Delhi District Court
Wahidan W/O Alisher vs . on 30 March, 2011
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 27/08
Unique Case ID No. 02402R0025372006
State
Vs.
1. Wahidan W/o Alisher, R/o C93, Welcome, Delhi.
2. Iqbal S/o Alisher, R/o C93, Welcome, Delhi.
FIR No. 158/04
PS Welcome
U/s 498A/306 IPC.
Date of Institution : 25.11.08
Date of reserving the Judgement : 26.03.2011
Date of Pronouncement : 30.03.2011
J U D G E M E N T : Prosecution's case emanates from the fact that about twenty years ago, Nafisha was got married with Iqbal, according to Muslim customs and rites. Nafisha went to her matrimonial home, where she along with her husband and in laws were residing at H.No. C105, Welcome, Delhi. For the last eight years, Nafisha was residing separately from her inlaws. After her marriage, she gave birth to nine children, out of whom six are girls and three are boys. Her husband Iqbal was not doing anything and she used to do whole house hold work herself, besides selling milk to earn livelihood for her family. Iqbal used to play cards only. On 17.05.04 Nafisha went to house of her brother, namely, Sukhan. She told him that her husband used to harass her. Sukhan made her understand and sent her back to her matrimonial home. On 19.05.04, a telephone call was received at the house of Sukhan, from children of Nafisha, stating that Iqbal was S.C. No. 27/08 Page 1/38 2 fighting with their mother. Raja reached at the house of accused Iqbal, who told him to take away his sister. On 21.05.04, Nafisha committed suicide when she could not bear harassment at the hands of her husband. Aforesaid facts were unfolded by Sukhan before the police, whose statement was recorded by police. Said statement became bedrock of the case. Investigation was taken up. During the course of investigation, accused Iqbal and Wahidan were arrested. Investigation culminated into a charge sheet against the accused persons.
2. Charge for offences punishable under sections 498A and 306 read with section 34 IPC was framed against both the accused persons, besides a separate charge under section 302 IPC was framed against accused Wahidan, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Sukhan (PW1), Hakiman (PW2), SI Satyapal Singh (PW3), Nazmul Hassan (PW4), Rehana (PW5), Constable Ravinder (PW6), HC Santosh (PW7), Smt. Shamim (PW8), Shahbuddin (PW9), Mohd. Rafiq (PW10), Rugga (PW11), HC Ram Avtar (PW12), Dr. Parmeshwar Ram (PW13), HC Pradeep Kumar (PW14), Inspector Arun Choudhary (PW15), Dr. Parveen Kumar (PW16) and Dr. Kumar RS (PW17) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simpliciter. However, they admitted that Nafisha was married to Iqbal about 2022 years ago. Accused Iqbal projected that he had lent a sum of Rs.1 lac to his inlaws for running business. Despite his demand, they were not returning the money. On S.C. No. 27/08 Page 2/38 3 jume raat, his wife had gone to her parents house to demand the money, however, she was asked by her family members not to come to their house in order to make this demand and that as and when they will have money, they will return the same. On the date of incident, he was not present at his house, but was sitting in a ground near his house. When Nafisha set herself on fire and there were flames, he heard noise and went to his house and saw her wife in burnt condition. Thereafter, he himself removed her to hospital. The complaint against him has been lodged by his inlaws, so that he may not demand money which he had given to them. However, Wahidan pleaded that she has been falsely implicated in the case as she has been residing separately from her son. However, they have not led any evidence in their defence.
5. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor and Sh. Dasa Ram, Advocate for the acused persons and have perused the record.
6. It was submitted by ld. counsel for accused that Prosecution is relying upon two dying declarations allegedly made by Nafisha. However, it was submitted that none of the dying declaration was recorded by SDM. Moreover, both are contradictory, both regarding the cause of her burn and also who set her on fire, therefore, no reliance can be placed on the same. Moreover, prosecution is guilty of not examining material witnesses, inasmuch as, the child Shahid who allegedly informed PW1 and PW2, Mehrunisa who heard the telephone call, brother Aliraja with whom business in partnership was run and who owed money to Iqbal have not been examined by prosecution. As such, it was submitted that prosecution has miserably failed to prove its case. Both the accused are entitled to S.C. No. 27/08 Page 3/38 4 acquittal.
7. Per contra, it was submitted by ld. Public Prosecutor that there are two dying declarations of deceased pertaining to cause of her death and that itself is sufficient to convict the accused persons.
8. I have given my considerable thoughts to respective submissions of the ld. counsels for the parties and have perused the record.
9. Accused Wahidan is facing trial for charges under sections 498A/306/302 IPC, while accused Iqbal is facing trial for offences under sections 498A and 306 IPC.
10. First of all I shall take up charge for offence under section 302 IPC framed against accused Wahidan.
11. At the very outset, it may be mentioned that initially on the statement of Sukhan, case was registered only under section 498A IPC. Later on during the course of investigation, on 12.12.04 offence under section 306 IPC was added in this case, as according to Inspector Arun Chaudhary, it has come that deceased Nafisha had expired due to abetment of accused Iqbal and his mother Smt. Wahidan. Meaning thereby that it was not even the case of accused that it was the case of murder of Nafisha by any of the accused. However, an application for alteration of charge was moved by ld. prosecutor for addition of charge under section 302 IPC on the ground that in the dying declaration dated 22.05.04 and 24.05.04 there are specific allegations against accused Wahidan regarding pouring of kerosene oil by her on Nafisha and then subjecting her to fire attracting framing of a fresh charge. Vide order dated 21.12.10, additional charge for offence under section 302 IPC was framed against accused Wahidan. There is admittedly no eyewitness to the S.C. No. 27/08 Page 4/38 5 incident and the prosecution is relying upon two dying declarations allegedly made by the deceased before the investigating officer.
12. Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60 of the Evidence Act. The eighth clauses of section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so S.C. No. 27/08 Page 5/38 6 lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court of Justice. These aspects have been eloquently stated by Lyre LCR in R.v. Wood Cock (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain :
"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire?
What is the world should make me now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4) The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth."
13. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
S.C. No. 27/08 Page 6/38
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14. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. Hon'ble Apex Court has laid down in several judgements the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817) :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja and Anr. v.
The State of Madhya Pradesh (1976) 2 SCR 764].
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh v. Ram Sagar Yadav and Ors. AIR 1985 SC 416 and Ramavati Devi v. State of Bihar AIR 1983 SC 164].
(iii) The Court has to scrutinize the dying declaration carefully and must S.C. No. 27/08 Page 7/38 8 ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994].
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)].
(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 v. State of M.P. AIR 1982 SC 1021].
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath and Ors. v. State of U.P. 1981 (2) SCC 654].
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidau AIR 1981 SC 617].
(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 and Ors. v. State of Bihar AIR 1979 SC 1505].
(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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot S.C. No. 27/08 Page 8/38 9 prevail. [Nanahau Ram and Anr. v. State of Madhya Pradesh AIR 1988 SC 912].
(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. v. Madan Mohan and Ors. AIR 1989 SC 1519].
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [Mohanlal Gangaram Gehani v. State of Maharashtra AIR 1982 SC 839].
15. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [Gangotri Singh v. State of U.P. (JT 1992 (2) SC 417); Goverdhan Raoji Ghyare v. State of Maharasthra (JT 1993 (5) SC 87); Meesala Ramakrishan v. State of Andhra Pradesh (JT 1994 (3) SC
232); State of Rajasthan v. Kishore (JT 1996 (2) SC 595) and Muthu Kutty and and Anr. v. State by Inspector of Police, T.N. (2005 (9) SCC
113)].
16. In the instant case, it has come in the testimony of SI Satya Pal Singh that on receipt of DD No.68B, he along with Constable Ravinder S.C. No. 27/08 Page 9/38 10 reached GTB Hospital, where injured Nafisha was admitted in burnt condition. He collected her MLC on which doctor declared her unfit for statement. Again in the evening he went to hospital and at that time as per statement of Dr. Praveen Kumar (PW16), Nafisha was fit for giving statement as such he made his endorsement Ex.PW13/B in this regard. ASI Satya Pal recorded statement of Nafisha Ex.PW3/G in his presence and this statement bears left toe impression of Nafisha at point 'A' and it was signed by him at point 'B' while Dr. Praveen Kumar signed at point 'C'. For the sake of convenience the statement made by Nafisha to the investigating officer is reproduced as under : Statement of Nafisha W/o Iqbal, R/o C105, Welcome, Delhi, aged about 38 years : I am living with my family and do household work. For last 15 years my motherinlaw Wahidan keeps on telling my husband that your wife does not do work properly. My husband has kept a girl at STD shop, which was objected by my motherinlaw. She told my husband that somebody may say something to the girl. There is an association of boys and they are bad. My husband is suffering from Asthma and his one hand is also broken, yet he does work and does not say anything. Although my mother inlaw live separately from me, but on 21.05.04 at about 7pm she came and sprinkled kerosene oil on my back. I thought that I should burn myself. Thereupon I poured kerosene oil on me and lit the fire because I wanted to finish my life in order to avoid daily quarrels. At that time my husband was not present in the house. My elder children were also not present in the house. Only small children were there. My husband thought that I have received electric current, therefore he disconnected electricity. When he S.C. No. 27/08 Page 10/38 11 saw flames, then he said that he has been ruined and now who will look after his children. My husband sprinkled water on me and extinguished the fire. He put bedsheet on me and after bringing downstairs, he took me to hospital in scooter while weeping. I have heard my statement, which is correct.
17. Thereafter, PW17 Dr. Kumar RS deposed that on 24.05.04 Nafisha wanted to change her statement. As such he gave this information to police on duty at GTB Hospital. DD No. 33B Ex.PW3/H to this effect was recorded. Thereupon SI Satya Pal Singh again went to hospital and after the doctor declared her fit for statement, he recorded statement of Nafisha Ex.PW3/I in presence of Dr. Kumar RS, which bear her left toe impression at point 'A' and his signatures at point 'B', and that of doctor at point 'C'. For the sake of convenience this statement of Nafisha is also reproduced as under : Statement of Nafisha W/o Iqbal, R/o C105, Welcome, Delhi. I am residing at the aforesaid address along with family members. I want to change my earlier statement and wanted to state that Mahmood, nephew of my motherinlaw Wahidan, has taken possession of my one house at Loni. I used to demand money from my motherinlaw. Thereupon, she used to quarrel with me. This quarrel is going on for last 1520 days. The house at Welcome in which my motherinlaw is living also belongs to me. One day in the presence of my brother Raja, it was told that I be pushed from the roof. On the day of Jumma, I had gone to house of my brotherinlaw, who was residing at Welcome, Janta Colonay, and whose name is Rukka. I asked him to get the matter sorted out, which is lasting for last 20 days. He told me that Wahidan is very bad and he will S.C. No. 27/08 Page 11/38 12 not say anything to her. But he will talk to Iqbal. However, he did not come in evening. On the same day, after quarrelling with him, my motherinlaw Wahidan sprinkled kerosene oil on me and went to house of Rukka (not legible). This incident took place at about 78pm and match stick was also thrown by my motherinlaw Wahidan on my body and set me on fire. Then she left. My husbad was downstairs at that time. My small children (four daughters) were upstairs and remaining children were downstairs. I raised alarm. My husband came upstairs and poured water on me and covered me with bedsheet and brought me to hospital. I do not know anything else.
Q. When you get married and how may children you have? Ans. 20 years ago and 9 children.
Q. Whether your husband ever quarrelled with you?
Ans. No. Q. Whether your motherinlaw quarrelled with you? Ans. From very beginning.
Q. Does your family lives separately?
Ans. Since marriage my motherinlaw and fatherinlaw and husband used to live and from very beginning brotherinlaw used to live separately. Q. Do you have any quarrel with your inlaws over property? Ans. I had dispute with my motherinlaw only regarding the house at Loni. Q. Why did you commit suicide?
Ans. My motherinlaw used to abuse me and used to quarrel with me. My husband was alright and he did not used to say anything in front of my motherinlaw.
Q. How this incident took place?
S.C. No. 27/08 Page 12/38
13 Ans. My motherinlaw sprinkled kerosene oil on me and set me on fire because she was quarreling with me for last 1520 days. Q. Are you making this statement under pressure of your family members?
Ans. No. Q. Were your parental side required to pay any money? Ans. Rs.60,000/.
Q. Are you certain that you have been set on fire by your motherinlaw? Ans. I am certain.
18. On careful reading of these two dying declarations, it is apparent that dying declarations are contradictory and inconsistent with each other. In the first dying declaration Ex.PW3/G the deceased had stated that on 21.05.04 at about 7pm, her motherinlaw came and poured kerosene oil on her back. She was fed up with day to day quarrels and therefore she thought that it is appropriate to set herself on fire. Therefore, she poured kerosene oil on her and set herself on fire. Meaning thereby that as per this dying declaration, she herself committed suicide albeit due to day to day quarrels. However, in the subsequent dying declaration Ex.PW3/I, she stated that her motherinlaw came at about 78pm and poured kerosene oil on her and thereafter lit the match stick and threw on her and thereafter left the spot. In this dying declaration, she is holding her motherinlaw to be responsible for subjecting her to fire. As such while dying declaration Ex.PW3/G goes in the direction to show that deceased herself committed suicide. Dying declaration Ex.PW3/I goes to show that she met homicidal death. As such both dying declarations are totally inconsistent with each other. Moreover, in both dying declarations she gave entirely different S.C. No. 27/08 Page 13/38 14 narrations of the incident, which led to setting her on fire, inasmuch as, in first dying declaration Ex.PW3/G, it was alleged by her that her husband had employed one girl at his STD Booth, which was objected by her motherinlaw and she used to tell him that boys in the locality are bad and somebody may say something to the girl. Her husband was suffering from asthma and one of his hand was also broken, yet he used to work. In the subsequent dying declaration, she narrated that she owned a house at Loni and even the house at Welcome, in which her motherinlaw used to reside, belonged to her. She had been demanding money from her motherinlaw as her nephew Mehmood had occupied her house at Loni and her motherinlaw used to quarrel with her on that account. On the date of incident, she had gone to the house of her brotherinlaw in order to get the matter sorted out. However, he expressed his inability to intervene by stating that Wahidan is a bad lady. However, he will talk to Iqbal, husband of deceased. However, he did not go to her house. Therefore, entirely different versions were given by her in the two dying declarations. Keeping in view the fact that genesis of the incident are entirely different. Moreover, the manner in which she sustained burnt injuries are quite inconsistent. In the two dying declarations, which are in fact contrary to each other, it is unsafe to place reliance upon the dying declaration in absence of any another independent corroborating evidence. For holding this view, I am fortified by Chakiri Saidulu and others vs. State of A.P., 1994 Cr.L.J. 3782. In that case, three dying declarations were made by the deceased. In earlier dying declaration there was omission of names of the accused persons. However, in subsequent dying declaration the deceased added the names of the S.C. No. 27/08 Page 14/38 15 accused persons. It was held by Hon'ble High Court of Andhra Pradesh that since both dying declarations are inconsistent, they cannot b accepted in absence of any corroboration. Reference was made to Pompiah v. State of Mysore, 1965 (2) Cr.L.J. 31, where also there were three dying declarations. In the first dying declaration names of two assailants were mentioned and in the second and third dying declarations, the deceased added two more names. Hon'ble High Court found that two names were common in both dying declarations and convicted those two persons. In appeal, Hon'ble Apex Court, while reversing the view taken by Hon'ble High Court held as under : "If the Court finds that declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration".
Dealing with the aspect that there was inconsistency in the two dying declarations brought on record, Hon'ble Supreme Court observed:
"In the instant case, the declarations recorded in Exs. P.2 and P. 1(a) were made almost simultaneously and the declaration recorded in Ex.P.9 was made shortly thereafter. In Ex.P.2, Eranna named Pompiah and Hussaini only as his assailants whereas in Exs. P. 1(a) and P. 9, he named not only Pompiah and Hussaini, but also Siddaih and Rudramuni as his assailants. Now, his version that Siddaiah and Rudramuni attacked him has been found to be an afterthought. We thus find that a material and integral portion of the deceased's version of the entire occurrence is unreliable. The truthfulness of the dying declarations as a whole is not free S.C. No. 27/08 Page 15/38 16 from doubt".
19. In Kamla vs. State of Punjab, 1980 Cr.L.J. 408, there were four dying declarations and on examination of each of those four dying declarations, Hon'ble Supreme Court noticed certain "glaring inconsistencies" as to the person who had exactly poured kerosene oil and set fire to victim or whether she caught fire accidentally. A particular observation made in that case was : "In a case where there are more than one dying declarations, if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies namely whether they are mateial or not. In scrutinizing the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances."
20. Again Ravinder Kewal Bachhav and others vs. State of Maharasthra, 2004 Cr.L.J. 2417 was a case where two dying declarations were recorded. First declaration was recorded by Executive Magistrate wherein wife alleged that husband poured kerosene on her and set her ablaze. In the second dying declaration recorded by police, many facts were incorporated, which were omitted in earlier statement. It was held by Hon'ble High Court that it raises reasonable doubt as to what was truth and the dying declarations were not relied upon.
Substantially similar view was taken in Brij Kishan and others vs. State, 2009 VIII AD (Delhi) 149, where two dying declarations were made and in view of the discrepancies appearing in two dying declarations, same were not relied upon, and it was observed that where there are inconsistencies in dying declarations or where traces of the maker being S.C. No. 27/08 Page 16/38 17 influenced, unless corroborated by independent evidence, it would be unsafe to sustain conviction on such dying declaration.
21. In Smt. Bisno vs. State, Criminal Appeal No. 6/2005, decided on 02.11.2010 also, there were two dying declarations. One recorded in presences of the investigating officer and other recorded in presence of SDM. But the version given in the first dying declaration was at variance with second dying declaration. Moreover, even regarding the incident there were contradictions in both dying declarations. As such it was held by Hon'ble Justice Ajit Bharihoke that it would not be safe to put reliance on the dying declaration in absence of any other independent corroborative evidence. In that case also as in the present case, deceased was brought to hospital by her husband immediately and after the incident and this circumstance went in favour of the accused, because, if he had intention to kill the deceased he would not have immediately taken her to hospital for treatment.
22. In view of the foregoing discussion, it is to be seen whether there is any evidence on record to corroborate this version of the deceased, PW1 Sukhan had deposed that on 21.05.04 at about 9.15pm, Sajid S/o Nafisha informed on telephone that his parents were quarrelling and they were asked to reach there. He further told that his grand mother (Wahidan) was sitting in staircases. She was abetting them to quarrel. After five minutes, another telephone call was received from Sajid, saying that Papa was setting mother on fire and requested them to reach there immediately. At the same time, they heard voice of Sonu, son of Nafisha, on telephone "Ammi Jal Rahi Hai" and telephone was cut. It has come in the statement of PW2 Hakiman, mother of deceased that telephone was heard by her S.C. No. 27/08 Page 17/38 18 daughterinlaw Mehrunisha. It is pertinent to note that neither Sajid, who had made telephone nor Mehrunisha, who heard telephone call has been examined by the prosecution. Sajid was although cited as witness, but he has been chosen by the prosecution not to be examined, probably because of the fact that perusal of his statement recorded u/s 161 Cr.P.C itself goes to show that he has not supported the case of prosecution. Moreover, this witness in his examinationinchief deposed that his sister told him that her husband poured kerosene oil on her and her motherin law Wahidan burnt her with the help of match stick. In crossexamination, he deposed that on 21.05.04 he reached hospital at about 10pm and remained there for about 23 hours. During this period, he talked to police officials. Police officials were making inquiry from his brother and mother and advise and consultation was going on. He did not meet his sister as doctor did not allow him to meet her. He again went to hospital on 22.05.04. Even on that day, he did not talk to his sister but saw her from a distance. According to him, on 23.05.2004. He talked to his sister. As such it may be taken that Nafisha told him the name of the person who sat her on fire on 23.05.2004 only. When Nafisha gave statement Ex.PW3/G to the police on 22.05.2004 she did not name accused Iqbal at all, rather exonerated him totally and even as regard Wahidan the only role assigned to her was pouring kerosene oil. That being so, it could not be believed that she will give a different version to her brother on 23.05.04 than the one made by her to police on 22.05.04. The witness did not talk to his sister on 24.05.04. Under these circumstances, his testimony that he was informed by Nafisha that kerosene oil was poured on her by Iqbal and fire was lit by Nafisha does not inspire confidence.
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19 Testimony of PW2 Hakiman is silent in this regard.
PW4 Nazmul Hassan is the witness, who was known to the deceased and accused persons for last 2022 years. According to him, his family was on visiting terms with family of Iqbal and they were having st cordial relations. According to him, on 21 day of the month, in the year, 2004 he was sitting just opposite the house of Iqbal and noticed fire was coming out from house of Iqbal. He went upstairs and saw Iqbal pouring water on his wife and remarking "Sabko Marwayegi Kya". His wife told him that she had put herself on fire and she would not cause any trouble to anyone (Maine Khud Aag Lagayi Hai Kisiko Nahi Marwaungi). Blanket was put on her body. She was brought down and put in TSR and removed to GTB Hospital. Besides that PW5 Rehana is the daughter of deceased and she has also deposed that her mother set herself on fire. To the same effect is the testimony of PW8 Smt. Shamim, PW9 Shahbuddin, PW10 Mohd. Rafiq and PW11 Rugga. Under these circumstances, in view of testimony of these witnesses, it was deceased herself who had set herself on fire.
23. Moreover, it has come on record that although the incident in question had taken place on 21.05.04 at about 9.30/9.45pm. However, the deceased breathed her last on 26.05.04. It has come in the testimony of PW1 Sukhan and PW2 Hakiman, brother and mother respectively of deceased, that during this period they were present in the hospital, besides them Alinawaj, another brother of Sukhan, also used to visit Nafisha and they used to talk to her. Therefore, possibility of tutoring the deceased cannot be ruled out. Moreover, in the instant case, dying declarations are recorded by a police officer that is SI Satya Pal Singh and S.C. No. 27/08 Page 19/38 20 despite the fact that deceased was having 100% burnt injuries, it was not recorded by SDM. According to investigating officer of the case, he had contacted the SDM on telephone on 22.05.04. However, SDM refused to come to record the statement on the ground that marriage had taken place 19 years ago. This is quite shocking, inasmuch as, even if marriage had taken place before 19 years that does not mean that SDM should have refused to record the dying declaration. Even if SDM did not cooperate police officials in recording statement of deceased, it is admitted case of prosecution that both alleged dying declarations were recorded by SI Satya Pal Singh in presence of doctor. Why statements were not recorded by doctors, this fact remains unexplained.
24. In Dalip Singh vs. State of Punjab, AIR 1979 SC 1173, Hon'ble Apex Court observed : "We may also add that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in subsection (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. As observed by this Court in Munnu Raja v. State of Madhya Pradesh, (1976) 2 SCR 764 : AIR 1976 SC 2199 the practice of the Investigating Officer himself recording, a dying declaration during the course of investigation ought not to be encouraged."
25. Moreover, in AIR 1986 SC 250, State vs. Laxman Kumar and others, it was observed by Hon'ble Apex Court that under the relevant Rules applicable to Delhi area, the investigating officer is not to scribe the S.C. No. 27/08 Page 20/38 21 dying declaration. Again, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the Court. Considered from these angles, in the instant case, the dying declaration Ex.PW3/G was in narration form and even the initial part of statement Ex.PW3/I was in narration form. In later part certain questions were put by the investigating officer of the case to the witness and later part of the statement is in question and answer form. However, here again although the discrepancy in two statements was quite apparent, but the investigating officer did not deem it appropriate to clarify from the witness as to which of the two statements was correct, inasmuch as, he admitted that he did not ask Nafisha as to which of the statement recorded on 22.05.04 and 24.05.04 was correct and which statement was false.
26. In view of the aforesaid discussions, keeping in view the fact that implicit reliance cannot be placed on two dying declarations allegedly made by the deceased in absence of independent corroboration, which is totally lacking in the instant case, prosecution has failed to establish that it was Wahidan, who had committed murder of Nafisha by setting her on fire.
27. Now I shall take up charge for offence under section 498A IPC.
28. Police machinery, in the instant case, was set in motion on receipt of DD No. 68B Ex.PW3/D regarding admission of Nafisha in burnt condition by her husband. On receipt of this DD, SI Satya Pal Singh went to GTB Hospital, where he collected MLC of Nafisha, on which she was declared unfit for statement by the doctor. Sukhan, brother of deceased S.C. No. 27/08 Page 21/38 22 Nafisha, met him in the hospital and he recorded his statement Ex.PW1/A, which was to the effect that his elder sister Nafisha got married to Iqbal about 20 years ago according to Muslim rites. At the time of marriage, in laws of Nafisha used to live with her. Motherinlaw of Nafisha was a hot tampered lady and she used to quarrel with his sister. For last 8 years, his sister was living separately from her inlaws. Out of wedlock, nine children were born. After Nafisha started living separately with her husband, his brotherinlaw Iqbal started quarrelling with his sister as he did not do any work. Entire household work was done by Nafisha. Iqbal used to play cards. His sister had kept buffaloes and after selling milk, she used to earn her livelihood. On 17.05.04, his sister Nafisha came to the house and informed that her husband was quarreling with her. However, after making her understand, she was sent back. On 19.05.04, children of Nafisha made telephone call that father was quarreling. His younger brother Raja went to the house and thereafter returned back to the house and after sometime informed that Iqbal had asked him to take back his sister, otherwise he will push her from the roof. At about 11am, he himself went to his sister, who informed him that at that time Iqbal was sleeping and he should come in the evening. However, in the evening he received telephone call from his sister, asking him not to come as Iqbal was quite angry. Thereafter, on 21.05.04 this incident had taken place. He suspected that being beaten up by Iqbal, his sister Nafisha poured kerosene oil on herself and set herself on fire.
29. When this witness appeared in the witness box, a different version came wherein he deposed that for sometime after marriage, Iqbal kept his sister well. Thereafter, Wahidan used to illtreat her. Seven or eight years S.C. No. 27/08 Page 22/38 23 ago, Wahidan tried to set Nafisha on fire by pouring kerosene oil. At that time Nafisha went to the house of his mausi, who was residing near house of accused. However, his mausi got the matter compromised and Nafisha was sent to her inlaws house. Thereafter, Iqbal and Nafisha started residing separately from Wahidan. In the year, 200203, they took shop from accused Iqbal on rent for running STD shop. The business was run for about one year. His younger brother Alinawaj took a sum of Rs.1 lac from Iqbal for business purpose. Iqbal told him that this amount was to be used for carrying on business of Iqbal and Alinawaj. Iqbal and Alinawaj incurred loss in the business. Iqbal started demanding money back from Alinawaj. Thereafter, Iqbal started quarreling with Nafisha regarding loss in business and nonreturn of money. However, Alinawaj had returned a sum of Rs.40,000/ to Iqbal in two installments. The quarrel between Iqbal and Nafisha was on account of loss in business in partnership with Alinawaj and there was no other cause for harassment to his sister at the hands of accused persons. On 17.05.04, Nafisha came to his house and told that she is being harassed by the accused persons for not bringing the amount to compensate the loss in business suffered by Iqbal. She was, however, sent back to her matrimonial home after assuring that money would be returned back. On 19.05.04 son of Nafisha made a telephone call that quarrel was going on between his parents and they were requested to reach there. His younger brother Raja reached there. Iqbal asked him to take away Nafisha, otherwise he would push her from roof of the house. Raja came back after pacifying them. On the same day Nafisha made a telephone call and asked them not to visit her house as Iqbal was quite angry. On 21.05.04 they received information from S.C. No. 27/08 Page 23/38 24 children that quarrel was taking place between their parents and that Iqbal had set Nafisha on fire. Thereafter, they went to GTB Hospital where Nafisha was found admitted in burnt condition. In crossexamination, the witness admitted that he did not file any complaint against accused Wahidan, when she tried to set Nafisha on fire, 78 years back. He admitted that during eight years, his brotherinlaw Iqbal and his mother Wahidan had not troubled his sister Nafisha in any manner, when she was living separately with her family from Wahidan. He used to visit house of his sister and did not notice any trouble or quarrel or disturbance in the family of his sister. Although he denied the suggestion that Alinawaj took a sum of Rs.1 lac from Iqbal. However, it was admitted that business was done jointly by Alinawaj and Iqbal and they suffered loss in the business and the entire amount was not repaid by Alinawaj. He also admitted that Nafisha used to visit his brother Alinawaj for return of money and his brother could not return the balance amount till the death of his sister.
30. PW2 Hakiman is the mother of deceased Nafisha. This witness has also unfolded that marriage of her daughter Nafisha took place with Iqbal about 2021 years ago. After marriage Nafihsa was living along with her husband and his parents. About 1516 years ago, motherinlaw Wahidan sprinkled kerosene oil on Nafisha. Thereafter, Nafisha and her husband Iqbal started residing separately, but Wahidan used to visit their house and harass her. Even five days before her death, Nafisha came to her house and told them that she was being harassed by her husband and motherinlaw. On the fateful day, information was received on telephone from Sajid, son of Nafisha that his father was quarreling with Nafisha and that his mother has been burnt and she was taken to hospital. In cross S.C. No. 27/08 Page 24/38 25 examination, she deposed that whenever Nafisha used to come, she used to complain that her motherinlaw was instrumental in quarrel on petty issues. However, she did not disclose any particular reason. She admitted that when incident of sprinkle of kerosene oil by motherinlaw of Nafisha took place, they did not lodge any complaint. However, after the incident Nafisha started living separately with her husband. She also admitted that Iqbal, husband of Nafisha, had given money to Alinawaj for doing work in partnership. However, that work was done for a short duration only as loss was suffered.
31. PW4 Nazmul is the person, who is known to family of accused Iqbal for last about 2022 years and both families are on visiting terms and were having cordial relations. This witness has deposed that there was a STD shop in the house of accused Iqbal on ground floor, which was being look after and managed by brotherinlaw of accused Iqbal. He was informed by Iqbal about 67 months prior to the incident that he wanted to change business and to utilize STD shop for starting new business. He also disclosed that he had given a sum of Rs. 1 lac to his brotherinlaw Raja. On two or three occasions, there were some altercations between Iqbql and Raja. On the issue of money, Iqbal had asked Raja to vacate the shop on which Raja assured that he would return money and vacate the shop.
32. PW5 Rehana is the daughter of deceased Nafisha and accused Iqbal. She has deposed that no quarrel took place between his father and deceased mother. In crossexamination, she admitted that her father and deceased were living happily and there was no quarrel between them.
33. PW8 Smt. Shamim has deposed that accused Iqbal is his brother inlaw (Devar). He was residing with his wife Nafisha in front of Idgah, S.C. No. 27/08 Page 25/38 26 Welcome. According to her, Nafisha expired due to burn as she poured kerosene oil on herself and lit fire. Since this witness did not support the case of prosecution in all material particulars, she was crossexamined by the ld. Prosecutor and in crossexamination she admitted that on 21.05.04 at about 1201pm, Nafisha came to her and told her that Iqbal was not taking medicine and was ill and that Nafisha asked her to sent her husband for making Iqbal understand. At that time, her husband was not present at the house and had gone to mosque.
34. PW9 Shahbuddin is elder brother of Iqbal. Although he is a witness to the identification of the dead body, but in crossexamination he also deposed that there was no dispute between Iqbal and his deceased wife Nafisha and they were having good relations.
35. PW10 Mohd. Rafiq has also deposed that on 21.05.04 at about 9.15pm, he was sitting on the roof of his house. On hearing the noise from house of Iqbal, he saw that Iqbal was entering into his house and thereafter Iqbal brought his wife from inside the house and took her in TSR to hospital as she was in burnt condition. This witness also did not support the case of prosecution as such was crossexamined by the ld. Prosecutor and in crossexamination he admitted that one year prior to the incident, brotherinlaw of Iqbal was running STD shop on the ground floor of accused Iqbal. Iqbal had told him that he had given a sum of Rs.1 lac to his inlaws on credit. Dispute had taken place between Iqbal and his brotherinlaw. Brotherinlaw of accused had taken buffaloes on surety of Iqbal and the person from whom buffaloes were taken was harassing Iqbal. Brotherinlaw of accused Iqbal was not returning the amount. In crossexamination, this witness also admitted that Nafisha used to ask her S.C. No. 27/08 Page 26/38 27 brother to return money, which was taken by her brother on credit from accused Iqbal and her brother was not returning the said amount. He also admitted that there was no dispute between Iqbal and Nafisha and relations between them were quite good.
36. PW11 Rugga has deposed that Iqbal is son of his uncle. On 21.05.04 Nafisha came to his house. At that time, he had gone to mosque for offering prayers. At about 2/2.30pm, when he came back to his house after offering prayer, his wife informed him that Nafisha had come and was telling her that Iqbal was not taking medicine and was sick. He should go to his house in order to make her husband understand. On the same day, he came to know that Nafisha had poured kerosene oil on her and lit fire. In crossexamination this witness also admitted that brotherinlaw of accused Iqbal had taken money from him on credit and same was not returned by him despite repeated request. The relations between Iqbal and Nafisha and Wahidan were cordial. He had not seen any quarrel between them.
37. Aforesaid evidence led by the prosecution clearly goes to show that actual dispute between the parties was running partnership business between Iqbal and his brotherinlaw Alinawaj. A sum of Rs. 1 lac was given to Alinawaj. However, the business could not run as there were losses in the same. Iqbal demanded return of amount. Although as per testimony of PW1 Sukhan, a sum of Rs.40,000/ was returned by Alinawaj. However, he had not repaid the balance amount. In fact, in the dying declaration Ex.PW3/I, in pursuance to questions put by the investigating officer to Nafisha, she has also stated that a sum of Rs. 60,000/ was required to be paid to Iqbal by her brother. Iqbal was S.C. No. 27/08 Page 27/38 28 demanding return of amount, which brothers of Nafisha were postponing. There may be altercation between Nafisha and Iqbal over this issue. However, on 17.05.04, Nafisha had gone to her parents house in order to demand that money. At that time she was sent back with assurance that same will be paid in due course. However, quarrel also took place on 19.05.04 and ultimately on 21.05.4 Nafisha set herself on fire.
38. In view of this evidence coming on record, it has to be seen as to whether offence under section 498A IPC is made out or not. Section 498A IPC reads as under : "498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."
Explanation.--For the purpose of this section, 'cruelty' means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
39. A bare reading of section 498A IPC goes to show that the term cruelty, which has been made punishable under the section has been defined in the explanation appended to the said section. Therefore the consequences of cruelty, which are either likely to drive a woman to S.C. No. 27/08 Page 28/38 29 commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical by the woman or harassment of woman whether such harassment is with a view to coerce her or any person related to her to meet any unlawful demand, which required to be established in order to bring home offence under section 498A IPC.
40. Turning to the case in hand, there is absolutely no allegation that either any demand of dowry was made from deceased. The marriage had taken place about 2022 years ago. Although PW1 and PW2 have deposed that at one point of time Wahidan tried to set Nafisha on fire, however no complaint was made to any authority. Moreover, they have deposed that at that time, Nafisha had gone to house of her Mausi who got the matter compromised. However, even that Mausi has not been examined by prosecution. Moreover, the complainant Sukhan in his cross examination has admitted that during eight years when his sister started residing separately with her husband, neither his brotherinlaw nor his mother Wahidan troubled his sister in any manner. He used to visit house of his sister during this period. She also used to come to their house and he did not see any trouble or quarrel or disturbance in the family of his sister. Even mother of Nafisha has given very vague reply in cross examination when she deposed that Nafisha used to complain that her motherinlaw was instrumental in quarrel on petty issues. However, she did not disclose any particular incident. In fact the entire evidence coming on record goes to show that trouble started when Iqbal gave a sum of Rs. 1 lac to his brotherinlaw Alinawaj for running partnership business and since the business could not yield fruits and it was running in loss, therefore Iqbal demanded return of amount, which Alinawaj could not pay S.C. No. 27/08 Page 29/38 30 completely. Iqbal may be asking his wife to bring balance amount, which her brothers were not returning and may be that made them to lead her to take extreme step of finishing her life. But these allegations do not bring the case of prosecution within the four corners of section 498A IPC. In 2007 AIR (SC) 763, Appabhai Saheb and another vs. State of Maharashtra, it was held by Hon'ble Apex Court that in order to bring the case within four corners of section 498A IPC, any property or valuable security should be given or agreed to be given either directly or indirectly on or before or any time after the marriage and in connection with marriage of the said parties. Giving or taking of property or valuable security must have some connection with marriage, which is essential. Demand for money on account of some stringency or for meeting some urgent domestic expense cannot be termed as a demand for dowry. In Sanju vs. State, 2009 (164) DLT 459, demand of Rs.50,000/ by appellant for his business from father and mother of deceased was held not to fall under definition of dowry as defined under section 2 of Dowry Prohibition Act as demand is not made in relation to marriage. The evidence adduced by the prosecution in the instant case does not show that any demand for dowry as defined in section 2 of Dowry Prohibition Act was made by any of the accused persons so to bring the case within the four corners of section 498A IPC. Even if accused Iqbal demanded return of money from brother of deceased which was given for business purpose that cannot be termed as demand of dowry. Even the case does not fall within the explanation (a) of this section, inasmuch as, the evidence fall short of proving that conduct of accused persons was wilful and was of such a nature as was likely to drive the deceased to commit S.C. No. 27/08 Page 30/38 31 suicide. Under these circumstances, prosecution has not been able to bring the case within four corners of section 498A IPC.
41. Next question which arises for consideration is whether in view of facts and circumstances of the case, prosecution has been able to bring home guilt of accused for charge under section 306 IPC.
Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine. Section 107 IPC defines "abetment" which reads as under : "A person abets the doing of a thing, who First-- Instigates any person to do that thing; or Secondly-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation.1 A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation.2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
42. A perusal of this section goes to show that any person, who abets S.C. No. 27/08 Page 31/38 32 commission of suicide is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons. There is no averment in the statement of the witnesses that any of the accused instigated the deceased to commit suicide. There is no direct evidence to establish that the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.
In Sanju @ Sanjay Singh Sengar vs. State of M.P., (2002) Cr.L.J. 2796, it was observed : "Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and die, no offence u/s 306 IPC is made out."
In Kishori Lal vs. State of M.P., 2007 (3) RCT (Crl.) 385, it was observed : "Mere fact that the husband treated the deceasedwife with cruelty is not enough to bring the case within the parameter of Section 306 IPC."
43. In Randhir Singh v. State of Punjab, reported in IV (2004) CCR 328 (SC) : II (2004) DMC 664 (SC) : (2004) 13 SCC 129, Hon'ble Supreme Court observed as under :
"The Courts should be extremely careful in assessing the facts and S.C. No. 27/08 Page 32/38 33 circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
44. In Mahinder Singh v. State of M.P., reported in 1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157, Hon'ble Supreme Court observed that it is common knowledge that the words uttered in a quarrel or in spur of moment or in anger cannot be treated as constituting mens rea. In the said case, appellant said to the deceased to "to go and die" and as a result of such utterance, the deceased went and committed suicide, however, Hon'ble Supreme Court observed that no offence under section 306 IPC read with section 107 IPC was made out since there was no element of mens rea.
45. In Bhagwan Das v. Kartar Singh & Ors., reported in II (2007) CCR 454 (SC), it was held that quite often there are disputes and discord in the matrimonial home and wife is harassed by husband or by her in laws, this, however would not by itself and without something more attract Section 306 IPC read with section 107 IPC. Substantially similar view was taken by Hon'ble High Court in Shailender vs. State, 169 (2010) DLT
563. S.C. No. 27/08 Page 33/38 34
46. Moreover, it has come on record that after few initial years of marriage, deceased had started living separately with her husband Iqbal. At the cost of repetition, it may be mentioned that Sukhan and Hakiman, brother and mother respectively of deceased, are the only witnesses who have tried to implicate accused persons but even they did not substantiate the case of prosecution in this regard, inasmuch as, Sukhan has admitted in his crossexamination that for last 8 years when his sister was living separately with her husband, she was neither troubled by her husband nor by her motherinlaw. Although Hakiman tried to depose that Wahidan was instrumental in quarrel on petty issues, but no particular incident was disclosed to her by Nafisha. Moreover, disputes of petty matters cannot lead to any presumption that for that reason Nafisha would have committed suicide.
47. While passing over, conduct of Iqbal is also required to be taken note of, inasmuch as, ample evidence has come on record that at the time of incident he was not present in his house, but was elsewhere. On seeing fire smoke coming out of his house, he went upstairs and on seeing that his wife was in flames, he put blanket on her body and thereafter took her to hospital. MLC Ex.PW13/A confirmed this fact as in column of "brought by" name of "Iqbal husband" is mentioned. Even the intimation which was given to police by Constable on duty at GTB Hospital, it was intimated that Nafisha was admitted in burnt condition by her "husband". Moreover, even police did not suspect any hand of Iqbal in death of Nafisha, inasmuch as, after postmortem, dead body was handed over to him. The conduct of accused Iqbal in taking her to hospital for providing immediate medical aid also belies the case of prosecution that this accused and his mother S.C. No. 27/08 Page 34/38 35 instigated the deceased to commit suicide. In fact, deceased in both her statements has also referred to conduct of her husband that he used to treat her well and even on seeing her in flames, he tried to extinguish the fire and then removed her to hospital.
48. In Sushil Kumar vs. State of Haryana, 2005 (4) CCC 585, the deceased died of hanging within six months of her marriage. Accused immediately after coming to know about hanging informed parental relatives of deceased. It was observed by Hon'ble High Court that if there had been bad and malafide intention on the part of accused, he would not have reported the matter either to police or to relatives of the deceased and would have taken steps to dispose of the dead body from scene of crime. Therefore, this conduct of the accused probabilize that he had clean slate. Similarly in T. Aruntperunjothi vs. State through SHO Pondicherry, 2006 (3) Criminal Court Cases 022 (supra) also Hon'ble Apex Court took into consideration conduct of accused, who gave information to police as one of the factor to set aside conviction.
In view of these authoritative pronouncements, conduct of accused Iqbal in extinguishing the fire and then taking Nafisha to hospital probabilize that he had clean slate.
49. In the instant case, prosecution cannot even taken shelter of presumption under section 113A of the Evidence Act, 1872, which reads as under : "When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative S.C. No. 27/08 Page 35/38 36 of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)"
50. A bare reading of section 113A shows that to attract applicability of this section, it must be shown that (1) a woman has committed suicide, (2) such suicide has been committed within a period of 7 years from the date of her marriage, and (3) husband or relatives, who are charged had subjected her to cruelty. On existence and availability of above said circumstances, the Court may presume that such suicide has been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression-- "the other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one.
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37
51. In the instant case, one of the basic essential ingredients of section 113A is missing, inasmuch as, death has not occurred within 7 years of marriage, inasmuch as, it is admitted case of the parties that marriage took place as far back as 2022 years ago. Moreover, as discussed above, even if it has not been proved that Nafisha was subjected to cruelty by her husband or motherinlaw, and absolutely no evidence has come on record to show that either of the accused persons instigated or aided in commission of suicide of Nafisha. As observed in Smt. Bisno (supra), there is always a reason behind an act committed by a person. Committing of suicide by deceased by immolating herself does raise a suspicion that the accused was not happy with her matrimonial life. This suspicion, however, cannot be a substitute for the proof of dowry demand or subjecting the deceased to harassment and cruelty, i.e., the requisite ingredients which constitute the offence under section 498A and 304B IPC. In the instant case, committing of suicide by Nafisha by immolating herself, knowing fully well that she has 9 children to look after, goes to show that everything was not well which compelled her to take this extreme step. However, suspicion alone cannot substitute for proof of dowry demand or subjecting the deceased to harassment and cruelty and to instigate or aid her. As such requisite ingredients which constitute offence under section 498A and section 306 IPC are lacking in the instant case.
52. It is cardinal principle of criminal jurisprudence as held by Hon'ble Supreme Court in 1976 Cr.L.J. 1471, Balraj Singh vs. State of Punjab that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an S.C. No. 27/08 Page 37/38 38 element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. In the instant case, prosecution has failed to bring home guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt. They are, accordingly, acquitted of the charge. Their bail bonds are discharged. However, in compliance of provisions of section 437A, they are directed to furnish a personal bond in the sum of Rs.10,000/ each with one surety each of the like amount, which shall remain in force for a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 30 day of March, 2011. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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