Delhi High Court
Muslim & Anr. vs State (Nct Of Delhi) on 8 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : March 08, 2017
+ CRL.A. 442/2001
MUSLIM & ANR. ..... Appellant
Through: Mr. Sunil Dalal, Ms. Payal Juneja,
Ms. Garima Goel, Advocates for
appellant No.1.
Mr. Sheikh Israr Ahmad, Advocate for
appellant No.2
versus
STATE (NCT OF DELHI)
..... Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J.
1. Present appeal has been filed by the appellants being aggrieved
by the judgment of conviction dated 04.06.2001, passed by the learned
Additional Sessions Judge, New Delhi, thereby convicting the
appellant - Muslim for the offence punishable under Section 306/498-
A of Indian Penal Code (hereinafter referred to as I.P.C.) and the
appellant - Yusuf for the offence under Section 498-A of IPC.
Consequent thereto, vide order on sentence dated 07.06.2001, the
appellant - Muslim was sentenced to undergo rigorous imprisonment
for 4 years with fine of Rs.100, in default of payment of fine, he was
ordered to undergo further rigorous imprisonment for a week for the
offence punishable under Section 306 of IPC and to undergo rigorous
imprisonment for 3 years with fine of Rs.100/- and in default of
payment of fine, to further undergo rigorous imprisonment for one
week for the offence under Section 498-A of IPC. Vide same order,
the appellant - Yusuf was ordered to undergo rigorous imprisonment
for one year with fine of Rs.1,000/- and in default of payment of fine,
to further undergo rigorous imprisonment for one month for the
offence under Section 498-A of IPC.
2. The prosecution case is, that a married lady had taken her life
by hanging herself from an iron rod fixed in the ceiling of the first
floor room of the house of the appellant. The incident was noticed by
Chhoti Bano, the sister-in-law (nanad) of Sabri (deceased). The wire
was cut with the help of a chhuri. An information was given to the
police at Police Station Mehrauli, which was recorded vide DD No.11-
A. The dead body of Sabri was found lying on the cot.
3. The present case was registered on the statement of one Usman
(PW-5), father of the deceased Sabri. He stated in his statement that
his daughter was married to Muslim and was blessed with a son
Mustakeen. After her marriage, appellants - Muslim and Yusuf
(brother of Muslim), alongwith his wife Maimoona used to taunt his
daughter for bringing insufficient dowry. Appellant - Yusuf Khan and
his wife Maimoona used to taunt the deceased that as her father had
given nothing in the marriage, they would get the accused Muslim
married gain with some other girl. It was further stated that after the
birth of Mustakeen, appellant - Muslim left PW-5 Usman's daughter
in his house. After about two or two and half years, both the appellants
visited PW-5's house to take back the deceased. They demanded
Rs.20,000/- in cash and a motor cycle. It is further stated that at that
time, Israel, Sarpanch, Chau Khan - Member Panjayat, Jasmat Hazi
Chowdhary were present and the appellants raised this demand in their
presence. He gave Rs.5,000/- to Muslim at the instance of Panchas and
made a promise that he would give the remaining amount of
Rs.15,000/- and a motor cycle on a subsequent occasion. His daughter
was taken back by the appellants. Thereafter, about a month or
quarter, later, an information of Natia Pradhan of Village chananhola
informed that his daughter had died. He alongwith other persons of his
village went to the house of the appellants where the police had
already arrived. The dead body of his daughter was lying on a cot in a
room. PW-5's statement was recorded by the police and he raised a
suspicion that his daughter had been killed by appellants.
4. After recording the statement of Usman, the jewellery on the
body of the deceased, one knife, one electric press and two wires were
taken into police possession from the spot. Post mortem of the body of
deceased was conducted. FIR was registered and after completion of
the investigation, the appellants were charged with the offence
punishable under Section 498-A/306/34 of IPC, to which they pleaded
not guilty and claimed trial.
5. To prove the charges against the appellants, the prosecution
examined 14 witnesses. They are, Head Constable Suraj Bhan (PW-1);
Israil (PW-2); Head Constable Shabir Ahmed (PW-3); Head Constable
Babu Khan (PW-4); Usman (PW-5), Chau Khan (PW-6); Head
Constable Pradip (PW-7); Dr. Rajesh Kumar, AIIMS Hospital (PW-
8), Head Constable Satbir Singh (PW-9); Constable Rajbir Singh
(PW-10); Constable Rajbir (PW-11), Constable Naresh Kumar (PW-
12); Constable Paras Ram (PW-13), and Sub-Inspector R.P. Rao, Vide
President House, Security Unit (PW-14).
6. After conclusion of prosecution evidence, all the incriminating
material was put before the appellants and their statements under
Section 313 Cr.P.C. were recorded. The appellant - Muslim in his
statement under Section 313 deposed that his marriage with Sabri was
first to be held on 07.06.1979, however no article was given to him. At
that time, he was of 11 years old. Ayub alongwith four other persons
of his village had obtained stay from the Civil Court restraining him
from marrying Sabri. Thereafter, the complainant - Usman came to
his father and uncle (Tau) Niyazu and requested that it was a matter of
his prestige, therefore the marriage of Muslim with Sabri be
performed and he put his turban in the feet of his father and uncle
Niyazu. At that time, Razak son of Niyazu was a major, therefore it
was agreed by the biradari people that marriage of Sabri be taken
place on 07.06.1979. Accordingly Razak married with Sabri on
07.06.1979. Sabri had delivered a boy from the loin of Razak. He did
not have any concern with the child. Razak was a drunkard and used
to remain out of station. There used to be altercations between Sabri
and Razak. Sabri had gone to her parent's house. He had no concern
either with Sabri or the demand of dowry or the death of Sabri. He
further deposed that after about 10 days prior to the incident, Usman
had come with his daughter to his village. He had gone to the house of
his Tau - Niyazu, but Niyazu did not keep Sabri. Because of the
village biradari Usman had left Sabri in our house as the people of the
village used to say that Sabri was the married wife of him. He further
deposed that the fact of the death of Sabri first came to his knowledge
on 19.02.1991. He had also shown the stay order of the court to the
Sub-Inspector R.P. Rao. He further stated that he was not on speaking
terms with Niyazu for the last eight years on account of the ongoing
litigation as well as this case. Regarding dowry demand, he had
deposed that there had never been any talk of dowry etc.
7. In support of his statement made under Section 313 of Cr.P.C.,
the appellants led four witnesses, they are; Ayub Khan (DW-1), Ishaq
Mohd. (DW-2), Naveen Rawat (DW-3) and Suleman (DW-4).
8. After considering the facts, evidence led on behalf of both the
sides, and the material on record, the learned Additional Sessions
Judge held the appellant-Muslim guilty for an offence punishable
under Sections 498-A/306 of IPC and the appellant - Yusuf guilty for
an offence punishable under Section 498-A of IPC, and vide order on
sentence dated 07.06.2001, appellants were sentenced as indicated
above. Hence, the appellants have filed the instant appeal against the
judgment and order on sentence passed by learned Additional Sessions
Judge.
9. The appellant - Muslim has categorically denied his marriage
with the deceased Sabri and in support of his stand, he had deposed
four defence witnesses. He had contended that on 07.06.1979, though
his marriage was to be solemnized with Sabri but on that particular
date he was of 11 years of age and ultimately it was decided that Sabri
be married with his first cousin Razak. The witnesses produced by the
appellant - Muslim had stated before court that Sabri could not marry
with the appellant Muslim because of the intervention of the court
order, which was corroborated by the testimony from the four defence
witnesses. Therefore, it is contended that the learned Additional
Sessions Judge has erred in relying upon the testimony of the
prosecution witnesses and convicted and sentenced the appellants for
the offence and did not accept the testimony of the witnesses
examined by the appellants in their defence.
10. Apart from the aforesaid, learned counsel for the appellants
contended that there are material contradictions in the statement of
witnesses on the point of alleged demand of dowry and also on the
point of the alleged demand of money and motor cycle from the side
of the appellants. It is further contended that despite the fact that his
marriage with Sabri has been disputed, the prosecution had not been
able to place on record any document to substantiate the fact that Sabri
had infact married with Muslim. It is further contended that the
Investigating Officer of the case had accepted in his cross-examination
that the father of the deceased had promised that he would submit the
Nikah Nama of the marriage of Sabri with Muslim, but he could not
do so. Further, no proof with regard to any dispute of the family so
referred to the panchayat, or for decision of the matter was taken to
fact. More so, the facts as placed before the court by the prosecution
were grossly insufficient to attract the provisions of Section 306 of
IPC.
11. So far as offence under Section 498-A is concerned, learned
counsel for the appellant contended that no date, month or year has
been given by the prosecution witnesses in their depositions, as to
when the alleged act of cruelty or harassment was committed or any
demand for dowry was made. Even the date or place for the alleged
demand of money has not been given by any of the prosecution
witnesses. In such circumstances, the appellants cannot be held guilty
for the offence under Section 498-A of IPC merely on the statements
of the witnesses, unless they are corroborated by other evidence. It is
further contended on behalf of the appellants that no independent or
disinterested witnesses have come forward with a view to prove the
fact that Sabri had in fact married Muslim on 07.06.1979.
12. On the point of sentence, learned counsel for the appellant
contended that the sentence awarded to the appellant - Muslim is very
harsh and excessive as at the time of marriage the appellant was only
11 years of age and incapable of even understanding the meaning of
dowry. The appellants urged that they are innocent and had young
children at the time of the alleged offence. Further, there is no
allegation of instigation for suicide either, by the appellants.
Therefore, the impugned judgment and order on sentence is liable to
be set aside.
13. In support of his contents raised in the appeal, learned counsel
for the appellants relied upon the following judgments:
a) Ramesh Kumar vs. State of Chhatisgarh, 2002(1) JCC 87;
b) Shailender vs. State (NCT of Delhi), 2010 (2) JCC 1150;
c) Nepal Singh vs. State of Haryana, AIR 2009 SC 2913;
d) Anandamay Ghosh and Ors vs. State of West Bengal,
2006 Cri.LJ 4250;
e) Gananath Pathnaik vs. State of Orissa, 2001 (1) JCC 430;
f) Durga Prasad & Anr vs. State of Madhya Pradesh, JT
2010(8) SC 228;
g) Dr. Sunil Kumar Shambhudayal Gupta and Ors. Vs. State
of Maharashtra, JT 2010 (12) SC 287;
h) State of Haryana vs. Ram Singh, 2002 (1) JCC 385;
i) Raj Kumar Khanna vs. State (NCT of Delhi), 95 (2002)
DLT 147 (DB);
j) Mani vs. State, 2014 (3) MLJ (Crl.) 18;
k) Sanjay @ Sanjay Singh Sengar vs. State of Madhya
Pradesh, AIR 2002 SC 1998;
l) V. Venkataraman vs. State, 2015 (3) MLJ (Crl) 669;
m) Neera Singh vs. state, 2007 (138) DLT 152;
n) Sanjeev Kumar Aggarwal and Ors vs. State and Anr.,
(2007) ILR 8 Delhi 109;
o) Assoo vs. State of M.P., (2011) 14 SCC 448;
p) Randhir Singh and Anr. Vs. State of Punjab, AIR 2004
SC 5097.
14. Per contra, learned Additional Public Prosecutor for the State
has vehemently opposed the aforesaid contentions raised on behalf of
the appellants and submitted that the offences with which the
appellants have been charged are crimes against the society. In this
case, a lady has been tortured and faced with cruelty and harassed on
account of demand of dowry by the appellants due to which the victim
ended her life in her matrimonial home by hanging herself, therefore,
the judgment and order on sentence as passed by learned Additional
Sessions Judge do not suffer from any irregularity or illegalities and is
passed with a reasoned order, therefore, the same is not liable to be
interfered with.
15. During pendency of the present appeal, the sentence imposed
upon the appellants were suspended vide order dated 09.07.2001.
16. I have heard the submissions made on behalf of both the sides
and also gone through the evidence as well as material placed on
record. This court observes that the appellant - Muslim has primarily
taken a stand that he was never married to Sabri (deceased) as he was
only 11 years of age in 1979. He also led defence evidence in support
of this statement. He had also said that in fact the marriage was
solemnized between Razak and Sabri and 10 days prior to the incident,
the complainant had left the deceased in his home. The appellant -
Muslim has also raised a point that the father of the deceased did not
place on record the Nikah nama in respect of the marriage between
Muslim and Sabri but simultaneously, the appellant - Muslim has also
not placed on record the nikahnama in respect of marriage of Sabri
with Razak, to strengthen his contention of his not being married with
the deceased Sabri. Likewise, no electoral roll in respect of the
deceased containing her name with Razak as her husband has been
placed on record by the appellants.
17. On the contrary, this court further notes from the impugned
judgment that the so called stay order dated 06.06.1979 simply bears
the seal of the MM, Patiala House Courts and it is addressed to the
SHO, Mehrauli, wherein the name of the girl is mentioned as Smt.
Sowaro. Therefore, in the considered opinion of this court it is not
possible to connect that order with Sabri, the deceased in the present
case. So far as the contention regarding the appellant - Muslim being
not married with Sabri (deceased) is concerned, the same has been
perfectly dealt with by the learned Additional Sessions Judge in the
impugned judgment and he has rightly held that Sabri was married
with Muslim.
18. Now, coming to the issue of demand of dowry for establishing
the offence under Section 498-A, IPC, there is clear and specific
statement of father of the deceased, Usman (PW-5), who in his
statement deposed before the court that his daughter was marred to
Muslim and was blessed with a son Mustakeen. After her marriage,
appellants - Muslim and Yusuf (brother of Muslim), alongwith his
wife Maimoona used to taunt his daughter for bringing insufficient
dowry. Appellant - Yusuf Khan and Maimoona used to taunt the
deceased that as her father had given nothing in her marriage, they
would get the accused Muslim married again with some other girl. It is
further stated that after the birth of Mustakeen, appellant - Muslim left
his daughter to his house. After about two or two and half years, all
the appellants visited his house to take back his daughter. They
demanded Rs.20,000/- in cash and a motor cycle. It is further deposed
that at that time, Israel, Sarpanch, Chau Khan - Member Panjayat,
Jasmat Hazi Chowdhary were present and the appellants raised this
demand in their presence. He gave Rs.5,000/- to Muslim at the
instance of Panchas and made a promise that he would give the
remaining amount of Rs.15,000/- and a motor cycle on a subsequent
occasion. His daughter was taken back by the appellants, thereafter.
19. The aforesaid statement of Usman (PW-5) is also corroborated
by Israil (PW-2) who in his statement before the court deposed that the
daughter of Usman was married to the appellant - Muslim about 8/9
years back. After the marriage, daughter of Usman had gone to her
matrimonial home and two children were born out of their wedlock,
one was a boy who is alive and the other a girl who had expired. When
the daughter of Usman was living in her matrimonial home, accused
persons used to harass her for dowry. The matter was raised by Usman
in the Panchayat of his village which he attended alongwith the
Sarpanch Israil, Chau Khan and other respectable persons. Panchayat
had advised Usman to amicably resolve the differences and tell them
'thoda bahut aur dey denge' and that they should not harass his
daughter. Thereafter, Usman went to the village of the accused
persons and about a week thereafter, the appellants came to his village
with Sabri, when panchayat was again called and accused demanded
Rs.20,000/- in cash and motor cycle as a condition to keep the
daughter of Usman. Thereafter, they went back to their village leaving
the daughter of Usman there and she stayed with her parents for three
years. Thereafter Usman was asked by the village persons to go to the
house of the appellants. Accordingly Usman went there and requested
the appellants to take his daughter. The appellants came to their
village and panchayat was once again called and they were requested
to take back the daughter of Usman and the accused persons were
given Rs.5,000/- by the residents of the village and were promised that
after about one and half months they would be provided with a motor
cycle and the remaining amount of Rs.15,000/-. During cross-
examination, he deposed that he was present at the time of Nikah of
Sabri and Muslim. He had specifically denied that Sabri was married
to Mohd. Razak.
20. Chau Khan (PW-6) in his statement before the court also
deposed that the daughter of Usman - Sabri was married to the
appellant - Muslim 8-9 years before the death of Sabri. He further
deposed that Sabri resided with her father at Village Raj Pura for
about two years. A panchayat was held wherein the appellants made a
demand for a motorcycle and some cash. Usman gave Rs.5,000/- to
accused Muslim at the instance of the Panchayat and promised that he
would give the remaining amount and the motor cycle on some
subsequent occasion. Thereafter the appellants took back Sabri with
them and after about one and half months Usman told him that his
daughter Sabri had died at village Chananhola. He alongwith Usman
and Israil who was the Sarpanch of the village, came to the in-laws
house of Sabri and found that the dead body of Sabri was lying in the
house.
21. From the aforesaid deposition of PW-2, PW-5 and PW-6, the
prosecution has been able to prove the charge under Section 498-A of
IPC against the appellants, as all the witnesses have deposed in the
same line, i.e. demand of Rs.20,000/- and a motor cycle and payment
of Rs.5,000/- to the appellants. Therefore, this court does not find any
infirmity in the impugned judgment whereby the appellants have been
held guilty for the offence under Section 498-A of IPC.
22. For convicting the accused for the offence under Section 306 of
IPC, in the considered opinion of this court, it is impossible to lay
down any strait-jacket formula in dealing with such cases and each
case has to be decided on the basis of its own facts and circumstances.
For ready reference Section 306 is reproduced as under:
306. Abetment of suicide.--If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine.
23. The ingredients of abetment are set out in Section 107 of IPC
which reads as under:
"107. Abetment of a thing - A person abets the doing of a
thing, who-First- Instigate 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."
24. From the facts of the present case, this court finds that there is
no direct evidence adduced by the accused-appellants having abetted
Sabri into committing suicide. More so, as per the prosecution case,
the death of the deceased Sabri is not within 7 years of marriage,
therefore, Section 113-A of Evidence Act cannot be applied in the
peculiar facts of the present case. Perusal of the depositions of relevant
witnesses, i.e. Complainant (PW-5) which is duly corroborated by the
depositions of PW-2 and PW-6 reveals that there was a demand of
Rs.20,000/- and a motor cycle and payment of Rs.5,000/- to the
appellants but there was not even a whisper in their depositions that
they have abetted the deceased to commit suicide. In such a situation,
holding the appellant - Muslim guilty for the offence punishable
under Section 306 of IPC is wholly unjustified. Accordingly, the
impugned judgment to the extent it holds the appellant - Muslim
guilty for the offence punishable under Section 306 of IPC is set aside.
However, the impugned judgment with regard to holding the
appellants guilty for the offence punishable under Section 498-A of
IPC is upheld.
25. Now coming to the order on sentence, this court observes that
the appellant-Muslim has been sentenced to undergo rigorous
imprisonment for four years and appellant - Yusuf has been sentenced
to undergo rigorous imprisonment for one year for the offence under
Section 498-A of IPC. This court also finds a nominal roll of the
appellant - Muslim on record, which reveals that he has already
undergone the sentence for 3 years, 11 months and 7 days.
Considering the fact that the appellants are on bail since 09.07.2001;
and the appellant-Muslim is physically handicapped, has a family of
two children, wife and aged parents to support; and that they have
already faced the agony of trial of this case for about 26 years, this
court is of the considered opinion that in the peculiar facts and
circumstances of the present case, the ends of justice would be met if
the sentence awarded to the appellants for the offence under Section
498-A of IPC, by the learned Additional Sessions Judge is reduced to
the period already undergone by them. It is ordered accordingly.
26. Resultantly, the appeal filed by the appellants is partly allowed
to the extent that the appellant - Muslim is discharged for the offence
punishable under Section 306 of IPC. However, the conviction of both
the appellants for the offence under Section 498-A is upheld.
Consequently, the order on sentence imposed upon the appellant -
Muslim is modified to the period already undergone by him.
27. The appellants are on bail. Their bail bonds and sureties are
discharged. They are set free in the present case.
28. A copy of this order should be sent to the Trial Court for
information and necessary steps.
29. With aforesaid directions, the present appeal is disposed of.
(P.S.TEJI)
JUDGE
MARCH 08, 2017
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