State vs Nishar on 20 May, 2025

Delhi District Court

State vs Nishar on 20 May, 2025

         IN THE COURT OF SH. PANKAJ ARORA: ADDL.
          SESSIONS JUDGE-04: NORTH-EAST DISTRICT:
               KARKARDOOMA COURTS: DELHI

SESSIONS CASE No. 44319/15
CNR No. DLNE01-000047-2014
FIR No. 76/2013
P.S.: Seelampur
U/s : 304B/498A/109/34 of IPC
       & section 4 of DP Act

STATE

                                    Versus

(1) NISHAR
s/o Sh. Siraj
r/o H. No. A-82/24, Buland Masjid,
Shastri Park, Delhi

(2) NILOFAR
w/o Sh. Mustakim
r/o H. No. TH-7A, Sanjay Gandhi Camp,
Kailash Nagar, Delhi (discharged vide order dated 08.09.2016)

(3) KALLU
S/o Pyare Khan
r/o A-89, Buland Masjid,
Shastri Park, Delhi    (discharged vide order dated 08.09.2016)

Date of Institution :      28-10-2014
Date of Argument :         05-05-2025
Date of Judgment :         20-05-2025


JUDGMENT

1. Brief facts of the case are that on 15-02-2013, at about
6:10 pm, an information was received at PS Seelampur from
LNJP hospital regarding admission of one Nishar and Aasma on
account of having sustained burn injuries at home by one

FIR No. 76/13 State Vs. Nishar Page 1 of 36
Shahrukh. The information was reduced into writing vide DD
no. 26A and the same was marked to SI Dinesh Kumar,
(hereinafter referred to as first IO/Investigating Officer).
Thereafter, IO along with Ct. Lalit reached LNJP hospital and
collected MLC of victims -Aasma and Nishar wherein the doctor
concerned had mentioned alleged history of burn at home and
under observation. On the MLC of victim Aasma, the doctor
concerned mentioned fit for statement. Since the marriage
between the injured persons had taken place within seven years,
the IO informed the SDM concerned. Sh. R. C. Rahi, SDM
Seelampur reached the spot and recorded statement of victim
Aasma, who stated that she got married with accused Nishar on
04-06-2012 out of her own will. She and her husband were
residing separately from her in-laws. On 15-02-2013 at about 5
pm, she had a quarrel with her husband and out of rage, she
stated to her husband that she would burn herself whereupon, her
husband retorted ‘theek hai, tu aag laga le’. Thereafter, she
poured kerosene oil upon herself which was lying in her home
and her husband was holding matchbox. He threw the same
upon the floor. She picked up the same matchbox and lighted
one stick and lighted another matchstick with the previous one.
Her husband, who was standing in front of her, tried to save her
after she started burning. While doing so, her husband Nishar
too caught fire. In order to rescue herself, she poured a bucket of
water on herself. After getting burnt, she called her mother, who
was residing in the neighborhood. Thereafter, her husband, her
brother Shahrukh, and her friend Nazreen took her to hospital
and got her admitted. She requested for taking action against her
husband. However, she stated that she did not want any action

FIR No. 76/13 State Vs. Nishar Page 2 of 36
against her in-laws as they were residing separately. She further
stated that her neighbors Kallu and Nilo used to provoke her
husband due to which there used to remain quarrel between them.
She requested for taking action against them as well. On the basis
of above-stated statement of complainant, the present FIR came
to be registered and investigation was assigned to SI Dinesh
Kumar.

Thereafter, Crime Team with photographer was called at
the spot i.e. jhuggi no. 208, Buland Masjid, Shastri Park, Delhi
and spot was got inspected the photographed. One empty glass
bottle emitting smell of kerosene with label of United Spirits
Ltd., one broken matchbox with label of Ship, lid of bottle
having cloth string, black colour burnt burka were taken into
police possession.

On 18-02-2013, the IO prepared the site plan at the
instance of mother of victim namely Reshma and recorded her
statement. Thereafter, he recorded statement of neighbours-
Saira, and Noorjahan u/s 161 of Cr.P.C. On 19-02-2013, he
recorded statement of Ms. Nazreen Khaleel, friend of Aasma. He
recorded supplementary statement of Aasma. On 20-02-2013,
the IO recorded statement of sister of Aasma namely Nagma,
brother- Shahrukh and father- Rifakat Ali u/s 161 Cr.P.C. They
all stated that accused Nishar was being provoked by neighbours
Nilo, Kallu, Mustakeem and Aamna. On 21-02-2013, he
recorded statement of Abbas Raja Noori- the maulvi, who
solemnized the marriage between Aasma and Nishar. On 23-02-
2013, victim Aasma got expired during treatment. The SDM
concerned was intimated about the same and section 304B of IPC
was added. On 24-02-2013, postmortem of deceased Aasma was

FIR No. 76/13 State Vs. Nishar Page 3 of 36
got conducted at MAMC and thereafter, her dead body was
handed over to her brother Shahrukh and father Rifakat. On 28-
02-2013, statements of Arman, so-called brother of Aasma and of
one Sajid were recorded. On 08-03-2013, IO recorded statement
of Crime Team In-charge E. S. Yadav. On 17-03-2013, accused
Nishar was arrested on the basis of secret information and during
interrogation, he confessed about commission of alleged offence.
On 18-04-2013, exhibits were got deposited at FSL Rohini. On
17-05-2013, accused Nilofer was arrested in the case. On 04-06-
2013, accused Kallu was arrested after interrogation. On 30-04-
2013, Sections 109 IPC and 4 DP Act were added. On 06-06-
2013, IO interrogated accused Mustakeem, however, no evidence
was found against him. Therefore, he was discharged on the
same day. After completion of necessary formalities, chargesheet
for the offences punishable u/s 498A/304B/109/34 of IPC and
section 4 of DP Act was filed against accused persons.
COMMITTAL

2. After taking cognizance and compliance of section 207 of
Cr.P.C., the present case was committed to the Courts of
Sessions vide order dated 16-10-2014 by the Ld. MM/NE/KKD.
The same was allocated by the then Ld. District and Sessions
Judge to the Ld. Predecessor of this Court.

CHARGE

3. After hearing the arguments and finding that prima facie
case was made out against the accused for the offence punishable
u/s 498A/304B/306/ of IPC and section 4 of D.P. Act, charges
were framed by ld. Predecessor against the accused- Nissar, to
which he pleaded not guilty and claimed trial. However, co-
accused Nilofar and Kallu were discharged vide order dated

FIR No. 76/13 State Vs. Nishar Page 4 of 36
08.09.2016 as apart from bald allegation of instigation, no other
evidence was collected during investigation against them.
Thereafter, prosecution got examined as many as 25 witnesses.
PROSECUTION EVIDENCE

4. (i) PW1 Smt. Reshma was the mother of deceased. She
deposed that she did not remember date, month and year when
her deceased daughter was married with accused Nissar but she
was married about 8-9 months ago from the date of incident of
the present case. The marriage had taken place between accused
Nissar and her daughter without her consent and their marriage
was love marriage. She did not attend the marriage ceremony
(Nikah). Accused Nissar was doing the job of sewing clothes
(tailoring) After marriage, accused started living with her
daughter in rented accommodation. However, they (her daughter
and her husband) used to visit the matrimonial house of her
daughter. Initially they stayed at houses of friends/relatives for 2-
3 months. Thereafter they started living at Khajuri on rent but
accused Nissar could not pay rent. On this, her daughter came to
her and she had given cash amount of Rs.1,500/- to her so that
they could pay rent. She had also given some eatables (grains
etc.) to her. Her daughter had told her that accused Nissar used to
harass her and did not give any money to her. Thereafter they
shifted to a jhuggi in Shastri Park, which jhuggi belong to her
Nanad. That jhuggi was at a distance of 6-7 jhuggies of her.
Accused started quarreling with her daughter. Accused used to
give beatings to her daughter on the issue of demand of jhuggi
for him as she was having four jhuggies. Accused Nissar used to
raise demand of jhuggi from her daughter and used to ask her to
get transferred the ownership of one of the jhuggies which were

FIR No. 76/13 State Vs. Nishar Page 5 of 36
in her possession and when her daughter used to refuse about the
above said demand he used to give beatings to her. The above
said fact had told to her by her daughter when she used to come
to her house. About 20-25 days prior to the day of incident, her
daughter had come to her while weeping and told her that her
husband gave beatings to her while saying that nothing was given
in the marriage by them. Her daughter further told that accused
Nissar told her “kam se kam apne maa baap se jhuggi ka intzam
kara de”. On this she along with her husband made her
understand that they shall arrange a jhuggi for them on the
occasion of birth of their child. On the day of incident (She did
not remember the date, month and year) the neighbour of her
daughter namely Saira came to her at her jhuggi and told her that
her daughter set herself on fire. On this she along with her son
Shahrukh and daughter Nagma went to the jhuggi where her
daughter was residing and on reaching there they found accused
Nissar was sitting outside the said jhuggi with her daughter who
was in burnt condition. Accused Nissar was also having some
burn injuries on his both hands. Thereafter they took her daughter
and accused Nissar to JPN hospital and they both got admitted
there. Police had recorded her statement. Accused Nissar was
present in the Court (correctly identified by the witness).

During some leading questions put up by Ld. Addl. PP for
State, she affirmed that the marriage of her daughter and accused
had taken place on 04.06.2012. It was affirmed that her daughter
Aasma used to come to her for asking money for fulfilling her
daily requirements and she had given Rs. 2000- Rs. 3000/- along
with grains i.e aata, chawal, daal etc. It is affirmed that on
15.02.2013 at about 4.30 p.m accused Nissar quarreled with her

FIR No. 76/13 State Vs. Nishar Page 6 of 36
daughter on the issue of demand of jhuggi. It is further affirmed
that police prepared site plan at her instance.

The witness was cross-examined by Ld. Amicus Curiae
who stated he did not remember the date, time and month as to
when he had allegedly given Rs. 1500/- to Asma after marriage.
It is affirmed that accused Nissar had not made any demand of
giving him jhuggi or rent etc. directly. He did not remember the
date and month as to when her deceased daughter Asma asked
from me for the rent of jhuggi. It is affirmed that the accused had
never beaten his daughter Asma in his presence. He had never
made any complaint to the police regarding the alleged beating or
harassment by the accused person. He has no knowledge
whether deceased Asma made any complaint to any authority
regarding alleged beatings and harassment.

(ii) PW2 SI E. S. Yadav deposed that on 15-02-2013, on
receipt of information from Control Room at about 10:30 pm, he
along with ASI Surender, finger print proficient and Ct. Zile
Singh, photographer went to jhuggi no. 208, Buland Masjid,
Shastri Park, Delhi where inside the jhuggi, burnt articles i.e.
clothes, one lamp dibbia i.e. glass bottle having smell of kerosene
oil having string in its cap were lying. One matchbox containing
matchsticks was also found lying there. He inspected the crime
of scene and prepared SOC report vide Ex. PW2/A.
The witness was cross-examined by Ld. LAC for accused
but nothing material came out therein.

(iii) PW3 SI Dinesh deposed that on 15.02.2013 he was
posted at PS Seelam Pur. On that day DD No. 26A was received
by him from DO regarding admission of deceased Aasma and
accused Nissar in LNJP Hospital in burnt condition. Copy of DD

FIR No. 76/13 State Vs. Nishar Page 7 of 36
No. 26A on record is Ex. PW 3/A. After receiving the above said
DD he along with Ct. Lalit went to LNJP hospital and from there
had collected MLC of Smt. Aasma w/o Nissar and Nissar s/o
Siraz and on both the MLCS doctor mentioned the alleged
history of burn at home and under observation. On the MLC of
Aasma doctor mentioned “fit for statement”. Since the marriage
between the injured persons was taken place within 7 years, So
he informed SDM Seelam Pur. Accordingly SDM Seelam Pur
Sh. R. C Rahi reached in the hospital and he recorded the
statement of injured Aasma W/o Nissar. After recording her
statement SDM Sh. R. C Rahi handed over the same to him.
After receiving the above said statement from SDM, he along
with Ct. Lalit came back at the spot. Crime Team was called
there. Crime team inspected the spot vide SOC report already Ex.
PW2/A and took the photographs from different angles at his
instance. Thereafter, he had lifted one lamp dibbia i.e glass bottle
which had smell of kerosene oil having string in its cap for the
purpose of lighting, one match box containing sticks, one black
colour burnt burkha having smell of kerosene oil and one cap
having string of cloth piece for the purpose of batti which too
have smell of kerosene. All the above said articles were sealed in
four separate cloth parcels with the seal of DK and parcels were
taken into possession vide seizure memo Ex. PW 3/A. Thereafter
he along with Ct. Lalit came back to the PS. Case property was
deposited with MHC(M).

On 16.02.2013 he prepared rukka Ex. PW 3/B on the basis
of statement of Aasma recorded by SDM, after having discussion
with senior police officials. Thereafter he presented the rukka
before DO and case FIR no. 76/2013 u/s 498A was got

FIR No. 76/13 State Vs. Nishar Page 8 of 36
registered. After registration of the case DO handed over
computerized copy of FIR and rukka in original to him.
Thereafter he recorded the statement of Ct. Lalit. On 18.02.2013
he went to the house of mother of injured Aasma and prepared
site plan of the place of occurrence at her instance (the site plan
is not on file). The statements of mother of injured namely
Reshma and other PWs namely Shaira and Noor Jahan were also
recorded by him on that day. Thereafter he came to the PS.
On 19.02.2013 he had recorded the statements of Nazreen
and Aasma. On 20.02.2013 he had recorded the statements of
Nagma, Shahrukh and Rifakat. On 21.02.2013 he had recorded
the statement of Abbas Raza Noori (Molana). On 23.02.2013 at
about 4.50 p.m DD No. 22A was got recorded in the PS by HC
Narender Rana regarding the death of Aasma in LNJP Hospital.
The said DD entry was received by him from the DO. Copy of
DD No. 22A on record is Ex. PW 3/C. After receiving the above
said DD he informed SDM Seelam Pur about the same through
phone who told that he was out of station and Sh. Amarnath
Executive Magistrate would conduct the inquest proceedings.
Thereafter he made a call to Sh. Amarnath Executive Magistrate
and he told him that postmortem would be conducted on
24.02.2013.

On 24.02.2013 he went to mortuary of Molana Azad
Medical college and Lok Nayak Hospital. Sh. Amarnath
Executive Magistrate also reached there who filled up the inquest
papers and thereafter after establishing the identity of dead body,
the postmortem was got conducted and after postmortem dead
body was handed over to the father of deceased Rifakat vide
handing over memo Ex. PW3/D. After postmortem, doctor

FIR No. 76/13 State Vs. Nishar Page 9 of 36
handed over one sealed envelope parcel containing hair scalp of
deceased and sample seal to him and he took the same into
possession vide seizure memo Ex. PW3/E. He recorded the
statements of Rifakat and Shahrukh regarding identification of
the dead body which are Ex. PW3/F and G.
On 28.02.2013 he had recorded the statement of Sajid and
Arman. On 08.03.2013 he had recorded the statements of crime
team members. On 17.03.2013 accused Nissar was arrested from
Jhuggi No. E-11A/203 vide his arrest memo Ex. PW3/H. His
personal search was also conducted vide memo Ex. PW3/1. The
medical examination of accused Nissar was got conducted from
Jag Parvesh Hospital and thereafter he was put in the lock up of
PS Seelam Pur. Next date the accused was produced before the
court concerned wherefrom he was remanded to j/c.

On 10.04.2013 he had collected the PM report which is
Ex.PW3/J. On 18.04.2013, he got deposited the exhibits in the
FSL through Ct. Sukhbir. PW3 recorded his statement as well as
the statement of MHC (M). On 17.05.2013, he arrested the
accused Nilopher vide arrest memo which is now Ex. PW3/K. He
prepared a personal search memo which is now Ex. PW3/L.
Thereafter, accused was produced before the court on the next
day after her medical.

On 04.06.2013, he arrested the accused Kallu vide arrest
memo Ex. PW3/M. Accused was personally searched vide memo
Ex. PW3/N. On next day, accused was produced before the court
from where he was sent to JC.

On 06.06.2013, he interrogated the husband of Nilopher.
On 26.06.2013, he got transferred and he handed over the file to
the MHC (R).

FIR No. 76/13 State Vs. Nishar Page 10 of 36

He correctly identified accused Nisar in the court.
He identified the case property i.e. one empty transparent
glass bottle without lid and upon which “United spirit limited”

was engraved as Ex. P1; one match box of brand “Ship”

containing some matchsticks as Ex. P-2; three pieces of black
burkha in torn condition (appearing to be cut by FSL) as Ex. P-3;
and one lid/ cap of a bottle with a white cloth (batti) attached to it
Ex. P-4.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

(iv) PW4 Smt. Nagma was the younger sister of deceased.
She deposed that he has been residing at E-11A/208, GT Road,
Buland Masjid, Shashtri Park, Delhi. Deceased Ashma was his
elder sister and she was married with accused Nishar on
04.06.2012. It was a love marriage between her sister and
accused Nishar. Accused Nishar was doing the work of tailor
master at the time of marriage. After two-three months of the
marriage accused Nishar starting harassing her sister and he use
to raise demand of money from her sister and use to tell her to
bring money from her parents and her sister use to come to her
parents house and her mother had given her cash amount of Rs.
2000/-, 3000/- for many times along with other grocery items.
About 20-25 days prior to the present incident her sister came to
her house ( her parents house) and she told her mother that
accused Nishar gave beating to her. She further told to her
mother that accused Nishar told her ” kam se kam apne ma baap
se ek jhugi ka intjam kar de kyo ki usne uske liye (her sister)
apne ma baap ko bhi chhor diya hai”. On this, her parents made
her sister understand and told her that when a child was born they

FIR No. 76/13 State Vs. Nishar Page 11 of 36
will arrange/provide jhugi for him. Thereafter, her sister came
back to her matrimonial home.

In the year 2013, an altercations had taken place between
Nishar and her sister and sister set herself on fire. Her sister set
herself on fire as accused Nishar used to harass her on the
demand of jhugi. On that day the wife of Rustom neighborer of
accused Nishar came to their house and informed that her sister
set herself on fire. After receiving this information she alongwith
her brother Sharukh, her mother went to the matrimonial house
of her sister. On reaching there they found that her sister lying
inside the jhugi in burned condition. Thereafter, they took her to
the hospital in auto and accused Nishar also accompanied to the
hospital and her sister was admitted. Later on her sister was died
in the hospital.

In his cross examination by Ld. Defence counsel for the
accused Nishar she could not tell any date on which her mother
had given money to her deceased sister Aasma. She cannot tell
on how many occasions her mother given grocery items/ration to
her deceased sister. Nissar never made any demand in her
presence from her mother. She did not remember any date of
which her deceased sister made demand of jhuggi or other items
from her mother.

(v) PW-5 Rifakat is the father of victim/ deceased. He
deposed that in the year 2012, deceased Aasma got married with
accused Nishar and it was love marriage between them. After 2-
3 months of marriage, accused started quarreling with his
daughter. In the year 2013, his daughter set herself on fire as
accused used to quarrel with her and used to beat her. On 23-02-
2013, he went to Maulana Azad Medical College along with his

FIR No. 76/13 State Vs. Nishar Page 12 of 36
son and identified dead body of his daughter Aasma vide
statement Ex. PW3/F. After postmortem, the dead body of his
daughter was handed over to him vide memo Ex. PW3/D.
The witness was cross-examined by Ld. Addl. PP for State
as he was resiling from his previous statement.

During cross-examination by Ld. Addl. PP for State, he
affirmed that after 2-3 months of marriage, accused Nishar
started harassing his daughter and he used to tell her to bring
cash from her parents. He affirmed that whenever his daughter
used to come at his house from her matrimonial house, his wife
used to give cash amount of Rs. 2000-3000 along with other
grocery items. He affirmed that about 20-25 days prior to the
present incident, his daughter came to his house and she told that
accused Nishar gave beating to her saying, ‘ usne tera liye apne
ma baap ko bhi chor diya hai aur tere gharwallo ne use nikhe me
kuch nahi diya hai, kam se kam apnay ma baap se ek jhugi ka
intzam kar do’. On this, he and his wife made her understand
and they told her that when a child would born, they would
arrange/ provide jhuggi for them. Thereafter, his daughter left
for her matrimonial home. He affirmed that on 15-02-2013 at
about 4:30 pm, accused Nishar gave beatings to his daughter on
the issue of jhuggi or that his daughter set herself on fire due to
beatings given by accused Nishar. He affirmed that lady Sayra
informed his wife that his daughter set herself on fire. On receipt
of this information, his wife, son and daughter Nagma went to
the jhuggi of accused Nishar and thereafter, they got admitted his
daughter in the hospital.

The witness was not cross-examined by the accused
despite having given the opportunity.

FIR No. 76/13 State Vs. Nishar Page 13 of 36

(iv) PW6 Smt. Noor Jahan R/o H. No. E-11/A/ 202,
Jhuggi, Buland Masjid, Shastri Park, Delhi, deposed that the
deceased Ashma along with her husband Nisar had been residing
in jhuggi situated behind her jhuggi, on rent. The said jhuggi
belonging to one Farukh Date, month and year, she did not
remember but about 4-5 years ago, at about 4.00 pm when she
was present in her house/ jhuggi, she heard noise and on hearing
the same, she went to jhuggi of Ashma and saw that accused
Nisar husband of Ashma was trying to extinguish the fire of
wearing clothes of Ashma as her clothes were burning at that
time. When the fire was extinguish completely then Nisar took
Ashma to hospital in a TSR. Other mohalla people and parents of
Ashma had also reached there except this, nothing had happened.

The witness was cross-examined by Ld. Addl. PP for State
as she was resiling from her previous statement.

During cross-examination by Ld. Addl. PP for State, she
denied the suggestion that on the day of incident i.e. 15.02.2013
at about 4.00 pm, she had heard the altercation / quarrel taken
place between Ashma and her husband Nisar or that after
sometime of the above-said quarrel, she heard the noise of
Ashma ‘bachao bachao’ and when she went the jhuggi of Ashma,
she found the wearing clothes of Ashma were already set on fire
and she so stated in her statement Mark A. She denied the
suggestion that she intentionally not deposing this fact as she had
been won over by the accused. She denied the suggestion that
20-25 days prior to the incident a quarrel had also taken place
between Ashma and accused Nisar or that accused Nisar gave
beatings to Ashma on that day and she had stated so in her
statement Mark A. She denied the suggestion that she deposed

FIR No. 76/13 State Vs. Nishar Page 14 of 36
falsely.

During cross-examination by Ld. Counsel for accused, she
did not remember whether police had recorded her statement u/s
161 of Cr.P.C. or not.

(vii) PW7 Sh. Shahrukh deposed that deceased Aasma was his
sister. He had three sisters including deceased Aasma and one
brother and deceased Aasma was eldest. He sister Aasma was
married with accused Nisar on 04.06.2012 according to Muslim
customs and rites and Aasma married with Nisar at her choice.
After marriage, accused Nisar started residing in a rental
accommodation with his sister. Accused Nishar was doing the
job of tailor. After 2-3 months of the marriage, accused started
harassing his sister and he used to say to his sister to bring money
from her parental house. His sister Aasma used to come to his
house and told all the aforesaid facts regarding harassment to his
mother and his mother gave Rs.2000-3,000/- and food stuffs
(grains) twice or thrice to her. 20-25 days prior to the incident,
his deceased sister Aasma came to his house while weeping and
she told his mother that accused Nisar gave beatings to her and
she further told that accused Nisar told her ” Tere Liye Main
Apane Ma Baap Ko Chhor Diya Aur Tumare Ma Baap Nikah Me
Kuch Nahi Diya, Kam Kam Se Apne Ma Baap Se Ek Jhuggi Ka
Intjam Ka Do”. On this, his parents made Aasma understand
while saying that they would also make understand accused Nisar
and he would not do the same in future. Thereafter his parents
met Nisar and tried to understand him while ensuring that they
would arrange Jhuggi for him on the occasion of delivery of their
child but Nisar did not pay any heed on the advice of his parents
and he remained continuing harassing his sister. On 15.02.13 at

FIR No. 76/13 State Vs. Nishar Page 15 of 36
about 4.30 PM accused Nisar quarreled with his sister and gave
beatings to her on the issue of jhuggi and then his sister set
herself on fire in front of accused Nisar. The information
regarding the above said facts was given to them by one Sayra,
neighbour of his deceased sister. After receiving this information,
he along with his mother, his sister Nagma went to the
matrimonial house of his deceased sister and when they reached
there, the fire had already been doused and accused Nisar was
sitting outside his house with his sister who was in burnt
condition. Thereafter they took Aasma to JPN hospital and got
her admitted there. During treatment his sister was succumbed to
burn injuries in the hospital after 7-8 days. After identification of
the dead body, the postmortem was done in the hospital. His
statement regarding the identification of the dead body was
recorded and same is already Ex.PW3/G. After the postmortem,
the dead body was handed over to them and they did last rites.
The witness correctly identified accused Nisar in the court
In his cross examination by Ld. LAC of accused, he stated
that they did not give any complaint regarding harassment given
by the accused to his sister Aasma in any PS.

(viii) PW8 Ms. Nazrin deposed that deceased Aasma was
her friend since childhood. She was married with accused Nishar
on 04.06.2012 according to Muslim rites and customs. The
parents of Nishar did not like Aasma and due to this reason
Nishar and Aasma were living separately from them in a rented
accommodation at some distance from her jhuggi. After 2-3
months of the marriage, accused Nishar started harassing Aasma
and he used to quarrel with her on the issue of jhuggi as he
wanted a jhuggi from the parents of Aasma. Accused Nishar also

FIR No. 76/13 State Vs. Nishar Page 16 of 36
stopped doing work and he used to give beatings to her. Aasma
brought money from her parents many times. Accused Nishar
used to raise demand of jhuggi from Aasma while saying ” Main
Tere Liye Apane Maa Baap Ko Chhor diya Aur Tere Maa Baap
Ke Paas 2-3 Jhuggies Un Me Se one Jhuggi Mere Naam Kara
Do”. Deceased Aasma used to tell the above said facts to her.
Accused Nishar gave beatings to Aasma 20-25 days prior to the
incident on the issue of jhuggi. When Aasma used to tell the
above said facts to her, she advised her to tell the same to her
parents and she told the same to her parents. The father of
deceased Aasma also tried to understand Nishar and he assured
him that he would arrange a jhuggi for him later on. On 15.02.13
at about 4.00 PM a quarrel had taken place between Aasma and
Nishar and accused gave beatings to her, on this, Aasam set
herself on fire in front of accused Nishar. After knowing the
same she immediately went to the house of Aasma and saw that
Aasma was in burnt condition and accused Nishar was also
present there and he was sitting with Aasma while holding her in
front of his house. In the meantime, mother of Aasma namely
Reshma, her brother Shahrukh and sister Nagma also reached
there and thereafter they took Aasma to JPN Hospital and got her
admitted there. After getting her admitted there, she came back to
her house. His statement was recorded by the police on 19.02.13.

In his cross examination done by Ld. LAC for accused,
deceased Aasma used to bring cash amount of Rs. 2000/- for
some time or Rs. 3000/- for sometime. The parents of the Aasma
tried to understand accused Nissar in his presence twice.

(ix) PW9 Smt. Sayra deposed that she did not know
anything about the facts of this case. However, one tenant along

FIR No. 76/13 State Vs. Nishar Page 17 of 36
with his wife namely Aasma was residing in the jhuggi adjacent
to his jhuggi. On the day of incident, she was not present at her
jhuggi as she had gone to market for buying vegetables. When
she came back from the market, she found that many persons
were present there. Except this, she did not know anything.

The witness was cross-examined by Ld. Addl. PP for
Stateas she was resiling from her earlier statement.

During cross-examination by Ld. Addl. PP for State, she
denied the suggestion that on 15.02.2013, at about 4.00 pm, when
she was present at her house, she heard the noise of quarrel
which was taking place between Nisar and his wife Aasma or
that after some time she heard noise ‘bachao bachao’ or that on
hearing the noise, she immediately went to the jhuggi of Nisar
and saw that Aasma was in the flames and Nisar was trying to
save her or that on this, she gave information to the mother of
Aasma namely Reshma or that on this, Reshma and her son
Shahrukh immediately came to the jhuggi of Nisar and at that
time Nisar was sitting outside his jhuggi while holding his wife
Aasma or that at that time the fire had already been doused or
that thereafter they took Aasma to J.P.N. Hospital or that she so
stated in her statement Mark A. She denied the suggestion that
she deposed falsely being the neighbour of accused Nisar. She
denied the suggestion that she was very much present at her
jhuggi at the time of incident or that she had seen deceased
Aasma in flames after some time of hearing their quarrel. She
denied the suggestion that she deposing falsely.

The witness was not cross-examined by Ld. LAC for
accused despite having given the opportunity.

PW10 Abbas Raza Noori deposed that he has been doing

FIR No. 76/13 State Vs. Nishar Page 18 of 36
the work of Maulvi at Gosiya Masjid, Shastri Park for the last ten
years. On 04-06-2012, he had performed/ solemnized the
marriage (Nikah) of Nishar and Aasma and he had issued a
Nikahnama certificate, as per which, one Wakil namely Sajid and
two witnesses namely Mohd. Arman and Mohd. Rashid had
joined the said ceremony. The Copy of Nikahnama is Ex.
PW10/A.
The witness was not cross-examined by Ld. LAC for
accused despite having given the opportunity.

PW11 Sajid deposed that he knows accused Nishar for the
last 2-3 years from the date of incident. Accused Nishar used to
do work of sewing jeans pants with him at Shastri Park, Delhi.
About 6 years ago when accused Nishar married with Aasma at
Shastri Park as per Muslim customs, he had become a witness on
the Nikahnama, prepared by Qazi, copy of which is Ex. PW10/A.
The witness was cross-examined by Ld. LAC for accused
but nothing material came out therein.

PW12 ASI Surender Prasad deposed that on 15-02-2013,
he along with photographer Ct. Jile Singh accompanied In-
charge, Mobile Crime Team, SI E. S. Yadav to the spot i.e.
jhuggi no. 208, Buland Masjid, Shastri Park, Delhi where In-
charge E. S. Yadav inspected the spot and photographer Ct. Jile
Singh took the photographs.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW13 Arman deposed that deceased Aasma was residing
in his neighbourhood and she was known to him for the last 6-7
years. Aasma got married with accused Nishar at Gosia Masjid,
Shastri Park, Delhi and he was a witnesses in the said Nikahnama

FIR No. 76/13 State Vs. Nishar Page 19 of 36
Ex. PW10/A.
During cross-examination by Ld. LAC, he deposed that
there were two other witnesses namely Rashid and Shahil in the
Nikah.

PW14 Ct. Lalit deposed that on 15-02-2013, on receipt of
DD no. 26A to IO/ SI Dinesh, he accompanied him to JPN
hospital where one lady Aasma and her husband Nishar were
admitted there. The IO called the SDM, who recorded statement
of Aasma. Thereafter, he along with IO came to spot i.e. jhuggi
no. 208, Buland Masjid, Shastri Park. Crime Team was also
called at the spot by the IO which inspected the spot and took
photographs. He deposed more or less on the same lines as
deposed by the IO, whose testimony shall be discussed later on.

He identified the case property i.e. one half empty bottle
without lid on which words ‘United Spirits Limited’ was
inscribed as Ex. P1 which was lifted from the spot; matchbox of
Ship company and sticks as Ex. P2 which was lifted from the
spot; one burnt burka of black colour as Ex. P3 which was lifted
from the spot and one lid of bottle of white colour having cloth
string as Ex. P4 which was lifted from the spot.

The witness was cross-examined by Ld. LAC for accused
but nothing material came out therein.

PW15 HC Sukhveer deposed that on 18-04-2013, on the
directions of IO, he received the exhibits from MHCM and
deposited the same at FSL Rohini vide RC no. 10/21/13. He
handed over the receipt to MHCM.

The witness was not cross-examined by Ld. LAC despite
having given the opportunity.

PW16 Retd. ASI Banwari Lal deposed that on 15-02-2013,

FIR No. 76/13 State Vs. Nishar Page 20 of 36
he was working as MHCM at PS Seelampur. He has proved the
entries made by him in Register no. 19 with regard to the deposit
and dispatch of exhibits at the Malkhana of PS. The relevant
entries proved by him are Ex. PW-16/A and Ex. PW16/B. He
has also proved the road certificate for dispatch of exhibits as Ex.
PW16/C and acknowledgment obtained from FSL as Ex.
PW16/D.
The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

PW17 HC Ram Ratan deposed that on 17-03-2013, he was
on emergency duty with SI Dinesh. At about 9 pm, he joined
investigation with the the IO and reached at Shastri Park, Buland
Masjid at jhuggi no. 82/24, accused Nishar met them and SI
Dinesh interrogated them. Thereafter, SI Dinesh arrested
accused Nishar vide arrest memo Ex. PW3/H and his personal
search was conducted vide memo Ex. PW3/I. Accused Nishar
was got medically examined at JPC hospital.

The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

PW18 Retd. Executive Magistrate Sh. Amarnath deposed
that on 24-02-2013, he attested the PM of deceased Aasma,
request letter moved by IO/ SI Dinesh Kumar vide Ex. PW18/A.
Death report/ unnatural death by violence report prepared by SI
Dinesh Kumar is Ex. PW18/B. He also attested copy of
complaint Ex. PW18/C.
The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW19 ASI Usha Kumari deposed that on 16-02-2013, she
was posted as Duty officer. On receipt of rukka Ex. PW3/B, she

FIR No. 76/13 State Vs. Nishar Page 21 of 36
registered the FIR Ex. PW19/A and made endorsement on the
rukka at point A of Ex. PW3/B.
The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW19A Dr. Prabhat Shrivastava was deputed by Medical
Director of LNJP hospital to identify the signature and
handwriting of Dr. Harpreet on MLC no. 29683 Ex. PW19/A of
patient Aasma dated 15-02-2013, wherein the doctor had
certified the patient fit for any kind of statement.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW20 Dr. Jyoti Barwa deposed that on 24-02-2013, she
was posted as SR at MAMC and LNJP hospital in the department
of forensic medicine. On that day, at the request of Executive
Magistrate, she conducted postmortem on the dead body of
deceased Aasma w/o Nishar at around 11:10 am and prepared
PM report no. 180/2013 Ex. PW3/J. She gave her opinion as,
‘death was due to septicemia consequent upon infected burn
injuries’. All injuries were antemortem in nature and caused by
flames of fire. The scalp hair were preserved in sealed envelop
and handed over to the IO to get the presence of any volatile
substance detected. Total burn area were approximate 68 per
cent of total surface area of body.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW21 Sh. R. P. Pandey, Record Clerk, LNJP Hospital was
deputed by DMS/MRD of LNJP hospital to identify signature of
Dr. Bhupender Singh on MLC no. 29683 of patient Aasma dated
15-02-2013. He proved the MLC of victim aasma as Ex. PW9/A.

FIR No. 76/13 State Vs. Nishar Page 22 of 36
The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW22 Retd. ACP Anand Sagar deposed that on 10-09-
2014, he was posted as SHO, Seelampur. On that day, he had
issued one certificate u/s 65B of Indian Evidence Act in this case
which is Ex. PW22/A.
The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW23 Inspector Rizwan Khan deposed that on 11-08-
2014, the investigation of the present case was marked to him
and he prepared the charge-sheet and filed before the court.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW24 Sh. R. P. Pandey, Record Clerk, LNJP hospital
brought the summoned documents i.e. medical treatment
documents of deceased Aasma i.e. admission sheet, death
summary etc. and attested copy of same were exhibited as Ex.
PW24/A. He also brought original register of MLC no. 29683
dated 15-02-2013 of Aasma as Ex. PW19/A.
The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

PW25 Sh. Ramesh Chand Rahi deposed that in the year
2013, he was posted as SDM Seelampur. On 15-02-2013, he
received a telephonic message from the IO regarding a woman
burning herself at Buland Basti jhggi, Shastri Park and they
asked him to come to JPN hospital as they were taking the burnt
lady to the hospital. Thereafter, he reached the hospital where he
found one lady by the name Aasma in burnt condition and she
was conscious and was able to speak. She made inquiries from

FIR No. 76/13 State Vs. Nishar Page 23 of 36
the doctor as to the fitness of the patient to make statement to
which he replied in affirmative. Thereafter, he made inquiries
from the said lady and he recorded her statement which is now
Ex. PW25/A. He took thumb impression of the patient Aasma at
point B. Thereafter, he handed over the said statement to the IO
for further action.

The witness was cross-examined by Ld. Amicus Curiae for
accused but nothing material came out therein.

The accused did not dispute the genuineness of FSL report
no. 2013/C-3041 dated 15-07-2013 prepared by Ms. Kavita Goel,
Sr. Scientific Officer (Chemistry), FSL Delhi vide his statement
u/s 294 of Cr.P.C. Ex. A-1.

STATEMENT OF ACCUSED

5. After completion of prosecution evidence, the statement of
accused was recorded under Section 313 Cr.P.C. wherein
incriminating facts were put to the accused, which were denied
by him. He stated that he is innocent and falsely implicated in
this case. He tried to save his wife Aasma, who set herself on
fire. While saving her, he also got burn injuries. His MLC no.
29683 also mentioned about his injuries. He opted to lead
defence evidence.

6. DEFENCE EVIDENCE
CW-1 Sh. R. P. Pandey, Record Clerk from LNJP hospital
brought the summoned record i.e. treatment papers and MLC
register with respect to patient Nishar who was attended vide
MLC no. 29682 on 15-02-2013. The treatment papers including
admission sheet vide CR no. 114381, casualty card dated 15-02-
2013, bone assessment record etc. were exhibited as CW1/A and

FIR No. 76/13 State Vs. Nishar Page 24 of 36
MLC as Ex. CW1/B. He deposed that the doctors who prepared
the aforesaid MLC and other treatment papers have left the
hospital.

FINAL ARGUMENTS

7. This court has heard the arguments and perused the record.

The Ld. Addl. PP for the State submits that the testimonies
of all the prosecution witnesses is sufficient to bring home the
guilt of accused for the offences punishable u/s 304B/498A/306
of IPC and section 4 of D.P. Act beyond reasonable doubts.
There is no major discrepancy or contradiction in the testimony
of prosecution witnesses. It is common in the testimony of PW1,
PW4, PW7 and PW8 that the deceased was subjected to cruelty
in connection with demand of jhuggi.

On the other hand, Sh. K. N. Sharma, Ld. Amicus Curiae
for accused has submitted that there are several discrepancies and
contradictions in the depositions of family members of deceased.
No complaint was ever made by deceased or her parents during
the matrimonial life of deceased alleging harassment on the part
of accused at any time prior to the date of incident. PW1, PW4,
PW7 and PW8 have levelled only general and omnibus
allegations against the accused of subjecting the deceased to
cruelty for or in connection with demand of jhuggi. There is no
mention of demand of jhuggi in the statement Ex. PW25/A of
deceased Aasma recorded by the SDM.

It is further submitted that statement Ex. PW25/A of
deceased nowhere reflects any act of instigation on the part of
accused. In support of his arguments, Ld. Counsel has replied
upon the cases of Mahendra Awase Vs. The State of Madhya
Pradesh, Crl. Appeal no. 221/25, SLP (Crl.) no. 11868/23);

FIR No. 76/13 State Vs. Nishar Page 25 of 36

Velladurai Vs. State represented by the Inspector of Police, Crl.
Appeal no. 953/21 and Mariano Anto Bruno & Anr. Vs. The
Inspector of Police, Crl. Appeal no. 1628/22 of Hon’ble Supreme
Court of India.

FINDINGS OF THE COURT

8. Before analyzing the evidence led by the Prosecution in
the present case, this court deems it proper to refer to some
provisions of law and citations of Superior courts, which are
found to be applicable to the facts of the present case.

Sections read as under:-

“304B. Dowry death–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.

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 wilful 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 health (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.

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.

4. Penalty for demanding dowry–If any person demands,
directly or indirectly, from the parents or other relatives or
guardian of a bride or bridegroom, as the case may be, any
dowry, he shall be punishable with imprisonment for a term
which shall not be less than six months, but which may extend
to two years and with fine which may extend to ten though

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rupees.

113B. 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 has been
subjected by such person to cruelty or harassment for, on in
connection with, any demand for dowry, the Court shall
presume that such person had caused the dowry death.
Explanation–For the purpose of this section, “dowry death” shall
have the same meaning as in Section 304B of the Indian Penal Code
(45 of 1860).”

9. It is pertinent to note that the principles governing the
cases u/s 304B of IPC have been culled by the Hon’ble High
Court of Delhi in a landmark case titled Sudhakar Singh Vs.
State on 18-07-2014 in Crl. Appeal No. 240/1998 as follows:

17.1. To attract the provisions of Section 304-B IPC the main
ingredient of the offence to be established is that soon before the
death of the deceased she was subjected to cruelty and
harassment in connection with the demand of dowry.
17.2. The death of the deceased woman was caused by any burn
or bodily injury or some other circumstance which was not
normal.

17.3. Such death occurs within seven years from the date of her
marriage.

17.4. That the victim was subjected to cruelty or harassment by
her husband or any relative of her husband.

17.5. Such cruelty or harassment should be for or in connection
with demand of dowry.

17.6. It should be established that such cruelty and harassment
was made soon before her death.

17.7. The expression “soon before” is a relative term and it
would depend upon circumstances of each case and no
straitjacket formula can be laid down as to what would
constitute a period of soon before the occurrence.
17.8. It would be hazardous to indicate any fixed period and that
brings in the importance of a proximity test both for the proof of
an offence of dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act.

17.9. Therefore, the expression “soon before” would normally
imply that the interval should not be much between the cruelty
or harassment concerned and the death in question. There must
be existence of a proximate or live link between the effect of
cruelty based on dowry demand and the death concerned. In
other words, it should not be remote in point of time and thereby
make it a stale one.

17.10. However, the expression “soon before” should not be
given a narrow meaning which would otherwise defeat the very

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purpose of the provisions of the Act and should not lead to
absurd results.

17.11. Section 304-B is an exception to the cardinal principles
of criminal jurisprudence that a suspect in the Indian law is
entitled to the protection of Article 20 of the Constitution, as
well as, a presumption of innocence in his favour. The concept
of deeming fiction is hardly applicable to criminal jurisprudence
but in contradistinction to this aspect of criminal law, the
legislature applied the concept of deeming fiction to the
provisions of Section 304-B.
17.12. Such deeming fiction resulting in a presumption is,
however, a rebuttable presumption and the husband and his
relatives, can, by leading their defence prove that the ingredients
of Section 304-B were not satisfied.

17.13. The specific significance to be attached is to the time of
the alleged cruelty and harassment to which the victim was
subjected, the time of her death and whether the alleged demand
of dowry was in connection with the marriage. Once the said
ingredients are satisfied it will be called “dowry death” and by
deemed fiction of law the husband or the relatives will be
deemed to have committed that offence.”

10. In Kanwar Pal vs. Shakuntala And Ors. Crl. Rev.P.
345/2006, it was held by Hon’ble High Court of Delhi vide order
dated 29-01-2015, that:-

“In our view, onus was on the prosecution to prove beyond
reasonable doubt the ingredient of Section 498A, IPC and the essential
ingredient of offence under Section 498A is that the accused, as the husband
of the deceased, has subjected her to cruelty as defined in the Explanation to
Section 498A IPC. Similarly, for the Court to draw the presumption under
Section 113B of the Evidence Act that the appellant had caused dowry death
as defined in Section 304B, IPC, the prosecution has to prove besides the
demand of dowry, harassment or cruelty caused by the accused to the
deceased soon before her death. Since the prosecution has not been able to
prove beyond reasonable doubt this ingredient of harassment or cruelty,
neither of the offences under Sections 498A and 304B, IPC has been made
out by the prosecution.”

The concluding para read as under:

“40. I am of the considered opinion that to establish the offence
under Section 304B IPC of dowry death, the presumption under Section
113B of the Evidence Act cannot be raised against an accused until
independently the offence under Section 498A IPC is proved by leading
evidence to the specific allegation with regard to time and date of such
demand and cruelty and furthermore establishing the proximity live link
between the effect of cruelty based on dowry demand (offence under section
498A IPC) and the death of the victim.”

FIR No. 76/13 State Vs. Nishar Page 28 of 36

11. Now, let this court apply the above-mentioned principles
to the facts of the present case. Indisputably, the alleged incident
has taken place within seven years of marriage; it was accused
Nishar, who along with brother of deceased Shahrukh had got the
deceased admitted at JPN hospital, which fact stands proved
from dying declaration Ex. PW25/A; there was no demand of
dowry at the time of marriage as it was a love marriage between
the accused and the deceased.

12. It is pertinent to note that the present FIR was registered on
the basis of statement Ex. PW25/A of deceased, recorded by Sh.
R. C. Rahi, SDM, Seelampur at JPN hospital, where the deceased
was got admitted on being caught fire on 15-02-2013. There is
no mention of any demand of dowry from the side of accused.
Though there is mention of quarrel, yet the reason for which a
quarrel took place is nowhere mentioned. It appears that
initially, the deceased herself was provoking the accused by
saying in a fit of rage that, ” main aag laga loongi” whereupon,
the accused retorted by saying, “thik hai tu aag laga le”. The
statement Ex. PW25/A further reflects that after the deceased had
set herself on fire, it was accused who tried to save her.
Consequently, accused too received burn injuries which is
evident from his MLC no. 29682 Ex. CW1/B. The accused
Nishar had even taken the deceased to hospital for treatment.
Thus, it is manifest that there was heated exchange of words
between the accused and the deceased due to which the deceased
resorted to take extreme step of ending her life by setting herself
on fire.

13. In order to show that the accused had abetted the suicide of
deceased, it is incumbent upon the prosecution to show that the

FIR No. 76/13 State Vs. Nishar Page 29 of 36
accused had abetted the suicide. Abetment as per section 107 of
IPC, comprises of either instigation; or conspiracy; or intentional
aid. As per the prosecution case, the accused had instigated the
deceased to commit suicide. It is well settled that anything stated
in a fit a anger and emotion without intending the consequences
to actually follow cannot be said to be ‘instigation’. At this
juncture, it is pertinent here to refer the case of Mahendra Awase
Vs State of M.P in criminal appeal no. 221/2025 wherein the
Hon’ble Supreme court of India has observed as under:-

“To satisfy the requirement of instigation the accused by his act or
omission or by a continued course of conduct should have created such
circumstances that the deceased was left with no other option except to
commit suicide. It was also held that a word uttered in a fit of anger and
emotion without intending the consequences to actually follow cannot be
said to be instigated. xxxxxxx
The conduct of the proposed accused and the deceased, their
interactions and conversations preceding the unfortunate death of the
deceased should be approached from a practical point of view and not
divorced from day-to-day realities of life. Hyperboles employed in
exchanges should not, without anything more, be glorified as an instigation
to commit suicide”.

Thus, merely because the accused had stated to the
deceased to go ahead with the suicide on the provocation
emanating from the side of deceased herself to commit suicide, it
cannot be said that the accused had instigated the deceased to
commit suicide.

14. In order to establish the fact that the deceased was
subjected to cruelty soon before her death for or in connection
with demand of dowry, the prosecution has got examined seven
witnesses i.e. PW1 Reshma (mother of deceased), PW4 Nagma
(sister of deceased), PW5 Rifakat (father of deceased), PW6
Noor Jahan (neighbour), PW7 Sharukh (brother of deceased),
PW8 Nazrin (friend of deceased), PW9 Saira (neighbour). Out of

FIR No. 76/13 State Vs. Nishar Page 30 of 36
these witnesses, PW6 and PW9 have completely disowned the
case of the prosecution. They both categorically denied having
seen any quarrel between the accused and the deceased. There is
no reason to disbelieve their version as both are independent
witnesses. Further, indisputably PW1, PW4, PW5, PW7 and
PW8 are interested witnesses. All these witnesses have leveled
allegation against accused that the accused used to harass the
deceased and never used to give money to her. It is further
alleged that the accused used to give beating to the deceased on
the issue of demand of jhuggi to be fulfilled by her mother as her
mother was already having four jhuggis. It is pertinent to note
that both accused and deceased were residing in a tenanted
jhuggi after solemnizing a love marriage. As per the testimony of
family members of the deceased, the accused Nishar was also
unable to pay rent of the tenanted premises. The family members
had already met petty demands of accused- sometimes of Rs.
1500/- and sometimes Rs. 2000/- on various occasions. There is
nothing in their testimonies to indicate that the accused was
deliberately not earning to support his family. There is no
mention of any demand from the side of accused in the statement
Ex. PW25/A of deceased Aasma. Thus, it is apparent that
alleged demands from the side of accused were made for eking
out livelihood.

15. At this stage, this court deems it proper to refer the
observations of Hon’ble Andhra Pradesh High Court in the case
of “Amravati Pydipati Gangamma vs The State Of A .P. 3 Others
on 6 February, 2020″ as under:

“22. Apart from that, even if it is believed that there was a demand
of additional dowry of Rs.50,000/- for purchase of a tractor, since A-1 was a
tractor driver, the same, in my view, may not fall within the meaning of

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‘dowry,’ as defined under Sections 3 and 4 of the Dowry Prohibition Act,
1961. In Appasaheb and another Vs. State of Maharashtra‘s case1, the
Hon’ble Apex Court held that where the accused demanded money for
purchase of 1A.I.R. 2007 SC 763 11 manure so as to do his agricultural
operations or demanded money for the purpose of eking out his livelihood
by doing business, the same cannot be treated as ‘dowry’ in terms of Section
3 of the Dowry Prohibition Act”.

16. In Appasaheb and Anr. vs State of Maharashtra, AIR
2007 SUPREME COURT 763, it was held by Hon’ble Supreme
Court of India that:-

“in view of the aforesaid definition of the word “dowry” any property or
valuable security should be given or agreed to be given either directly or
indirectly at or before or any time after the marriage and in connection with
the marriage of the said parties. Therefore, the giving or taking of property
or valuable security must have some connection with the marriage of the
parties and a correlation between the giving or taking of property or
valuable security with the marriage of the parties is essential. Being a penal
provision it has to be strictly construed. Dowry is a fairly well known social
custom or practice in India. It is well settled principle of interpretation of
Statute that if the Act is passed with reference to a particular trade, business
or transaction and words are used which everybody coversant with that
trade, business or transaction knows or understands to have a particular
meaning in it, then the words are to be construed as having that particular
meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509
and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558).
A demand for money on account of some financial stringency or for
meeting some urgent domestic expenses of for purchasing manure cannot be
termed as a demand for dowry as the said word is normally understood. The
evidence adduced by the prosecution does not, therefore, show that any
demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act
was made by the appellants as what was allegedly asked for was some
money for meeting domestic expenses and for purchasing manure. Since an
essential ingredient of Section 304-B IPC viz. demand for dowry is not
established, the conviction of the appellants cannot be sustained”.

17. Thus, it is manifest from the above-mentioned rulings of
superior court that demand for eking out livelihood cannot be
considered as demand for dowry. There is no mention of the
specific dates on which the demand of jhuggi as alleged was
raised by the accused in the testimony of family members of the
deceased. In the opinion of this court, the prosecution has failed

FIR No. 76/13 State Vs. Nishar Page 32 of 36
to establish the fact that there was demand of dowry from the
side of accused. Further, the testimonies of PW1, PW4, PW5,
PW7 and PW8 nowhere reflects the exact manner in which the
deceased was allegedly beaten or the body parts on which she has
received injury, if any. There was no complaint made either by
the deceased or by any of her family members regarding demand
of dowry against the accused at any point of time prior to the date
of incident, which fact is admitted by the family members of the
deceased in their respective cross examination. As such, merely
on the basis of bald allegation of cruelty in the deposition of
PW1, PW4, PW5, PW7 and PW8 presumption u/s 113B of the
Indian Evidence Act cannot be drawn.

18. On careful analysis of evidence, it is evident that there is
no evidence of demand of dowry subjecting the deceased to
cruelty or harassment ‘soon before her death’, for or in
connection with demand of dowry. Presumption u/s 113B of the
Indian Evidence Act can be drawn only when the prosecution
first establishes essential ingredients of Section 498A of IPC. In
view of judgment of Kanwar Pal Vs. Shakuntala & Ors., (Supra),
presumption u/s 113B of Indian Evidence Act cannot be raised
against an accused until independently the offence under Section
498A of IPC is proved by leading evidence to the specific
allegation with regard to time and date of such demand and
cruelty and furthermore establishing the proximity live link
between the effect of cruelty based on dowry demand (offence
under section 498A IPC) and the death of the victim.

19. As already noted above, PW1 Reshma, PW4 Nagma, PW5
Rifakat, PW7 Sharukh and PW8 Nazrin have only levelled
general and omnibus allegations against both the accused persons

FIR No. 76/13 State Vs. Nishar Page 33 of 36
of subjecting the deceased to cruelty during her marriage
between 04.06.2012 to 15.02.2013.

20. In Preeti Gupta & Anr. Vs. State of Jharkhand, (2010) 7
SCC 3363, the Hon’ble Supreme Court of India stated that,
“the tendency of implicating husband and all his immediate
relations is not uncommon. At times, even after the conclusion
of the criminal trial, it is difficult to ascertain the real truth.
Hence, the courts have to be extremely careful and cautious in
dealing with these complaints and must take pragmatic realities
into consideration while dealing with matrimonial cases.”

21. In Anju Vs. Govt. of NCT of Delhi & Ors., Crl. Rev. P.
730/2016 decided on 04-02-2019, the Hon’ble High Court of
Delhi held that,
“9. Revisional Court has in my view committed no error in
coming to the conclusion that apart from general and omnibus
allegations roping in all the relations, there is no material on
record to justify framing of charge under Section 498A/34 IPC.
It may be noted that charge has already been framed against the
husband and he is facing trial.

10. For a charge to be framed, the evidence gathered by the
prosecution should not only give rise to suspicion but there
should be grave suspicion that the accused have committed the
offence.

11. In the present case apart from bald, omnibus allegations
without their being any specifics about date time or place, there
is no incriminating material found by the prosecution even
during investigation to give rise to grave suspicion against the
respondents.”

22. In Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar
& Ors, Crl. Appeal no. 195/22, Arising out of SLP (Crl.) no.
6545/20 dated 08-02-2022, the Hon’ble Supreme Court of India
held that,
“18. The above-mentioned decisions clearly demonstrate that
this court has has at numerous instances expressed concern over
the misuse of Section 498A IPC and the increased tendency of
implicating relatives of the husband in matrimonial disputes,
without analysing the long term ramifications of a trial on the
complainant as well as the accused. It is further manifest from
the said judgments that false implication by way of general

FIR No. 76/13 State Vs. Nishar Page 34 of 36
ombibus allegations made in the course of matrimonial dispute,
if left unchecked would result in misuse of the process of law.
Therefore, this court by way of its judgments has warned the
courts from proceeding against the relatives and in-laws of the
husband when no prima facie case is made out against them.”

23. In light of the above-mentioned observations of the
Superior Court, this court is of the opinion that the prosecution
has failed to establish the charge for the offence punishable u/s
498A of IPC against accused Nissar. Even in the postmortem
report Ex. PW3/A, there is no mention of any external
antemortem injury indicative of any physical assault apart from
burn injuries. As per the PM report Ex.PW3/A, the cause of
death of deceased was opined to be due to septicemia consequent
upon infected burn injuries. All injuries were opined to be
antemortem in nature and were caused by flames of fire.

24. Since the prosecution could not prove the essential
ingredients of Section 304B of IPC, the question of drawing
presumption against the accused Nissar u/s 113B of Indian
Evidence Act does not arise. Thus, the prosecution has failed to
prove the charge u/s 498A and 304B of IPC against accused
Nissar as well.

DECISION OF THE COURT

25. It is well settled that it is the duty of the prosecution to
prove the guilt of the accused beyond reasonable doubt.
Therefore, on the basis of the material available on the record,
the case of the prosecution becomes doubtful and the benefit of
doubt certainly goes in favor of the accused. The prosecution has
failed to prove its case beyond all reasonable doubts against the
accused. Accordingly, taking into consideration the facts and

FIR No. 76/13 State Vs. Nishar Page 35 of 36
circumstances of the case, accused Nishar is hereby acquitted of
the charges punishable u/s 498A/304B/306 of IPC and section 4
of D.P. Act. File be consigned to record room after compliance
of section 437A of Cr.P.C.

ANNOUNCED IN THE OPEN COURT
ON 20-05-2025
PANKAJ Digitally signed by
PANKAJ ARORA

ARORA 16:56:48 +0530
Date: 2025.05.21

(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 20-05-2025

FIR No. 76/13 State Vs. Nishar Page 36 of 36