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C vs Ba on 14 August, 2012

Bombay High Court C vs Ba on 14 August, 2012Bench: A.P. Bhangale

1 apeal489.08.odt rt

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

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CRIMINAL APPEAL NO.489 OF 2008

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APPELLANTS: 1. Prashant s/o. Laxman Puttewar, Aged about 36 yrs., Occ. Service. h

2. Sau. Shalutai w/o. Laxman Puttewar, ig

Aged about 58 yrs., Occ. Service.

3. Ku. Rajani d/o. Laxman Puttewar, H

Aged about 26 yrs., Occ. Education. y

// VERSUS //

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RESPONDENT : State of Maharashtra, Through Police Station Officer,

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Police Station, Chamorshi,

District Gadchiroli.

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Mr.I.S.Charlewar, Adv. for Appellant. Ms R.A.Deshpande, A.P.P. for Respondent/State. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::: Downloaded on – 09/06/2013 18:59:15 ::: 2 apeal489.08.odt ****************

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Date of reserving the Judgment : 9.8.2012. Date of pronouncing the Judgment : 14.8.2012. ou

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CORAM : A.P.BHANGALE, J.

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JUDGMENT :

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1.

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The instant appeal is directed against the Judgment and Order, dated 15th July, 2008 passed in Sessions Case no. 53 of H

2004 by 2nd Ad-hoc Additional Sessions Judge, Gadchiroli. The trial Court held that the prosecution has proved that Rekha (the y

deceased) was subjected to cruelty by coercing her and her ba

parents to meet the unlawful demand of Rs 1,00,000/- by the accused in furtherance of their common intention and the om

deceased committed suicide as a result of abetment at the instance of the accused no. 3 and 4 (Appellant no. 2 and 3 herein). The appellants (Original Accused nos. 1, 3 and 4) were convicted of B

the offence punishable under Section 498-A of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for one year and to pay a fine in the sum of Rs. 1000/- in default to suffer ::: Downloaded on – 09/06/2013 18:59:15 ::: 3 apeal489.08.odt simple imprisonment for 10 days. Appellants nos. 2 and 3 herein rt

were also convicted in addition under Section 306 of the Indian Penal Code. Appellant no. 2 herein was sentenced to suffer ou

rigorous imprisonment for the period of five years and to pay a fine in the sum of Rs 5000/-, in default to suffer further simple C

imprisonment for six months; while for the same offence, Appellant no. 3 herein was sentenced to suffer rigorous h

imprisonment for two years and to pay a fine in the sum of Rs ig

1000/-, in default to suffer further simple imprisonment for 10 H

days.

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2. The facts, briefly stated, are thus :- ba

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Rekha (deceased) was married with Prashant Laxman Puttewar (Appellant no.1) on 13/05/2001 and was residing at Chamorshi in a joint family consisting of parents – B

Laxman, Shalutai and sister Rajani (Appellant no.3). It is the case of prosecution that the deceased was harassed on the pretext that demand of money in the sum of Rs. One lac for the construction of ::: Downloaded on – 09/06/2013 18:59:15 ::: 4 apeal489.08.odt the house was not complied with by her parents. The demand was rt

made on phone on 8th February 2004 calling upon mother of the deceased to bring the amount immediately. During that night ou

itself, a phone call was received from the neighbour of the appellants that Rekha has hanged herself. The mother of the C

deceased, who went to Chamorshi, lodged the complaint. The offence was registered as Crime no.27 of 2004 at Police Station, h

Chamorshi. The dead body was referred for post mortem ig

examination. Cause of death was mentioned as cardio- respiratory H

arrest due to asphyxia because of hanging. During the course of investigation, the statements were recorded. The documents of loan were collected. Clothes of the deceased were also seized. y

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Upon completion of the investigation, the accused were charge sheeted. The accused defended the prosecution case on the ground om

that the deceased was born and brought up in Nagpur city and she was frustrated because she had to marry Prashant against her wish and was required to stay at a small place like Chamorshi. The B

accused denied the charge.

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3. Mr.I.S.Charlewar, learned Advocate for the appellants rt

submitted that the prosecution case in the trial Court was not proved beyond reasonable doubts as, according to him, the ou

impugned conviction was based upon the documents (Ex.36) seized by the police from the Bank of India, Yenapur branch – C

which were – the record of Home loan application, permission granted to Shalutai Laxman Padmagiriwar by the Sarpanch of the h

Gram Panchayat Chamorshi, Solvency Certificate issued by the ig

Talathi, guarantee in the form of revenue extract of land Gat no. H

1130/1 at Chamorshi etc.. Learned Advocate for the appellants submitted that the said documents by themselves were not sufficient to base the conviction of the appellants for serious y

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accusations as there were no independent witnesses to sustain the Charge. According to the learned Advocate, the interested om

statements of witnesses from Nagpur should not have been relied upon to base the conviction in respect of the incident of suicide occurred at Chamorshi.

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4. Ms R.A.Deshpande, learned A.P.P., on the other hand, rt

supported the impugned Judgment and Order and submitted that the evidence led by the prosecution has proved beyond reasonable ou

doubt the offences being committed by the appellants. The learned A.P.P. argued that the trial Court, after due appreciation of the C

evidence, arrived at the conclusion that the accused were guilty of the offences charged against them. h

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5. I have perused the record. The prosecution has examined H

nine witnesses to prove its case. Kripashankar Shivnarayan Mishra (PW-1) deposed about the Spot Panchanama as well as the y

Inquest Panchanama (Exhs. 20 and 21), which were not disputed. ba

Dr. Milind Ramteke (PW-2) gave evidence about post mortem report (Ex.25) to mention that deceased Rekha died due to om

cardio-respiratory arrest. This evidence was also not disputed. The defence disputed the evidence of first informant Shobhabai B

Gainewar (Mother of Rekha) (PW-3) who stated that accused no. 3 was demanding money for construction of house; her husband was also demanding money and she was receiving phone calls ::: Downloaded on – 09/06/2013 18:59:15 ::: 7 apeal489.08.odt from her daughter Rekha that the accused are ill-treating her. She rt

also stated that accused no.4 (sister -in -law) has demanded the sum of Rs. One lac during the same night for construction of the ou

house. She had lodged a complaint (Ex.27). Her evidence indicated that Rekha was brought up in Nagpur and took C

education in Nagpur. The incident occurred at about 2 a.m. to 3 a. m. The F.I.R. was registered by the Police Station at about h

18.15 hrs. Neighbour of the accused had phoned at 2 a.m. during ig

the same night. Shobhabai (PW-3) when confronted in the cross- H

examination about the Sumo Vehicle, she replied that the Vehicle had become functionless, but it was not so stated to the police. y

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6. Narayan Gainewar (Father of the deceased) (PW-4) stated in the evidence that, in the year 2003, when his daughter came, om

she had told him that the accused are ill-treating and harassing her to fulfill the demand of Rs One lac. The incident of suicide is dated 9/2/2004. Therefore, much importance cannot be given to B

such evidence which refers to the talk of the year 2003 which was not so proximate as cause of suicide by Rekha. And Varsha ::: Downloaded on – 09/06/2013 18:59:15 ::: 8 apeal489.08.odt Gainewar (PW-9) (Neighbor of PW-3) stated that whenever Rekha rt

used to visit her house, she was not disclosing anything but was crying and that she was complaining regarding demand of money ou

by her in laws. According to witness Varsha, she had received phone call from Rajani (sister-in-law of Rekha) asking for any C

elderly person in the house. When Varsha told her that she will call her mother-in-law (Rekha’s Mother), Rajani told her that h

Rs.One lac should be sent immediately. At that time, there was ig

ongoing quarrel heard between the mother-in-law of Rekha and H

Rekha. Then Varsha called her mother-in -law (Rekha’s Mother), who had made a phone call at Rekha’s house. Rajani had received the call with whom mother-in -law had a talk. The mother-in-law y

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requested for to give phone to Rekha, but Rajani did not give the phone to Rekha. The mother-in-law was also told to send the om

amount of Rs. One lac. When the mother-in law asked Rajani to give phone to her mother, she had not given phone to her mother and disconnected the phone call. During the same night, a phone B

call was received from the neighbor of the accused that Rekha died in the house as a result of hanging. Thus, Varsha deposed that the accused were ill-treating Rekha to bring money from her ::: Downloaded on – 09/06/2013 18:59:15 ::: 9 apeal489.08.odt father and therefore, she committed suicide. In her cross- rt

examination, it is brought on record that all the accused had attended the ‘Barsa’ (Naming) Ceremony of her son at Nagpur and ou

Rekha and her husband had come to Nagpur on 03/12/2003 to attend one marriage and had stayed for five to six days. She also C

flatly denied the suggestions put to her about the phone call and talks which she had with sister-in-law of Rekha. The cross- h

examination remained fruitlessly futile as the evidence of Varsha ig

remained unshaken.

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7. Malati Thakre (PW-5) and Vachchalla (PW-6) y

(Neighbourers of Shobhabai (PW-3) although were declared ba

hostile to the prosecution case, they did corroborate what Varsha deposed. According to Malati (PW5), at the night of the incident om

when Rekha died, till about 8 p. m., Shobha (PW-3) was sitting at her house and Varsha (PW-9) had come in her house to call her and then Shobhatai (PW3) left. After receiving the phone call, B

Shobhatai returned to her house and told her that she received phone call from mother-in-law of Rekha making demand of ::: Downloaded on – 09/06/2013 18:59:15 ::: 10 apeal489.08.odt money. The witness also clarified further when cross-examined rt

that there was demand of Rs One lac for construction of house and Shobhatai had told her about the quarrel heard on phone on ou

the night of the incident between Rekha and her mother-in-law. Vachchala (PW-6) deposed that 2/3 months prior to the death of C

Rekha, Rekha had visited her house and told her about the ill- treatment and harassment given by her in-laws and demand of Rs h

One lac from her husband for construction of house. The cross- ig

examination of the witnesses on behalf of the defence was H

unproductive and nothing was elicited which could damage the prosecution version.

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8. After dealing with the facts in the matter, now let us consider the legal position. Chapter XX-A of Indian Penal Code, om

1860, refers to ‘cruelty by husband or relatives of husband’ It includes section 498-A. Section 498-A of the Indian Penal Code states that –

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whoever being the husband or relative of the husband of woman, subjects such woman to cruelty shall be punished with the imprisonment for a term which may extend to three years and also be liable to fine. ::: Downloaded on – 09/06/2013 18:59:15 ::: 11 apeal489.08.odt Explanation – For the purpose of this section, “cruelty” means-

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(a) Any wilful conduct which is of such nature as is ou

likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or C

(b) Harassment of the woman where such harassment is with view to coercing her or any person related to her meet any unlawful demand for any person related h

to her to meet such demand.

9.

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The section was enacted to combat the menace of dowry H

deaths. It was introduced in the Code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act, Section y

113-A has been added to the Indian Evidence Act to raise ba

presumption regarding abetment of suicide by a married woman. The main objective of Section 498-A of the Indian Penal Code is to om

protect a woman who is being harassed by her husband or relatives of husband.

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Section 113-A of Indian Evidence Act, reads as follows:

Sec. 113-A, Presumption as to dowry death – ::: Downloaded on – 09/06/2013 18:59:15 ::: 12 apeal489.08.odt When the question is whether a person has committed the dowry death of a woman and it is rt

shown that soon before her death such woman has ou

been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the C

dowry death.

Explanation- For the purpose of this section ‘dowry h

death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860). ig

The object for which section 498A IPC was introduced can be gathered from the Statement of Objects and H

Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983.

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10. It is stated that increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been om

commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some of the cases, cruelty of the husband and the relatives of the husband B

which culminates in suicide or murder of the helpless woman concerned, constitutes only a small fraction involving such cruelty. ::: Downloaded on – 09/06/2013 18:59:15 ::: 13 apeal489.08.odt Therefore, it was proposed to amend the Indian Penal Code, the rt

Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with the cases of ou

dowry deaths, but also the cases of cruelty to married women by the husband, the in-laws and the relatives. The avowed object is to C

combat the menace of dowry death and cruelty. The act of harassment would amount to cruelty for the purpose of this h

Section when such harassment is caused to coerce her or her ig

relatives to meet any unlawful demand for any property or H

valuable security and continuing misbehavior with her on account of the failure by her or her relatives to meet the unlawful demand. Greedy Husband and vicious in-laws with insatiable urge for y

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dowry may have ways and means to obtain easy pecuniary advantage for themselves by coercing a married woman on some om

or other pretext to raise the demand from her parents/close relatives and if demand is not satisfied, to behave in callous, heartless manner with her so as to drive her to commit suicide or B

endanger her life, both mentally and/or physically. Suicide means ‘intentional killing of the self’. Anyone who aids, instigates or abets it, is punishable under Section 306 of the Indian Penal Code. ::: Downloaded on – 09/06/2013 18:59:15 ::: 14 apeal489.08.odt Abetment’ has been defined under Section 107 of the Code. It is rt

appropriate to reproduce Section 107, which reads as under: ou

“107. Abetment of a thing –

A person abets the doing of a thing, who – C

First – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any h

conspiracy for the doing of that thing, if an act or illegal omission ig

takes places in pursuance of that conspiracy, and in order to the doing of that thing; or

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Thirdly – Intentionally aides, by any act or illegal omission, the doing of that thing.”

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Explanation 2 which has been inserted along with Section 107 reads ba

as under:

“Explanation 2 – Whoever, either prior to or at the time of the om

commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” B

11. Mr.I.S.Charlewar, learned Advocate for the Appellants placed reliance upon the ruling in Deepak s/o. Bhimrao Bharne ::: Downloaded on – 09/06/2013 18:59:15 ::: 15 apeal489.08.odt and Ors. vs. State of Maharashtra reported in 2004 (2) Mh.L.J. rt

987, wherein it is observed thus : ou

“14. There is no doubt that; the concept of cruelty and its effect varies from individual to individual and it also C

depends on the social and economic status to which the parties belong. It is also true that cruelty may not be physical and even mental torture and abnormal behaviour h

may amount to cruelty, in the instant case, the father of ig

deceased has spoken of complaint; of beating by Sunita. However, as observed above, his evidence is found to be H

exaggerating and contradictory to the seizure memo. PW 5 Baby speaks bare minimum on the point of alleged cruelty. Moreover, she is a married sister of deceased Sunita and is y

not expected to possess knowledge in respect of alleged ba

harassment to Sunita. On the point of cruelty, evidence of PW 6 Vimal can also not be accepted. In answer to a question, she has deposed in cross-examination that Sunita om

had gone to Ghatanji prior to 2-3 days of the incident. However, according to PW 4 Narayan, father of the deceased, the incident occurred on the day on which Sunita B

returned from Ghatanji place of her husband. Thus, in absence of direct oral or documentary evidence, the prosecution case cannot be accepted on the basis of hear-say evidence.”

::: Downloaded on – 09/06/2013 18:59:15 ::: 16 apeal489.08.odt This Court had found it unsafe to rely upon the hearsay rt

evidence to base and uphold the conviction. ou

12. The learned Advocate also relied upon the ruling in Vijay C

Narhar Pathak vs. State of Maharashtra reported in 2007 ALL MR (Cri) 241 in order to submit that, as held by the Bombay High h

Court, the vague allegations against the in-laws cannot be made ig

the basis for conviction for the cruelty. H

13. Shri Charlewar then pressed into service the ruling in State of Chattisgarh vs. Dhanesh Sharma & Ors, 2011 (1) y

Crimes 681 (CG), wherein the Chattisgarh High Court observed ba

that the instances of April 1982 when suicide was committed in June 1985 will not be regarded as evidence so as to amount to om

instigation.

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14. Shri Charlewar then made a reference to the ruling in Kailash Baburao Pandit and Ors. vs. The State of Maharashtra ::: Downloaded on – 09/06/2013 18:59:15 ::: 17 apeal489.08.odt and Anr., 2011 ALL MR (Cri) 2462 wherein, in paras 33 and 34, rt

it is observed thus-

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“33. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a C

thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as h

instigating or aiding the doing of a thing it required before a person can be said to be abetting the ig

commission of offence under Section 306 of the Indian Penal Code.”

H

“34. In the case of State of West Bengal vs Orilal Jaiswal (AIR 1994 SC 1418), the Apex Court has observed that the y

courts should be extremely careful in assessing the facts and ba

circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by om

committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite B

common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court ::: Downloaded on – 09/06/2013 18:59:15 ::: 18 apeal489.08.odt should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found rt

guilty.”

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15. Reference is then made to the ruling in Assoo vs. State of C

M.P. reported in 2012 CRI. L. J. 658 (SC). In Para 5 of the said Judgment, it is mentioned by the Apex Court thus : h

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“We are of the opinion that besides the evidence of PWs-1 and 2, which itself is extremely shaky, there is H

no other statement to show any misbehaviour or demands for dowry. There is also no indication as to when these demands had been made. It must be noted y

that every quarrel between a husband and wife which ba

results in a suicide cannot be taken as an abetment by the husband and the standard of a reasonable and practical woman as compared to a headstrong and over om

sensitive one, has to be applied.” B

16. Learned A.P.P. invited my attention to the ruling in Janardhan s/o Asaram Pere and anr. vs. State of Maharashtra , ::: Downloaded on – 09/06/2013 18:59:15 ::: 19 apeal489.08.odt reported in 2009 ALL MR (Cri) 3031, in which it is observed as rt

follows :

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“16. Having regard to the totality of the C

circumstances and the evidence on record, it will have to be said that both the appellants subjected the deceased – Mangala to matrimonial cruelty during h

the period of her consortium with the husband. The ig

willful conduct of the appellants was of such a nature as was likely to drive her to commit the suicide. The H

conviction of the appellants for offence punishable under section 498A read with section 34 of the I.P.Code is, therefore, legal and proper. ” y

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17. In the present case, the witnesses have corroborated each om

other. The documentary evidence(Ex.36) is also corroborated. The argument on behalf of the appellants that all the witnesses were B

from Nagpur and interested and that their evidence should have been discarded is unacceptable for the reason that it was a case of matrimonial cruelty normally disclosed to and known to only near ::: Downloaded on – 09/06/2013 18:59:15 ::: 20 apeal489.08.odt and dear relations of the victim. The matrimonial cruelty often rt

occurs inside the secrecy of the house and one cannot always expect presence and knowledge of the independent witness of ou

such crime, particularly in modern day’s society so as to expect him or her to voluntarily come forward to give statement and to C

depose in a case. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of h

instigation though it is not necessary that actual words must be ig

used to that effect or what constitutes instigation must necessarily H

and specifically be suggestive of the consequence, yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is a case where the appellants had, by their y

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acts or omission or by a continued course of conduct, created such a situation for unfortunate Rekha that she was left with no other om

option except to commit suicide. In such a case, instigation may have to be necessarily inferred from the evidence led. B

18. It is in the evidence that – Appellant no.3 Rajani had called Varsha (PW-9) on phone for to get elderly person – her mother-in- ::: Downloaded on – 09/06/2013 18:59:15 ::: 21 apeal489.08.odt law (mother of Rekha) for to immediately comply with the rt

unlawful demand of Rs One lac, while appellant no.2 was heard on phone, engaged in quarrel with Rekha on that fateful night. ou

The appellants by their conduct created such a situation just prior to the death of unfortunate Rekha which drove her to end her life C

by hanging herself. The appellants further by their wilful omission did nothing needful for to save life of Rekha. Even after Rekha’s h

death, her dead body had to be brought to her parent’s home at ig

Nagpur for cremating it. Thus, the appellants herein committed H

the offence of cruelty which constrained deceased Rekha to end her own life. Learned trial Judge has ably appreciated the evidence to answer the points for determination and also to y

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impose separate punishments against the appellants using judicial discretion. Lenient view is already taken in the facts and om

circumstances. No interference is needed in the appeal. The Criminal Appeal is, therefore, dismissed. B

JUDGE

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19. Learned Counsel for the Appellants prays for grant of time rt

of two months to surrender. He submits that the appellants want to challenge the instant Judgment and Order of this Court before ou

the Apex Court. Learned A.P.P. opposes the request. Since the Appellants want to challenge the present Judgment and Order C

before the Apex Court, the operative portion of the Judgment shall remain suspended for a period of six weeks from today. h

ig JUDGE

jaiswal

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