RAJEEV KUMAR Vs STATE OF HARYANA
Bench: A.K. PATNAIK,GYAN SUDHA MISRA
Case number: Crl.A. No.-000967-000967 / 2005
Diary number: 27021 / 2004
Advocates: IRSHAD AHMAD Vs
KAMAL MOHAN GUPTA
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 967 OF 2005
Rajeev Kumar …… Appellant
Versus
State of Haryana ….. Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article
136 of the Constitution against the judgment dated
16.09.2004 of the Punjab and Haryana High Court in Criminal
Appeal No.337-SB of 1992.
Facts:
2. The facts very briefly are that on 26.02.1991 at
11.20 P.M., the Assistant Sub-Inspector of Police of Police
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Station-City Dabwali, District Sirsa in Haryana, Madan Lal
recorded a statement of Vandana at CHC Hospital, Mandi
Dabwali. She stated that about two years ago, she was
married to the appellant and the appellant used to taunt her
on petty matters and earlier the appellant used to tease her
for dowry and on being fed up with the habits of the
appellant, on 26.02.1991 between 7.00 and 7.30 P.M., she
sprinkled kerosene on her and set herself on fire. The
statement of Vandana was registered as First Information
Report (FIR) by the S.I. of P.S. Dabwali, Kuldeep Singh. Soon
thereafter on 26.02.1991, the Judicial Magistrate, First Class,
R.S. Bagri, recorded a statement of Vandana under Section
164 of the Code of Criminal Procedure, 1973 (for short
‘Cr.P.C.’) in which Vandana reiterated her statement to the
Police. On 27.02.1991 at 2.20 A.M., Vandana died. Post
mortem was carried out on the body of Vandana (hereinafter
referred to as ‘the deceased’) by Dr. S.S. Bansal. The Police
then took up the investigation and submitted a charge-sheet
against the appellant.
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3. On 28.08.1991, the Sessions Court framed a charge
under Section 304B, IPC, against the appellant to which the
appellant pleaded not guilty. At the trial, the prosecution
examined Kedar Nath, who had prepared the scaled plan
(Ext. PA) on the place of occurrence, as PW-1; Dr. R.C.
Chaudhary, Medical Officer, General Hospital, Mandi
Dabwali, who had examined the deceased and found the
burn injuries on her body as PW-2; S.I. Kuldeep Singh of P.S.
Dabwali, who had registered the FIR as PW-3; the landlord of
the house in which the deceased lived with her husband as
PW-4; Niranjan Ram Gupta, the father of the deceased, as
PW-5; Bhupinder Kumar, the uncle of the deceased as PW-6;
Dr. S.S. Bansal, who conducted the post mortem on the body
of the deceased as PW-7; R.S. Bagri, the Judicial Magistrate,
who recorded the statement of the deceased under Section
164, Cr.P.C. as PW-8 and ASI Madan Lal, the Investigating
Officer, as PW-9. The statement of the appellant was
recorded under Section 313, Cr.P.C. In defence, the
appellant examined Ramesh Devra as DW-1; Jagdish Kumar
as DW-2; Nihal Singh, Assistant Chief Medical Officer, Sirsa,
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as DW-3; Dr. Ajay Kumar Gupta, Medical Officer, Civil
Hospital, Sirsa, as DW-4 and Dr. J.L. Bhutani as DW-5. After
considering the evidence and the arguments on behalf of the
parties, the learned Additional Sessions Judge, Sirsa, in his
judgment dated 31.08.1992 held that the prosecution has
been able to prove the charge against the appellant and
accordingly convicted him under Section 304B, IPC.
Thereafter, the learned Additional Sessions Judge heard the
accused on the quantum of sentence and ordered that the
appellant be sentenced to seven years R.I. with a fine of
Rs.2,000/- and in default of payment of fine, to undergo
further imprisonment of six months.
4. Aggrieved, the appellant filed Criminal Appeal
No.337-SB of 1992 before the High Court. After hearing the
appeal, the High Court in the impugned judgment held that
the deceased had indicated in her dying declarations
(Exts.PG and PN) before ASI Madan Lal and the Judicial
Magistrate R.S. Bagri that she was being harassed by her
husband with demands of dowry on account of which she
had sprinkled kerosene on herself before setting herself
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ablaze. The High Court further held that the statement of the
deceased in these two dying declarations (Exts. PG and PN)
that she was being harassed for dowry stood corroborated
by the evidence of the father of the deceased (PW-5) and
uncle of the deceased (PW-6). The High Court rejected the
contention raised on behalf of the appellant that the
deceased was not in the medical condition to speak
inasmuch as her larynx and tracheae had been charred by
burns, relying on the testimony of the medical experts Dr.
R.C. Chaudhary (PW-2) and Dr. J.L. Bhutani (DW-5) as well
as the testimony of the ASI Madan Lal (PW-9) and the Judicial
Magistrate R.S. Bagri (PW-8), who had recorded the dying
declarations of the deceased. The High Court accordingly
held that there was no ground to interfere with the orders of
conviction and sentence passed by the trial court and
dismissed the criminal appeal of the appellant.
Contentions of the learned counsel for the parties:
5. Mr. S.B. Upadhyay, learned counsel for the appellant,
submitted that the finding in the impugned judgment that
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the appellant was harassing the deceased for dowry is not
correct inasmuch as PW-4, the landlord of the house in which
the deceased and her husband were living, has stated in his
evidence that he did not hear any sort of disharmony or
fighting between the appellant and the deceased and that
they used to live and lead a normal married life and both of
them were blessed with a daughter, who was aged about six
to seven months. He further submitted that when the
Judicial Magistrate (PW-8) recorded the statement of the
deceased under Section 164, Cr.P.C., Dr. R.C. Chaudhary
(PW-2) was not present, as will be evident from the evidence
of PW-8. He submitted that PW-2, on the other hand, was
the doctor who issued the fitness certificate to the Judicial
Magistrate that the deceased was in a fit state to give the
statement. He referred to the opinion of Dr. S.S. Bansal (PW-
7) to submit that the larynx and tracheae is a voice box
containing vocal cords through which a man speaks and if
they were charred by heat and burns, a person will not be
able to speak. He submitted that DW-2 was present in the
hospital for the whole night on 26.02.1991 and DW-2 has
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stated that the deceased was not in a position to speak
when the alleged dying declarations are said to have been
made. He submitted that the trial court and the High Court,
therefore, were not correct in relying on the dying
declarations of the deceased recorded by the ASI Madan Lal
and the Judicial Magistrate R.S. Bagri for holding the
appellant guilty.
6. Mr. Upadhyay next submitted that on a reading of
the entire evidence of PW-5 (the father of the deceased), it
will be clear that the appellant and the deceased were happy
with each other and this will also be evident from the letters
exchanged between the family members between March
1989 and January 1991 (Exts. DE/2, DE/6, DE/7, DE/9, DE/12,
DE/15, DE/17, DE/18, DE/19, DE/20, DE/21, DE/22 and
DE/23). He submitted that this is, therefore, not a case
where the appellant had made any demand of dowry on the
deceased and had subjected the deceased to any cruelty or
harassment in connection with the demand of dowry soon
before her death and hence the ingredients of the offence
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under Section 304B, IPC, are missing in this case and,
therefore, the appellant could not have been held guilty
under Section 304B, IPC.
7. Mr. Upadhyay cited the decisions of this Court in
Sanjiv Kumar v. State of Punjab [(2009) 16 SCC 487], Durga
Prasad & Anr. v. State of Madhya Pradesh [(2010) 9 SCC 73],
Gurdeep Singh v. State of Punjab & Ors. [(2011) 12 SCC 408]
and Devinder alias Kala Ram & Ors. v. State of Haryana
[2012) 10 SCC 763] in support of his submission that the
offence under Section 304B, IPC, is not made out against the
appellant. He submitted that at the worst the appellant can
be held guilty under Section 306, IPC, for having abetted
suicide by the deceased if the dying declaration is to be
accepted. He argued that the appellant has already
undergone two years imprisonment and is now on bail and
also has a young daughter to take care of and, therefore, the
appellant should not be subjected to further imprisonment
for the offence under Section 306, IPC.
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8. Mr. Vikas Sharma, learned counsel appearing for the
State of Haryana, on the other hand, submitted that the two
dying declarations (Ext. PG and PN) of the deceased are
clear that the appellant used to harass the deceased for
dowry and being fed up with the habits of the appellant, the
deceased sprinkled kerosene oil on herself and set herself
ablaze. He submitted that the evidence of Dr. S.S. Bansal
(PW-7) is clear that one can speak when the larynx and
tracheae are in the process of being charred. He submitted
that even DW-5, the medical expert produced by the
accused in his defence, has admitted in cross-examination
that in case of charring of vocal chords, the patient may be
able to speak and the trial court has relied on this admission
made by DW-5. He submitted that Dr. R.C. Chaudhary has
also deposed that the deceased was fit to make the
statement. He submitted that both these witnesses were
medical experts and were rightly relied on by the trial court
and the High Court to reject the contention of the appellant
that the deceased was not in a fit condition to give the
statements to ASI Madan Lal and the Judicial Magistrate R.S.
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Bagri. Mr. Sharma also relied on the evidence of PW-5 that
the appellant used to give beatings to the deceased and
demand more and more dowry. He submitted that the trial
court and the High Court were therefore right in holding the
appellant guilty of the offence under Section 304B IPC.
9. Mr. Sharma cited the decision of this Court in Bansi
Lal v. State of Haryana [(2011) 11 SCC 359] in which it has
been held that while considering a case under Section 304B,
IPC, cruelty in connection with demand of dowry has to be
proved in close proximity to the time of death because of the
expression “soon before her death” in Section 304B IPC, and
the Court has to analyse the facts and circumstances of each
case leading to the death of the victim and decide if there is
such proximate connection between the act of cruelty in
connection with demand of dowry and death of the woman.
He also cited the decision of this Court in Smt. Shanti and
Another v. State of Haryana [AIR 1991 SC 1226] for the
proposition that once the death of a woman is found to be
unnatural, either homicidal or suicidal, Section 304B, IPC,
has to be attracted.
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Findings of the Court:
10. The first question that we have to decide is whether
the deceased was in a condition to make the dying
declarations (Exts.PG and PN) before ASI Madan Lal and the
Judicial Magistrate R.S. Bagri when her larynx and tracheae
had been affected by burns. PW-2, Dr. R.C. Chaudhary, has
stated in his evidence that on 26.02.1991, on the application
of the Police (Ext.PD), he gave his opinion in Ext.PD/1 to the
effect that the patient was fit to give her statement and this
opinion was given at 10.30 P.M. PW-9, ASI Madan Lal, has
deposed in his evidence that the doctor vide his
endorsement (Ext.PD/1) declared that Vandana was fit to
give her statement and then he recorded the statement of
Vandana (Ext.PG) correctly and after Vandana admitted the
contents of the statement to be correct, she gave her thumb
impression in Ext.PG in token of its correctness. PW-9 has
further stated that at that time Vandana was living and
taking long sigh and she remained conscious at the time of
giving her statement (Ext. PG). PW-9 has also stated that he
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then went to the Judicial Magistrate R.S. Bagri (PW-8) whose
residence was near the hospital and R.S.Bagri accompanied
him to the hospital and recorded the statement of Vandana.
The Judicial Magistrate R.S. Bagri has accordingly deposed
that ASI Madan Lal had approached him in person at his
residence at 10.40 P.M. along with application (Ext.PM) and
he came to the hospital and moved an application (Ext.PM/1)
to the Medical Officer concerned and thereafter he recorded
her statement and at the time of recording the statement,
Dr. R.C. Chaudhary was not present but he had given a
certificate (Ext.PM/2) on the application (Ext.PM/1) that
Vandana was in a fit state to make a statement and she
continued to be so during the making of the statement. It is
thus clear from the evidence of the aforesaid three
witnesses PW-2, PW-8 and PW-9 that at the time the
statements of Vandana were recorded by ASI Madan Lal (PW-
9) and the Judicial Magistrate R.S. Bagri (PW-8), she was in a
fit condition to make the statement. When, however, the
post mortem was carried out on 27.02.1991 by Dr.S.S.
Bansal (PW-7) at 4.00 P.M. he found that the larynx and
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tracheae of the deceased were charred by heat. On
questions being put to him whether a person will be able to
speak when her larynx and tracheae were charred by heat,
PW-7 has clarified that when the larynx and tracheae are
charred, the person cannot speak, but when the larynx and
tracheae are in the process of being charred, the person can
speak. Dr. J.L. Bhutani, DW-5, has given his opinion that if
the vocal chord of larynx is charred, such person may be
able to speak, but not clearly, and it will be difficult to
understand. The opinions of the two medical experts,
therefore, are not in variance of the ocular evidence of PW-2,
PW-8 and PW-9 that Vandana was in a position to speak
when her dying declarations were recorded on the night of
26.02.1991. Hence, the two dying declarations (Ext.PG and
Ext.PN) can be relied on by the Court.
11. The next question which we have to decide is
whether the prosecution has been able to prove beyond
reasonable doubt that the appellant has committed the
offence of dowry death under Section 304B, IPC. The two
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dying declarations are similarly worded. We, therefore,
extract hereinbelow only the dying declaration which was
recorded by the Judicial Magistrate (Ext. PN):
“Statement of Vandana, w/o Rajiv Singla, age 23 years, occupation house wife, R/o Dabwali, u/s 164 Cr.P.C.
I was married to Dr. Rajiv Singla 2 years back. My husband used to get upset on petty issues. My in-laws lived separately. They are living after the 6 months of my marriage. My daughter is of 2 months. Today about 7.30 p.m., in evening I was fed up with activities of my husband and put on kerosene oil and burn myself. Earlier my husband used to taunt me for dowry. Action should be taken against my husband.
Sd/- R.C. Bangri RO & AC JMIC
Dabwali, 26-2-91 RTI of Vandana Identified Sd/- Madan Lal, ASI P.C. City Dabwali, Dated: 26-2-91”
It will be clear from the contents of the dying declaration
(Ext. PN) that the deceased was fed up with the activities of
her husband and she poured kerosene oil on herself and
burnt herself. What those activities of the appellant were
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which prompted her to commit suicide have not been clearly
stated, but she has stated that her husband used to get
upset on petty issues and earlier her husband used to taunt
her for dowry.
12. When, however, we scrutinize the evidence of PW-5,
the father of the deceased, we find that soon before the
death of the deceased, the appellant had subjected the
deceased to cruelty which was not in any way connected
with the demand of dowry. The relevant part of the
evidence of PW-5 is quoted hereinbelow:
“Smt. Vandhana deceased was my daughter. I had married my daughter Vandhana with Rajiv Kumar, accused now present in the Court on 28.01.1989 at Kartarpur. Out of her wed lock with the accused Rajiv Kumar, a female child was born on 2.7.90. Vandhana deceased and Rajiv Kumar accused, her husband used to reside/live in Mandi Dabwali. After marriage, whenever Vandhana used to come to tell us, she used to tell me that her husband Rajiv Kumar gives her beating and demands more and more dowry. We used to fulfill the demand of Rajiv Kumar accused in the shape of dowry put forward before us by my daughter and used to send her back after advising her that she is to live with her husband and should try to adjust with him. On 19.2.91 Vandhana came to me at Kartarpur and told me that two days prior to 19.2.91, Rajiv Kumar
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accused her husband gave her merciless beating. She narrated this to me in the presence of my wife Smt. Pushpa Rani and Bhupinder Singh my brother in fact, he is my friend. On the night of 24.2.91, I had received anonymous telephone call on the telephone no. 242 that Rajiv Kumar has fled away leaving his minor daughter alone. On hearing this, my daughter Vandhana got perturbed and wanted us to leave her at Mandi Dabwali immediately. On 25.02.91 (25.2.91) we left Vandhana at Mandi Dabwali. I was accompanied by my wife Pushpa Rani and Bhupinder Kumar. On reaching at Dabwali we found Rajiv Kumar present in his clinic and later on he came to the house. We told Rajiv Kumar that he should not repeatedly give beating to Vandhana. We told him that it was not proper for him to do so. We also advised our daughter Vandhana to adjust with her husband and to remain calm and quiet and not to speak. On 25.2.91 itself after advising Rajiv Kumar and Vandhana we came back to Kartarpur after staying at night at Bhatinda. On 27.2.91, I received a telephonic message that Vandhana after sprinkling kerosene oil on her body has put herself fire and that she is dead and no longer alive.”
From the aforesaid evidence of PW-5, it is clear that the
marriage between the appellant and the deceased took
place on 28.01.1989 and the demand of dowry by the
appellant and the beatings for more dowry was after the
marriage. PW-5 has also stated that on 19.02.1991 the
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deceased came to him at Kartarpur and told him that two
days prior to 19.02.1991, the appellant gave her merciless
beating. PW-5 has, however, not stated that the beating
that the appellant gave to the deceased on 19.02.1991 was
in connection with demand of dowry. One of the essential
ingredients of the offence of dowry death under Section
304B, IPC is that the accused must have subjected a woman
to cruelty in connection with demand of dowry soon before
her death and this ingredient has to be proved by the
prosecution beyond reasonable doubt and only then the
Court will presume that the accused has committed the
offence of dowry death under Section 113B of the Indian
Evidence Act. As this ingredient of Section 304B, IPC, has
not been established by the prosecution, the trial court and
the High Court were not correct in holding the appellant
guilty of the offence of dowry death under Section 304B, IPC.
13. We have perused the decision of this Court in Smt.
Shanti and Another v. State of Haryana (supra) cited by Mr.
Sharma and we find that in the aforesaid case the facts were
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that Smt. Shanti was mother-in-law of the deceased and
Smt. Krishna was another inmate in the matrimonial home in
which the deceased was living and it was alleged that both
Smt. Shanti and Smt. Krishna were harassing the deceased
all the while after the marriage for not bringing a scooter
and television as part of the dowry and she was treated
cruelly. On 26.04.1988 at about 11.00 P.M., the father of the
deceased came to know that the deceased had been
murdered and was cremated by two ladies and he filed a
report accordingly before the police. Both the courts below
held that the two ladies did not send the deceased to her
parents house and drove out the brother and father of the
deceased complaining that a scooter and a television has not
been given as dowry. The evidence of the father, mother
and brother of the deceased was that they were not even
informed soon after the death of the deceased and the
appellants had hurriedly cremated the dead body. In these
circumstances, this Court held that the presumption under
Section 113-B of the Indian Evidence Act that the two ladies
have committed the offence under Section 304B, IPC, was
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attracted. This was, therefore, a case where the evidence
clearly disclosed that the deceased had been subjected to
harassment or cruelty committed by the appellants soon
before her death.
14. We have also examined the decision of this Court in
Bansi Lal v. State of Haryana (supra), cited by Mr. Sharma,
and we find that the facts in that case were that the
appellant Bansi Lal was married to Sarla on 04.04.1988. She
was subjected to cruelty, harassment and demand of dowry
and on 25.06.1991 she died. After investigation of the case,
prosecution filed a charge-sheet against Bansi Lal and his
mother Smt. Shanti Devi and charges were framed against
them under Sections 498A, 304B and 306, IPC, and they
were convicted for the said charges by the trial court. The
High Court, however, acquitted Smt. Shanti Devi, but
convicted Bansi Lal because of demand of dowry and cruelty
in connection with demand of dowry to which the deceased
was subjected to by him. Bansi Lal had made a statement
under Section 313, Cr.P.C. that Sarla was in love with some
other person but she was forced to marry Bansi Lal against
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her will due to which she felt suffocated and committed
suicide, leaving a suicide note to that effect. On these facts,
this Court held that once it is shown that soon before her
death the deceased has been subjected to cruelty or
harassment for or in connection with the demand for dowry,
the Court shall presume that such person has caused the
dowry death under Section 113-B of the Evidence Act, and if
the case of the Bansi Lal was that Sarla has committed
suicide, the onus was on him to establish his defence by
leading sufficient evidence to rebut the presumption that he
has not caused the dowry death, but Bansi Lal has failed to
discharge that onus.
15. On the evidence on record, though the appellant is
not guilty of the offence under Section 304B, IPC, he is
certainly guilty of offences of abetment of suicide and
cruelty. Section 113-A of the Indian Evidence Act states as
follows:
“113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or
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any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code”
The language of Section 113-A of the Indian Evidence Act
makes it clear that if a woman has committed suicide within
a period of seven years from the date of her marriage and
that 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.
The Explanation to Section 113-A of the Indian Evidence Act
states that for the purpose of Section 113-A “cruelty” shall
have the same meaning as in Section 498A, IPC. The
Explanation to Section 498A, IPC, defines ‘cruelty’ and
Clause (a) of the Explanation states that cruelty means any
willful conduct which is of such nature as likely to drive a
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woman to commit suicide. The dying declaration of the
deceased (Ext. PN) as well as the evidence of PW-5 extracted
above are sufficient to establish that the appellant used to
fight on petty issues and give beatings to the deceased,
which drove the deceased to commit suicide. This is,
therefore, a clear case where the appellant had committed
offences under Sections 498A and 306, IPC.
16. In K. Prema S. Rao and Another, etc. v. Yadla Srinivasa
Rao and Others, etc. [(2003) 1 SCC 217], this Court on
similar facts has held that to attract the provisions of Section
304B, IPC, one of the main ingredients of the offence, which
is required to be established, is that “soon before her death”
she was subjected to cruelty and harassment “in connection
with the demand for dowry” and this ingredient of the
offence was not there in that case. This Court, however, held
that it was not necessary to remit the matter to the trial
court for framing a charge under Section 306, IPC, and the
accused also cannot complain for want of opportunity to
defend the charge under Section 306, IPC, if the facts found
in evidence justify the conviction of the appellant under
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Sections 498A and 306, IPC instead of the graver offence
under Section 304B, IPC. In that case, the three-Judge
Bench of this Court held the appellant guilty of the offences
under Sections 498A and 306, IPC instead of the graver
offence under Section 304B, IPC.
17. In this case also, we hold the appellant guilty of
offences under Sections 498A and 306, IPC. Considering the
particular conduct of the appellant which drove the
deceased to commit suicide, we impose a sentence of one
year imprisonment and fine of Rs.1,000/- for the offence
under Section 498A, IPC and impose a sentence of three
years imprisonment and fine of Rs.2,000/- for the offence
under Section 306, IPC, and direct that in case of failure to
pay the fine for either of the two offences, the appellant shall
undergo a further imprisonment for a period of six months.
We make it clear that the sentences of imprisonment for the
two offences will run concurrently. If the appellant has
already undergone the punishment imposed by this
judgment, his bail bonds shall stand discharged.
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18. The appeal is allowed to that extent.
.……………………….J. (A. K. Patnaik)
………………………..J. (Gyan Sudha Misra) New Delhi, October 31, 2013.
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