IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No.167/2017 CNR No.DLST01-002407-2017 FIR No.418/16 U/s: 498A/304B/302/34 IPC Police Station : Fatehpur Beri State Vs. 1. Saif Ali Khan s/o Shahid 2. Zahida w/o Shahid 3. Shahir Khan @ Shahid s/o Fattu All R/o Khasra No.156, near Badi Maszid Chandanhulla village, New Delhi .... Accused Date of Committal : 25.03.2017 Final arguments heard on :25.01.2019 Judgment pronounced on :25.01.2019 JUDGMENT
1. In this case, accused faced trial for the charge of offences punishable u/s 498A/304B/302/34 IPC on the accusation of murder/dowry death of deceased Aarisha, who was the wife of accused no.1 and daughter in law of accused no.2 and 3.
FIR No.418/16 Page No.1/36 State vs. Saif Ali Khan Prosecution case as per charge sheet
2. The brief facts of the case as emanating from chargesheet are as under :-
That on 25.08.2016, pursuant to a DD no.23B, SI Surender Singh with Ct. Rajesh reached Max Hospital Saket where they found patient Aarisha w/o Saif Ali Khan admitted in the hospital vide MLC No. 4854/16. The patient was declared unfit for statement. Upon inquiry, parents of Aarisha were not found to be in a position to give their statements. No eye witness was found in the hospital. The inquiry revealed that even the house of the patient where she was living, was also lying locked. However, the IO came to know from the aunt of the patient namely Jahanara that deceased was married to accused Saif Ali Khan in the year 2012 and she was ill treated in her matrimonial house. Considering said circumstances, IO informed SDM Mehrauli who accordingly, directed Executive Magistrate, Mehrauli to conduct the proceedings. In the midnight, DD no.40A dated 25.08.2016 was received regarding death of the deceased. Pursuant to said information, IO again visited Max hospital on 26.08.2016 and as per the instruction of Executive Magistrate, he got the dead body of deceased identified through her family members. After receiving the dead body, IO got the same preserved in AIIMS hospital mortuary. Thereafter, executive Magistrate visited hospital where he recorded statement of uncle of deceased namely Jahangir and asked the IO to get the postmortem of the deceased conducted. The dead body was identified by the relatives of the deceased and thereafter, IO conducted the inquest proceedings and got the postmortem conducted on the dead body of deceased. After postmortem, dead FIR No.418/16 Page No.2/36 State vs. Saif Ali Khan body was handed over to the family members of the deceased.
2.1. During investigation, IO collected the exhibits, seized them and got them deposited with the Malkhana. On 27.08.2016, as per the instructions of Executive Magistrate, IO visited the house of deceased Aarisha where Executive Magistrate was also present and he recorded the statement of father of the deceased namely Anwar Hussain, mother of deceased namely Smt. Mahajabeen and the cousin sister of the deceased namely Ms. Alifia. Thereafter, Executive Magistrate also inspected the spot. Crime Team, South District was also called at the spot and photographs of the place of incident were taken. IO as per the instructions of crime team, lifted the exhibits, took them into police possession and got them deposited in the Malkhana. Thereafter, as per the directions of Executive Magistrate, the FIR was registered on the basis of statement of deceased’s mother Smt. Mahajabeen.
2.2. As per the statement of the complainant, which is available on record as Ex. PW7/D, deceased Aarisha was married to accused Saif Ali Khan in June, 2012 and after marriage, deceased started living in her matrimonial house with her husband, mother in law and father in law at Khasra No.156 near Badi Masjid, Chandanhula village. At the time of marriage, deceased’s parents gave her dowry to the best of their capacity and Rs.1.5 lakhs alongwith household articles, jewellery etc. were given in the marriage. After 6-7 months of the marriage, the in laws of deceased started raising demand of a car and pursuant to said demand, parents of deceased had given one golden colour second hand Santro car. In the year 2014, a motorcycle FZ Yamma was also given to the in laws of the deceased and at that FIR No.418/16 Page No.3/36 State vs. Saif Ali Khan time also, they had raised demand for money which was fulfilled by the parents of deceased. However, despite that, just after two months of marriage, the husband and in laws of deceased had started subjecting her to cruelty and harassment and on account of said quarrel, the mother in law and father in law of deceased shifted to a separate house near Saraswati Farm, Chandanhula but, even after shifting there, they used to visit deceased everyday and used to quarrel with her and subject her to beatings. On the intervening night of 24/25.08.2016, at about 2:30 am, Alifia through telephone informed that Aarisha (since deceased) was lying unconscious in her house and she (Alifiya) had taken her (deceased) to Manchanda hospital. Alifia asked the parents of deceased to visit Manchanda hospital and accordingly, complainant and her son visited said hospital and came to know that deceased had been shifted to Safdarjung hospital where she was treated for sometime but her condition deteriorated and thereafter, in the morning at about 7:00- 8:00 am, deceased was shifted from Safdarjung hospital to Max hospital where she was declared dead in the intervening night of 25/26.08.2016 and the cause of death was reported to be poisoning. Complainant alleged that in furtherance of their demand for dowry, husband and in laws of deceased killed her by administering her poison. Complainant requested for necessary legal action against the culprits.
2.3. On the basis of PM report of deceased and aforementioned statement of deceased’s mother, FIR u/s 498A/304B IPC was registered and further investigation of the case was handed over to the same IO.
FIR No.418/16 Page No.4/36 State vs. Saif Ali Khan
2.4. During investigation, IO recorded the statement of father and the cousin sister of the deceased u/s 161 Cr.P.C. On 16.09.2016, IO also got the statement of witness Alfia recorded u/s 164 Cr.P.C. before Ld. Magistrate Ms. Rajat Goyal in Saket Court and collected the copy of the same.
2.5. As per the contents of statement u/s 164 Cr.P.C. of said witness, the deceased was the daughter of maternal uncle of Alifia. The deceased got married with the son of paternal uncle of Alifia namely Saif Ali Khan. After marriage, the husband, mother in law and father in law of deceased started subjecting her to harassment on account of dowry and the noises of frequent quarrels used to be heard even in the house of Alifia. On 24.08.2016, at about 12:30 am, Alifia heard the noise from the house of deceased Aarisha and when she (Alifia) peeped from the window of her room, she saw that her uncle, aunt and cousin brother Saif Ali Khan were trying to forcibly administer something to Aarisha. At that time, they all four (deceased, her husband and her in laws) were in balcony and the face of Aarisha was towards Alifiya while the back of all the three accused was towards Alifiya. When Alifiya turned to enter inside, she heard the scream of Aarisha. Alifiya immediately went back to the window and saw that her parental aunt, uncle and Saif had fled away from there while deceased Aarisha was sitting in the balcony and she was vomiting at that time. Alifiya rushed towards deceased. After she reached there, the deceased told him that her husband, father in law and mother in law had made her to eat something and she asked Alifiya to take her to hospital as she was not feeling well. Accordingly, Alifiya made her (deceased) sit on her scooty and tied the deceased with her dupatta and took her to Nannda, Manchanda hospital. From FIR No.418/16 Page No.5/36 State vs. Saif Ali Khan there, she also called deceased’s mother and other family members and after they reached there, Alifiya came back to her house.
3 During investigation, IO sent the exhibits to FSL for the purpose of examination. IO made efforts to arrest the accused but they were absconding from their house. As a consequence, IO initiated PO proceedings against them. On 08.12.2016, all the three accused surrendered before the concerned court and were subsequently, arrested by the IO.
4. After completion of investigation, IO filed the charge sheet on 10.03.2017 and placed all the three accused in column no.11 and brother in law of the deceased namely Isrile s/o Fattu in column no.12 of the chargesheet. Ld. Magistrate took cognizance in the matter and summoned the three accused kept in the column no.11. After compliance of Section 207Cr.P.C., Ld. Magistrate committed the case to the court of sessions vide order dated 20.03.2017 and later on, case came to be assigned to this court, by the order of Ld. District and Sessions Judge on 25.03.2017.
5. Vide order dated 15.01.2018, charge for the offence punishable u/s 498A/302/34 IPC and in alternative charge for offence punishable u/s304B/34 IPC was framed against all the three accused to which they pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined 10 witnesses namely PW1 Mehajabeen (mother), PW2 Alifiya (cousin sister), PW3 Jahangir (uncle), PW4 Azhiruddin (brother), PW5 ASI Rajender Prasad, PW6 Ct.Rajesh, PW7 MK Bharti, PW8 Dr. Manjari FIR No.418/16 Page No.6/36 State vs. Saif Ali Khan (autopsy surgeon), PW9 SI Ajay, PW10 SI Surender Singh.
7. PW1/Mehajabeen has deposed that she had three children, one daughter namely Arisha (since deceased) and two sons namely Azhruddin and Ayaan. Her daughter Arisha got married to accused Saif Ali Khan in June 2012. Accused Saif Ali and her daughter were known to each other prior to their marriage. After the marriage her daughter Arisha started living at her matrimonial home at Khasra no.156 in the same village alongwith her husband and mother in law, father in law, brother in law (devar) namely Kaiffi and her sister in law (nanad) namely Sheenam. She was staying well in the said house and she never made any complaint about her harassment or ill treatment by her husband or by her inlaws. After 2-3 months of marriage of her daughter, her aforesaid inlaws shifted to their other house in the same locality and her daughter and her husband i.e. accused Saif Ali continued residing in the same house.
7.1 PW1 further testified that in the month of August 2016, she had received an information from Alifiya, who was the cousin of accused Saif Ali and she informed that her (PW1’s) daughter Arisha was not well and she was being taken to Manchanda Hospital. On receipt of this information, PW1 alongwith her son Azhruddin rushed to Manchanda hospital. When they reached near Nanda hospital which is situated near Manchanda hospital, they met Alifiya, who was taking her daughter to Manchanda hospital on her scooty. Her daughter was unconscious and they straightaway took her daughter to Safdarjung hospital by TSR. Her daughter was examined by the FIR No.418/16 Page No.7/36 State vs. Saif Ali Khan doctor and they were informed that her BP was very low. They asked about the condition of her daughter and were informed that they would tell after thorough examination. On seeing condition of deceased getting deteriorated, they decided to shift her to Max hospital, Saket, where deceased was admitted in Emergency ward. PW1 was not allowed to meet her daughter in emergency ward. PW1 informed her other relatives about the condition of her daughter. PW1 then went to the house of her sister in law (nanad) Warisha, who used to live near Max hospital, Saket, as PW1 was not feeling well after seeing the serious condition of her daughter. On the next day morning her daughter expired in Max hospital during her treatment.
7.2 PW1 further deposed that she did not know how her daughter had expired. She stated that she had only come to know that deceased died due to low blood pressure. Further, as per PW1, police also came to hospital after the death of her daughter. Firstly, the inquires were not made by the police from her at that time as she was not in fit state of mind due to sudden demise of her daughter. Even thereafter, she never made any statement to the police or any other officer. But her thumb impressions were obtained by the police on a blank paper. She further deposed that she was not sure whether it was blank or something was written on it. She further deposed that as per her knowledge, her daughter was kept well by the accused persons after her marriage to Saif Ali Khan. She further deposed that she had never heard from her daughter about any cruelty committed upon her nor she ever made any complaint to the police or to any officer in that regard after the death of her daughter.
FIR No.418/16 Page No.8/36 State vs. Saif Ali Khan 7.3 Since this witness (PW1) resiled from her earlier
statement recorded u/s 161 Cr.PC, she was cross examined by Ld. Addl. PP with the permission of court. During her cross examination by Ld. Addl.PP, PW1 admitted that in the marriage of her daughter she had given cash worth Rs.1,51,000/-, household articles and jewelery about 12 tolla of gold and half kgs. of silver. However, upon being confronted with her statement Ex.PW1/PX from portion point A to A,B to B, C to C, D to D and E to E, she categorically denied that she had made statement Ex.PW1/PX to SDM Shri MK Bharti or that she had put her thumb impression at point X. She further denied that in her complaint to the SDM, she had told that after 6-7 months of marriage of her daughter Arisha, her inlaws made a demand of car or that they had given a second hand Santro car to them. She further denied that in the year 2014, one motorcycle FZ Yamaha was also given by them to the inlaws of her daughter. She further denied that whenever demand of money was made by inlaws of her daughter they had given them money. She further denied that despite having fulfilled all the demands made by inlaws of her daughter, her husband, mother in law and father in law started ill treating her just after two months of her daughter’s marriage and started quarreling with her and beating her. She further denied that even after shifting to the other house, the inlaws of her daughter used to come to her house and used to quarrel with her or beat her.
7.4 PW1 further deposed that she did not remember the time when she received the phone call of Alifiya, though, she (PW1) she admitted that she received the phone call on the intervening night of 24-25.08.2016. She again said that said phone call was received by FIR No.418/16 Page No.9/36 State vs. Saif Ali Khan her at about 2.30am. On being confronted with statement Ex.PW1/PX from portion F to F, PW1 categorically denied that in her complaint to the SDM, she had told that she was informed by Alifiya that her daughter Arisha was lying unconscious in her house. However, PW1 admitted that she shifted her daughter from Safdarjung hospital to Max Hospital, Saket at 7-8am and that her daughter expired in Max hospital, Saket in the midnight of 25-26.08.2016. Upon being confronted with statement Ex.PW1/PX from portion G to G, PW1 denied that in her complaint to the SDM, she had told that her daughter died due to poison and her husband, mother in law and father in law had given her poison at her matrimonial home on account of dowry demand or that she later requested to take action against them. She denied that her thumb impressions were not obtained on any blank paper or that she made statement Ex.PW1/PX which was recorded by the SDM and then only she had put her thumb impression on the same at point X.
7.5 On being confronted with her statement Ex.PW1/PX1 from portion A to A, B to B, PW1 denied the suggestion that police had made inquiries from her and she had told the police that on 27.08.2016 when she had made her earlier statement, she was not well due to death of her daughter and therefore, she could not narrate all the facts. She further denied that Chaudhary Israil, who was the elder brother of father in law of her daughter also used to support them or instigate them for raising demand for dowry or to harass her daughter or that instead of pacifying them, he used to compel them to fulfill their demand.
FIR No.418/16 Page No.10/36 State vs. Saif Ali Khan 7.6 PW1 further denied in her cross examination by ld.
Addl.PP that she was deliberately not telling true facts as she had compromised the matter with the accused persons under the pressure of other family members, though she admitted that accused persons were her relatives.
8. PW2/Alifiya is one of the most material witness of prosecution case. As per her examination in chief, Arisha was daughter of her maternal uncle and she (deceased) was married to Saif Ali Khan son of her uncle Shahid Khan in June 2012; after her marriage, she started living at her matrimonial home situated in front of her (PW1’s) house. She further deposed that she did not remember the date but in the month of August 2016, Arisha came to her at about 12-12.30am and requested her to take her to hospital as she was not well. PW1 took her to Manchanda hospital on her scooty and on reaching there, she informed mother of Arisha that Arisha was not well and asked them to come at Manchanda hospital. After sometime mother of Arisha alongwith her son reached there in Manchanda hospital and thereafter, PW2 left the hospital and reached home; on the next day, she came to know about the death of Arisha. PW1 further testified that after death of deceased police and some other officers had made inquiries from her and she narrated the aforementioned facts to them. Further she deposed that she did not know how deceased had died.
8.1 As PW2 also turned hostile, she was also cross examined by Ld. Addl. PP with the permission of court. During her cross examination by Ld. Addl.PP, she admitted that the date when she took Arisha to hospital was the intervening night of 24-25.08.2016. PW2 FIR No.418/16 Page No.11/36 State vs. Saif Ali Khan however, denied the suggestion that she had made a statement Ex.PW2/PX to SDM Shri MK Bharti or put her signature on the same at point X. She deposed voluntarily that her signatures were obtained on blank papers. Upon being confronted with specific portion A to A, B to B, C to C and D to D of her statement Ex.PW2/PX, she denied that in her statement to the SDM , she had told that at about 12am, she heard noises of quarrel and beatings coming from the house of Arisha as of daily routine; or that after sometime she heard voice of Arisha who called her or that she saw that Arisha had come downstairs and lying there or that when she asked her as to what was the matter she (deceased) told her that, “usei bacha le, mere pati wa saas sasur mujhe kuchh khilakar gaye hei. Mujhe bacha lei, hospital lekar chal.” She further denied that she took her to Manchanda hospital on her scooty after making her sit on the pillion rider seat by tying her on her back with dupatta or that they were refused to be attended by the staff of Manchanda hospital; or that when she took Arisha to hospital, husband and parents in law of Arisha were not present at her house or that in the morning she locked the house. She further denied that she had made statement Ex.PW2/PX or thereafter, she had put her signatures at point X on the same or that her signatures were not obtained on any blank papers.
8.3 PW2 however admitted that her statement was recorded by Ld. Magistrate on 16.09.2016. On being shown the statement of witness recorded u/s 164 Cr.PC by Ld. MM Ms. Rajat Goyal, witness identified her signatures at point X on Ex.PW2/PX1. On being confronted with statement Ex.PW2/PX1, from portion A to A, B to B, C to C and D to D, she categorically denied that she had stated said FIR No.418/16 Page No.12/36 State vs. Saif Ali Khan contents in her statement Ex.PW2/PX1 recorded by Ld. MM. She denied to have stated in her said statement that on 24.08.2016, at about 12.30am she heard noises from the house of Arisha; or that she saw from the window of her room that accused persons, who were her uncle, aunt and their son were forcibly trying to make Arisha eat something; or that at that time all of them including her cousin Arisha were present in the balcony outside their house; or that the back of accused persons was towards her but the face of Arisha was towards her’ or that as soon as she turned to enter her room, she heard shriek of Arisha or that she again saw from the window that accused persons were running outside their house and Arisha was sitting in the stairs of balcony and vomiting. She further denied to have stated in her statement recorded before Magistrate, that when she asked Arisha as to what was the matter, she was told by deceased that, ” mere pati wa saas sasur mujhe kuchh khila gaye hei. Mujhe hospital lekar chal, meri halat thik nahi hai.”
8.4 PW2 further denied the suggestion that statement Ex.PW2/PX1 was recorded by Ld. MM as per the facts disclosed by her or that those facts were true facts or that she was deposing falsely under the pressure of her family members and relatives in order to save the accused persons being her relatives.
8.5 PW2 further denied to have informed police that on 29.08.2016 at about 12am, she had heard noises of quarrel and beatings coming from the house of Arisha as a daily routine or that after sometime she heard voice of Arisha who called her or that she saw that Arisha had come downstairs and lying there or that when she asked her as to what was the matter she told her that, “usei FIR No.418/16 Page No.13/36 State vs. Saif Ali Khan bacha le, mere pati wa saas sasur mujhe kuchh khilakar gaye hei. Mujhe bacha lei, hospital lekar chal.” or that she took her to Manchanda hospital on her scooty after making her (deceased) sit on the pillion rider seat and tying her on her back with dupatta or that the staff of Manchanda hospital refused to attend them or that she informed mother of Arisha who reached at hospital alongwith her son Azhruddin or that they took Arisha to Safdarjung hospital or that she (PW2) returned home thereafter or that when she took Arisha to hospital, husband and parents in law of Arisha were not present at her house or that in the morning she(PW2) locked the house. She further denied that said facts were true facts or that she was now deposing falsely under the pressure of her family members and relatives in order to save the accused persons being her relatives.
9. PW3/Jahangir has deposed that Arisha(deceased) was daughter of his elder brother Shri Anwar Hussain. She was married to accused Saif Ali Khan in the month of June 2012 as per muslim rites and customs. At the time of her marriage, his brother had given cash Rs.1.5lacs and gold jewellery about 10-12 tolas in her marriage. After marriage, Arisha started living at her matrimonial home alongwith her husband Saif Ali Khan and her inlaws. PW3 further deposed that he did not know exactly about inlaws who were residing with her(deceased) in her matrimonial home at Chandan Hula, Mehrauli but after 1 or 2 months of marriage, deceased’s parents in law shifted to another accommodation in the same locality. PW3 further deposed that whenever he met his elder brother, he(brother of PW3) used to tell him (PW3) that Arisha was living happily at his matrimonial home and he never came across any complaint about her (deceased’s) FIR No.418/16 Page No.14/36 State vs. Saif Ali Khanharassment at the hands of accused persons.
9.1 PW3 further deposed that on 25.08.2016, at about 2.30- 3pm, he received a phone call of his sister Jahanara, who informed him that Arisha was admitted at Max hospital so he should visit him. He went there to inquire about her well being. He reached at the hospital and found Arisha on ventilator, and her mother and other relatives were also present in the hospital. On the same day at about 5-6pm, Arisha was declared dead by the doctor at Max hospital. On the next day i.e. on 26.08.2016, while he was present at AIIMS hospital alongwith his nephew Shahbaaz Khan, one SDM or senior officer whose name he did not remember met them and made inquiries from him about Arisha and her matrimonial home or where she was staying after the marriage etc. SDM and said senior officer made inquiries from him for about 15-20 minutes, he did not remember if the facts disclosed by him to SDM were recorded at that time or not. On 27.08.2016, when they had gone to collect the body of Arisha after the postmortem, the said senior officer again met him there and his signatures were obtained on some blank papers. The dead body of deceased was identified at AIIMS mortuary vide memo Ex.PW3/A bearing his signature at point A.
9.2 Since this witness also resiled from his earlier statement recorded u/s 161 Cr.PC, he was cross examined by Ld. Addl. PP with the permission of court. During his cross examination by Ld. Addl.PP, he admitted his signature at point A on statement Ex.PW3/PX. He however denied that on 26.08.2016 when inquiries were made from him by the SDM and the facts disclosed by him were recorded in the FIR No.418/16 Page No.15/36 State vs. Saif Ali Khan said statement Ex.PW3/PX.
9.3 Upon being confronted with specific contents of his statement Ex.PW3/PX, he denied to have stated in said statement that after one or two months of the marriage of Arisha, accused persons i.e. her husband and inlaws started demanding money for the construction of a house or that her jewelery was also taken from her and kept by them or that they started quarreling with Arisha; or that a complaint regarding harassment of Arisha by her husband and inlaws was made to PS Fatehpur Beri; or that accused persons again demanded money for the construction of a house in a vacant plot of land situated on the main road; or that his sister Jahanara had come to know from Arisha about the harassment or cruelty committed upon her by her husband and inlaws; or that his sister Jahanara had heard noises of quarrel in the matrimonial home of Arisha at about 1am on the intervening night of 24/25.08.2016; or that he after sometime of the noises of quarrel, his niece Alfiya daughter of Jahanara saw Arisha in the stairs of her matrimonial home while shouting or that Arisha told Alfiya that her husband and her inlaws had forcibly put something in her mouth to eat due to which she was not feeling well; or that deceased requested Alfiya to take her to hospital. He further denied to have requested SDM in his statement that action be taken against deceased’s husband and her inlaws. PW3 however identified the accused persons in court to be husband and inlaws of Arisha. He also admitted that accused persons were her close relatives. PW3 further admitted that house of his sister Jahanara was near to the matrimonial home of Arisha.
FIR No.418/16 Page No.16/36 State vs. Saif Ali Khan
10. PW4/ Azhruddin brother of Arisha deposed that his elder sister Arisha got married to accused Saif Ali Khan in June 2012. After the marriage, Arisha started living at her matrimonial home at Khasra no.156 near Baddi masjid, Chandhula, Mehrauli alongwith her husband and mother in law, father in law, brother in law (devar) namely Kaiffi and her sister in law (nanad) Sheenam. At the time of her marriage his father had given cash Rs.1.5 lacs and gold jeweleries about 12 tollas. After 2-3 months of marriage of his sister, her aforesaid inlaws shifted to their other house in the same locality and his sister and her husband i.e. accused Saif Ali continued residing in the same house. He further deposed that whenever he met his sister, he always found her happy. He never heard about any harassment or cruelty upon deceased by her husband or inlaws. He further deposed that he did not know if the accused persons ever raised any demand of money or any other articles.
10.1. PW4 further deposed that on the intervening night of 24/25.08.2016 at about 2-2.30am his mother received a phone call from Alfiya, who is cousin of accused Saif Ali and she informed that his sister Arisha was not well and she was being taken to Manchanda Hospital. On receipt of this information, he alongwith his mother rushed to Manchanda hospital. When they reached near Manchanda hospital Alfiya alongwith his sister met there, they took his sister to Safdarjung hospital by TSR. He further deposed that his sister was examined by the doctor but he did not know about the treatment given to his sister by the doctor as he was outside the room. They took her to Max hospital, Saket, where his sister was admitted in emergency but he was not allowed to meet his sister in emergency FIR No.418/16 Page No.17/36 State vs. Saif Ali Khan ward. Further that his sister expired in Max hospital during treatment. PW4 further deposed that he does know anything else. Further that his statement was not recorded by the police, though the police might have made inquiries from his parents.
10.2 Since this witness also resiled from his earlier statement recorded u/s 161 Cr.PC, he was cross examined by Ld. Prosecutor with the permission of court. During his cross examination by Ld. Addl. PP, PW4 denied that police had had made inquiries from him and facts disclosed by him were recorded in his statement Ex.PW4/PX. On being confronted with statement Ex.PW4/PX from portion A to A, B to B, C to C and D to D, he denied that he had told the police that after 6-7 months of marriage of his sister Arisha, her inlaws made a demand of car or that they had given a second hand Santro car to them; or that in the year 2012 one motorcycle FZ Yamaha was also given by them to the inlaws of his sister; or that accused persons i.e. husband of his sister and her inlaws demanded Rs.7-8 lacs to construct a house or that when they refused to fulfill their demand, his sister Arisha was beaten up or harassed by the accused persons: PW4 categorically denied that his sister Arisha died due to poison given to her by her husband and her inlaws. PW4 further denied that he was deliberately not telling true facts of this case as he had compromised the matter with the accused persons under the pressure of other family members. PW4 however, admitted that accused persons present were his relatives.
11. PW5/ASI Rajender Prasad is the duty officer. As per his version, on 29.08.2016, he was posted at PS Fatehpur Beri and was working as duty officer from 4 PM to 12 midnight. At about 11 PM, SI FIR No.418/16 Page No.18/36 State vs. Saif Ali Khan Surender handed over him one Rukka for registration of FIR. On the said rukka, he got registered FIR no.418/16 through computer operator. Printout of the same is Ex.PW-5/A. He made endorsement Ex.PW5/B on the rukka and sent the original FIR and copy of Rukka to SI Surender. He also issued certificate Ex.PW5/C u/s 65-B of The Indian Evidence Act regarding correctness of the printout of FIR.
12. PW6/Ct. Rajesh has deposed that on 25.08.2016, he was on emergency duty with SI Surender Singh. On that day, SI Surender Singh received DD no.23B regarding admission of patient Arisha wife of Saif Ali Khan at Max hospital. On receipt of that information, he alongwith SI Surender Singh reached at the Max hospital. The doctor declared the injured on her MLC as unfit for statement. The parents of Arisha did not meet them in the hospital. The relative of Arisha namely Jahanara however, met them in the hospital. She informed that the parents of Arisha were not in a position to make any statement. Jahanara further informed them that Arisha was married to Saif Ali Khan in the year 2012 and she was being harassed by her husband and inlaws due to dowry demand. PW6 further deposed that said fact was told to SHO and SDM Mehrauli and SDM informed that Executive Magistrate Shri Manoj Kumar would look into the matter but despite efforts he could not be contacted. They then returned to the police station. Thereafter, the information was received at PS vide DD No.40A regarding death of Arisha at Max hospital. His statement to that effect was recorded.
13. PW7/M.K.Bharti has deposed that on 26.08.2016, while he was posted as Executive Magistrate, Mehrauli, he received an information regarding death of a lady namely Arisha within seven FIR No.418/16 Page No.19/36 State vs. Saif Ali Khan years of her marriage. On receipt of that information, he reached at AIIMS hospital. On reaching there, he found local police of PS Fatehpur Beri present there and he made inquiries from him. PW7 further deposed that he also found Sh. Jahangir, uncle of deceased who identified the dead body of Arisha. As per PW7, he recorded statement of Shri Jahangir as per the facts disclosed to him vide statement Ex.PW3/PX, bearing his signature and seal at point X. Thereafter, he made a request letter Ex.PW7/A for the postmortem on the body of deceased Arisha vide which he also authorized SI Surender Singh of PS Fatehpur Beri to collect the dead body of deceased and to hand over the same to its relatives after postmortem.
13.1 PW7 further deposed that on 27.08.2016, he had recorded statement of Smt. Mehajabin, mother of deceased as Ex.PW1/PX bearing his seal and signature at point B. On the same day, PW7 also recorded statement of Shri Anwar Hussain Ex.PW7/B, father of deceased bearing his signature and seal at point A. The said statement was also signed by Shri Anwar Hussain in his presence at point B. On the same day, he also recorded statement of Ms. Alfia daughter of Shri Muslim Khan, same is already exhibited as Ex.PW2/PX bearing his signature and seal at point B.
13.2 PW7 further deposed that on 29.08.2016, Shri Anwar Hussain father of deceased and Smt. Mehajabin mother of deceased again came to his office and both of them made supplementary statements Ex.PW7/C and Ex.PW7/D respectively, bearing his signature and seal at point A. After recording aforesaid statements, he FIR No.418/16 Page No.20/36 State vs. Saif Ali Khan recommended criminal action as per law vide his letter Ex.PW7/E, bearing his signature at point A.
14. PW8/ Dr.Manjari has deposed that on 25.08.2016, she was working as Senior Resident, Department of Medicine at Safdarjung hospital. On the said date, Ms. Arisha aged about 19 years female was brought to the hospital with alleged history of ingestion of some unknown substance about one and half hours back. She examined her and after her examination she prepared her MLC Ex.PW8/A bearing number 2091/39/16 at about 2.25pm. After examination, she referred the patient to ward A.
15. PW-9/SI Ajay has deposed that on 27.08.2016, on receipt of information through wireless,he alongwith photographer Ct. Jaiveer and ASI Sandeep Rawat had gone to Khasra No.156, near Badi Masjid, Chandan Hulla, where IO SI Surender Kumar and other senior officer and police staff were present. He further deposed that at first floor of the aforesaid house, Ct. Jaiveer took the photographs of the spot at the instance of IO. PW9 inspected the scene of crime and the floor of the room was wet/damp. He found one suicide note which was found on bed. He prepared the crime team report Ex.PW9/A bearing his signature at point A.
16. PW10/SI Surender Singh has deposed that on 25.08.2016, he was posted as a sub inspector at PS Fatehpur Beri. On that day, he received an information from Max hospital vide DD No.23B, Ex.A1. Thereafter, he alongwith Ct. Rajesh reached at Max hospital and collected the MLC of patient Arisha and on the MLC, doctor declared FIR No.418/16 Page No.21/36 State vs. Saif Ali Khan her unfit for statement. He made inquiry from Jahanara in the hospital, who stated that parents of Arisha were not in a position to give their statement. During inquiry Jahanara disclosed that marriage of Arisha had taken place in 2012 and there was some matrimonial dispute between Arisha and her husband. PW10 further deposed that he informed the senior police officials regarding admission of Arisha in the hospital in suspicious condition. Thereafter, he came back to the police station and on that day he had not contacted SDM.
16.1. PW10 further deposed that on the same day, in the night at about 11pm, he received an information from Max hospital regarding death of deceased Arisha. On 26.08.20916, he went to Max hospital alongwith staff and he informed the SDM/Executive Magistrate concerned regarding death of deceased Arisha. He removed the dead body of deceased to mortuary of AIIMS hospital for postmortem of the dead body. SDM/Executive Magistrate Sh. MK Bharti met him at AIIMS hospital. The Executive Magistrate recorded the statement of Jahangir Alam Ex.PW2/PX. PW9 further deposed that he was also authorized by Executive Magistrate for getting postmortem conducted on the dead body of deceased. The dead body of the deceased was identified by Jahangir Alam and other relatives of the deceased. He recorded their statements Ex.PW2/A and Ex.PW10/A regarding identification of dead body of deceased bearing his signature at point B. He got conducted the postmortem of deceased and collected sealed parcel of the exhibits from the doctor concerned pertaining to postmortem of deceased and seized them vide seizure memo Ex.PW10/B bearing his signature at point A. Dead body was handed over to the relatives of the deceased. Thereafter, FIR No.418/16 Page No.22/36 State vs. Saif Ali Khan PW10 came back to police station and deposited the seized exhibits in the malkhana. On 27.08.2016, he went to the house of deceased for inquiry, where Executive Magistrate Sh. MK Bharti met him, he recorded the statement of Mehajabin, Anwar Hussain and Alfia as Ex.PW1/PX, Ex.PW7/B and Ex.PW2/PX respectively. Thereafter, he alongwith Executive Magistrate and police staff reached at the spot. He inspected the place of occurrence and called the crime team at the spot. Photographs of scene of crime were taken by the photographer of crime team from different angles. PW10 further stated that he had also collected the suicide note Ex.PW10/P1 and seized the same in this case vide seizure memo Ex.PW10/C bearing his signature at point A. He further deposed that later on, the contents of the said suicide note was translated in Hindi version which is Ex.PW10/P2. Thereafter, he came back to the police station and Executive Magistrate proceeded towards his office.
16.2 PW10 further deposed that on 29.08.2016, he received a letter from Executive Magistrate Ex.PW7/E alongwith statements of Anwar Hussain Ex.PW7/B and Ex.PW7/C and statements of Mehajabin Ex.PW1/PX & Ex.PW7/D and statement of Alfia Ex.PW2/PX with the direction to take the necessary action as per law. Thereafter, he prepared rukka Ex.PW10/D on said statement of Mehajabin already exhibited as Ex.PW1/PX and got registered the case. As per directions of SHO, further investigation was also marked to him. He collected the copy of FIR Ex.PW5/A alongwith certificate u/s 65 B Ex.PW5/C from the duty officer.
16.3 PW10 further deposed that on 29.08.2016, he prepared FIR No.418/16 Page No.23/36 State vs. Saif Ali Khan
the site plan Ex.PW10/E of place of occurrence at the instance of father of deceased and same bore his signature at point A. Thereafter, he came back to the police station and recorded supplementary statement of deceased’s father Anwar Hussain. During investigation, he also recorded statement of brother of deceased and other witnesses.
16.4 PW10 further deposed that on 16.09.2016, he sent witness Alfiya alongwith SI Manju for recording statement of Alfiya u/s 164 Cr.PC. The statement of Alfiya was recorded by the Ld. MM and copy of statement was collected by SI Manju and she came back to the police station and copy of statement of Alfia Ex.PW10/F, recorded u/s 164 Cr.PC was handed over to him. He tried to search the accused persons but they could not be traced on that day. He collected the PM report of deceased and sent exhibits to the FSL. As the accused persons were absconding therefore,he got conducted the proceedings u/s 82 Cr.PC against them.
16.5 PW10 further deposed that on 08.12.2016, all the three accused surrendered before Ld. MM Saket. He interrogated above said accused persons with the permission of court and arrested them in this case. He prepared arrest memo of Saif Ali Khan, Sabir Khan and Jahida Khan as Ex.A8, Ex.A9 and Ex.A10 respectively. He prepared personal search memo of said accused vide memo Ex.PW10/G, Ex.PW10/H and Ex.PW10/I bearing his signature at point A. He recorded disclosure statement of accused persons Saif Ali, Sabir and Jahida Khan vide memo Ex.PW10/J, Ex.PW10/K and Ex.PW10/L respectively bearing his signature at point A. He obtained one day FIR No.418/16 Page No.24/36 State vs. Saif Ali Khan police custody of above accused persons. Thereafter, they came back to the police station. He recorded supplementary statement of accused Saif Al, Sabir Khan and Jahida vide memo Ex.PW10/M, Ex.PW10/N and Ex.PW10/O respectively bearing his signature at point A. PW10 correctly identified all the accused.
16.6 PW10 further deposed that he had also prepared the pointing out memo Ex.PW10/P of the place of occurrence at the instance of accused persons bearing his signature at point A. Next day, he produced all the accused before the court and sent them to JC.
16.7 PW10 further deposed that during investigation he also seized the CCTV footage in Pen drive alongwith DVR which were handed over to him by Arif Khan who is neighbour of accused persons vide seizure memo Ex.PW10/Q bearing his signature at point A and signature of Arif at point B, Certificate Ex.PW10/R u/s 65 B of Indian Evidence Act was given by Arif regarding authenticity of the CCTV Footage. Pen drive of the CCTV footage is Ex.PW10/S. He further proved the DVR, while seizure of same was not disputed. After completion of investigation, PW10 prepared chargesheet and filed the same in the court.
16.8 PW10 further deposed that during trial, he had submitted the photographs of place of occurrence taken by the crime team and crime team report before the court. FSL report Ex.A7 and scaled site plan Ex.PW10/T & Viscera report Ex.A-11, were submitted by SI Vikas Rana.
FIR No.418/16 Page No.25/36 State vs. Saif Ali Khan
17. During trial, following documents were admitted u/s 294 CrPC and formal proof of said documents was dispensed with.
1. DD No.23B dated 25.08.2016 PS Fatehpur Beri, Ex.A1.
2. DD No.42B dated 25.08.2016 PS Fatehpur Beri,Ex.A2.
3. DD No.19B dated 26.08.2016 PS Fatehpur Beri, Ex.A3.
4. DD No.55B dated 26.08.2016 PS Fatehpur Beri, Ex.A4.
5. PM Report No.1167/60 dated 26.08.2016,Ex.A5.
Subsequent opinion dated 25.08.2017 of Dr. Krishna Kumar Singh, Ex.A6.
6. FSL report No.2017/C-48 dated 31.05.2017, Ex.A7.
7. Arrest memo of accused Saif Ali Khan, Ex.A8, arrest memo of accused Sahir Khan, Ex.A9 and arrest memo of accused Zahida, Ex.A10.
8. Result of viscera, Ex.A11
9.. Statement of Alfia u/s 164 Cr.PC Ex.PW2/PX1 Statement u/s 313 Cr.P.C.
18. After completion of evidence, statements u/s 313 Cr.P.C. of all the accused persons were separately recorded wherein all the incriminating evidence which had come on record during trial was put to them but, the same was denied by them as wrong and incorrect. All the accused came up with the plea that at the relevant time, they were not living with the deceased and residing separately.
19. Ld. Defence Counsel has vehemently argued that prosecution has miserably failed to prove the charges against any of the accused as the deceased’s mother PW1 Mehajabeen and her FIR No.418/16 Page No.26/36 State vs. Saif Ali Khan cousin sister PW2 Alifiya, PW3 Jahangir (uncle of deceased) and PW4 Azhruddin (brother of deceased) were the most material witnesses of the prosecution case but, none of said witnesses supported the prosecution case as they all have turned hostile and they completely disowned the allegations raised by them in their statements made before SDM and police and came up with a contrary version by saying that no demand of dowry was ever raised from the deceased by any of the accused persons nor the accused ever subjected the deceased to any cruelty in furtherance of any demand of dowry. It is further argued that there is no iota of evidence to prove the essential ingredients of demand of dowry or cruelty in furtherance thereof soon before death for establishing the charges of u/sec 304B IPC.
19.1 Counsel further alleged that for the charge of section 302 IPC, the prosecution case wholly rested on the statement of alleged eye witness Alifiya but, she has not raised even a single allegation against any of accused with regard to said offence and she completely resiled from her alleged statement recorded by SDM, police and Ld. MM u/sec 164 Cr.PC. She categorically denied having seen any of said accused persons with deceased on the fateful night. And as per her testimony, deceased had come to her at 12-12.30am and requested her to take her to hospital as she was not feeling well. There is no iota of allegation in her deposition before court that she had seen any of the accused administering anything to Arisha on the fateful night. As such, the whole case of the prosecution has remained unestablished for lack of any evidence.
19.1. It is further argued that presumption of Section 113 B IPC FIR No.418/16 Page No.27/36 State vs. Saif Ali Khan is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry that too when she was subjected to such cruelty and harassment soon before her death that is to say there should be reasonable contiguity of death whereas prosecution has failed to bring forth any cogent or reliable evidence to prove either the demand of dowry or cruelty in furtherance thereof on the part of the accused persons.
19.2 It is further argued that the material witnesses of the prosecution case i.e. deceased’s mother PW1 Mehajabeen, her cousin sister PW2 Alifiya, PW3 Jahangir (uncle of deceased) and PW4 Azhruddin (brother of deceased) did not support the prosecution case even in their cross examination by Ld. Addl. PP and they completely disowned their version in their statements made before SDM or police.
Arguments of Ld. Addl. Public Prosecutor
20. Per contra, Ld. Addl. PP rebutted the arguments by submitting that admittedly, the deceased had died otherwise than under normal circumstances within 7 years of her marriage with accused Saif Ali Khan. It is further argued that the case was registered on 25.08.2016 on the statement of deceased’s mother Mehajabeen given before the SDM and it is only at the time of her deposition before this court on 16.03.2018 which was recorded after a gap of about two years, she deviated from her previous stand and reason for her and other relatives of deceased for resiling from their previous statement is but obvious, because they were not only related to deceased but were close relatives of accused as well and to save the accused, they all turned hostile.
FIR No.418/16 Page No.28/36 State vs. Saif Ali Khan Court's discussion
21. Before embarking upon the evidence adduced on record, I deem it appropriate to reproduce the relevant provisions of law for the sake of ready reference. As noted above, the accused were charged for the offences punishable u/s 302/34 IPC and in alternative for the offence u/s 304B/498A/34 IPC.
22. Section 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 willful 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 death (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.
304B. Dowry death.-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
Explanation. – For the purposes of this sub-section, FIR No.418/16 Page No.29/36 State vs. Saif Ali Khan ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961) (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
“Section 2 of Dowry Prohibition Act defines dowry as under:
Definition of “dowry”. – In this Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage;or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II. – The expression ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code.”
113-B. Presumption as to dowry death.-
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
23. Cruelty is defined under two clauses of Explanation to Section 498A. Clause (a) talks about willful conduct of such nature as is likely to drive a woman to commit suicide or to cause grave injury FIR No.418/16 Page No.30/36 State vs. Saif Ali Khan or danger to life, limb or health. As per clause (b), it also includes harassment of woman in furtherance of any unlawful demand for any property or valuable security or on account of failure of such woman or any person related to her to meet such demand.
24. Amar Singh vs. State of Rajasthan 2010 (9) SCC 64, Hon’ble Apex court observed as under:-
“29… what is punishable u/s 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband of the woman. It will be also clear from Section 113B of Indian Evidence Act that only when it is shown that soon before her death, a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demand of dowry, the court shall presume that such person caused death within the meaning of section 304 B IPC. The act of subjecting a woman to cruelty or harassment for, or in connection with any demand for dowry by the accused, therefore, must be established by the prosecution for the court to presume that the accused has caused the dowry death.”
25. The first ingredient of Section 304B IPC i.e. the death of a woman had occurred otherwise than under normal circumstance within 7 years of her marriage is answered in affirmative because it is not in dispute that firstly, the death of deceased was within 7 years of marriage and secondly, the same was otherwise than under normal circumstances. The questions that now fall for consideration are 1) whether the deceased was subjected to harassment or cruelty at the instance of her husband or any relative of her husband; 2) if answer to the first question appears to be in affirmative, whether that harassment or cruelty was in connection with the demand of dowry;
3) whether such cruelty or harassment if so, was subjected to the deceased soon before her death.
FIR No.418/16 Page No.31/36 State vs. Saif Ali Khan
26. The entire case of the prosecution rests upon the testimony of deceased’s mother PW1 Mehajabeen, her brother Azhiruddin i.e. PW4 and cousin sister PW2 Alfiya. The FIR was lodged on the statement of deceased’s mother i.e. PW1 recorded before SDM on 27.08.2016 and same is available on record as Ex. PW1/PX. On the same day, SDM also recorded statement of deceased’s cousin sister namely Alfiya (PW2) and uncle Jahangir (PW3) (elder brother of deceased’s father) which are available on record as Ex. PW2/PX and PW3/PX respectively. The father of deceased could not be examined in the matter, as he expired during trial of this case.
27. The case of the prosecution qua the charge of Section 302 IPC mainly rested on the testimony of PW2 Alfiya, who is cited as an eye witness, to whom, the deceased allegedly made a dying declaration. As per the PM report, the cause of the death of the deceased was due to poisoning. However, said witness PW2 Alfiya has totally turned hostile when she was examined before the court as in her examination in chief, she stated that in the month of August 2016 Arisha came to her at about 12-12.30am and requested to take her to hospital as she was not well.
28. From her examination in chief, there is no iota of allegation that deceased was administered anything by her husband or in laws. Witness Alifiya has not even talked about presence of any of said accused with the deceased on the fateful night. After the witness turned hostile, PP cross examined her at length. I have perused the cross examination of said witness wherein she has reiterated her stand taken in the examination in chief and FIR No.418/16 Page No.32/36 State vs. Saif Ali Khan categorically denied her statement Ex.PW2/PX made to SDM. Though she admitted her signatures on said statement but she categorically denied the contents of same despite being specifically put the contents of said statements by Ld. Addl. PP in the form of suggestions, in her cross examination. As per the version of PW2 Alifiya, her signatures were taken by the police on some blank paper. Though she admitted to have given statement before Ld. Magistrate u/s 164 Cr.P.C. and also identified her signatures on said statement Ex.PW2/PX1, but she categorically denied the contents of the same.
30. For the offence of Section 498A/304B, the prosecution case rested upon the testimony of the parents and other relatives of the deceased, who were examined in this case as PW1 Mehajabeen (mother of deceased), PW3 Jahangir (uncle of deceased) and PW4 Azhruddin (brother of deceased).
31. PW1 Mehajabeen, the mother of deceased, has deposed that her deceased daughter was staying well in the said house and deceased never made any complaint about her harassment or ill treatment by her husband or by her inlaws. She further deposed that she did not know how her daughter had expired. She stated that she had only come to know that deceased died due to low blood pressure. She further denied to have made any statement to police at any point of time and stated that her thumb impressions were obtained by the police on some blank papers. She further deposed that as per her knowledge, her daughter was kept well by the accused persons after her marriage to Saif Ali Khan, and she never heard from her daughter FIR No.418/16 Page No.33/36 State vs. Saif Ali Khan about any cruelty committed upon her nor she (PW1) ever made any complaint to the police or to any officer in that regard after the death of her daughter.
32. During her cross examination by Ld. Addl. PP, PW1 except admitting that at the time of deceased’s marriage, cash of Rs.1,51,000/- and household articles and jewelery about 12 tolas of gold and half kgs of silver were given, she categorically denied the other contents of her statement Ex.PW1/PX recorded by the SDM despite the contents being specifically put in her cross examination.
33. Similarly PW2 Alifiya, also did not support the prosecution case either on the allegation of murder or on the charge of dowry demand. During her cross examination by Ld. Addl.PP, she categorically denied of having heard noises of quarrel and beatings coming from the house of Arisha. She also categorically denied having told by Arisha that her husband and inlaws had left her after making her eat something or having seen from the window of her room that accused persons were forcibly trying to make Arisha eat something in the balcony outside their house or having seen accused thereafter running outside their house. She further denied to have stated in her statement recorded before Magistrate, that when she asked Arisha as to what was the matter deceased told her that, ” mere pati wa saas sasur mujhe kuchh khila gaye hei. Mujhe hospital lekar chal, meri halat thik nahi hai.”
34. Even PW3 Jahangir, who was uncle of deceased and PW4 Azhruddin brother of deceased have also turned hostile regarding demand of money or jewelery or demand of car or harassment meted FIR No.418/16 Page No.34/36 State vs. Saif Ali Khan to deceased at the hands of accused on account of said demand of dowry. Perusal of the versions of aforementioned witnesses show that they all turned hostile and did not come out with any single allegation of harassment or cruelty in furtherance of any demand of dowry against any of the accused persons. Although, the deceased had died within seven years of her marriage and she also died under suspicious circumstances but, any evidence to substantiate the essential ingredients of cruelty and harassment in furtherance of demand of dowry soon before her death, is totally lacking on record.
35. Having regard to above facts and circumstances, the prosecution has miserably failed to prove the allegations of demand of dowry or cruelty in furtherance thereof against any of the accused persons. Since the charges of Sections 498A IPC could not be established on record, there is no question of establishing charge of Section 304 B IPC.
36. With regard to offence of murder, the only evidence put forward in the chargesheet was the version of eye witness Alifiya. But, as already noted above, she turned completely hostile and did not support the prosecution case. As per record, after report of viscera, subsequent opinion of doctor was taken regarding cause of death and same is available on record as Ex.A-6. As per Ex.A-6, the cause of death was opined to be Aluminium Phosphide poisoning. As per PM report, no signs of external injury were found on the dead body of deceased. As per record, the pen drive of CCTV footage recorded in CCTV camera installed at the premises of PW Alifiya, was only with regard to plea of alibi taken in respect of accused Zahida FIR No.418/16 Page No.35/36 State vs. Saif Ali Khan and Shabir Khan, who alleged that they were residing at some other address at the time of alleged incident.
37. Having regard to aforementioned discussion I feel no hesitation in holding that prosecution has miserably failed to prove charges of any of the offences against any of the accused. Accordingly, all accused persons are acquitted from the charges of all the offences punishable u/s 302/304B/498A/34 IPC. Their earlier bail bonds and surety bonds stand cancelled and discharged. Accused persons are directed to furnish their bail bonds in terms of section 437A Cr.PC. File be consigned to record room.
Announced in open Court on 25.01.2019 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally signed by SUNENA SHARMA SUNENA Date:
SHARMA 2019.01.29 14:14:10 +0530 FIR No.418/16 Page No.36/36 State vs. Saif Ali Khan