Delhi District Court
State vs . Nisar Ali on 8 June, 2012
State Vs. Nisar Ali
IN THE COUR T OF MS VANDA N A J AI N, M.M., MAHILA COUR T (EA S T),
KAR K A R D O OMA COUR T S , DELHI.
FIR NO.: 3 6/98
P. S . : Sh a k a r p ur
U/Sec. 4 9 8- A/40 6/34 IPC
S T A T E VS . NIS A R ALI ET C.
ID No. RO 1 6 4 7 5 2 0 0 3
JUD GM E N T :
1. Date of commission of : 1996 to 1997
offence
2. Name of complainant : S m t. S a yr a Bano
D/o Sh. Mirajuddin
R/o E-3/95, Ramesh Park,
Laxmi Nagar, Shakarpur,
Delhi
3. Name of the accused, his : i) Nis a r Ali
parentage and address S/o Shri Mukhtiar Ali
R/o Mandoli, Gali Masjidwali,
PS Nand Nagri, Delhi
ii) Must a k h Ali
S/o Shri Mukhtiar Ali
R/o Mandoli, Gali Masjidwali,
PS Nand Nagri, Delhi
iii) Ka nij Be g u m ,
W/o Shri Mukhtiar Ali
R/o Mandoli, Gali Masjidwali,
PS Nand Nagri, Delhi
4.Offence complained of : u/s 498-A/406/34 IPC
5. The date of order : 08.6.2012
6. Plea of accused : Pleaded not guilty
Reserved for judgment : 25.5.2012
Date of judgment : 08.6.2012
BRIE F REA S O N S FOR THE DECI SI O N :
1. Brief facts of the present complaint are that the complainant was married to Mustakh Ali on 31.3.1996 and she was mentally and physically harassed in connection with demand of dowry and her istridhan articles 1 State Vs. Nisar Ali were not given back despite demand and thereby committed offence punishable u/s 498-A/406/34 IPC.
2. After completion of investigation, IO filed the charge sheet before this court on 08.3.1999 upon which the cognizance was taken and accused were summoned. Vide order dated 08.2.2000 charge for the offence punishable u/s 498-A/406/34 IPC was framed against the accused to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution cited as many as 5 witnesses out of which HC Om Prakash, L/SI Kanchan, Mirajuddin, HC Tejveer and SI Chander Pal were examined as PW1 to PW5 respectively.
4. PW1 HC Om Prak a s h is the duty officer who proved on record the FIR.
5. PW2 Lad y SI Kan c h a n in her examination in chief deposed that in the year 19.11.1997, she was posted in CAW Cell, East District and on 19.11.1997, one complaint was received in the CAW Cell from Smt. Saira Bano. She further deposed that enquiries were conducted by her in context with this complaint and during enquiries, she had summoned both the parties and Mustyaq Khan, the accused had given his statement on 23.12.1997 Ex. PW2/A bearing his signature at point A and signed by the accused at point B. She further deposed that complainant Saira Bano also gave her statement on 30.12.1997 Ex. PW2/C bearing her attestation at point A and signature of complainant at point B. She further deposed that on 06.1.1998, accused Mutakh gave statement Ex. PW2/D bearing 2 State Vs. Nisar Ali her attestation point A and signature at point B. Complainant gave her statement on 13.01.1998 Ex. PW2/E bearing her attestation at point A and signature of complainant at point B. She further deposed that on that day, accused also gave statement Ex. PW2/F bearing her attestation at point A and signature of accused at point B and during enquiries she had prepared that day proceedings sheet Ex. PW2/G bearing her signature at point A. She further deposed that after completion of enquiry she had done recommendation for registration of FIR and the said recommendation was made by her to Inspector CAW Cell Ex. PW2/H bearing her attestation at point A.
6. The witness was cross-examined by ld. Defence counsel and during her cross-examination she stated that there was only one complaint given by the complainant at CAW Cell, on 18.11.1997 and she had done the recommendation on the basis of that complaint and on the basis of enquiry conducted by her. She denied the suggestion that she had wrongly recommended the case for registration of FIR as no case was made out on the complaint given by the complainant.
7. PW3 Mirajuddin (fath er of co m pl ai n a n t) during the examination in chief deposed that his daughter Saira Bano was married with accused Mustaque Ahmed. He further deposed that she does not recall the exact date of marriage of his daughter and the marriage was performed as per Muslim rites and custom in Delhi and he had given dowry to his daughter according to customs on her marriage. She further 3 State Vs. Nisar Ali deposed that after marriage his daughter went to village Mandoli in her matrimonial home. He further deposed that after some time of marriage accused Mustakh started demanding scooter, TV and cash from his daughter and accused Kanij Begum, and Nisar Ali did not demand anything from his daughter. He further deposed that after 5-6 months of marriage accused Mustaque demanded Rs. 15000/- from his daughter to start a business and he gave Rs. 12000/- to his dauggter after taking loan and hypothecating articles of his wife. He further deposed that again accused Mustakh demanded Rs. 5000/- from his daughter after 2-3 months she he had paid Rs. 12000/- to his daughter to be given to his husband and his daughter had come to his house to take Rs. 5000/- from him then he asked his daughter to live in his house as all the accused persons used to give beatings to his daughter in her matrimonial house. He further deposed that the accused persons used to beat his daughter as she was not fulfilling the demands for dowry raised by accused Mustaque and at that time his daughter lived in his house for one year. He further deposed that all accused persons also used to threat to burn his daughter after pouring kerosene oil on her in her matrimonial house. He further deposed that 5-10 respectable persons sat to make compromise between them and then he sent his daughter back to her matrimonial house. He further deposed that after 15-20 days he received a telephonic call from the neighbour of accused person that Saira Bano has been burnt and then he went to the matrimonial house of his daughter and at that time his 4 State Vs. Nisar Ali daughter was fully burnt and he brought her back to his house. He further deposed that after 7 days of bringing his daughter at his house, she died. He further deposed that during the stay of his daughter at his house for one year, his daughter had filed a case at CAW Cell. He again said that accused Nisar Ahmed and Insar Ahmed and Chami @ Kaniz Begum also used to harass his daughter in the matrimonial house. He further deposed that he does not identify the signatures of his daughter and she used to sign in Hindi, English and Urdu. He further deposed that only partial dowry articles would be recovered from the efforts of the police and the accused persons had produced the dowry articles as per the directions of the court vide seizure memo Ex. PW3/A bears her signatures at point A and he can identify the dowry articles of his daughter if produced before him.
8. His further examination in chief was recorded on 16.2.2010 and during his further examination he deposed that he can identify the dowry articles which they have given in marriage and at that stage, MHCM produced some dowry articles and the witness was sent along with the MHCM and accused refused to go to identify the same. Dowry articles i.e. one 4 X 6 old broken bed, one dressing table without glass, one iron box, seven ladies suits old and some in torn condition, 1 chitila old, two rubber bend (old), two pillow covers, one bed sheet, one stool and one Kuran Sharif and the witness identified the same which were collectively exhibited as Ex. P-1.
9. PW3 Shri Mirajuddin was further recalled for his examination in 5 State Vs. Nisar Ali chief on 23.05.2011 and during his examination in chief he deposed that that day husband, mother in law and Dever of his daughter were present in the court.
10. Witness was cross-examined by ld. Defence counsel and during his cross-examination he stated that first complaint was made after one year of marriage of his daughter and he did not accompany his daughter when she made the complaint. He further stated that complaint was not made by him in women cell and complaint was made at PS Shakarpur. He denied the suggestion that he has no knowledge about this case as the complaint was not made to PS Shakarpur but was made to CAW Cell. He further stated that accused namely Mustakh had come to him several time at his house to raised demand for money. He further that stated that demand some time was for Rs. 5000/- and some time was for Rs. 7000/- and some time was for Rs. 10,000/-. He further stated that he cannot tell the date, month and year or when the said demand was raised from him and he had given Rs. 12,000/- to his daughter and she came to him in bewildered condition as she was beaten up by her husband on account of dowry. He further stated that she had come to him alone and at that time he and his wife were present. It is further stated that said Rs. 12,000/- was arranged by him by borrowing and by selling some jewellery and Rs. 7,000/- borrowed by him from his brother in law namely Shafique but he cannot tell the address where jewellery was sold by him. He further stated that police had not recorded his statement but recorded the 6 State Vs. Nisar Ali statement of his wife. He denied the suggestion that no demand was raised by the accused persons for Rs. 15,000/-. He denied the suggestion that Rs. 12,000/- was not paid by him to the accused. He further stated that medical document of complainant was not prepared and during the pendency of case no compromise had taken place. He admitted that daughter expired at his house. He further admitted that Kanik Begum is his real sister. He further stated that he does not remember the date when he gave Rs. 5000/- to his daughter. He further stated that his daughter told him that accused persons are demanding money for doing the business of gate gril. He further stated that no paper work was done in his presence and accused persons were arrested and got released from police station. He denied the suggestion that he used to demand money from his sister namely Kaniz Begam when she refused to pay, he got registered the present case through his daughter against the accused persons. He denied the suggestion that no demand of dowry was made by the accused persons from him or his daughter. He denied the suggestion that no beatings were given to his daughter for demand of dowry. He denied the suggestion that he never gave Rs. 5,000/- or 12,000/- to his daughter against demand of accused person. He further stated that some articles recovered from accused persons were lying at police station Shakarpur and remaining dowry articles were in possession of accused persons. He further stated that articles lying in police station are one broken bed, one stool, one iron box, one kuran sharif, 3-4 hairs 7 State Vs. Nisar Ali band and 4 pieces of clothes.
11. Cross-examination of PW4 HC Tejv e e r was deferred and witness was not cross-examined again and therefore his evidence cannot be read in evidence and therefore, his testimony is not discussed herein.
12. PW5 SI Ch a n d er P al Sin gh during his examination in chief deposed that he was posted at PS Shakarpur on 01.2.1998 and on the same day he has received the case file of Smt. Saira Bano from CAW Cell. He further deposed that after the enquiry, he had recorded the statement of complainant Saira Bano Ex. PW5/A bearing signatures of Saira Bano at point A and he prepared the endorsement on the said statement Ex. PW5/B bearing his signatures at point X and got the case registered. He further deposed that he had obtained the signature at police station and had recorded the statement of other witnesses including her father Mirajuddin and he had already received the documents from the CAW Cell regarding case file and enquired the matter from the complainant Sair Bano. He further deposed that he had searched for the accused persons but they were not found. He further deposed that they had obtained the anticipatory bail. He further deposed that he had sent the signatures of accused for FSL for handwriting expert to take opinion from FSL (as accused Nisar Ali denied his signatures on Nikahnama) with the permission of the court and the certificate in this regard is Mark X. He further deposed that accused persons were ordered to deposit the case property PS Shakarpur and the same were deposited 8 State Vs. Nisar Ali by accused Mustaq Ali at PS Shakarpur on 24.3.1998 vide seizure memo Ex. PW3/A bearing her signatures at point X. He further deposed that the report from FSL handwriting expert was obtained and photographs were also received by him with the report of CAW Cell. He further deposed that accused persons were formally arrested by him and prepared the challan and filed it in the court through SHO.
13. He was cross-examined by defence counsel and during his cross-
examination he stated that the statement of father of complainant namely Mirajuddin was recorded on 01.2.1998 and also on 24.3.1998 and during the investigation supplementary statement was also recorded and list of dowry articles was attached with in the record of CAW Cell. He further stated that the complainant did not tell him whether the list filed in Women Cell is prepared at the time of complaint or at the time of marriage. He further stated that complainant had not given him the ownership of dowry articles receipts etc. He denied the suggestion that the accused persons have been falsely implicated in this case.
14. After completion of prosecution evidence, statement of accused was recorded u/s 313 Cr. PC. wherein all the incriminating evidence was put to the accused but the same was denied by them as incorrect and they came up with the plea that complainant falsely implicated them as she wanted her husband to live with her at her parental home and to maintain her parents and family.
15. The story of the prosecution is that the complaint was made by the 9 State Vs. Nisar Ali deceased complainant in CAW Cell in the year 1997 and thereafter compromise was held between the parties and the complainant again joined the matrimonial home. However, in the year 1999, she received burn injuries and she expired after seven days of bringing of the deceased complainant by her father at his house. There are no allegations of burning of the deceased complainant by the accused persons in the present case. The complainant has not entered into the witness box as she expired before her deposition and therefore, the allegations made in the complaint before the CAW Cell could not be proved. The statement Ex. PW5/A i.e. the complaint of the deceased complainant which has been exhibited by IO SI Chander Pal cannot be taken into account as the witness never entered into the witness box and did not pass through the test of cross-examination. The cases u/s 498-A/406/34 IPC are primarily based on oral evidence and since the witness has expired, the statement even though exhibited by the IO cannot be presumed to be proved.
16. The father of the complainant namely PW3 Mirazuddin is the star witness. He has stated that after five/six months, accused Mustakh demanded Rs. 15000/- from her daughter to start business and he gave Rs. 12000/- to his daughter after taking loan by hypothecating the articles of his wife. He again stated that accused Mustakh demanded Rs. 5000/- from his daughter after 2/3 months of giving of Rs. 12000/- and at that time, he asked his daughter to live in his house as the accused persons were giving beatings to his daughters in the matrimonial home on non 10 State Vs. Nisar Ali fulfillment of their demands. He has further stated that with the intervention of some respectable family members, his daughter re-joined the matrimonial home and after 15 to 20 days he received a call from the neighbour that the complainant has been burnt and he brought her back to his home and after seven days of bringing his daughter to the house, she died. As regards the payment of Rs. 12000/- is concerned, no proof has been annexed with regard to the same. Further, the complainant is also not present to corroborate the statement of her father. Even in case it is presumed that Rs. 12000/- was paid by the witness PW3 to his daughter for giving the same to the accused, it was for the purpose of starting a business by the accused Mustakh Ali as alleged by PW3 Mirazuddin himself.
17. It is a settled law that by the judgment that giving of money in connection of starting the business does not amount to demand of dowry. Reliance placed on Manoj Ku m ar V s. St a t e of Raj a s t h a n , Raj a s t h a n High Court, 2 0 0 8 (IV RCR) (Crimin al). Accordingly, the payment of Rs. 12000/- by the father of the complainant to her cannot be said to be given with a view to fulfill the demand in connection of the dowry. As far as raising of demand is concerned, the same cannot be proved by the father as the statement of the father is hearsay evidence and the complainant could not dispose due to her death. Further there is no allegation against any of the accused persons with regard to the entrustment, demand or refusal to return the istridhan articles. 11
State Vs. Nisar Ali
18. As regards the death of complainant there is no single averment with regard to burning of the complainant in the statement of PW3, Mirazuddin. No other record has been produced. It is further pertinent to mention here that the accused persons in the evidence tried to summon the record. However, the summons were received back with the report that record has been destroyed in the year 2005. The allegations made in the statement of PW3 are not sufficient to invoke the allegation u/s 498- A/406/34 IPC. Due to lack of allegations, all the accused persons are acquitted for the offence punishable u/s 498-A/406/34 IPC.
Let file be consigned to record room.
Announced in the open court (VANDANA JAIN) Dated: 08.6.2012 M.M./Mahila Court (E) 12 State Vs. Nisar Ali FIR No. 36/98 PS: Shakarpur 08.6.2012 Present: Ld. APP for State. All accused are present on bail with counsel.
Vide separate judgment dictated and pronounced in the open court, the accused persons have been acquitted in case FIR No. 36/98, PS Shakarpur. Provision of section 437 (a) shall apply and previous surety shall remain as surety for next six months. Let file be consigned to Record Room.
(VANDANA JAIN) M.M./Mahila Court (E) 08.6.2012 13 State Vs. Nisar Ali 10.5.2012 Present: Ld. APP for State.
Accused produced from JC.
Shri R.S.Juneja, ld. Counsel for accused.
Arguments heard. Put up for order on 17.5.2012.
(VANDANA JAIN)
M.M./Mahila Court (E)
10.5.2012
17.5.2012
Present: Ld. APP for State.
Accused produced from JC.
Shri R.S. Juneja, ld. Counsel for accused.
Vide separate judgment dictated and pronounced in the open court, accused is acquitted for the offence punishable u/s 406 IPC in case FIR No. 70/1988, PS Geeta Colony. Let accused be released forthwith. Provision of section 437 (a) shall apply and previous surety shall remain as surety for next six months. Let file be consigned to Record Room.
(VANDANA JAIN) M.M./Mahila Court (E) 17.5.2012 14