Bombay High Court
Mohan Rajaram Dange vs State Of Maharashtra on 16 February, 2017
Author: V. L. Achliya
Bench: V. L. Achliya
1 APEAL466.2001J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 466 OF 2001
Mohan S/o Rajaram Dange,
Age : 25 years, Occu. Labourer,
R/o. Village Manur (Bk.), Tq. Bodwad,
Dist. Jalgaon. .. Appellant
Versus
The State of Maharashtra. .. Respondent
..............
Mr A. R. Syed, Advocate appointed for the appellant
Mr A. A. Jagatkar, APP for respondent/State
..............
CORAM : V. L. ACHLIYA, J.
DATE : FEBRUARY 16, 2017.
ORAL JUDGMENT: -
1. This appeal is directed against the Judgment & Order dt. 30.10.2001 passed by IInd Additional Sessions Judge, Jalgaon in Sessions Case No. 4/2001, whereby the appellant has been held guilty of offence punishable u/s 498A and 304 Part-II of the Indian Penal Code (in short "IPC"). For committing offence u/s 498A of the IPC, the appellant is sentenced to suffer rigorous imprisonment for three years and for committing offence u/s 304 Part-II of IPC, the appellant has been sentenced to suffer rigorous imprisonment for five years. Being aggrieved and dissatisfied with the impugned Judgment & Order, the ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 2 APEAL466.2001J.doc appellant has preferred this appeal on the various grounds as set out in detail in memo of appeal.
2. Brief facts of prosecution case as unfolded during the course of trial & leading to filing of appeal are summarised as under:-
(a) Prosecution has approached with a case that the deceased-
Harsha, daughter of Shantabai (PW1), married with appellant-accused on 21.04.1998. After the marriage, she started cohabiting with appellant at her matrimonial home. Initially there was no ill-treatment & harassment to her. Later on, the deceased was subjected to ill- treatment and harassment as she could not beget a child. The accused used to call her as 'barren'. The deceased had disclosed this fact to her mother Shantabai (PW1), Uncle - Gajmal (PW2), aunt - Savitribai (PW3) and brother Balu (PW4). Few days prior to the incident, Shantabai visited Harsha. During her stay, the deceased disclosed to her that she found herself unsafe in the house of accused. Her mother pacified her to bear the harassment for sometime and assured that god will bless her with child.
(b) On 05.09.2000, Shantabai (PW1) the mother of deceased informed about death of her daughter Harsha. On receipt of information, PW1 and other relatives went to village Manur. They noticed injuries over the body of the deceased and suspected that death of Harsha was not natural. Gajmal (PW2), the uncle of the deceased visited the police station and lodged complaint vide Exh. 26. On the ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 3 APEAL466.2001J.doc basis of the complaint lodged, the offence u/s 498A, 306 r/w Section 34 of the IPC came to be registered against the accused vide C.R. No. 33/2000. Before registration of the offence, death of deceased Harsha was treated as accidental and the inquest panchanama and spot panchanama was already drawn. The dead body of the deceased was referred for post-mortem. On conducting autopsy, Dr. Manohar Chavan (PW5) gave provisional opinion that the deceased died of acute cardio respiratory failure due to haemorrhagic shock owing to rupture of spleen. However, he reserved final opinion subject to receipt of viscera report. In the course of investigation, the Investigating Officer recorded the statement of witnesses. On conclusion of investigation, the charge- sheet was prepared and filed in the court of JMFC, Bodwad, Dist. Jalgaon. Since the offence u/s 302 of IPC being triable by the court of Sessions, the case was committed to Sessions Court.
3. On committal of case, the charge was framed u/s 498A, 302 r/w Section 34 of the IPC on 30.06.2001. The accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined in all six witnesses. The accused has not entered into the defence. They have taken the defence of total denial and false implication at the instance of the relatives of the deceased. On conclusion of the trial, the learned Additional Sessions Judge has found the appellant-accused No. 1 alone guilty of offence u/s 498A and Section 304 Part-II and convicted him as stated above. The accused nos. 2 and 3 were acquitted.
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4. I have heard the submissions advanced by Mr. A. R. Syed, learned counsel appointed to represent the appellant and APP for respondent/State and further perused the record & proceedings of the trial Court.
5. Mr. Syed, learned counsel appointed to represent the appellant has strenuously contended that the impugned Judgment & Order of conviction is not sustainable in law for the sole reason that the entire judgment is based upon conjectures and surmises having no foundation on record. He submits that, there is no cogent, convincing & reliable evidence to establish that the deceased died a homicidal death. So also there is no evidence to establish the fact that the appellant- accused had assaulted and responsible for the cause of death of the deceased. By referring the evidence on record, the learned counsel has pointed out that the viscera though collected, not sent to Chemical Analyzer for analysis. He has contended that, due to not referring the viscera for chemical analysis serious prejudice has been caused to the accused. It is pointed out that, the accused has taken the defence that rupture of spleen was occurred as the deceased was suffering from dysentery and vomiting immediately prior to her death. The fact to this effect noted in the spot panchanama as well as the post-mortem report. It is pointed out that though there is no evidence to show that the appellant-accused No. 1 had assaulted deceased and more particularly over her abdomen, the ld. Addl. Sessions Judge has inferred that the ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 5 APEAL466.2001J.doc deceased might have been assaulted by accused over her abdomen resulting into rupture of spleen. It is pointed out that the entire findings of guilt of accused recorded by the trial Court are based upon the inference drawn on account of non-explanation of the internal injury to spleen caused to deceased by the accused & ignoring the material evidence brought through the cross-examination of autopsy surgeon (PW5). He submits that, the conviction is based upon improper appreciation of the evidence and, therefore, the impugned Judgment & Order is liable to be set aside. He further submits that, the appellant has undergone the sentence & released on 30.10.2004 from Central Prison, Nashik. He submits that though the appellant has undergone the sentence, still the conviction needs to be set aside so as to wipe out stigma attached to him as convict.
6. On the other hand, the learned APP contended that the prosecution has proved its case beyond reasonable doubt. He submits that, the deceased was found to be dead inside the house occupied by the appellant and his parents i.e. the co-accused Nos. 2 and 3. Shantabai (PW1) the mother of the deceased and other witnesses Gajmal (PW2), Savitri (PW3) and Balu (PW4) have consistently deposed that when they visited the house of the accused they saw injury over the abdomen of the deceased. In the post-mortem conducted by Dr. Chavan (PW5), he found the deceased had sustained contused lacerated wound over the chin, which wasblackish in colour. On internal examination, spleen was found to be ruptured having wound of 2" x ½" at the ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 6 APEAL466.2001J.doc anterior surface of the spleen. He has opined that injury to spleen may have been caused due to forceful trauma over the abdominal area & same was possible due to forceful blow of kick over abdomen. He therefore submit that, in the light of the testimony of PW1 and PW4 coupled with the testimony of Dr. Chavan (PW5), the trial Court was fully justified in convicting the appellant-accused No. 1 u/s 498A and 304 Part-II of the IPC. He submits that, there is no perversity in the reasons and findings recorded by the trial Court and the impugned Judgment calls for no interference in exercise of appellate jurisdiction.
7. In order to appreciate the submissions advanced, I have carefully examined the reasons and findings recorded by the trial Court and perused the record & proceedings.
8. As discussed, the prosecution has approached with a case that, after the marriage, for a period of two years there was no ill- treatment and harassment to the deceased. Ill-treatment and harassment started after the period of two years of marriage as deceased could not beget a child. Due to this reason, the accused used to ill-treat her and call her as 'Barren'. The accused Nos. 2 and 3 used to instigate accused No. 1 to beat her. In cross-examination PW-1 i.e. mother of the deceased has admitted that no complaint was lodged by deceased or any one from their family in respect of the alleged ill-treatment and harassment to deceased before the incident as she found complaint not serious & ignored the same. She has admitted that, accused No. 1 used ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 7 APEAL466.2001J.doc to come to her house to take Harsha to her matrimonial house. She admitted that, while making report she never told police that her daughter Harsha was subjected to cruelty as she was keeping unwell and unable to attend the agricultural work. She admitted that, accused No. 1 had taken Harsha to Doctor at Jalgaon as she could not beget a child. She admitted that, Harsha was a religious girl and used to observe fast on Monday & Tuesday & she was slim built. Thus, if we consider the testimony of PW1, then there is nothing to establish that there was any ill-treatment, harassment or cruelty of a nature sufficient to drive any woman of ordinary prudence & intellect to commit suicide or cause bodily harm & to prove guilt of accused u/s 498A or Section 304-II of IPC.
9. The prosecution has examined Gajmal (PW2) the uncle of the deceased, who lodged the report vide Exh. 24. In his examination- in-chief itself, he has deposed that, no complaint was made to him by deceased during her visit to her parents house. He deposed that, once Shantabai (PW1) told him about the alleged ill-treatment and harassment the deceased was suffering from her in-laws and husband. In cross-examination also, he has admitted that Harsha made no complaint to him about ill-treatment & harassment. He further admitted that he used to respect & entertain the accused as and when they used to visit his house & accused also used to respect & giving honour as and when he used to visit their house. He has admitted that personally he had no knowledge of ill-treatment or harassment to the deceased. Thus, ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 8 APEAL466.2001J.doc the testimony of Gajmal (PW2) the complainant is of no avail to prove guilt against accused.
10. In order to corroborate the testimony of PW1, the prosecution has examined Savitribai (PW3) the wife of Gajmal (PW2). She too depoed that initially for the period of one year the deceased was treated well. Later on the deceased was ill-treated by accused as the deceased could not conceive & the accused used to call her as 'barren'. Fact to this effect was disclosed to her by deceased when she came to her parents house. She pacified her & assured that soon she will beget child. She further deposed that on receipt of information about death of Harsha, she too went to village Manur (Bk.) & saw injury over the right side of her abdomen. In cross-examination, she admitted that there was cordial relation between her family & family of accused & they were respecting each other when they used to visit each other's house. Therefore, the evidence of PW3 is also not helpful to establish the charge u/s 498A and 304 Part-II of the IPC.
11. In the same sequence of evidence, the prosecution has examined Balu - PW4, the brother of the deceased. He too deposed on the lines of PW1. In the cross-examination, he has admitted that no complaint was made on the basis of facts complained by Harsha as they did not take the cause as serious.
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12. Thus, the testimony of PW1 to PW4 are of no avail to sustain the charge u/s 498A as well as 304 Part-II of IPC. On the basis of the testimony of these witnesses, at the most it can be said that the relations between deceased and her husband & in-laws were not cordial as the deceased could not conceive even after the period of more than 2 years of marriage & the accused used to call her as barren. There is no evidence as such that accused No. 1 had beaten her & caused internal injury to spleen resulted into her death. Prior to death of deceased neither the deceased nor her relatives lodged complaint. So also the complaint made by deceased to her parents was found by them not of serious in nature.
13. If we consider the FIR at Exh. 25, then the reason for lodging the FIR appears to be suspicion formed by P.W. 2 after he noticed injury over the abdomen of deceased. Initially the A.D. was registered. Subsequently at the instance of Gajmal (P.W.2) the complaint was lodged on 06.09.2000 at 16:30 hrs i.e. 4:30 PM. As per the inquest panchanama (Exh. 20) the body of deceased was examined in presence of panchas on 06.09.2000 in between 7:30 to 8:30 am. In the inquest panchanama, except injury over the chin, no other external injury was noticed over the dead body of deceased. The dead body of the deceased was referred for post-mortem at 11:00 on 06.09.2000. Post-mortem was conducted on 06.09.2000 in between 11:30 AM to 1:00 PM. At the time of post-mortem, no external injury was noticed over the dead body of deceased except the injury to lip. In internal examination of dead body, ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 10 APEAL466.2001J.doc the injury was noticed to the spleen. Thus, the complaint appears to be lodged after the post-mortem report. In this view, possibility cannot be ruled out that the complaint was lodged after conducting post-mortem for the reason injury was found to spleen. Therefore, the possibility of filing of false complaint and making afterthrough allegations of ill- treatment and harassment by P.W.1 to P.W.4 against accused after due deliberation cannot be ruled out under the facts & circumstances of the case.
14. Learned counsel for the appellant submits that, the accused had taken a specific defence that the deceased was suffering from dysentery and vomiting immediately prior to her death. In the spot panchanama at Exh. 22 recorded in between 8:35 am to 9:15 am on 06.09.2000, it is specifically noted that the clothes of the deceased seized from the spot were smeared with vomiting. Similarly, in the post- mortem report at Exh. 34, in column no. 8, it has been specifically noted that the clothes of deceased were found to be smeared with vomit & fecal matter. In this background, the learned counsel contended that the defence has established that the deceased was suffering from dysentery & vomiting prior to her death & probability of deceased died due to said cannot be ruled out.
15. Dr. Chavan (PW5) who conducted the autopsy on the dead body of the deceased has deposed that on external examination of dead body of the deceased it was revealed that her body was found smeared ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 11 APEAL466.2001J.doc with vomit & fecal matter. On external examination of dead body of deceased, he noticed only one contused lacerated wound over the chin of deceased. Dr. Chavan has admitted that due to vomiting & loose motion, the person becomes weak and blood pressure becomes low. He has admitted that, on noticing size, colour and the weight of the spleen, one can determine its nature. He has further admitted that, he has not mentioned that the spleen was diseased as same can be ascertained only after pathological test. He has admitted that, he has not examined to ascertain as to whether spleen of deceased was ruptured or otherwise. He has further admitted that, there was no external injury on the abdominal area of the deceased. He also admitted that, external injury over chin was simple in nature and may be caused due to fall on the ground. He has further admitted that, if the spleen is diseased then it gets ruptured even by sneezing, coughing and vomiting. He has also admitted that, he could not ascertain the exact cause of death of deceased at the time of conducting post-mortem and preserved viscera for examination of chemical analysis. He further admitted that, the opinion given by him was the probable cause of death. He further admitted that, sometime spleen also get ruptured spontaneously due to contraction of the abdominal muscles during the acts of sneezing, coughing, vomitting or straining and more particularly if the spleen is abnormally mobile.
16. In the light of the testimony of PW5, learned counsel submitted that as the signs of vomiting and dysentery were noticed on ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 12 APEAL466.2001J.doc the spot, on the dead body of the deceased as well as at the time of medical examination, the possibility of deceased being died otherwise than the reason noted in the post-mortem report cannot be ruled out under the facts & circumstances of the case. In this context, the learned counsel has referred and relied upon the decision of the Hon'ble Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007(4) SCC 415, wherein the Hon'ble Apex Court observed that when two views are possible, view pointing to innocence of the accused should be adopted.
17. If we consider the over all evidence in the matter then in my view the prosecution has failed to establish that the deceased died a homicidal death. If we consider the over all evidence, then there is no cogent, convincing & clinching evidence to show that the deceased was subjected to any physical violence immediately prior to her death. There is no evidence to infer that deceased was assaulted by the accused over abdomen before she was brought to hospital. The reasons & findings recorded by the trial Court in this context are based upon surmises & conjectures. Though, PW1 and other witnesses deposed that they noticed injury over the right side of abdomen of the deceased, but their testimonies find no corroboration from inquest panchanama as well as report of post-mortem report. The inquest panchanama which was made first in time in between 7:30 AM TO 8:30 am on 06.09.2000 reflects that no such injury was noticed over the abdomen. Subsequent to inquest panchanama, post-mortem was conducted at about 11:30 am.
::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 :::13 APEAL466.2001J.doc In the post-mortem report also, no external injury was noticed over the abdomen of deceased. Dr. Chavan (PW5) has categorically stated in his cross-examination that no external injuries noticed over the abdominal area of deceased. In this view, the conclusion drawn by the trial Court that the accused No. 1 might have assaulted the deceased over the abdomen is not sustainable in law. It is pertinent to note that the viscera though preserved was not sent for chemical analysis. The Investigating Officer i.e. PW6 has admitted that he has not referred the viscera for chemical analysis. The opinion given by Doctor was not final opinion but it was subject to report of viscera. If we consider the fact deposed by PW5-Doctor Chavan in his examination-in-chief then he has not specifically opined that the deceased died due to rupture of spleen. The opinion expressed was not a conclusive opinion but probable opinion. The opinion recorded reads as under:
"Most probable cause of death was due to Acute cardio- Respiratory failure due to Haemorrhagic Shock due to Rupture of Spleen. Viscera preserved for C.A."
18. Thus, the opinion given was probable opinion. Final opinion was not obtained by Investigating Agency. In the background of the facts of the case & evidence on record, the possibility of deceased being suffering due to dysentery & vomiting prior to her death & due to that reason may become weak & due to fall in blood pressure & stretching of muscles of spleen resulting into rupture of spleen cannot be ruled out in the facts & circumstances of the case & over all evidence on record. The report of viscera might have proved the cause of death otherwise than ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 14 APEAL466.2001J.doc alleged rupture of spleen. Due to non-referring the viscera for chemical analysis, prejudice has been caused to the accused. While dealing with this aspect, the learned Sessions Judge has observed as to manner in which the investigation has been conducted and specially the lapses on the part of the Investigating Officer. For the fault & lapses on the part of the Investigating Officer, the accused cannot be made to suffer. The report of the viscera may have proved the cause of death as otherwise. If we consider the testimony of PW5, the Autopsy Surgeon, then possibility of deceased being died due to diseased spleen cannot be ruled out under the facts & circumstances of the case. The Autopsy Surgeon has categorically deposed that he has not examined as to whether the spleen was diseased or not. In this view, no inference can be drawn the deceased died due to assault by accused no. 1 over the abdomen.
19. Mr Syed, learned counsel for the appellant has rightly pointed out, that in the instant case there is no direct evidence. The entire case is based upon the circumstantial evidence. It is quite settled position in law that in a case based on circumstantial evidence the prosecution must establish each incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Learned counsel has placed reliance upon the decision of Hon'ble Supreme Court in the case of Ram Sunder Sen Versus Narender @ Bode Singh Patel reported ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 ::: 15 APEAL466.2001J.doc in 2015 All.M.R. (Cri) 4511, wherein it has been observed in para 15 as under :
"It is a settled law that when prosecution relies on circumstantial evidence, the following tests to be clearly established.
(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogent & firm;
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
and
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
20. If we consider the facts of the case and evidence on record, then case in hand is purely based upon circumstantial evidence. Prosecution has relied upon the following circumstances to prove the guilt against the accused.
(i) Deceased was subjected to ill-treatment by her in-laws and accused as she could not conceive even after a period of more than 2 years of marriage.
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(ii) There was injury over the abdomen of the deceased noticed by PW1 to PW4.
(iii) In the internal examination, the injury was found to spleen and the cause of the death was disclosed to be cardio respiratory failure due to haemorrhagic shock owing to rupture of spleen.
(iv) The deceased found to be dead in the house occupied by accused.
21. If we consider the first circumstance relied by prosecution then there is no cogent & convincing evidence to establish that deceased was subjected to ill-treatment as she could not conceive child. Prior to death of deceased no such complaint was made. Only after the death of deceased such allegations were made. There is no independent witness examined to establish that the deceased was subjected to ill-treatment and harassment for the reason that she could not beget a child. As discussed the testimony of P.W.1 to P.W. 4 no way prove such act of ill- treatment & harassment. In this view, the prosecution has failed to establish that the deceased was subjected to ill-treatment or harassment prior to her death on account of not conceiving the child by accused.
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22. The prosecution has relied upon another circumstance that the injury was noticed by PW1 to PW4 over the abdomen of the deceased and, therefore, the inference could be drawn that the deceased was assaulted by accused No. 1 immediately prior to her death. There is no evidence on record as such to corroborate their testimony. On the contrary, the inquest panchanama and the post-mortem report coupled with testimony of PW5 negate existence of such injury over the abdomen of the deceased. In this view, the circumstance of external injury over the abdomen of the deceased found to be not proved by prosecution.
23. The third circumstance relied upon by the prosecution is that, in the post-mortem conducted the injury to spleen was noticed. However, the defence has brought on record that cause of death as assigned by the Autopsy Surgeon also possible if the person's spleen is diseased & may get ruptured even by sneezing, coughing and vomiting. In view of testimony of PW5, it cannot be conclusively held that the deceased died on account of injuries. Moreover, the opinion given was probable cause of death and subject to further report of viscera to be obtained in the matter. However, the viscera was not sent to chemical analysis. In this view, it cannot be conclusively said that the deceased died due to any forceful trauma or kick over the abdomen of the deceased.
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24. The another circumstance which appears to have swayed away trial Court to convict the appellant is that the appellant has failed to explain the circumstances within his special knowledge. No doubt, the deceased was found to have died in the house occupied by the accused & co-accused, the non-explanation on the part of the accused cannot be treated as sole reason to infer that accused has suppressed the circumstances. It is to be taken into consideration that the accused are from village background. In view of the circumstances on record, it cannot be said that non-explanation of the circumstances on the part of the accused form basis to convict the accused.
25. In this view, I am of the view that the prosecution has failed to establish the chain of circumstances to conclusively establish that the deceased died a homicidal death and accused has caused the homicidal death of the deceased. In this view, the conviction awarded by the trial Court is not sustainable in law. The reasons & findings recorded by the trial Court then the same are based upon surmises & conjectures. Only for the reason that the accused have failed to offer explanation cannot form basis to convict the appellant. In this view, the reasons and findings recorded by the trial Court are not sustainable in law. When two views are possible, view pointing innocence of the accused deserves to be accepted. Therefore, considering the over all evidence, I am of the view that the accused deserves to be given benefit of doubt. I am therefore inclined to allow the appeal & set aside the impugned Judgment & Order.
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26. Before concluding, I would like to place on record the words of appreciation for the efforts made on the part of Shri. A. R. Syed, learned counsel appointed to represent the appellant. He has meticulously prepared and presented the case of the appellant. Fees to be payable to the counsel appointed is quantified at Rs. 5,000/-. Legal Aid Committee of High Court is directed to pay Rs. 5,000/- to advocate Shri. A. R. Syed.
27. In view of the conclusions to which I have arrived, the following order is passed.
ORDER (I) In the result, the Criminal Appeal No. 466/2001 is allowed.
(II) The Judgment and Order dt. 30.10.2001 passed by the learned IInd Additional Sessions Judge, Jalgaon in Sessions Case No. 4/2001 is set aside.
(III) The appellant is acquitted of offence u/s 498A and 304 Part-II r/w Section 34 of the Indian Penal Code.
(IV) Fine amount, if paid, same shall be refunded to the appellant.
[ V. L. ACHLIYA ] JUDGE sgp ::: Uploaded on - 06/05/2017 ::: Downloaded on - 27/08/2017 17:01:52 :::