Delhi District CourtState vs . 1. Irshad on 9 September, 2019
IN THE COURT OF SH. POORAN CHAND, ADDITIONAL SESSIONS JUDGE-02 (WEST) , DELHI. Sessions Case No. 56660/16 Assigned to Sessions on 03.11.2012 FIR No. 170/2012 Police Station Nihal Vihar Under Section 498A/306IPC. Charged Under Section 498-A/306 IPC State Vs. 1. Irshad s/o Mohd. Yasin r/o H. No. 17, 18 Shiv Dayal Pura, Majir Pura, Gali No.1, Distt. Hapur, Panchsheel Nagar, U.P. 2. Fatima w/o Mohd. Yasin r/o H. No. 17, 18 Shiv Dayal Pura, Majir Pura, Gali No.1, Distt. Hapur, Panchsheel Nagar, U.P. (Discharged vide order dated 10.10.2013) Arguments heard on 02.09.2019 Date of Judgment 09.09.2019 Final Judgment Acquitted Appearance(s) : Sh. Ram Pyara, Ld. Addl. PP for the State. Sh. Vishnu Kumar, Ld Cl. for the accused. JUDGMENT
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C.
in respect of FIR No. 170/2012 U/S 498A/306 IPC of PS Nihal Vihar was committed to the Ld. Sessions Judge (West), vide orders of the Ld. MM along with the accused for the offences U/S 498A/306 IPC.
2. In brief, facts of the case of the prosecution is that on 14.08.2012, an information was received from PCR at PS Nihal Vihar to the effect that a lady named Farzana had hanged herself at her home i.e A-72/73, Guru Nanak Enclave, Chander Vihar. The said information was reduced to writing vide DD No. 14A On receipt of said DD, ASI Subey Deen went to the spot, however, PCR van had already shifted the deceased to Sanjay Gandhi Hospital. He called up the Crime Team and got the spot photographed. He contacted the PCR officials and came to know that the doctor had declared her brought dead. He was also informed that PCR officials had in their possession one suicide note which they had collected from the s pot and on this information, he instructed them to come to the spot. PCR van came to the spot and PCR official had handed over to him the said suicide notice which was seized by him. He searched for the copy to which the said piece of paper (suicide note) belonged and he found one whichi he also seized. He also seized one Dupatta from the spot. Thereafter, he contacted the father of deceased namely Irshad, he came to the PS, however, refused to give statement.
On 15.08.2012, ASI Subey Deen reached at SGM Hospital and got the post mortem of the dead body conducted and after the post mortem, the dead body was handed over to Sh. Irshad, father of deceased. ASI Subey Deen recorded the statement of father of deceased wherein he stated that her daughter Farzana (deceased) had been married to accused Irshad in the year 2001 as per Muslim rites. He had given dowry as per his position. However, the in laws of his daughter were not happy with the dowry and used to beat her because of dowry. His daughter had made complaint in this regard at Mahila Samiti Ghaziabad where accused Irshad had admitted his guilt and had agreed to keep the deceased at his home. He also stated that he had purchased a plot measuring 125 sq. yards in which accused Irshad was demanding half share and on his refusal, accused Irshad started harassing the deceased. Deceased also informed her mother that accused Irshad was having illicit relations with a woman and because of these reasons, accused Irshad used to harass and beat the deceased. On his statement, tehrir was prepared and present FIR was got registered u/s 498A/306 IPC. Investigation was conducted. He sent the suicide note to FSL Rohini for the purpose of comparison with the handwriting of deceased. He prepared the site plan. After preparing the site plan, he arrested the accused and his personal search was conducted. He also seized the nikahnama and the documents of Mahila Samiti where the deceased had filed complaint against accused Irshad. ASI Satbir Singh obtained post mortem report wherein the cause of death was opined as Asphyxia as a result of ante mortem hanging. After completion of investigation, charge sheet was filed before the Ld. MM for the offence under section U/S 498- A/306 IPC. The Ld. MM took cognizance of the offences.
3. After compliance of legal procedure, the case was committed to the Court of Sessions for trial. Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and Ld Counsel for the accused, found a prima facie case for the offence punishable under section 498-A/306 IPC against accused Irshad, however, accused Fatima was discharged. Charge was accordingly framed against accused Irshad to which accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case has cited 18 witnesses and examined 14 witnesses.
5. PW-1 HC Ram Chander has deposed that, on 15.08.2012, at about 03:00 PM, on receipt of tehrir given by ASI Subey Deen, he had registered the FIR No.170/12 and the same is Ex.PW1/A, and made an endorsement on tehrir which is Ex.PW1/B. The certificate u/s 65B of Indian Evidence Act is Ex.PW1/C.
6. PW-2 Ct. Sukhbir had deposed that on 15.08.12, he had accompanied ASI Subey Deen to SGM Hospital for post mortem of deceased Farzana. After getting the post mortem conducted, the dead body was handed over to brother and uncle of deceased. The handing over memo is Ex.PW2/A. Thereafter, he alongwith IO, father and relatives of deceased. IO recorded the statement of father of deceased, prepared the rukka and got the FIR registered. After registration of FIR, copy of FIR was given to him and he handed over the same to IO.
7. PW-3 Dr. Manoj Dhingra deposed that on 15.08.2012, he alongwith Dr. Manish Wadhawan conducted post mortem on the body of one Farzana, 32 years, female wife of Irsad. Detailed report is Ex.PW3/A. As per report, cause was death was asphyxia as a result of anti mortem hanging.
8. PW4 Ct. Rajesh Kumar is a witness to the arrest and personal search of accused Irshad. He deposed that on 15.08.2012, IO Subey Deen interrogated the accused in his presence and arrested him vide memo Ex.PW4/A and his personal search was conducted vide memo Ex.PW4/B. He also deposed that he had taken the accused from the PS to SGM Hospital for his medical examination.
9. PW 5 Sh. Irshad, is the father of deceased Farzana. He is the only material and star witness of this case. Hence, his entire deposition is reproduced as under :
“Deceased Farzana was my daughter. She was married with accused Irshad in year 2001 as per Mohammdan rites and rituals. I had given dowry as per my status and the marriage was solemnized with the great pomp and show, but the in- laws of my daughter including her husband Irshad were not happy with the dowry articles and used to harass my daughter on the point of dowry demands. The accused used to beat my daughter and torture her for the dowry. We had lodged a complaint at women cell at Ghaziabad. The accused confessed his guilt there and apologized and again my daughter started living with the accused. About one year ago prior to death of my daughter I had purchased one plot of 125 yard at Hapur. The accused demanded half share of that plot and on our refusal he started torturing my daughter Farzana. Although he used to harass and tortured me my daughter regularly but when I refused for the share from the plot, the accused even started beating my daughter and pressurizing my daughter for the share.
We brought our daughter alongwith her kids i e one daughter and two sons. After sometime the accused Irshad also came to Delhi and with the interventions of elders and respectable of the family, Farzana started living with Irshad in a rental accommodation at Chander Vihar.
But when they were residing at Chander Vihar, my daughter used to told us that accused Irshad used to torture her and even used to take liquor daily . She also told that accused Irshad has illicit relations with one other lady. On the day of incident the police informed me about the hanging of my daughter. Accordingly I reached at Sanjay Gandhi Memorial Hospital. My daughter was no more when I reached there. Police recorded my statement Ex PW5/A bearing my signatures at point A. During inquest proceedings police recorded my statement Ex PW5/B regarding identification of dead body. After the post martem dead body was handed over to us vide receipt Ex PW2/A. During investigation I handed over the copy of Nikhanama and the papers of complaint lodged by us at Mahila Panchyat, Ghaziabad. The police seized the same vide memo Ex PW5/C bearing my signatures at point A. The copy of the Panchyati Rajinama is Ex PW5/D bearing my signatures at point A. The complaint which we lodged at Ghaziabad is Ex PW5/E. The accused Irshad is responsible for the death of my daughter.”
10. PW 6 HC Sumer Singh deposed that on 14.08.12, he was posted with PCR and was Incharge, Power-66 van. On that day at about 10.10 AM, he received a call and accordingly, they reached at House No. 72-73 Guru Nanak Enclave, Chander Vihar and found one lady lying on the bed and it was reported that she had hanged herself. One piece of paper i.e suicide paper was also lying there. The lady was immediately rushed to Sanjay Gandhi hospital, she was declared dead in the hospital. He returned to the spot and handed over the suicide note to the IO who seized the same vide memo Ex.PW6/A.
11. PW-7 SI Surender has deposed that on 24.09.2012, he was posted as Sub Inspector in P.S Nihal Vihar. On that day MHC ( R) had handed over to him the case file of present case for further investigation. During investigation he appeared in the bail matter in JJB, Kingsway Camp and there he formally apprehended Juvenile Sadab. JCL Sadab provided his school leaving certificate which was given to him by the Hon’ble Court for verification. He handed over this School leaving certificate to HC Jai Bhagwan. After verification, he provided him the record and said that the concerned school has stated that the School leaving certificate was issued by their school, but they were unable to provide the record of admission as the records of the school had already been stolen in year 2008. On the directions of Hon’ble Court, he verified the complaint which was provided by the concerned school of Ghaziabad, namely Shiv Shiksha School and the concerned PS stated that they have had not received any complaint regarding the theft of the record from the concerned school. Sadab, JCL was the younger brother of accused Irshad. He had moved an application for interrogation of JCL Sadab before the Principal Magistrate, JJB. He had completed the proceedings running into 18 pages, all the said pages are collectively mark “A”. Thereafter, he handed over the case file to MHC (R). And later on, he came to know that JCL Sadab was got released by SI Sube Din.
12. PW-8 SI Subey Deen is the IO of the case. However, his examination remained incomplete and hence, his testimony will not be read into evidence.
13. PW-9 Vijender Singh, Sr. Scientific Officer (Documents), FSL Rohini Delhi has deposed that after examination of the documents, he was of the opinion that it was not possible to express a definite opinion if both the comparing writings were of the same person.
14. PW10 Ct. Satyapal is the photographer of the Crime Team, Janak Puri who on the directions of Incharge Crime Team, took 05 photographs of the place of occurrence. The five photographs and negatives are Ex.P1 to Ex.P5 (colly).
15. PW11 Ms. Kiran Bala, Mahila Panchayat Coordinator, Delhi Brotherhood Society, Nai Seema Puri, Delhi has produced the original file regarding the dispute between deceased Farzana and accused Irshad. The front page of the office record is Ex.PW11/A. Other record of case sheets containing proceedings conducted at Mahila Panchayat regarding dispute between Farzana and Irshad are Ex.PW11/B to Ex.PW11/D.
16. PW12 ASI Ajit Singh is Incharge Crime Team, West District. He deposed that on 14.02.2012, he received a call from West District Control Room regarding one woman having committed suicide by strangulating her at Plot No.A-7677, Guru Nanak Enclave,Chander Vihar, Delhi. He alongwith Crime Team staff comprising of one Photographer Ct. Satpal, one Finger Print Proficient HC Udham Singh and one Driver reached at the aforesaid spot by a Govt. Vehicle at 11.35 AM. At the spot, they met IO ASI Shubedin and one Constable, his name he did not remember at this moment. He inspected the spot and it was revealed that deceased Lady Farzana W/o Irshad had already been removed to the Hospital. He got photographs of the site by Ct. Satpal and IO had told him that the deceased lady had committed suicide by hanging herself with Iron Gartar through a Chunni. He prepared the Crime Report Ex.PW12/A which was handed over to the IO at the spot. Thereafter, they left the spot at 12.00 noon on the same day.
17. PW-13 Ct. Sribhagwan deposed that on 14.08.2012, he was posted at PS Nihal Vihar as constable. On that day, IO Subedin received a call from duty officer that a woman has committed suicide by strangulating herself. The said call was reduced into DD entry No.14A and he alongwith SI Subedin reached at plot No.A-7677, Guru Nanak Enclave, Chander Vihar, Delhi. The lady who had strangulated herself by hanging her had already been taken to Hospital. SI Subedin called the Crime Team at the spot and got the spot photographed and collected the Crime Team report from them. PCR was again called by the IO at the spot and IO had obtained the suicide note produced by HC Sumer who was the PCR Official. IO seized the said suicide note. Thereafter, IO again inspected the spot in his presence and seized the note book out of which, the page on which the Suicide Note was written had been taken out. IO seized the said Note Book. IO seized two pieces of the Chunni, the one that was hanging with the hook of Iron Gartar and the another one that was lying on the Takhat/bed. The said pieces were converted into a single pulandha and same were seized by the IO. His statement was recorded by the IO. He correctly identified the English copy which was seized by the IO from the spot. He also correctly identified two pieces of black colour chunni both having knot.
18. PW14 Dr. P.C. Prabhakar deposed on behalf of Dr. Brajesh who had prepared the MLC of deceased Farzana. He identified the handwriting of Dr. Brajesh and proved the MLC No. 13996 of deceased Farzana as Ex.PW14/A.
STATEMENT OF ACCUSED:
19. After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded so as to enable him to personally explain any circumstances appearing in the evidence against him. All the incriminating evidence was put to the accused which he has denied as being incorrect and has stated he has been falsely implicated in this case. He has chosen not to lead any defence evidence.
20. I have heard the Ld. Addl. Public Prosecutor and Ld. Counsel for the accused. I have carefully perused the entire record including the testimonies of prosecution witnesses, documentary evidence and the statement of the accused. I have given a thoughtful consideration to the same.
21. It is argued by Ld. Counsel for accused that the marriage between deceased and accused Irshad took place on 21.03.2001 and the deceased committed suicide on 14.08.2012 i.e. after 11 years of marriage, hence neither presumption under section 113A nor 113B of Indian Evidence Act, 1872 is attracted against the accused.
22. It is further argued that the prosecution has relied heavily on PW-5 Irshad, who is the father of deceased on whose statement, the present case has been registered against the accused. His testimony is not supported by any documentary evidence which could substantiate his allegations against the accused and the complaint is false and concocted.
23. Another argument raised on behalf of accused is that even the suicide note found from the spot clearly absolves the accused from the allegations levelled against him.
24. It is argued that though Wahid (uncle of deceased) and Noor Bano (mother of deceased) though cited as a witness in the list of witnesses by the prosecution has not been examined by the prosecution for the reasons best known to it.
25. It is further argued that prosecution has very conveniently chosen to examine only PW-5 (father of deceased) against whom accused Irshad has filed a civil case pending at Ghaziabad court.
26. It is also argued that in the proceeding sheet Ex.PW11/B in response to a question printed on the sheet (what is the problem), deceased Farzana has mentioned that her husband demands dowry and he has lodged a false case against her father. It is argued that Ex.PW11/B clearly suggests that she had approached the Mahila Panchayat as one of her problem was that her husband had lodged a case against her father and in order to settle his grudge, PW-5 has made false allegations against accused Irshad.
27. It is further argued that after the matter was settled between the deceased and accused Irshad, no police complaint or to any authority was made by the deceased against her husband regarding demand of dowry or cruelty or harassment.
28. In support of his contentions, Ld. Counsel for accused has relied on case laws titled as K.V. Prakash Babu v. State of Karnataka AIR 2016 Supreme Court 5430, Gurcharan Singh Vs. State of Punjab AIR 2017 Supreme Court 74 of Hon’ble Supreme Court of India.
29. While opposing the arguments of the accused, Ld Addl PP Sh Ram Pyara for the State has argued that all the PWs examined by the prosecution have firmly stood in the test of cross examination and has been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of Pws.
30. It is argued by Ld. State Counsel that the possibility of planting the suicide note is not ruled out as the IO in his seizure memo has mentioned that the suicide note was found from the spot however, in his examination in chief, he has deposed that the suicide note was handed over to him by the PCR official. He has further argued that because of this reason, he does not rely on this document.
31. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence with which the accused are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused person become entitled to the benefit of doubt ultimately leading to their acquittal. Emphasis can be supplied upon a case titled Sadhu Singh Vs. State of Punjab 1987 (3) Crimes 55.
32. In the instant case, the accused has been charged with Section 498-A/306 IPC . Now each of these sections are to be tested on the yardsticks of proof beyond the pale of reasonable doubts in so far as, the documentary as well as the oral evidence of the witnesses are concerned. The Court has to carefully examine whether in the circumstances and evidence which has come on record the ingredients of all or either of these sections stands proved against the accused.
33. It would be pertinent to first discuss the ingredients of the offence with which the accused has been charged with:
34. Section 498 A IPC was incorporated in the statute book in the year 1983 with a view to combating the even growing menace of matrimonial cruelty and dowry deaths . While substantive section 498 A IPC was added to the Penal Code, a statutory presumption under section 113-B has been inserted in the Evidence Act basically keeping in view the increased number of dowry deaths which had then became a serious matter of concern.
35. The necessary ingredients of Section 498 A are cruelty and harassment. The elements of cruelty as defined in Clause (a) shall be:-
(i) Any ‘wilful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii)Any ‘wilful’ conduct which is likely to cause grave injury to the woman; or
(iii) Any ‘wilful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
Similarly, for the purpose of clause (b) the essential ingredients shall be :-
(i) Harassment of a married woman and
(ii) The harassment should be with a view to coerce her or any person related to her to meet to unlawful demand of dowry or property/valuable security or on failure to meet such a demand.
36. Likewise, the essential ingredients of Section 306 is that whoever abets the commission of such suicide. In other words, to attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary.
37. Section 498 A IPC clearly lays down the definition of cruelty in two parts. Clause (a) relates to a willful conduct of husband or his relative, as is likely to drive a woman to either commit suicide or a grave injury or a danger to her life, limb or health (physical or mental). Clause (b) on the other hand relates to either a dowry demand or a failure to cater to such demand by the woman.
38. Further ‘cruelty’ to attract a penal provision has to be necessarily a willful conduct which is of such a nature as it is likely to drive the women to commit suicide or bodily injury or is relating to harassment with a view to coerce her to the illegal demands of dowry. The use of expression ‘willful’ in the expression of Section 498-A of IPC indicates that the conduct attributed to the accused in order to be culpable needs to be deliberate, aimed at causing injury to the health of a women or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequences for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be.
39. Everyone is presumed to know the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health ( physical as well as mental) and how she perceives or likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will constitute cruelty, as defined in the explanation to Section 498-A of IPC. Of course, the expression “Cruelty” would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would also attract criminal liability, envisaged in Section 498-A of IPC.
40. The expression “harassment” has not been defined in Section 498-A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. But, it is not harassment of every nature which is punishable under Section 498-A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positives acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
41. Now, the aforesaid two sections also leads to two important words/ phrases which are also required to be discussed in brief.
42. One is the term ‘Dowry’ which has been taken to have the same meaning as provided u/s 2 of Dowry Prohibition Act, 1961 to comprehensively include properties of all sorts as takes within its fold ‘any property or valuable security’ given or agreed to be given in connection with marriage either directly or indirectly, at, before or after the marriage as considerations for the marriage of the parties. This definition of dowry is to be taken even for the purpose of consideration of section 498 A IPC. Reliance placed on case titled as Bachni Devi V. State of Haryana 2011 Crl. LJ. 1634 (SC).
43. It is pertinent to mention here that in cases like death by suicide generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon’ble Supreme Court and the Hon’ble High Courts in India. The locus classicus of the decision was rendered by Hon’ble Justice Mahajan of the Hon’ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
“The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused.“
44. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon’ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 Where the Hon’ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
(2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that one to be proved and.
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
45. It has been proved on record that the cause of death of deceased was suicidal due to asphyxia from ante mortem ligature hanging as has been proved through document Ex PW3/A, the post mortem report. The death of the deceased was unnatural death. The dead body of the deceased was taken by the relatives of deceased. The place of hanging is not in dispute.
46. Now the crucial facts which has to be ascertained by this Court is whether the deceased was being harassed or cruelty was committed upon her by the accused for non fulfillment of dowry demand by the deceased or her family members, as has been alleged by the prosecution against the accused. To prove these facts the prosecution has only examined PW-5 Irshad, father of deceased. Though statement of mother of deceased was also recorded u/s 161 Cr.P.C, however, she was not cited as a witness by the prosecution. Therefore, PW-5 is the only witness of the prosecution to prove the allegations against the accused as regards cruelty and harassment in relation to dowry is concerned. PW-5 Irshad (father of deceased) has deposed that at the time of marriage of her deceased daughter with accused Irshad, he had given dowry as per his status but the in laws of her daughter including her husband Irshad were not happy with dowry articles and used to harass her daughter on the point of dowry demands. The accused used to beat her daughter and torture her for the dowry. They had lodged a complaint at women cell at Ghaziabad. The accused confessed his guilt there and apologized and again his daughter started living with accused.
He has further deposed that about one year ago prior to death of his daughter he had purchased one plot of 125 yard at Hapur. The accused demanded half share of that plot and on his refusal he started torturing his daughter Farzana. Although he used to harass and torture his daughter regularly but when he refused for the share from the plot, the accused even started beating his daughter and pressurizing his daughter for the share. They brought their daughter alongwith her kids i e one daughter and two sons. After sometime the accused Irshad also came to Delhi and with the interventions of elders and respectable of the family, Farzana started living with Irshad in a rental accommodation at Chander Vihar. But when they were residing at Chander Vihar, his daughter used to tell them that accused Irshad used to torture her and even used to take liquor daily. She also told that accused Irshad has illicit relations with one other lady.
47. It is argued by the Ld Counsel for accused that since marriage had taken place on the year 2001 whereas deceased Farzana committed suicide on 14.08.2012 i.e. after 11 years of marriage and hence presumption u/s 113A and 113B of Indian Evidence Act is not made out against the accused. I am in agreement with this argument of Ld. Defence Counsel that the presumption u/s 113A and 113B of Indian Evidence Act cannot be made against the accused.
48. As regards the suicide note, the prosecution though has filed this suicide note alongwith the chargesheet and has thus relied on it, Ld. State Counsel has not relied on it. I have carefully perused the report furnished by PW-9 who after examination of the suicide note has opined that some similarities are observed in formation of letters “Na”, “Ra” etc. Though this document, at this stage, is not being relied by the prosecution, however, since the letters in the suicide note and the copy which was found near the spot have found some similarities, it becomes an important document for this Court and court cannot ignore this document. Though Ld. State Counsel has argued this document was planted by the IO in connivance with the accused in order to save him, this court is of the considered opinion that in view of the findings of the expert PW-9, it is held that the suicide note was found from the spot wherein the deceased has clearly exonerated the accused Irshad.
49. Further, no evidence has come on record from the year 2005 when the deceased had filed a complaint at Mahila Panchayat till the date she committed suicide. The said Mahila Panchayat has merely observed and recorded the statement wherein both deceased and accused Irhad had resolved their matrimonial dispute. The Mahila Panchayat has given no findings as regards the martimonial dispute between the accused Irshad and deceased Farzana. The proceedings before Mahila Panchayat took place in the year 2005 and thereafter not a single police complaint or any complaint with the allegations of dowry demand or cruelty or harassment against accused Irshad by deceased of her family member has been produced on record to corroborate the allegations. Therefore, there is no evidence on record produced by the prosecution to show that accused had provoked, incited or induced the deceased to commit suicide. Therefore, this court is of the considered opinion that no offence u/s 306 IPC is made out against the accused.
50. As regards offence u/s 498A IPC is concerned, PW-5 father of deceased has categorically deposed about the cruelty and harassment caused to the deceased by the accused Irshad. His testimony has remained unimpeached and unchallenged.
51. I find force in the argument of Ld. Defence Counsel that prosecution has conveniently chosen to only examine PW-5 and not examined the mother and uncle of deceased though both have been cited as a witness in the list of witnesses. No plausible explanation has been put forth by the prosecution not to examine these witnesses.
52. I am also in agreement with the argument advanced by the Ld. Defence Counsel that a litigation was pending between accused and PW-5 which finds a mention even in the proceeding sheet of Mahila Panchayat wherein the deceased herself has mentioned her two problems, one demand of dowry and second false case against her father by accused Irshad.
53. Moreover, the PW5, though deposed in his examination, after the marriage started harassing and pressurizing his sister to bring money from us, but the witness nowhere disclosed the date month and year when the accused had started to harass and pressurize the deceased for dowry. He has not even disclosed the dates of month when he had given dowry to accused Irshand. The statement remained only a bald and general statement which cannot be relied upon in the given facts and circumstances of the case.
54. There was no other corroborative or even suggestive evidence by which it can be deciphered that the deceased was subjected to matrimonial cruelty for demand or want of dowry which has driven her to take the extreme step of suicide and leading to her committing suicide. The evidence/ statements of other witness who are either police witnesses or are the witnesses of investigation are of no consequences in the absence of clear and categorical role of accused being established to be the person who has subjected the deceased to matrimonial cruelty or caused her death.
55. It is settled proposition of law that where there are two views possible one favouring the accused and the other pointing towards the guilt of the accused, the one which favours the accused must be considered.
56. This being the position on facts and in law the chain of facts and circumstances and the connecting links stands broken at more than one places. The prosecution has not been able to establish or prove its version by proving circumstantial evidence unerringly pointing out towards the guilt of the accused and ruling out any hypothesis of innocence of the accused. In the judgment reported as Madari @ Dhiraj & Ors. Vs State of Chhatisgarh, 2004(1) C.C. Cases 487 where it has been held that crucially the materials and evidence on record do not bridge the gap between “may be true” and “must be true”, so essential for a Court to cross, while finding the guilt of an accused. In sum and substance the prosecution fails to prove its case beyond the pale of reasonable doubt leading to possibilities acting like holes in the pot are created making it difficult to hold the facts together forming a uniform mixture. Resultantly, the accused become entitled to benefit of doubt and is accordingly acquitted of the charges U/s 498-A/306 IPC.
57. In view of the statutory requirement of section 437-A Cr. PC, the accused is directed to furnish a bail bond in the sum of Rs. 15,000/- with one surety of like amount to the satisfaction of the court, for a period of six months, to appear before the appellate court, if so required.
58. File be consigned to record room after due compliance.
Digitally signed by POORAN POORAN CHAND CHAND Date: ANNOUNCED IN THE OPEN 2019.09.12 10:28:13 COURT ON THIS 09.09.2019 +0530 (POORAN CHAND) ADDL. SESSIONS JUDGE-02 (WEST):DELHI