JUDGMENT
A.S. Tripathi, J.
1. This appeal has been filed against the judgment and order dated 15.12.1994 passed by 1st Additional Sessions Judge of Gwalior convicting all the appellants Under Section 498A, IPC and sentencing each of them to undergo two years RI and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo one month’s S.I. Appellant Kasim Beg has also been convicted Under Section 364, IPC and has been sentenced to five years RI and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo three months’ S.I.
2. Facts of the case are that Smt. Guddi was the legally wedded wife of appellant Kasim Beg. She was living with him. She was married with the appellant Kasim Beg sometime in the year 1983. A son was born from their wedlock. The son was living with the appellant Kasim beg. According to the prosecution version, Smt. Guddi was not being properly treated by the appellants in their family. She was being tortured off and on and she had to run to her parents’ house for shelter and maintenance.
3. On 23.11.1991 it is alleged that Smt. Guddi was turned out from the house by Kasim Beg. Thereafter, whereabouts of Smt. Guddi were not known. A report was lodged on 23.11.1991 by the brother of Smt. Guddi, PW 1 Aizaz Beg that his sister Smt. Guddi has been abducted with a view to commit her murder. It was further alleged that all the appellants were torturing Smt. Guddi before that, and they were demanding dowry like TV, Fridge etc. The matter was investigated and the appellants were charged Under Section 498A, IPC. Appellant Kasim Beg was also charged Under Section 364, IPC.
4. The prosecution had examined as many as ten witnesses. PW 1 Aizaz Beg is a brother of Smt. Guddi. PW2 Manjoor Beg is another brother of Smt. Guddi. PW 3 Latif Beg is an uncle of Smt. Guddi. PW 4 Mst. Sharifan is the mother of Smt. Guddi. These witnesses were examined on the point of facts. They had stated regarding the torture made to Smt. Guddi by the appellants. Other witnesses like PW 5 Mohd. Ali, PW6 Azad Ali and PW 7 Ramesh Chandra Sharma are formal witnesses. PW 8 Munna Khan was examined by the prosecution itself to show that appellant Kasim Beg had shifted to Bhopal and Smt. Guddi was living with him there. Kasim Beg had lodged an FIR at Bhopal alleging therein that Smt. Guddi had eloped with one Usman and since then she became untraceable. PW 9 Ajmal Beg had also deposed in respect of the torture made to Smt. Guddi. PW 10 R. A. Tiwari had submitted the challan after investigation.
5. The appellants had denied the charges, but did not adduce any evidence in defence.
6. The Trial Court after assessing the evidence on record came to the conclusion that the charge Under Section 498, IPC has been made out against all the appellants and the charge Under Section 364, IPC was proved against appellant Kasim Beg only, and they were convicted and sentenced as aforesaid.
7. I have heared M/s. Rakesh Saxena and D.R. Sharma, learned Counsel for the appellants/accused, and Mr. M.M. Qureshi, Deputy Government Advocate for the State, and examined the record.
8. The first contention raised on behalf of the appellants was that so far as charge Under Section 364, IPC is concerned, it is not made out against the appellant Kasim Beg. Learned Counsel for the appellants pointed out that Smt. Guddi was legally wedded wife of Kasim Beg. She was living with him at the time of the alleged incident. The custody of appellant Kasim Beg was lawful. In these circum- stances if the wife of appellant Kasim Beg disappeared, it could not be presumed that there was any element of abduction on his part in respect of his own wife. Reliance was placed on the case of Sardar Hussain v. State of U.P., reported as AIR 1988 SC 1766.
9. The ingredients mentioned in Section 364, IPC are that there must be an element of abduction or kidnapping against the person with a view to commit his murder or putting in danger of being murdered. Since Smt. Guddi was the legally wedded wife of appellant Kasim Beg, who was a lawful gardian at the time of the incident, the element of kidnapping is not proved on record. The question of abduction against does not need consideration in view of the fact that Kasim Beg himself had lodged a report regarding elopement of Smt. Guddi with on Usman Beg and this fact is proved on record by the statement of PW 8 Munna Khan, who was produced by the prosecution. Munna Khan had admitted that Kasim Beg had disclosed to him that his wife Smt. Guddi had eloped with one Usman Beg and he was searching for her. Thereafter he had lodged a report at the Police Station. The FIR lodged by appellant Kasim Beg is not proved on record, yet it is a part of the diary which has been retained on record by the Trial Court. A bare perusal of the FIR lodged by the appellant Kasim Beg indicates that his wife Smt. Guddi had eloped with one Usman Beg. The FIR lodged by the prosecution witness Aizaz Beg was after the FIR lodged by appellant Kasim Beg on 6.1.1991 at Police Station Kangalwara, Bhopal.
10. Appellant Kasim Beg had already lodged an FIR regarding elopement of his wife Smt. Guddi with one Usman Beg. The FIR in the present case was lodged on 23.11.1991 that the reporter and his family members had suspicion that Smt. Guddi might have been adducted with a purpose to be murdered. The FIR lodged on suspicion was belied by the fact that appellant Kasim Beg had already lodged an FIR in this respect earlier. The element of kidnapping is also absent in this case. The element of abduction has also not been proved by the prosecution by adducing any such evidence to the effect that Smt. Guddi was taken away by Kasim Beg his family members with a view that she may be murdered. Since no evidence has been adduced on this point and heavy burden was upon the prosecution to prove the same. The charge Under Section 364, IPC could not be made out on the mere presumption and the same has not been established, in absence of any evidence.
11. On the other hand, the prosecution’s own witness Munna Khan, PW 8, admits that wife of appellant Kasim Beg had eloped with one Usman Beg and appellant Kasim Beg had lodged an FIR at Bhopal in that respect earlier, on 6.11.1991.
12. In view of the two sets of evidence on record and the evidence adduced by the prosecution itself, it is difficult to accept the contention of the prosecution that there was an abduction by the husband himself of his legally wedded wife with a view to commit her murder.
13. The Trial Court while discussing this point in paras 33 and 34 of its judgment has simply presumed that since Smt. Guddi was untraceable, there was an element of abduction with a view to commit her murder. In criminal law, presumption of any fact cannot be raised against an accused. It required positive proof to establish the same, in which the prosecution had miserably failed. In absence of any reliable evidence on record and in view of the fact that there is no circumstance suggestive of the fact that appellant Kasim Beg had adopted any process in abduction of his own wife, rather her elopement has been put on record by lodging FIR and examining PW 8 Munna Khan by the prosecution indicates that there may be a doubt in respect of disappearance of Smt. Guddi and since presumption of offence cannot be raised and no proof has come on record the charge Under Section 364 is not made out against the appellant Kasim Beg.
14. So far as the charge Under Section 498A, IPC is concerned, there is evidence of prosecution witnesses like two brothers of Smt. Guddi, namely PW1 Aizaz Beg and PW 2 Manjoor Beg and her mother Mst. Sharifan to establish that Smt. Guddi was being treated with cruelty by appellant Kasim Beg and he was demanding dowry after marriage and Smt. Guddi was tortured off and she had to take shelter in her parents house. Several times, appellant Kasim Beg used to bring her from her parents’ house after assuring them that no torture will be made to her in future. In view of the statement of prosecution witnesses Aizaz Beg, Manjoor Beg and Smt. Sharifan, there is no doubt that Smt. Guddi was not properly treated by appellant Kasim Beg and the treatment made to her amounts to cruelty in view of the fact that demand of dowry was also there and Smt. Guddi had to run to her parents’ house for shelter which was in the nearby town of Dholpur. The Trial Court had rightly assessed the evidence on this point and rightly held the appellant Kasim Beg guilty under Section 498A of the Indian Penal Code and he was rightly convicted for the same.
15. So far as other appellants like Chinga Beg, Shrimati Muradan, Subhan Beg and Rasid Beg are concerned, there is no reliable evidence to show any cruelty on their part towards Smt. Guddi. They are family members of the appellant Kasim Beg and were living separately. Appellant Kasim Beg himself was a labourer living separately at Gwalior. Later on he had shifted to Bhopal only for labour work. In these circumstances, it cannot be said that other family members had any concern with the treatment with the wife of appellant Kasim Beg, who was primarily responsible as husband to keep his wife properly and maintain her. There is no cruelty shown to Smt. Guddi by the family members of appellant Kasim Beg who were living separately, and there is no statement to the effect that the family members of the appellant Kasim Beg had also taken part in the ill treatment to Shrimati Guddi alongwith others.
16. Since appellant Kasim Beg was living separately and he was the husband of Smt. Guddi, his treatment certainly amounts to cruelty to his wife, but no treatment as regards other family members had come on record to establish that they had taken any active part in giving ill-treatment to Smt. Guddi.
17. Therefore, I find that the Trial Court erred in holding other appellants Chinga Beg, Smt. Muradan, Subhan Beg and Rasid Beg guilty Under Section 498A, IPC. They were living separately. They had no concern with Smt. Guddi when Smt. Guddi and appellant Kasim Beg were living separately, and accordingly, they were entitled to acquittal.
18. The appeal is, therefore, allowed in part. Appellants Chinga Beg, Shrimati Muradan, Subhan Beg and Rasid Beg are acquitted of the charge Under Section 498A, IPC and their conviction and sentence under this section is set aside. Appellant Kasim Beg is also acquitted of the charge Under Section 364, IPC only and his conviction and sentence under that section is set aside.
19. The conviction of the appellant Kasim Beg Under Section 498A, IPC and sentence of two years R.I. and a fine of Rs. 100/- is maintained and the appeal in that respect is dismissed.
20. The judgment and order of the learned Trial Court is modified to the extent indicated above. Appellants Chinga Beg, Smt. Muradan, Subhan Beg and Rasid Beg are on bail. They need not surrender and their bail bonds and surety bonds are discharged.
21. Appellant Kasim Beg is in jail. He shall remain there to serve out the sentence imposed Under Section 498A, IPC as indicated above.
