State Of Gujarat vs Salim Shabbirbhai Kureshi & ... on 15 April, 2015

[Cites 26, Cited by 1]

Gujarat High Court

State Of Gujarat vs Salim Shabbirbhai Kureshi & ... on 15 April, 2015

1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Additional Sessions Judge, Ahmedabad dated 27.03.2001 rendered in Sessions Case No.298 of 1998, whereby the learned Trial Judge acquitted the original accused-opponents herein of the charges for the offences punishable under Sections 498(A) and 306 of the Indian Penal Code (for short "IPC").

2. The brief facts of the prosecution case are that the marriage of the daughter of complainant- Sahenaz took place with Salim Shabbirbhai Kureshi about four months prior to May, 1997. Accused no.2 is the father-in-law and accused no.3 is the mother-in-law of deceased-Sahenaz. After the marriage, she came to her father's house within 15 day and complained that she is being harassed by the accused as she has come without any dowry in the form of Colour T.V. or at least 2-3 Tolas Gold. However, she was sent back by giving assurance. Thereafter, five days prior Page 2 of 25 R/CR.A/497/2001 JUDGMENT 29.05.1997, deceased-Shahenza came to her father's house and informed her parents that her father-in-law and mother-in-law and husband are often harassing her mentally and physically on account inadequate dowry in the form of T.V. and Gold. The complainant consoled her that as and when their financial position would be improved the same shall be given. It is further case of the prosecution that again, on 29.05.1997, Sehenaz come to her father's house but the complainant was not there as he had told in the presence of one Bilkyashben and Chandbibi that either she would run away or commit suicide. Ultimately, on 29.05.1997, she committed suicide by taking poisonous drugs. On aforesaid these facts, the complaint being I-C.R.No.138/1997 was filed with the Police Station against the accused for the aforesaid alleged offences.

3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively Page 3 of 25 R/CR.A/497/2001 JUDGMENT triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of learned Additional Sessions Judge, Ahmedabad which was, thereafter, numbered as Sessions Case No.298 of 1998. Since the opponents-accused did not plead guilty and claimed to be tried, they were tried for the alleged offences.

4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 8 witnesses as well as the prosecution also produced several documentary evidences.

5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge, Ahmedabad acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Page 4 of 25 R/CR.A/497/2001 JUDGMENT Court passed the judgment and order acquitting the opponents-accused.

6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal.

7. Learned APP, vehemently, submitted that the learned Trial Judge ought to have believed the evidence of the complainant at Exh:13, evidence of Saiyedbanu Manjur Aalam Ansari at Exh:17, evidence of witness n.3 Gulambhai alias Munnabhai Mohmmad Sheikh at Exh:18 and evidence of witness no.4 Chandbibi Abdul Sheikh and others. She further submitted that the learned Trial Judge ought to have seen that parents of the deceased stated that the accused nos.1, 2 and 3 were harassing her on account of dowry in the form of colour T.V. and Gold. She further submitted that it ought to have been appreciated that the death is occurred within seven years of the marriage of the deceased. She further submitted that the Page 5 of 25 R/CR.A/497/2001 JUDGMENT learned Trial Court committed an error in acquitting the accused persons, inasmuch as it failed to appreciate the material on record in its proper perspective. She further submitted that the learned Trial Judge erred in not considering properly Section 113A of the Indian Evidence Act. She further stated that the Lower Court has erred in appreciating the evidence on record and wrongly acquitted the accused persons. In support of her case, she relied upon the decision of Sahebrao and another Vs. State of Maharashtra (AIR 2006 SC 2002). While taking into consideration the ratio laid down in the said judgment, the present appeal deserves to be dismissed. She further submitted that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside.

8. As against that, learned advocate for the opponents-accused supported the judgment and Page 6 of 25 R/CR.A/497/2001 JUDGMENT order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. In support of his case, the learned counsel relied upon the decisions of State of Gujarat Vs. Chamar Rameshbhai Maganbhai and another (2014 (2) GLR 1235), S.S. Chhena Vs. Vijay Kumar Mahajan and another (2011 (1) G.L.H. 542) and State of Gujarat Vs. Yusufbhai Alibhai Sipai (2013(3) G.L.R. 2260. While taking into consideration the ratio laid down in the said judgments, the present appeal deserves to be allowed. Hence, no interference is called for with the same at the hands of this Court. She also submitted that cross-examination of the complainant also does not prove that the deceased was subjected to cruelty or that ingredients of Section 306 or Section 498-A of the IPC are satisfied. It is stated that there was no nexus between the incident and the allegations of cruelty. Therefore, the criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned Page 7 of 25 R/CR.A/497/2001 JUDGMENT Trial Court is required to be confirmed.

9. I have heard learned APP for the appellant- State and the learned advocate for the accused and perused the material on record.

10. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals.

11. The principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006 (6) S.C.C. 39), the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In Para-54 of the decision, the Apex Court has observed as under;

"54. In any event the High Court entertained an appeal treating to be an appeal against Page 8 of 25 R/CR.A/497/2001 JUDGMENT acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

12. Further, in the case of CHANDRAPPA VS. STATE OF KARNATAKA (2007 (4) S.C.C. 415), the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review Page 9 of 25 R/CR.A/497/2001 JUDGMENT the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

13. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.

14. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. (2007 (3) S.C.C. 75), the Apex Court has reiterated the powers of the High Court in such cases. In Para-16 of the said decision, the Court has observed as under;

Page 10 of 25

R/CR.A/497/2001 JUDGMENT "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

15. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

16. In the case of LUNA RAM VS. BHUPAT SINGH AND Page 11 of 25 R/CR.A/497/2001 JUDGMENT ORS. ((2009) SCC 749), the Apex Court in Paras-10 and 11 has held as under;

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

17. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting Page 12 of 25 R/CR.A/497/2001 JUDGMENT the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"

18. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY (AIR 1981 SC 1417), wherein it is held as under;

"......This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967)As far as accused no.2 is concerned, I find that the conclusion reached by the learned Judge does not require any interference, as no role is attributed to the accused no.2 and, therefore, her acquittal Page 13 of 25 R/CR.A/497/2001 JUDGMENT cannot be disturbed. Accordingly, appeal against accused no.2 is dismissed. 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

19. In the recent decision, the Hon'ble Apex Court in SHIVASHARANAPPA AND OTHERS V/S. STATE OF KARNATAKA (JT 2013 (7) SC 66) has held as under:

"That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

20. In view of the above citations, as far as accused nos.2 and 3 is concerned, I find that the conclusion reached by the learned Judge does not require any interference, as no role is attributed to the accused nos.2 and 3, and therefore, their acquittal cannot be disturbed. Accordingly, appeal against accused nos.2 and 3 is dismissed.

21. This takes this Court to the evidence against accused no.1, who is husband of the deceased. Page 14 of 25

         R/CR.A/497/2001                                         JUDGMENT



Before       deciding         the     case          against    the    accused

no.1, it would be profitable to refer to some of the provisions of the statutes. Section 113-A of the Evidence Act is reproduced hereunder:-

"113-A. Presumption as to abetment of suicide by a married woman.-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. Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code."

22. Section 498(A)of the Indian Penal Code provides as under:

"498-A. 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."

23. It is trite law that in a case where there is no direct eye-witness version available and the case is based on circumstantial evidence, the principle which is to be applied by the Court is that when an incriminating circumstance is put to Page 15 of 25 R/CR.A/497/2001 JUDGMENT the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In this regard, the Supreme Court has observed as follows in the case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681):-

"21. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran (SCC para 6) : (1999 AIR SCW 3536) (Para 6); State of U.P. v. Dr. Ravindra Prakash Mittal (SCC para 39 : AIR para

40) : (1992 AIR SCW 2417); State of Maharashtra v. Suresh (SCC para 27) : (2001 AIR SCW 5251) (Para

15); Ganesh Lal v. State of Rajasthan (SCC para

15) : (2001 AIR SCW 5251) (Para 15) and Gulab Chand v. State of M.P. (SCC para 4) : (1995 AIR SCW 2504).]

22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram Page 16 of 25 R/CR.A/497/2001 JUDGMENT v. State of H.P. : (AIR 1972 SC 2077), it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992 AIR SCW 1175) the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313, Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at house at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302, IPC. In State of T.N. v. Rajendran, the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries.

It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime." Page 17 of 25

      R/CR.A/497/2001                                   JUDGMENT



24. In   view          of   the    aforesaid      decision   of   the

Supreme Court and later decisions of this Court, not only that the circumstances go to show that accused no.1 in his statement under Section 313 of the Criminal Procedure Code, except stating that it is a false case against him does not say anything else. In the case of Buta Singh V/s. The State of Punjab (1991 Cri.L.J. 1464), the Apex Court has observed in Paras-8 & 9, as under:

"8. We may now consider the evidence regarding the injuries to the appellant and his wife. Indisputably the appellant and his wife sustained injuries. This is clear from the evidence of PW 2- Dr. Manjit Singh. His evidence shows that the appellant had two sharp edged punctured wounds on the back and the chest and two abrasions on the left fore-arm and on the front of the chest. His wife, Gurbachan Kaur, had a scalp deep incised wound on the left parietal region, two sharp punctured wounds on the right thigh and the right gluteal region, a swelling around the ankle joint and an abrasion on the left shoulder joint. The prosecution witnesses have tried to explain these injuries by stating that they had received the same when they tried to block PWs 7 and 8 from going to the rescue of the deceased. It is their case that when they found the appellant and his wife attacking them, they hit back with their weapons and caused the injuries in question. The defence version is that when the assault was launched they received these injuries, they fought back and caused injuries to the deceased as well as PWs 7 and 8 but unfortunately the deceased succumbed to his injuries. In other words, according to them, they caused the injuries in exercise of their right of private defence. The High Court however, has taken the view that the injuries were caused to the appellant and his wife by the prosecution witnesses Page 18 of 25 R/CR.A/497/2001 JUDGMENT in exercise of their right of private defence. But here again if it is found that the incident occurred near the appellants dera and the tubewell and not in the field as deposed by the prosecution witnesses, the substratum of the prosecution case would stand knocked out. As pointed out earlier the find of the blood and the deposition of DW-1 support the defence case. The reason for shifting the place of occurrence is obvious. If the incident occurred there and not in the disputed field, it would show that the prosecution party was the aggressor and not the appellant and his wife. It also does not stand to reason that the appellant would go to the disputed field with his wife and a 13 year boy to quarrel with men who were armed with deadly weapons. It is difficult to believe that he would expose his wife and son to the risk of being attacked. The defence version, therefore, seems to be probable. If that be so, the prosecution party had no right of self defence. Then the appellant and his wife would claim that benefit.

9. From the above state of evidence, it appears that the defence version regarding the incident is a probable one and is supported by the find of blood from near the tubewell which is adjacent to the dera of the appellant. When two versions are before the Court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained. As stated earlier, the prosecution has not explained how blood was found from near the tubewell and no blood was found from the spot where according to them the incident occurred. In addition to this, the factum regarding the delay in lodging of the First Information Report and the suspicion that it was delayed with a view to concocting the prosecution case and further the delay in forwarding the special report to the Magistrate as well as the case papers to the hospital shows that the investigation was not above board. In these circumstances, we think that the approach adopted by the Court below cannot be justified."

25. In the said decision, in Para-9 on which the reliance is placed, the Honble Supreme Court has held that the objective evidence cannot be Page 19 of 25 R/CR.A/497/2001 JUDGMENT brushed aside lightly unless it has been properly explained. In this case, objective evidence is against the accused no.1, and therefore, the same requires to be viewed in light of this observation. The principles enunciated by the Apex Court for reversing the judgment of acquittal will permit this Court to reverse the decision of acquittal of accused no.1.

26. As far as accused no.1 is concerned, I find that as per the testimony of PWs:1 to 5, accused demanded the dowry like T.V., scooter, cash, etc. As far as the findings of facts are concerned, learned counsel has not been able to prove that there was any demand of dowry by accused no.1. Before her marriage, the deceased was complaining to the deceased that accused no.1 was harassing her on account of dowry in the form of colour T.V. and Gold. Therefore, it is proved that there was harassment caused by accused no.1. For the offence of Section 498(A) of IPC, the evidence led qua him is insufficient. This takes this Page 20 of 25 R/CR.A/497/2001 JUDGMENT Court to the role attributed by accused no.1. It is categorically admitted by the parents of the deceased that after the marriage, he had demanded the dowry. Further, the said amount was repeatedly demanded by accused no.1. There is a corroborative evidence to the effect that during marriage span of the deceased, the deceased was complaining her parents regarding the harassment very often. I am unable to accept the submission of learned advocate qua accused no.1 only regarding the harassment caused by accused no.1. Therefore, for the offence punishable under Section 498(A) of IPC, accused no.1 deserves to be convicted.

27. In view of the aforesaid observations of the Supreme Court and the factual scenario which emerges from record, it cannot be said that the accused, more particularly, accused Nos.2 and 3 meted out cruel treatment to the deceased so as to see that the deceased commits suicide. In light of aforesaid observations of the Apex Court Page 21 of 25 R/CR.A/497/2001 JUDGMENT and considering the evidence on record, it can be said that the prosecution successfully proved the offence under Section 498(A) and Section 306 of IPC against accused nos.2 and 3. This Court is, therefore, of the opinion that the judgment and order passed by the trial Court does not require interference at the hands of this Court qua accused nos.2 and 3. In view of the ratio laid down in the aforesaid decisions cited by the learned counsel for the appellants-accused, the appeal deserves to be dismissed.

28. As regards the contention of learned APP for the State that the marital life span was hardly four months, there are observations that there were injuries and the medical evidence has been brushed aside by the learned Trial Judge. The findings of learned Trial Judge are in fact perverse and required interference in even on the touchstone of the judgment of the Apex Court. This takes this Court to the evidence to consider whether provision under Section 113-A of the Page 22 of 25 R/CR.A/497/2001 JUDGMENT Evidence Act is required to be applied to the facts of this case. The same is required to be applied as there is a clear cut evidence of the complainant, to whom the deceased used to time and again state that she was being harassed.

29. In view of the above decisions, I am of the opinion that the learned Judge committed no error in passing the impugned judgment and order qua accused nos.2 and 3 for the alleged offences and accused no.1 for the offence punishable under Section 306 of IPC. Hence, the present appeal qua accused nos.2 and 3 deserves to be dismissed and appeal qua accused no.1 deserves to be partly allowed.

30. The finding of fact is absolutely perverse qua accused no.1 for the offence punishable under Section 498(A) of IPC. Hence, the acquittal qua accused nos.2 and 3 is confirmed. As far as accused nos.2 and 3 is concerned, on the touchstone of the decision of the Apex Court, it Page 23 of 25 R/CR.A/497/2001 JUDGMENT cannot be said that a case is made out against them. I am fully in agreement with the submission made by learned counsel for the accused-opponents that acquittal of accused nos.2 and 3 is confirmed.

31. In the result, the appeal filed by the appellant-State is partly allowed. As far as accused nos.2 and 3 are concerned, the judgment and order passed by the learned Trial Court is confirmed. As far as accused no.1 is concerned, he is acquitted for the offence punishable under Section 306 of the Indian Penal Code and he is convicted for the offence punishable under Section 498(A) of the Indian Penal Code and is sentenced to undergo the sentence which he has already undergone with fine of Rs.10,000/- and the fine amount to be paid within 4 weeks from today failing which he shall undergo for 6 months simple imprisonment and the judgment and order of the Trial Court dated 27.03.2001 stands modified to the aforesaid extent. Bail and bail bonds of Page 24 of 25 R/CR.A/497/2001 JUDGMENT the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith. Record and Proceedings be sent back to the Trial Court concerned forthwith.

(K.J.THAKER, J.) rakesh/ Page 25 of 25

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