dr. Manoj Dhingra (Autopsy Surgeon) and PW21 Dr. Pardeep Dua and relevant documents including MLC Ex. PW4/A and Autopsy Report Ex. PW5/A proved during trial that Afsara had sustained burn injuries and she succumbed to burn injuries in Jaipur Golden Hospital during intervening night of 23/24052011. In these facts and circumstances, it is also beyond doubt that Afsara had died within seven years from the date of her marriage with accused Zulfikar. It has also been established on record in view of testimony of Autopsy Surgeon i.e. PW5 Dr. Manoj Dhingra that deceased Afsara had died an unnatural death on account of burn injuries sustained by her.
44. Now, the main question which arises for consideration before this Court is as to whether prosecution has been able to establish beyond pales of reasonable doubt that accused persons had subjected Afsara to cruelty or harassment for or in connection with demand of dowry soon before her death. The answer, in the opinion of the Court, is in negative for various reasons.
45. The prosecution examined three public witnesses namely PW1 Babudin, PW2 Arif and PW3 Kasim during trial to support the allegations that Afsara was subjected to cruelty and harassment by the accused persons for and in connection with demand of dowry soon before her death. They are father, brother and real uncle respectively of deceased Afsara. However, the testimonies of all the said three witnesses on the aspect of cruelty and/or harassment of Afsara at the hands of accused persons for or in State V/s Zulfikar Etc. ("Acquitted") Page 32 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 connection with demand of dowry, are quite vague and in general terms. Although, it has been deposed by all the said three witnesses that they had given a sum of Rs. 50,000/ in cash and other articles including motorcycle, jewellery, etc. during marriage of Afsara but no documentary evidence has been produced before the Court in support of their said claim. Even the weight of the jewellery articles or registration number of the motorcycle allegedly given at the time of marriage, are not disclosed by any of the said three witnesses during trial. Specific questions were put to the witnesses during their cross examination in this regard.
46. It may be pointed out that Afsara was turned out from matrimonial house by the accused persons after about one year from the date of her marriage and condition was put from the side of accused to pay atleast Rs. 2,00,000/ in cash for bringing her back to matrimonial house as per case of prosecution. It has been deposed by public witnesses that Rs. 2,00,000/ in cash was given to the accused persons on which Afsara was taken back to matrimonial house but no specific date, month or year has been disclosed by any of them in their entire depositions. Even the source of money has not been disclosed by any of them during trial.
47. Same assumes importance in the light of fact that PW1 was running small sweets shop during relevant period and PW2 was getting meagre salary of Rs. 6000/ per month as stated by them during their cross examination. Likewise, it has been testified by said witnesses that Rs. 1,00,000/ cash and certain articles amounting to Rs. 50,000/ were also State V/s Zulfikar Etc. ("Acquitted") Page 33 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 given during Chuchak Ceremony of the child born out of wedlock of deceased Afsara and accused Zulfikar but again neither any detail of those articles has been furnished nor any document has been placed on record in support thereof. At this juncture, it is relevant to highlight that all the said three witnesses have admitted during their cross examination that grand party was organized by the accused persons on the birth of first child out of wedlock of accused Zulfikar and deceased Afsara and said three witnesses alongwith their other relatives and family members were well attended by the accused persons in said party. In this backdrop, it does not stand to reason as to when accused persons who were annoyed and were unhappy with the family members of deceased for not giving sufficient articles/money during Chuchak ceremony of the child, then how could they welcome the family members whole heartedly.
48. The reliance placed by Ld. Additional PP on the relevant portions of the testimony of PW1, whereby he claimed to have received telephone call from Afsara at about 3.30 pm on 22.05.2011 that accused persons were beating her, is without any substance. The reason being that all the said three PWs are shown to be residents of Faridabad. It is a matter of common knowledge that distance between Faridabad and Delhi is not more than one hour or so but despite the fact that Afsara allegedly told her father i.e. PW1 Babudin that she was being beaten up by accused persons and asked his immediate help for reaching to her matrimonial house, neither PW1 nor any other family /relatives of Afsara is shown to have State V/s Zulfikar Etc. ("Acquitted") Page 34 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 rushed to her matrimonial house on that day. It has been claimed by PW1 that he alongwith family members immediately left for matrimonial house and on the way, he had received telephone call from police official that Afsara had been burnt. However, it is pertinent to note that information for the first time regarding the incident was received in PS Sultan Puri at 5.25 pm on 22.05.2011 vide DD no. 37A (Ex.PW7/A) and said information was not in respect of bride burning. Rather, the information received vide DD no. 37A was regarding brusting of cylinder at house no. P1/423, Gali no. 12, Sultan Puri, Delhi. Thereafter, second information was received in PS Sultan Puri on 22.05.2011 at 5.29 pm vide DD no. 38A and even at that time, the contents of information were that daughter in law had expired due to burning. It is also necessary to note that it was only at about 7.51 pm on 22.05.2011, intimation was received through wireless operator at PS Sultan Puri that inlaws of Afsara had burnt the daughter of caller and the caller had been reaching the hospital. The said intimation was recorded vide DD no. 49B (Ex.PW17/A). It is quite apparent from the perusal of contents of DD no. 49B (supra) that family members including PW1 to PW3 of deceased Afsara had not reached Delhi atleast till 7.51 pm on 22.05.2011.
49. Apart from this, it is important to note that Afsara was got admitted in SGM hospital by PCR Van on 22.05.2011 at about 5.45 pm as per MLC Ex.PW4/A available on record. The perusal of said MLC would demonstrate that she herself disclosed the attending doctor of said hospital of having sustained burn injuries due to accident as mentioned therein. Not State V/s Zulfikar Etc. ("Acquitted") Page 35 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 only this, there was smell of kerosene oil found on her wearing clothes. It is also relevant to note that Afsara was declared fit for statement by the attending doctor on her MLC Ex. PW4/A and thereafter, PW9 Sh. Ram Phal Singh (the then Tehsildar/Executive Magistrate) who had reached SGM Hospital, is shown to have recorded her statement Ex.PW9/A. In her said statement, Afsara stated before Executive Magistrate that she caught fire when she was transferring kerosene oil from big plastic cane containing kerosene oil, into one lota for being put in the gas stove at the time when she was preparing tea for her family members (inlaws) on 22.05.2011 at about 4.00/4.30 pm. Not only this, she also stated therein that when she cried for help, her sister in law namely Sona (since PO) came for her rescue and Sona also called other family members and all of them tried to douse the fire. She also stated before Executive Magistrate that no one was responsible for the said incident and no action was required to be taken against any person. It goes without saying that it was the first statement made by injured Afsara (since deceased) before Executive Magistrate immediately after the incident. The said statement is shown to have been recorded at around 6.55 pm on 22.05.2011 as per endorsement made by Executive Magistrate below his signature appearing on the said statement. The said statement (Ex.PW9/A) has been relied by prosecution itself alongwith the chargesheet and the factum of deceased having made said statement before Executive Magistrate in the presence of police official i.e. PW13 SI Badami Lal is also not disputed from either of the sides. Afsara is State V/s Zulfikar Etc. ("Acquitted") Page 36 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 shown to have scummed to her burn injuries during intervening night of 23/24.05.2011. Thus, her statement (Ex.PW9/A) would be termed as her dying declaration within the meaning of Section 32 of Indian Evidence Act. That being so, Court is entirely in agreement with the submission made by Ld. defence counsel that deceased Afsara has clearly exonerated the accused persons in her dying declaration made before Executive Magistrate.
50. In the celebrated judgment delivered in the matter titled as "Smt. Paniben Vs. State of Gujarat", reported as 1992 Cri.L.J. 2919, Hon'ble Supreme Court while noting that dying declaration is entitled to great weight however, cautioned that accused has no power of cross examination. Hon'ble Apex Court summed up the principles governing dying declaration as laid down in several judgments, as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Mannu Raja Vs. State of M.P: 1976 Cri.L.J. 1718).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P Vs. Ram Sagar Yadav:
1983 CriLJ 221).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Redyy Vs. Public Prosecutor: 1976 Cri.L.J. 1548).State V/s Zulfikar Etc. ("Acquitted") Page 37 of 43
FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence (Rasheed Beg Vs. State of MP: 1974 Cri.L.J. 361).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh Vs. State of M.P: 1982 Cri.L.J. 986).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath Vs. State of U.P: (1981) 3 SCR 195).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra Vs. Krishnamurti Laxmipati Naidu: 1981 Cri.L.J. 9).
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza Vs. State of Bihar: 1979 Cri.L.J. 1122).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anbr. Vs. State of M.P: 1988 Cri.L.J. 936).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P Vs. Madan Mohan: 1989 Cri.L.J. 1485).
State V/s Zulfikar Etc. ("Acquitted") Page 38 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016
51. Moreover, the contents of dying declaration Ex.PW9/A made by deceased Afsara are also duly corroborated by other attending circumstances brought on record during trial. The sequence of facts which led to the incident in question as mentioned in dying declaration, gets substantiated from the fact that one big plastic cane having capacity of 40 liter containing half filled kerosene oil, match box containing burnt and unburnt match sticks, one partly burnt plastic mug, etc. were seized by PW13 SI Badami Lal on 22.05.2011 itself from near the place of occurrence. Not only this, it is accused Zulfikar who is shown to have made PCR call at 100 number vide DD no. 37A ( Ex. PW7/A) at 5.35 pm on that day. It is accused Zulfikar who is also shown to have removed Afsara from SGM hospital to private hospital namely Jaipur Golden Hospital on 22.05.2011 itself at about 7.20 pm. All the medical treatment expenses of said hospital are shown to have been borne by the accused persons. This fact has also been admitted by PW1 and PW2 during their respective cross examination. Moreover, it is the own case of prosecution that accused Zulfikar was arrested from the same house wherein incident had taken place, on 24.05.2011. Same shows that said accused did not try to flee away after the incident in question. Rather, he immediately rushed to the hospital and made every effort to save the life of Afsara by removing her from Government Hospital to Private Hospital and by doing whatever was possible within his means.
State V/s Zulfikar Etc. ("Acquitted") Page 39 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016
52. There is one more aspect involved in this case. The prosecution had relied upon one document i.e. PCR Form filed alongwith the chargesheet. Although, said PCR Form has not been proved during trial by the prosecution witnesses but defence is well within its right to take benefit thereof even if said document is not proved during trial. The perusal of said PCR Form which is available on record, would show that one caller/informant namely Satyavaan Kumar gave intimation in Police Control Room on 22.05.2011 at about 17:21:45 hours that there has been fire due to bursting of cylinder in House No. P1/428, Gali No. 12, Sultan Puri, Delhi. It is relevant to note that said informant namely Satyavaan Kumar not only furnished his mobile phone number as 9213895052 but also disclosed his residential address as House No. 427, Block No. P1, Sultan Puri, Delhi but still, no effort is shown to have been made by investigating agency to join him during the course of investigation. No explanation whatsoever has been furnished on behalf of prosecution for not doing so. Thus, an adverse inference is liable to be drawn against them.
53. Be that as it may, the perusal of information recorded in PartII of said PCR Form which deals with the information given by PCR official in Police Control Room, would show that even PCR official who had attended injured Afsara for the first time and had removed her from the place of incident to the SGM Hospital, gave information in Police Control Room that injured Afsara was got admitted in hospital in conscious condition and she had told that she was putting oil in stove which resulted State V/s Zulfikar Etc. ("Acquitted") Page 40 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 into fire and she sustained burn injuries to the extent of 95 per cent.
54. The information given by informant Satyavaan Kumar who is totally an independent witness coupled with the information given by PCR Official in Police Control Room as recorded in said PCR Form, further corroborates the contents of dying declaration (Ex.PW9/A) made by deceased soon before her death before Executive Magistrate. The statement made by family members i.e. PW1 to PW3 of deceased are shown to have been recorded only on 24.05.2011 i.e. much after the incident and only after Afsara scummed to her burn injuries. Moreover, the testimony of PW3 Kasim is found to be based upon hearsay as he admitted during his cross examination that none of the accused persons ever demanded any type of dowry from him or from other family members of deceased in his presence. There is also nothing on record to show that PW3 was told by deceased Afsara during her life time that any demand of dowry was made from her by any of the accused persons or that there was any sort of cruelty and/or harassment by any of the accused for or in connection with demand of dowry soon before her death. Furthermore, there is material contradiction appearing in the testimonies of PW1 Babudin and PW2 Arif in as much as PW1 testified that accused had started demanding dowry from them soon after the marriage of Afsara, whereas PW2 Arif deposed that Afsara did not complain about demand of dowry from her during initial period of 23 months of her marriage and demand of dowry was complained by Afsara only after birth of her elder child. In this backdrop and for the reasons State V/s Zulfikar Etc. ("Acquitted") Page 41 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 mentioned hereinabove, testimonies of PW1 to PW3 do not inspire confidence and are found to be tainted one.
55. There is another important aspect which needs to be discussed herein. It may be mentioned that accused Sara Begum who is sister in law of deceased Afsara, was married in the year 2000 and she had been residing separately at her matrimonial house situated at Village Hiran Kudna. There is no specific allegation regarding harassment or cruelty or demand of dowry by said accused at any point of time in this case. Afsara is shown to have got married with accused Zulfikar on 27.12.2006 i.e. after about six years from the marriage of accused Sara Begum. It needs no emphasis that married sister occasionlly visits her parental house. Not only this, it has come on record that accused Sara Begum was in advanced stage of pregnancy in the year 2011 when incident is shown to have taken place. Thus, it cannot be believed that pregnant lady having advanced stage of pregnancy, would be in a position to subject deceased Afsara to cruelty or harassment for or in connection with demand of dowry in any manner. The fact that accused Sara Begum was in advanced stage of pregnancy in the year 2011, was got verified by the investigating agency as recorded in the Bail Order dt. 06.06.2011 of said accused passed by the Court of the then Ld. District & Sessions Judge (N/W) District.
56. In the light of aforesaid discussion, Court is of the view that the prosecution has miserably failed to establish the charges levelled against accused persons beyond shadow of doubt. Consequently, accused persons State V/s Zulfikar Etc. ("Acquitted") Page 42 of 43 FIR No. 212/11; U/s 498A/304B/34 IPC; P.S. Sultan Puri D.O.D.: 04.01.2016 namely Zulfikar, Mohd. Latif Khan and Sara Begum are acquitted of the charges levelled against them by giving them benefit of doubt. File be consigned to Record Room after compliance of Section 437A Cr.P.C., with liberty to revive the same as and when either of the accused persons namely Noorjahan @ Noora and Sona is arrested or is produced in the Court.
Announced in open Court today
On 04.01.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Zulfikar Etc. ("Acquitted") Page 43 of 43