Karnataka High Court
Sri. Vithal S/O Ramu Palkar vs The State Of Karnataka on 2 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2784 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO. 2784 OF 2011 (C)
BETWEEN:
1. SRI. VITHAL S/O RAMU PALKAR
AGED ABOUT 31 YEARS, OCC: AGRICULTURE.
2. SRI. RAMU S/O CHANDRU PALKAR,
AGED ABOUT 73 YEARS (DECEASED).
3. SMT.SHANTA W/O RAMU PALKAR,
AGED ABOUT 59 YEARS,
ALL ARE R/O SAMBRA VILLAGE,
TALUK: BELAGAVI, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. T.M.NADAF AND SRI M.B.ZIRALI, ADVOCATES)
AND:
THE STATE OF KARNATAKA
BY MARIHAL POLICE STATION,
CHANDRASHEKAR
LAXMAN
KATTIMANI
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA CIRCUIT BENCH,
DHARWAD.
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374 OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 12.08.2011, IN S.C.NO.267/2008
ON THE FILE OF THE VI-ADDL. SESSIONS JUDGE, BELGAUM.
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CRL.A No. 2784 of 2011
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri T.M.Nadaf, learned counsel for the appellants and learned High Court Government Pleader for the respondent - State and perused the records. 2. Appeal is by the convicted accused Nos.1 to 3 challenging the validity of the judgment and order of sentence passed in S.C.No.267/2008 on the file of the VI Additional Sessions Judge, Belagavi.
3. Brief facts of the case are as under:
A complaint came to be lodged by brother of one Savitha (deceased) to Marihal Police Station, Belagavi. The complaint averments reveal that Savitha was married to 1st accused-Vithal Palkar on 18.05.2007 as per the Hindu rights and customs. At the time of marriage, 25 gram Mangalasutra was given to Savitha and Rs.1,500/- cash was given to Vithal Palkar for purchase of cloths. About two months thereafter the couple lived happy marital life and there was a physical and mental harassment to Savitha by the appellants herein -3- CRL.A No. 2784 of 2011 and also the brother-in-law of deceased. 3rd accused/mother-
in-law of the deceased assaulted the deceased with a metal part and the same was intimated to the parents of the deceased. Parents then, visited the matrimonial home and advised them to lookafter the deceased properly. Thereafter, 1st accused went to Karle village which is the parental house.
When the matter stood thus, about twenty days earlier to the death of Savitha, all the accused persons visited parental house of the deceased and in the guise of taking a photograph of the election card, took the deceased to matrimonial house. On 15.05.2008 at about 10.00 p.m., it was intimated to the complainant by name Narayan that Savitha is no more. Immediately the complainant and others visited Sambra village and found from the window that Savitha had hanged herself.
Based on the said complaint, the police registered a case in Crime No.122/2008 for the offences punishable under Sections 143, 147, 498A, 304B read with 149 IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. After registering the case, police have investigated the matter and -4- CRL.A No. 2784 of 2011 filed charge sheet against the appellants-accused persons for the aforesaid offences.
4. The presence of the accused persons were secured before the trial court on receipt of the charge sheet and charges were framed. Accused persons pleaded not guilty and therefore, trial was held.
5. In order to establish the case of the prosecution, prosecution in all examined 23 witnesses as PWs.1 to 23 and 25 documentary evidence which were exhibited and marked as Exs.P1 to P25. Prosecution further relied on four material objects which were marked as MOs.1 to 4.
6. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C. was accorded wherein accused persons denied all the incriminatory materials and did not choose to place any written submission as contemplated under Section 313(5) Cr.P.C. nor led any defence evidence to rebut the presumption available to the prosecution under the provisions of Indian Evidence Act.
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7. Thereafter, learned Special Judge heard the parties in detail and after considering the oral and documentary evidence on record coupled with the material objects relied on by the prosecution, convicted the accused- appellant Nos.1 to 3 for the offences punishable under Sections 498A, 304B, 306 read with Section 34 IPC and under the provisions of Sections 3, 4 and 6 of the Dowry Prohibition Act and sentenced as under:
Offences Punishment Fine Default
sentence
498A Simple Rs.5,000/- Simple
IPC imprisonment each imprisonment
of three for five
years months each
304B Simple Rs.10,000/- Simple
IPC imprisonment each imprisonment
of ten years for ten
months each
306 IPC Simple Rs.4,000/- Simple
imprisonment each imprisonment
of four years for four
months each
Sec.3 of Simple Rs.5,000/- Simple
D.P. Act imprisonment each imprisonment
for five years for five
months
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CRL.A No. 2784 of 2011
Sec.4 of Simple Rs.1,000/- Simple
D.P. Act imprisonment each imprisonment
for one year for one
month
Sec.6 of Simple
D.P. Act imprisonment
for six
months
8. Being aggrieved by the judgment of conviction and order of sentence, the accused have preferred the present appeal. In the appeal following grounds have been raised:
• The Judgment of conviction and the order of sentence of the learned Sessions Judge is contrary to law, facts and circumstances of the case, and evidence on record. Hence the same is liable to be set aside.
• The Judgment and order of the Court below is erroneous, as such the same is liable to be set aside.
• It is further submitted that the learned session Judge has failed to take into consideration the cross-examination in its proper perspective, which has resulted in -7- CRL.A No. 2784 of 2011 conviction, hence the same is liable to be set aside.
• It is further submitted that there is absolutely no corroboration between the evidence of the witnesses.
• It is further submitted that the learned Sessions Judge has not taken into consideration the contradictions in the evidence.
• That the court below has failed to appreciate the evidence in proper perspective. The Trial Court has drawn wrong inference from the evidence. The entire approach of the court below is erroneous and perverse. Therefore the impugned judgment and order is not sustainable in law and hence the same is liable to be set aside.
• It is submitted that the, Trial court below has failed to appreciate the fact that the prosecution has utterly failed to prove the motive set forth by the prosecution itself as there are grave contradictions committed by the prosecution witnesses to tope up the appellant in the alleged incident.-8- CRL.A No. 2784 of 2011
• It is pertinent to note here that he parents of the deceased have not stated anything regarding the demand by the appellants during the marriage as such the provisions of the DP act are not attracted, further the punch witnesses to the spot panchanama and seizure of the cloths as per the alleged statements turned Hostile.
• It is submitted that the prosecution has failed to take into consideration the contradiction in the statements of the relatives and the Medical Officer who conducted the autopsy.
• It is nobody's case that there is any abetment to the deceased to commit suicide, the Trial Court though has framed a point on the said section however there is no material placed on record to substantiate its and so also there is no discussion in the judgment.
• It is submitted that conduct of the parents and the brother and other relatives is unnatural. The trial Court has failed to take into consideration of the same.
• There is inordinate delay in lodging the complaint and the same is not satisfactorily explained. The Trial Court has failed to take -9- CRL.A No. 2784 of 2011 into consideration of the same. Furthermore, the PW5 and 13 says regarding the presence of the police prior to the lodging of the complaint, on the previous night that is on 15.5.2008 when the witnesses alleged to have visited the spot. Even PWI says: in the cross examination that Police have informed him regarding the death of his sister.
• That the reason argued the presumption drawn and the conclusion arrived by the court below is patently wrong and erroneous, especially with regard to Section 304B of IPC and 113B of Evidence Act.
• That under the facts and circumstance of the case the Trail court ought to have in the light of the defense the contradictions in the version of the witnesses given benefit of doubt to the appellants.
• That the impugned judgment and order of sentence passed by the court below is otherwise opposed to law, principles and evidence on the record.
• It is submitted that viewed from any angle the judgment of conviction and order of sentence
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CRL.A No. 2784 of 2011 passed by the Trail Court is not sustainable in the eyes of law.
• On these among other grounds to be urged at the time of hearing the appellant humbly prays that this Hon'ble Court may be please to set-aside the judgment and order impugned. • The appeal filed today is in time.
9. During pendency of this appeal, 2nd appellant who is the father-in-law of the deceased died and appeal against him stood abated.
10. Reiterating the above grounds, Sri T.M.Nadaf, learned counsel for the appellants vehemently contended that on close reading of the complaint averments and the oral testimony of PWs.1, 2, 4 and 5, it is seen that there are numerous contradictions in the testimony of the prosecution witnesses and there is a total deviation to the complaint averments and therefore, sought for acquittal of the accused persons by allowing the appeal in toto. He also pointed out that from the complaint averments, it is seen that though there was a demand of additional dowry, there is no mention
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CRL.A No. 2784 of 2011 that dowry has been paid by the complainant party to the accused persons. At best what could be found out from the oral testimony of PWs.1, 2, 4 and 5 coupled with the complaint averments seen that there was an incident where 3rd accused has assaulted the deceased with a metal part on one occasion. Why Savitha committed suicide is not even spoken to by the prosecution witnesses and suggestions made to the prosecution witnesses that she had health issues and being frustrated in the life, she had committed suicide though denied by the prosecution witnesses probablizes an alternate theory for the suicide committed by Savitha and thus sought for allowing the appeal.
11. He also pointed out that material contradictions elicited during the course of cross-examination of PWs.1, 2, 4 and 5 coupled with the complaint averments makes out the case of the prosecution as doubtful and only on the ground that the death has taken place in the matrimonial house, it cannot be presumed that the appellants are responsible for the suicidal death of Savitha and therefore, no ingredients whatsoever are attracted to convict the accused for the
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CRL.A No. 2784 of 2011 offence punishable under Section 306 IPC and therefore sought for allowing the appeal.
12. Per contra, learned High Court Government Pleader supports the impugned judgment by placing reliance on the presumption available to the prosecution under Section 113B of the Indian Evidence Act. He further contended that marriage has taken place on 18.05.2007 and the death has occurred on 15.05.2008 and therefore since the death has taken place in the matrimonial house within the period of 7 years and having regard to the allegations found in the complaint, the death of Savitha is to be termed as dowry death and therefore, prosecution enjoys the presumptions available to it under the provisions of Section 113 and 113B of the Evidence Act. Further, he contended that accused are also bound to explain how the death has taken place in the matrimonial house by resorting to the provisions of Section 113A and 113B of the Indian Evidence Act and thus sought for dismissal of the appeal.
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CRL.A No. 2784 of 2011
13. He also pointed out that the material contradictions found in the evidence of the PWs.1, 2, 4 and 5 are natural because they are not tutored witnesses and therefore the same should not be blown out of proportion to doubt the case of the prosecution and sought for dismissal of the appeal in toto.
14. In view of the rival contentions of the parties, this Court perused the materials on record. On such perusal of the material on record, following points would arise for consideration.
1. Whether the prosecution is successful in proving the offences alleged against the accused persons for the offences punishable under Sections 498A, 304B, 306 r/w Section 34 IPC and the offences under Section 3, 4 and 6 of the Dowry Prohibition Act beyond reasonable doubt?
2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?
3. What order?
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CRL.A No. 2784 of 2011
15. Regarding Point Nos.1 and 2:- In the case on hand, in order to establish the case of the prosecution, prosecution mainly relied on the evidence of the complainant who is examined as PW1. PW1 is the brother of deceased Savitha. He lodged the complaint and complaint averments reveal that Savitha was married to the 1st accused on 18.05.2007 as per the customs and at the time of marriage, 25 grams Mangalasutra (gold chain) given to Savitha and Rs.1,500/- was given for the purpose of buying cloths for 1st accused. The couple have lived happily for about two months after the marriage. Thereafter, there was an altercation whereunder 2nd accused has assaulted the deceased with a metal part and the other accused persons witnessed the same and did not rescue the deceased from the said assault. Subsequently thereafter, PW1 deposed that he had advised accused no.1 to make a separate house and as such, first accused made a house in Kolhapur. Thereafter, they came back to Sambra and on the day of incident, PW1 and his aunt were also present in the matrimonial home at about 11.00 noon and at that juncture there was again a quarrel on the
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CRL.A No. 2784 of 2011 ground that a cot and bed is to be purchased and they did not allow the deceased to cook the food. However, these aspects of the matter is not even found in the complaint averments. He withstood the detailed cross-examination. He denied in his cross-examination that the deceased was suffering from ill-health and therefore, being frustrated in the life, she committed suicide.
16. PWs.2, 4 and 5 have also deposed before the Court practically in line with the evidence of PW1. However, they also denied the suggestion in their cross-examination that the deceased committed suicide on account of the ill health suffered by her.
17. PW14 is the doctor who conducted the autopsy on the dead body of the deceased and issued postmortem examination report at Ex.P17 and clarification vide Ex.P18. In his cross-examination also no useful material is elicited so as to doubt the case of the prosecution.
18. The other witnesses are formal in nature. Investigation officers are PWs.20 and 21. They deposed
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CRL.A No. 2784 of 2011 before the Court about the registration of the case and conducting the investigation and filing charge sheet. In their cross-examination also, no useful material is elicited so as to disbelieve the case of the prosecution.
19. Among the documentary evidence, Exs.P1 is the complaint, Ex.P2 is the marriage engagement card, Ex.P3 is the marriage card, Ex.P5 is the photo and Exs.P5 to 13 are the photographs of the deceased in hanging position. Ex.P14 is the loan receipt, Ex.P15 is the portion of the statement recorded by the investigation agency of PW5 under Section 161 Cr.P.C. Ex.P16 is the inquest mahazar and Ex.P19 is the spot mahazar. Ex.P21 is the sketch of the scene of the occurrence, Ex.P20 is the cloth seizure mahazar, Ex.P22 is the house property extract, Ex.P24 is the opinion given by PW14 and Ex.P15 is the FIR. Material objects are the cloths worn by the deceased.
20. The above material evidence on record is sought to be re-appreciated. In order to appreciate the documents put forth on behalf of the appellants, it is just and necessary
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CRL.A No. 2784 of 2011 for this Court to cull out the definition of dowry, which reads as under:
2. Definition of "Dowry". - In this Act, "Dowry"
means any property or valuable security given or agreed to be given either directly or indirectly.-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
21. So also it is necessary to cull out Section 498A IPC and 306 IPC, Section 304B IPC. It is also necessary for this Court to cull out the provisions of the Indian Evidence Act namely 113A and 113B and 106.
498A. Counterfeiting currency-notes or bank-notes. - Whoever counterfeits, or
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CRL.A No. 2784 of 2011 knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
306. Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
113A. Presumption as to abetment of suicide by a married woman.--When the
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CRL.A No. 2784 of 2011 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.
113B. 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 has 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.
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
22. From the conjoint reading of the above legal provisions, in order to record an order of conviction,
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CRL.A No. 2784 of 2011 prosecution has to successfully establish that death of a female must have taken place within 7 years of marriage on account of the harassment imparted by the accused persons demanding the dowry whereby the death could be considered as dowry death. Further, if the death has occurred on account of the suicide, it would be turned as dowry death and necessarily Section 306 IPC would also be attracted. The provisions of 113A and 113B of Indian Evidence Act would be pressed into service after the prosecution initially discharges its burden that cast on the prosecution that the death has occurred within 7 years of the marriage in the matrimonial house in pursuance of the demand of dowry.
23. Further, in order to attract the offence under Section 498A IPC, husband and his relatives must have harassed the wife in the matrimonial home.
24. With the above legal requirements in the backdrop, when the material evidence on record is appreciated, the complaint averments never speak out
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CRL.A No. 2784 of 2011 payment of dowry though there is a demand made by the accused persons. In order to fulfill the definition of dowry, there must be demand before marriage or at the time of marriage or after marriage in connection with the marriage as that should have been fulfilled by the complainant party. In the case on hand, what has been given at the time of marriage is customary in nature inasmuch as Rs.1,500/- is given for the purchase of cloths of first accused and Mangalasutra was given to the deceased as a customary article. No doubt, on record there is evidence that the said mangalasutra was pledged in the bank and amount was taken by the accused, but that itself cannot be treated as a dowry. Inasmuch as there was no complaint given by the deceased or by her parents when the actual pledge has taken place.
25. Further, PW1 has stated that there were differences between the accused Nos.1 to 3 and there was a quarrel, he had advised the accused no.1 to make a separate house in Kolhapur and coupled lived in Kolhapur. No such evidence is forthcoming on record nor there is evidence
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CRL.A No. 2784 of 2011 collected by the investigation agency as to where the couple lived after the first incident has taken place. It is stated that panchayath was convened and they were advised and no panchayathdars were examined on behalf of the prosecution to establish that there was a demand of dowry and advise has taken place and after advise a separate house has been made by the accused no.1 at Kolhapur. On the contrary, complaint averments reveal that after two months of incident, deceased was assaulted by mother-in-law with a metal part, she came back to Karle village i.e. parental house of the deceased. The accused persons came to Karle village, parental house of the deceased and picked up quarrel. In the guise of taking photograph for the election card about twenty days earlier to the incident, the deceased was taken from parental house to the matrimonial house. Further it is found from the complaint averments that on 15.05.2008, the complaint came to know about the death of deceased through Narayana Kinekar. However, complainant has stated in the examination in chief itself that on the day of incident, himself and his aunt had been to the matrimonial
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CRL.A No. 2784 of 2011 house and there was a quarrel and in that quarrel, accused persons demanded a bed and cot and when the same was not given, they did not allow the deceased to cook the food and thereafter she committed suicide. There is a total contradiction from the complaint averments and the version of PW1 in the examination in chief. It is also pertinent to note that Narayana Kinekar is not even cited as a witness to the investigation agency in the charge sheet witness nor he is examined by the prosecution as a witness. When PW1 was made known about the death of the deceased by hanging herself through Narayana Kinekar, non-examination of Narayana Kinekar assumes a great importance in doubting the case of the prosecution. Further, since there is a total contradiction from the averments made in the complaint and the examination-in-chief, the same should be treated as an improvement on behalf of the prosecution as to somehow, to get an order of conviction against the accused persons for the offences alleged against them. Further, oral testimony of PWs.2, 4 and 5 did not improve the case of the prosecution to any extent in as much as they have also deposed in
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CRL.A No. 2784 of 2011 almost similar lines with the oral testimony of PW1. Consistent suggestions are made to PWs1, 2, 4 and 5 that death of the deceased has occurred on account of the ill health though there is no evidence placed by the accused persons in this regard, since the prosecution itself is not in a position to establish that there was a demand of dowry and the same was met and on account of the further demand of dowry refusal, thereafter, the harassment has taken place which is actually has driven the deceased to commit suicide in the matrimonial home, the argument put forth on behalf of the prosecution that the accused have failed to discharge the burden as is cast on them under Section 113A and 113B of the Indian Evidence Act.
26. From the above discussion, it is crystal clear that even though the prosecution case is that there was a demand of dowry and death of deceased on account of the non compliance of the dowry demand, since there is no cogent evidence placed on record by the prosecution to establish the said aspect of the matter, the death of deceased cannot be turned as a dowry death so as to attract
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CRL.A No. 2784 of 2011 the provisions of Section 304B IPC. So also the evidence on record is hardly sufficient that it is the action of the accused which ultimately abated the commission of suicide by the deceased. Therefore, all the ingredients to attract the offence under Section 306 IPC is also not forthcoming on record in the case on hand. Since there is no positive evidence to prove the ingredients to attract offence under Sections 3, 4 and 6 of the Dowry Prohibition Act, the recording an order of conviction by the trial Court insofar as those offences are concerned are also needs to be interfered. However, the totality of the circumstances from the complaint averments, it is established that there was harassment to the deceased in the matrimonial home by the accused persons. Therefore, conviction of appellants for the offence under Section 498A IPC is justified.
27. From the above discussions, this Court is of the considered opinion that the prosecution is successful in proving the offence alleged against the accused persons only for the offence under Section 498A IPC and therefore, Point
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CRL.A No. 2784 of 2011 No.1 is answered partly in the affirmative and Point No.2 also partly in the negative.
28. Regarding Point No.3:- Having recorded the findings on point Nos.1 and 2 above, the sentence ordered by the trial Court insofar as appellant Nos.1 and 3 also needs modification. This Court having recorded a finding that appellant Nos.1 and 3 are liable to be convicted for the offence under Section 498A IPC, the custody period spent by appellant no.1 before the trial and after the conviction order and so also appellant no.3 after the conviction for a period of one month and four days shall be treated as period of imprisonment and ordered to pay a fine of Rs.25,000/- each in addition to the fine already imposed by the trial Court would meet the ends of justice. Out of the fine amount, a sum of Rs.90,000/- is ordered to be paid as compensation to PW4-mother of the deceased and balance amount of Rs.5,000/- needs to be appropriated towards defraying expenses of the State. Accordingly, Point No.3 is answered and pass the following order:
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ORDER
(i) The appeal abates against appellant No.2.
(ii) Appeal of appellant Nos.1 and 3 is allowed in part by acquitting the appellants for the offences punishable under Sections 304B and 306 IPC; and Sections 3, 4 and 6 of the Dowry Prohibition Act. However, the conviction of the appellants Nos.1 and 3 insofar as 498A is confirmed and the period of imprisonment of appellant No.1 before the conviction and after the conviction and appellant no.2 after the conviction order is treated as imprisonment and ordered to pay fine of Rs.25,000/- each in addition to the fine already imposed by the trial Court for the offence under section 498A IPC with default sentence of 1 year simple imprisonment. Out of the fine amount imposed, a sum of Rs.90,000/- is ordered to be paid as compensation to PW4 who is the mother of the deceased under proper identification.
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CRL.A No. 2784 of 2011
(iii) Balance amount of Rs.10,000/- is
ordered to be appropriated towards
defraying expenses of the State.
(iv) Time is granted to pay balance fine
amount till 30.06.2022.
(v) Office is directed to return the trial Court
records forthwith with copy of this
judgment for issue of modified conviction warrant.
SD/-
JUDGE CLK