MOHAMMAD ZAMIL,MOHAMMAD ASLAM Vs. STATE OF DELHI

JUDGEMENT

(1.) By this order, I will dispose of Criminal Misc. (Main) No.2067 of 1993 (Mohammed Zamil v. State) and Criminal Misc. (Main) No. 2684 of1993 (Mohammed Aslam v. State) since they arise out of the same incident in F.I.R.No. 141/92 under Section 498A, 406 and 304-B IPC, Police Station Lahori Gate, Delhi.Mohammed Zamil is the son of Mohammed Aslam. Mohammed Zamil was married with Mehnaz Begum according to Nikah ceremonies on 4.11.1989 at Delhiand she, thereafter, was residing with her-in-laws.On 1.5.1992, D.D. No. 19A was recorded at Police Station Lahori Gate at 3.35a.m" on the basis of information from Police Control Room about giving ofinformation by someone from public call office that one woman has set herself onfire in House No. 999, Haveli Hizamuddin, Balli Maran, Delhi. Copy of this D.D.entry was given to S.I. Om Prakash, who, along with Const. Brij Vir Singh went tothe spot.

(2.) I have heard Shri K.K. Sud, learned Counsel for the petitioners and Shri B.T.Singh, learned Counsel for the State in Cr.M.(M) 2067/93 and Shri Raman Sahney,learned Counsel for the State in-Cr.M.(M) 2684/93 and have also gone through therecord.Learned Counsel for the petitioners, has submitted that the petitioners havefalsely been implicated in this case by investigating agency incollusion with theparents of the deceased. He has also submitted that there has been, in fact, nodemand of dowry at any time and son of Mohammed Zamil and Mehnaz Begumdied on 27.4.1992 and she was very much depressed on this account. He has alsosubmitted that it was an accidental fire caught by Mehnaz Begum when she waspreparing tea in the kitchen and that her husband Mohammed Zamil had helpedher in extinguishing the fire on account of which, he had in fact sustained burninjuries. It has also been submitted that the investigating agency has with-held thedying declaration of Mehnaz Begum, which was recorded by SI 0m Prakash afterreaching the hospital and in her statement, before the Medical Officer at the timeshe was taken by the Police Control Room van, she had made a categoricalstatement about having sustained injuries while preparing tea in the kitchen. Aprayer has, in these circumstances, been made for release of the petitioners on bail.

(3.) Learned Counsel for the State has, on the other hand, submitted that thereare clear averments against the petitioners with regard to the demand of dowry andgiving harassment to Smt. Mehnaz Begum by the petitioners and it was on thisaccount that there has been an unnatural death. The petitioners have committedoffence of dowry death. A prayer has, therefore, been made that the bail applications be dismissed.Admittedly, the deceased was taken to LNJPN Hospital by ASI Ranbir Singhof Police Control Room when none of her relations, either from the side of husbandor from the side of the parents, was present. A perusal of the MLC, prepared by thedoctor indicates that Mehnaz Begum was conscious, co-operative, well oriented intime, place and person. She herself gave information to the doctor about havingreceived burn injuries accidently while her Duppatta caught fire from the gas, onwhich, she was making tea. It has also been noticed that after reaching the hospital,SI Om Prakash had moved an application to the doctor for permission to takestatement of the injured on which. Dr. Naresh Kaisi had made an endorsement at5.15 a.m. on 1.5.1992 that the patient was fit for statement. There is anotherapplication, moved by SI Rajiv to the Medical Officer on which, the patient wasdeclared fit for statement by Dr. Ajay Gandotra at 11.45 a.m. on 1.5.1992. SDMrecorded the statement of Mehnaz Begum at 12.00 noon after she was declared fitfor statement by the doctor. Submission of the learned Counsel for the petitionershas been that the investigating officer had, in fact, recorded the statement ofMehnaz Begum after 5.15 a.m., which has been suppressed, clearly giving indication that it was against the case of the prosecution. Learned Counsel for the Statehas, however, denied about the recording of any such statement and claimed thatthe 1.0. only made enquiry about the name from the injured, but had not recordedher statement. Reference has, however, been made to the writings in the first casediary by the learned Counsel for the petitioners, that it has specifically beenmentioned in it that the 1.0. had taken the statement of the injured. It is not the stagefor me to comment upon the correctness of this thing and it will have to be gone intoduring trial. It has also been noticed that the SDM while recording the statementof Mehnaz Begum, has not recorded the endorsement as required, while recordingthe dying declaration that he had explained to the patient that he was a Magistrateand was recording her statement. It is also pertinent to note that the statement ofMehnaz Begum is neither signed nor thumb marked by her. Counsel for the Statesubmits that the absence of the signatures or thumb impression could be only onaccount of the presence of burns on both the hands, which is controverted by thelearned Counsel for the petitioners on the basis of MLC and the post-mortemexamination report. This fact again would have to be gone into during trial. It isnot the stage for me to express any positive opinion in favour or against theaccused. However, considering the totality of the circumstances, I am of the viewthat it is a fit case for grant of bail to the petitioners.