JUDGMENT M. Chaudhary, J.
1. This is a government appeal filed on behalf of the State from the judgment and order dated 3rd of August 2000 passed by Ist Additional Sessions Judge Bijnor in sessions trial no. 397 of 1992 State v. Intzar Husain and Ors. acquitting them of the charge levelled against them under Sections 304B, 498A and 306 IPC.
2. Brief facts giving rise to this appeal are that Anis Ahmad lodged an FIR at police station Chandpur on 12th of April 1990 at 10:00 p.m. alleging that his sister Sahnaz Parveen was married with Intzar Husain son oOf Sharafat Husain on 24th of February 1989 according to Muslim rites. Since Intzar Husain was in the habit of not doing any job with sincerity the couple used to face financial crisis and the household expenses were used to be met by father-in-law of Sahnaz Parveen resulting in family clashes. Relations between Sahnaz Parveen and Intzar Husain got strained On 22nd of November 1989 Sahnaz Parveen gave birth to a male issue and their household expenses escalated. Since Sahnaz Parveen was used to be ill-treated and tormented in her in-laws' house she went to her parents' house on 26th of January 1990 and complained about the ill-treatment afflicted upon her by her husband and in-laws. Then her parents wanted to lodge a report regarding ill-treatment suffered by her at the hands of her husband and in-laws at the police station but on the intervention of some influential persons the report was not lodged at the police station and Israr Husain, 'Jeth' of Sahnaz Parveen went to her parents' house and on the assurance given by him to her parents that she would not be ill-treated or tormented in future she was sent with him to her matrimonial home. At about 8:00 p.m. on 12th of April 90 Nazakat Husain who happened to be the son-in-law of Ashfaq Ahmad in relation went to his house and told that huge crowd was collected at the house of in-laws of Sahnaz Parveen and as he tried to go inside the house he was pushed and turned out. Thereon Anis Ahmad and his father Ashfaq Ahmad alongwith some persons of the locality went to the matrimonial home of Sahnaz Parveen where Smt Nazma told them that since Sahnaz Parveen got burnt she was taken to Civil Hospital. Then Anis Ahmad and his companions went to the Civil Hospital where they saw Sahnaz Parveen lying in burnt condition wrapped in a quilt. Since the doctors were on strike no treatment was being provided and then Rais Ahmad took her to L L R Meerut Medical College for treatment. The police registered a crime against Intzar Husain and his family members under Section 498A IPC and made entry regarding registration of the crime in GD.
3. SI Hoshiar Singh to whom investigation of the crime was entrusted went at the scene of occurrence and collected empty container of kerosene lying near the bed in the bed room of Intzar Husain , a match box lying on the bed and a wooden 'petti' containing some rough wooden planks kept on the 'chhajli' in front of the house of Sarfaraj and prepared their memo (Ext Ka 8). He inspected the site and prepared its site plan map (Ext Ka 5). He also recorded statements of the witnesses. Then he went to LLR Meerut Medical College where he learnt that Sahnaz Parveen had succumbed to the burn injuries sustained by her. Then the case was altered under Section 306 IPC.
4. Inquest proceedings on the dead body of Sahnaz Parveen were drawn by SI Netra Pal Singh, police station Meerut Kotwali who prepared the inquest report (Ext Ka 8) and other necessary papers.
5. Autopsy on the dead body of Sahnaz Parveen conducted by Dr P.N. Khanna Medical Officer LLR Medical College Meerut on 13.4.90 at 4:00 p.m. revealed 100% burns (1st and 2nd degree) present all over the body and sooty blackening of particles present. Vesicles were present at places. Scalp hairs, pubic and axillary hairs were partly burnt and singed. Brain and its membranes, both the lungs and pleurae were congested. Passages of trachea and bronchi were full of soot particles. Liver, spleen and both the kidneys were congested.
6. The doctor opined that the death was caused due to shock and asphyxia as a result of ante mortem burn injuries about one day ago.
7. On 14th of Aprill, 1990 Ashfaq Ahmad, father of the deceased gave a report to the Superintendent of Police, Bijnor alleging that since the very inception of her marriage Shahnaz Parveen was used to be ill-treated and tormented by her husband and in-laws as they were not satisfied with the dowry provided in the marriage. Since Intzar Husain wanted to run a taxi he used to pressurize his wife Shahnaz Parveen to bring Rs. 20,000. 00 in dowry for purchasing a taxi. On 26thof January, 1990 she was turned out of her matrimonial home to bring Rs. 20,000. 00 cash from her parents and her infant child was retained by her in-laws. Then she went to her parents' house and told them about the ill-treatment suffered by her at the hands of her husband and in-laws for want of dowry. He also mentioned therein that his daughter Shahnaz was burnt to death by her husband and in-laws as their demand Rs.20,000. 00 cash in dowry could not be satisfied.
8. After completing investigation the police submitted charge sheet against accused Intzar Husain and Sharafat Husain under Section 498A and 306 IPC.
9. After framing of the charge against both the accused under Sections 498A and 306 IPC the prosecution examined Anis Ahmad (PW 1) the first informant. Then on the application of the prosecution accused Sarfaraj Husain was summoned under Section 319 of the Code of Criminal Procedure to stand trial alongwith the accused abovenamed.
10 Then after completing the statement of PW 1 Anis Ahmad the prosecution examined Ashfaq Ahmad (PW 2) and Smt Khurshida (PW 3) in its support. Testimony of rest of the witnesses is more or less of formal nature. PW 4 HC Vinod Prakash who prepared check report on the basis of the written report handed over to him by Anis Ahmad and made entry regarding registration of the crime in the GD has proved these papers (Exts Ka 3 & Ka4). PW 5 SI Hoshiar Singh who investigated the crime and submitted charge sheet against accused Intzar Husain and Sharafat Husain has proved the police papers.
11. Subsequently additional charge was framed against all the three accused under Section 304B IPC and an opportunity was given to the prosecution to re-examine the prosecution witnesses and lead additional evidence in its support.
12. The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely. However accused Sarfaraj Husain stated that he happened to be the 'Jeth' of the deceased and he tried to save Sahnaz Parveen and in that effort he also received burn injuries.
13. The accused examined Dr Hari Om Bansal (DW 1) and Dr A.S. Yadav (DW 2) in their defence.
14. DW 1 Dr Hari Om Bansal, a private medical practitioner practising at Chandpur stated that at about 9:00 p.m. the alleged night Sharafat Husain came to his house and told that his daughter in-law got burnt and he wanted to get her treated and that then he expressed his inability and advised him to take her to some higher centre. DW 2 Dr A.S.Yadav the then Medical Officer in-charge Primary Health Centre Zalilpur deposed that at 2:30 p.m. on 18th of April 90 he medically examined accused Sarfraj Husain and found below noted injuries on his person:
1. Burn injury on face from middle of forehead to the chin and from right pre auricular area to left pre auricular area with sloughing of superficial layer of skin with red colour of deeper skin with singeing of hairs of eye brows and moustaches. No pus was present in the wound.
2. Burn injury on the sternum 9 cm x 3 cm without any breach in layer of skin or blister formation. Slight red colour of skin.
3. Burn injury on whole of the dorsal aspect of right forearm just below the elbow joint up to finger tips. Skin sloughed out below the elbow joint and on the dorsum of right palm. Rest of the skin shows mild effect of heat on skin.
4. Burn injury on anterior, medial and lateral aspect of left forearm and dorsum of left wrist and palm upto the middle phalanx of all the fingers with sloughing of superficial layer of skin in rest of the burnt area with a blister on the middle finger dorsal aspect. Colour of skin was dark brown.
15. The doctor opined that the injuries were caused by dry heat. The injuries were simple in nature and about 6-7 days old in duration.
16. On an appraisal of the parties' evidence and material on the record the learned trial judge disbelieving the prosecution case and evidence held that demand of Rs.20,000.00 cash in dowry for purchasing taxi by husband and in-laws of the victim was not established. He further held that the accused did not abet suicide by Shahnaz Parveen nor she was subjected to cruelty in that connection resultantly the accused were held not guilty of the charge levelled against them and acquitted.
17. Feeling dissatisfied with the impugned judgment and order the State preferred this appeal assailing acquittal of the accused respondents.
18. We have heard learned AGA for the State appellant and Sri P.N. Misra learned counsel for the accused respondents and gone through the record.
19. Learned AGA for the State appellant argued vehemently that since the impugned judgment is perverse and unreasonable as relevant and convincing evidence and material have been unjustifiably eliminated evidence has to be reappreciated for the purpose of ascertaining if any of the accused really committed any offence or not. He also contended that accused Intzar Husain kept absconding upto 23rd of April, 1990 as he was not traceable to the police till then and accused Sharafat Husain was also absconding upto 19th of May, 1990 and proceedings under Section 82 and 83 of the Code of Criminal Procedure had to be resorted to for procuring his presence and this conduct of the accused goes against them. On the other hand learned counsel for the accused respondents argued that the learned trial judge has given cogent and convincing reasons for acquitting the accused and there is no good ground to interfere therewith.
20. A perusal of the impugned judgment and evidence on the record goes to show that the learned trial Court committed grave error in doubting the prosecution case and evidence and findings recorded by the Trial Court are based on faulty and erroneous appreciation of evidence resulting in miscarriage of justice. The learned Trial Court incorrectly observed that after summoning of accused Sarfaraj Husain under Section 319 of the Code of Criminal Procedure for facing trial alongwith the other accused statement of PW 1 Anis Ahmad was again recorded on 1.12. 98 and that only then for the first time he stated that some 8-10 days prior to the incident the accused had subjected his sister to cruelty as their demand of Rs 20,000. 00 cash in dowry could not be fulfilled. In fact additional charge under Section 304B IPC was framed against all the three accused on 1.12.98 and it was thereafter that an opportunity was given to the prosecution to re-examine its witnesses and lead additional evidence, if any. Further, a perusal of the statement of PW1 Anis Ahmad goes to show that the very first day when his examination-in-chief was recorded on 30th of September, 1994 he stated that the accused were dissatisfied with the dowry provided in the marriage of his sister Shahnaz Parveeii and they used to demand Rs 20,000. 00 cash in dowry; that his sister Shahnaz Parveen was used to be tormented and ill-treated as their demand of Rs 20,000. 00 cash could not be satisfied by her parents; that whenever Shahnaz Parveen used to visit her parents' house she used to complain about ill-treatment suffered by her at the hands of her husband and in-laws on that account and that feeling harassed on 26th of January 90 Shahnaz Parveen went to her parents' house and complained about the ill-treatment heaped upon her by her husband and in-laws. Then her father and brothers wanted to lodge an FIR about her sufferings with the police but some seasoned persons of the locality intervened and that thereafter Israr Husain 'Jeth' of Shahnaz Parveen and others went to his house and on the assurance given by Israr Husain that now she would be provided proper food and clothing and they would not ask for any dowry Shahnaz Parveen was sent to her matrimonial home. PW 2 Ashfaq Ahmad, father of the deceased corroborated him deposing likewise. However since there is no whisper regarding demand of dowry in the FIR lodged by Anis Ahmad, brother of the victim at the police station on 12th of April 1990 that part of prosecution evidence could not inspire confidence in this regard and has been left out of consideration.
21. However this much is established by the testimony of the three witnesses namely PW 1 Anis Ahmad, PW 2 Ashfaq Ahmad and PW 3 Smt Khurshida that since Intzar Husain was not sincere to his job he had no regular income and the couple had to face financial crisis and Shahnaz Parveen was used to be ill-treated and subjected to cruelty as she was not provided even bare necessities of life. She could not get milk even for her infant issue in her lap. It goes without saying that cruelty or harassment may not only be physical but also mental. Being a young able bodied person Intzar Husain was bound to earn money even by putting labour so as to meet the bare necessities of his wife and provide nourishment to her infant child. There is no dispute that Shahnaz Parveen used to do entire household work in her matrimonial home to her capacity and discharge her marital obligations. Under the circumstances it was the bounden moral and legal duty of Intzar Husain, husband of the victim to see that his wife and her infant child were being provided proper food and clothing at least according to their requirement. PW 3 Khurshida stated that Shahnaz had told her that even milk was not available for the child on account of financial crisis. Statements of PW 1 Anis Ahmad and PW 2 Ashfaq Ahmad in their examination-in-chief that Shahnaz Parveen was not getting even proper food and clothing have gone unchallenged. None of these two witnesses was given a suggestion even in cross-examination that she and her infant child were provided proper food according to their necessary requirements. If a married girl used to perform her duties in her matrimonial home faithfully but was not being provided even proper food and clothing and milk even for her infant child and was being harassed therefor by her husband who was young and healthy with earning potentiality it amounted to mental cruelty to her as she was being pestered, nagged and tormented for bare necessities of life. Obviously so harassed and tortured she committed suicide by pouring kerosene upon herself and litting with matchstick. She was married just on 24th of February, 1989 and compelled by the circumstances she was driven to put an end of her life on 12th of April, 1990.
22. Much emphasis has been laid down by the learned counsel for the accused respondents upon the fact that PW 1 Anis Ahmad did not mention in the FIR lodged at the police station Chandpur on 12th of April, 1990 at 10:00 p.m. that his sister Shahnaz Parveen was used to be ill-treated and tormented by her husband and in-laws and was not provided proper food and clothing even. This contention of the learned counsel for accused respondents has not got much substance in it. A perusal of the FIR goes to show that Anis Ahmad mentioned therein that 2- 3 months after her marriage his sister Shahnaz Parveen used to remain in tension and her relations with her husband got strained due to financial crisis as her husband Intzar Husainn was not sincere for his job and had no regular income; that feeling harassed and tormented she came back to her parents' house on 26th of January, 1990 and then they wanted to lodge an FIR regarding ill-treatment afflicted upon her at the police station but on the intervention of some seasoned persons of the locality and assurances given by her in-laws his sister was sent alongwith her 'Jeth' Israr Husain to her matrimonial home. No doubt Anis Ahmad, brother of the victim, did not specifically mention in the FIR that his sister was used to be subjected to cruelty and ill-treatment but mention of the fect in the FIR that being harassed and tormented she came back to her parents' house on 26th of January, 1990; that then they wanted to lodge a report of the matter at the police station but on the intervention of the mohalla people and assurances given by her 'Jeth' Israr Husain she was sent back with her 'Jeth' to her matrimonial home speaks volumes as to what was transpiring between Shahnaz Parveen on one hand and her husband and in-laws on the other due to idleness of Intzar Husain and resultant financial crisis in that family. FIR regarding matrimonial matters is somewhat different from the cases of assault, murder etc. In those cases the incident is witnessed by some persons and all the salient features of the incident are mentioned in the FIR but the matrimonial matters in which life of a daughter or sister is involved are very sensitive one and the family members take every precaution when compelled to report any matter with the police that nothing so adverse is written in the FIR which may affect her life in the times to come. Since Sahnaz Parveen was rushed to LLR Medical College Meerut for her treatment her brother Anis Ahmad might have taken precaution and on that account he might not have stated everything openly in the FIR in the interest of welfare of his sister Sahnaz Parveen as she also had an infant child at that time.
23. Now we shall see as to what offence was committed by all the accused or any of them. This much has been established by the testimony of PW 1 Anis Ahmad, PW 2 Ashfaq Ahmad and PW 3 Smt Khurshida that Shahnaz Parveen was subjected to cruelty or harassment by her husband Intzar Husain as she was not provided bare necessities of life including proper food and clothing and her infant child was deprived of nourishment which he was dutybound to provide her. We may mention here that since Ashfaq Ahmad, father of Shahnaz Parveen used to earn his livelihood by putting labour as he was a mason she was brought up and got grown up in a most ordinary family she would have needed only that much which was necessary for her sustenance. To say the other way, she would have had no expectations greater than bare necessities of life which too were denied to her and her infant child.
24. Since there is no mention in the FIR that any demand was made for dowry by any of the accused and she was subjected to cruelty or harassment in connection with demand of dowry, the provisions of Section 304B are not attracted.
25. Now we shall see if the offences under Sections 498A and 306 IPC were committed by any of the accused. Section 498A IPC has been introduced in the Code to deal effectively not only with cases of dowry death but also cases of cruelty to married woman by husband and his relatives. Section 498A IPC lays down:
26. 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 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.
27. Section 113A of the Evidence Act lays down as to when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act 1983. Since Smt Shahnaz Parveen was living with her husband Intzar Husain in the joint family and there is no dispute that she used to do the entire household work to her capacity and discharge her matrimonial obligations her husband Intzar Husain was morally and legally dutybound to provide her and her infant child bare necessities of life comprised of proper food and clothing according to their requirement. It is established that Shahnaz Parveen was not even provided proper food and clothing and her infant child was deprived of nourishment by her husband .
28. A perusal of the inquest report goes to show that the dead body of Shahnaz Parveen was emitting smell of kerosene badly. The investigating officer found empty container of kerosene lying near the bed of Shahnaz Parveen in her bed room and match box lying on the bed. Since the post mortem did not reveal any ante mortem injury on the dead body excepting burn injuries and her 'Jeth' Sarfaraj Husain also received burn injuries in the effort of saving her it appears that in all probability compelled by the circumstances she was driven to commit suicide . Accused Intzar Husain kept absconding upto 23rd of April, 1990 as he was not traceabale to the police till then. It has come in evidence that when Anis Ahmad (PW 1) and Ashfaq Ahmad (PW 2) reached the Civil Hospital, Bijnor Shahnaz Parveen having received burn injuries wrapped in a quilt was lying at the gate of the Hospital and neither her husband nor any of his family members was present there. This conduct of the accused Intzar Husain , husband of the victim soon after the incident cannot be termed to be normal conduct of innocent person.
29. In view of the presumptive Section 113A of the Evidence Act we presume that compelled by the circumstances mentioned above feeling harassed and tormented passing a miserable life Smt. Shahnaz Parveen with her starving infant child was driven to commit suicide as she was not being provided even bare necessities of life and her infant child was deprived of nourishment by her husband Intzar Husain and thus the suicide was abetted by the latter.
30. Accused Intzar Husain did not offer any explanation as to why his wife Shahnaz Parveen was driven to commit suicide almost within 14 months of her marriage nor did he adduce any evidence in this regard.
31. Accused Sharafat Husain who happened to be the father-in-law of the victim and accused Sarfaraj Husain, who happened to be her 'Jeth' were not legally dutybound to see if Shahnaz Parveen and her infant child were being provided bare necessities of life in presence of her husband who was young and healthy having earning potentiality. Moreover contention of accused Sarfaraj Husain, 'Jeth' of the deceased is that he received burn injuries in the effort of saving the victim which is supported by medical evidence on the record. Accused respondents Sharafat Husain and Sarfaraj Husain are therefore held not guilty of any of the charges levelled against them and they are entitled to acquittal.
32. Since the learned trial Judge failed to appreciate the evidence on record in its true perspective the impugned judgment acquitting accused Intzar Husain can not be maintained in law and is liable to be set aside. The impugned judgment and order acquitting accused Intzar Husain is hereby set aside. He is held guilty of the offences punishable under Sections 498A and 306 IPC. Accused Intzar Husain convicted under Sections 498A and 306 IPC is sentenced to one year's and seven years' rigorous imprisonment respectively thereunder. Both the sentences shall run concurrently. Accused respondent Intzar Husain is on bail. He shall be taken into custody forthwith and sent to jail to serve out the sentence imposed upon him. Acquittal of accused Sarfaraj Husain and Sharafat Husain is hereby confirmed. The appeal stands disposed of accordingly.
33. Chief Judicial Magistrate Bijnor is directed to get accused respondent Intzar Husain arrested and lodged in the jail to serve out the sentence imposed upon him.
34. Office is directed to send certified copy of the judgment alongwith record of the case to the court below immediately for necessary compliance under intimation to this court within three months from today.