AHMED SAYEED Vs. STATE

JUDGEMENT

(1.) AHMED Sayeed (the appellant) impugns a judgment dated 07.06.2000 of Additional Sessions Judge in Sessions Case No.15/98 arising out of FIR No.311/98 registered at Police Station Rajouri Garden whereby he was held guilty for committing offences under Section 498A/304B IPC. By an order dated 9th June, 2000, he was awarded rigorous imprisonment for seven years under Section 304 -B IPC and rigorous imprisonment for two years with fine Rs.500/ - under Section 498 - A IPC. Both the sentences were to operate concurrently.

(2.) ALLEGATIONS against the appellant were that he used to harass Ishrat, his legally wedded wife, for or in connection with dowry demands during her stay at the matrimonial home. She committed suicide on the night intervening 17/18 -05 -1998. Daily Diary (DD) No.14/A was recorded on 06.00 A.M. on 18.05.1998 at Police Station Rajouri Garden in this regard. During the course of investigation, statements of witnesses conversant with the facts were recorded. Post -mortem examination of dead body of the deceased was conducted. After completion of investigation, a charge -sheet was submitted in the court against the appellant for committing offence under Section 498A/304 -B IPC. The prosecution examined 15 witnesses to prove the appellant's guilty. In 313 statement, the appellant denied his complicity in the crime and stated that Ishrat used to remain depressed as no child was born to her. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court by the impugned judgment held the appellant guilty for the offences mentioned previously. Being aggrieved, the appellant has come in appeal.

(3.) FROM the perusal of the above findings recorded, it reveals that the Trial Court itself was not sure if soon before death Ishrat was subjected with cruelty for or in connection with dowry demands. The impugned judgment is based upon surmises and conjectures. The prosecution is required to prove the very case it alleges and the court cannot substitute its own opinion and make out a new case. It is relevant to note that the deceased's younger sister was married to the accused's younger brother and it has come on record that she was never subjected to cruelty and was living happily in the matrimonial home. The prosecution did not examine her to ascertain the conduct and attitude of the appellant towards the deceased during her stay at village Hapur. The allegations regarding the demand of dowry are vague, unspecific and uncertain. No specific date has been mentioned as to when any specified dowry article was demanded by the appellant from the deceased or her parents. PW -7 (Abdul Aziz) in the cross -examination admitted that Ishrat was kept well by the accused for one year and thereafter she was not treated well. Allegations have been leveled against the appellant that he used to have illicit relations with a lady. However, the Investigating agency could not reveal with whom the appellant had illicit relations and whether that was the provocation for the deceased to take the extreme step. The entire case of the prosecution is based upon the testimonies of PW -6 (Wahidan) and PW -7 (Abdul Aziz), the parents of the deceased, who have leveled allegations only after the deceased committed suicide. Prior to that, they had no complaint whatsoever against the appellant and his family members. During her stay at Raghubir Nagar, Delhi, she was not treated with cruelty. The Investigating Officer did not examine any witness at Hapur to prove cruelty or harassment on account of dowry demands. Admittedly, the appellant used to do his job/service in Delhi and the deceased used to live at Hapur before shifting to Delhi for about one and a half month prior to the occurrence. The prosecution has, thus, failed to establish beyond reasonable doubt that there was direct nexus between the cruelty and the suicide. The Investigating Officer did not collect the surrounding circumstances which prompted Ishrat to commit suicide. The appellant was sleeping on the roof of the house at the time of occurrence. Nothing has come in the evidence that he had instigated Ishrat to commit suicide at that moment. The evidence is lacking at this material aspect. Observations of Supreme Court in case 'Gangula Mohan