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C vs H on 13 August, 2008

Bombay High Court C vs H on 13 August, 2008Bench: Ranjana Desai, Dr. D.Y. Chandrachud

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt

CRIMINAL APPELLATE JURISDICTION ou

CRIMINAL APPEAL NO.558 OF 2005 C

Ravindra Subhana Dadake, Jai ) Santoshimata Nagar, Himalaya ) Society, Narayan Nagar, Ghatkopar, ) Mumbai – 400 084 (through Jail). ) …. Appellant (Orig. Accused)

h

Versus ig

State of Maharashtra (At the instance ) H

of Ghatkopar Police Station). ) …. Respondent (Orig. Complainant)

Mr. Abhaykumar Apte, advocate appointed for the appellant. y

Ms. P.H. Kantharia, A.P.P. for the State. ba

CORAM : SMT. RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ.

om

DATE ON WHICH THE JUDGMENT IS

RESERVED : 29TH JULY, 2008.

DATE ON WHICH THE JUDGMENT IS

B

PRONOUNCED : 13TH AUGUST, 2008. JUDGMENT:- (Per Smt. Ranjana Desai, J.)

1. The appellant was tried in the Court of Sessions for Greater Bombay in Sessions Case No.258 of 2003 for the offences ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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punishable under sections 498A and 306 of the Indian Penal Code rt

(for short, “the IPC”). Towards the end of the trial, due to the ou

evidence that came on record, learned Judge felt that an additional and alternative charge needs to be framed for offence punishable C

under section 302 of the IPC and, accordingly, it was framed. By judgment and order dated 22/12/2004, learned Additional Sessions h

Judge convicted the appellant for the offences punishable under ig

sections 498A and 302 of the IPC. Learned Additional Sessions Judge sentenced him to suffer Rigorous Imprisonment for three H

years for the offence punishable under section 498A of the IPC and to pay fine of Rs.500/-, in default, to suffer Rigorous Imprisonment y

for three months. The appellant was also sentenced to undergo ba

Rigorous Imprisonment for life for the offence punishable under section 302 of the IPC and to pay a fine of Rs.1,000/-, in default, to om

suffer further Rigorous Imprisonment for six months. The substantive sentences were ordered to run concurrently. It is the B

said judgment and order, which is challenged in this appeal. For the sake of convenience, we shall refer to the appellant as “the accused” in this judgment.

2. It would be advantageous to begin with the facts of the case. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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The accused got married to Saidabai @ Savita @ Kavita (for rt

convenience, “the deceased) in the year 1993. They started ou

residing in Ramabai Colony at Ghatkopar, Mumbai. They had three daughters and one son. The accused was a mason by C

profession. He was addicted to liquor. He used to neglect his children. He used to constantly quarrel with the deceased and he h

used to ill-treat her. He had developed illicit relationship with one ig

Mangal Shinde, who was his neighbour. H

3. On 21/1/2003, the deceased was found hanging by her sari from the ceiling fan of their house. A complaint came to be lodged y

by the brother of the deceased by name Manik Ingle on 22/1/2003 ba

at about 00.05 hours. It was treated as FIR and investigation was started. After completion of the investigation, the accused was om

charged as aforesaid.

B

4. At the trial, the prosecution examined, in all, 10 witnesses. PW-1 Ratna Whatkar is the cousin of the deceased. PW-2 Manik Ingle and PW-3 Ramesh Ingle are brothers of the deceased. PW-4 Phulabai Ingle is the mother of the deceased. PW-5 Indrajit Azad is the photographer. PW-6 Shamrao Ingle is the father of the ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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deceased. Medical evidence is brought on record through PW-7 rt

Dr. Rajesh Dhete and PW-8 Dr. Shivaji Kachare. PW-9 Pooja ou

Dadake is the minor daughter of the deceased. The details of the investigation have been given by PW-10 PI Abhay Salgaonkar. C

5. The defence of the accused is one of total denial. The case h

of the accused as suggested by all the family members of the ig

deceased is that the deceased was mentally unsound and that she committed suicide. This case has been denied by all the H

witnesses. In his statement recorded under section 313 of the Criminal Procedure Code, (for short, “the Code”), the accused has y

admitted that he used to assault his children. He has also admitted ba

that he had an affair with Mangal. When his photograph with Mangal was shown to him and he was asked what he has to say om

about the prosecution case that it was in his pocket and that his daughter had shown it to the deceased, he stated that it is true. He B

has admitted that his daughter PW-9 Pooja saw the deceased hanging with her sari around her head and neck and that the father of the deceased pulled her down. He has stated that he does not know whether the legs of the deceased were touching the stool. When he was asked whether he wanted to say anything, he ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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stated that the deceased had done this twice before. He further rt

stated that he did not know about her mental illness and that he ou

had a file of her treatment. He further stated that he did not know how it happened.

C

6. As we have already noted, learned Sessions Judge at the h

end of the trial, in view of the evidence which had come on record ig

framed, an additional and alternate charge under section 302 of the IPC. After perusing the evidence on record, learned Sessions H

Judge convicted the accused as aforesaid and, hence, this appeal. y

7. We have heard, at some length, Mr. Apte, learned counsel ba

appearing for the appellant-accused. He submitted that it is an admitted fact that the deceased was suffering from mental illness om

and, therefore, the case of the defence that the deceased had committed suicide is probabalized. He submitted that nobody has B

seen the actual incident of hanging. Even according to PW-9 Pooja, she saw her mother in a hanging position. Evidence of PW- 9 Pooja is so inconsistent that no reliance can be placed on it. At one stage, she has said that her father hanged the deceased but, in the cross-examination, she has clearly stated that her mother ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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was in a hanging position when she saw her. Mr. Apte, submitted rt

that it is, therefore, unsafe to rely on the evidence of this witness. ou

He submitted that there is hardly any evidence to uphold the conviction under section 302 of the IPC. Even so far as the charge C

under section 306 of the IPC is concerned, learned counsel submitted that the evidence on record falls short of requirement. h

He submitted that reliance placed by learned Sessions Judge on ig

the judgments of the Supreme Court in Kuldeep Singh v. State of Rajasthan, 2000 SCC (Cri.) 865 and in Joseph Kooveli Poulo v. H

State of Kerala, (2000) 5 SCC 197 and on the judgment of this court in Balasaheb s/o. Kashinath Pawar v. State of y

Maharashtra, 2004 ALL MR (Cri.) 2087, ba

is totally misplaced.

They can be distinguished on facts. He submitted that in fact, the om

accused had explained the incident of hanging by saying that the deceased had committed suicide. That story is probabalised by the fact that admittedly the deceased was mentally ill. Learned B

counsel submitted that therefore this is not a case where the accused had offered no explanation at all. Mr. Apte submitted that the impugned judgment and order is perverse and, therefore, it may be set aside and the accused be released forthwith. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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rt

8. The evidence of PW-7 Dr. Rajesh Dhepe who was working ou

as Assistant Medical Officer at Rajawadi Hospital and evidence of PW-8 Dr. Shivaji Kachare, who was, at the relevant time, attached C

to Rajawadi Postmortem Center as Medical Officer clearly establishes that the cause of death of the deceased was asphyxia h

due to constriction neck (unnatural) hanging. Postmortem notes ig

are at Ex-22. On the external examination of the dead body, PW-8 Dr. Kachare noticed the following injuries. H

“1) Ligature marks was seen around neck region y

right mastoid to left mastoid above thyroid cartilage reddish brown in colour and ba

incomplete.

The size of the ligature mark was 26 cm x 1.2 cm. The neck circumference was 41 cm. On om

dissection of neck region found thin parchmentization of a skin under groove. 2) Abrasion was seen over left forehead reddish in B

colour size 3 cm x 2 cm. Injuries were ante- mortem.”

On the internal examination of the dead body, PW-8 Dr. Kachare noticed the following injuries. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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rt

“1) larynx, trachea and bronchi were congested both lungs were congested and oedematus. ou

Heart show on dissection right chamber full of blood and left chambers were empty.” C

9. PW-8 Dr. Kachhare has stated that except for an injury on the h

left side forehead, there was no other injury on the dead body. He ig

stated that the ligature marks denote that the death was caused by hanging and not by strangulation. H

10. It is pertinent to note that after scrutinizing the evidence, y

learned Sessions Judge has come to a conclusion that from the ba

evidence on record, it is clear that all the witnesses have seen the om

deceased in a hanging position and that the prosecution has proved beyond reasonable doubt that the cause of death was due to hanging. She has, however, expressed some doubt as to B

whether the deceased had hanged herself and/or whether she was hanged by the accused. In view of the judgments of the Supreme Court and of this court to which we shall soon advert, learned Judge has stated that since the accused had not given any ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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explanation about the circumstances which are exclusively within rt

his knowledge, he had not discharged his burden under section ou

106 of the Indian Evidence Act. She has observed that only the accused was present at the time and place of the offence and he C

ran away from the scene immediately thereafter. She has observed that the prosecution has proved that the accused was h

having an affair with Mangal; that he was neglecting his wife and ig

his children and that her insanity could have been a motive to commit suicide. Learned Judge has observed that the accused H

had failed to discharge his burden and, therefore, it is an additional link which completes the chain of circumstances. We shall now y

examine whether the above findings have been correctly recorded ba

by learned Sessions Judge.

om

11. PW-1 Ratna Whatkar is the cousin of the deceased. She turned hostile and, therefore, she was cross-examined by the B

prosecution. In her cross-examination, PW-1 Ratna has stated that the deceased was not mentally sound and she was taking treatment at the Sion Hospital.

12. PW-2 Manik Ingale and PW-3 Ramesh Ingale who are the ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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brothers of the deceased and PW-4 Phulabai Ingale, who is the rt

mother of the deceased have stated about the illicit relationship of ou

the accused with Mangal. It is not necessary for us to refer to that evidence because the accused has admitted the illicit relationship C

in his statement recorded under section 313 of the Code. PW-2 Manik has stated that due to the said illicit relationship, the h

deceased and the accused used to quarrel. The accused was not ig

looking after the deceased and the children. He has further stated that the accused had given his photograph with Mangal to the H

deceased. Due to this, the deceased’s mental condition was disturbed and she had to take treatment. According to him, on y

22/1/2003, when he reached the house of the deceased, the ba

deceased was put on a sheet and was being brought out of the room. The police had arrived and were drawing panchanama. He om

reached the hospital where the deceased was taken, at 11.30 p.m. and informed the police that the accused had caused the death of B

his sister. His complaint was then recorded. The said complaint is at Ex-10. He has stated in the cross-examination that his sister was not a mad person but she was taking treatment in the Sion Hospital due to the mental shock received by her because of the behaviour of the accused.

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rt

13. PW-3 Ramesh Ingale, the other brother of the deceased has ou

stated that the accused was not behaving properly with the deceased. He started drinking and assaulting the deceased. On C

one occasion, he had tried to pour kerosene on the deceased. He was arrested by the police and released on his assuring the police h

that he would not repeat such act. He has further stated that the ig

accused was not looking after the children and he used to hit them for trivial reasons. According to him, the accused used to tell the H

deceased that he would reside with Mangal. This caused great torture to her. According to him, on the day of the incident, he went y

to the house of the deceased with her youngest son. He knocked ba

at the door, but the door was not opened. At 11.30 p.m., the youngest son of the deceased started crying and, therefore, his om

mother took him to the house of the deceased. At that time, his mother shouted loudly and, therefore, they went to see what had B

happened. They saw the deceased in a hanging position. She was hanging from the beam with a sari tied to her neck. He, his mother, father and the children of the deceased were present at that time. In the cross-examination, he denied the suggestion that the deceased attempted to commit suicide and she was admitted in ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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a hospital. He denied that the deceased was suffering from any rt

mental illness but he admitted that the deceased was brought to ou

the area where they were staying as her parents wanted to take care of her. In our opinion, implicit in this is that the deceased was C

unable to take care of herself. All was not well with her mental condition.

h

14.

ig

PW-4 Phulabai Ingale, the mother of the deceased has stated that the accused was addicted to liquor. He used to give some H

money at home and blow up the rest. He had once poured kerosene on the deceased and they had lodged a complaint with y

the police at that time. According to PW-4 Phulabai when the ba

accused and the deceased came to reside in their locality, the accused continued to quarrel with the deceased every day. She om

has further stated that Mangal and the accused had declared to the deceased that they wanted to live together and over this, the B

deceased and the accused had a serious quarrel. PW-4 Phulabai has stated that on the day of the incident at about 11.00 p.m., the youngest child of the deceased started crying. So she told her son to take him to the deceased. According to her, she and her ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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granddaughter went to the deceased’s house. She inquired about rt

the deceased. PW-9 Pooja, the daughter of the deceased told her ou

that the accused was watching while the deceased was hanging herself. According to PW-4 Phulabai, she screamed. Her son and C

husband came there. Thereafter, the police arrived. According to PW-4 Phulabai, she noticed that the feet of the deceased were on h

a stool. She noticed marks of throttling on the neck of the ig

deceased. According to her, the deceased was almost standing on the stool. She has further stated that the deceased did not commit H

suicide and she was throttled and hanged. In the cross- examination, she has stated that the deceased started getting y

attacks of mental disorder for the last two years due to the illicit ba

relationship of the accused with Mangal. Thus, she admitted that the deceased had some mental disorder. It must be noted here om

that PW-4 Phulabai’s story that there were marks of throttling on the neck of the deceased is not borne out by the medical evidence B

to which we shall soon turn.

15. PW-6 Shamrao Ingale, the father of the deceased has stated that the accused was behaving badly with the deceased. He used to drink and gamble. He was not looking after the children. In the ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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cross-examination, a vital omission has been brought on record. rt

Though, he has denied that the deceased had mental disorder, it ou

appears that he had stated before the police that the deceased had a mental disorder and she was behaving like a mad person and C

that is why she had been treated in the Sion Hospital. h

16. Evidence of all these persons establishes that the accused ig

was addicted to drinks; that he was having an affair with Mangal and that he was ill-treating the deceased. Their evidence also H

establishes that the deceased was mentally disturbed and she was treated for the same at the Sion Hospital. It appears that the y

mental disturbance was due to the fact that the accused was ba

having an affair with Mangal.

om

17. PW-9 Pooja, the daughter of the deceased has stated that the house of her grandparents and maternal uncle is near the B

house where she was staying with her parents. In the examination-in-chief, she has stated that the accused put a sari around the neck of the deceased and hanged it on a beam in the room and she saw this while she went to urinate. However, in the cross-examination, she has stated that it is correct to say that her ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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mother was already hanging when she saw her. Therefore, the rt

claim of PW-9 Pooja that she saw her father hanging her mother is ou

not true. This has been accepted by the trial court also. PW-9 Pooja has further stated that the deceased used to take sleeping C

pills because she used to have frequent headaches and was suffering from giddiness. According to PW-9 Pooja, the deceased h

would scream and throw things around. The neighbours would tell ig

her grandmother to take her to the hospital. According to PW-9 Pooja, the deceased would not know what she was doing and her H

grandmother would take the deceased to the hospital when she had the problem. The evidence of PW-9 Pooja confirms that the y

deceased had mental disorder.

ba

18. In our opinion, this evidence is sufficient to hold that the om

accused used to ill-treat the deceased. He meted out mental and physical cruelty to the deceased. His conviction under section B

498A is, therefore, perfectly legal and justified.

19. It is pertinent to note that in the FIR lodged by PW-2 Manik, his case was that the deceased had committed suicide because of the illicit relationship of the accused with Mangal, which caused ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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mental cruelty to her. Thus, in short, the case of PW-2 Manik was rt

that the accused abetted the suicide of the deceased. The ou

prosecution case was, therefore, that the accused had committed offence under sections 498A and 306 of the IPC. In our opinion, C

the evidence discussed by us hereinabove clearly establishes commission of offence under section 306 of the IPC. Mental illness h

of the deceased was due to the illicit relationship of the accused ig

with the deceased and that led her to commit suicide. We shall now examine how far the reliance placed by learned Sessions H

Judge on the above mentioned judgments to come to a conclusion that the accused is guilty of offence under section 302 of the IPC is y

proper.

ba

20. In Kuldeep Singh’

s case (supra), deceased Sohan Singh and om

his brother Mohan Singh were staying with their families in different portions of the house. After the death of Mohan Singh, his widow B

was living there with her three daughters. Sohan Singh was found dead in his house at night. The trial court found that the prosecution had proved inter alia, that the 1st appellant accused had illicit relationship with widow of Mohan Singh. Deceased ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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Sohan Singh was objecting to it. The trial court held that all the rt

four appellants had entered into a criminal conspiracy to murder ou

deceased Sohan Singh and they had committed the murder. The conviction was confirmed by the High Court. The Supreme Court C

confirmed the findings of the courts below. The case of the prosecution inter alia was that appellant 4 had got all family h

members to attend Ramleela festival thereby leaving the deceased alone in the house.

igThe Supreme Court observed that in her statement under section 313 of the Code, appellant 4 i.e. the H

widow of the deceased’s brother had denied that she had left for the Ramleela festival. However, the evidence of the witnesses y

clearly established that she had left for the Ramleela festival and ba

the false answer given by her provided the additional link or the missing link in completing the chain of circumstances. The om

Supreme Court referred to its judgment in Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, and held that it is a well-settled B

principle that in the case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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rt

21. In Joseph’

s case (supra), the accused had totally denied all ou

the incriminating circumstances when the same were brought to his notice in his statement under section 313 of the Code. The C

accused representing himself to be the husband of one of the sisters of the deceased went to St. Mary’s Convent on a false h

pretext that her mother was ill and took her away with the ig

permission of the Sister in-charge of the Convent. He took her to a desolate place, raped her and robbed her of her ornaments. The H

Supreme Court observed that when several incriminating circumstances were put to him in his examination under section y

313 of the Code, they could have been only explained by the ba

accused and by nobody else, they being personally and exclusively within his knowledge. The Supreme Court observed that the om

missing link to connect the accused with the crime, was provided by the blunt and outright denial of every one and all of the B

incriminating circumstances pointed out which, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of the deceased. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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22. In Balasaheb’

s case (supra), the deceased was found dead rt

on the floor of the house of the accused. There were several ou

external and internal injuries found on the deceased. The accused pleaded not guilty. He had not pleaded alibi. This court held that C

once it is accepted that the accused was in the company of the deceased on the night of the incident, the burden of explaining his h

special knowledge regarding the incident squarely fell on him, in ig

view of the scheme of section 106 of the Evidence Act. He had not discharged the burden. In view of this, the conviction of the H

accused under section 302 of the IPC was upheld. y

23. It is true that the burden of explaining facts regarding the ba

incident in question which were especially within the knowledge of the accused fell on him in view of section 106 of the Evidence Act. om

However, in this case, the prosecution evidence itself shows that the deceased was mentally ill. Her mental illness and treatment at B

Sion Hospital is confirmed by the prosecution witnesses. PW-9 Pooja has given vivid description of the behaviour of the deceased when she used to get attacks. The medical evidence states that the death was asphyxia due to hanging and not by strangulation. ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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PW-8 Dr. Kachare has stated that hyoid bone and thyroid cartilage rt

were intact. In Kuldeep Singh’ s case (supra), the accused had ou

given a false explanation. In this case, the accused has admitted certain facts. He has admitted his illicit relationship with Mangal. C

He has admitted that he used to assault his children. He has stated that he has a file of her treatment and that she had earlier h

on two occasions done the same thing. This is not a case of no ig

explanation at all. In our opinion, the accused has probabalised his defence. The accused does not have to prove his defence beyond H

reasonable doubt. We are unable to come to a conclusion that he has not disclosed any facts which were within his special y

knowledge or that he has given false explanation which can form ba

the missing link in the chain of circumstances. In the circumstances, in our opinion, judgments on which reliance is om

placed by learned Session Judge has no application to the present case.

B

24. We also feel that the prosecution story is inherently improbable. If the accused had throttled the deceased, she would have raised a loud cry which would have brought all neighbours to ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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the house of the accused. Ordinarily, it is difficult for anyone to rt

forcibly put the noose on a person and hang him unless that ou

person has been drugged or is unconscious. There is no such evidence on record. If the accused had tried to forcibly hang the C

deceased, she would have certainly resisted the attempt. Barring an abrasion admeasuring 3 cm x 1.2 cm on the left forehead, there h

were no other injuries on the deceased. It is difficult to believe that ig

the deceased would not resist the attempt. Her cries would have brought her relatives staying close by and others to the house of H

the accused. Admittedly, all the witnesses have seen the deceased in a hanging position. All these circumstances, militate y

against any inference that the accused murdered the deceased. ba

Learned Sessions Judge has observed that the accused ran away from the site and this conduct is unnatural. Learned Sessions om

Judge has failed to note the deposition of PW-3 Ramesh Ingale that when he saw his sister hanging, the accused was present. B

Learned Sessions Judge has also failed to note the evidence of PW-10 API Abhay Salgaonkar that the complaint was lodged on 22/1/2003 and the accused was arrested immediately thereafter. Therefore, the conclusion drawn by learned Sessions Judge that the accused ran away and was guilty of unnatural conduct dos not ::: Downloaded on – 09/06/2013 13:41:17 ::: AJN

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stand to reason. We are therefore of the opinion that conviction rt

and sentence of the accused under section 302 of the IPC needs ou

to be set aside and he must be convicted under section 306 of the IPC. The conviction and sentence of the accused under section C

498-A of the IPC needs to be confirmed. Hence, the following order.

h

25.

ig

Conviction and sentence of accused Ravindra Subhana Dadake under section 498-A of the IPC is maintained. Conviction H

and sentence of accused Ravindra Subhana Dadake under section 302 of the IPC is set aside. Instead accused Ravindra y

Subhana Dadake is convicted of offence under section 306 of the ba

IPC and sentenced to suffer RI for 10 years. He is also sentenced to pay fine of Rs.2,000/- in default, to suffer RI for 6 months. om

Substantive sentence shall run concurrently.

26. Appeal is disposed of.

B

[SMT. RANJANA DESAI, J.]

[DR. D.Y. CHANDRACHUD, J.]

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