Karnataka High Court
Riyaz S/O. Abdulgafar Shaikh vs The State Of Karnataka on 25 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 25th day of September 2020
Present
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
and
THE HON'BLE MR. JUSTICE V. SRISHANANDA
Criminal Appeal No.100100 of 2018
Between
1. Riyaz, S/o. Abdulgafar Shaikh,
Aged about 37 Years, Occ: Coolie,
2. Fatima, W/o. Abdulgafar Shaikh,
Aged about 69 Years, Occ: Household,
Both are R/o. House No.546/A,
Near Basuban Masjid, Marutinagar,
Dandeli, Dist: Karwar. ...Appellants
(By Sri. Shivakumar S. Badawadagi, Advocate)
And
The State of Karnataka,
Represented by its State Public Prosecutor,
High Court Of Karnataka, Dharwad Bench ,
Through Dandeli Police. ...Respondent
(By Sri.V.M.Banakar, Addl.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS IN
S.C. NO.28/2011, PERUSE THE SAME, ALLOW THIS APPEAL,
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE DATED 15.02.2018 AND SET THE
APPELLANTS AT LIBERTY.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 24.08.2020 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M. SHYAM
PRASAD J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellants, who are the mother and son, are convicted for the offences punishable under Sections 498A, 304B and 302 read with Section 34 of the Indian Penal Code (for short, 'IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, 'Dowry Prohibition Act')in the Sessions Case in S.C. No.28/2011 on the file of the Principal District and Sessions Judge, Uttara Kannada, Karwar (for short, 'the Sessions Court')by the impugned judgment and order dated 15.02.2018.The appellants are sentenced to undergo imprisonment:
• for a period of five years and pay fine of Rs.15,000/- each with default sentence of simple imprisonment for two years for the offence punishable under Section 3 of the Dowry Prohibition Act, • for a period of two years and pay a fine of Rs.10,000/- each with default sentence of 3 simple imprisonment for one year for the offence punishable under Section 4 of the Dowry Prohibition Act, • for a period of three years and pay fine of Rs.25,000/- each with default sentence of simple imprisonment for six months for the offence under Section 498A of IPC • for life till death and pay fine of Rs.1,00,000/-
each with default sentence of simple imprisonment for three years for the offence under Section 302 of IPC, and • for life and pay fine of Rs.50,000/- each with default sentence of simple imprisonment for three years for the offence under Section304B of IPC.
The Sessions Court has directed that all the sentences shall run concurrently. Sri Abdul Gafar Kalesab Shaikh, the first appellant's father, who was arraigned as the second accused to be tried for the same offences, is acquitted.4
2. The deceased, Smt.Sairabanu, and the first appellant were married on 11.5.2007 at Kapoli, Pune, and she gave birth to a girl child in the year 2010. Smt.Sairabanu and the first appellant were initially residing in Karve, Pune, and they later shifted their residence to Dandeli. Smt. Sairabanu was found hanging from the ceiling in their residence in Maruti Nagar, Dandeli on 2.1.2011. The prosecution's case is as follows:
2.1 Smt.Sairabanu lived happily only for a year after the marriage. But the first appellant became habituated to alcohol and he, along with the second appellant, started harassing her. They physically and mentally tortured Smt.Sairabanu. They denied her food and clothing, and they started insisting upon her to get money from her parents for the purchase of a welding machine. Smt.Sairabanu was constrained to file a report with Maalawadi Police Station, Pune on 12.9.2008 complaining that the appellants and Sri Abdul Gafar 5 Kalesab Shaikh had to be prosecuted for offences punishable under section 498A, 324 read with section 34 of IPC. During the investigation there was rapprochement at the intervention of the elders. The second appellant and Sri Abdul Gafar Kalesab Shaikh undertook to look after Smt.Sairabanu has their own daughter.
2.2 Smt.Sairabanu and the appellant lived together in Karve, Pune for some time thereafter. The second appellant would frequently visit them, and at her instance, the first appellant continued to harass and ill-
treat Smt.Sairabanu. They again started denying her food and clothing and abusing her in vulgar language. The appellants were repeatedly instigating Smt.Sairabanu to commit suicide. The first appellant would repeatedly ask Smt.Sairabanu to go elsewhere and die so that he could remarry. The appellants ignored her parents' and family members' requests not to behave badly with Smt.Sairabanu.
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2.3 In 2010, Smt.Sairabanu and the first appellant relocated to Dandeli. The first appellant secured for himself a job in a private limited company in Dandeli. Smt.Sairabanu would call her parents and tell them that the appellants had continued with physically assaulting her and treating her cruelly.
2.4 On 2.1.2011 at about 4 o'clock in the evening, Smt.Sairabanu's parents and family members were informed over telephone that she had committed suicide by hanging herself. They reached Dandeli on 3.1.2011.They were informed that when the appellants and Sri Abdul Gafar Kalesab Shaikh had gone out and she was alone, she bolted herself inside the residence. The first appellant broke open one of the windows when Smt.Sairabanu did not open the door, and found her hanging from the ceiling by a saree. Smt.Sairabanu committed suicide by hanging herself from the ceiling. 7
2.5 Smt. Sairabanu's father, Sri. Mainuddin Akbarsab Chakkalageri, filed the first information with Dandeli Town Police Station at around 11 o'clock on 3.1.2011 narrating the above and requesting the police investigate and take action against them. He also stated that he, being a resident of Pune, is not familiar with vernacular and therefore he was getting the first information typed out in the police station.
3. The Dandeli Town Police registered such first information in Crime No. 1 of 2011 against the appellants and Sri Abdul Gafar Kalesab Shaikh for offences under section 498A, 304B and 34 of IPC read with sections 3 and 4 of the Dowry Prohibition Act. The appellants were taken into custody and the learned Magistrate remanded them to judicial custody. The Sessions Court during investigation granted bail to the second appellant in Criminal Miscellaneous No. 14/2011, and Sri Abdul Gafar Kalesab Shaikh was granted anticipatory bail in Criminal Miscellaneous No. 15/2011.
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4. The Dandeli Police completed the investigation and filed charge sheet against the appellants and Sri Abdul Gafar Kalesab Shaikh for offences punishable under 498A, 304B and 34 of IPC read with sections 3 and 4 of the Dowry Prohibition Act, and the learned Magistrate committed the case for trial to the Sessions Court by order dated 12.4.2011. The first appellant was later granted bail by this Court on 2.8.2011.
5. The Sessions Court, initially on 19.9.2011,framed separate charges against the appellants and Sri Abdul Gafar Kalesab Shaikh only for offences 498A, 304B and 34 of IPC read with sections 3 and 4 of the Dowry Prohibition Act, but later, on 6.12.2017the Sessions Court added the charge for the offence punishable under section 302 of IPC.
6. The prosecution has examined 24 witnesses. Smt.Sairabanu's mother (Smt. Jainabbi Mainuddin) and maternal uncles (Sri. Kutubudeen Bangdige Saab and 9 Sri. Mustafa Baadsha) are examined as PW 9, PW 10 and PW 11. A common acquaintance of both the appellants and the deceased's family members (Sri. Shafi Jamal Shaikh), is examined as PW 12. The appellants' certain neighbours have been examined as PW 4, PW 5, PW 6 and PW 7. The panch witnesses, Sri Ahammad Yusuf Khan and Sri Umesh Shankar Jhadav, and Smt. Khairunnissa Mohammad Siraj - also a neighbour of the appellants, have been examined as PW 1, PW 2 and PW
3. These punch witnesses are examined as witnesses to the spot mahazar drawn at the place of occurrence and seizure mahazars. The relatives and the acquaintance have supported the prosecution's case, but the neighbours and panch witnesses have turned hostile and they have not supported the prosecution's case.
7. Dr. Ramesh and Dr. Anupama, who have jointly conducted the Post Mortem, are examined as PW 14 and PW 17. They have opined that the death is by asphyxia because of hanging. Sri. Sanjeev, an Assistant 10 Engineer with the Public Works Department, who has drawn a sketch of the place of occurrence is examined as PW 15. Sri. Azeez Deasi, is a photographer who has taken photographs at the place of occurrence, and he is examined as PW 24. Sri Rakil Alam, a Maulana of Masjid at Kothrud, Pune is examined as PW 25. The other witnesses are the police personnel: Sri Hanumantha (PW
16) is a police constable who accompanied the dead body for the purposes of post-mortem, Sri Santharam (PW 19) is another police constable and he is examined as the carrier of the First Information Report to the learned jurisdictional Magistrate, Sri R Manjappa (PW 20) is the police officer who conducted the investigation initially, Sri Mahesh (PW 21) is the police officer who completed the investigation and filed the chargesheet, and Sri. Ajith Kumar Ramachandra Naik is a police constable who carried the vital organs of the deceased for forensic examination.
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8. The other police personnel who is examined is the Assistant Sub- Inspector of Police, Sri Omkarappa (PW 17). He has spoken about visiting Pune and collecting the certified copies of the records in CC No. 4503/2008 arising from the crime No. 246/2008. He has deposed that he has obtained the respective documents from the court of the Judicial Magistrate, Malwadi, Pune and the police station at Malwadi, Pune.
9. The prosecution has relied upon Exhibits P 1
- P 33. These exhibits include spot Panchanama (Exhibit P1), clothes Seizure Panchanama (Exhibit P2), a Seizure Mahazar drawn at the place of occurrence (Exhibit P3), Marriage Certificate (Exhibit P4), Wedding Card (Exhibit P6), Wedding photograph (Exhibit P.7), Inquest Panchanama (Exhibit P8), Post-Mortem Report and Forensic Science Laboratory Report (Exhibit P 16 and Exhibit P 33), Complaint and First Information Report (Exhibit P 20 and P 21) and photographs of the place of occurrence (Exhibit P 27 - P 30).
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10. The exhibits marked by the prosecution also include correspondence/ application submitted by Sri Omkarappa (PW 18) for securing the certified copies of the records in CC No. 4503/2008 and in crime No. 246/2008 (Exhibit P 20-P 23) and an extract of the Jamaat meeting(Exhibit P 14)1. Further the statements of those witnesses who have turned hostile are also marked as exhibits. The deceased's clothes and broken bangle pieces found at the place of occurrence are marked as material objects.
11. The first appellant, apart from filing his statement in writing under section 313 of Cr.P.C, has examined himself as DW 1. The first appellant in his evidence has stated that he and Smt. Sairabanu were married in 2007 at Kapoli, Maharashtra. Neither he nor his parents ill-treated her either physically or mentally; 1 The statement as per Exhibit P 14 and the records in CC No. 4503/2008 and in crime No. 246/2008 are in Marathi and their translation is not part of the paper book. But, their contents have been read over to this Court during the hearing by an official of this court who knows to read and write Marathi. 13 and they never, either at the time of the marriage or thereafter, demanded any money. They have not received any Dowry. The deceased was suffering from some mental illness, and she was inconsistent in her conduct. She was visiting Hospital because of her condition and he had also accompanied her thrice or four times on her visits to the hospital. Her father also suffered from such difficulties, and he was suffering from such difficulties for over 6-7 years. He and his parents are not responsible for her death.
12. The first appellant in his cross-examination has stated that about two years after the marriage Smt. Sairabanu had hurt herself by cutting herself in the left hand, and he informed her parents, who visited them but only advised him to take her to hospital. He has admitted that he has not produced any documents to show that Smt. Sairabanu was suffering from any mental illness. 14
13. The Sessions Court in convicting the appellants for offences under section 498A, 304B and 302 read with section 34 of IPC and sections 3 and 4 of the Dowry Prohibition Act has relied upon the evidence of Smt. Sairabanu's mother and her maternal uncles, PW 9
-PW 11. The Sessions Court has opined that their evidence that the appellants demanded dowry and ill- treated her for further dowry and the appellants are responsible for her death is corroborated by the other witnesses and evidence. The Sessions Court has concluded that there is no evidence to establish that Smt. Sairabanu suffered from any mental affliction, and the defence that Smt. Sairabanu was suffering from some mental illness and she committed suicide on her own cannot be accepted. The Sessions Court has acquitted the second accused - the father of the first appellant - opining that he cannot convicted only because he would keep quiet when the appellants physically and mentally 15 tortured Smt. Sairabanu and did not advise them against such conduct.
14. The learned counsel for the appellants argues that the Sessions Court after a précis of the evidence of each of the witnesses has perfunctorily concluded that the appellants are guilty of the offences charged against them without examining the evidence to conclude whether the ingredients necessary to convict the appellants for offence under section 302 or 490 8A or 304 B or 34 of IPC or sections 3 and 4 of the Dowry Prohibition Act are established. There is no dispute that Smt. Sairabanu's demise is unnatural and within seven years of marriage but there is no evidence to conclude that she was murdered, and that too by the appellants. The conviction of the appellants under section 302 of IPC is totally perverse and unjustified.
15. The learned counsel for the appellants argues that even the conviction of the appellants for cruelty for 16 dowry and Dowry Death under section 498A and 304 B of IPC and the provisions of the Dowry Prohibition Act is perverse. The learned counsel canvasses that the first information is lodged by Smt. Sairabanu's father, Sri. Mainuddin Akbarsab Chakkalageri and this information is marked as Exhibit P 24. But Sri. Mainuddin Akbarsab Chakkalageri is not examined. The explanation attempted by Smt. Sairabanu's mother (PW 9) that he lost his mental balance after the death of Smt. Sairabanu is lame inasmuch as it is admitted that he was present in the court when PW 9and her brothers were being cross- examined. However, her evidence that her husband is not mentally sound corroborates the appellants' defence that Smt. Sairabanu had inherited some mental affliction from her father and she has committed suicide because of such affliction.
16. The learned counsel for the appellants also that argues the evidence of Smt. Sairabanu's mother (P.W. 9) and her maternal uncles is full of improvements. 17 The first information (Exhibit 24) does not mention demand or payment of dowry at the time of marriage or any time thereafter. Their evidence as regards the demand and payment of dowry is unbelievable. The complaint lodged by Smt. Sairabanu with Malwadi police in view of the subsequent proceedings before the learned Magistrate in CC No. 4503/2008 do not inculpate the appellants. The fact that Smt. Sairabanu immediately after a settlement in Jamaat lodged such complaint but agreed for a settlement, corroborates the defence that Smt. Sairabanu was inconsistent and erratic in her behavior. As such, the prosecution has failed to establish that there was demand for dowry and payment thereof, or harassment for dowry soon prior to the demise. The prosecution has failed to establish the necessary ingredients for conviction either under the provisions of section 498A or 304B or 34 IPC or under section 3 and 4 of Dowry Prohibition Act. Therefore, the conviction of the appellants will have to be interfered with. 18
17. The learned Additional State Public Prosecutor canvassed in support of the conviction and sentencing of the appellants for the offences punishable under section 498A or 304B or 34 IPC and under section 3 and 4 of Dowry Prohibition Act submitting that the conviction of the appellants for offence under section 302 of IPC would be unjustified in the light of the evidence on record. The learned Additional State Public Prosecutor placing reliance upon the decision of the Hon'ble Supreme Court in Rajinder Singh versus State of Punjab2 submits that the prosecution to inculpate an accused for offences punishable under 304B 34 IPC must establish four ingredients viz., (i) death must have occurred otherwise than under normal circumstances,(ii) such death must be within 7 years of marriage,(iii) the deceased must have been subjected to cruelty or harassment by her husband and his relatives soon before her demise, and (iv) such cruelty or harassment should be in connection with 2(2015) 6 Supreme Court Cases 477 19 dowry. The prosecution has established all the four ingredients which would render the appellant guilty of offence punishable under section 304B and 34 IPC but also for the offence punishable under Section 498A of IPC and sections 3 and 4 of Dowry Prohibition.
18. The learned Additional State Public Prosecutor emphasizes that Smt. Sairabanu's mother, would be the best person, more so because the father, Sri. Mainuddin Akbarsab Chakkalageri - the complainant - could not be examined to explain the reasons why Smt. Sairabanu took the extreme step of putting herself to death leaving behind an infant. She has spoken about the appellants' consistent conduct in harassing Smt. Sairabanu for dowry. Her testimony is not only corroborated by her brothers' evidence but also by the evidence of a common acquaintance (PW 12) and the fact that within 2 years of marriage there was a conciliation in Jamaat and a rapprochement during the pendency of the criminal proceedings in CC No. 4503/2008, a proceedings for 20 punishment of the appellant's under section 490 8A and section 323 of IPC initiated on a complaint by Smt. Sairabanu. The Sessions Court's judgment does not suffer from any perversity, and as such there is no reason for interference in this appeal.
19. The questions for consideration are:
a. Whether the Sessions Court's finding that the prosecution has established that the appellants are guilty of the offence punishable under Sections 302 and 34 of IPC is perverse and irregular;
b. Whether the Sessions Court's finding that the prosecution has established that the appellants are guilty of the offences punishable under Section 498Aand 304B read with Section 34 of IPC is perverse and irregular;
c. If the Sessions Court's finding in this regard is perverse, what order should be made in this appeal.21
20. In the light of the argument by the learned counsel for the appellants that the Sessions Court has perfunctorily concluded that the appellants are guilty of the offences charged against them without examining the evidence and that this Court will have re-appreciate the evidence on record to test the prosecution's case, it would useful to refer to the decision of the Hon'ble Supreme Court in Mohammed Ali @ Guddu v. State of Uttar Pradesh3.
21. The Hon'ble Supreme Court in this decision has reiterated that it is the duty of an appellate court to look into the evidence adduced and arrive at an independent conclusion as to whether the said evidence can be relied upon or not, and even if it can be relied upon, whether the prosecution can be said to have proved its case beyond reasonable doubt on the said evidence. An appellate court must remember that it should, like a trial court, be satisfied affirmatively that 3(2015) 7 Supreme Court Cases 272 22 the prosecution's case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt. The Hon'ble Supreme Court, referring to its larger bench decision in Majjal v. State of Haryana4, has also reiterated that it is necessary for a High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserves to be confirmed. The circumstances of the case as borne out by the evidence are accordingly reexamined by this Court.
22. The prosecution's specific case is that Smt. Sairabanu was found hanging in the residence at around 1 PM on 2.1.2011 by the appellants who were instigating her to commit suicide. The FIR (Exhibit P 25) is registered at 11:15 AM on 3.1.2011 and the inquest is conducted thereafter. The first information about the death of Smt. Sairabanu is by her father, Sri Moinuddin Akbarsab Chikkalageri, as per Exhibit P 24. Sri Moinuddin 4(2013) 6 Supreme Court Cases 798 23 Akbarsab Chikkalageri has stated that on coming to Dandeli on 3.1.2011 he and his family members were informed that on 2.1.2011when Smt. Sairabanu was alone at home, she bolted herself inside the house and the first appellant broke open a window to enter the house because she would not open the door. It was only then it was found out that Smt. Sairabanu was hanging from the ceiling in one of the rooms. It is also stated that Smt. Sairabanu could have hung herself between 10:00 AM and 11:00 AM of 2.1.2011.
23. According to the Inquest Panchanama (Exhibit P8), which is conducted on 3.1.2011 between 12:45 PM and 13:45 PM, Smt. Sairabanu was found hanging from the ceiling of one of the rooms in the house on 2.1.2011 at around 1:00 PM and it was the appellants who first saw her hanging from the ceiling dead. Pertinently, neither in the first information nor in the Inquest Panchanama there is allegation of the appellants having committed the murder of Smt. Sairabanu. In fact, the 24 allegation is that the appellants were instigating Smt. Sairabanu to commit suicide. Therefore, there is serious doubt about the appellants having committed the murder of Smt. Sairabanu.
24. Further, Smt Jainabbi (Smt. Sairabanu's mother who is examined as PW 9) has only spoken about the appellants ill-treating and harassing her daughter and the demand and payment of dowry, but she has not spoken anything about what must have transpired on 2.1.2011. Her brothers, who have been examined as PW 10 and 11 respectively, have spoken contrarily on what must have transpired on 2.1.2011 and 3.1.2011. Sri Khutubuddin (PW 10), one of the brothers, has stated that when he and the others reached Dandeli on 3.1.2011, they found Smt. Sairabanu's body hanging from the ceiling. It is highly improbable that her body, which was found hanging in the afternoon of 02.01.2011, would be let hanging from the ceiling until her family reached Dandeli on 3.1.2011. The other brother, Sri 25 Mustafa (PW 11) has stated that when they reached Dandeli on 3.1.2011, the dead body had already been brought to the ground. This is contrary to his brother's evidence. The evidence of these brothers does not even build the hypothesis that the appellants could be guilty of having murdered Smt. Sairabanu. As such, the evidence of these persons would not clinch that the appellants are guilty of having committed the murder of Smt. Sairabanu. Other than these witnesses, none of the other witnesses have spoken about what must have transpired on 2.1. 2011. The doctors who have conducted the post-mortem (Exhibit P 16) have opined that the death is because of asphyxia as a result of hanging.
25. Thus, there is no evidence on record to establish that the appellants are culpable of having committed the murder of Smt. Sairabanu and as such are punishable for the offence punishable under section 302 of IPC. The Hon'ble Supreme Court in Rajbir v. 26 State of Haryana5 has directed the trial courts to add Section 302 of IPC to the charge of section 304B of IPC so that death sentences can be imposed in appropriate cases. But then, the Courts cannot convict an accused under section 302 of IPC without analysing the material to arrive at a conclusion that the prosecution has established, beyond reasonable doubt, that an accused has committed the murder.
26. The Sessions Court has summarised the evidence of each of the witnesses, but without analyzing the same has concluded that the appellants are guilty of offence punishable under section 302 of IPC. The learned counsel for the appellant and the learned additional State Public Prosecutor are justified in their submission that the conviction of the appellants for the offence punishable under section 302 of IPC, and their sentencing therefor, cannot be sustained and will have to be set aside. The first question is answered accordingly. 5 (2010) 15 Supreme Court Cases 116 27
27. This takes us to the next question whether the prosecution is able to establish that the death of Smt. Sairabanu is a Dowry Death and therefore the appellants are guilty of the offence punishable under Section 304B of IPC. The provisions of section 304B of IPC reads as follows:
[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 har-
assment 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.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
Further, section 113B of the Evidence Act, 1872(for short, 'the Evidence Act') stipulates that, when the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her 28 death such woman had been subjected to cruelty or harassment by such person in connection with any demand for dowry, the courts shall presume that such person has caused the Dowry Death.
28. The Hon'ble Supreme Court in Rajinder Singh versus State of Punjab6 considering these two provisions as well as the definition of the term Dowry in the Dowry Prohibition Act, while reiterating the ingredients that will have to be established by the prosecution to sustain its case of Dowry Death against an accused before presumption under Section 113 B of the Evidence Act could be drawn, has declared that:
"There must be a nexus between the demand of dowry, cruelty or harassment based upon such demand and the date of death. The test of proximity will have to be applied. But it is not a rigid test. It depends on the facts and circumstances of each case and calls for a 6 (2015) 6 Supreme Court Cases 477 29 pragmatic and sensitive approach of the court within the confines of law."
The four necessary ingredients that constitute an offence under section 304B of IPC as reiterated by the Hon'ble Supreme Court are: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand for dowry.
29. Further, the significance of the expressions 'Dowry7' and 'soon before death' have also been 7 . It is declared that the expression Dowry could mean and include any money or property of valuable security demanded by any person mentioned in section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman. 30 delineated by the Hon'ble Supreme Court while reiterating that:
'If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstances showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximity and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which under the circumstances, be treated as having become stale enough'.
It will have to be seen whether the prosecution is able to establish its case against the appellants for the offences punishable under section 498A and 304B of IPC against the touchstone of these principles.31
30. The pith of the prosecution's case against the appellants is that they instigated Smt. Sairabanu to commit suicide by hanging herself in the appellants' residence in Maruti Nagar, Dandeli by constantly subjecting her to physical and mental cruelty for further dowry despite the fact that her parents had given a sum of Rs.15,000/- in cash and 15 grams of gold as dowry at the time of marriage. The appellants were demanding a sum of Rs.10,000/- for the purposes of purchasing a welding machine for the first appellant, and this amount was also paid. Nevertheless, Smt. Sairabanu was treated cruelly and harassed for further demands until her death.
31. Smt. Sairabanu's father, Sri. Mainuddin Akbarsab Chakkalageri, has stated in this first information that the marriage between the first appellant and the deceased Sairabanu was solemnized on 11.05.2007 according to the customs of the community 32 in a chaultry at Kapolli, Pune. The first appellant and the deceased Sairabanu began their matrimonial life in Karve, Pune, and they lived happily for about a year. But the first appellant became gradually habituated to alcohol, and he along with his parents started ill-treating her. They abused her in filthy language and denied her even food and clothes. The appellants and the second accused started demanding money for the purposes of buying a welding machine.
32. But, Smt. Sairabanu's father, Sri Moinuddin Akbarsab Chikkalageri, is not examined. It is seen from the Session Court's orders sheet that a memo is filed by the public prosecutor to give up Sri Moinuddin Akbarsab Chikkalageri as a witness enclosing a medical certificate. Smt. Sairabanu's mother, Smt. Jainabbi, (PW 9) has stated in her evidence that her husband was not mentally sound and hence, unable to give evidence. However, Sri Moinuddin Akbarsab Chikkalageri is examined in the criminal proceedings in CC No. 4503/2008 on the file of 33 the learned Magistrate, Malwadi, Pune. The veracity of the first information in the present(Ex. P 1) because he has not been examined is not tested, but with the investigation having been set in motion based on this information, the other evidence on record will have to be examined in the background of these circumstances.
33. The prosecution from Exhibit P 14 and Exhibit P 20 - Exhibit P 23 is able to establish that there were differences between the first appellant and Smt. Sairabanu, but the question would be whether the same would suffice to convict the appellants of the offences punishable under Section 498A, 304 B read with 34 of IPC and Section 3 and 4 of the Dowry Prohibition Act.
34. The Exhibit P 14 is an extract of a Jamaat in Pune on 13.7.2008 between the families of the appellants and Smt. Sairabanu in the presence of Maulana Rakim Alam - PW 22. According to Exhibit P 14, the first appellant and Smt. Sairabanu were called for a meeting 34 at the instance of the first appellant's brother, and they were counseled. The first appellant was advised not to assault or ill-treat Smt. Sairabanu, and the second appellant and her husband, Sri Moinuddin Akbarsab Chikkalageri were advised to treat Smt. Sairabanu as their own daughter. Smt. Sairabanu was also advised to heed to the advice of the elders and not be quarrelsome. It would be important to observe that as in the first information in the present case (Ex. P 24), in extract of the minutes of the Jamaat (Ex. P 14) there is no reference to any demand for dowry by the appellants or payment thereof at the time of marriage or thereafter, or that the differences between the couple and their family members was because of such demand.
35. Smt. Sairabanu has lodged a complaint with the Malawadi Police Station, Pune (as per Exhibit P 23) in crime No. 246/2008 on 12.9.2008. She has alleged in this complaint that the first appellant (the husband) ignored her and her in-laws assaulted her with a broom 35 and abused her in filthy language. The first appellant and her in-laws did not permit her to enter the house when she returned after visiting her parents for Ramzan for the first time after the marriage. The first appellant demanded a sum of Rs.40,000/- for purposes of his business and he was harassing her. On 11.9.2008, the first appellant assaulted her and threw her out of the house.
36. The Malawadi Police filed charge sheet against the appellants and Sri Moinuddin Akbarsab Chikkalageri, which is marked as part of Exhibit P 21. There is a settlement between the appellants and Smt. Sairabanu during the investigation with them entering into an agreement dated 10.2.2009 which is also marked as part of Exhibit P 21. The agreement is that there was some misunderstanding between them but they have realized their mistakes and are willing to amicably resolve their differences. Both of them agreed to leave life together with mutual respect and significantly, the first appellant has 36 agreed that he will not ill-treat Smt. Sairabanu. The term that the appellant will not ill-treat Smt. Sairabanu is handwritten.
37. In the proceedings before the learned Magistrate, Malawadi, Pune Smt. Sairabanu's father, Sri Moinuddin Akbarsab Chikkalageri, who is not examined in the present proceedings on the ground that he is not mentally sound, has been examined as a witness (as recorded in the judgment of the learned Magistrate). He has only stated that there were differences between the couple from the first day of marriage, but they have reconciled their differences. Smt.Sairabanu's evidence in this case is marked as Exhibit - D2 on behalf of the appellants in the cross-examination of PW 18, Sri Omkarappa, an Assistant Inspector of police who secured the records from the Malawadi Police Station and the learned Magistrate's court in Malawadi, Pune. 37
38. Smt. Sairabanu has deposed that there were differences between herself and the first appellant on petty counts. She was residing at Karvenagar, Pune for about 1½ months as of the date of her evidence. She had gone to hospital on 20.9.2008 as she was not feeling well and she does not know about the contents of report filed with the police. She has also stated that she had no complaint against her husband and in-laws. Though there is a mention of a demand for a sum of Rs.40,000/- in the complaint there is no mention about payment of dowry after some negotiation at the time of the marriage or the demand for higher dowry thereafter.
39. Sri. Shaffi, a resident of Kapolli, Pune is examined as PW 12, and he has spoken about the circumstances in which reconciliation meeting was held in Jamaat. He has stated that Smt. Sairabanu's father was working with him for some time. Smt. Sairabanu's parents informed him that there were differences between the appellants and Smt. Sairabanu because the second 38 appellant would always insist upon Smt. Sairabanu to get up very early in the morning. The first appellant had also requested him for financial assistance to buy a welding machine. He tried to intervene between the two families, but he was unsuccessful because the second appellant did not want him to intercede. The first appellant had come to the Jamaat drunk. Significantly, even this witness does not speak about negotiations for dowry or payment of dowry at the time of the wedding, and he only states that he heard from Smt. Sairabanu's parents that there was a demand for money. When the parents of Smt. Sairabanu again approached him after the Jammat meeting telling that Smt. Sairabanu was being again harassed by her in-laws and the husband, he advised them to approach the police.
40. The details of the demand for dowry and negotiations about payment of dowry, and payment of dowry, are mentioned for the first-time in the evidence of Smt. Jainabbi (P.W.9) and her brothers who are 39 examined as PW 9, PW 10 and PW 11. Smt. Jainabbi states for the first time in her evidence that the appellants demanded a sum of Rs.50,000/- and 50 grams of gold. She and her family members negotiated and finally paid a sum of Rs.15,000/- and 15 grams of gold. One of her brothers helped her in paying this amount and gold. The talks about payment of dowry were held in her parent's house. Her daughter and the first appellant resided separately in Karvenagar, Pune but her in-laws would repeatedly visit them. She paid her daughter another sum of Rs.10,000/- because she said this amount was required to purchase of welding machine for the first appellant. The first appellant and his siblings had pawned her daughter's jewelry and she had to redeem it. She also had to pay for the day-to-day expenses of her daughters' household. The appellants constantly harassed her daughter and treated cruelly for dowry. The first appellant on 27.12.2010 i.e., after her daughter and the first appellant shifted to Dandeli, called 40 up and a few days before the death of Smt. Sairabanu, and threatened to kill her daughter. She also states that he may have said that under the influence of alcohol.
41. Sri Kuttubuddin (PW 10), while admitting that the second appellant was a permanent resident of Dandeli, states that she would regularly visit his niece, Smt. Sairabanu and the first appellant. He also states about the negotiations between the two families for payment of dowry at the time of marriage. Insofar as the demand thereafter, his only evidence is that he learned from his sister that Smt. Sairabanu was being harassed and treated cruelly. He has stated that he gave the amount of Rs.15,000/-to his sister to handover to the appellant is a story, and he generated this money from his lands. He mentions that jewelry was purchased from a particular shop in Pune. Smt. Jainabbi's another brother, Sri Mustafa (PW 11) has stated he has given, from his sources, Rs.15,000 to his sister to give dowry to the appellants. In a deviation from what Smt. Jainabbi 41 has said, he has stated that the discussion for dowry was held in the residence of his another sister.
42. When the prosecution's case of Dowry death against the appellants is examined the light of this evidence, it is obvious that there is no mention of demand, negotiations and payment for Dowry at the time of the marriage in the proceeding before Jamaat (as per Exhibit P 14) and in the proceedings in CC No. 4503/ 2008 before the learned Magistrate, Malawadi, Pune. A common acquaintance (PW 12), who has spoken about the circumstances leading to the proceedings before the Jamaat and the aforesaid criminal proceedings, has also not spoken about the same. It is only in the present proceedings it is mentioned that there was a demand for Rs.50,000/- and gold and later negotiations leading to payment of Rs.15,000/- and lesser quantity of gold, and that too in the evidence. Further, there is no definite evidence about the appellants demanding dowry after the proceedings before the learned Magistrate, Malawadi, 42 Pune or demand for dowry anytime after Smt. Sairabanu and the first appellant shifted to Dandeli.
43. This Court, upon appreciation of the evidence, is of the considered opinion that though the prosecution has established that Smt. Sairabanu died an unnatural death within seven years of marriage, the prosecution is not able to establish, beyond all reasonable doubt, that there was negotiation for payment of dowry at the time of the marriage and some dowry was indeed paid to the appellants or that Smt. Sairabanu was constrained to approach Jamaat or the Malawadi Police in the year 2008 because of dowry demand or that she was being harassed or treated cruelly for dowry in the immediate vicinity of her demise.
44. If a woman is subjected to cruelty by the husband and/or his family members either for dowry or otherwise constraining her to commit suicide, they would be punishable under section 498A of IPC. Under section 43 498A(a) of IPC, if there is willful conduct of driving a woman to commit suicide or cause injury or cause danger to her life, limb or health, the husband (and his relatives) would be punishable for the offence of Cruelty as contemplated. If, on the other hand, if a woman is harassed for Dowry (as defined under the provisions of the Dowry Prohibition Act), the husband (and his relatives) could be punishable for the offence of cruelty as contemplated under section 498A(b) of IPC. However, the punishment prescribed is the same. The provisions of section 498A of IPC read as follows:
498A. 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.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to 44 life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
45. In the present case, the prosecution, which is enjoined in law to prove that the appellants are guilty of 'Dowry Death' beyond all reasonable doubt that the appellants are guilty of offence punishable under section 498A (b) and section 304 B of IPC, has failed to establish the same. As such, the Sessions Court could not have convicted the appellants for the offence of dowry death punishable under section 498A (b) and 304B of IPC.
46. The Sessions Court has also convicted the appellants to pay a sum of Rs.50,000/- each and to undergo default simple imprisonment for a period of 3 years for offence under section 304B of IPC. The provisions of section 304B of IPC does not provide for 45 imposition of fine. The Hon'ble Supreme Court in Arun Garg v. State of Punjab8 has held that, given the provisions of section 304B of IPC, Courts are not empowered to impose fine as a punishment, and paragraph30 of this judgement reads as follows "Section 304B is one of the few sections in the Indian Penal Code where imposition of fine is not prescribed as a punishment. The Division Bench of the High Court which confirmed the conviction of the appellant under Section 304B instead of setting aside the fine, which is not warranted by law, enhanced a sum to Rs.2 lakhs and also directed that the fine, if recovered, shall be paid to the complainant. The appellant could have been sentenced only to a punishment which is prescribed under the law. As no fine could be imposed as punishment for offence under Section 304B, the direction to the appellant to pay a fine of Rs.2 lakhs was wholly illegal".
47. The Sessions Court has also erred in sentencing the appellants to pay fine of Rs.50,000/- each 8 (2004) 8 Supreme Court Cases 251 46 for the offence under Section 304B of IPC. Therefore, the second question framed for consideration is answered in favour of the appellants holding that the session Courts judgment finding the appellants guilty of the offence punishable under section 498A (b) and 304B IPC and the provisions of Section 3 and 4 of the Dowry Prohibition Act cannot be sustained.
48. The next question for consideration is whether the appellants could be culpable of any offence given the undisputed fact that Smt. Sairabanu has died an unnatural death within seven years of marriage by hanging herself and there is consistent evidence of ill- treatment. If a person deliberately abets anyone to commit suicide, such person would be guilty of the offence punishable under section 306 of IPC in view of the provisions thereof read with Section 107 of IPC. The Hon'ble Supreme Court in the recent decision in Ude 47 Singh vs. State of Harayana9 referring to is earlier decision has reiterated that:
Where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, "instigation" may be inferred. In order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the 9 (2019) SCC Online SC 924 48 manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
If this Court, subject to a finding on whether appropriate Charge is framed, can reasonably conclude from the evidence on record that the prosecution has established that the appellants intentionally, by their persistent conduct of ill-treating Smt. Sairabanu, compelled her to commit suicide, the appellants will have to be convicted for the offences under Sections498A (a) and 306 of IPC and sentenced suitably.
49. The Sessions Court has not framed specific Charge against either the first appellant or the second appellant for the offence under Section 306 of IPC. But, the essence of the ingredients of the offence punishable under Section 306 of IPC is part of the charges framed against the appellants for the offence punishable under Section 304 B of IPC inasmuch as the appellant are put on notice that the charge against them is that they had 49 deliberately, with the intention of instigating Smt. Sairabanu to commit suicide, physically and mentally ill treated her. In similar circumstances, the Hon'ble Supreme Court in K S Prema Rao v. Yadla Srinivasa Rao10 while answering the question whether an appellate Court could convict the appellant of offence punishable under Section 306 read with Section 107 of IPC when the charges are framed only for offence under Section 304 B of IPC has declared thus:
Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A,IPC(as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC 10 (2013) 1 Supreme Court Cases 217 50 with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence.
It is further declared by the Hon'ble Supreme Court that We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is 51 punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. As such, in the facts and circumstances of the case, the evidence on record could be examined whether the necessary ingredients for the offence under Sections 498 A(a), 306 and 34 of IPC are made out against the appellants warranting their conviction for the appellants for such offences.
50. The evidence on record, is that a Jamaat was convened on 13.7.2008 (which is immediately after one year of the marriage), though it is stated that it was convened at the instance of the first appellant's brother to bring about rapprochement between the appellant and Smt. Sairabanu. This conciliation meeting is concluded with the first appellant being advised not to assault or ill treat Smt. Sairabanu. Thereafter, on 12.9.2008, Smt. Sairabanu has lodged a report with Malawadi Police alleging that she was physically abused and thrown out of residence by the first appellant. This report has 52 culminated in a settlement in writing; even this agreement refers to an undertaking by the first appellant that he will not ill treat Smt. Sairabanu. The first appellant and Smt. Sairabanu, after the settlement in the aforesaid criminal proceedings, have shifted to Dandeli, and the evidence is that the first appellant would call on his mother-in-law, Smt. Jainabbi (PW 9) and threaten her under intoxication. Smt. Sairabanu, who was removed from the comfort of her known environs, has taken the extreme step of putting herself to death despite having an infant. These circumstances point only to the first appellant's persistent conduct of subjecting Smt. Sairabanu to cruelty, and from these circumstances, the intention to goad her to commit suicide can be reasonably inferred.
51. However, the same cannot be said of the second appellant. Though it is stated that she was frequently visiting the first appellant and Smt. Sairabanu in Pune and therefore a party to the cruelty, when her 53 possible culpability is examined in the light of the admitted fact that she is a permanent resident of Dandeli residing in her own house and her another son was also residing in Pune, and because there are no details about her alleged repeated visits to Pune to stay with Smt. Sairabanu and the first appellant (except bald assertion by Smt. Jainabbi (PW9) that she was frequently visiting her son and daughter-in-law), no wilful conduct on her part to treat Smt. Sairabanu cruelly can be readily inferred.
52. It is settled, as held by the Hon'ble Supreme Court in Hans Raj v. State of Harayana11, that presumption under section 113A of the Evidence Act, unlike the presumption under section 113B of the Evidence Act, is not mandatory. The provisions of section 113A of the Evidence Act give a discretion to the court to raise such presumption having regard to all the 11(2004) 12 SCC 257, and reiterated even in the recent decision in Gurjit Singh v. State of Punjab 2019 SCC Online SC 1516 54 circumstances of the case, and merely because a woman has committed suicide within seven years of marriage and she was subject to cruelty, a presumption under section 113A of the Evidence Act cannot be drawn. A Court is required to look into all the circumstances, and one of the circumstances that will have to be considered is whether the alleged cruelty is of such nature as would have likely driven the woman to commit suicide. In the circumstances of the case where it is established that Smt. Sairabanu was subjected to persistent cruelty right from the date of marriage till her demise by the husband, who, as per the evidence, is addicted to alcohol, this Court is of the considered opinion that it would be necessary to draw presumption available under section 113 A of the Evidence Act against the first appellant that he abated Smt. Sairabanu to commit suicide.
53. The first appellant in examining himself to depose that Smt. Sairabanu suffered from some mental illness, which she could have inherited from her father 55 who though filed the first information is not examined, has not placed necessary material from which it can be reasonably concluded that the presumption against him under section 113A of the Evidence Act stands rebutted. The first appellant despite stating that Smt. Sairabanu was visiting Hospital for treatment, and he had also accompanied her on occasions, has admitted that he has no documents to establish the same. He has also not furnished the details of the hospital that Smt. Sairabanu was allegedly visiting. His evidence that Smt. Sairabanu hurt herself by cutting up her left hand after a few days of the marriage, being without corroboration, has remained a self-serving testimony. The witnesses who could have spoken about such conduct by Smt. Sairabanu viz., Sri Shafi (PW 12), has also not spoken about the same.
54. Therefore, this Court is of the considered opinion that the first appellant, against whom presumption under section 113 A of the Evidence Act 56 should be drawn, has not placed sufficient material to discharge such presumption. As such, the first appellant will have to be found guilty of the offences punishable under section 498A (a) and section 306 of IPC.
For the foregoing, the following order a. the impugned judgment and the order of sentence dated 15.2.2018 in Sessions Case No. 28/2011 on the file of the principal District and Sessions Judge, Utter Kannada, Karwar is modified acquitting the appellants of the offences punishable under section 498A (b), section 304 B and Section 34 of IPC and Section 3 and 4 of the Dowry Prohibition Act, 1961, and b. the first appellant is convicted of the offences punishable under section 498A
(a) and section 306 of IPC with appropriate sentence to be imposed after hearing the learned counsel for the first appellant on the imposition of sentence for such offences;
57c. the second appellant being acquitted of all the offences, the bail bond executed by her is discharged (B.M. SHYAM PRASAD) JUDGE (V. SRISHANANDA) JUDGE Kms 58 BMSPJ & VSNJ:
Crl.A. No.100100 of 2018
25.09.2020 Order on Sentence After the judgment convicting the first appellant for the offences punishable under Sections 498A(a) and Section 306 of the Indian Penal Code was pronounced, the appeal was passed over for hearing the learned counsel on imposition of sentence.
The learned counsel for the first appellant submits that a total sum of Rs.3,50,000/- has been deposited in compliance with the orders on sentence by the Sessions Court. The first appellant was in custody for about eight months until he was granted on 02.08.2011. The first appellant's daughter, an infant at the time of death of her mother, is aged about ten years as of now. The first appellant has not re-married. The first appellant, who along with the second appellant has ensured deposit of the fine amount in terms of the orders of the Sessions 59 Court, would endeavour to provide for the child. Therefore, this Court can take a lenient view while imposing the sentence for the offence now he is convicted.
This Court, in the course of the judgment, has recorded a finding that the deceased Smt. Sairabanu was instigated to put an end to her life leaving behind an infant aged about one year. The child now continues to be with Smt.Jainabbi (P.W.9), the deceased's mother. There is nothing on record to indicate that the first appellant has paid for the maintenance of the infant. These circumstances would have to be considered in imposing the fine. The fine amount of Rs.3,50,000/- is deposited not only on behalf of the first appellant but also on behalf of the second appellant, who now stands acquitted. The first appellant is aged 40 years. The maximum sentence of imprisonment that could be imposed for the offences under Section 498A and Section 306 of IPC is seven years and ten years respectively. This 60 Court will also have to take into consideration that the infant, who has lost the irreplaceable affection and protection of her mother, would require, if not emotional support of a father at least pecuniary assistance from the father, the first appellant, who it is accepted would be repentive. One of the objections that is to be borne in mind while imposing sentence is also the purpose to be achieved in imposing the sentence.
In the aforesaid circumstances, this Court is of the considered view that a fine amount of Rs.1,55,000/- for each of the offences punishable under Sections 498A and 306 of IPC would be appropriate, with a sum of Rs.3,00,000/- being paid to the child as compensation and Rs.10,000/- to the State. As regards the imprisonment, in the light of the submission that the first appellant would endeavour to provide, to the best of his abilities, for the upbringing and well-being of the child, a sentence of five years imprisonment would be adequate 61 including the period of imprisonment already undergone by him. Therefore, the following:
ORDER
i) The first appellant is sentenced to undergo imprisonment of five years, including the imprisonment already undergone, for each of the offences under Sections 498A(a) and 306 of IPC. The sentences shall concurrently.
ii) Out of the amount of Rs.3,50,000/- deposited as fine before the Sessions Court, as the first appellant is sentenced to pay fine of Rs.3,10,000/-, Rs.40,000/- shall be refunded to the second appellant after due identification.
iii) Out of the fine of Rs.3,10,000/- in deposit, a sum of Rs.3,00,000/- is awarded as compensation to infant child, who is aged about ten years as of now. The Sessions Court is directed to deposit this amount in any 62 Nationalised Bank for the period until the child attains the age of twenty-one years, and a sum of Rs.10,000/-
shall be forfeited by the State.
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