Judgment:
Sharma, J.
1. Three appellants Batool (mother-in-law) Fakruddin (husband) and Sanno (sister-in-law) were indicted before the learned Special Judge Women Attrocities and Dowry Cases cum Additional Sessions Judge, Jaipur in Session Case No. 112/1997 for the offences of cruelty and dowry death of bride Razia. They were found guilty, convicted and sentenced vide judgment dated August 28, 1997 under Sections 304B, 498A, and 120B of the Indian Penal Code as under -
1.
Batool
U/s. 304-B IPC
To suffer imprisonment for lifeand fine of Rs. 1000/- and in default of payment of fine to further sentenceof 6 monthsR.I.
2.
Fakruddin
u/S. 498-A IPC
To suffer 3 yearsRl and fine of Rs. 500 in default to further suffer 3 monthsRI.
3.
Sanno
u/S. 304-8 IPC
readwith 120-B IPC
To suffer imprisonment for lifeand fine of Rs. 1000/- and in default of payment of fine to further sentenceof 6 monthsR.I.
u/S. 498-A IPC
To suffer 3 yearsRl and fine of Rs. 500 in default to further suffer 3 monthsRI.
All the sentences were ordered to run concurrently.
2. The prosecution case as pictured during trial is based n a written report lodged by Abdul Mazid around 7.30 a.m. on May 24, 1993 with the SHO Police Station Nimadi, Jaipur on the basis of which crime No. 119/93 under Sections 498A, 307 IPC was registered. It was interalia stated by the informant in the report that his daughter Razia (now deceased) who married to Fakruddin some two and half years ago, used to be harassed by the appellants in not meeting their demand of scooter, fridge and cooler. Around 11.30 p.m. in the preceding night when Razia along with her children was in her room the appellants poured kerosene on her and by igniting match stick set her ablaze as a result of which Razia sustained severe burn injuries and was admitted to the Hospital. The Judicial Magistrate recorded dying declaration of Razia at 5.40 a.m. after Dr. Manoj Bansal certified that she was in a fit condition to give statement/Razia died in the hospital and case was converted under Section 304B IPC. Autopsy on the dead body of Razta was conducted. Inquest report was drawn and appellants were arrested. Tin of kerosine got recovered at the instance of appellant Fakruddin whereas recovery of Match-box was effected at the instance of Batool. Recovered articles were sent to FSL. On completion of the Investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, Women Attrocities and Dowry Cases cum Additional Sessions Judge, Jaipur. Charges under Sections 120B, 304B IPC and 498A IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution examined as many as 26 witnesses in support of its case. In their explanation under Section 313 Cr.P.C. the appellants claimed innocence and pleaded that they have been falsely Implicated in the case. On hearing the final submissions, the learned trial Judge convicted and sentenced the appellants as indicated hereinabove.
3. The primary requirements for finding the appellants guilty of the offence under Section 304B IPC are that death of the deceased was caused by burns within seven years of her marriage and that 'soon before her death' she was subjected to cruelty or harassment by the appellants for or in connection with the demand for dowry.
4. From the statements of Abdul Mazid (PW.11) and Bismilla Khatoon (PW.14) it is evident that marriage of deceased Razia had taken place about two and half years before the date of incident. Dr. Yogendra Sharma (PW. 19) who conducted autopsy on the dead body of Razia testified that the death was caused by burns on May 24, 1993. Thus it is established that the death of Razia took place within seven years of her marriage by burns.
5. At this juncture we deem it appropriate to consider the provisions contained in Section 113B of the Evidence Act, which provides thus-
'113-B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.'
6. Learned counsel appearing for the appellants contended that there is no evidence on record to show that soon before her death Razia was either treated with cruelty or harassed with the demand of dowry and in absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. Learned counsel took us through the statements of Abdul Mazid (PW.11), Bismilla Khatun (PW.14), Ram Babu Chaturvedi (PW.16), Dr. Manoj Bansal (PW.24) and Dr. Savita S. Chandra (PW. 23) and canvassed that as Razia received 100% burns on all parts of her body and she was not in a fit state to give statement. Learned counsel further canvasses that the prosecution has failed to establish the guilt against the appellants beyond reasonable doubt. Reliance is placed on Sunil Bajaj v. State of M.P. (1), Sunil Palta and Anr. v. State (2), Maniram v. State of M.P. (3), Dandu Lakshmi Reddy v. State of A.P. (4), Uka Ram v. State of Rajasthan (5), Arvind Singh v. State of Bihar (6), Ramilaben Hasmukhbhai Khristi and Anr. v. State of Gujrat (7), Desh Bandu and Anr. v. State of Rajasthan (8) and Mahesh Sharma @ Bablu v. State of Rajasthan (9).
7. Per contra, learned Public Prosecutor supported the impugned judgment and contended that Dr. Manoj Bansal, who was the duty doctor at the relevant time gave a certificate at 5.30 a.m. that Razia was in a fit state to give statement and the Magistrate Rambabu Chaturvedi recorded her statement at 5.40 a.m. Thus there was no reason to disbelieve their testimony. The learned Public Prosecutor further urged that as Razia was treated with cruelty soon before her death for the demand of dowry and she died within 7 years of her marriage, the provisions of Section 113B of the Evidence Act are attracted.
8. Let us now, analyse the prosecution evidence in order to adjudge as to whether it is established that soon before her death Razia was either treated with cruelty or harassed with the demand of dowry.
9. Usman Khan (PW.1), Shyam Lal (PW.3), Ismail Khan (PW.7), Abdul Latif (PW.9), Abdul Gaffar in locality did not support the prosecution case and were declared hostile. Abdul Mazid (PW.11) the father of deceased Razia is a police officer. In his deposition he stated that on May 23, 1993 he received information over telephone that his daughter Razia was burnt. He rushed to the Hospital where Razia told him that the appellants set her ablaze by pouring kerosene. Razia, many a times told her mother that the appellants used to harass her for dowry: In his cross examination Abdul Mazid However admitted that Razia did not ever make complaint to him about demand of dowry. He further deposed that his wife had a talk with Razia in the hospital for 10-15 minutes and no other person was present at that time and she remained most of time with Razia. He also stated that he had already gifted fridge and cooler to Razia therefore question of demand of these articles did not arise. On his pursuation Batool allowed Razia and Fakruddin to live separately and for the last six months they were living independently. Abdul Mazid admitted that system of dowry never prevailed in Muslim community. He stated that Razia did not attend the marriage of her maternal aunt's son which had taken place around 9.30 p.m. He admitted that all the fingers of both the hands of Fakruddin got burnt and he was taken to the hospital by the inhabitants of his locality. Bismilla Khatoon (PW.14) deposed that Razia was 1treated with cruelty by the appellant Fakruddin and he used to harass and best her. After Razia was admitted to the hospital, immediately after her admission she had a talk with Razia for 10 minutes. At that time no other person was present. Bismilla stated that appellants demanded Hero Honda and land in dowry and Razia was burnt because this demand was not fulfilled by them. Ram Babu Chaturvedi (PW. 16) learned Magistrate stated that on May 24, 1993 at 4.45 a.m. he was directed by the Chief Judicial Magistrate vide Ex. P.29 to record the statement of Razia, who was admitted in Burn Unit of SMS Hospital. He reached to the Hospital where Dr. Manoj Bansal by making endorsement on Ex.P.29, certified that Razia was in a fit condition to give statement. Rambabu Chaturvedi then recorded the statement of Razia, Dr. Manoj Bansal (PW.24 stated that Razia was in a fit state to give statement and he made an endorsement to this effect on Ex.P.29.
10. Dr. Gopal Chaudhari (PW.26) examined the injuries of Razia at 12.55 a.m. on May 24, 1993 after she was admitted in Burn Unit. As per injury report (Ex.P.39) first to third degree burn lesions with blackening, pealing, blister formation and red line of demarcation were present on head, face, neck both upper extremities, both lower extremities, both buttocks and genitals as a whole. Kerosene like smell was present over scalp hair tuff. Razia had also sustained following injuries :-
(A) Lacerated would of size 2 cm. x 1/2 cm x scalp tissue deep over Rt. side forehead fresh clotted blood and diffuse swelling.
(B) Abrasion of size 1/2 cm. x 1/2 cm. on dorsum of Lt. hand thumb reddish clotted blood. Razia was conscious and oriented well put her general condition was not satisfactory. In the cross examination Dr. Gopal Chaudhari stated that on being repeatedly questioned Razia told him that she was burnt by her inlaws and except this she did not say anything.
11. A look at the dying declaration (Ex.P.30) of Razia Demonstrates that it was recorded at 5.40 a.m. on May 24, 1993 by Ram Babu Chaturvedi, the Additional Munsif and Judicial Magistrate No. 12 Jaipur City after Dr. Manoj Bansal testified that she was fit to give statement. Razia deposed that around 11.30 p.m. she was sitting in her room. As her son was weeping she did not sleep. She was married to Fakruddin two and half years back and she gave birth to one son and one daughter. Her mother in law and husband used to quarrel with her for the demand of dowry. They used to demand cooler, scooter etc. While she was sitting on the floor and her children had slept, Fakruddin, Sanno, Batool and Munni entered her room, Fakruddin had a tin of Kerosene, who poured kerosene on her and Batool ignited match stick and set her ablaze.
12. Appellant Fakruddin in his explanation under Section 313 Cr.P.C. stated that on the date of incident Razia repeatedly asked him to take her to the marriage function which was organised at Amer in her parental house but looking to the night hours he promised to take her next day. Thereafter he alongwith his father went to attend the marriage. On corning back from marriage he slept on the roof by the side of Razia. Finding her son weeping Razia got up, held her son and proceeded downwards. After sometime he heard shrieks. He then went downwards and found the door locked. He had seen smock coming out of the windows. In the meanwhile neighbours reached and the door broke open. He made attempt to extinguish fire and in the process got his hands burnt. He never made demand of dowry and did not quarrel with his wife. He and Razia had gone to Mussorie for a pleasant trip. At the time of incident his mother and sisters were sleeping on the roof.
13. Appellant Batool in her statement deposed that she was sleeping on the roof. She never demanded dowry. Razia was hot tempered therefore she got her and Fakruddin separated from the joint family. They had their separate Ration Card. Appellant Sanno also denied to take part in the crime and stated that she was sleepingon the roof.
14. The fact situation deduced from the material on record may be summarised thus-
(i) Razia and Fakruddin got married two and half years before the incident.
(ii) Abdul Mazid, the father of Razia was ASI and Fakruddin was driver in the Police Department.
(iii) On the date of incident Razia wanted to attend marriage function organised in her parental house but she was not allowed.
(iv) Leaving Razia in the house, Fakruddin himself had gone to attend marriage and returned late.
(v) As per her dying declaration the three appellants came to herroom. Fakruddin poured kerosene on her and Batool ignited matchstick and set her ablaze. The appellants used to demand cooler,scooter etc. and harass her.
(vi) As per the explanation of Fakruddin, Razia was on the roof and finding her son weeping, she went downwards. On hearing her shrieks when he went down he found the door of the room locked. The door broke open in the presence of neighbours and Razia was found burnt inside the room. He made attempt to extinguish fire and got his hands burnt. At that time his mother and sisters were sleeping on the roof.
(vii) According to Abdul Mazid, Fridge and cooler had already, been gifted to Razia and both Fakruddin and Razia were living separately from the joint family for the last six months. Fakruddin never made demand of dowry to him and system of dowry never prevailed in muslim community. Immediately after Razia was admitted to hospital, her mother Bismilla remained with her for 10 minutes and had a talk with her. At that time no other person was present. Bismilla also admitted to have a talk with Razia and remain with her exclusively for ten minutes.
(viii) Razia was admitted to the hospital at 12.30 a.m. on May 24, 1993 but her dying declaration was recorded at 5.40 a.m. i.e. after five hours of her admission in the hospital.
(ix) In addition to first to third degree burn lesions, over all the parts of her body, Razia sustained one lacerated wound of size 2 cm. x 1/2 cm. x scalp tissue deep over right side of forehead and one abrasion of size 1/2cm. x 1/2cm. on dorsum of left hand thumb.
(x) In the site plan drawn by the Investigating Officer door of the room where incident had taken place, was not found broken.
(xi) AS per the statement of Bismilla, the appellants used to demand Hero Honda and land whereas according to dying declaration of Razia the appellants demanded cooler, scooter etc.
15. It is thus evident that appellant Fakruddin and his father in law Abdul Mazid both were serving in the police department and Fakruddin never made demand of dowry from Abdul Mazid. Razia was short tempered and on pursuation of her father Abdul Mazid, Razia and Fakruddin got separated from the joint family and on the date of incident they were living separately in an independent portion of the house. Razia became infuriated as she was not allowed to attend the marriage ceremony of her near relative. From the explanation of Fakruddin it appears that after he came back from the marriage ceremony he found Razia sleeping on roof and he also slept by her side. Thereafter Razia came downwards with her son. On hearing her shrieks he came down and broke open the door and found Razia in flames. He then made attempts to extinguish fire and got his hands burnt. From the facts that stare in the face of record we find half truth in the explanation of Faqruddin. It is difficult to believe that Razia who was sleeping on the roof peacefully, would come downwards without any reason and set herself ablaze. As already noticed by us that Razia had sustained lacerated would over right side of her face head and abrasion on dorsum of left hand thumb. Undoubtedly something had happened at the roof that forced Razia to come downwards with her son. So far as her dying declaration is concerned we find that there was ample opportunity for her mother Bismilla to influence her mind. The dying declaration was recorded five hours after Razia was admitted to the hospital and the possibility that she was tutored by her mother to implicate the appellants cannot be ruled out in view of clear admission of Bismilla herself that she had a talk for ten minutes with Razia immediately after her admission to the hospital and no one was present there. In T.K. Reddy v. State of A.P. (10), their Lordships of the Supreme Court did not place reliance on the dying declaration of declarant recorded, by the Magistrate where there was ample opportunity for others to influence the mind of the deceased and the statement made before the Magistrate was contrary to the facts available on record.
16. In the instant case what the prosecution achieved in proving at the most was that Razia and Fakruddin got separated from the joint family six months before the date of incident and on the fateful night Fakruddin returned to his house late after attending marriage and went to the roof where Razia was sleeping. After some time Razia came downwards and thereafter, was found badly burnt in a room. It is not unlikely that at the roof on showing anger by Razia, Fakruddin beat her and caused lacerated wound and abrasion on her person on account of which Razia lost her mental balance and set herself ablaze. Fakruddin thus abetted Razia in committing suicide. We find the explanation of Fakruddin that he broke open the door, as untrue on the face of the record. Undoubtedly he made attempt to extinguish fire and got burnt his both the hands, but this fact does not absolve him from his act of cruelty. We however find prosecution evidence unreliable qua Batool and Sanno. Once Razia and Fakruddin got separated and started living in an independent portion of the house we find it difficult to believe that Batool and Sanno took part in committing the crime. The declaration of Razia before the Magistrate cannot be relied upon as she was tutored by her mother Bismilla. The prosecution has failed to give any explanation as to why the dying declaration was recorded after a delay of five hours. Even otherwise the facts stated in the declaration in regard to dowry are contrary to the facts available on record. We are satisfied that although the death of Razia was caused by burns within seven years of marriage but soon before her death she was not harassed by the appellants for or in connection with the demand of dowry. We find ourselves unable to draw presumption under Section 113B of the Evidence Act against the appellants.
17. There is overwhelming evidence in the case to establish that Razia's life was made intolerable by Fakruddin by ill beating her frequently. On the day of the incident she was not permitted to attend marriage ceremony of her near relative and Fakruddin went to attend marriage leaving her along in the house. When she expressed her anger she was beaten by Fakruddin. Such a cruel behaviour by Fakruddin would have certainly been seen by Razia as an instigation to her to commit suicide otherwise she would not have set fire to herself immediately after going downwards. Razia would not have easily reconciled herself to forsaking her small children and commit suicide. No mother, however distressed and frustrated, would easily make up her mind to leave her small children in the lurch and commit suicide unless she had been goaded to do so by someone close to her. The appellant Fakruddin thus is found guilty under Section 306 IPC in abetting Razia to commit suicide. We however find that prosecution has failed to establish the charge under Section 304B IPC against appellants Fakruddin, Batool and Sanno. Charges under Sections 498A and 120-B IPC against appellants Batool and Sanno also do not prove beyond reasonable doubt.
18. From the record it appears that although a charge specifically under Section 306 IPC was not framed against appellant Fakruddin but all facts and ingredients constituting that offence were mentioned in the statement of charges framed under Section 498A and 304B IPC and Fakruddin can be convicted and sentenced under Section 306 IPC. In K. Prema S. Rao v. Yadla Srinivas Rao (11), their Lordships of the Supreme Court propounded thus (Para 22)
'Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet the situation like the one before us. From the statement of charge framed under Section 304B and in the alternative Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial judge to mention Section 306 IPC. with section 498 A IPC does not preclude the court from convicting the accused for the said offence when found proved.'
In para 25 their Lordships further observed as under. :-
'As provided in Section 215 Cr.P.C. omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessary to remit the matter to the trial court for framing charge under Section 306 IPC and directa retrial for that charge. The accused can not legitimately complain of any want of opportunity to defend the charge under Section 306 IPC and a consequent failure of justice, the same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing 'dowry death' under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet charge under Section 498A IPC.'
19. As a result of the foregoing discussion we dispose of the instant appeal as under -
(i) Appeal of appellants Batool and Sanno is allowed and they standacquitted from the charges under Sections 304B, 498A and 120BIPC. They are on bail, they need not surrender and their bail bondsstand discharged.
(ii) We partly allow the appeal of appellant Fakruddin and acquit him from the charge under Section 304B IPC. Instead we convict him under Section 306 IPC. Appellant Fakruddin is in custody for a period of more than seven years and in our opinion ends of justice would be met in sentencing him to the period he has already undergone in prison and fine of Rs. 30,000/- to be paid as compensation to the parents of the deceased. In the event of non payment of fine, appellant Fakruddin shall suffer imprisonment for a further period of one year. We however confirm the conviction and sentence awarded to appellant Fakruddin under Section 498A IPC. Fakruddin has already undergone sentence awarded to him under Section 498A IPC. Therefore on depositing the fine in the sum of Rs. 30,000/- (under Section 306 IPC and Rs. 500 (under Section 498A IPC) with the Deputy Registrar (Judicial) the appellant Fakruddin shall be set at liberty if not required in any other case.
20. Impugned judgment of learned trial judge stands modified as indicated above.