Mohd.Anis Mohd.Ismail … vs State Of … on 9 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.262 OF 2002

1] Mohd. Anis Mohd. Ismail Mallas
(Manlas), Aged about 39 years,
Occupation: Business.

2] Sou. Jaitunbi Ismail Mallas (Manlas),
Aged about 66 years,
Occu: Household Work.

Both are resident of Yavatmal,
Tq. And District Yavatmal. ……. APPELLANTS

…V E R S U S…

The State of Maharashtra,
through P.S.O., Police Station,
Yavatmal City, Yavatmal. ……. RESPONDENT
——————————————————————————————-
Shri S.V. Sirpurkar, Advocate for Appellants.
Shri A.V. Palshikar, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 28.08.2017
DATE OF PRONOUNCING THE JUDGMENT : 09.11.2017

1] Challenge is to the judgment and order dated

24.05.2002 in Sessions Trial 32/1996 delivered by the 2nd

Additional Sessions Judge, Yavatmal, by and under which, the

appellants (hereinafter referred to as “the accused”) are convicted

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for offence punishable under section 306 read with section 34 of

the Indian Penal Code and are sentenced to suffer rigorous

imprisonment for five years and to payment of fine of Rs.500/-,

and are further convicted for offence punishable under section

498-A read with section 34 of the Indian Penal Code and are

sentenced to suffer rigorous imprisonment for three years and to

payment of fine of Rs.500/-.

2] Heard Shri S.V. Sirpurkar, the learned Counsel for the

accused and Shri A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent/State.

3] Shri S.V. Sirpurkar, the learned counsel for the

accused submits that the judgment and order impugned is

manifestly erroneous and certain findings dangerously border on

perversity. The learned counsel would submit that the finding of

the learned Sessions Judge that the deceased Vakilabano

committed suicide, is against the weight of evidence. Au contraire,

the spot panchnama Exh.20 which was admitted by the defence in

response to notice given by the prosecution under section 294 of

the Code of Criminal Procedure, 1973 (“Code” for short) is

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suggestive of the deceased suffering accidental burn injuries, is

the submission. Shri Sirpurkar, the learned counsel would further

submit, that if the death of Vakilabano is not proved to be

suicidal, the alleged oral dying declaration would not be

admissible under section 32(1) of the Indian Evidence Act, 1872.

In support of the said submission, the learned counsel would rely

on the judgment of the Hon’ble Supreme Court in Bhairaon Singh

vs. State of Madhya Pradesh, 2010 ALL SCR 213. Shri Sirpurkar,

the learned counsel would urge, that even otherwise, the

prosecution has failed to prove that the deceased Vakilabano was

subjected to cruelty within the meaning of explanation (a) and (b)

of section 498-A of the Indian Penal Code. The evidence on record

is too sketchy, vague and bereft of particulars to establish the

ingredients of section 498-A, is the submission. The failure to

examine Salim brother of the deceased who according to

P.W.2-Mariyambi is a direct witness to the cruelty to which the

deceased was subjected, for the reasons best known to the

prosecution, is near fatal, is the submission.

4] Per contra, Shri Palshikar, the learned Additional

Public Prosecutor would submit that the judgment impugned does

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not suffer from any infirmity, legal or factual, and the marshaling

of evidence on record by the learned Sessions Judge and the

findings recorded, are unexceptionable.

5] Concededly, the deceased Vakilabano and accused

Mohd. Anis entered into matrimonial alliance on 30.05.1994.

The parental home of Vakilabano was situated in Darwha.

Vakilabano started residing with her husband Mohd. Anis at her

matrimonial home at Yavatmal.

The deceased resided at the matrimonial home for

five days, she was then escorted to parental home by her mother

Mariyambi, as per traditions, and she stayed at the parental home

for a month or thereabout. Vakilabano was escorted back to her

matrimonial home by her husband, elder brother’s wife and

husband of sister-in-law and she stayed in her matrimonial home

for the next three months. The brother of Vakilabano, Salim,

escorted her to the parental home on the occasion of a religious

function known as “Gyarvi”. The case of the prosecution, as is

unfolded through the P.W.1-Akbarman, is that during the period

when Vakilabano was residing at the parental home for three

weeks having come to attend the “Gyarvi” function, she disclosed

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that her husband and mother-in-law used to beat her to coerce her

to bring Rs.25,000/- from her parents. Vakilabano further

disclosed that the accused husband used to threatened her that in

the event of failure to bring Rs.25,000/- from the parental house,

he would kill her. The disclosure was also that sometimes she was

not provided meals.

The case of the prosecution is that the father of

deceased Vakilabano, Akbarman sought the intervention of the

father of the accused Ismile Pahelvan who assured Akbarman that

he would counsel his son and that Vakilabano be sent to the

matrimonial home. Akbarman sent Vakilabano with her husband

accused Mohd. Anis to her matrimonial home, and 10 to 12 days

thereafter received a message that Vakilabano suffered extensive

burn injuries and was admitted in General Hospital, Yavatmal.

P.W.1-Akbarman and Mariyambi rushed to the General Hospital,

Yavatmal and reached at 10:00 p.m. or thereabout. The health of

Vakilabano had deteriorated, Akbarman made inquiries with

Vakilabano. She told her father Akbarman that had the demand of

Rs.25,000/- been fulfilled, she would not have faced such a

situation. Vakilabano left for heavenly abode in the early morning

of 11.12.1994. Akbarman lodged report in the evening on

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11.12.1994 (Exh.37) which was reduced to writing and the

printed F.I.R. (Exh.38) is duly proved by Akbarman who is

examined as P.W.1.

The culmination of investigation led to submission of

the charge-sheet in the Court of Judicial Magistrate First Class,

Yavatmal who committed the case to the Sessions Court.

The accused abjured guilt and claimed to be tried. The defence, as

is discernible from the statement recorded under section 313 of

the Code and the trend and tenor of the cross-examination is that

Vakilabano suffered accidental burn injuries.

6] Concededly, the Investigating Officer who is

examined as P.W.3-Suresh Ingle admits that he did not make any

investigation to ascertain whether the death could be accidental.

The spot panchnama Exh.20 records that the upper portion of the

burner of the stove is broken. A plastic can of 5 liters capacity

filled with kerosene is found hung on nail at the height of 5 feet or

thereabout from the floor on the south east corner of the kitchen.

The spot panchnama does not record any visible sign or trace or

residue of kerosene on the floor of the kitchen where deceased

Vakilabano is said to have committed suicide by pouring kerosene

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on her person. The learned counsel for the accused is justified in

submitting that the possibility of accidental death is a real

possibility and cannot be excluded from consideration. The spot

panchnama, which is not in dispute, records that the upper

portion of the burner of the stove is broken and the can containing

kerosene is hung on the nail at height of 5 feet from the floor.

Concededly, other than the said can there is no other container

noticed on the sport from which the deceased could have poured

kerosene on her person.

7] It is with some regret, that I am constrained to

observe, that the consideration of the central issue by the learned

Sessions Judge, is most unsatisfactory. The learned Sessions

Judge, excludes the possibility of the deceased suffering accidental

burn injuries, thus:

“20. After having taken stock of rival contentions on
the aspect in question and the evidence on record it
would be seen that the defence has not disputed the
spot panchnama which is at Exh.P-20. It is also not
disputed that the victim had sustained 100% burns. It
has been suggested and elicited during the cross-
examination of the complainant P.W.1 Akbarman that
the residential house of the accused is part and parcel
of one huge residential building surrounded by

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residential house of many persons and nearabout five
to seven families and residing there. It is obvious as
contended by the learned counsel for defence that the
investigating agency has not brought on record
anything regarding the presence of the accused at the
said place at the time of incident. The spot panchnama
Exh.P-20 and the per centage of burns sustained by the
victim coupled with the fact brought on record during
the cross-examination that the residential house of the
accused is part and parcel of his building wherein
nearabout five to seven families are residing, it is
difficult to accept the defence suggested in the matter
that the stove was burst while cooking and therefore it
was merely an accident at the time of cooking. To
reiterate, the defence has not disputed the spot
panchnama Ex.P-20 and the memorandum of post
mortem examination. Under these circumstances this
court is of the opinion that the prosecution in the
background of prosecution case set out against the
accused through the parents of the victim has been
successful to establish suicidal death of the victim
Vakilabano. I have, therefore, recorded my decision in
the affirmative against the relevant point.”

I am afraid, from the discussion reproduced supra, it

is difficult to comprehend as to what has weighed with the

learned Sessions Judge in rejecting the submission that accidental

death is a real possibility and at any rate is an alternate

hypothesis, the benefit of which must necessarily go to the

accused.

8] In the light of the discussion supra, I have no

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hesitation in recording a finding that the prosecution did not

establish that the deceased Vakilabano committed suicide.

If the death of Vakilabano is held not be suicidal, the

disclosures made by her including the oral dying declaration

would be hear say evidence and not admissible under section

32(1) of the Indian Evidence Act. Insofar as offence punishable

under section 498-A of IPC is concerned, the cause of death or the

circumstances leading to death, would not be in issue, and the

disclosures purportedly made by the deceased Vakilabano to her

relatives would be inadmissible in view of the law enunciated by

the Hon’ble Supreme Court in the relevant observations of which

judgment read thus:

“4. The legal position relating to the admissibility
of evidence under section 32(1) has come up for
consideration before this court time and again. It is not
necessary to multiply the authorities in this regard as
reference to a three judge Bench decision of this court in
Sharad Birdhichand Sarda Vs. State of Maharashtra,
(1984)4 SCC 116:[2009 ALL SCR(O.C.C.) 281], will
suffice. Regarding the application of rule under
section
32(1) Evidence Act, Fazal Ali, J. culled out the legal
position as follows:

“(1) Section 32 is an exception to the rule of
hearsay and makes admissible the statement of a
person who dies, whether the death is a homicide or a
suicide, provided the statement relates to the cause of

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death, or exhibits circumstances leading to the death.
In this respect as indicated above, the
Indian Evidence
Act, in view of the peculiar condition of our society
annd the diverse nature and character of our people,
has thought it necessary to widen the sphere of
Section
32 to avoid injustice”.

“(2)The test of proximity cannot be too literally
construed and practically reduced to a cut and dried
formula of universal application so as to be confined in
a straitjacket. Distance of time would depend or vary
with the circumstances of each case. For instance,
where death is a logical culmination of a continuous
drama long in process and is, as it were, a finale of the
story, the statement regarding each step directly
connected with the end of the drama would be
admissible because the entire statement would have to
be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a
part of the transaction of death. It is manifest that all
these statements come to light only after the death of
the deceased who speaks from death. For instance,
where the death takes place within a very short time of
the marriage or the distance of time is not spread over
more than 3-4 months the statement may be admissible
under
Section 32″.

(3) The second part of clause (1) of Section 32 is
yet another exception to the rule that in criminal law
the evidence of a person who was not being subjected to
or given an opportunity of being cross examined by the
accused, would be valueless because the place of cross
examination is taken by the solemnity and sanctity and
sanctity of oath for the simple reason that a person on
the verge of death is not likely to make a false
statement unless there is strong evidence to show that
the statement was secured either by prompting or
tutoring.

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(4) It may be important to note that Section 32
does not speak of homicide alone but includes suicide
also, hence all the circumstances which may be relevant
to prove a case of homicide would be equally relevant to
prove a case of suicide.

(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal
a tell-tale story, the said statement would clearly fall
within the four corners of
Section 32 and, therefore,
admissible. The distance of time alone in such cases
would not make the statement irrelevant.”

5. Varadarajan, J. on the other hand referred to
the legal position stated by Woodroffe and Amir Ali in
their Law of Evidence,(fourteenth edition) and Ratanlal
Dhirajlal in their Law of Evidence (1982 Reprint). This
is how A. Varadarajan, J. dealt with the admissibility
of evidence under
Section 32(1):

“….The position of law relating to the admissibility
of evidence under
Section 32(1) is well settled. It is,
therefore, not necessary to refer in detail to the
decisions of this Court or of the Privy Council or our
High Courts. It would suffice to extract what the
learned authors Woodroffe and Amir Ali have stated in
their Law of Evidence, Fourteenth Edn. and Ratanlal
and Dhirajlal in their Law of Evidence (1982 Reprint).
Those propositions are based mostly on decisions of
courts for which reference has been given at the end.
They are these: Woodroffe and Amir Ali’s Law of
Evidence, Fourteenth Edn.:

“Page 937: Hearsay is excluded because it is
considered not sufficiently trustworthy. It is rejected
because it lacks the sanction of the test applied to
admissible evidence, namely, the oath and cross-
examination. But where there are special circumstances
which give a guarantee of trustworthiness to the
testimony, it is admitted even though it comes from a

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second-hand source.

Page 941: What is relevant and admissible under
clause (1) of this section (
Section 32) is the statement
actually made by the deceased as to the cause of his
death or of the circumstances of the transaction which
resulted in his death.

Page 945-946: A statement must be as to the cause
of the declarant’s death or as to any of the
circumstances of the transaction which resulted in his
death i.e. the cause and circumstances of the death and
not previous or subsequent transaction, such
independent transactions being excluded as not falling
within the principle of necessity on which such evidence
is received. When a person is not proved to have died as
a result of injuries received in the incident in question,
his statement cannot be said to be a statement as to the
cause of his death or as to any of the circumstances
which resulted in his death. (AIR 1964 SC 900.) Where
there is nothing to show that the injury to which a
statement in the dying declaration relates was the cause
of the injured person’s death or that the circumstances
under which it was received resulted in his death, the
statement is not admissible under this clause. (ILR
1901 25 Bom.45.)

Page 947: Circumstances of the transaction
resulting in his death: This clause refers to two kinds of
statements: (i) when the statement is made by a person
as to the cause of his death, or (ii) when the statement
is made by a person as to any of the circumstances of
the transaction which resulted in his death. The words
`resulted in his death’ do not mean `caused his death’.
The expression `any of the circumstances of the
transaction which resulted in his death’ is wider in
scope than the expression `the cause of his death’. The
declarant need not actually have been apprehending
death. (AIR 1964 MP 30.)

Page 947: The expression `circumstances of the

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transaction’ occurring in Section 32, clause (1) has
been a source of perplexity to courts faced with the
question as to what matters are admissible within the
meaning of the expression. The decision of Their
Lordships of the Privy Council in
Pakala Narayana
Swami v. Emperor (AIR 1939 PC 47) sets the limits of
the matters that could legitimately be brought within
the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however,
made it abundantly clear that, except in special
circumstances no circumstance could be a circumstance
of the transaction if it is not confined to either the time
actually occupied by the transaction resulting in death
or the scene in which the actual transaction resulting in
death took place. The special circumstance permitted to
transgress the time factor is, for example, a case of
prolonged poisoning, while the special circumstance
permitted to transgress the distance factor is, for
example, a case of decoying with intent to murder….
But the circumstances must be circumstances of the
transaction and they must have some proximate
relation to the actual occurrence.

Page 948: `Circumstances of the transaction’ is a
phrase no doubt that conveys some limitations. It is not
as broad as the analogous use in `circumstantial
evidence’ which includes the evidence of all relevant
factors. It is on the other hand narrower than `res
gestae’. Circumstances must have some proximate
relation to the actual occurrence, though, as for
instance, in the case of prolonged poisoning they may
be related to dates at a considerable distance from the
date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv
Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has
made similar observations that the circumstances must
have some proximate relation to the actual occurrence,
and that general expressions indicating fear or
suspicion, whether of a particular individual or

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otherwise and not directly to the occasion of death will
not be admissible.

Page 949: The clause does not permit the reception
in evidence of all such statements of a dead person as
may relate to matters having a bearing howsoever
remote on the cause or the circumstances of his death.
It is confined to only such statements as relate to
matters so closely connected with the events which
resulted in his death that may be said to relate to
circumstances of the transaction which resulted in his
death. [(1939) 66 IA 66.] `Circumstances of the
transaction which resulted in his death’ means only
such facts or series of facts which have a direct or
organic relation to death. Hence statement made by the
deceased long before the incident of murder is not
admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence
by Ratanlal and Dhirajlal (1982 Reprint)

Page 94: Circumstances of the transaction: General
expressions indicating fear or suspicion whether of a
particular individual or otherwise and not directly
related to the occasion of the death are not admissible.
[(1939) 66 IA 66] (18 Part 234.)

Page 95: Circumstances must have some proximate
relation to the actual occurrence and must be of the
transaction which resulted in the death of the
declarant. The condition of the admissibility of the
evidence is that the cause of the declarant’s death comes
into question. It is not necessary that the statement
must be made after the transaction has taken place or
that the person making it must be near death or that
the `circumstance’ can only include the acts done when
and where the death was caused….

Dying declarations are admissible under this
clause.”

“10. The only evidence to bring home charge under
Section 498A, IPC, is that of PW-4 and PW-5. In their
deposition PW-4 and PW-5 stated that their sister told

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them that accused was torturing her as he wanted that
her brothers arrange a job for him or the house at Ganj
Basoda is given to him or a cash of Rs.1 lac is given to
enable him to do some business. They deposed that as
and when their sister come to their house, she would
tell them that accused used to insert cloth in her mouth
and give beatings for dowry. The trial court as well as
the High Court relied on the evidence of PW-4 and
PW-5 and held that charge under
Section 498A, IPC,
against the accused was proved. Apart from the
statement attributed to the deceased, none of the
witnesses had spoken anything which they had seen
directly insofar as torture and harassment to Ranjana
Rani @ Raj Kumari was concerned”.

“11. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering upon a finding that the accused subjected
Ranjana Rani @ Raj Kumari to cruelty as contemplated
under
Section 498A, IPC. In our considered view, the
evidence of PW-4 and PW-5 about what the deceased
Ranjana Rani @ Raj Kumari had told them against the
accused about the torture and harassment is
inadmissible under
Section 32(1) of the Evidence Act
and such evidence cannot be looked into for any
purpose. Except
Section 32(1) of the Indian Evidence
Act, there is no other provision under which the
statement of a dead person can be looked into in
evidence”.

The statement of a dead person is admissible in law
if the statement is as to the cause of death or as to any
of the circumstance of the transactions which resulted
in her death, in a case in which the cause of death
comes into question. What has been deposed by PW-4
and PW-5 has no connection with any circumstance of
transaction which resulted in her death. The death of
Smt. Ranjana Rani @ Raj Kumari was neither
homicidal nor suicidal; it was accidental. Since for an
offence under
Section 498A simpliciter, the question of

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death is not and cannot be an issue for consideration,
we are afraid the evidence of PW-4 and PW-5 is hardly
an evidence in law to establish such offence. In that
situation
Section 32(1) of the Evidence Act does not get
attracted”.

“12. We are fortified in our view by the decision of
this Court in
Inder Pal vs. State of M.P2. (2001) 10
SCC 736, wherein this Court considered the matter
thus:

“4. We will consider at first the contention as to
whether there is any evidence against the appellant
which can be used against him for entering upon a
finding that he subjected Damyanti to cruelty as
contemplated in
Section 498-A IPC. PW 1 father of the
deceased and PW 8 mother of the deceased have stated
that Damyanti had complained to them of her plight in
the house of her husband and particularly about the
conduct of the appellant. PW 4 sister of the deceased
and PW 5 a relative of the deceased have also spoken
more or less on the same line. Exhibit P-7 and Exhibit
P-8 are letters said to have been written by Damyanti.
In those two letters reference has been made to her life
in the house of her in-laws and in one of the letters she
said that her husband had subjected her to beating.

5. Apart from the statement attributed to the
deceased none of the witnesses had spoken of anything
which they had seen directly. The question is whether
the statements attributed to the deceased could be used
as evidence in this case including the contents of
Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point
out that the High Court came to a conclusion that the
allegation that she committed suicide was not
substantiated. A dying declaration was recorded by the
Executive Magistrate in which the deceased had stated
that she got burns accidentally from a stove. If that be

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so, death could not be the result of either any
harassment or any cruelty which she was subjected to.
In this context we may point out that the State has not
challenged the finding of the High Court that death of
Damyanti was not due to commission of suicide”.

7. Unless the statement of a dead person would fall
within the purview of
Section 32(1) of the Indian
Evidence Act there is no other provision under which
the same can be admitted in evidence. In order to make
the statement of a dead person admissible in law
(written or verbal) the statement must be as to the
cause of her death or as to any of the circumstances of
the transactions which resulted in her death, in cases in
which the cause of death comes into question. By no
stretch of imagination can the statements of Damyanti
contained in Exhibit P-7 or Exhibit P-8 and those
quoted by the witnesses be connected with any
circumstance of the transaction which resulted in her
death. Even that apart, when we are dealing with an
offence under
Section 498-A IPC disjuncted from the
offence under
Section 306, IPC the question of her
death is not an issue for consideration and on that
premise also
Section 32(1) of the Evidence Act will
stand at bay so far as these materials are concerned.”

9] In admissibility of the disclosures allegedly made by

Vakilabano apart, the oral dying declaration must be discarded as

untrustworthy. Concededly, an attempt was made by the

Executive Magistrate to record the dying declaration of

Vakilabano. The Doctor certified that Vakilabano was not in a fit

condition to give statement and the Executive Magistrate could

not record her dying declaration. The prosecution has not

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examined any medical practitioner nor has produced on record

the treatment papers to suggest that the deceased Vakilabano was

in a fit physical and mental condition to make coherent and

truthful disclosures to her parents. The evidence on record would

suggest that the version of the parents of the deceased Vakilabano

that she told that had an amount of Rs.25,000/- been paid she

would not have faced such a situation, is highly suspicious, for

reasons more than one. The failure of P.W.1 and P.W.3 to report

the said information to the Police, whose presence in the Hospital

is admitted, the physical condition of Vakilabano who concededly

suffered 100% burns and who was found not fit to give statement

to the Executive Magistrate, the failure of the prosecution to

examine the Doctor and to prove the bed ticket which may have

thrown some light on the physical condition of the deceased at the

relevant time, cumulatively suggest that the oral dying declaration

is extremely doubtful and untrustworthy.

10] The oral dying declaration must be kept out of

consideration, and having done so, I find that there is absolutely

no cogent evidence on record on which the conviction under

section 498-A could have rested. The implication of the accused,

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by the parents of the deceased, is a classical and often noticed

response of grieving and traumatized relatives to the death of the

near and dear one. The tendency to implicate the husband and

other relatives due to a perception that they may have been some

how or the other, responsible for the death of the sister or

daughter, is not unknown.

11] I am not persuaded to hold that the prosecution has

proved offence under section 306, 498-A read with section 34 of

the IPC much less beyond reasonable doubt. The judgment and

order impugned is set aside and the accused are acquitted of

offence punishable under section 306, 498-A read with section 34

of the IPC.

12] The bail bonds of the accused shall stand discharge.

13] Find paid by the accused, if any, be refunded.

14] The appeal is allowed.

JUDGE
NSN

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